Waste To Compressed BIOGAS
Waste To Compressed BIOGAS
Waste To Compressed BIOGAS
1.1 The Ministry of Housing and Urban Affairs (MoHUA) signed an agreement with the International
Finance Corporation (IFC), a member of the World Bank Group, to form a partnership to promote
investment in the waste management sector in India. Through this partnership, IFC assisted MoHUA in
preparing a model concession agreement (MCA) and a model request for proposal (RFP, together the
Model Documents) for use by urban local bodies (ULBs) for development of waste to bio-methanation
projects in India.
(a) provide ULBs with standardised documents to implement waste to bio-methanation projects;
and
(b) develop an enabling framework for greater private sector participation in the waste management
sector in India.
1.3 This guidance note has been prepared for use by any ULB or other authority (Authority) that intends
to develop a waste to bio-methanation project to address the solid waste management requirements in
its city (Project). The Authority should use this guidance note and the ‘Drafting Notes’ set out as
footnotes in the Model Documents (Drafting Notes) to finalize the Model Documents prior to
commencement of the tender process to identify a selected bidder for development of the Project.
1.4 Capitalized terms used but not defined in this guidance note will have the meaning given to them in the
MCA.
2.1 The Model Documents have been prepared to cater to different transaction structures that may be
adopted for the Project, depending on the revenue streams for the Concessionaire.
2.2 The various revenue streams provided under the Model Documents are:
(a) Grant: A grant (including any viability gap funding) paid by the Authority to the Concessionaire
as capital support to be paid during the construction period, upon completion and certification
of the work corresponding to the construction milestones (Grant). If the Authority decides that
a Grant is required to ensure or enhance the viability of a Project, then the Grant may be: (i) the
bid parameter, in which case Grant will be the amount quoted by the Bidder in its Financial
Proposal; or (ii) a fixed Grant set out in the RFP at the outset if Processing Fee (as defined
below) or Royalty (as defined below) is the bid parameter.
(b) Processing Fee: A per ton fee payable by the Authority to the Concessionaire for accepting,
handling, processing, and where applicable, Segregating, Acceptable Waste to be paid during
the O&M Period (Processing Fee). Depending on the structure of the Project, if the Authority
decides that a Processing Fee is payable then the Processing Fee may be: (i) the bid parameter,
in which case the per ton fee must be quoted by the Bidder in its Financial Proposal; or (ii) a
fixed Processing Fee set out in the RFP at the outset if Grant or Royalty is the bid parameter.
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(c) Royalty: A royalty is the consideration paid by the Concessionaire to the Authority for grant of
the Concession each year after the COD (in 12 (twelve) equal monthly installments) (Royalty).
Depending on the overall Project viability, if the Authority decides that it would be feasible to
seek a Royalty from the Concessionaire, then the Royalty may be: (i) the bid parameter, in
which case the Royalty will be the annual amount quoted by the Bidder in its Financial
Proposal; or (ii) a fixed Royalty set out in the RFP at the outset if Grant or Processing Fee is
the bid parameter. In each case, the Royalty may be fixed for the Concession Period, or the
Royalty may be subject to escalation by an amount equal to 5% (five per cent) on the 3rd (third)
anniversary of the COD and every three years thereafter during the Concession Period. The
Authority to note that prior to including provisions in relation to Royalty, the Authority must
carry out financial modelling to assess if payment of Royalty by the Concessionaire is
financially viable for the Project.
3. Key issues to be addressed by the Authority before issuing the Model Documents
3.1 The Authority should determine the applicable payment structure and the corresponding bid parameter,
based on the options described in paragraph 2 above, before launching the tender and accordingly, retain
the relevant options and appropriately modify the Model Documents (as discussed in section 4 of this
guidance note).
3.2 In addition to the above, the Authority must perform the following key activities before launching the
tender and issuing the Model Documents:
(c) identifying the site for disposal of residual waste and residual inert matter;
(e) determining the quantities of Acceptable Waste that the Authority is able to guarantee, the
maximum quantity of Mixed Waste that shall be supplied by the Authority and the quantity of
Acceptable Waste that the Concessionaire needs to accept, in each case on a TPD basis;
(f) assessing how the Acceptable Waste shall be delivered to the Site, including if applicable,
identifying the C&T contractors appointed or to be appointed to deliver the waste to the Site;
(i) finalizing the Model Documents in accordance with paragraphs 4 and 5 below.
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(a) E-procurement requirements: The RFP may need to be revised depending on the procurement
requirements of the relevant State Government and any requirements/specifications of the e-
procurement portal being used by the Authority.
(b) Selected Bidder/Concessionaire: The MCA provides drafting options depending on the whether
the Concessionaire has been incorporated prior to the execution of the MCA and the applicable
provision should be selected in line with the Drafting Notes (including the Drafting Notes set
out in the array of parties, recital J and the condition precedent in relation to the technology
license agreement set out in clause 4.2(g)).
(c) Single Bidder/Consortium: The MCA provides drafting options depending on whether the
Selected Bidder is a single bidder or a consortium. The applicable provision should be
selected/modified based on the Drafting Notes set out in the Model Documents. For example,
if the Selected Bidder is a single bidder, then the references to "consortium" and "Member"
should be deleted, the condition precedent to provide the Authority with an executed
shareholders agreement among the shareholders of the Concessionaire should be deleted, the
conditions precedent in clauses 4.2(m) and 4.2(n) and the representation in clause 7.2(i) should
be revised to retain references to the Selected Bidder and delete references to a Member, and
clause 5.10 should be amended to retain the change in ownership restrictions applicable to a
single bidder and delete the change in ownership provision applicable to a consortium.
(d) Definition of Acceptable Waste: If no agriculture and/or dairy waste is generated within the
Authority’s jurisdictional area, the reference to agriculture and/or dairy waste should be deleted
from the definition of Acceptable Waste.
(e) Payments and Bid Parameter: Drafting options have been included in the Model Documents
depending on the payments to be made to the Concessionaire and the bid parameter.
Once the payment structure and bid parameter is finalized by the Authority, the Model
Documents should be modified using the guidance set out in Drafting Notes, as this will result
in changes throughout the Model Documents. Some of the key changes to be made to the Model
Documents are set out below:
(i) Clauses 1.2, 2.10, 21, 24 and 28 of the RFP provide drafting options depending on
whether Grant, Processing Fee or Royalty is the bid parameter. The applicable
provision should be selected or modified based on the Drafting Notes.
(ii) Article 22 of the MCA provides for drafting options depending on whether Grant,
Processing Fee and/or Royalty is payable under the MCA, and the applicable provision
should be selected or modified based on the Drafting Notes. Where two forms of
payment are to be made under the MCA (such as if Royalty is the bid parameter but a
fixed Processing Fee or a fixed Grant is also payable to the Concessionaire), the
Drafting Notes clarify how the various applicable provisions should be selected.
(iii) Article 24.2 of the MCA which specifies the Minimum Escrow Balance to be
maintained by the Authority should be modified depending on whether Grant and/or
Processing Fee is payable and deleted if only Royalty is payable, in each case in
accordance with the Drafting Notes.
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(iv) The definitions section of the Model Documents should be revised to retain only
applicable definitions and where relevant, modify the definitions in accordance with
the Drafting Notes. For e.g., if no Grant is payable then the definitions of "Grant", and
"Project Milestone" should be deleted and the definitions of "Concessionaire
Payments" and "Debt Due" should be modified as per the Drafting Notes.
(f) Project Milestones: Under the MCA, Grant is paid upon completion and certification of the
work corresponding to 4 (four) Project Milestones. If no Grant is to be paid, delete all provisions
related to "Project Milestones" and "Scheduled Project Milestone Completion Date" (including
the provision on ‘Completion of Project Milestones’ in clause 16.1) and retain the alternative
clauses provided in accordance with the Drafting Notes. If a Grant is to be paid, then delete the
alternative clauses in accordance with the Drafting Notes such as the provision on ‘Completion
of Construction’ in Clause 16.1.
(g) Livelihood Restoration Plan and Resettlement Action Plan: Provision in relation to the
livelihood restoration plan and resettlement action plan to be deleted if there is no displacement
of people due to the Project or if no waste pickers are facing loss of revenue due to a grant of
license over the Site or diversion of waste to the WtB Facility.
4.2 Key provisions of the Model Documents to which any changes should be avoided:
(a) DBFOT Model: The Model Documents assume that the Project is being developed on a public
private partnership basis, through a Design, Build, Finance, Operate and Transfer (DBFOT)
model. The Authority should avoid deviating from the DBFOT model unless there are strong
reasons for such deviation. If an alternate model is adopted by the Authority, then the Authority
must determine the drafting changes required to reflect the alternate model.
(b) Supply of source segregated waste: The Authority should not deviate from the commitment to
supply Source Segregated Organic (SSO) waste as supply of SSO is an essential requirement
of waste to bio-methanation projects and is the fundamental assumption on the basis of which
the Model Documents have been drafted. The Authority may increase the percentage of the
Maximum Permissible Mixed Waste Quantity depending on the quality of waste available,
however, it is desirable to provide segregated waste for waste to bio-methanation projects and
therefore, to the extent possible, the Authority should aim to keep the Maximum Permissible
Mixed Waste Quantity less than 5% of the Daily Guaranteed Acceptable Waste Quantity. If for
any reason, the Authority choses to supply only Mixed Waste or the Maximum Permissible
Mixed Waste Quantity is much higher than the proposed 5% (five per cent), then the Model
Documents should be reviewed in totality to assess all changes that may be required.
(c) Daily Guaranteed Acceptable Waste: The Authority should not deviate from the commitment
to provide a daily guaranteed quantity of Acceptable Waste or dilute or weaken the provisions
in relation to payment of liquidated damages for a failure to supply such quantities. This is
because these are the Authority’s key obligations during the O&M Period and the Authority’s
failure to supply such quantities will affect the ability of the Concessionaire to operate the
Project Facilities and meet its supply commitments under the Offtake Agreements, which in
turn would impact the bankability of the Project.
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(d) Conditions Precedent: The conditions precedent should not be changed other than to include
additional conditions precedent if required for a Project on a case-by-case basis. In particular,
the Authority’s conditions precedent that could impact the bankability of the Project should not
be diluted or weakened such as granting a right of way to the Site, providing access road(s) to
the Site, providing an LC, opening an Escrow Account and entering into a Substitution
Agreement.
(e) Drawings and Design: The requirement that the Concessionaire should prepare the drawings
and design in accordance with the technical specifications should not be changed as the risk
allocation under the Model Documents has been determined on the basis that the
Concessionaire is providing the drawings and design for the Project.
(f) Equity Lock-in: The equity lock-in provisions set out in Model Documents (including in clause
5.10 of the MCA and clause 3.2 of the RFP) have been designed to ensure that the selected
bidder/consortium members remain adequately invested in the Project to ensure the successful
commissioning and operation of the Project during the Concession Period, while retaining the
flexibility to induct other investors/strategic partners in the Project. Therefore, the Authority
should avoid making the equity lock-in provisions more stringent, which may disincentivise
the private sector from bidding for the Project. The Authority may consider relaxing the equity
lock-in requirements on a case-by-case basis depending on the evolution of the technology and
the waste to bio-methanation sector.
(g) Payment Security: The provisions in relation to payment security (i.e., provision of an LC,
funding the Escrow Account with an amount equivalent to the Minimum Escrow Balance and
the guarantee from the Confirming Party in clause 22.7) should not be diluted or weakened as
that would directly and adversely impact the bankability of the Project. However, the
requirement to provide an LC and maintain a Minimum Escrow Balance must be deleted if no
Grant or Processing Fee is to be paid under the Model Documents.
(h) Key Performance Indictors: The Authority should avoid deleting any of the key performance
indicators as these are essential to measure the performance of the WtB Facility once it is
operational.
(i) Force Majeure: The Authority should avoid changing the risk-allocation in the force majeure
provisions as the termination payments vary depending on whether a Force Majeure Event is a
Non-Political Force Majeure Event, an Indirect Political Force Majeure Event or a Direct
Political Force Majeure Event. Any additions to, or deletions from, the list of Non-Political
Force Majeure Event, Indirect Political Force Majeure Event or Direct Political Force Majeure
Event should be made keeping in mind the consequences of the specific category of Force
Majeure Event and the associated termination payments in case of prolonged force majeure.
(j) Termination Compensation: To the extent possible, the termination compensation provisions
should not be changed. In particular, the obligation to pay debt due or a certain percentage of
debt due upon termination for either Party's default and at any time during the Concession
Period should not be diluted or weakened further as this may significantly impact the
bankability of the Project.
(k) Change in Law: The Authority should avoid weakening or diluting the Concessionaire’s right
to claim relief for a Change in Law event in accordance with Article 32 of the MCA as this may
impact the bankability of the Project.
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5. Data required for finalization of the Model Documents
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Reference Data required
Definition of Performance Insert the web page link for IFC's Performance Standards on Social & Environmental Sustainability,
Standards dated January 1, 2012 and Environmental, Health, and Safety Guidelines on Waste Management
Facilities dated December 10, 2007.
Definition of Site Populate the placeholders in the definition of Site including the area in acres.
Definition of Site Populate the placeholders in the definition of Site Contamination Report.
Contamination Report
Definition of Total Project Insert the estimated Total Project Cost prepared by the Authority in limb (c).
Cost
Definition of Trial Insert a duration for the minimum trial operations period.
Operations
Clause 3.2(s) Insert the value of the Subcontracts above which the Subcontracts will be executed only with the prior
approval of the Authority which should be equal to 25% (twenty-five per cent) of the Total Project
Cost (as set out in limb (c) of the definition of Total Project Cost).
Clause 5.6 Insert the location of the Project.
Clause 5.10 Populate the shareholding pattern of the Selected Bidder/Members in the Concessionaire as per the
placeholders in the table.
Clause 7.2(g), 7.2(m) and Insert the relevant State Government.
7.3(e)
Clause 9.1 Insert the amount of the Performance Security which should be an amount equal to 10% (ten per cent)
of the Total Project Cost (as set out in limb (c) of the definition of Total Project Cost).
Clause 9.3 Insert the amount of the O&M Security which should be an amount equal to 5% (five per cent) of the
Total Project Cost (as set out in limb (c) of the definition of Total Project Cost).
Clause 10.1(b) Populate the details of what the Site includes, in particular if it includes land for setting up anything
in addition to the Project. If not, delete the placeholder.
Clause 10.2(b) Insert the time-period from the Execution Date within which the Authority is obligated to handover
the Site to the Concessionaire.
Clause 14.2(c)(ii) Insert the time-period from the Appointed Date within which the Concessionaire is obligated to
submit the Designs and Drawings to the Authority.
Clause 14.4(d) Insert the time-period from the Appointed Date for development of the OHS Plan.
Clause 14.4(h) and (i) If a biodiversity assessment, a livelihood restoration plan or a resettlement action plan is required,
insert the time-period from the Execution Date within which these must be completed or implemented
(as applicable).
Clause 16.1(c)(i) Insert the time period after issuance of the Trial Operations Commencement Notice within which the
Concessionaire must commence Trial Operations. Insert the minimum duration of Trial Operations
(same as the minimum trial operations period set out in the definition of Trial Operations).
Clause 16.1(c)(v) Insert the time period after issuance of the Milestone Completion Certificate / Construction
Completion Certificate within which the Concessionaire must submit the Acceptance Tests Schedule.
Clause 16.1(c)(x) Insert the time period for submission of a report on successful completion of Trial Operations.
Clause 18.5(b) Insert the Daily Guaranteed Acceptable Waste Quantity to be supplied by the Authority.
Clause 18.5(e)(ii) Insert aggregate quantity of Acceptable Waste required to be accepted by the Concessionaire during
any consecutive 7 (seven) day period which is equal to 105% (one hundred and five per cent) of the
Design Capacity multiplied by 7 (seven).
Clause 18.6(a) Insert the number of weighbridges required.
Clause 18.6(d) Populate the time durations for (i) notifying the Authority of Prohibited or Mixed Waste; (ii)
inspection by the Independent Engineer; (iii) removal of waste from the Site after inspection.
Clause 18.9(f) Populate the minimum distance of an alternate disposal site from the Site beyond which the Authority
is required to reimburse any incremental transportation cost incurred by the Concessionaire.
Clause 18.12(c) Populate the time duration for removal of waste from the Site.
Clause 20.1(v) and (vi) Populate the time on each day prior to which the daily weight sheets and daily reports on the volume
of CBG should be delivered to the Authority.
Clause 20.4(c) Insert the time period for which if the Concessionaire ceases to operate, step-in rights are triggered.
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Reference Data required
Clause 21.1(b)(i) Insert the quantity of Acceptable Waste that the Concessionaire is required to accept in TPD which is
equal to the 100% of the Design Capacity of the WtB Facility.
Article 22 As applicable, populate the amount of the Grant, the Royalty and/or the Processing Fee and any
placeholders for time durations.
Clause 22.6(a) Insert the LC amount.
Clause 22.9 Insert the default interest rate.
Clause 24.2 Insert the time duration after which the Confirming Party must fund the Escrow Account.
Clause 26.1(b)(ii) Insert the State where the Project is located and the relevant State Government.
Clause 28.1(e) Insert the liquidated damages cap.
Clause 30.2(a) Insert the year after COD in which the Authority can conduct a survey of the Site in accordance with
the divestment provisions.
Clause 31.2(c) Insert the threshold (as a percentage of the Total Project Cost) which triggers the Concessionaire’s
right to reject a variation.
Clause 32.2(a) Insert the increase in costs threshold due to change in law which gives the Concessionaire a right to
propose amendments to the MCA.
Article 34 Insert the place where the initial Dispute Meeting will be held and the venue of the arbitration.
Clause 35.4 Populate the notice details.
Clause 35.5 Insert the courts which have exclusive jurisdiction in India.
Schedules to the MCA
Schedules Populate the schedule numbers throughout the document once the schedules are finalised.
Scope of Works Prepare a schedule that sets out the scope of works for construction and O&M of the Project.
Site Prepare a schedule that sets out a description of the Site (including identification of the battery limits
of the Site) and any layout plans in relation to the Site.
Technical Specifications Prepare a schedule that sets out the technical specifications for design, development, construction,
commissioning, operation, and maintenance of the Project.
Plans Prepare a schedule(s) that sets out the requirements for preparing the Project Execution Plan, Detailed
Project Report, Construction Plan and EMP.
Applicable Permits Prepare a schedule that sets out the Applicable Permits required to be obtained by the Concessionaire
and the Authority from time to time in connection with the Project.
Liquidated Damages Prepare a schedule that sets out the liquidated damages to be paid by the Concessionaire for a failure
to meet the KPIs.
Escrow Agreement Prepare a schedule that sets out the form of the Escrow Agreement.
Substitution Agreement Prepare a schedule that sets out the form of the Substitution Agreement.
Independent Engineer Prepare a schedule that sets out the procedure for appointment, replacement and the scope of work of
the Independent Engineer.
Safety Requirements Prepare a schedule that sets out the safety requirements.
Letter of credit Prepare a schedule that sets out the form of the letter of credit to be provided by the Authority to the
Concessionaire.
Vesting Certificate Prepare a schedule that sets out the form of the vesting certificate.
RFP
Definition of C&T Insert the city.
Contractors
Definition of Confirming Insert details of the Confirming Party and the State in which the Project is located.
Party
Definition of Design Insert the TPD quantity of Acceptable Waste that the WtB Facility is designed to handle and process.
Capacity
Definition of Disposal Insert the location of the disposal site and the distance from the Site.
Location
Definition of e- Insert the State Government and the link for the portal.
Procurement Portal
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Reference Data required
Definition of Maximum Insert an amount equivalent to 5% (five per cent) of the Daily Guaranteed Acceptable Waste Quantity.
Permissible Mixed Waste The Authority may increase this percentage depending on the quality of waste available, however, it
Quantity is desirable to provide segregated waste for waste to bio-methanation projects and therefore, to the
extent possible, the Authority should aim to keep the Maximum Permissible Mixed Waste Quantity
less than 5% of the Daily Guaranteed Acceptable Waste Quantity.
Definition of Performance Insert the web page link for IFC's Performance Standards on Social & Environmental Sustainability,
Standards dated January 1, 2012 and Environmental, Health, and Safety Guidelines on Waste Management
Facilities dated December 10, 2007.
Definition of Project Site Populate the placeholders in the definition of Site including the area in acres.
Definition of RFP Insert date of the RFP.
Clause 1.2(l) Populate the fixed Grant, fixed Royalty and/or fixed Processing Fee, in each case if applicable.
Clause 1.2(n) Insert the LC amount.
Clause 2.7 Insert amount of the Earnest Money Deposit.
Clause 2.15 Populate the bid schedule.
Clause 4.1(a) and (b) Insert the quantity of waste equivalent to 80%, 50% and 40% of the Design Capacity in TPD, in each
case as per the placeholders in Clause 4.1(a) and 4.1(b).
Clause 4.2(a) Insert the minimum net worth equal to 25% (twenty-five per cent) of the Total Project Cost (as set
out in limb (c) of the definition of Total Project Cost under the MCA).
Clause 4.2(b) Insert the average annual turnover equal to 50% (fifty per cent) of the Total Project Cost (as set out
in limb (c) of the definition of Total Project Cost under the MCA).
Clause 4.2(f) Insert the cut-off date of incorporation.
Clause 4.2(h) Insert the RBI Reference Rate for conversion to INR.
Clause 13.2 Insert the name of the city which has exclusive jurisdiction.
Clause 15.1 Insert the amount of the Earnest Money Deposit equal to 1% (one per cent) of the Total Project Cost
(as set out in limb (c) of the definition of Total Project Cost under the MCA).
Clause 16.1 Insert the amount of the Performance Security equal to 10% (ten per cent) of the Total Project Cost
(as set out in limb (c) of the definition of Total Project Cost under the MCA).
Clause 20.1(l) Insert the bid document fee amount and account details where it has been transferred.
Clause 24.1 Insert the maximum limit for file size of each file uploaded on the e-Procurement Portal.
Clause 24.11 Insert the address details for delivery of hard copy documents.
Clause 25.2 Insert the name and designation of the addressee of a letter to modify the Bid.
Clause 30.1 Insert the time period after declaration of the Preferred Bidder within which the LOA should be issued.
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DISCLAIMER
IFC has appointed Trilegal as the legal consultant for drafting, revising, and finalizing the Model Documents
and this guidance note. The Model Documents and this guidance note have been drafted and revised by Trilegal
based on instructions, comments, feedback, and other information received from IFC and MoHUA. MoHUA
released the draft Model Documents on its website on 10 July 2023. Thereafter, comments were received from
multiple stakeholders (including private players and government agencies) and the Model Documents have
been revised accordingly, where necessary.
IFC, together with its consultants and advisors, does not guarantee the adequacy, correctness, completeness or
reliability of the content included in this guidance note or the Model Documents and accepts no responsibility
or liability for any omissions or errors (including, without limitation, typographical errors and technical errors)
in the content whatsoever, or for any reliance thereon.
IFC, together with its consultants and advisors, makes no representation or warranty and will have no liability
to any person, including any bidder, under any law, statute, rules or regulations or tort or otherwise for any
loss, damage, cost or expense which may arise from or that may be incurred or suffered on account of anything
contained in this guidance note or the Model Documents, and any assessment, assumption, statement or
information contained in this guidance note or the Model Documents or deemed to form part of this guidance
note or the Model Documents.
The cost of developing this guidance note and the Model Documents, including professional fees paid to
consultants and advisors, has been met through funding obtained from the European Union. The contents of this
guidance note and the Model Documents do not necessarily reflect the views of the European Union.
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[Insert name and logo of issuing Authority]
The Ministry of Housing and Urban Affairs (MoHUA) has signed an agreement with the International
Finance Corporation (IFC), a member of the World Bank Group, to form a partnership to accelerate
investment in the solid waste management sector in India. Through this partnership, IFC has assisted
MoHUA in preparing a model concession agreement (MCA), a model request for proposal (RfP,
together the Model Documents) and a guidance note in relation to the Model Documents (Guidance
Note) for use by urban local bodies for development of waste to bio-methanation projects in India. The
objective of preparing the Model Documents and the Guidance Note is to develop an enabling
framework for private sector participation in the solid waste management sector. Urban local bodies are
advised to refer to the Model Documents and the Guidance Note while preparing the bid documents for
a tender process in relation to development of a waste to bio-methanation project.
IFC has appointed Trilegal as the legal consultant for drafting, revising, and finalizing the Model
Documents and the Guidance Note. The Model Documents and the Guidance Note have been drafted
and revised by Trilegal based on instructions, comments, feedback, and other information received from
IFC and MoHUA.
MoHUA released the draft Model Documents on its website on 10 July 2023. Thereafter, comments
were received from multiple stakeholders (including private players and government agencies) and the
Model Documents have been revised accordingly, where necessary.
IFC, together with its consultants and advisors, does not guarantee the adequacy, correctness,
completeness or reliability of the content included in the Model Documents or the Guidance Note and
accepts no responsibility or liability for any omissions or errors (including, without limitation,
typographical errors and technical errors) in the content whatsoever, or for any reliance thereon.
IFC, together with its consultants and advisors, makes no representation or warranty and will have no
liability to any person, including any bidder, under any law, statute, rules or regulations or tort or
otherwise for any loss, damage, cost or expense which may arise from or that may be incurred or
suffered on account of anything contained in the Model Documents or the Guidance Note, and any
assessment, assumption, statement or information contained in these Model Documents or the Guidance
Note or deemed to form part of the Model Documents or the Guidance Note.
The cost of developing the Model Documents and the Guidance Note, including professional fees paid
to consultants and advisors, has been met through funding obtained from the European Union. The
contents of the Model Documents and the Guidance Note do not necessarily reflect the views of the
European Union.
1 Drafting Note: This background and disclaimer section is for the benefit of MoHUA, any urban local body or other
authority using or reviewing the Model Documents and the Guidance Note. This background and disclaimer section
should be deleted prior to issuing the Model Documents to the bidders in a tender process.
TABLE OF CONTENTS
Disclaimer ............................................................................................................................................... 1
Glossary .................................................................................................................................................. 2
Section I - Introduction ......................................................................................................................... 11
Section II – Eligibility and Qualification Criteria ................................................................................. 18
Section III - Instruction to Bidders ....................................................................................................... 30
Part A - General .................................................................................................................................... 30
Part B - Bid Security and Performance Security................................................................................... 36
Part C - Preparation and Submission of Bids ........................................................................................ 38
Part D - Opening and Evaluation of Bids ............................................................................................. 43
Part E. - Award of Project ..................................................................................................................... 47
Annexures ............................................................................................................................................. 49
DISCLAIMER
The information contained in this RFP or any other information or document provided to the Bidders,
whether verbally or in writing or in any other form, by or on behalf of the [●] (the Authority) and its
employees or advisors is provided to the Bidders 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 further it is neither an offer nor an invitation by the Authority to the
Bidders or any other Person. The purpose of this RFP is to provide the Bidders with information that
may be useful to them in the preparation and submission of their Bids.
This RFP includes statements which reflect various assumptions and assessments arrived at by the
Authority and their advisors for the Project. Such assumptions, assessments and statements do not
purport to contain all the information that the Bidders may require. The information contained in this
RFP may not be appropriate for all Persons and it is not possible for the Authority and their employees
or advisors to consider the investment objectives, financial situation and particular needs of each Person
who reads 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.
The information provided in this RFP is not intended to be an exhaustive account of statutory
requirements and should not be regarded as a complete or authoritative statement of the law.
Except as provided in the RFP and the Agreement, the Authority and their employees and advisors
make no representation or warranty and will have no liability to any Person, including any Bidder, under
any law, statute, rules or regulations or tort or otherwise for any loss, damage, cost or expense which
may arise from or that may be incurred or suffered on account of anything contained in this RFP,
including the accuracy, adequacy, correctness, completeness or reliability of this RFP and any
assessment, assumption, statement or information contained in this RFP or deemed to form part of this
RFP.
It will be deemed that by submitting the Bid, a Bidder agrees and releases the Authority and their
employees, agents and advisers, irrevocably, unconditionally, fully and finally from any and all liability
for any 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 under this RFP and/or in connection with
the Bid Process, to the fullest extent permitted by applicable law.
The Authority may, in its absolute discretion but without being under any obligation to do so, update,
amend or supplement the information, assessment, statement or assumptions contained in this RFP. The
issue of this RFP does not imply that the Authority is bound to qualify any Bidder or to award the
Project to any Bidder. The Authority reserves the right to reject all or any of the Bids without assigning
any reasons whatsoever.
1
GLOSSARY
In this RFP, unless the context otherwise requires, capitalised terms shall have the meaning given to
them in the table below.
Acceptable Waste means Source Segregated Organic (SSO) waste that can be degraded by micro-
organisms into simpler stable compounds for Bio-methanation, produced by
households, commercial enterprises, agricultural establishments, healthcare units
(non-bio-medical) including [agriculture and dairy waste]2, food waste, animal by-
products and Mixed Waste up to the Maximum Permissible Mixed Waste
Quantity, and excludes Prohibited Waste and Non-Biodegradable Waste (except
to the extent the Non-Biodegradable Waste forms part of the Mixed Waste up to
the Maximum Permissible Mixed Waste Quantity).
Accounting Year means the Accounting Year commencing from the first day of April of any
calendar year and ending on the thirty-first day of March of the next calendar year.
Agreement means the Concession Agreement to be executed between the Authority, the
Confirming Party and the Concessionaire, a draft of which is, or shall be, issued
by the Authority along with this RFP.
Annual Turnover means the gross revenue recognized in the profit and loss account of a Company
from the sale, supply, or distribution of goods or on account of services rendered,
or both, during an Accounting Year.
Applicable Laws means the Constitution of India and all and any laws, enacted or brought into force
and effect by the GoI, the State Government, any government authority or any
local government having jurisdiction over the Parties, the Project Site or the
Project Facilities, including rules, regulations and notifications made thereunder,
and judgments, decrees, injunctions, writs and orders of any court of record, as
may be applicable to the execution of this Agreement and the performance of the
respective rights and obligations of the Parties, as may be in force and effect during
the subsistence of this Agreement. For the avoidance of doubt, and without in any
way limiting the generality of the foregoing, Applicable Laws shall include the
EPA, the EPA Rules, the SWM Rules and laws concerning any environmental,
social, labour, health and safety or security risks of the type contemplated by the
Performance Standards.
Appointed Date means the date on which all the conditions precedent specified in the Agreement
for effectiveness of the Agreement have been satisfied, or waived, by the Parties,
as evidenced by a notice of satisfaction of the conditions precedent issued by the
Authority to the Concessionaire in accordance with the terms of the Agreement.
2 Drafting Note: To be deleted if no dairy or agriculture waste will be supplied by the Authority.
2
under the common Control of the same Person who Controls such entity.
Associated means the infrastructure facilities associated with the operation of the Project
Infrastructure Facilities or otherwise required to be provided by the Concessionaire, including
weighbridges, site office, administrative buildings, security room, boundary
wall/security fence, laboratories, ambient air quality monitoring stations, pipelines
(if required, for the transportation of the CBG Output), utilities, waste storage
facility, waste segregation facility etc., as described in greater detail in the Scope
of Work in the Agreement and the Technical Specifications.
Best Quote means the [[lowest quoted Grant] / [lowest quoted Processing Fee] / [highest
quoted Royalty]]3.
Bid means a bid consisting of the Qualification Proposal and the Financial Proposal
submitted by a Bidder for qualification and award of the Project, and Bids mean
collectively, all the bids for the Project.
Bid Document Fee means the fee to be paid by the Bidder for purchasing and downloading this RFP
in accordance with Clause 2.7.
Bid Due Date means the last date for submission of the Bids specified in the Bid Schedule, as
may be extended from time to time in accordance with Clause 19.
Bid Process means the single-stage bidding process, with two sub-stages4, undertaken by the
Authority to award the Project to the Selected Bidder on the terms and conditions
set out in this RFP. The Bid Process has commenced with the issue of this RFP
and will end on the date that the Agreement is executed with the special purpose
vehicle incorporated by the Selected Bidder for the Project or the Selected Bidder
itself, as the case may be.
Bid Schedule means the schedule of the Bid Process set out in Clause 2.15, as may be amended
from time to time.
Biodegradable means any waste that can be degraded by micro-organisms into simpler stable
Waste compounds.
3 Drafting Note: To be selected based on whether the bidding criteria is Grant, Processing Fee or Royalty.
4 Drafting Note: This RfP has been drafted on the basis that the Bid Process will be a single-stage bidding process with
two sub-stages. RfP to be modified if the bid process will be a two-stage bidding process.
3
Bio-methanation means the process of enzymatic decomposition of organic matter by microbial
action to produce methane rich biogas.
[C&T Contractors means the contractors appointed, or to be appointed, by the Authority for collection
and transportation of waste in [●].]5
Compressed Biogas means compressed biogas that is purified as per Bureau of Indian Standards
or CBG IS16087:2016.
CBG Output means the CBG generated from processing of Acceptable Waste at the Project
Facilities.
COD means the date on which the COD Certificate is issued (or deemed to be issued)
by the Authority to the Concessionaire after successful trial operations and testing
of the WtB Facility.
COD Certificate means the certificate issued (or deemed to be issued) by the Authority to the
Concessionaire evidencing the date on which the WtB Facility has entered
commercial operations under the Agreement.
Companies Act means the (Indian) Companies Act, 1956 or the (Indian) Companies Act, 2013, as
amended from time to time, as the context may require.
Company means a company incorporated under the Companies Act or a foreign company
incorporated under the relevant statute of its jurisdiction.
Concessionaire means the special purpose vehicle incorporated by the Selected Bidder under the
Companies Act to enter into the Agreement with the Authority and the Confirming
Party and implement the Project.
Confirming Party means the [Department of Local Government/Urban Development] of [Insert the
name of the relevant State where the Project is located].
(a) the ownership, directly or indirectly, of more than 50% of the voting
shares of such Person; or
5 Drafting Note: To be deleted if no C&T Contractors have been appointed or will be appointed by the Authority.
4
and the term Controlled shall be construed accordingly.
Design Capacity means the quantity of Acceptable Waste that the WtB Facility should be
designed to handle and process in a day, which shall be [●] TPD.
Disposal Location means the [sanitary landfill located [•] km from the Project Site at [•]]6 / [the
disposal location [•] km from the Project Site at [•]]7 identified by the Authority
for safe and scientific disposal of the Residual Inert Matter and any Residual
Waste.
Earnest Money means the bid security that must be submitted by a Bidder along with its Bid in
Deposit accordance with Clause 15.
Eligibility Criteria means the eligibility criteria set out in Clause 3 that a Bidder is required to satisfy
(in addition to the Qualification Criteria), to be qualified for evaluation of the
Financial Proposal.
EPA means the Environment (Protection) Act, 1986, as amended from time to time.
EPA Rules means the Environment (Protection) Rules, 1986, as amended from time to time.
e-Procurement means the e-procurement portal of the [insert the relevant State Government]
Portal available at the following url: [●].
Equity means the sum expressed in INR representing the paid up share capital of the
Contribution Concessionaire for meeting the equity component of its financial obligations under
the Agreement and the financing documents, which, for the purpose of the
Agreement, shall include instruments that shall compulsorily convert into equity
share capital and any loans provided by any shareholder of the Concessionaire or
any Associate of the Concessionaire or any Associate of any shareholder of the
Concessionaire and which shall be capped at the amount specified as the equity
contribution in the financing package indicating the means of financing the Project
Facilities submitted to the Authority by Concessionaire in accordance with the
Agreement.
Financial Capacity means the financial capacity and strength of the Bidder, as determined in
accordance with Clause 4.2.
Financial Proposal means the financial proposal to be submitted by a Bidder in accordance with this
RFP.
6 Drafting Note: To be deleted if the Residual Waste and Residual Inert Matter will not be disposed of at a sanitary landfill
and an alternate location is to be specified.
7 Drafting Note: To be deleted if the Residual Waste and Residual Inert Matter will not be disposed of at a sanitary landfill
and an alternate location is to be specified.
5
GoI means the Government of India.
[Grant means the amount required by the Bidder from the Authority, in INR, as capital
support for undertaking the Project and which is to be paid in instalments during
the concession period in accordance with the terms of the Agreement.]8
Independent means the Person to be jointly appointed by the Authority and the Concessionaire
Engineer to act as the independent engineer for the Project in accordance with the provisions
of the Agreement.
(i) will hold at least 26% of the Equity Contribution and voting rights of the
Concessionaire; and
(ii) is authorised by all other Consortium Members to be responsible for the Bid
Process and to represent and act on behalf of the Consortium for submission
of the Bid, in terms of the joint bidding agreement.
LOA means the letter of award that will be issued by the Authority to the Selected Bidder
in accordance with Clause 30.
Maximum means a maximum quantity of Mixed Waste, which shall not exceed, [insert
Permissible Mixed quantity equal to 5% (five per cent) of the Daily Guaranteed Acceptable Waste
Waste Quantity Quantity]9 TPD which the Concessionaire shall be required to Segregate, process
(if applicable) and dispose of in accordance with the requirements under the
Agreement.
[Minimum Escrow means an amount equivalent to [(i) prior to the Appointed Date, the first instalment
Balance]10 of the Grant payable to the Concessionaire in accordance with the Project
Milestones, (ii) from the Appointed Date, the next instalment of the Grant due and
payable to the Concessionaire in accordance with the Project Milestones]11 [and]
[(iii) the estimated Processing Fee due and payable to the Concessionaire for the
next [3 (three)] months of the O&M Period, in accordance with the terms of the
Agreement]12
Mixed Waste means un-segregated wet and dry waste or Biodegradable Waste and Non-
biodegradable Waste, that is produced by households, commercial enterprises,
8 Drafting Note: To be deleted if Grant is not the bidding criteria. Where Royalty is the bidding criteria or Processing Fee
is the bidding criteria and a fixed Grant is also payable, the definition of Grant to be modified as follows: “means INR
[●], payable by the Authority to the Concessionaire as capital support for undertaking the Project and which is to be
paid in instalments during the concession period in accordance with the Agreement.”
9
Drafting Note: Insert an amount equivalent to 5% (five per cent) of the Daily Guaranteed Acceptable Waste Quantity.
The Authority may increase the percentage of the Maximum Permissible Mixed Waste Quantity depending on the quality
of waste available, however, it is desirable to provide segregated waste for WtB plants and therefore, to the extent
possible, the Authority should aim to keep the Maximum Permissible Mixed Waste Quantity less than 5% of the Daily
Guaranteed Acceptable Waste Quantity.
10 Drafting Note: Definition of Minimum Escrow Balance to be deleted if no Grant or Processing Fee is payable.
11 Drafting Note: To be deleted if no Grant is to be paid to the Concessionaire and the numbering in the definition to be
revised accordingly.
12 Drafting Note: To be deleted if no Processing Fee is to be paid to the Concessionaire.
6
healthcare units (non-bio-medical) including, solid or semi-solid domestic waste,
sanitary waste (as defined under the SWM Rules), commercial waste, institutional
waste, horticulture waste, agriculture and dairy waste, catering and market waste
and other non-residential wastes, food waste, paper, cardboard, wood, textiles,
rubber, leather, plastics, metal and glass, but excludes Prohibited Waste.
MoEFCC means the Ministry of Environment, Forest and Climate Change, GoI.
Non-biodegradable means any waste that cannot be degraded by micro-organisms into simpler stable
Waste compounds.
Office means the Office Memorandum F.No.6/18/2019-PPD dated 23 July 2020 issued
Memorandum by the Ministry of Finance, Department of Expenditure, Public Procurement
Division, Government of India to amend Rule 144 of the General Financial Rules
along with all subsequent amendments and clarifications.
Offtaker means any person that agrees to purchase all or part of the CBG Output from the
Concessionaire during the term of the Agreement.
Offtake Agreement means any agreement entered into between the Concessionaire and the Offtaker
for sale and purchase of the CBG Output.
O&M Period means the period commencing on COD and ending on the date of expiry or
termination of the Agreement during which the Concessionaire is required to
operate and maintain the Project Facilities.
Parties means the Authority, the Concessionaire and the Confirming Party and Party
means any of one of them.
Person means any individual, company, corporation, partnership, joint venture, trust,
society, sole proprietor, limited liability partnership, co-operative society,
government company, unincorporated organization or any other legal entity.
Pre-Bid Meeting means the meeting to be held in accordance with Clause 8.2.
7
Preferred Bidder means the Bidder which: (a) meets the Qualification Criteria and the Eligibility
Criteria; and (b) has the Best Quote.
[Processing Fee means the per ton fee (in INR) quoted by the Bidder in its Financial Proposal, for
accepting, handling, processing, and where applicable, Segregating, Acceptable
Waste.]13
[Processing Fee means INR [•] per ton of Acceptable Waste payable by the Authority to the
Concessionaire, for handling, Segregating and processing of Acceptable Waste in
accordance with the Agreement.]14
Prohibited Waste means hazardous waste (as defined under the Hazardous and Other Wastes
(Management and Transboundary Movement) Rules, 2016), bio-medical waste (as
defined under the Bio-Medical Waste Management Rules, 2016), construction and
demolition waste (as defined under the Construction and Demolition Waste
Management Rules, 2016) industrial waste, e-waste (as defined under the E-Waste
(Management) Rules, 2016), waste from batteries (as defined under the Batteries
(Management and Handling) Rules, 2001, radioactive waste (as defined under the
Atomic Energy (Safe disposal of Radioactive Wastes) Rules, 1987), sludge,
sewage waste, ash, dirt, soil, and silt.
Project Facilities means the WtB Facility and the Associated Infrastructure, which need to be
constructed, installed, operated and maintained by the Concessionaire in
accordance with the terms of the Agreement (including the Technical
Specifications, Applicable Laws and the Performance Standards).
[Project Milestones means the four construction milestones according to which the Grant will be paid
to the Concessionaire, determined in accordance with the terms of the
Agreement.]15
Project Site means the area equivalent to [•] acres, indicated at [Figure [•] of Schedule [•]], on
which the Concessionaire shall develop the Project Facilities.
Qualification means the qualification criteria set out in Clause 4 that a Bidder is required to
Criteria satisfy (in addition to the Eligibility Criteria), to be qualified for evaluation of the
Financial Proposal.
Qualification means the proposal to be submitted by each Bidder to demonstrate that it meets
Proposal the Eligibility Criteria and the Qualification Criteria as set out in Clause 3 and
Clause 4.
8
RBI Reference means the Reserve Bank of India reference rate as available on
Rate https://www.fbil.org.in/.
Residual Inert means the waste matter produced after processing of the Acceptable Waste at the
Matter WtB Facility.
Residual Waste means the residual waste that is left after Segregation of the Mixed Waste, which
is not capable of being used by the Concessionaire for processing at the WtB
Facility to produce CBG and which the Concessionaire shall be required to dispose
of in accordance with the terms of the Agreement.
RFP means this request for proposal dated [•] along with its Annexes and includes any
Addenda, if issued.
[Royalty means an amount quoted by a Bidder in its Financial Proposal, as the consideration
to be paid by the Concessionaire to the Authority (annually during the O&M
Period) for the grant of the concession, and which will be subject to escalation in
the manner specified in the Agreement.]16
Scheduled Bank means a bank as defined under section 2(e) of the Reserve Bank of India Act, 1934,
as amended from time to time.
Segregation shall have the meaning as ascribed to the term in the SWM Rules and the terms
"Segregate" and "Segregated" shall also have similar meanings.
Selected Bidder means the eligible Bidder selected by the Authority for award of the Project.
Source Segregated means Biodegradable Waste that is separated from other waste streams at the
Organic waste or source of collection.
SSO waste
SWM Rules means the Solid Waste Management Rules, 2016, issued by the MoEFCC on 8
April 2016, as may be amended from time to time.
16 Drafting Note: To be deleted if the Royalty is not the bidding criteria. Where Grant or Processing Fee is the bidding
criteria and a fixed Royalty is also payable, the definition of Royalty to be modified as follows: “means INR [●], payable
by the Concessionaire to the Authority as consideration for grant the Project and which is to be paid in accordance with
the Agreement.” The Authority to note that prior to including provisions in relation to Royalty, the Authority must carry
out financial modelling to assess if payment of Royalty by the Concessionaire is financially viable.
17 Drafting Note: Insert the relevant State Government.
9
Technical Capacity means the technical capacity and experience of a Bidder, as determined in
accordance with Clause 4.1.
Technical means the technical specifications for the design, development, construction,
Specifications commissioning, operation and maintenance of the Project Facilities, which the
Concessionaire must comply with, as set out in the Agreement.
Waste means waste that can be degraded by micro-organisms into simpler stable
compounds for Bio-methanation or to otherwise produce bio-gas, produced by
households, commercial enterprises, agricultural establishments, healthcare units
(non-bio-medical) including solid waste (as defined under the SWM Rules),
agriculture and dairy waste, food waste and excludes Prohibited Waste.
WtB Facility means the waste to bio-methanation facility to be set up by the Concessionaire in
accordance with the terms of the Agreement (including the Scope of Work and
Technical Specifications), which shall be capable of handling and processing
Acceptable Waste up to the Design Capacity.
10
SECTION I
INTRODUCTION
1. BACKGROUND
The Authority, recognizing the challenges of solid waste management in [insert name of city in
which the Project is to be developed], is keen to undertake the development of a waste to bio-
methanation facility at [insert location of the Project] which shall be capable of receiving and
processing up to [•] TPD of Acceptable Waste to meet the solid waste management
requirements of [insert name of city in which the Project is to be developed], on a public private
partnership (PPP) basis, through a design, build, finance, operate and transfer (DBFOT)18
model (Project).
1.1 The objectives that the Authority wishes to achieve through the Project include:
(a) proper handling, processing and disposal of waste and conversion of Acceptable Waste
to compressed methane-rich biogas;
(b) proper handling and scientific disposal of Residual Inert Waste and Residual Waste
generated from, or Segregated at, the WtB Facility; and
(c) mobilizing private sector investment and expertise for efficient management of solid
waste in the city of [insert name of city in which the Project is to be developed].
(a) The Authority will grant to the Concessionaire a license to use the Project Site to
develop, construct, operate, and maintain the Project Facilities, and ensure that the
Concessionaire enjoys peaceful unencumbered access to and possession of the Project
Site during the term of the Agreement.
(b) The Concessionaire will design, construct, operate and maintain the Project Facilities,
in accordance with the Agreement.
(c) The Concessionaire will be required to achieve the COD of the WtB Facility within
[24 (twenty four)] months of the Appointed Date and shall operate and maintain WtB
Facility for a period of [25 (twenty five)] years thereafter in accordance with the terms
of the Agreement.
(d) The Concessionaire shall develop and maintain a buffer zone (including a green area)
around the WtB Facility, in accordance with Applicable Laws.
(e) The Authority shall, or cause its C&T Contractors to, deliver Acceptable Waste to the
Concessionaire for processing at the WtB Facility and the Acceptable Waste delivered
18 Drafting Note: The model on which the Project is to be developed should, if required, be revised on a case-to-case basis
depending on the structure adopted by the relevant Authority for each Project.
11
during any day of the O&M Period shall not be less than the Daily Guaranteed
Acceptable Waste Quantity.
(f) On each day during the O&M Period, the Concessionaire shall be capable of accepting
Acceptable Waste up to [110% (one hundred and ten per cent)] of the Design Capacity
and handing and processing the Acceptable Waste up to the Design Capacity to
produce the CBG Output.
(g) If any Mixed Waste is delivered by the Authority on any day, the Concessionaire shall
receive, handle and Segregate such Mixed Waste up to the Maximum Permissible
Mixed Waste Quantity.
(h) The Concessionaire shall deliver the Residual Inert Waste and Residual Waste at the
Disposal Location, to be specified by the Authority.
(i) The Concessionaire shall be free to supply and deliver the CBG Output to the
Offtaker(s) on such terms as may be mutually agreed with the Offtaker(s).
(j) The Concessionaire shall hand back the Project Site and the Project Facilities upon
expiry or early termination of the Agreement, in accordance with the hand-back
conditions and the hand-back requirements specified in the Agreement.
(k) [The Grant [(which, for the avoidance of doubt, includes any viability gap funding
available for the Project)] will be paid by the Authority to the Concessionaire during
the construction period, upon completion and certification of the work corresponding
to the construction milestones to be specified in accordance with the Agreement.]19
[From COD, the Authority shall pay the Concessionaire the Processing Fee for each
ton of Acceptable Waste accepted by the Concessionaire for Segregating, handling
and processing at the WtB Facility in accordance with the Agreement.]20
[From COD, the Concessionaire shall pay the Royalty to the Authority in the manner,
and within the timelines, as specified in the Agreement.]21
(l) [The Authority shall pay the Concessionaire a fixed Grant equal to INR [•] as capital
support for undertaking the Project. Payments towards the Grant shall be made to the
Concessionaire in accordance with the terms of the Agreement.]22 [or] [The Authority
shall pay the Concessionaire a fixed Processing Fee equal to INR [•] for Segregating,
handling and processing of Acceptable Waste in accordance with the terms of the
Agreement]23 [or] [The Concessionaire shall pay the Authority a Royalty of INR [•]
per year during the O&M Period in accordance with the terms of the Agreement. The
Royalty shall be escalated by an amount equal to [5% (five per cent)] on the [3rd (third)]
12
anniversary of the COD and shall, thereafter, be escalated by [5% (five per cent)] every
[3 (three)] years until the expiry of the term of the Agreement.]24
(m) The Authority will open an escrow account for the Project and all payments required
to be made to the Concessionaire under the Agreement will be made through this
escrow account. [The escrow account shall be funded by the Authority at all times
with an amount equivalent to the Minimum Escrow Balance as set out in the
Agreement.]25
(n) In order to secure the payments to be made by the Authority to the Concessionaire, the
Authority shall also, procure and provide to the Concessionaire an unconditional,
revolving, irrevocable stand-by and payable at sight letter of credit (LC) issued by a
Scheduled Bank for an amount equal to [•]. The Concessionaire shall be entitled to
draw upon the LC in accordance with the terms of the Agreement.
(o) Prior to the Appointed Date, the Authority and the Concessionaire will appoint an
Independent Engineer who will supervise the implementation and operation of the
Project, in accordance with the Agreement.
1.3 The Authority is now inviting interested Companies to submit Bids to implement the Project.
1.4 The Selected Bidder is required to incorporate a special purpose vehicle (i.e., the
Concessionaire) to implement the Project and such special purpose vehicle and the Authority
will execute the Agreement, in the format in the format provided by the Authority.
1.5 The statements and explanations contained in this RFP are intended to provide the Bidders with
an understanding of the subject matter of this RFP and the Project. Such statements and
explanations should not be construed or interpreted as limiting in any way or manner:
(a) the scope of the rights and obligations of the Concessionaire, which will be set out
definitively in the Agreement; or
(b) the Authority's right to alter, amend, change, supplement or clarify the rights and
obligations of the Concessionaire or the terms and conditions that will be set out in the
Agreement, in accordance with this RFP.
Consequently, any omissions, conflicts or contradictions between this RFP and the Agreement
are to be noted, interpreted, and applied appropriately to give effect to this intent. The Authority
will not entertain any claims on account of such omissions, conflicts, or contradictions.
2.1 The Authority has adopted a single stage Bid Process for identification of the Selected Bidder
for award of the Project, which is divided into two sub-stages.
24 Drafting Note: To be deleted if no fixed Royalty is payable by the Concessionaire, or, if the Royalty is the bidding
parameter.
25 Drafting Note: To be deleted if no Grant or Processing Fee is payable to the Concessionaire.
13
2.2 The Bid Process will be conducted by way of e-procurement. All interested parties are required
to register online on the e-Procurement Portal to submit a Bid for the Project.
2.3 [The Bidders shall download the RFP from the e-Procurement Portal. The RFP will appear on
the e-Procurement Portal in the ''Tenders'' section and will be available only until the specified
time on the Bid Due Date. The Authority is not responsible for the completeness of the RFP if
it is not downloaded directly from the e-Procurement Portal]26.
2.4 Each Bidder is required to submit a single Bid, which should consist of: (a) the Qualification
Proposal; and (b) the Financial Proposal. The Qualification Proposal and Financial Proposal
should be prepared and submitted in accordance with the instructions contained in this RFP.
(a) The first sub-stage will involve qualification of the Bidders based on the evaluation of
their Qualification Proposals to determine compliance with the Eligibility Criteria and
the Qualification Criteria in accordance with Clauses 3 and 4. Only those Bidders who
are found to meet the Eligibility Criteria and the Qualification Criteria will be qualified
for the next sub-stage.
(b) The second sub-stage will involve evaluation of the Financial Proposals of those
Bidders whose Qualification Proposals meet the requirements set out in this RFP, to
identify the Selected Bidder for the Project.
2.6 The Bids must be valid for a period that is not less than [180 (one hundred and eighty)] days
from the Bid Due Date.
2.7 Bidders will be required to provide the Earnest Money Deposit along with their Bids. The
Bidders shall provide the Earnest Money Deposit in the form of a bank guarantee issued by a
Scheduled Bank and payable at [insert name of city in which the Project is to be developed] in
favour of ["insert name of the Authority" represented by [•]] in the format set out at Annex 8.
The original of the Earnest Money Deposit must be submitted to the Authority at the address
mentioned in Clause 24.11. A scanned copy of the Earnest Money Deposit must be uploaded
by the Bidders on the e-Procurement Portal along with their Bids.
[In addition to the Earnest Money Deposit, the Bidders are required to pay an amount of INR
[●] as the Bid Document Fee through an [RTGS/NEFT transfer] to the following account:
Account Holder:
[•]
The Bidders are required to submit a receipt containing the unique transaction reference number
for the [RTGS/NEFT transaction], evidencing the successful transfer of the Bid Document Fee
to the account mentioned above (UTR Receipt). The Bid shall be summarily rejected if it is
not accompanied by the Earnest Money Deposit and UTR Receipt evidencing payment of the
26 Drafting Note: To be modified suitably based on the requirements/specifications of each e-procurement portal.
14
Bid Document Fee.]27
(a) The Authority shall organise a Project Site visit for up to 3 (three) representatives of
each Bidder on the date set out in the Bid Schedule. In addition to this Project Site visit,
Bidders may inspect the Project Site, after obtaining approval from the Authority at
least [2 (two)] days prior to such proposed inspection, to evaluate the scope of the
Project in greater detail, and carry out, at their own cost, such studies as may be required
to submit their respective Bids.
(c) The Authority shall facilitate the inspection of the quality and characteristics of the
Acceptable Waste by the Bidders, including, providing access to samples of Acceptable
Waste and/or organising a visit to the site where the Acceptable Waste is stored.
Bidders shall have the opportunity to evaluate the quality of the Acceptable Waste in
greater detail, and carry out, at their own cost, such studies as may be required in order
to aid their Bid submission.
2.9 It will be assumed that Bidders will have accounted for all relevant factors, including technical
data, market studies, actual condition of the Project Site, while submitting their Bids. Bidders
will be deemed to have full knowledge of the Project, including the scope of services to be
provided by the Concessionaire under the Agreement, irrespective of whether they have carried
out such studies or not.
Each Bidder is required to quote, in its Financial Proposal, the [[Grant] / [Processing Fee] /
[Royalty]]28. The [[Grant] / [Processing Fee] / [Royalty]]29 to be quoted by Bidders in their
Financial Proposals (on the e-Procurement Portal) must be a whole number without any decimal
places.
2.11 Subject to Clause 7.1(e), generally, the Preferred Bidder shall be the Selected Bidder. If the
Preferred Bidder withdraws its Bid or is not selected for any reason, then the Authority may, in
its discretion, invite the qualified Bidder with the next best quote to match the Bid of the
Preferred Bidder. If such qualified Bidder matches the quote of the Preferred Bidder, then such
qualified Bidder will be declared the Preferred Bidder. If such qualified Bidder fails to match
the Bid of the Preferred Bidder, then the Authority may take any such measures as it may deem
fit in the sole discretion of the Authority, including without limitation or prejudice to any other
measures that the Authority may deem appropriate, (i) inviting the qualified Bidder with the
27 Drafting Note: To be deleted if no Bid Document Fee is proposed to be sought from bidders.
28 Drafting Note: To be selected based on whether the bidding criteria is Grant, Processing Fee or Royalty.
29 Drafting Note: To be selected based on whether the bidding criteria is Grant, Processing Fee or Royalty.
15
next best quote to match the Bid of the Preferred Bidder; or (ii) annulling the entire Bid Process.
2.12 All Bids are required to be prepared and submitted in accordance with the terms of this RFP on
or before the Bid Due Date.
2.13 e-Procurement30
(a) The Bid Process will be conducted by way of e-tendering. In order to participate in the
Bid Process, a Bidder must procure a digital signature certificate and register on the e-
Procurement Portal using its digital signature. A digital signature certificate may be
procured from a registered certifying authority as stipulated by the Controller of
Certifying Authorities, GoI.
(b) In case of a Consortium, the Lead Member must register with the e-Procurement Portal,
using the digital signature certificate issued in the name of the authorised signatory of
the Lead Member.
(c) [The Bidders must: (i) upload a soft copy/scanned copy of their Qualification Proposal,
including a copy of the bank guarantee for Earnest Money Deposit and the UTR
Receipt for the Bid Document Fee on the e-Procurement Portal in PDF format; and (ii)
populate the Financial Proposal format provided on the e-Procurement Portal, before
the specified time on the Bid Due Date. The Bidders are also required to submit a hard
copy of the original bank guarantee for the Earnest Money Deposit and the power of
attorney(ies) (POAs) required under Clause 20 to the Authority before the specified
time on the Bid Due Date, in the manner set out at Clause 24 of this RFP. Bidders shall
not submit a hard copy of the Qualification Proposal (other than in respect of the
original bank guarantee for the Earnest Money Deposit and the POAs required under
Clause 20) or the Financial Proposal format provided on the e-Procurement Portal.]31
(d) The Bidders are encouraged to visit the e-Procurement Portal to acquaint themselves
with the process of submitting their Bids online.
(e) For the purposes of determining the cut-off time for submission of queries and Bids,
the central server time displayed on the clock on the e-Procurement Portal will be
followed by the Bidders and the Authority.
2.14 Any queries or requests for additional information relating to this RFP should be submitted on
the e-Procurement Portal or sent to the Authority by e-mail to [insert email ID] on or before the
time and date specified in the Bid Schedule. The communications must clearly bear the
following subject line – ["●"].
2.15 The Authority shall endeavour to adhere to the following Bid Schedule:
30 Drafting Note: To be modified suitably based on the requirements/specifications of each e-procurement portal and the
applicable central and state government tender rules and guidelines for public procurement.
31 Drafting Note: Mechanism and procedure for submission of documents both online and offline may need to be tailored
on the basis of the requirements/specifications of the e-procurement portal and the applicable central and state government
tender rules and guidelines for public procurement.
16
S. No. Event Date/Time/Location
13. Issuance of LOA Within [●] days from the selection of the
Preferred Bidder
14. Signing of the Agreement Within [60 (sixty)] days from the date of
issue of the LOA to the Selected Bidder
32
Drafting Note: The date of issue of the Site Contamination Report should allow sufficient time (preferably at least 2
months) between date of issuance of the report and the Bid Due Date.
33
Drafting Note: The Bid Due Date should allow sufficient time between launch of the bid documents and the Bid Due
Date and ideally, this period should not be less than 3 months with a minimum of 45 days between the date on which the
Authority issues the responses to the bidder queries and the Bid Due Date.
17
SECTION II
3. ELIGIBILITY OF BIDDERS
(b) If a Bidder is a Consortium, then the Consortium and its Members shall comply with
the following conditions:
(i) the number of Members in such Consortium shall not exceed [3 (three)];
(ii) the Bid submitted by the Consortium should contain the required information
for each Member and a brief description of the roles and responsibilities of
each Member;
(iii) the Consortium will nominate one of the Members as the Lead Member. Such
nomination will be supported by a power of attorney from each Member of the
Consortium and will be in the format set out in Annex 3B. The Lead Member
will have the authority to represent and bind all the Members during the Bid
Process and, if the Consortium is identified as the Selected Bidder, execute the
Agreement on behalf of the Consortium; and
(iv) the Consortium is required to submit a binding and enforceable joint bidding
agreement, in the format set out in Annex 9, and the Members will not be
permitted to amend or terminate the joint bidding agreement, at any time
during the validity of the Bid without the prior consent of the Authority.
3.2.1 If a Bidder (whether a single entity or Consortium) is identified as the Selected Bidder, it is
required to incorporate a special purpose vehicle (i.e., the Concessionaire) to implement the
Project.
3.2.2 The Selected Bidder shall hold at least: (i) [51% (fifty one percent)] of the total Equity
Contribution and voting rights of the Concessionaire until [2 (two)] years after COD; and (ii)
[26% (twenty six percent)] of the total Equity Contribution and voting rights of the
Concessionaire during the remaining Concession Period.
3.2.3 If the Selected Bidder is a Consortium, then the Members are required to comply with the
following conditions with respect to the Concessionaire:
(a) the Consortium shall cumulatively hold at least (i) [51% (fifty one percent)] of the total
Equity Contribution and voting rights of the Concessionaire until [2 (two)] years after
COD; and (ii) [26% (twenty six percent)] of the total Equity Contribution and voting
rights of the Concessionaire during the remaining Concession Period;
18
(b) without prejudice to Clause 3.2.3(a) above,
(A) the Lead Member shall hold not less [26% (twenty six percent)] of the total
Equity Contribution and voting rights of the Concessionaire until [2 (two)]
years after the COD;
(B) the Members, whose Technical Capacity or Financial Capacity was assessed
for the purpose of qualification, shall individually hold not less than [10%
(ten percent)] of the total Equity Contribution and voting rights of the
Concessionaire until [2 (two)] years after the COD; and
(C) after the expiry of [2 (two)] years after the COD, the Lead Member and
other Members can exit the Concessionaire, subject to any Member who
demonstrated O&M experience for the purpose of qualification, continuing
to hold not less than [10% (ten percent)] of the total Equity Contribution
and voting rights of the Concessionaire for the Concession Period.
3.2.4 If after submission of the Bid and before COD, any Associate of the Bidder or any Member,
whose credentials have been taken into consideration for determining Technical Capacity or
Financial Capacity, ceases or will cease to be an Associate of the Bidder or such Member, then,
such Bidder or Member shall seek the approval of the Authority for such occurrence. If the
Authority is of the view that such occurrence is likely to affect the Technical Capacity or
Financial Capacity of the Bidder adversely, then the Authority may disqualify the Bidder from
participation in the Bid Process; or, if the Bidder has been declared as the Selected Bidder,
withdraw the LOA or treat such occurrence as a Concessionaire event of default in accordance
with the Agreement. While the Authority will not unreasonably withhold or delay such
approval, the decision of the Authority will be final in this regard.
3.3.1 A Bidder shall not have a conflict of interest (Conflict of Interest). A Bidder shall be
considered to have a Conflict of Interest if the Bidder (and in case of a Consortium, any
Member) or its Associate:
(a) is under common Control with any other Bidder, its Member or Associate; or
(b) has direct or indirect shareholding or other ownership interest in any other Bidder, its
Member or its Associate; provided that this disqualification shall not apply in cases
where the direct or indirect shareholding of a Bidder, its Member or Associate in the
other Bidder, its Member or Associate is less than [5% (five per cent)] of the subscribed
and paid up share capital thereof; provided further that this disqualification shall not
apply to any ownership by a bank, insurance company, pension fund, sovereign wealth
fund, multilateral institution or a public financial institution referred to in sub-section
(72) of section 2 of the Companies Act; or
(d) receives or has received any direct or indirect subsidy, grant, concessional loan,
subordinated debt or other funded or non-funded financial assistance from any of the
other Bidders or their Associate; or
19
(e) has hired or appointed the same legal, financial or technical advisor as those hired by
any of the other Bidders for this Project; or
(f) has a relationship with any of the other Bidders, directly or through common third
parties, that puts either one or both of them in a position to have access to each other’s
information that may influence the Bid of one or more of such Bidders, or influence
the decisions of the Authority regarding the Bid Process; or
(g) subject to Clause 25, submits more than one Bid for the Project (including through its
Associates). This will result in the disqualification of all such Bids submitted by the
Bidder and its Associates; or
(i) has engaged any legal, financial or technical advisor of the Authority in relation to the
Project for any matters related to or incidental to the Project. Provided that this
disqualification shall not apply where such advisor was engaged by the Bidder,
Member or its Associate but such engagement expired or was terminated [6 (six)]
months prior to the issuance of this RFP or where such advisor is engaged by the
Selected Bidder/Concessionaire [1 (one)] year after the COD or where such advisor
provides any financial assistance to the Concessionaire for the Project.
(a) Bidders and their respective officers, employees, agents and advisors are required to
observe the highest standards of ethics during the Bid Process. Notwithstanding
anything to the contrary contained in this RFP, the Authority may reject a Bid without
being liable in any manner whatsoever to the Bidder, if it determines that a Bidder has,
directly or indirectly or through an agent, engaged in a corrupt, fraudulent, coercive,
undesirable or restrictive practice in or affecting the Bid Process.
(b) Without prejudice to the rights of the Authority under Clause 3.4(a) above, in the event
that a Bidder is found by the Authority to have directly or indirectly or through an
officer, employee, agent or advisor engaged or indulged in any corrupt, fraudulent,
coercive, undesirable or restrictive practice during the Bid Process, such Bidder will
not be eligible to participate in any tender or request for qualification issued by the
Authority for [5 (five)] years, from the date such Bidder is found by the Authority to
have directly or indirectly or through an officer, employee, agent or advisor engaged
or indulged in any of the activities mentioned above.
(c) For the purposes of this Clause 3.4, the following terms will have the meanings given
to them below:
20
indirectly, with the Bid Process or has dealt with matters relating to the Project or
arising from it, before or after its execution, at any time prior to the expiry of [1
(one)] year from the date that such official resigns or retires from or otherwise
ceases to be in the service of the Authority, will be deemed to constitute
influencing the actions of a Person connected with the Bid Process);
(iv) undesirable practice means: (A) establishing contact with any Person connected
or employed or engaged by the Authority with the objective of canvassing,
lobbying or in any manner influencing or attempting to influence the Bid Process;
or (B) having a Conflict of Interest (as defined in Clause 3.3); and
(a) If a Bidder, including any Member or its Associate whose Technical Capacity or
Financial Capacity is being relied upon to qualify for award of the Project, has been
barred by the GoI, any state government, or any of their instrumentalities from
participating in any project or being awarded any contract and the bar subsists on the Bid
Due Date, then such Bidder will not be eligible to submit a Bid.
(b) If a Bidder or any Member or its Associate whose Technical Capacity or Financial
Capacity is being relied upon to qualify for award of the Project has been determined to
be ineligible by the World Bank under the Guidelines on Preventing and Combating
Fraud and Corruption in Projects Financed by IBRD Loans and IDA Credits and Grants,
then such Bidder will not be eligible to submit a Bid.
(c) If a Bidder or any Member or its Associate whose Technical Capacity or Financial
Capacity is being relied upon to qualify for award of the Project is included as a debarred
person pursuant to the public sanctions list of any multilateral development bank that is
party to the Agreement on Mutual Enforcement of Debarment Decisions of 9 April 2010
(www.crossdebarment.org), then such Bidder will not be eligible to submit a Bid.
(d) If a Bidder or any Member or its Associate whose Technical Capacity or Financial
Capacity is being relied upon to qualify for award of the Project is included on any
sanctions lists promulgated by the United Nations Security Council or its Committees,
or any other recognized international sanctions list or has operations (directly or through
any subsidiary) or carries out transactions that are not in compliance with the sanctions
promulgated by the United Nations Security Council or its Committees, then such Bidder
will not be eligible to submit a Bid
21
(e) In the [3 (three)] Accounting Years immediately preceding the Bid Due Date, the Bidder,
including any Member or its Associate whose Technical Capacity or Financial Capacity
is being relied upon to qualify for award of the Project has not:
(ii) been expelled from any project or contract by the GoI or any state government, or
its instrumentalities; or
(iii) had any contract terminated by the GoI or any state government, or its
instrumentalities for breach by such Bidder or the Member or an Associate, as the
case may be.
(f) If a Bidder or Member or its Associate has entered into a contract for operation of the e-
Procurement Portal, which is currently valid and subsisting, then such Bidder and its
Associates will not be eligible to submit a Bid.
The Office Memorandum prescribes certain conditions of eligibility for Bidders from countries
which share land borders with India, except those countries to which GoI has extended lines of
credit or in which the GoI is engaged in development projects34. The conditions of eligibility
for such Bidders are as below:
(a) Any Bidder from a country which shares a land border with India will be eligible to Bid
in this tender only if such Bidder is registered with the Competent Authority.
In case of such Bidder being a Consortium, all Members of the Consortium should be
registered with the Competent Authority.
(b) For the purpose of this Clause 3.6, "Bidder from a country which shares a land border
with India" means:
34 Updated lists of countries to which lines of credit have been extended or in which development projects are undertaken by
the Government of India are given on the website of the Ministry of External Affairs, Government of India.
22
(vi) a Consortium where any Member of the Consortium falls under any of the above
provision of this sub-clause 3.6(b).
(c) A "beneficial owner" for the purpose of sub-Clause 3.6(b) above will be the natural
person(s), who, whether acting alone or together, or through one or more juridical person,
has a ‘controlling ownership interest’ or who exercises control through other means.
Explanation: (i) ‘controlling ownership interest’ for the purpose of sub-clause 3.6(c)
means ownership or entitlement to more than twenty five percent of Equity of the
company;
(ii) ‘control’ for the purpose of sub-clause 3.6(b) and sub-clause 3.6(c) shall include the
right to appoint majority of the directors or to control the management or policy
decisions including by virtue of their shareholding or management rights or shareholders
agreements or voting agreements.
Where no natural person is identified, the beneficial owner is the natural person who
holds the position of senior managing official.
(d) For the purpose of sub-Clause 3.6(b), an agent is a person employed to do any act for
another, or to represent another in dealings with any third person.
(e) All other provisions of the Office Memorandum (except para 11 of the Office
Memorandum), whether or not expressly stated in this RFP, will be applicable to this
tender and the aforesaid clauses will be interpreted in line with the Office Memorandum.
3.7 Bidders will provide such evidence of their continued eligibility as the Authority may request
at any time during or after the Bid Process.
3.8 If a Bidder is a Consortium, then the term "Bidder" as used in Clause 3.3 and Clause 3.4 shall
include each Member of such Consortium, and the term "Associate" as used in Clause 3.3 and
Clause 3.5 shall include Associates of each Member of the Consortium.
4 QUALIFICATION CRITERIA
The Bidders should satisfy the following minimum technical criteria and financial criteria set
out in Clause 4.1 and Clause 4.2 respectively to qualify for evaluation of the Financial
Proposals:
To demonstrate its technical capacity and experience (Technical Capacity), the Bidder must
have the following experience in order to be eligible to have its Financial Proposal evaluated:
(i) In the [7 (seven)] years preceding the Bid Due Date, the Bidder shall have
developed and/or designed and constructed at least:
23
(A) [1 (one)] waste to bio-methanation facility or waste to bio-gas facility
capable of handling and processing at least [insert the quantity
equivalent to 80% (eighty per cent) of the Design Capacity] TPD of
Waste; or
(ii) Any waste to bio-methanation facility or waste to bio-gas facility that a Bidder
seeks to rely on to demonstrate development/design and construction
experience under Clause 4.1(a)(i) above should have been:
(A) successfully operational for at least [365 (three sixty five)] consecutive
days in the [7 (seven)] years preceding the Bid Due Date, in accordance
with the relevant concession agreement or similar contract executed for
such facility(ies); and
(B) developed or designed and constructed to comply with the CBG Output
standards equivalent to, or better than, the standard for CBG set out in
the Bureau of Indian Standards IS16087:2016,
(i) In the [7 (seven)] years preceding the Bid Due Date, the Bidder shall have
successfully operated and maintained either:
24
(C) [3 (three)] waste to bio-methanation facilities or waste to bio-gas
facilities capable of handling and processing at least [insert the quantity
equivalent to 40% (forty per cent) of the Design Capacity] TPD of
Waste each.
(ii) Any waste to bio-methanation facility or waste to bio-gas facility that a Bidder
seeks to rely on to demonstrate O&M experience under this Clause 4.1(b) should
have been:
(A) successfully operated and maintained for at least [365 (three sixty
five)] consecutive days in the [7 (seven)] years preceding the Bid Due
Date, in accordance with the relevant concession agreement or similar
contract executed for such facility(ies); and;
(B) operated and maintained to comply with the CBG Output standards
equivalent to, or better than, the standard for CBG set out in the
Bureau of Indian Standards IS16087:2016,
(iv) if any project used to demonstrate Technical Capacity was undertaken by the
Bidder or any Member through an unincorporated joint venture, consortium
or partnership, that project will be considered as experience of the Bidder or
Member for the purposes of this section only if the capital expended by the
Bidder or Member or payments received by the Bidder or Member, prior to the
Bid Due Date, was at least [26% (twenty six per cent)] of the total
project/contract value, as evidenced by a statutory auditor’s certificate;
25
on the basis of more than 1 (one) such facility, then each of the waste to bio-
methanation facility or waste to bio-gas facility (as applicable) should have
been developed by the same Member;
(viii) if the Consortium is subsequently declared the Selected Bidder, then each
Member of the Consortium whose experience was relied upon for the purposes
of demonstrating that the Consortium has the Technical Capacity to undertake
the Project must hold not less than [10% (ten per cent)] of the total Equity
Contribution and voting rights of the Concessionaire until [2 (two)] years after
the COD. Provided further that, the Member of the Consortium whose
experience was relied upon for the purposes of demonstrating that the
Consortium has the O&M Capacity to undertake the Project must hold not less
than [10% (ten per cent)] of the total Equity Contribution and voting rights of
the Concessionaire for the term of the Agreement.
(ix) subject to Clause 18.2, for certificates claiming technical experience, that are
issued overseas, the document will also have to be legalised by the Indian
Embassy and notarised in the jurisdiction where the certificate is being issued.
However, the certificates provided by the Bidders from countries that have
signed the Hague Legislation Convention, 1961 are not required to be legalised
by the Indian Embassy if they carry a conforming apostille certificate.
To demonstrate its financial capacity to undertake the Project (Financial Capacity), the Bidder
must meet each of the financial qualification criteria specified in this Clause 4.2.
(a) In the Accounting Year immediately preceding the Bid Due Date, the Bidder’s net
worth (as per the annual financial statements) should be at least INR [●]35 (Net Worth),
as certified by the statutory auditor of the Bidder (and in case of a Consortium, the
statutory auditor of a Member), or of the Associate whose Financial Capacity is being
relied upon.
35 Drafting Note: The minimum Net Worth set out should be equal to [25% (twenty-five per cent)] of the total project cost
(as set out in limb (c) of the definition of total project cost under the Agreement).
26
(b) The Bidder should have an average Annual Turnover of at least INR [●]36 in the [3
(three)] Accounting Years immediately preceding the Bid Due Date (as per the annual
financial statements) (Average Annual Turnover), as certified by the statutory auditor
of the Bidder (and in case of a Consortium, the statutory auditor of a Member), or of
the Associate whose Financial Capacity is being relied upon.
(c) If the Bidder is a Consortium, then the Net Worth, as specified in Clause 4.2(a) above
and the Average Annual Turnover, as specified in Clause 4.2(b) above, may be
demonstrated cumulatively, i.e., the Consortium as a whole can meet the requirement.
Provided that, if the Bidder is subsequently declared the Selected Bidder, then the
Member(s) of the Consortium whose Net Worth and/or Average Annual Turnover was
assessed for the purposes of demonstrating that the Consortium has the Financial
Capacity to undertake the Project, must hold not less than [10% (ten per cent)] of the
total Equity Contribution and voting rights of the Concessionaire until [2 (two)] years
after the COD.
(d) A Bidder is permitted to rely on the Net Worth and Average Annual Turnover of its
Associate(s), either wholly or in part, for demonstrating its Financial Capacity.
Provided that, if a Bidder is relying on the financial credentials of its Associate to
demonstrate the Financial Capacity, the Bidder shall be required to submit a board
resolution of the Associate(s) whose financial credentials are being relied upon by the
Bidder, resolving to undertake to invest the entire Equity Contribution committed by
the Bidder (or in case of a Consortium, resolving to undertake to invest the
proportionate share in the Equity Contribution committed by the relevant Member) and
to submit the bank guarantees required under the Project Agreements, in case the
Bidder fails to do so.
(e) The calculation of the Net Worth must be based on the unconsolidated audited annual
accounts in case of a Bidder and, if relevant, an Associate. Provided that if a Bidder is
relying on its Associate’s experience, in accordance with Clause 4.2(d), where such
Bidder Controls such Associate, then the Net Worth will be calculated based on the
audited consolidated annual accounts of the Bidder.
(f) The Net Worth and Average Annual Turnover requirement for demonstrating the
Financial Capacity, both for Companies incorporated on or before [insert cut-off date
of incorporation] as well as new Companies (i.e., those incorporated after [insert cut-
off date of incorporation]), can also be met by the Bidder, as on the day not more than
[7 (seven)] days prior to the Bid Due Date. In order to meet this requirement, the Bidder
must submit a certificate from a chartered accountant certifying the Net Worth and
Average Annual Turnover on the date not more than [7 (seven)] days prior to the Bid
Due Date.
Provided that, if such Bidder is chosen as the Selected Bidder, the Bidder will submit
the audited accounts for the period for which it submitted a chartered accountant
certificate to certify the Net Worth and/or Average Annual Turnover prior to the
Appointed Date. If the Net Worth and/or Average Annual Turnover according to such
audited accounts does not meet the minimum Net Worth and/or Average Annual
36 Drafting Note: The minimum average Annual Turnover set out should be equal to [50% (fifty per cent)] of the total
project cost (as set out in limb (c) of the definition of total project cost under the Agreement).
27
Turnover criteria, as the case may be, required in Clause 4.2 (a) and 4.2(b) respectively,
then the Authority shall have the right to treat such event as a Concessionaire event of
default and terminate the Agreement.
(g) Subject to this Clause 4.2(g), the calculation of Net Worth and Average Annual
Turnover must be based on the audited annual accounts of the Bidder for the preceding
Accounting Years. If the annual accounts for the Accounting Year immediately
preceding the Bid Due Date are not audited, the Bidder shall provide the provisional
annual accounts for such Accounting Year. If the Bidder is unable to submit its
provisional accounts for such Accounting Year, the Bidders may submit the audited
annual accounts for the Accounting Year immediately preceding the last Accounting
Year.
If the Bidder has submitted provisional annual accounts for the last Accounting Year
or audited annual accounts for the Accounting Year immediately preceding the last
Accounting Year in accordance with this Clause 4.2(g), the Bidder shall also submit an
undertaking to the effect that:
(i) if it is chosen as the Selected Bidder, the Bidder will submit the audited annual
accounts for the Accounting Year immediately preceding the Bid Due Date prior
to the Appointed Date; and
(ii) the Net Worth and Average Annual Turnover as per such audited annual
accounts shall meet the minimum Net Worth and Average Annual Turnover
criteria required in Clause 4.2 (a) and 4.2 (b) respectively.
If the Selected Bidder has submitted provisional accounts for the Accounting Year
immediately preceding the Bid Due Date or audited annual accounts for the Accounting
Year preceding the last Accounting Year with its Bid and submitted the audited
accounts for the last Accounting Year prior to the Appointed Date, and as per such
audited annual accounts, the Selected Bidder does not meet the minimum Net Worth or
Average Annual Turnover criteria as required in Clause 4.2 (a) or 4.2 (b), then the
Authority shall have the right to treat such event as a Concessionaire event of default
and terminate the Agreement.
(h) For the purposes of demonstrating the Financial Capacity, if Bidders provide financial
data in currency other than INR, they must provide the Net Worth and Average Annual
Turnover equivalent in Indian Rupees, calculated using the RBI Reference Rate for the
relevant currency against INR, prevailing as on [insert date of RBI Reference Rate].
(i) The Bidder (and in case of a Consortium, any Member) or any Associate of the Bidder
whose Financial or Technical Capacity is being relied upon is not affected by and has
not been affected by any of the following events, conditions or circumstances in the [3
(three)] Accounting Years immediately preceding the Bid Due Date, as certified by the
statutory auditor of the Bidder (and in case of a Consortium, the statutory auditor of a
Member) or Associate:
(i) has not been categorized as a willful defaulter in accordance with the laws of
the country of its incorporation; or
28
(ii) has not been admitted into corporate insolvency resolution process under the
Insolvency and Bankruptcy Code 2016; or
(iii) has not entered into any compromise with its creditors, or been subject to
proceedings for being wound up, or having its affairs administered or
conducted by any court, administrator, receiver; or
(iv) has not been declared by a court or other competent authority as being unable
to pay its debts, or having had the repayment of its debts suspended.
(j) The Bidder (and in case of a Consortium, any Member or any Associate of the Bidder
whose Financial or Technical Capacity is being relied upon) has not been convicted or
otherwise being found responsible (or having any of its directors, partners, trustees,
officers or managers convicted or being found responsible) by any court, tribunal,
regulatory, public or other competent authority for a breach of any laws or regulations
which:
(i) related to any act of fraud or dishonesty for which a fine, penalty, damages,
compensation or other payment was levied against the relevant entity or any of
its directors, partners, trustees, officers or managers; or
(ii) resulted in the permanent or temporary suspension of the rights of the Bidder
to provide any service or carry on any type of business or operations.
29
SECTION III
INSTRUCTION TO BIDDERS
PART A. GENERAL
5 SCOPE OF RFP
5.1 The Authority wishes to receive Bids in accordance with this RFP for award of the Project.
5.2 The RFP must be read as a whole. If any Bidder finds any ambiguity or lack of clarity in this
RFP, the Bidder must inform the Authority at the earliest. The Authority will then direct the
Bidders regarding the interpretation of the RFP. If any discrepancy, ambiguity, or contradiction
arises between the terms of the RFP and the Agreement in relation to:
(a) the Bid Process, the provisions of the RFP shall prevail; and
(b) the scope of services or any other terms or conditions of the Agreement, the provisions
of the Agreement shall prevail.
6.1 It shall be deemed that by submitting the Bid, the Bidder has:
(a) made a complete and careful examination of the RFP (including all instructions, forms,
terms and specifications) and any other information provided by the Authority under
this RFP and the Bidder acknowledges that its submission of a Bid that is not
substantially responsive to the RFP in every respect will be at the Bidder's risk and may
result in rejection of the Bid;
(c) accepted the risk of inadequacy, error or mistake in the information provided in the
RFP or furnished by or on behalf of the Authority;
(d) satisfied itself about all things, matters and information, necessary and required to
submit a Bid;
(f) satisfied itself regarding the suitability of the site conditions to undertake the Project;
(g) satisfied itself regarding the availability and suitability of potential offtake
arrangements for the CBG Output and the price for such offtake;
(h) agreed to be bound by the undertakings provided by it under and in terms of this RFP;
and
30
(h) acknowledged and agreed to be bound by the Office Memorandum and its subsequent
amendments and clarifications.
6.2 The Authority 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 relating to the RFP or the Bid
Process.
7.1 The Authority, in its sole discretion and without incurring any obligation or liability, reserves
the right, at any time, to:
(a) suspend the Bid Process and/or amend and/or supplement the Bid 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 at any
stage of the Bid Process;
(c) retain any information, documents and/or evidence submitted to the Authority by
and/or on behalf of any Bidder;
(d) independently verify, disqualify, reject and/or accept any and all documents,
information and/or evidence submitted by or on behalf of any Bidder;
(ii) the Bidder in question does not provide, within the time specified by the
Authority, the supplemental information sought by the Authority for evaluation
of the Bid; or
(f) accept or reject a Bid, annul the Bid Process and reject all Bids, at any time, without
any liability or any obligation for such acceptance, rejection or annulment and without
assigning any reasons whatsoever to any Person, including the Bidders.
If the Authority annuls the Bid Process and rejects all Bids, it may in its sole discretion invite
fresh Bids for the Project.
7.2 If the Authority exercises its right under this RFP to reject a Bid and consequently, the Preferred
Bidder for the Project gets disqualified or rejected, then the Authority reserves the right to:
(a) invite the qualified Bidder with the next best quote to match the quote offered by the
Preferred Bidder (i.e., the Best Quote) and extend the validity of their Earnest Money
Deposit (if required);
31
(b) if such qualified Bidder matches the quote of the Preferred Bidder, then such qualified
Bidder will be declared the Preferred Bidder.
(c) if such qualified Bidder fails to match the Preferred Bidder's quote, then the Authority
may take any such measures as it may deem fit in the sole discretion of the Authority,
including without limitation or prejudice to any other measures that the Authority may
deem appropriate, (i) inviting the qualified Bidder with the next best quote to match the
Bid of the Preferred Bidder; or (ii) annulling the entire Bid Process.
7.3 If it is found during the Bid Process, at any time before signing the Agreement or after its
execution and while it is in force, that one or more of the Qualification Criteria and/or the
Eligibility Criteria have not been met by a Bidder or that the Bidder has ceased to meet them,
or a Bidder has made material misrepresentations or has given any materially incorrect or false
information, then such Bidder will be disqualified.
If such Bidder has been declared as the Selected Bidder and has already been issued the LOA
or has entered into the Agreement, the LOA or the Agreement, as the case may be, shall be
liable to be terminated, by a notice in writing from the Authority to the Selected Bidder.
7.4 Upon any disqualification, cancellation, or termination in accordance with this Clause 7, the
Authority will not be liable in any manner whatsoever to the Bidder. Additionally, the Authority
will have the right to forfeit and appropriate the Earnest Money Deposit or, as the case may be,
appropriate an equivalent amount from the Performance Security if the Agreement has been
executed, as a mutually agreed genuine pre-estimate of the loss suffered by the Authority as a
result of such cancellation, disqualification, or termination. Such forfeiture will be without
prejudice to any other right or remedy that the Authority may have under the RFP, the
Agreement or applicable laws.
(a) If a Bidder requires any clarification on or has any query in relation to the RFP, it
should submit such query or request for clarification on the e-Procurement Portal or
send such query or request for clarification to the Authority by e-mail to [insert email
ID]. In case of any e-mail queries or clarifications, the subject of the e-mail must clearly
bear the following subject: "[Insert name of the Project] Waste to Bio-Methanation
Facility PPP Project: Clarifications and Request for Additional Information". All
queries or clarification requests should be received on or before the date and time
mentioned in the Bid Schedule.
(b) The Authority shall make reasonable efforts to respond to the queries or requests for
clarifications on or before the date mentioned in the Bid Schedule. However, the
Authority reserves the right to not respond to any query or provide any clarification, in
its sole discretion. The Authority’s responses (including an explanation of the query
but not identification of its source) will be made available to all the Bidders and shall
be uploaded on the e-Procurement Portal.
(c) The Authority may, on its own initiative, if deemed necessary, issue clarifications to
all the Bidders. All clarifications and interpretations issued by the Authority shall be
32
deemed to be part of this RFP. Should the Authority deem it necessary to amend the
RFP as a result of a request for clarification, it will do so following the procedure under
Clause 9.
(d) It shall be the responsibility of the Bidders to check the e-Procurement Portal for the
response to the queries or requests for clarifications. the Authority may, but shall not
be obliged to, communicate with the Bidders by e-mail, notice or any other means it
may deem fit about the issuance of the clarifications.
(e) Verbal clarifications and information given by the Authority or any other Person for or
on its behalf shall not in any way or manner be binding on the Authority.
(a) All interested Companies shall be invited to attend the Pre-Bid Meeting on the date,
time and place mentioned in the Bid Schedule. The purpose of the Pre-Bid Meeting
will be to clarify issues and answer questions on any matter relating to the RFP, the Bid
Process and the Project.
(c) During the course of the Pre-Bid Meeting, attendees will be free to seek clarifications
and make suggestions to the Authority.
(d) Non-attendance at the Pre-Bid Meeting will not be a cause for disqualification of an
interested Company from participating in the Bid Process.
(e) The Authority will also organize a Project Site visit on the day set out in the Bid
Schedule. Bidders interested in participating in this Site visit must confirm their
attendance at least [3 (three)] days prior to the date of the Site visit by sending an email
to [insert email-ID]. A maximum of [3 (three)] representatives for each Bidder shall be
allowed to attend the Project Site visit.
(f) In addition to the Project Site visit organized by the Authority as set out in Clause 8.2
(e) above, the Bidders may also carry out such Project Site inspections as may be
required to submit their Bids at any time prior to the Bid Due Date. The Authority shall
facilitate such Project Site visits provided that the Bidder gives the Authority at least
[2 (two)] days’ prior written notice of its intention to visit the Project Site.
(g) The Authority will organize an inspection of the Acceptable Waste on the day set out
in the Bid Schedule. Interested Bidders must confirm their attendance at least [3 (three)]
days prior to the date of the inspection by sending an email to [insert email address].
A maximum of [3 (three)] representatives for each Bidder shall be allowed to attend
the inspection.
33
9.1 Up until the date that is mentioned in the Bid Schedule, the Authority may, for any reason,
whether on its own initiative or in response to a query raised or clarifications requested by a
Bidder in writing, amend the RFP by issuing an Addendum or an amended RFP and amended
draft Agreement.
9.3 The Bidders are required to read the RFP with any Addenda/amendments that may be issued in
accordance with this Clause 9.
9.5 Any oral statements made by the Authority or its advisors regarding the Bid Process, the RFP
or on any other matter, shall not be considered as amending the RFP.
9.6 The Authority will assume that the information contained in the Addendum/amendments will
have been taken into account by the Bidder in its Bid. The Authority assumes no responsibility
for the failure of a Bidder to submit the Bid in accordance with the terms of the
Addendum/amendments or for any consequent losses suffered by the Bidder.
10 AVAILABILITY OF INFORMATION
10.1 The information relating to or in connection with the Project, the Bid Process and this RFP,
including all notices issued by the Authority to all Bidders in accordance with this RFP; queries
and responses or clarifications and any Addenda will be uploaded on the e-Procurement Portal.
10.2 All such information will be made available for review by the Bidders until the Bid Due Date.
10.3 If a Bidder faces any technical issue or technical error in accessing the e-Procurement Portal,
the Bidder may seek assistance from the Authority by sending an e-mail request to [insert e-
mail ID], at any time prior to the Bid Due Date.
10.4 The Authority will use its best endeavours to respond to a written e-mail request and resolve
the technical issue or error or provide an alternative solution to the Bidder at its earliest
convenience.
11.1 Save as expressly provided in this RFP, the Authority will not entertain any correspondence
with the Bidders, whether in connection with the acceptance or rejection of their Bids or
otherwise.
All documents and other information provided by the Authority or submitted by a Bidder to the
Authority will remain or become the property of the Authority, as the case may be. Bidders
should not use any information provided by the Authority in connection with the Bid Process
for any purpose other than for preparation and submission of their Bids.
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12.2 Confidentiality Obligations of the Authority
The Authority will treat all information, submitted as part of a Bid as confidential and will
require all those who have access to such material to treat it in confidence. The Authority may
not divulge any such information or any information relating to evaluation of Bids or the
qualification of Bidders unless:
(b) such publication is made to any Person who is officially involved with the Bid Process
or is a retained professional advisor advising the Authority or the Bidder on matters
arising out of or in connection with the Bid Process;
(c) it is directed to do so by any statutory authority that has the power under law to require
its disclosure;
(d) such publication is to enforce or assert any right or privilege of the statutory authority
and/or the Authority or as may be required by law (including under the Right to
Information Act, 2005); or
The Bid Process, this RFP and the Bids shall be governed by, and construed in accordance with,
the laws of India.
The competent courts at [insert name of city which should have exclusive jurisdiction] shall
have exclusive jurisdiction over all disputes arising under, pursuant to and/or in connection
with the Bid Process, this RFP and the Bids.
14.1 The Bids shall remain valid for a period of [180 (one hundred and eighty)] days from the Bid
Due Date. A Bid valid for a shorter period shall be rejected by the Authority as being non-
responsive.
14.2 In exceptional circumstances, prior to the expiry of the Bid validity period, the Authority may
request Bidders to extend the Bid validity period. A Bidder may choose to accept or reject the
Authority’s request for extension of the Bid validity period. If the Bidder agrees to an extension
of the Bid validity period, the Bidder shall also extend the validity of the Earnest Money Deposit
accordingly. If the Bidder does not accept the Authority’s request for extension of the Bid
validity period, then the Authority will return the Earnest Money Deposit of such Bidder no
later than [30 (thirty)] days after the expiry of the original Bid validity period.
35
PART B. EARNEST MONEY DEPOSIT AND PERFORMANCE SECURITY
15.1 The Bidder shall furnish as part of its Bid, an earnest money deposit for the Project (Earnest
Money Deposit). The Earnest Money Deposit shall be for an amount equivalent to INR [●]37.
15.2 The Bidder shall provide the Earnest Money Deposit in the form of an unconditional,
irrevocable, and on-demand bank guarantee issued by a Scheduled Bank. The bank guarantee
for the Earnest Money Deposit shall be issued in favour of the "[insert name of the Authority]”,
represented by the [Commissioner/CEO/CO/EO/Chairman], the Authority payable at [insert
the city where the Authority is located] and in the format set out in Annex 8.
15.3 The Earnest Money Deposit shall remain valid for a period of [30 (thirty)] days beyond the Bid
validity period specified in Clause 14 (inclusive of claim period), as may be extended in
accordance with Clause 14.2.
15.4 If any Bid is not accompanied by the bank guarantee for the Earnest Money Deposit, then such
Bid shall be rejected by the Authority as non-responsive. Unless forfeited in accordance with
Clause 15.5 below, the Earnest Money Deposit of the unsuccessful Bidders will be returned by
the Authority no later than [30 (thirty)] days after the expiry of the Bid validity period (specified
in Clause 14) or within [7 (seven)] days from the execution of the Agreement with the Selected
Bidder, whichever is earlier.
The Earnest Money Deposit of the Selected Bidder will be returned upon the Selected Bidder
furnishing the Performance Security in accordance with Clause 16. If the Earnest Money
Deposit is scheduled to expire prior to the submission of the Performance Security by the
Selected Bidder, then the Authority shall be entitled to drawdown the total amount available
under the Earnest Money Deposit and retain such amount as cash security until such time that
the Selected Bidder submits the Performance Security.
15.5 The Earnest Money Deposit shall be forfeited and appropriated by the Authority as mutually
agreed genuine pre-estimated compensation and damages payable to the Authority, without
prejudice to any other right or remedy that may be available to the Authority hereunder or
otherwise, under the following conditions:
(b) if a Bidder is disqualified in accordance with, Clause 3.2 (Lock-in Restrictions and
Change in Control), Clause 3.3 (Conflict of Interest), Clause 3.5 (Other Eligibility
Criteria), and Clause 7.3 (Rights of the Authority);
(d) if a Bidder is selected as the Selected Bidder and it fails, within the specified time limit,
to:
37 Drafting Note: Earnest Money Deposit should be an amount equal to [1% (one per cent)] of the total project cost (as set
out in limb (c) of the definition of total project cost under the Agreement).
36
(i) sign and return, as acknowledgement, the duplicate copy of the LOA, in
accordance with Clause 30;
(iii) fulfil any other condition precedent to the execution of the Agreement; or
16 PERFORMANCE SECURITY
16.1 The Selected Bidder shall furnish to the Authority a Performance Security of INR [●]38, on or
before the execution of the Agreement, to secure the obligations of the Concessionaire under
the Agreement (the Performance Security).
16.2 The Selected Bidder shall provide the Performance Security in the form of an unconditional,
irrevocable, and on-demand bank guarantee issued by a Scheduled Bank. The Performance
Security shall be issued in favour of "[insert name of the Authority]", represented by the
Commissioner, the Authority payable at [insert the city where the Authority is located] and in
the format set out in the Agreement.
16.3 If the Selected Bidder fails to furnish the Performance Security in accordance with this Clause
16 on or before the execution of the Agreement, then the Authority shall have the right to
appropriate the Earnest Money Deposit of the Selected Bidder which shall be forfeited in
accordance with Clause 15.5(d)(ii).
38 Drafting Note: The Performance Security should be in an amount equal to [10% (ten per cent)] of the total project cost
(as set out in limb (c) of the definition of total project cost under the Agreement).
37
PART C. PREPARATION AND SUBMISSION OF BIDS
17 NUMBER OF BIDS
Subject to Clause 25, a Company shall be permitted to submit only 1 (one) Bid for the Project,
either individually or as a Member of a Consortium. A Company 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 other Consortium, as the case may be. A Company which submits or
participates in more than 1 (one) Bid for the Project shall cause all the Bids with the Company's
participation to be disqualified.
18.1 The Bid prepared by the Bidder and all correspondence and documents related to the Bid
exchanged by the Bidder and the Authority shall be in English.
18.2 Any document furnished by the Bidder may be in another language, as long as such document
is accompanied by an English translation, in which case, for purposes of interpretation of the
Bid, the English translation shall take precedence. If any document submitted by a Bidder is in
a local language, then the English translation must be certified by an advocate and notarised. If
any document submitted by a Bidder is in a foreign language, then the English translation must
be certified by the embassy/consulate/high commission of the relevant foreign country in India
or the Ministry of Foreign/External Affairs or any other relevant ministry empowered to certify
such English translations in the foreign country where the project is situated. Supporting
materials which are not translated into English or certified/notarised in accordance with this
Clause 18.2 may not be considered by the Authority.
19.1 The Bid shall be submitted on or before the date, time and at the place specified in the Bid
Schedule.
19.2 The Authority may, at its discretion and for any reason, extend the Bid Due Date for all Bidders
by issuing an Addendum in accordance with Clause 9, in which case all rights and obligations
of the Authority and the Bidders will thereafter be subject to the Bid Due Date as extended.
19.3 Bids received by the Authority after the specified time on the Bid Due Date will not be eligible
for consideration and will be summarily rejected.
20 QUALIFICATION PROPOSAL
20.1 The Qualification Proposal submitted by a Bidder shall comprise the following:
(c) power of attorney in the format set out in Annex 3A, executed by the Bidder or the
Lead Member authorizing the signatory of the Bid to commit the Bidder;
38
(d) certificate issued by the statutory auditor of the Bidder or Member, in the format set
out in Annex 4, certifying the Net Worth and Average Annual Turnover of the Bidder
or Member or Associate, as the case may be, and compliance with other financial
qualification criteria specified in Clause 4.2;
(e) if applicable, certificate issued by a statutory auditor certifying the relationship of the
Bidder (or in case of a Consortium, the relevant Member) with the Associate(s) whose:
(A) experience is being relied upon to demonstrate Technical Capacity; and/or (B) Net
Worth and/or Average Annual Turnover is being relied upon to demonstrate Financial
Capacity, in the format set out in Annex 6;
(e) details of the waste to bio-methanation facility(ies) or waste to bio-gas facility(ies) for
which the Bidder is claiming development/design and construction experience,
certified by the relevant government authority/client in the format specified in Annex
5A;
(f) if applicable, for each waste to bio-methanation facility or waste to bio-gas facility for
which the Bidder is claiming design and construction experience, a certificate from the
implementing agency (i.e., the government authority undertaking the project),
certifying that the relevant facility has been successfully operational for at least [365
(three sixty five)] consecutive days in the [7 (seven)] years immediately preceding the
Bid Due Date and confirming the details set out in rows 10, 11, and 12 of Annex 5A;
(g) details of the waste to bio-methanation facility(ies) or waste to bio-gas facility(ies) for
which the Bidder is claiming O&M experience, certified by the relevant government
authority, in the format specified in Annex 5B;
(h) if applicable, a certificate from its statutory auditor certifying the percentage of the cost
(of the total project cost) expended/received by the Bidder or in case of a Consortium,
the relevant Member, in developing the waste to bio-methanation facility(ies) or waste
to bio-gas facility(ies) in the format set out in Annex 7;
(i) bank guarantee for Earnest Money Deposit in the format set out at Annex 8;
(j) unconsolidated audited annual accounts of the Bidder (including profit and loss
statements) and Associate(s) (if applicable) for the Accounting Year immediately
preceding the Bid Due Date. If the Bidder is relying on the Financial Capacity of an
Associate where it Controls such Associate, then audited consolidated annual accounts
of the Bidder should be submitted;
(l) a UTR Receipt evidencing the transfer of INR [●] as the Bid Document Fee to the
account of the [•] (as set out in Clause 2.7);
(m) if required as per Clause 3.6 above, a certificate required under the Office
Memorandum, in the format set out in Annex 10; and
39
(n) if applicable, a board resolution of the Associate(s) whose financial credentials are
being relied upon by the Bidder, resolving to undertake to invest the entire Equity
Contribution committed by the Bidder (or in case of a Consortium, resolving to
undertake to invest the proportionate share in the Equity Contribution committed by
the relevant Member) and to submit the bank guarantees required under the Project
Agreements, in case the Bidder fails to do so.
20.2 If the Bidder is a Consortium, then in addition to the documents set out above, it will be required
to submit the following documents:
(a) Power of attorney in the format set out at Annex 3B, executed by the Members of the
Consortium authorizing the Lead Member of the Consortium to act on behalf of and
commit the Consortium; and
21 FINANCIAL PROPOSAL
21.1 Bidders are required to populate the Financial Proposal format provided on the e-Procurement
Portal with the applicable [[Grant] / [Processing Fee] / [Royalty]]39.
21.2 For the purposes of evaluating Financial Proposals only the [[Grant] / [Processing Fee] /
[Royalty]]40 quoted by the Bidders will be considered.
21.3 If a Bidder quotes more than 1 (one) figure for the [[Grant] / [Processing Fee] / [Royalty]]41,
then the Financial Proposal of such Bidder will be deemed to be non-responsive.
22.1 The Bidders will bear their own costs associated with or relating to the preparation and
submission of their Bids, including copying, postage, delivery charges and expenses associated
with any presentations which may be required by the Authority, or any other costs incurred in
connection with or relating to their Bids, including any costs incurred on conducting any due
diligence. All such costs and expenses will be borne by the Bidders and the Authority, and their
employees and advisors will not be liable in any manner whatsoever for such costs and
expenses, regardless of the conduct or outcome of the Bid Process.
23 SIGNING OF BIDS
23.1 Each Bidder (and in case of a Consortium, the Lead Member) must use the digital signature of
its authorised signatory while uploading the soft copy of the Qualification Proposal to the e-
Procurement Portal.
39 Drafting Note: To be selected based on whether the bidding criteria is Grant, Processing Fee or Royalty.
40 Drafting Note: To be selected based on whether the bidding criteria is Grant, Processing Fee or Royalty.
41 Drafting Note: To be selected based on whether the bidding criteria is Grant, Processing Fee or Royalty.
40
24 MARKING, SEALING AND SUBMISSION OF BIDS
24.1 Each Bidder is required to upload a soft copy/scanned copy of its Qualification Proposal
(including all the documents listed in Clause 20 above) on the e-Procurement Portal. The
maximum file size of each file uploaded on the e-Procurement Portal by the Bidder as part of
its Bid should not exceed [•] MB.
24.2 While uploading the Qualification Proposal on the e-Procurement Portal, Bidder must ensure
that files containing the Qualification Proposal and scanned copies of the bank guarantee for
the Earnest Money Deposit and the UTR Receipt for the Bid Document Fee are uploaded under
the relevant heads in a PDF format. The Bidder shall be required to fill all mandatory forms and
fields indicated in the e-Procurement Portal at the time of uploading the Qualification Proposal.
24.3 The Bidders should ensure the legibility of the documents uploaded to the e-Procurement Portal.
24.4 The Bidder shall upload the Qualification Proposal and populate the Financial Proposal format
provided on the e-Procurement Portal sufficiently before the specified time on the Bid Due Date
to avoid any technical issues or malfunction in the network caused by heavy traffic of Bidders
on the Bid Due Date. The Authority will not be responsible for any failure, malfunction or
breakdown of the electronic system during the e-procurement process.
24.5 The Bidder will receive a system generated acknowledgement of its Bid submission to confirm
successful uploading of its Bid.
24.6 All Bids uploaded to the e-Procurement Portal will be encrypted and the encrypted Bids can
only be opened by the authorised representatives of the Authority at or after the specified time
on the Bid Due Date.
24.7 It is clarified that the Bidder will not be required to submit a hard copy of the Qualification
Proposal (except for hard copies of the original bank guarantee for the Earnest Money Deposit
and the POAs required under Clause 20), or the Financial Proposal format provided on the e-
Procurement Portal, in which the Bidders are required to quote their [[Grant] / [Processing Fee]
/ [Royalty]]42, and if a hard copy of the Qualification Proposal (except for hard copies of the
original bank guarantee and the POAs) or Financial Proposal is submitted, then the Bid
submitted by such Bidder shall be rejected as being non-responsive.
24.8 The Bid will contain no alterations, omissions or additions, unless such alterations, omissions
or additions are signed by the authorised signatory of the Bidder/Lead Member. Any
interlineations, erasures, or overwriting will be valid only if they are signed by the authorised
signatory of the Bidder/Lead Member.
24.9 The hard copy of the original bank guarantee for the Earnest Money Deposit and the POAs
required under Clause 20 will be duly sealed in an envelope, which will be super-scribed as
follows:
42 Drafting Note: To be selected based on whether the bidding criteria is Grant, Processing Fee or Royalty.
41
24.10 The sealed envelope containing the original bank guarantee for the Earnest Money Deposit and
the POAs required under Clause 20 will clearly indicate the name, address and contact details
of the Bidder. If the envelope is not sealed, marked and submitted as instructed in this Clause
24, the Authority assumes no responsibility for the misplacement or premature opening of the
contents of the Bid and consequent losses, if any, suffered by the Bidder.
24.11 The hard copy of the original bank guarantee for the Earnest Money Deposit and the POAs
required under Clause 20 will either be hand delivered or sent by registered post
acknowledgement due or courier to the address below:
Please note that the hard copy documents submitted by a Bidder to any address other than the
above-mentioned address will not be considered for evaluation. Bids submitted by fax, telex,
telegram or e-mail shall not be entertained and will be rejected.
24.12 The Authority will not be responsible for any delays, loss or non-receipt of Bids.
25.1 No Bid can be substituted or modified by the Bidder on or after the Bid Due Date. If a Bidder
submits a modified Qualification Proposal and/or Financial Proposal at any time prior to the
Bid Due Date, then the Authority shall consider: (i) the Qualification Proposal submitted later
in time; and (ii) the Financial Proposal with the Best Quote for the purpose of evaluation of
Bids.
25.2 The Bidder may modify its Bid prior to the Bid Due Date by uploading a scanned copy of a
letter addressed to [name and designation of addressee].
25.3 Any modification to the Bid or additional information supplied after the specified time on the
Bid Due Date, unless such additional information has been expressly sought for by the
Authority, will be disregarded.
25.4 No Bidder shall be allowed to withdraw its Bid at any time after its submission.
42
PART D. OPENING AND EVALUATION OF BIDS
26 OPENING OF BIDS
26.1 The Authority will open only those Bids that are submitted on or before the specified time on
the Bid Due Date. If any Bid is received after the specified time on the Bid Due Date, it will be
rejected and will be returned unopened to the Bidder.
26.2 The Authority will open the soft copy of the Qualification Proposals at the time, date and place
specified in the Bid Schedule.
The Qualification Proposals will be opened in the presence of the Bidders whose designated
representatives choose to be present. The Bidders can also view the summary of opening of
Bids by logging on to the e-Procurement Portal.
26.3 The Authority will prepare a record of the opening of the Bids that will include, as a minimum,
the names of the Bidders from whom Bids have been received. The Bidders' representatives
who are present will be requested to sign the record. The omission of a Bidder's representative's
signature on the record will not invalidate the contents and effect of the record.
26.4 Once all the Qualification Proposals have been opened, they will be evaluated for
responsiveness and to determine whether the Bidders are qualified for opening of the Financial
Proposals. The procedure for evaluation of the Qualification Proposals is set out in Clause 27.
26.5 Once the Qualification Proposals have been evaluated, all Bidders whose Qualification
Proposals meet the Eligibility Criteria and the Qualification Criteria, will be informed of a date,
time and place for opening of their Financial Proposals. The Financial Proposals will be opened
in the presence of the representatives of the qualified Bidders that choose to be present. The
procedure for evaluation of the Financial Proposals is set out in Clause 28.
26.6 The qualification of Bidders will be entirely at the discretion of the Authority. Bidders will be
deemed to have understood and agreed that no explanation or justification on any aspect of the
Bid Process or selection will be given.
26.7 Any information contained in a Bid will not in any manner be construed as binding on the
Authority, its agents, successors or assigns; but will be binding on the Bidder.
27.1 The Authority will examine the Qualification Proposals to determine whether they are
complete, whether the documents have been properly signed, and whether the Qualification
Proposals are generally in order. If any Bidder is found to be disqualified in accordance with
the terms of the RFP or if any Qualification Proposal is found to be non-responsive or not
meeting the Technical Capacity or the Financial Capacity, the Bid comprising such
Qualification Proposal will be rejected by the Authority and not included for further
consideration. No request for alteration, modification, substitution, or withdrawal shall be
entertained by the Authority in respect of such Bid.
27.2 Prior to evaluation of the Qualification Proposals, the Qualification Proposals will be evaluated
43
to determine responsiveness to the RFP. A Qualification Proposal, shall be considered
responsive only if:
(a) the Qualification Proposal and all documents specified in Clause 20 are received in the
prescribed formats;
(b) the Bid is uploaded by the specified time on the Bid Due Date;
(c) hard copies of the original bank guarantee for the Earnest Money Deposit and the POAs
required under Clause 20 are received by the specified time on the Bid Due Date;
(e) it contains all the information and documents (complete in all respects) as requested in
this RFP; and
27.3 The Authority shall then evaluate and determine whether the Bidders who have submitted
responsive Qualification Proposals satisfy the Eligibility Criteria and the Qualification Criteria
set out at Clause 3 and Clause 4 respectively.
27.4 In order to determine whether the Bidder satisfies the Eligibility Criteria set out at Clause 3 and
the Qualification Criteria set out at Clause 4, the Authority will review the documentary
evidence of the Bidder's eligibility and qualifications submitted by the Bidder and any
additional information which the Authority seeks from the Bidder.
27.5 Where any information provided by a Bidder is found to be patently false or amounting to a
material misrepresentation, the Authority reserves the right to reject the Bid submitted by such
Bidder.
27.6 Upon completion of evaluation of the Qualification Proposals, the Authority will notify the
qualified Bidders and inform them of the date and time on which their Financial Proposals will
be opened. The Financial Proposals of those Bidders who do not qualify will not be opened.
28.1 The Authority shall open the Financial Proposals of only the qualified Bidders, within [15
(fifteen)] days from the date of notification of qualified Bidders, at the time to be notified and
place specified in the Bid Schedule. If there is only 1 (one) qualified Bidder, the Authority may,
at its sole discretion, decide to open this Bidder's Financial Proposal.
28.2 In the presence of the representatives of the qualified Bidders that choose to be present at the
opening of the Financial Proposals, the Authority shall open the Financial Proposal of each
qualified Bidder and announce the [[Grant] / [Processing Fee] / [Royalty]]43 quoted by such
Bidder.
43 Drafting Note: To be selected based on whether the bidding criteria is Grant, Processing Fee or Royalty.
44
28.3 Following the opening of the Financial Proposals, the Authority shall evaluate the Financial
Proposals for responsiveness. A Financial Proposal, shall be considered responsive only if:
(a) the Bidder has populated the Financial Proposal format provided on the e-Procurement
Portal, in accordance with the instructions provided on the e-Procurement Portal;
(b) the Financial Proposal is not affected by the condition specified in Clause 21.3 of this
RFP.
28.4 The Authority shall notify a qualified Bidder whose Financial Proposal is found to be non-
responsive, that such qualified Bidder's Financial Proposal shall not be considered for award of
the Project.
28.5 The Authority shall, for each qualified Bidder that has submitted a responsive Financial
Proposal, tabulate the [[Grant] / [Processing Fee] / [Royalty]]44.
28.6 Once the [[Grant] / [Processing Fee] / [Royalty]]45for each qualified Bidder that has submitted
a responsive Financial Proposal has been tabulated, the Authority shall rank the qualified
Bidders based on the [[Grant] / [Processing Fee] / [Royalty]]46. The qualified Bidder with the
Best Quote will be the Preferred Bidder.
28.7 If the [[Grant] / [Processing Fee] / [Royalty]]47 quoted by 2 (two) or more qualified Bidders is
the same, then such qualified Bidders will be asked to provide their best and final offer. The
best and final offer quoted by the qualified Bidders should be [lower] 48/ [higher]49 than the
original [[Grant] / [Processing Fee] / [Royalty]] 50 quoted by them and the qualified Bidder
offering the most advantageous best and final offer, i.e., the Best Quote shall be the Preferred
Bidder.
28.8 If the Preferred Bidder is disqualified or rejected for any reason whatsoever, then the procedure
set out in Clause 7.2 shall follow.
28.9 The Authority may issue a letter to invite the Preferred Bidder for negotiations, provided such
negotiations shall not result in any [increase] 51/[decrease]52 in the [[Grant] / [Processing Fee] /
[Royalty]]53 initially quoted by the Preferred Bidder.
29 CLARIFICATION ON BIDS
29.1 To facilitate evaluation of the Bids, the Authority may, in its sole discretion, seek clarifications
and/or any additional information from any Bidder regarding its Bid (including if the Bid is not
signed, marked and sealed in accordance with Clauses 23 and 24). Such clarification(s) will be
provided within the time specified by the Authority for this purpose. Any request for
clarification(s) and all responses to such clarification(s) will be in writing. Any clarification
44 Drafting Note: To be selected based on whether the bidding criteria is Grant, Processing Fee or Royalty.
45 Drafting Note: To be selected based on whether the bidding criteria is Grant, Processing Fee or Royalty.
46 Drafting Note: To be selected based on whether the bidding criteria is Grant, Processing Fee or Royalty.
47 Drafting Note: To be selected based on whether the bidding criteria is Grant, Processing Fee or Royalty.
48 Drafting Note: To be deleted if the bidding criteria is not Grant or Processing Fee.
49 Drafting Note: To be deleted if the bidding criteria is not Royalty.
50 Drafting Note: To be selected based on whether the bidding criteria is Grant, Processing Fee or Royalty.
51 Drafting Note: To be deleted if the bidding criteria is not Grant or Processing Fee.
52 Drafting Note: To be deleted if the bidding criteria is not Royalty.
53 Drafting Note: To be selected based on whether the bidding criteria is Grant, Processing Fee or Royalty.
45
submitted by a Bidder that is not in response to a request by the Authority will not be
considered.
29.2 If a Bidder does not provide clarifications and/or any additional information sought under
Clause 29.1 within the prescribed time, its Bid may be liable for rejection. If the Bid is not
rejected, the Authority may proceed to evaluate the Bid by construing the particulars requiring
clarification to the best of its understanding, and the Bidder will be barred from subsequently
questioning such interpretation of the Authority.
46
PART E. AWARD OF PROJECT
30.1 After declaration of the Preferred Bidder, the Authority will, within [•] days, issue the LOA to
the Preferred Bidder in duplicate:
(c) requesting it to sign and return, as acknowledgement, a copy of the LOA within [15
(fifteen)] days of issuance of the LOA, indicating the date on which it will cause the
Concessionaire to execute the Agreement, which in no event shall be later than [60
(sixty)] days from the date of the LOA;
(d) requesting it to submit the Performance Security in accordance with Clause 16; and
30.2 If the Selected Bidder fails to return a duly signed copy of the LOA to the Authority within [15
(fifteen)] days of issuance of the LOA, then the Authority may, unless it consents to an
extension, without prejudice to any of its rights under the RFP or law, disqualify the Selected
Bidder, revoke the LOA, and forfeit the Earnest Money Deposit. If the Authority elects to
disqualify such Bidder and revoke the LOA, then the procedure set out in Clause 7.2 shall
follow.
31.1 The Authority shall, within [15 (fifteen)] days of the acceptance of the LOA by the Selected
Bidder provide the Selected Bidder with the final execution draft of the Agreement. The
Concessionaire incorporated by the Selected Bidder or the Selected Bidder, as the case may be,
shall execute the Agreement in the draft form provided by the Authority.
31.2 If the Selected Bidder seeks to materially negotiate or seeks any material deviations from the
final execution draft of the Agreement provided by the Authority under Clause 31.1, the
Authority may elect to disqualify the Selected Bidder and revoke the LOA issued to the Selected
Bidder. If the Authority elects to disqualify such Bidder and revoke the LOA, then the
procedure set out in Clause 7.2 shall follow.
31.3 Subject to Clause 30.2, upon satisfaction of the conditions specified in Clause 30.1 and any
other conditions specified in the LOA, the Concessionaire incorporated by the Selected Bidder
or the Selected Bidder, as the case may be, shall execute the Agreement within [60 (sixty)] days
from the date of issuance of the LOA.
31.4 If the Concessionaire or Selected Bidder, as the case may be, fails to execute the Agreement
within the timeline specified in Clause 31.3, the Authority may, unless it consents to an
extension, without prejudice to any of its rights under the RFP or law, disqualify the Selected
Bidder, revoke the LOA and forfeit the Earnest Money Deposit. If the Authority elects to
disqualify such Bidder and revoke the LOA, then the procedure set out in Clause 7.2 shall
follow.
47
31.5 If the Authority fails to execute the Agreement within the timeline specified in Clause 31.3 or
elects to revoke the LOA (other than due to reasons attributable to the Selected Bidder), then
the Authority shall return the Earnest Money Deposit to the Selected Bidder within an additional
[30 (thirty)] day period.
48
ANNEXES
49
ANNEX 1
To,
[insert name and address of Authority]
Sub: Bid for Development of a Waste to Bio-methanation Facility at [insert location of Project]
on a PPP basis
Ma’am/Sir,
Please find enclosed our Qualification Proposal in respect of the above-mentioned project and
complying with the Request for Proposal (RFP) issued by the [insert name of Authority] (the
Authority) dated [•].
50
(i) having been categorized as a willful defaulter in accordance with the laws of the
country of its incorporation;
(ii) having been admitted into corporate insolvency resolution process under the Insolvency
and Bankruptcy Code 2016;
(iii) having entered into any compromise with its creditors, or been subject to proceedings
for being wound up, or having its affairs administered or conducted by any court,
administrator, receiver;
(iv) having been declared by a court or other competent authority as being unable to pay its
debts or having had the repayment of its debts suspended; or
(v) having been convicted or otherwise being found responsible (or having any of its
directors, partners, trustees, officers or managers convicted or being found responsible)
by any court, tribunal, regulatory, public or other competent authority for a breach of
any laws or regulations which:
(a) related to any act of fraud or dishonesty for which a fine, penalty, damages,
compensation or other payment was levied against us or any of our directors,
partners, trustees, officers or managers; or
(b) resulted in the permanent or temporary suspension of our rights to provide any
service or carry on any type of business or operations.
9. We certify that in the [3 (three)] Accounting Years immediately preceding the Bid Due Date,
we or any Member of our Consortium or any of our Associate(s) whose Technical Capacity or
Financial Capacity is being relied upon to qualify for award of the Project has not been affected
by any of the following circumstances:
(i) the imposition of a penalty by an arbitral or judicial authority or arbitration award or a
judicial pronouncement against such Bidder or the Member or an Associate, as the case
may be, on account of failure to perform any contract;
(ii) been expelled from any project or contract by the GoI or any state government, or its
instrumentalities; or
(iii) had any contract terminated by the GoI or any state government, or its instrumentalities
for breach by such Bidder or the Member or an Associate, as the case may be.
10. We certify that we or any Member of our Consortium or any of our Associate(s) whose
Technical or Financial Capacity is being relied upon to qualify for award of the Project have
not entered into a contract for operation of the e-Procurement Portal, which is currently valid
and subsisting.
11. We certify that we or any Member of our Consortium or any of our Associate(s) whose
Technical or Financial Capacity is being relied upon to qualify for award of the Project has not
been barred by GoI or any state government, or its instrumentalities from participating in any
project or being awarded any contract and no such bar subsists on the Bid Due Date.
12. We certify that we or any Member of our Consortium or any of our Associate(s) whose
Technical Capacity or Financial Capacity is being relied upon to qualify for award of the Project
has not been determined to be ineligible by the World Bank under the Guidelines on Preventing
and Combating Fraud and Corruption in Projects Financed by IBRD Loans and IDA Credits
and Grants.
13. We certify that we or any Member of our Consortium or any of our Associate(s) whose
Technical Capacity or Financial Capacity is being relied upon to qualify for award of the Project
are not included as a debarred person pursuant on the public sanctions list of any multilateral
development bank that is party to the Agreement on Mutual Enforcement of Debarment
Decisions of 9 April 2010 (www.crossdebarment.org).
14. We certify that we or any Member of our Consortium or any of our Associate(s) whose
Technical Capacity or Financial Capacity is being relied upon to qualify for award of the Project
are not included on any sanctions lists promulgated by the UN Security Council or its
51
Committees, or any other recognised international sanctions list and do not have operations
(directly or through any subsidiary) or carry out transactions that are not in compliance with the
sanctions promulgated by the UN Security Council or its Committees.
15. We declare that:
(a) we have examined and have no reservations to the RFP and do not seek any deviations
to the RFP, including any Addendum issued by the Authority;
(b) we do not have any Conflict of Interest in accordance with Clauses 3.3 of the RFP;
(c) we have not directly or indirectly or through an agent engaged or indulged in any
corrupt practice, fraudulent practice, coercive practice, undesirable practice or
restrictive practice, as defined in Clause 3.4 of the RFP, in respect of any tender or
request for proposal issued by or any agreement entered into with the Authority; and
(d) we hereby certify that we have taken steps to ensure that in conformity with the
provisions of the RFP and submission of the Bid, no person acting for us or on our
behalf has engaged in any corrupt practice, fraudulent practice, coercive practice,
undesirable practice or restrictive practice.
16. We declare and confirm that we have read Clause 3.6 of the RFP and agree to comply with the
eligibility requirements set out therein to participate in this tender. Accordingly, we have also
enclosed all necessary certificates (including the certificate as per the format set out in Annex
10) in support of the aforesaid compliance under the Office Memorandum and the RFP. We
undertake to agree and confirm that, in the event of us being declared as the Selected Bidder, if
any of the statements or documents submitted in this regard are found to be false, incorrect or
misleading, the Authority will be entitled to take appropriate action as it deems necessary.
17. We understand that the Authority may cancel the Bid Process at any time and that the Authority
is neither bound to accept any Bid that it may receive nor to invite the Bidders to submit a Bid
for the Project, without incurring any liability to the Bidders, in accordance with Clause 7 of
the RFP.
18. The [Bidder/ Consortium of which we are the Lead Consortium Member]55 satisfies the legal
requirements and in our opinion by itself/along with its Members and Associates meets all the
Qualification Criteria and Eligibility Criteria laid down in the RFP.
19. We declare that we and our Associates are not submitting separate Bids for the Project.
20. Subject to Clause 25 of the RFP, we declare that we are not submitting more than 1 (one) Bid
for the Project.
21. We certify that in regard to matters other than security and integrity of the country, we or any
Member [or our Associate(s)]56 have not been convicted by a court of law or indicted or adverse
orders passed by a regulatory authority which could cast a doubt on our ability to undertake the
Project.
22. We further certify that in regard to matters relating to security and integrity of the country, we
or any Member [or our Associate(s)]57 have not been charge-sheeted by any agency of the state
or convicted by a court of law.
23. We further certify that no investigation by a regulatory authority is pending either against us or
against any Member or against our CEO or any of our directors/managers/employees [or our
Associate(s)]58 , which could have a material adverse effect on our ability to undertake the
Project.
52
24. We undertake that in case due to any change in facts or circumstances during the Bid Process,
we attract the provisions of disqualification in terms of the provisions of the RFP, we shall
inform the Authority of the same immediately.
25. In the event of us being declared as the Selected Bidder for the Project, we agree to incorporate
a special purpose vehicle, which will enter into the concession agreement provided by the
Authority. We agree not to seek any changes in or deviations from the aforesaid draft and agree
to abide by the same.
26. We agree and undertake to abide by all the terms and conditions of the RFP.
27. We have studied the RFP and all the information carefully. We understand that except to the
extent expressly set forth in the Concession Agreement, we shall have no claim, right or title
arising out of any documents or information provided to us by the Authority or in respect of
any matter arising out of or concerning or relating to the Bid Process including the award of the
Project.
28. [A power of attorney, by all Members of the Consortium, appointing the Lead Member and
authorizing the Lead Member to sign the Bid on behalf of all Members is included as part of
the Bid.]59
29. A Power of Attorney from the [Bidder/Lead Member] 60 authorizing the undersigned as the
authorised representative, and signatory who is authorised to perform all tasks, including
provide information, respond to queries, enter into contractual commitments on behalf of the
Bidder etc., in respect of the Project is included as a part of the Bid.
30. We certify that we have the Technical Capacity and Financial Capacity to undertake the Project.
31. We agree and understand that the Bid is subject to the provisions of the RFP. In no case, we
shall have any claim or right against the Authority if the Project is not awarded to us or our Bid
is not opened.
32. We have submitted all the relevant information as per the formats specified in the RFP, along
with the requisite Earnest Money Deposit and Bid processing fee.
33. Our Bid shall remain valid for a period of not less than [180 (one hundred and eighty)] days
from the Bid Due Date.
Signature :
(Authorised Representative and Signatory)
Designation :
53
ANNEX 2
DESCRIPTION OF THE BIDDER/MEMBERS
(on the letterhead of Bidder /Lead Member)
1. (a) Name:
2. Brief description of the Bidder including details of its main lines of business: [Note. Such
description shall not exceed [5 (five)] type-written pages.]
3. Details of individual(s) who will serve as the point of contact/communication for the Authority:
(a) Name:
(b) Designation:
(c) Address:
4. In case of a Consortium:
(a) The information above (1-3) should be provided for all the Members of the Consortium.
(b) Additional information regarding each Member of the Consortium should be provided
as per table below:
1.
2.
3.
54
ANNEX 3A
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.
For
…………………………..
(Signature, name, designation and address)
Witnesses:
1.
2.
(Notarised)
Accepted
……………………………
(Signature)
55
Instructions:
(1) The mode of execution of the Power of Attorney should be in accordance with the procedure, if
any, laid down by the applicable law and the charter documents of the executant(s) and when
it is so required, the same should be under common seal affixed in accordance with the required
procedure.
(2) 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.
(3) For a power of attorney executed and issued overseas, the document will also have to be
legalised by the Indian Embassy and notarised in the jurisdiction where the power of attorney
is being issued. However, the power of attorney provided by the Bidders from countries that
have signed the Hague Legislation Convention, 1961 are not required to be legalised by the
Indian Embassy if it carries a conforming apostille certificate.
56
ANNEX 3B
Whereas the [insert name of Authority] (the Authority) has invited Bids from interested parties for the
purpose of undertaking a project for the development of a Waste to Bio-methanation Facility in [insert
location of Project] on a PPP basis (the Project).
Whereas, it is necessary for the Members of the Consortium to designate one of them as the Lead
Member with all necessary power and authority 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
implementation.
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.
For ……………………..
(Signature)
57
……………………..
(Name & Title)
For ……………………..
(Signature)
……………………..
(Name & Title)
Witnesses:
1.
2.
………………………………………
(Notarised)
Accepted
……………………………
(Signature)
Instructions:
(1) The mode of execution of the Power of Attorney should be in accordance with the procedure, if
any, laid down by the applicable law and the charter documents of the executant(s) and when
it is so required, the same should be under common seal affixed in accordance with the required
procedure.
(2) 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.
(3) For a power of attorney executed and issued overseas, the document will also have to be
legalised by the Indian Embassy and notarised in the jurisdiction where the power of attorney
is being issued. However, the power of attorney provided by the Bidders from countries that
have signed the Hague Legislation Convention, 1961 are not required to be legalised by the
Indian Embassy if it carries a conforming apostille certificate.
58
ANNEX 4
(a) As on [insert date], the Bidder's/Member's/Associate’s Net Worth is INR [•] (Rupees in words).
The Net Worth of INR [•] (Rupees in words) has been calculated in accordance with the
computation set out below which is in accordance with the terms set out in the Request for
Proposal (RFP) issued by the Authority on [•].
Net worth
= ………………. (paid up share capital)
Add: …………….(reserves)
Add: …………….(others, please specify)
Subtract: (revaluation reserves)
Subtract: ………….(intangible assets)
Subtract: …………..(miscellaneous expenditures to the extent not written off and carry forward
losses)
Subtract: …………..((others, please specify)
* Please note that the items in brackets should correspond to items as per the annual report so
that it can be verified exactly how the net worth has been computed.
(b) As on [insert date], the average of the Bidder's/Member's/Associate’s Annual Turnover over
the last [3 (three)] Accounting Years immediately preceding the Bid Due Date is INR [•]
(Rupees in words).
The Average Annual Turnover of INR [•] (Rupees in words) has been calculated in accordance
with the terms set out in the Request for Proposal (RFP) issued by the Authority on [•].
(c) The Bidder/Member is not affected by and has not been affected by any of the following events,
conditions or circumstances in the [3 (three)] Accounting Years immediately preceding the Bid
Due Date:
(i) having been categorized as a willful defaulter in accordance with the laws of the
country of its incorporation;
(ii) having been admitted into corporate insolvency resolution process under the Insolvency
and Bankruptcy Code 2016;
(iii) having entered into any compromise with its creditors, or been subject to proceedings
for being wound up, or having its affairs administered or conducted by any court,
administrator, receiver; or
59
(iv) having been declared by a court or other competent authority as being unable to pay its
debts, or having made any composition or arrangements with creditors or having had
the repayment of its debts suspended.
Signature:
Name:
Membership Number:
Designation:
Date:
60
ANNEX 5A
FORMAT OF DETAILS OF WASTE TO BIO-METHANATION/ WASTE TO BIO-GAS
EXPERIENCE – DEVELOPEMNT/DESIGN AND CONSTRUCTION
61 Drafting Note: If there are multiple lines of a waste to bio-methanation facility/ waste to bio-gas facility of equal or
varying capacity on the site, please fill data from rows 9 to 15 for each separately.
61
sixty five)] Average Units of
consecutive days in Biogas/CBG produced
the [7 (seven)] years – KG
preceding the Bid
Due Date
Type of Digester
13
Brief description of the technology:
14
15 Key Vendors:
Signature
Name:
Designation:
Note:
(1) In case of development experience, details such as name, postal address, email address and
contact details of the authority/implementing agency (i.e., concession grantor) should be
provided. In case of design and construction experience, details such as name, postal address,
email address and contact details of both the developer (i.e., the concessionaire) and the
authority/implementing agency (i.e., the concession grantor) should be provided.
(2) In case of design and construction experience, if the client is the developer of the relevant project
(i.e., the concessionaire), then in addition to the client certificate in the format set out in this
Annex 5A, the Bidder/Member/Associate shall also submit a certificate from the implementing
agency (i.e., the government authority granting the concession), certifying the details set out in
rows 10,11, and 12 of the table above.
(3) In the event that credit is being taken for the experience of an Associate, the Bidder must also
provide a certificate from the statutory auditor in the format set out at Annex 6.
62
(4) If the project used to demonstrate the above waste to bio-methanation/ waste to bio-gas facility
was undertaken by the Bidder or any Member or Associate through an unincorporated joint
venture, consortium or partnership, the Bidder must also provide a certificate from the statutory
auditor in the format set out at Annex 7 certifying that the capital expended by the Bidder or
Member or Associate or payments received by the Bidder or Member or Associate, prior to the
Bid Due Date, was at least [26% (twenty six per cent)] of the total project/contract value.
(5) Experience for any activity relating to a 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.
(6) The Bidder/Member may submit its details in format set out in this Annex 5A either for a single
project or for multiple projects that cumulatively meet the development/design and construction
experience, as set out in Clause 4.1(a)(i) of this RFP. In case of multiple projects, the
Bidder/Member must provide details of such projects in separate tables, in accordance with the
format set out in this Annex 5A, for each such project.
(7) In the absence of any detail in the above format and/or the certificate(s) issued by the relevant
government authority/client, the information would be considered inadequate and could lead to
exclusion of the relevant project in determining whether the Bidder meets the Qualification
Criteria.
63
ANNEX 5B
Month/ Year of
11.
Commissioning:
Average throughput –
Performance – TPD:
12. average of last [1 Average Units
(one)] year Biogas/CBG produced
– KG per month
13. Type of Digester
62 Drafting Note: To be provided where the Party is only contracted for the O&M services and does not have ownership
interest in the Project.
63 Drafting Note: If there are multiple lines of a waste to bio-methanation facility/ waste to bio-gas facility of equal or varying
capacity on the site, please fill data from rows 10 to 14 for each separately.
64
Brief description of the scope of services:
14.
Signature
Name:
Designation:
Note:
(1) The duration of the O&M experience must be at least [365 (three sixty five)] consecutive days
in the [7 (seven)] years immediately preceding the Bid Due Date. The Bidder should provide
certification from the relevant government authority (i.e., the implementing agency) or private
entity as per the format provided above.
(2) In the event that credit is being taken for the experience of an Associate, the Bidder must also
provide a certificate from the statutory auditor in the format set out at Annex 6.
(3) Experience for any activity relating to a 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.
(4) The Bidder/Member may submit its details in format set out in this Annex 5B either for a single
project or for multiple projects that cumulatively meet the O&M experience, as set out in Clause
4.1(b) of this RFP. In case of multiple projects, the Bidder/Member must provide details of such
projects in separate tables, in accordance with the format set out in this Annex 5B, for each
such project.
(5) In the absence of any detail in the above format and/or the certification by the relevant
government authority or private entity, the information would be considered inadequate and
could lead to exclusion.
65
ANNEX 6
By virtue of the aforesaid, the latter exercises control over the former, who is an Associate.
[And/or]
[…… [name of Bidder/Member/Associate] has the power, directly or indirectly, to direct or influence
the management and policies of ….. (Bidder/Member/Associate) by operation of law, contract or
otherwise]. By virtue of the aforesaid, the former exercises control over the latter, who is an Associate.]
[And/or]
[This is to certify that more than 50% (fifty per cent) of the voting shares of…….[name of
Bidder/Member/Associate] and more than 50% (fifty per cent) of the voting shares of…..[name of
Bidder/Member/Associate] are held directly or indirectly by…..[name of Bidder/Member/Associate].
Based on the above [name of Bidder/Member/Associate] and [name of Bidder/Member/Associate]
are Associates by virtue of being under the common Control of the same Person.]
A brief description of the said equity held, directly or indirectly, is given below:
{Describe the shareholding of the Bidder/Member and its Associate. In the event that Control is
exercised by operation of law, the relationship may be suitably described and similarly certified herein.}
Signature:
Name:
Membership Number:
Designation:
Date:
66
ANNEX 7
FORMAT OF CERTIFICATE FROM THE STATUTORY AUDITOR TO CERTIFY
PAYMENTS MADE/RECEIVED
(On the letter head of the statutory auditor of the Bidder/each Member of the Consortium/Associate
(as applicable))
[the capital expenditure incurred by the Bidder/Member/Associate until [insert date] is INR [•], which
is [•]% of the [total project cost/contract value]]
or
[the total payments received by the Bidder/Member/Associate until [insert date] is INR [•], which is
[•]% of the [total project cost/contract value]].
67
ANNEX 8
FORMAT OF BANK GUARANTEE FOR EARNEST MONEY DEPOSIT
(On stamp paper)
1. In consideration of you, the [insert name of the Authority] (referred to as the Authority, which
expression will, unless it is repugnant to the subject or context thereof include, its successors
and assigns), represented by the Commissioner, the Authority having agreed to receive the Bid
of [insert name of Bidder]/the Consortium, represented by [Member]]64 with its registered
office at [insert Address] (referred to as the Bidder which expression shall unless it be
repugnant to the subject or context thereof include its/their executors, administrators,
successors and assigns), for the development of a waste to bio-methanation facility in [insert
location of the Project] on a PPP basis (referred to as the Project), pursuant to the Request for
Proposal dated [•] (referred to as the RFP) issued in respect of the Project and other related
documents, we [insert name of the Bank] having our registered office at [•] and one of its
branches at [•] (referred to as the Bank), at the request of the Bidder, do hereby in terms of
Clause 15 of the RFP, irrevocably, unconditionally and without reservation guarantee the due
and faithful fulfilment and compliance of the terms and conditions of the RFP by the said Bidder
and unconditionally and irrevocably undertake to pay forthwith to the Authority an amount of
[●] (referred to as the Guarantee) as our primary obligation without any demur, reservation,
recourse, contest or protest and without reference to the Bidder, if the Bidder fails to fulfil or
comply with all or any of the terms and conditions contained in the RFP.
2. Any such written demand made by the Authority stating that the Bidder is in default of due and
faithful compliance with the terms and conditions contained in the RFP will be final, conclusive
and binding on the Bank.
3. We, the Bank, do hereby unconditionally undertake to pay the amounts due and payable under
this Guarantee without any demur, reservation, recourse, contest or protest and without any
reference to the Bidder or any other person and irrespective of whether the claim of the
Authority is disputed by the Bidder or not, merely on the first demand from the Authority stating
that the amount claimed is due to the Authority by reason of failure of the Bidder to fulfil and
comply with the terms and conditions contained in the RFP, for the following events:
(b) if a Bidder is disqualified in accordance with, Clause 3.2 (Lock-in Restrictions and
Change in Control), Clause 3.3 (Conflict of Interest), Clause 3.5 (Other Eligibility
Criteria), and Clause 7 (Rights of the Authority);
(d) if a Bidder is selected as the Selected Bidder and it fails, within the specified time limit,
to:
64 Drafting Note: Delete 'the Consortium represented by [Member]', if the Bidder is a single entity.
68
(i) sign and return, as acknowledgement, the duplicate copy of the LOA;
(ii) furnish the Performance Security;
(iii) fulfil any other condition precedent to the execution of the Agreement; or
(iv) fails to execute or cause the Concessionaire to execute the Agreement.
Any such demand made on the Bank shall be conclusive as regards amount due and payable by
the Bank under this Guarantee.
4. This Guarantee shall be irrevocable and remain in full force for a period of [210 (two hundred
and ten)] days from the Bid Due Date inclusive of a claim period of [30 (thirty)] days or for
such extended period as may be mutually agreed between the Authority and the Bidder, and
agreed to by the Bank, and will continue to be enforceable till all amounts under this Guarantee
have been paid.
If the Bidder is declared as the Selected Bidder, then the validity of the Guarantee of such
Selected Bidder shall be extended until the date on which the Selected Bidder submits the
Performance Security. The Guarantee of the Selected Bidder will be returned upon the Selected
Bidder furnishing the Performance Security.
5. We, the Bank, further agree that the Authority will be the sole judge to decide as to whether the
Bidder has failed to comply with the terms and conditions contained in the RFP including, those
events listed at paragraph 3 above. The decision of the Authority that the Bidder is in default
as aforesaid will be final and binding on us, notwithstanding any differences between the
Authority and the Bidder or any dispute pending before any court, tribunal, arbitrator or any
other authority.
6. The Guarantee will not be affected by any change in the constitution or winding up of the
Bidder or the Bank or any absorption, merger or amalgamation of the Bidder or the Bank with
any other person.
7. In order to give full effect to this Guarantee, the Authority will be entitled to treat the Bank as
the principal debtor.
8. The obligations of the Bank under this Guarantee are absolute and unconditional, irrespective
of the value, genuineness, validity, regularity or enforceability of the RFP or the Bid submitted
by the Bidder.
9. The obligations of the Bank under this Guarantee shall not be affected by any act, omission,
matter or thing which, but for this provision, would reduce, release or prejudice the Bank from
or prejudice or diminish its liability under this Guarantee, including (whether or not known to
it, or the Authority):
(a) any time or waiver granted to, or composition with, the Bidder or any other person;
(b) any incapacity or lack of powers, authority or legal personality of or dissolutions; or
change in the Bidder, as the case may be;
(c) any variation of the RFP, so that references to the RFP in this Guarantee shall include
each such variation;
(d) any unenforceability, illegality or invalidity of any obligation of the Bidder or the
Authority under the RFP or any unenforceability, illegality or invalidity of the
obligations of the Bank under this Guarantee or the unenforceability, illegality or
69
invalidity of the obligations of any Person under any other document or guarantee or
security, to the extent that each obligation under this Guarantee shall remain in full
force as a separate, continuing and primary obligation, and its obligations be construed
accordingly, as if there were no unenforceability, illegality or invalidity; and
(e) any extension, waiver, or amendment whatsoever which may release a guarantor or
surety (other than performance of any of the obligations of the Bidder under the RFP).
10. Any notice by way of request, demand or otherwise will be sufficiently given or made if
addressed to the Bank and sent by courier or by registered mail to the Bank at the address set
forth herein.
11. We undertake to make the payment on receipt of your notice of claim on us addressed to [name
of Bank along with branch address] and delivered at our above branch which will be deemed
to have been duly authorised to receive the notice of claim.
12. It shall not be necessary for the Authority to proceed against the Bidder before proceeding
against the Bank and the Guarantee will be enforceable against the Bank, notwithstanding any
other security which the Authority may have obtained from the Bidder or any other person and
which will, at the time when proceedings are taken against the Bank, be outstanding or
unrealised.
13. We, the Bank, further undertake not to revoke this Guarantee during its currency except with
the previous express consent of the Authority in writing.
14. The Bank represents and warrants that it has power to issue this Guarantee and discharge the
obligations contemplated herein, and the undersigned is duly authorised and has full power to
execute this Guarantee for and on behalf of the Bank.
15. For the avoidance of doubt, the Bank's liability under this Guarantee will be restricted to INR
[●]. The Bank will be liable to pay the amount or any part of the Guarantee only if the Authority
serves a written claim on the Bank in accordance with paragraph 11 of this Guarantee, on or
before ………………….. (indicate date falling [210 (two hundred and ten)] days after the Bid
Due Date).
16. Capitalised terms used but not defined herein shall have the meanings given to them in the RFP.
(Official Seal)
In the presence of:
Name of the witness
Signature of the witness
Address of the witness
70
ANNEX 9
FORMAT OF JOINT BIDDING AGREEMENT
THIS JOINT BIDDING AGREEMENT ("JBA") is entered into on this [●] Day of [●] 201[●]
AMONGST
1. [●], with its registered office at (referred to as the First Part which expression will, unless
repugnant to the context include its successors and permitted assigns);
AND
2. [●], with its registered office at (referred to as the Second Part which expression will, unless
repugnant to the context include its successors and permitted assigns);
[AND
3. [●], with its registered office at [●] (referred to as the Third Part which expression will, unless
repugnant to the context include its successors and permitted assigns).]
The above-mentioned parties of the FIRST [and] [,] SECOND, [and] [,] [THIRD] are
collectively referred to as the Parties and each is individually referred to as a Party.
WHEREAS
(A) [insert name of the Authority] (referred to as the Authority), which expression will, unless
repugnant to the context or meaning thereof, include its administrators, successors and assigns)
has invited Bids by its Request for Proposal dated [●] (the RFP) for selection of a Bidder for
the development of a waste to bio-methanation facility at [insert location of the Project] on a
PPP basis (the Project).
(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.
(C) It is a necessary condition under the RFP that the Members will enter into a Joint Bidding
Agreement and furnish a copy of it with the Bid.
In this JBA, the capitalised terms will, 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 Bid Process for the Project.
71
2.2 The Parties hereby undertake to participate in the Bid Process only through this Consortium
and not individually and or through any other consortium constituted for the Project, either
directly or indirectly or through any of their Associates.
3. Covenants
3.1 The Parties hereby undertake that in the event the Consortium is declared the Selected Bidder
and awarded the Project, it will incorporate a special purpose vehicle (the Concessionaire)
under the Companies Act, 2013 for entering into the concession agreement with the Authority
for undertaking the Project.
3.2 The Members of the Consortium undertake that they shall be jointly and severally responsible
and liable for all matters arising out of or in relation to this RFP.
4.1 The Parties hereby agree that Party of the First Part will be the Lead Member of the Consortium
and will have the power of attorney from all Parties and bind all Parties for and in conducting
all business for and on behalf of the Consortium during the Bid Process and, if the Consortium
is declared as the Selected Bidder, during the execution of the Project.
5.1 The Parties agree that the proportion of shareholding among the Parties in the Concessionaire
will be as follows:
First Party:
Second Party:
[Third Party:]
(a) the First Party, acting as the Lead Member of the Consortium, will control the
Concessionaire and subscribe for and shall hold not less than [26% (twenty six
percent)] of the total Equity Contribution and voting rights of the Concessionaire until
[2 (two)] years after the COD;
(b) the [First, Second and the Third] Party shall cumulatively hold not less than (i) [51%
(fifty one percent)] of the total Equity Contribution and voting rights of the
Concessionaire until [2 (two)] years after the COD; and (ii) [26% (twenty six percent)]
of the total Equity Contribution and voting rights of the Concessionaire during the
remaining Concession Period; and
(c) the [Second and/or the Third] Party, whose [Technical Capacity and/or Financial
Capacity] is being assessed, shall hold not less than [10% (ten percent)] of the total
72
Equity Contribution and voting rights of the Concessionaire until [2 (two)] years after
the COD.
Provided that the [First or Second or the Third] Party who demonstrated O&M
Capacity at the qualification stage shall continue to hold not less than [10% (ten
percent)] of the total Equity Contribution and voting rights of the Concessionaire until
the expiry or early termination of the Agreement, as the case may be.
5.3. The Parties undertake that they will comply with all equity lock-in requirements set out in this
JBA and in the Agreement.
Each Party represents to the other Parties as of the date of this JBA that:
(a) such Party is duly organised, validly existing and in good standing under the laws of
its incorporation and has all requisite power and authority to enter into this JBA;
(b) the execution, delivery and performance by such Party of this JBA has been authorised
by all necessary and appropriate corporate or governmental action and a copy of the
extract of the charter documents and board resolution/power of attorney in favour of
the person executing this JBA for the delegation of power and authority to execute this
JBA on behalf of the Consortium Member is annexed to this JBA, and will not, to the
best of its knowledge:
(iv) violate any clearance, permit, concession, grant, license or other governmental
authorisation, 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
JBA;
(c) this JBA is the legal and binding obligation of such Party, enforceable in accordance
with its terms against it; and
73
(d) there is no litigation pending or, to the best of such Party's knowledge, threatened to
which it or any of its Associates is a party that presently affects or which would have a
material adverse effect on the financial condition or prospects or business of such Party
in the fulfilment of its obligations under this JBA.
7. Termination
This JBA will be effective from the date hereof and will continue in full force for the entire
duration of the Project in case the Project is awarded to the Consortium. However, in case the
Consortium is not selected for award of the Project, the JBA will stand terminated upon return
of the Earnest Money Deposit as per the RFP.
8. Miscellaneous
8.2 The Parties acknowledge and accept that this JBA will not be amended by the Parties without
the prior written consent of the Authority.
SIGNED, SEALED AND DELIVERED For and on SIGNED, SEALED AND DELIVERED For
behalf of the PARTY OF THE FIRST PART by: and on behalf of the PARTY OF THE
SECOND PART by:
Signature) Signature)
(Name) (Name)
(Designation) (Designation)
(Address) (Address)
Signature)
(Name)
(Designation)
(Address)
1 2.
Instruction:
74
The mode of the execution of the Joint Bidding Agreement should be in accordance with the procedure,
if any, laid down by 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.
75
ANNEX 10
To,
[insert name and address of Authority]
Sub: Bid for Development of Waste to Bio-methanation Facility at [•] on a PPP basis
With reference to the Office Memorandum, we submit the following certificate to [insert name of the
Authority].
We have read the Clause regarding restrictions on procurement from a Bidder of a country which shares
a land border with India. We, ......................... (Bidder's name) certify that we are not from such a
country or, if from such a country, have been registered with the Competent Authority. We hereby
certify that we fulfil all requirements in this regard and are eligible to be considered.
Yours faithfully,
(Signature, name and designation of the authorised signatory of the Bidder/Lead Member)
76
MODEL CONCESSION AGREEMENT
For
[•]
[Insert Title]
BACKGROUND AND DISCLAIMER1
The Ministry of Housing and Urban Affairs (MoHUA) has signed an agreement with the International Finance
Corporation (IFC), a member of the World Bank Group, to form a partnership to accelerate investment in the solid
waste management sector in India. Through this partnership, IFC has assisted MoHUA in preparing a model
concession agreement (MCA), a model request for proposal (RfP, together the Model Documents) and a guidance
note in relation to the Model Documents (Guidance Note) for use by urban local bodies for development of waste
to bio-methanation projects in India. The objective of preparing the Model Documents and the Guidance Note is to
develop an enabling framework for private sector participation in the solid waste management sector. Urban local
bodies are advised to refer to the Model Documents and the Guidance Note while preparing the bid documents for a
tender process in relation to development of a waste to bio-methanation project.
IFC has appointed Trilegal as the legal consultant for drafting, revising, and finalizing the Model Documents and the
Guidance Note. The Model Documents and the Guidance Note have been drafted and revised by Trilegal based on
instructions, comments, feedback, and other information received from IFC and MoHUA.
MoHUA released the draft Model Documents on its website on 10 July 2023. Thereafter, comments were received
from multiple stakeholders (including private players and government agencies) and the Model Documents have been
revised accordingly, where necessary.
IFC, together with its consultants and advisors, does not guarantee the adequacy, correctness, completeness or
reliability of the content included in the Model Documents or the Guidance Note and accepts no responsibility or
liability for any omissions or errors (including, without limitation, typographical errors and technical errors) in the
content whatsoever, or for any reliance thereon.
IFC, together with its consultants and advisors, makes no representation or warranty and will have no liability to any
person, including any bidder, under any law, statute, rules or regulations or tort or otherwise for any loss, damage,
cost or expense which may arise from or that may be incurred or suffered on account of anything contained in the
Model Documents or the Guidance Note, and any assessment, assumption, statement or information contained in
these Model Documents or the Guidance Note or deemed to form part of the Model Documents or the Guidance
Note.
The cost of developing the Model Documents and the Guidance Note, including professional fees paid to consultants
and advisors, has been met through funding obtained from the European Union. The contents of the Model
Documents and the Guidance Note do not necessarily reflect the views of the European Union.
1 Drafting Note: This background and disclaimer section is for the benefit of MoHUA, any urban local body or other authority using or
reviewing the Model Documents and the Guidance Note. This background and disclaimer section should be deleted prior to issuing the Model
Documents to the bidders in a tender process.
1
TABLE OF CONTENTS
2
PART I – PRELIMINARY
3
CONCESSION AGREEMENT
This Concession Agreement (Agreement) is executed on this [•] day of [•] at [•]:
AMONGST
(1) [________________[insert name of the Authority/ULB], a statutory body constituted under the [•], with its
registered office at [insert address] acting through _______________________________,
_______________________________ [insert name of the authorised signatory and his/her designation]
(hereinafter referred to as the Authority, which expression shall, unless it be repugnant to the context or
meaning thereof, include its successors and permitted assigns);
AND
(2) The [Department of Local Government/Urban Development], [Insert the name of the State], (hereinafter
referred to as the Confirming Party, which expression shall, unless it be repugnant to the context or meaning
thereof, include its successors and permitted assigns);
AND
The Authority, the Concessionaire and the Confirming Party shall collectively be referred to as the Parties and
individually as a Party.
WHEREAS:
A. By the Seventy Fourth Amendment to the Constitution of India (with effect from 1st June 1993), Part IXA
was inserted which inter-alia introduced the concept of local self-governance by urban local bodies (ULBs
or Municipalities/Deemed Municipalities). Article 243W entrusts ULBs with the responsibility to
implement schemes in relation to the matters listed in the Twelfth Schedule of the Constitution of India
(which include, public health, sanitation, conservancy, and solid waste management).
B. The Ministry of Environment, Forest and Climate Change (MoEFCC), under the aegis of Government of
India (GoI), formulated the Solid Waste Management Rules, 2016 (SWM Rules), which provide that every
municipal authority shall, within the administrative area of its municipality, be responsible for
implementation of the SWM Rules and development of infrastructure for segregation, storage, collection,
transportation, processing and disposal of municipal solid wastes (SWM Services). Accordingly, municipal
authorities are obligated to provide SWM Services in accordance with SWM Rules and protect the
environment and public health of the citizens and public in general.
2 Drafting Note: To be deleted if Selected Bidder has incorporated the Concessionaire prior to execution of the Agreement.
3 Drafting Note: To be deleted if Selected Bidder has incorporated the Concessionaire prior to execution of the Agreement.
4
C. The Authority, recognizing the challenges of solid waste management in [insert name of city in which the
Project is to be developed], has identified developing facilities to handle and process waste as one of its
priorities. For this purpose, the Authority is keen to undertake the development of a waste to bio-methanation
facility which shall be capable of receiving and processing up to [•] TPD of Acceptable Waste at [•] to meet
the solid waste management requirements of [insert name of city in which the Project is to be developed], on
a public private partnership (PPP) basis, through a Design, Build, Finance, Operate and Transfer (DBFOT)4
model (Project).
D. In order to implement the Project and for better coordination and implementation of the SWM Services, the
Authority intends to engage a concessionaire who will design, develop, finance, construct, operate and
maintain the Project Facilities on the Site under and in accordance with the requirements of this Agreement
and after the expiry of the Concession Period, transfer the Project Facilities to the Authority, in accordance
with this Agreement.
E. The Project includes processing and disposal of the waste and conversion of Acceptable Waste to compressed
methane-rich biogas.
F. On [•], the Authority commenced a competitive Bid Process for the Project by issuing a request for proposal
(the RFP), inviting interested parties to submit their qualification proposals and financial proposals to the
Authority for undertaking the Project.
G. Pursuant to the terms of the RFP, the Authority received proposals from various bidders, including a proposal
submitted by the Selected Bidder on [insert date].
H. Following a process of evaluation of qualification proposals and financial proposals submitted by the bidders
(including the Selected Bidder (which shall include a consortium of bidders)5), Authority has accepted the
proposal submitted by the Selected Bidder for the development of the Project and issued the letter of award
dated [•] to the Selected Bidder (the LOA).
I. The Selected Bidder has accepted the LOA and has agreed to undertake the Project in accordance with the
terms of this Agreement.
J. The Selected Bidder has incorporated the Concessionaire as a limited liability company under the Companies
Act, to implement the Project and perform the obligations and exercise the rights of the Concessionaire,
including the obligation to enter into this Agreement and has requested the Authority vide letter dated [•] to
accept the Concessionaire.6
[The Selected Bidder has informed the Authority by its letter dated [•] that it undertakes to incorporate a
special purpose vehicle to implement the Project, within [30 (thirty)] days from the Appointed Date and once
incorporated, the special purpose vehicle (i.e., the Concessionaire) is the entity which shall undertake and
perform the obligations of the Selected Bidder.] 7
K. By its letter dated [•], the Concessionaire also joined the said request of the Selected Bidder to the Authority
to accept it as the entity which shall undertake and perform the obligations and exercise of the rights of the
Selected Bidder under the LOA, including the obligations to enter into this Agreement, pursuant to the LOA.
4 Drafting Note: The model on which the Project is to be developed should, if required, be revised on a case to case basis depending on the
structure adopted by the relevant Authority for each Project.
5 Drafting Note: To be deleted prior to execution if the Selected Bidder is a single bidder and not a consortium.
6 Drafting Note: To be deleted if the Selected Bidder has not incorporated the Concessionaire prior to execution of the Agreement.
7 Drafting Note: To be deleted if the Selected Bidder has incorporated the Concessionaire prior to execution of the Agreement.
5
L. The Authority has agreed to the request of the Selected Bidder and the Concessionaire and has along with
the Confirming Party, agreed to enter into this Agreement with the Concessionaire for execution of the
Project on a DBFOT basis, subject to and on the terms, conditions and covenants set out in this Agreement.
IT IS AGREED as follows:
6
ARTICLE 1
1.1 Definitions
Acceptable Waste means Source Segregated Organic (SSO) waste that can be degraded by micro-organisms
into simpler stable compounds for Bio-methanation, produced by households,
commercial enterprises, agricultural establishments, healthcare units (non-bio-medical)
including [agriculture and dairy waste]8, food waste, animal by-products and Mixed
Waste up to the Maximum Permissible Mixed Waste Quantity, and excludes Prohibited
Waste and Non-Biodegradable Waste (except to the extent the Non-Biodegradable
Waste forms part of the Mixed Waste up to the Maximum Permissible Mixed Waste
Quantity).
Acceptable Waste means the schedule according to which the Authority shall undertake the delivery of
Delivery Schedule Acceptable Waste to the Concessionaire for handling and processing at the WtB Facility,
and which shall be notified to the Concessionaire at least [3 (three)] months prior to the
Scheduled COD.
Acceptance means the certificate issued (or deemed to be issued) by the Authority to the
Certificate Concessionaire upon successful completion of the Trial Operations of the WtB Facility.
Accounting Year means the Accounting Year commencing from the first day of April of any calendar year
and ending on the thirty-first day of March of the next calendar year.
Adjoining Property means any land and/or property adjoining or adjacent to the Site, including all conduits,
roads, footpaths, walls, fences, buildings and other structures and other apparatus on,
under or within such land and/or property.
Adjusted Net Equity for the purposes of determining the Termination Compensation, shall be calculated as
follows:
Where,
t = total number of 12 (twelve) month intervals in the period from the Appointed Date
until the date of termination; provided that if the last interval is shorter than 12 (twelve)
months, it shall be considered a 12 (twelve) month interval.
i = index denoting a specific 12 (twelve) month interval (where i=1 for the 1st (first) 12
(twelve) month interval and i=t for the last 12 (twelve) month interval, which may be
shorter than 12 (twelve) months)
8 Drafting Note: To be deleted if no dairy or agriculture waste will be supplied by the Authority.
7
EIRR = [•]% annual rate of return
Illustration
If the term of the Agreement is 15 years and the termination occurs in year 5 and we
assume the following:
t=5
EIRR = 16%
Equity Contribution = INR 1,00,00,00,000
Equity Distribution = INR 10,00,00,000
Construction Period = 1 year
Year 1 181.0639
Year 2 -15.609
Year 3 -13.456
Year 4 -11.6
Year 5 -10
130.399
Therefore, if termination of the Agreement occurs in year 5, the Adjusted Net Equity is
INR 130,39,90,000.
Agreement means this concession agreement entered into between the Parties, along with all
schedules and annexures to this agreement and includes any Variation Orders and other
amendments made in accordance with this agreement.
Alternate Disposal means the location notified by the Authority as a part of the RFP to which the
Location Concessionaire is required to transport the Residual Inert Matter and/or Residual Waste
for disposal in accordance with the instructions of the Authority.
Applicable Laws means the Constitution of India and all and any laws, enacted or brought into force and
effect by the GoI, any State Government, any Government Authority or any local
government having jurisdiction over the Parties, the Site or the Project Facilities,
including rules, regulations and notifications made thereunder, and judgments, decrees,
injunctions, writs and orders of any court of record, as may be applicable to the execution
of this Agreement and the performance of the respective rights and obligations of the
Parties, as may be in force and effect during the subsistence of this Agreement. For the
avoidance of doubt, and without in any way limiting the generality of the foregoing,
Applicable Laws shall include the EPA, the EPA Rules, the SWM Rules and laws
concerning any environmental, social, labour, health and safety or security risks of the
type contemplated by the Performance Standards.
Applicable Permits means any permissions, clearances, concessions, authorizations, consents, licenses,
permits, rulings, exemptions, no objections, resolutions, filings, orders, notarizations,
registrations or approvals of whatsoever nature that are required to be obtained from time
to time in connection with the Project, and for generally performing the obligations
8
contemplated by this Agreement in accordance with the Applicable Laws, as set out in
Schedule [•].
Appointed Date means the date on which all the Conditions Precedent have been satisfied, or waived, by
the Parties in accordance with this Agreement.
Arbitration Act means the Indian Arbitration and Conciliation Act, 1996, as amended from time to time.
Associate means, in relation to the Concessionaire, the Selected Bidder or a Member of the Selected
Bidder, a Person who Controls, or is Controlled by, or is under the common Control of
the same Person who controls the Concessionaire, the Selected Bidder or Member of the
Selected Bidder, as the case may be.
Associated means the infrastructure facilities associated with the operation of the Project Facilities
Infrastructure or otherwise required to be provided by the Concessionaire, including weighbridges, site
office, administrative buildings, security room, boundary wall/security fence,
laboratories, ambient air quality monitoring stations, pipelines (if required, for the
transportation of the CBG Output), utilities, waste storage facility, waste segregation
facility etc., as described in greater detail in the Scope of Work and the Technical
Specifications.
Authority Applicable means the Applicable Permits which are required to be obtained by the Authority to
Permits undertake the Project, as set out in Schedule [•].
For the avoidance a doubt, ‘Authority Related Parties’ does not include the
Concessionaire.
Authority’s means any officer nominated by the Authority, from time to time, to act on its behalf and
Representative liaise with the Concessionaire for the purposes of this Agreement and notified as such in
writing to the Concessionaire.
Availability means the liquidated damages payable by the Concessionaire to the Authority for a
Liquidated Damages failure of the WtB Facility to achieve the Availability Guarantee, which are to be
calculated in accordance with Schedule [•].
9
Average Per Ton has the meaning ascribed to it in Clause 18.7(b).
Gross Revenue
Bid Due Date means the last date of submission of the Bids as set out in the RFP.
Bid Process means the [single-stage bidding process, with two sub-stages] / [two-stage bidding
process]9, undertaken by the Authority to award the Project to the Selected Bidder on the
terms and conditions set out in the RFP. The Bid Process commenced with the issuance
of the RFP and ends on the Execution Date.
Bid Security means the unconditional, irrevocable bank guarantee submitted by the Concessionaire to
the Authority during the Bid Process.
Bids means the bids submitted in response to the RFP for qualification and award of the
Project.
Biodegradable Waste means any waste that can be degraded by micro-organisms into simpler stable
compounds.
Bio-methanation means the process of enzymatic decomposition of organic matter by microbial action to
produce methane rich biogas.
By-Products means the by-products of processing of the Acceptable Waste at the Project Facilities
which meet the standards specified under Applicable Law (including the Fertilizer
Control Order 1985 and any associated specifications).
C&T Contractors means the contractors appointed by the Authority for collection and transportation of
waste in [insert name of city].
CBG Output means the CBG generated from processing of Acceptable Waste at the Project Facilities.
Change in Law means the occurrence of any of the following events after the Bid Due Date:
It is clarified that Change in Law shall not include: (i) any change in the (Indian) Income
Tax Act, 1961 with regard to the taxes on the income of the Concessionaire; or (ii) any
withdrawal of, or any amendment to the SATAT Scheme.
9 Drafting Note: To be deleted if the bidding process is structured as a single stage bidding process with two sub-stages.
10
COD Certificate means the certificate issued (or deemed to be issued) by the Authority to the
Concessionaire after issue (or deemed issue) of the Acceptance Certificate and
satisfaction of the conditions set out in Clause 17.1(a), evidencing the date on which the
WtB Facility has entered commercial operations.
Commercial means the date on which the COD Certificate is issued (or deemed to be issued) to the
Operations Date or Concessionaire.
COD
Companies Act means the (Indian) Companies Act, 1956 or the (Indian) Companies Act, 2013, as
amended from time to time, as the context may require.
Compressed Biogas means compressed biogas that is purified as per Bureau of Indian Standards
or CBG IS16087:2016.
Concessionaire means the Applicable Permits which are required to be obtained and maintained by the
Applicable Permits Concessionaire to develop, operate and maintain the Project Facilities, as set out in
Schedule [•].
[Concessionaire means the payments to be made by the Authority to the Concessionaire in the form of
Payments [the Grant]10 [and/or] [the Processing Fee]11.]12
Concessionaire's means the Person nominated by the Concessionaire, from time to time, to act on its behalf
Representative and liaise with the Authority for the purposes of this Agreement and notified as such in
writing to the Authority.
11
Conditions Precedent means collectively, the obligations of the Concessionaire that are set out at Clause 4.2,
the obligations of the Authority that are set out at Clause 4.3 and the obligations of the
Parties that are set out at Clause 4.4, and 'Condition Precedent' means any one of these.
Confidential means any part of this Agreement, or any material provided to any Party pursuant to this
Information Agreement, all of which information shall be deemed to be confidential, except to the
extent that this Agreement otherwise requires.
[Construction means a certificate issued by the Authority in accordance with Clause 16.1(a), to certify
Completion the completion of the construction works in relation to the Project Facilities has been
Certificate achieved in accordance with the requirements of this Agreement.]14
Construction Plan means the detailed construction plan for the Project Facilities to be prepared by the
Concessionaire, which will set out the work to be performed by the Concessionaire to
achieve completion of the works in relation to the construction of the Project Facilities,
in order to achieve the COD by the Scheduled COD. The Construction Plan shall be
approved by the Authority in accordance with Clause 14.3.
(a) the ownership, directly or indirectly, of more than 50% of the voting shares of
such Person; or
(b) the power, directly or indirectly, to direct or influence the management and
policies of such Person by operation of law, contract or otherwise,
Cost means all documented expenditure reasonably incurred by the Concessionaire, whether
on or off the Site, including overhead and similar charges, but does not include profit.
Daily Acceptable means the weight of Acceptable Waste received by the Concessionaire daily and
Waste Quantity calculated in accordance with Clause 18.6(e)(iii).
Daily Guaranteed means the guaranteed Acceptable Waste that Authority shall supply to the
Acceptable Waste Concessionaire during each day of the O&M Period as set out in Clause 18.5(b).
Quantity
(a) the principal amount of the debt provided by the Lenders under the Financing
Documents for financing the Project but excluding any part of the principal that
had fallen due for repayment [1 (one)] year prior to the date of the Termination
Notice, as set out in the Financial Package; and
(b) all accrued interest, financing fees and charges payable under the Financing
Documents on, or in respect of, the debt referred to in (a) above until the date of
the Termination Notice, [including any hedging/swap breakage costs], but
excluding (i) any interest, fees or charges that had fallen due [1 (one)] year prior
to the date of the Termination Notice, (ii) any penal interest or charges payable
under the Financing Documents to any Lender, and (iii) any pre-payment charges
in relation to accelerated repayment of debt except where such charges have arisen
due to an Authority Event of Default,
(c) provided that if all or any part of the Debt Due is convertible into equity at the
option of Lenders and/or the Concessionaire, it shall for the purposes of this
Agreement be deemed to be Debt Due even after such conversion and the
principal shall be dealt with as if such conversion had not been undertaken.
(a) the Debt Due shall, in no event, exceed [•]% of the Total Project Cost [less the
Grant payable to the Concessionaire]15; and
(b) any amount of Debt Due in foreign currency as on the date of the Termination
Notice shall be converted to Rupees at the exchange rate published on the official
website of the Reserve Bank of India as at 12 (twelve) noon on the relevant date.
Illustration: If the aggregate of the principal amounts of the debt provided by the Lenders
under the Financing Documents for the Project is [•], the Total Project Cost is [•] [and
the Grant is [•]]16, the Debt Due will be capped at [•].
Debt Service means the sum of all payments on account of principal, interest, financing fees and
charges due and payable in an Accounting Year to the Lenders under the Financing
Documents.
Delivery Point means the SLF or the Alternate Disposal Location (as notified by the Authority), in
accordance with this Agreement.
Design Capacity means the quantity of Acceptable Waste that the WtB Facility should be designed to
handle and process in a day, which shall be [•] TPD.
Designs and means the detailed designs and drawings, technical information, plans, specifications,
Drawings calculations, and models prepared by the Concessionaire for the Project Facilities, based
15 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
16 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
13
on the Technical Specifications, as approved by the Authority in accordance with Clause
14.2(c).
DPR means a detailed project report prepared in accordance with Clause 14.2(b).
Emergency means a condition or situation that endangers, or which in the reasonable opinion of the
Authority or the Concessionaire, may endanger the environment or lives or security of
people at or around the Site (including any ragpickers) or that poses an imminent threat
of material damage to any property (including the Project Facilities) at or around the Site.
Encumbrance(s) means mortgage, charge, pledge, lien (statutory or otherwise), assignment by way of
security, hypothecation, right of set-off, trust, priority, retention of title or ownership or
other security interest and any other agreement or arrangement having substantially the
same effect.
EPA means the Environment (Protection) Act, 1986, as amended from time to time.
EPA Rules means the Environment (Protection) Rules, 1986, as amended from time to time.
EPC Contract means the engineering, procurement and construction contract between the
Concessionaire and the EPC contractor named therein for the design and construction of
the Project Facilities.
Equity Contribution means the sum expressed in INR representing the paid up share capital of the
Concessionaire for meeting the equity component of its financial obligations under this
Agreement and the Financing Documents, which, for the purpose of this Agreement,
shall include instruments that shall compulsorily convert into equity share capital and
any loans provided by any shareholder of the Concessionaire or any Associate of the
Concessionaire or any Associate of any shareholder of the Concessionaire and which
shall be capped at the amount specified as the equity contribution in the Financial
Package submitted to the Authority by Concessionaire in accordance with Clause 4.2(i).
Equity Distribution means: (a) payments made by the Concessionaire towards dividends, share buy-backs,
redemptions of shares, payment of principal, interest or fees in respect of instruments
convertible into equity share capital or subordinated loans from its Associates,
shareholders or other parties (excluding payments made to Lenders); (b) loans given by
the Concessionaire to its Associates or shareholders; or (c) any other payments made by
the Concessionaire to its shareholders.
14
Escrow Account means the interest-bearing account opened by the Authority with the Escrow Bank in
accordance with the Escrow Agreement, which shall be operational until the expiry, or
early termination of the Agreement.
Escrow Agreement means the agreement to be executed among the Authority, the Confirming Party, the
Concessionaire, and the Escrow Bank in relation to the opening and operations of the
Escrow Account, substantially in the form set out at Schedule [•].
Escrow Bank means the Scheduled Bank with which the Authority opens the Escrow Account,
pursuant to the Escrow Agreement.
ESIA means the environmental and social impact assessment to be undertaken for the Project
in accordance with the Applicable Laws and the Performance Standards.
ESIA Report means a report in relation to the ESIA undertaken for the Project.
Event of Default means an Authority Event of Default or a Concessionaire Event of Default, as the context
may require.
Financial Assistance means all funded and non-funded financial assistance, including loans, advances and
guarantees or any re-financing that the Concessionaire may avail of for the Project from
the Lenders.
Financial Capacity means the financial capacity and strength of the [Selected Bidder/Member(s)] 17
determined in accordance with the RFP.
Financial Close means, the date on which the Financing Documents become effective, the conditions
precedent under the Financing Documents for disbursements are fulfilled and the
Concessionaire has access to the Financial Assistance.
Financial Model means the financial model adopted by Lenders, setting forth the capital and operating
costs of the Project and expected revenues from the Project, on the basis of which
financial viability of the Project has been determined by the Lenders, and includes a
description of the assumptions and parameters used for making the calculations and
projections therein.
Financial Package means the financing package indicating the means of financing the Project Facilities, and
includes all Financial Assistance specified in the Financing Documents and the Equity
Contribution.
Financial Proposal means the financial proposal submitted by a bidder in accordance with the RFP for
undertaking the Project.
Financing Documents means, collectively, the documents entered into or to be entered into by the
Concessionaire with the Lenders, in respect of all funded and non-funded financial
assistance, including loans, advances and or any re-financing that the Concessionaire
Force Majeure Event means a Non-Political Force Majeure Event, an Indirect Political Force Majeure Event
or a Direct Political Force Majeure Event, as the case may be.
Forced Unavailability means an interruption of or a reduction in the availability of the WtB Facility that is the
result of:
Good Industry means the exercise of such degree of skill, diligence and prudence, and those practices,
Practices methods, specifications and standards of equipment, safety and performance, as may
change from time to time and which would reasonably and ordinarily be expected to be
used by a skilled and experienced developer engaged in the construction, operation, and
maintenance of waste to energy facilities in India of the type and size similar to the
Project Facilities and includes good international industry practices as defined in the
Performance Standards.
Government means the GoI, any State Government, any local government or any other ministry,
Authority governmental department, commission, board, body, bureau, agency, authority,
instrumentality, inspectorate, statutory corporation or body corporate over which the GoI
or any State Government exercises control, court, tribunal or other judicial or
administrative body or official or person, having jurisdiction over the Concessionaire,
the Site, the Project and the performance of obligations and exercise of the rights of the
Parties in accordance with the this Agreement.
18 Drafting Note: Include the municipal authority / entity responsible for the water supply.
19 Drafting Note: Include the entity responsible for power supply.
16
[Grant20 means an amount equal to INR [•] [quoted by the Selected Bidder in its Financial
Proposal]21, being the capital support to be paid by the Authority to the Concessionaire
in instalments during the Concession Period, upon satisfactory completion of the Project
Milestones in accordance with the terms of this Agreement.]
Hand-back mean the condition in which the Site and the Project Facilities shall be handed back to
Conditions the Authority or any entity nominated by the Authority on expiry or early termination of
this Agreement, which is consistent with the due performance of the Concessionaire's
obligations under this Agreement and are described in greater detail in the Scope of Work
and Technical Specifications.
Hand-back Date means the date on which this Agreement and the Concession hereunder expires or
terminates pursuant to the terms of the Agreement.
Hand-back means the obligations of the Concessionaire in relation to transfer of the Site and Project
Requirements Facilities upon termination of the Project, as set out in Clause 30.3.
Independent means the Person to be jointly appointed by the Authority and the Concessionaire to act
Engineer as the independent engineer for the Project in accordance with the provisions of the
Agreement.
Insurance Cover means the aggregate of the maximum sums insured under the insurances taken out by the
Concessionaire pursuant to Article 25, and includes all insurances required to be taken
out by the Concessionaire under Article 25 but not actually taken, and when used in the
context of any act or event, it shall mean the aggregate of the maximum sums insured
and payable or deemed to be insured and payable in relation to such act or event.
Intellectual Property means patents, copyrights, database rights, design rights, trade-marks, service marks,
Rights trade names, domain names, rights in reputation, rights in undisclosed or confidential
information (such as know-how, trade secrets and inventions, whether patentable or not),
and other rights of a like nature (whether registered or unregistered) and all applications
for such rights as may exist anywhere in the world.
20 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
21 Drafting Note Square bracketed portion to be retained only when the Grant is the bidding parameter.
17
[Invoice means an invoice for payment of a Concessionaire Payment , submitted by the
Concessionaire to the Authority in accordance with Article 22.]22
KPIs means the key performance indicators set out in Clause 21.1 and Schedule [•], which the
Project Facilities must achieve during the O&M Period.
Lead Member [means the Member nominated by the Members of the Selected Bidder to act as the lead
member in accordance with the RFP.]24
Lenders includes banks, financial institutions, funds and agents or trustees of debenture holders,
including their successors and assignees, who have agreed to guarantee or provide
Financial Assistance to the Concessionaire under the Financing Documents but does not
include any shareholder or Associates of the Concessionaire who have provided any
shareholder loans to the Concessionaire.
Liquidated Damages means the Delay Liquidated Damages, the Availability Liquidated Damages, the
Throughput Liquidated Damages and the Residual Inert Matter and Waste Liquidated
Damages.
[LRP has the meaning ascribed to it in Clause 14.4(i) and shall be prepared in accordance with
Applicable Laws and the Performance Standards.]25
Material Adverse means the effect of any act or event, which materially and adversely affects the ability
Effect of any Party to exercise its rights or perform any of its obligations under and in
accordance with this Agreement and which act or event causes a material financial
burden or loss to any Party.
Maximum means a maximum quantity of Mixed Waste, which shall not exceed [insert an amount
Permissible Mixed equivalent to 5% (five per cent) of the Daily Guaranteed Acceptable Waste Quantity]26
Waste Quantity TPD, which the Concessionaire shall be required to Segregate, process (if applicable)
and dispose of in accordance with the requirements of this Agreement.
Member [means, where the Selected Bidder is a consortium, a member of the Selected Bidder.]27
22 Drafting Note: Square bracketed portion to be deleted if no Grant or Processing Fee is being paid to the Concessionaire.
23 Drafting Note: Square bracketed portion to be deleted if no Grant or Processing Fee is being paid to the Concessionaire.
24 Drafting Note: To be deleted if the Selected Bidder is not a consortium.
25
Drafting Note: To be included only if there is any displacement of people due to the Project or if any waste pickers are facing loss of revenue
due to a grant of license over the Site to the Concessionaire or diversion of waste to the WtB Facility.
26 Drafting Note: Insert an amount equivalent to 5% (five per cent) of the Daily Guaranteed Acceptable Waste Quantity. The Authority may
increase the percentage of the Maximum Permissible Mixed Waste Quantity depending on the quality of waste available, however, it is
desirable to provide segregated waste for WtB plants and therefore, to the extent possible, the Authority should aim to keep the Maximum
Permissible Mixed Waste Quantity less than 5% of the Daily Guaranteed Acceptable Waste Quantity.
27 Drafting Note: To be deleted if the Selected Bidder is not a consortium.
18
[Milestone means, in respect of any Project Milestone, a certificate issued by the Authority in
Completion accordance with Clause 16.1(a), to certify that such Project Milestone has been achieved
Certificate in accordance with the requirements of this Agreement.]28
Minor Casualty means any fire or other casualty that results in physical damage to the Project Facilities
to the extent that the total cost (as estimated by the Independent Engineer) of repairing
and/or replacing the damaged portion of the Project Facilities to the same condition as
previously existed would not exceed the amount of INR [•] (Rupees [•]).
Mixed Waste means un-segregated wet and dry waste or Biodegradable Waste and Non-biodegradable
Waste, that is produced by households, commercial enterprises, healthcare units (non-
bio-medical) including, solid or semi-solid domestic waste, sanitary waste (as defined
under the SWM Rules), commercial waste, institutional waste, horticulture waste,
agriculture and dairy waste, catering and market waste and other non-residential wastes,
food waste, paper, cardboard, wood, textiles, rubber, leather, plastics, metal and glass,
but excludes Prohibited Waste.
MoEFCC means the Ministry of Environment, Forest and Climate Change, GoI.
Non-biodegradable means any waste that cannot be degraded by micro-organisms into simpler stable
Waste compounds.
O&M Agreement means the agreement for the operation and maintenance of the Project Facilities executed
between the Concessionaire and the O&M contractor named therein.
O&M Expenses means expenses incurred by the Concessionaire or by the Authority, as the case may be,
for all O&M works in relation to the Project, including:
28 Drafting Note: Square bracketed portion to be deleted if no Grant is payable and, therefore, there are no Project Milestones.
29 Drafting Note: Square bracketed portion to be deleted if no Grant or Processing Fee is being paid to the Concessionaire.
30 Drafting Note: Square bracketed portion to be deleted if no Royalty is payable under the Agreement.
19
O&M Inspection has the meaning ascribed to it in Clause 20.2.
Report
O&M Period means the period commencing on the COD and ending on the Hand-back Date during
which the Concessionaire is required to operate and maintain the Project Facilities.
O&M Plan means the plan required to be prepared by the Concessionaire and approved by the
Authority in accordance with Clause 18.2, for the operation and maintenance of the
Project Facilities.
O&M Standards means the requirements and performance standards for the operation and maintenance of
the Project Facilities set out in Clause 18.13.
Offtake Agreement means any agreement entered into between the Concessionaire and the Offtaker for sale
and purchase of the CBG Output.
Offtaker means any person that agrees to purchase all or part of the CBG Output from the
Concessionaire during the Concession Period.
OHS Plan means an occupational health and safety management plan to be prepared by the
Concessionaire and approved by the Authority in accordance with Clause 14.4(e), which
shall include a Site safety plan.
Performance means IFC's Performance Standards on Social & Environmental Sustainability, dated
Standards January 1, 2012, available at [insert relevant web page link] and Environmental, Health,
and Safety Guidelines on Waste Management Facilities dated December 10, 2007,
available at [insert relevant web page link].
Person means any individual, company, corporation, partnership, joint venture, trust, society,
sole proprietor, limited liability partnership, co-operative society, government company,
unincorporated organization or any other legal entity.
Pre-Construction means the works required to be undertaken by the Concessionaire in order to ensure that
Works the Site is suitable and stable for construction of the WtB Facility and shall include
conducting geophysical and geotechnical studies and investigations, assessing the soil
bearing capacity, conducting tests to determine the design and construction requirements
and carrying out piling, soil filling, concrete filling etc. The detailed description of the
20
Pre-Construction Works required to be performed by the Concessionaire is set out in
Schedule [•] (Scope of Work).
Prohibited Waste means hazardous waste (as defined under the Hazardous and Other Wastes (Management
and Transboundary Movement) Rules, 2016), bio-medical waste (as defined under the
Bio-Medical Waste Management Rules, 2016), construction and demolition waste (as
defined under the Construction and Demolition Waste Management Rules, 2016)
industrial waste, e-waste (as defined under the E-Waste (Management) Rules, 2016),
waste from batteries (as defined under the Batteries (Management and Handling) Rules,
2001, radioactive waste (as defined under the Atomic Energy (Safe disposal of
Radioactive Wastes) Rules, 1987), sludge, sewage waste, ash, dirt, soil, and silt.
Project Agreements means this Agreement, the Financing Documents, the EPC Contract, the O&M
Agreement, any Offtake Agreements and any other agreements or material contracts that
may be entered into by the Concessionaire with any person in connection with matters
relating to the Project but does not include the Substitution Agreement and Escrow
Agreement.
Project Execution means a project execution plan prepared in accordance with Clause 14.2(a).
Plan
Project Facilities means the WtB Facility and the Associated Infrastructure, which need to be constructed,
installed, operated, and maintained by the Concessionaire in accordance with this
Agreement (including the Technical Specifications, Applicable Laws and the
Performance Standards), and the term Project Facility shall be construed accordingly.
[Project Milestones means the four construction milestones, according to which the Grant will be paid to the
Concessionaire in accordance with Article 22 and as proposed by the Concessionaire in
the Construction Plan and approved by the Authority in accordance with Clause 14.3,
and 'Project Milestone' shall mean any one of them, as the context may require.]33
Proposed Technology means anaerobic digestion or such other proven technology(ies) proposed to be used by
the Concessionaire to develop the WtB Facility, as specified by the Concessionaire in
its Bid and Designs and Drawings.
[RAP has the meaning ascribed to it in Clause 14.4(i) and shall be prepared in accordance with
Applicable Laws and the Performance Standards.]34
31 Drafting Note: Square bracketed portion to be deleted if no Processing Fee is payable under this Agreement.
32 Drafting Note: Square bracketed portion to be deleted if no Processing Fee is payable under this Agreement.
33 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
34 Drafting Note: To be included only if there is any displacement of people due to the Project or if any waste pickers are facing loss of revenue
due to a grant of license over the Site to the Concessionaire or diversion of waste to the WtB Facility.
21
Receipt Point means the location at the Site, to be mutually agreed between the Parties as part of the
Construction Plan, at which the Authority (or any C&T Contractors on behalf of the
Authority) will be required to deliver the Acceptable Waste to the Concessionaire in
accordance with this Agreement.
Residual Inert Matter means the waste matter produced after processing of the Acceptable Waste at the WtB
Facility.
Residual Inert means the liquidated damages payable by the Concessionaire to the Authority for a
Matter and Waste failure of the WtB Facility to achieve the Residual Inert Matter and Waste Guarantee,
Liquidated which are to be calculated in accordance with Schedule [•].
Damages
Residual Waste means the residual waste that is left after Segregation of the Mixed Waste, which is not
capable of being used by the Concessionaire for processing at the WtB Facility to
produce CBG and which the Concessionaire shall be required to dispose of in accordance
with the terms of this Agreement.
Right of Way means all privileges, easements and other rights of way for enabling unfettered and
unrestricted access and/or right of use of the Site.
Rupee or Rs. Or INR means Indian Rupees, the lawful currency of India.
SATAT Scheme means the Sustainable Alternative Towards Affordable Transportation initiative
launched on 1 October 2018.
SBI MCLR Means the prevailing marginal cost of fund-based lending rate for a tenor of 1 year, as
notified by the State Bank of India.
35 Drafting Note: Square bracketed portion to be deleted if no Royalty is being paid to the Concessionaire under this Agreement.
36 Drafting Note: Square bracketed portion to be deleted if no Royalty is being paid to the Concessionaire under this Agreement.
22
Scheduled Bank means a bank as defined under section 2(e) of the Reserve Bank of India Act, 1934, as
amended from time to time.
Scheduled COD means the date which is [24 (twenty four)] months from the Appointed Date, by which
the Concessionaire is required to achieve the COD.
[Scheduled Project means the scheduled date of completion of the construction work corresponding to the
Milestone relevant Project Milestone.]37
Completion Date
Scope of Work means the scope of work for construction and O&M of the Project Facilities as set out in
Schedule [•].
Security means and includes any Encumbrance, or any other agreement or arrangement having
substantially the same economic effect.
Segregation shall have the meaning as ascribed to the term in the SWM Rules and the terms
"Segregate" and "Segregated" shall also have similar meanings.
Selected Bidder means the bidder selected by the Authority for award of the Project.
Site means the area equivalent to [•] Acres, indicated at [Figure [•] of Schedule [•]], on which
the Concessionaire shall develop the Project Facilities.
Site Contamination means a report dated [•] prepared by [•] in accordance with the terms of the RFP that sets
Report out the baseline level of contamination (if any) at the Site prior to handover of the Site
to the Concessionaire.
SLF means the sanitary landfill identified by the Authority for safe and scientific disposal of
the Residual Inert Matter and any Residual Waste.
37 Drafting Note: Square bracketed portion to be deleted if no Grant is payable and, therefore, there are no Project Milestones.
23
Source Segregated means Biodegradable Waste that is separated from other waste streams at the source of
Organic waste or SSO collection.
waste
Statutory Auditors means a reputable firm of chartered accountants acting as the statutory auditors of the
Concessionaire under the provisions of the Companies Act 2013 including any statutory
modification or re-enactment thereof, for the time being in force, and appointed in
accordance with Clause 23.2.
Subcontract means a contract entered into by the Concessionaire to subcontract any part of its scope
of work in relation to the Project under this Agreement.
Subordinated Debt the aggregate of the following sums expressed in Indian Rupees or in the currency of
debt, as the case may be, outstanding as on the Hand-back Date:
(b) all accrued interest on the debt referred to in sub-clause (a) above but restricted to
the lesser of actual interest rate and a rate equal to [5% (five per cent)] above the
bank rate in case of loans denominated in Indian Rupees and lesser of the actual
interest rate and six-month SOFR (Secured Overnight Financing Rates) plus [2%
(two per cent)] in case of loans expressed in foreign currency, but does not include
any interest that had fallen due [1 (one)] year prior to the Hand-back Date,
provided that if all or any part of the Subordinated Debt is convertible into Equity at the
option of the lenders and/or the Concessionaire's shareholders, it shall for the purposes
of this Agreement be deemed to be Subordinated Debt even after such conversion and
the principal thereof shall be dealt with as if such conversion had not been undertaken.
Substitution means the substitution agreement to be executed by Authority, the Concessionaire, the
Agreement Confirming Party and the Lenders, in the format set out in Schedule [•].
SWM Rules means the Solid Waste Management Rules, 2016, issued by the MoEFCC on 8 April
2016, as may be amended from time to time.
Taxes means any Indian taxes including levies, imposts, cesses, duties and other forms of
taxation, including income tax, goods and services tax, corporation profits tax, advance
corporation tax, capital gains tax, residential and property tax, customs and other import
and export duties, stamp duty or capital duty (whether central, state or local) on the
goods, materials, equipment and services incorporated in and forming part of the Project
charged, levied or imposed by any Government Authority, but excludes any interest,
penalties and other sums in relation thereto imposed on any account whatsoever.
24
Technical Capacity means the technical capacity and experience of the Selected Bidder [/Member(s)] 38
determined in accordance with the RFP.
Termination means the compensation payable by the Authority upon termination of this Agreement,
Compensation in accordance with Article 29.
Termination Notice means a termination notice issued by the Authority in case of a Concessionaire Event of
Default (in accordance with Clause 28.2) or a termination notice issued by the
Concessionaire in case of an Authority Event of Default (in accordance with Clause
28.4), stating its intention to terminate this Agreement.
Throughput means the liquidated damages payable by the Concessionaire to the Authority for a
Liquidated Damages failure of the WtB Facility to achieve the daily Throughput Guarantee, which are to be
calculated in accordance with Schedule [•].
Total Casualty means any fire or other casualty that results in physical damage to the WtB Facility (or
any part thereof), to the extent that the total cost of repairing, replacing or restoring the
damaged portion of the WtB Facility (as determined by the Independent Engineer) to the
same condition as existed previously would be more than [25% (twenty-five per cent] or
more of the then total replacement cost of the WtB Facility (or any part thereof).
Total Project Cost means the total capital cost incurred on construction and financing of the Project, and
shall be limited to the lowest of:
(a) the capital cost of the Project, as set forth in the Financial Package;
(b) the actual capital cost of the Project on the COD; and
(c) a sum of Rs. [•] (Rupees [•]).
Trial Operations means the operation of the WtB Facility on a trial basis for a period of not less than [•]
months from the date on which the Trial Operations Commencement Notice is issued for
Variation means any alteration in the Scope of Work, Technical Specifications or the Designs and
Drawings, as instructed by the Authority or proposed by the Concessionaire, in
accordance with Article 31.
Variation Order means an order issued by the Authority certifying its approval of a proposed Variation
and recording the terms and conditions on which the proposed Variation is required to
be implemented.
Waste Acceptance means the plan required to be prepared by the Concessionaire and approved by the
and Rejection Plan Authority in accordance with Clause 18.3, for the inspection, testing, rejection and
Segregation of waste delivered to the Concessionaire.
Weighbridges means the weighbridges to be installed by the Concessionaire at the Receipt Point to
weigh each consignment of waste delivered by the Authority or the C&T Contractors on
its behalf.
Wilful Misconduct means an intentional or reckless breach or disregard by a Party of any of its obligations
under this Agreement.
WtB Facility means the waste to bio-methanation facility to be set up by the Concessionaire
in accordance with the terms of this Agreement (including the Scope of Work
and Technical Specifications), which shall be capable of handling and
processing Acceptable Waste up to the Design Capacity.
(a) Any reference to a statutory provision shall include such provision as modified or re-enacted or
consolidated from time to time.
(b) The words importing the singular shall mean the plural and vice-versa; and words importing the
masculine shall include the feminine and neuter and vice-versa.
(d) The references to the word ‘include’ or ‘including’ or to the phrase ‘in particular’, shall be construed
without limitation.
26
(e) References to any date or time of day are to Indian Standard Time; any reference to day shall mean a
reference to a calendar day; any reference to a month shall mean a reference to a calendar month, any
reference to a year shall mean a reference to a calendar year.
(f) The references to any agreement, deed or other instrument shall be construed as a reference to such
agreement, deed, or other instrument as may be amended, varied, supplemented or novated, from time
to time.
(g) Unless otherwise provided, any late payment charges to be calculated and payable under this
Agreement shall accrue pro rata on a monthly basis and from the respective due dates as provided for
in this Agreement.
(h) A requirement that a payment be made on a day which is not a business day shall be construed as a
requirement that the payment be made on the next business day.
(i) Whenever provision is made for the giving or issuing of any notice, endorsement, consent, approval,
permission, certificate or determination by any Person, such notice, etc., shall be reasonably given,
shall not be unreasonably withheld or delayed and shall be in writing and the words ‘notify’, ‘endorse’,
‘approve’, ‘permit’, ‘certify’ or ‘determine’ shall be construed accordingly. Where any notice, consent
or approval is to be given by any Party, the notice, consent or approval shall be given on their behalf
only by any authorized persons.
(j) The words written and in writing include a facsimile transmission and any means of reproducing works
in a tangible and permanently visible form.
(k) The terms of the RFP 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. In the event of any discrepancy
between this Agreement and the RFP, the provisions set out in this Agreement shall prevail.
(l) Subject to the provisions of this Agreement, the Concessionaire shall be responsible to and indemnify,
the Authority for the acts and omissions of the Concessionaire Related Parties as if they were the acts
and omissions of the Concessionaire and the Authority shall be responsible to and indemnify the
Concessionaire for the acts and omissions of the Authority Related Parties as if they were the acts and
omissions of the Authority.
(m) Neither the giving of any approval or consent, the review, knowledge or acknowledgement of the terms
of any document by or on behalf of the Authority, nor the failure to do so, shall, unless expressly stated
in this Agreement, relieve the Concessionaire of any of its obligations under this Agreement or of any
duty which it may have under this Agreement to ensure the correctness, accuracy or suitability of the
matter or thing which is the subject of the approval, consent, review, knowledge or acknowledgement.
(n) The rule of construction, if any, that an agreement should be interpreted against the Party responsible
for the drafting and preparation thereof shall not apply to this Agreement.
(o) The Parties acknowledge that damages for specific defaults prescribed under this Agreement
(including the Liquidated Damages) are a genuine pre-estimate of and reasonable compensation for
the loss and damage that shall be suffered by the non-defaulting Party due to failure of the defaulting
Party to perform its obligations in accordance with this Agreement and are not in the nature of a
penalty.
(a) The provisions of the Clauses and the Schedules of this Agreement shall be interpreted in such a
manner that will ensure that there is no inconsistency in interpretation between the intent expressed in
the Clauses and the Schedules.
(b) In the event of any ambiguities or discrepancies within this Agreement, the following shall apply:
(i) 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;
(ii) between the requirements of two or more Schedules of this Agreement, the provisions of the
specific Schedule relevant to the issue under consideration shall prevail over the more
general; and
(iii) between the Clauses and the Schedules, unless specified otherwise, the Clauses shall prevail
over the Schedules.
(c) In the event of any discrepancy between various documents issued by or provided to the Authority as
a part of the Bid Process, the following order of priority shall apply:
28
PART II – THE CONCESSION
29
ARTICLE 2
2.1 The scope of the Project shall be as set out in Schedule [•] (Scope of Work) and shall include:
(a) designing, financing, developing, constructing, completing and commissioning the Project Facilities
by the Scheduled COD, in accordance with Applicable Laws, the Performance Standards, Applicable
Permits, Technical Specifications, Designs and Drawings, the Project Execution Plan, the DPR, the
Construction Plan, the EMP, the OHS Plan and Good Industry Practices; and
(b) operating and maintaining the Project Facilities in accordance with Applicable Laws, the
Performance Standards, Applicable Permits, Technical Specifications, Designs and Drawings, the
O&M Plan, the EMP, the OHS Plan and Good Industry Practices to ensure compliance with the
KPIs; and
(c) sale of the CBG Output to the Offtaker(s), disposal of the By-Products and Recyclable Materials and
delivery of Residual Inert Matter and Residual Waste in accordance with the requirements of this
Agreement; and
(d) hand back of the Project Facilities upon expiry or early termination of this Agreement in accordance
with the Hand-back Conditions and the Hand-back Requirements.
30
ARTICLE 3
3.1 Concession
On and from the Appointed Date, and subject to, and in accordance with the requirements of this Agreement,
Applicable Laws and Applicable Permits, the Authority grants to the Concessionaire the exclusive right,
license and authority to:
(a) design, finance, develop, construct, complete and commission the Project Facilities; and
(b) upon completion of construction and commissioning of the Project Facilities, operate and maintain
the Project Facilities during the O&M Period,
for the Concession Period (the Concession), and the Concessionaire hereby accepts the Concession and
agrees to implement the Project subject to and in accordance with the terms and conditions set forth herein.
The grant of the Concession set out in Clause 3.1 shall oblige or entitle the Concessionaire, as the case may
be, to the following:
(a) perform and fulfil all of the Concessionaire’s obligations under, and in accordance with, the
requirements of this Agreement;
(b) access to the Site, for the sole purpose of implementing the Project;
(c) apply for and obtain all the Concessionaire Applicable Permits required to undertake the Project;
(d) raise funds (through both debt and equity financing) to finance the Project and, if required, mortgage,
charge or create lien or encumbrance on the whole or part of the Project Facilities in accordance with
the terms of this Agreement;
(e) undertake the Pre-Construction Works in accordance with Schedule [•] (Scope of Work);
(f) design, engineer, procure, develop, construct, install, complete and commission the Project Facilities
in order to achieve the COD by the Scheduled COD;
(g) upon completion of construction of the Project Facilities, undertake the Trial Operations and
performance testing of the WtB Facility;
(h) upon successful completion of the Trial Operations and performance tests, operate and maintain the
Project Facilities for the O&M Period, either itself or through such person as may be selected by it,
provided that the ultimate obligation and responsibility for the performance of this Agreement shall
continue to vest with the Concessionaire;
(i) receive, handle and process the Acceptable Waste to produce the CBG output in accordance with the
terms of this Agreement;
(j) receive, handle and Segregate Mixed Waste up to the Maximum Permissible Mixed Waste Quantity;
31
(k) transport the Residual Inert Matter and/or Residual Waste to the Delivery Point;
(l) store, use, appropriate, dispose of or market and sell all products of the Acceptable Waste including
but not limited to the CBG Output, the By-Products and any Recyclable Materials in accordance
with Applicable Laws;
(m) with reasonable assistance from the Authority, obtain the utilities required for enabling the
construction of the Project Facilities;
(n) develop and maintain a buffer zone (including a green area) around the WtB Facility in accordance
with Applicable Laws;
(o) supply and deliver the CBG Output to the Offtaker(s) in accordance with the terms of the Offtake
Agreement(s);
(p) transfer the Site and the Project Facilities to the Authority upon the expiry of the Concession Period
or termination of this Agreement, after rectification of any defects in the Project Facilities, in
accordance with the Hand-back Conditions and the Hand-back Requirements;
(q) [receive Concessionaire Payments, subject to compliance with the terms and performance of the
obligations under this Agreement;]39
(r) [make any payments to the Authority in respect of the Royalty in accordance with the requirements
under this Agreement]40;
(s) appoint Subcontractors, agents, advisors and consultants and enter into Subcontracts to undertake
the Project, provided that subcontracts of a value above INR [•] will be executed only with the prior
approval of the Authority.
The Authority grants the Concession to the Concessionaire for a term commencing on the Execution Date
and for a period of [25 (twenty five)] years from the COD (the Concession Period) during which the
Concessionaire is authorised and obligated to implement the Project in accordance with this Agreement,
provided that:
(a) if the Concession Period is extended by the Authority in accordance with Clause 3.4 below, the
Concession Period shall include the period by which the Concession Period is so extended; and
(b) in the event of an early termination of the Agreement by either Party in accordance with the terms
of this Agreement, the Concession Period shall mean and be limited to the period commencing on
the Execution Date and ending on the date of termination of the Agreement.
The Concession Period may be extended by mutual agreement of the Parties either on the same terms and
conditions, or on modified terms and conditions. Provided that, any such mutually agreed extension of the
Concession Period shall be recorded in writing, by way of an amendment to this Agreement, by no later than
[30 (thirty)] days prior to the expiry of the Concession Period.
39 Drafting Note: Square bracketed portion to be deleted if no Grant or Processing Fee is being paid to the Concessionaire.
40 Drafting Note: Square bracketed portion to be deleted if no Royalty is being paid to the Concessionaire.
32
3.5 Re-bidding of the Project on Expiry of the Concession Period
(a) The Authority shall, at any time prior to the date of expiry of the Concession Period, have the right
to invite bids and grant a concession with respect to the WtB Facility for a period after the expiry of
the Concession Period.
(b) The Authority agrees that the Concessionaire shall have the right to participate in such competitive
bidding and make its offer in accordance with the terms of the relevant bid documents issued at the
time.
(c) During such bidding, the Concessionaire shall have a first right of refusal to match the proposal
submitted by the lowest bidder, or highest ranked bidder, as the case may be, subject to the following:
(i) the Concessionaire is otherwise eligible to participate in the bid process in accordance with
the terms of the relevant bidding documents;
(ii) the Concessionaire’s bid is within the range of plus-minus (+/-) [10% (ten per cent)] of the
lowest (or highest) evaluated bid received; and
(iii) the aggregate amounts paid by the Concessionaire to the Authority during the Concession
Period towards Liquidated Damages under the Agreement are not more than [15% (fifteen
per cent)] of the amount of the Performance Security, or, no more than [5 (five)] incidents
of a Concessionaire Event of Default have occurred during the entire Concession Period. For
the purpose of this Clause 3.5(c)(iii), the aggregate amounts of Liquidated Damages paid by
the Concessionaire to the Authority during the Concession Period shall be calculated at
present value, which shall be taken as on the Execution Date.
(d) If the successful bidder is not the Concessionaire, then the Concessionaire shall allow the core team
(consisting of maximum of four persons) of the successful bidder to enter the Site at least [30 (thirty)]
days before the date of expiry of the Concession Period to monitor work and undertake inspections
of the Project Facilities. Provided that, during such period, the Authority shall ensure that such
persons who are given access to the Site and the Project Facilities do not cause any interreference
with the operations and maintenance of the Project Facilities by the Concessionaire or any loss or
harm to the Concessionaire’s property and personnel at the Site.
33
ARTICLE 4
4.1 Effectiveness
(a) Save and except for this Article 4, Article 3 (Grant of the Concession), Clause 5.1(k) (Appointment
of Concessionaire’s Representative), Clause 5.10 (Change in Ownership), Clause 6.1(e)
(Appointment of Authority’s Representative), Article 7 (Representations and Warranties), Article 9
(Performance Security and O&M Security), Article 10 (Project Site), Article 12 (Financing Support,
Substitution Agreement and Security), Article 13 (Independent Engineer), Clause 14.1
(Commencement and Duration), Clause 14.2 (Project Execution Plan, DPR and Designs and
Drawings), Clause 14.3 (Construction Plan), Clause 14.4 (Environment and Occupational Health
and Safety Related Obligations), Clause 14.6(a) (Completion of Pre-Construction Works), Article
26 (Force Majeure), Article 32 (Change in Law), Article 34 (Dispute Resolution) and Article 35
(Miscellaneous) and the related Schedules which come into effect on the Execution Date, the rights
and obligations of the Parties under this Agreement shall come into full force and effect and be
binding on the Parties on and from the day on which all of the Conditions Precedent have been
satisfied, or waived in writing, in accordance with this Article 4 (Appointed Date) and shall continue
until such time as this Agreement expires or is terminated in accordance with its terms.
(b) For the purposes of this Clause 4.1, the date on which the notice of completion of the last Condition
Precedent specified in this Article 4 is issued by the Authority to the Concessionaire will be treated
as the Appointed Date.
The Concessionaire shall satisfy the following Conditions Precedent (if not already fulfilled on the Execution
Date):
(b) prepare the Project Execution Plan and submit the Project Execution Plan to the Authority and the
Independent Engineer for their approval in accordance with Clause 14.2(a);
(c) prepare the DPR and submit the DPR to the Authority and the Independent Engineer for their
approval in accordance with Clause 14.2(b);
(d) prepare the Construction Plan and submit the Construction Plan to the Authority and the Independent
Engineer for their approval in accordance with Clause 14.3;
(e) conduct the ESIA and submit the ESIA Report to the Authority and the Independent Engineer for
their approval in accordance with Clause 14.4(a);
(f) obtain all Concessionaire Applicable Permits that are required for achieving Financial Close and for
commencement of construction of the Project Facilities (including the environmental clearance) at
its own cost and expense and if such Concessionaire Applicable Permits are subject to any
conditions, then, to the extent relevant, comply with all such conditions, such that the Concessionaire
Applicable Permits are and shall be kept in full force and effect for the entire Construction Period,
or such longer period as may be required under Applicable Laws;
34
(g) [execute and provide a copy to the Authority of the technology license agreement(s) executed with
the Selected Bidder or the third party technology supplier for setting up the WtB Facility;]41
(h) submit to the Authority certified true copies of all resolutions adopted by the board of directors of
the Concessionaire authorising execution, delivery and performance of this Agreement, the
Substitution Agreement and the Escrow Agreement by the Concessionaire;
(i) achieve Financial Close and submit 3 (three) true copies of the Financing Documents and the
Financial Package to the Authority, duly certified by a director of the Concessionaire, along with a
soft copy of the Financial Model in MS Excel version or any substitute thereof, which is acceptable
to the Lenders, provided that the Authority shall co-operate with the Concessionaire to achieve
Financial Close, including by signing any relevant documents and providing such consents and
waivers as may be reasonably required by the Lenders for this purpose;
(j) [execute a shareholders’ agreement amongst the shareholders of the Concessionaire, and deliver to
the Authority a certified true copy of the shareholders’ agreement (attested by a director of the
Concessionaire);] 42
(k) submit to the Authority certified true copies of the constitutional documents of the Concessionaire;
(l) submit to the Authority a confirmation from the Concessionaire, in original, of the correctness of
their Representations and Warranties set out in Article 7 of this Agreement;
(m) submit to the Authority a legal opinion stating that: (i) this Agreement, the Substitution Agreement
and the Escrow Agreement have been duly executed and are legally valid, binding and enforceable
in accordance with their terms against the Concessionaire; and (ii) all actions, conditions and things
required by Applicable Laws to be taken, fulfilled and done (including the obtaining of any necessary
Concessionaire Applicable Permits and resolutions of the board of directors) in order for the
Concessionaire to enter into and comply with its obligations under this Agreement, the Substitution
Agreement and the Escrow Agreement have been taken, fulfilled or done;
(n) if [the Selected Bidder/a Member/Associate]43 has submitted unaudited annual accounts or audited
annual accounts for the Accounting Year immediately preceding the last Accounting Year along with
the Bid, the Concessionaire shall submit to the Authority: (i) a certified copy of [the Selected
Bidder’s/Member’s/Associate’s] 44 duly audited balance sheet, annual report and profit and loss
account for the latest Accounting Year occurring prior to the Bid Due Date; and (ii) certificate(s)
issued by the statutory auditor(s) stating that the [Selected Bidder/Member/Associate] 45 met the
Financial Capacity specified in the RFP as of the Bid Due Date;
(o) if [the Selected Bidder/a Member/Associate] 46 has submitted a certificate from a chartered
accountant to demonstrate that it meets the Financial Capacity specified in the RFP on the date not
more than [7 (seven)] days prior to the Bid Due Date, the Concessionaire shall submit to the
Authority: (i) audited accounts for the period for which it submitted the chartered accountant
certificate; and (ii) certificate(s) issued by the statutory auditor(s) stating that the [Selected
41 Drafting Note: To be deleted if the Selected Bidder is entering into the Concession itself (and not through an SPV).
42 Drafting Note: This Condition Precedent to be deleted if the Selected Bidder is not a consortium.
43 Drafting Note: Delete Member if the Selected Bidder is a single entity.
44 Drafting Note: Delete Member if the Selected Bidder is a single entity.
45 Drafting Note: Delete Member if the Selected Bidder is a single entity.
46 Drafting Note: Delete Member if the Selected Bidder is a single entity.
35
Bidder/Member/Associate]47 met the Financial Capacity specified in the RFP as of the Bid Due Date;
and
(p) submit to the Authority a certificate, duly attested by a director, certifying the shareholding pattern
of the Concessionaire.
The Authority shall satisfy the following Conditions Precedent (if not already fulfilled on the Execution
Date):
(a) grant the Concessionaire Right of Way to the Site, free of Encumbrances and encroachments in
accordance with Article 10;
(b) subject to Clause 4.2(b), review and approve the Project Execution Plan in accordance with Clause
14.2(a);
(c) subject to Clause 4.2(c), review and approve the DPR in accordance with Clause 14.2(b);
(d) subject to Clause 4.2(d), review and approve the Construction Plan in accordance with Clause 14.3;
(e) subject to Clause 4.2(e), review and approve the ESIA Report in accordance with Clause 14.4;
(f) obtain all approvals and consents, required for the Authority to enter into this Agreement;
(g) provide access road(s) to the Site, which are capable of being used for transportation of equipment
and material to the Site for the construction of the Project Facilities, and which are designed to
accommodate vehicles with a minimum gross weight of 40 (forty) tonnes;
(h) [open the Escrow Account and fund the Escrow Account with an amount equivalent to the Minimum
Escrow Balance;]48
(j) facilitate the Concessionaire in obtaining all Concessionaire Applicable Permits if requested by the
Concessionaire, including permits in relation to environmental protection and conservation; and
(k) ensure that any physical infrastructure required to enable the supply of electricity and water to the
Site is made available at the battery limit of the Site (as identified in Schedule [•]), provided that the
Concessionaire shall remain liable to obtain the connections for electricity and water supply and pay
for the use of such utilities.
(a) The Authority and Concessionaire shall satisfy the following Conditions Precedent (if not already
fulfilled on the Execution Date):
(i) execute the Escrow Agreement with the Escrow Bank in the form set out at Annexure [•];
36
(ii) within [60 (sixty)] days of the Execution Date, appoint the Independent Engineer in
accordance with Article 13; and
(iii) execute the Substitution Agreement with the Lenders in the form set out at Schedule [•].
(b) The Confirming Party shall satisfy the following Conditions Precedent (if not already fulfilled on
the Execution Date):
(i) execute the Substitution Agreement with the Lenders in the form set out at Schedule [•]; and
(ii) execute the Escrow Agreement with the Escrow Bank, the Authority and the Concessionaire
in the form set out at Annexure [•].
(a) Unless otherwise specified, each Party shall satisfy or procure the satisfaction of the Conditions
Precedent that it is responsible for, within [180 (one hundred and eighty)] days from the Execution
Date (the Scheduled CP Completion Date).
(b) If any Party fails to satisfy any Condition Precedent that it is required to fulfil by the Scheduled CP
Completion Date due to:
(iii) in case of the Concessionaire, delay by the relevant Government Authority in granting any
Concessionaire Applicable Permit, despite the Concessionaire having applied for such
Concessionaire Applicable Permit within the specified timelines, having paid the prescribed
fees and having complied with the requirements of Applicable Laws in making such
application; or
(iv) delay by the other Parties in fulfilling any Condition Precedent required to be satisfied by
them or in performing any other obligation under this Agreement, which impacts its ability
to satisfy its Conditions Precedent,
then the Scheduled CP Completion Date shall be extended on a day-for-day basis for the period of
such delay, provided that the Scheduled CP Completion Date shall not be extended beyond the date
which is [365 (three hundred and sixty-five)] days from the Scheduled CP Completion Date (CP
Long-stop Date).
(c) Each Party shall cooperate and use its reasonable efforts to assist the other Parties in satisfying the
Conditions Precedent.
(d) The Parties shall notify each other in writing at least once a month on the progress made in satisfying
the Conditions Precedent.
(e) Each Party shall promptly inform the other Parties when any Condition Precedent for which it is
responsible has been satisfied. The Authority shall, within [7 (seven)] days of the satisfaction of all
the Conditions Precedent in accordance with this Article 4, issue a notice to the Concessionaire in
which it shall declare the Appointed Date of the Agreement.
37
4.6 Consequences of failure to satisfy Conditions Precedent
(a) If:
(i) the Concessionaire fails to satisfy any of the Conditions Precedent that it is required to fulfil
by the Scheduled CP Completion Date, as may be extended in accordance with Clause
4.5(b), then it shall be liable to pay liquidated damages for each week of delay beyond the
Scheduled CP Completion Date at the rate of [0.2% (zero point two per cent)] of the
Performance Security up to the CP Long-stop Date. The Authority may recover such
damages from the Performance Security.
(ii) the Authority fails to satisfy any of the Conditions Precedent that it is required to fulfil by
the Scheduled CP Completion Date, as may be extended in accordance with Clause 4.5(b),
then it shall be liable to pay liquidated damages for each week of delay beyond the Scheduled
CP Completion Date at the rate of [0.2% (zero point two per cent)] of the Performance
Security, up to the CP Long-stop Date. The Authority shall pay such liquidated damages
within [30 (thirty)] days of receipt of an invoice for such liquidated damages from the
Concessionaire.
It is clarified for the avoidance of any doubt that if either the Concessionaire or the Authority fail to
satisfy any of their Conditions Precedent by the Scheduled CP Completion Date due to the
Confirming Party failing to satisfy its Condition Precedent as per Clause 4.4(b), or if both the
Concessionaire and the Authority have failed to fulfil any of their Conditions Precedent by the
Scheduled CP Completion Date (including any Conditions Precedent under Clause 4.4(a)), then
neither the Concessionaire nor the Authority shall be liable to pay liquidated damages under this
Clause 4.6.
(b) The Parties acknowledge that the damages specified in Clause 4.6(a)(i) and Clause 4.6(a)(ii) above
are a genuine pre-estimation of and reasonable compensation for the loss that shall be suffered by
the non-defaulting Party(ies) as a result of the delay in fulfilment of the Conditions Precedent and
consequently, occurrence of the Appointed Date.
(c) Subject to Clause 4.6(e), if the Concessionaire fails to satisfy any of the Conditions Precedent that it
is required to fulfil by the CP Long-stop Date and the Authority has not waived, fully or partially,
such conditions, either the Authority or the Concessionaire may terminate this Agreement forthwith
by issuing a notice to the other Parties.
(d) Subject to Clause 4.6(e), if the Authority fails to satisfy any of the Conditions Precedent that it is
required to fulfil by the CP Long-stop Date and the Concessionaire has not waived, fully or partially,
such conditions, either the Authority or the Concessionaire may terminate this Agreement forthwith
by issuing a notice to the other Parties.
(e) The Concessionaire and the Authority shall be permitted to waive or relax any Condition Precedent
required to be fulfilled by the other Party or agree to an extension of the CP Long-stop Date for
satisfaction of the Conditions Precedent required to be fulfilled by the other Party.
(f) If the Concessionaire has failed to satisfy any of the Conditions Precedent required to be satisfied by
it, other than due to the reasons set out in Clause 4.5(b) or due to the Confirming Party failing to
satisfy its Condition Precedent as per Clause 4.4(b), by the CP Long-Stop Date and this Agreement
is terminated in accordance with this Clause 4.6, then:
38
(i) the Authority shall return the Performance Security submitted by the Concessionaire after
deducting any amounts due and payable by the Concessionaire towards the liquidated
damages as per Clause 4.6(a) up to and until the date of termination of this Agreement;
(ii) the Concessionaire shall not be entitled to receive any payment or compensation from the
Authority for the costs and expenses incurred by the Concessionaire in performing any of its
obligations under this Agreement (including preparing, the Construction Plan, the Project
Execution Plan, the DPR and the ESIA Report) prior to the termination of this Agreement;
(iii) the Concessionaire shall hand over to the Authority all documents, designs, plans, data and
any Confidential Information provided by the Authority to the Concessionaire prior to
termination of this Agreement;
(iv) the Authority shall hand over to the Concessionaire the Construction Plan, the Project
Execution Plan, the DPR, the ESIA Report and any other document and Confidential
Information submitted by the Concessionaire to the Authority prior to termination of this
Agreement; and
(v) if the access to any part of the Site has been granted to the Concessionaire prior to
termination of this Agreement, then upon termination of this Agreement, the Concessionaire
shall remove all equipment, temporary works, work sheds, labour camps and all other
temporary installations on the Site, and thereafter, the Site will be deemed to automatically
vest with the Authority.
(g) If the Authority or the Confirming Party has failed to satisfy any of the Conditions Precedent required
to be satisfied by them or the Concessionaire has failed to satisfy any of the Conditions Precedent
required to be satisfied by it due to the reasons set out in Clause 4.5(b), in each case by the CP Long-
Stop Date, and this Agreement is terminated in accordance with this Clause 4.6, then:
(i) the Authority shall return the Performance Security submitted by the Concessionaire;
(ii) [the Authority shall reimburse the Concessionaire for the reasonable documented costs
incurred by the Concessionaire in preparing the Construction Plan, the Project Execution
Plan, the DPR and the ESIA Report less any liquidated damages paid by the Authority under
Clause 4.6(a), provided that such costs shall be capped at a sum no greater than [1 (one)]%
of the Total Project Cost;]
(iii) the Concessionaire shall hand over to the Authority all documents, designs, plans, data and
any Confidential Information provided by the Authority to the Concessionaire prior to
termination of this Agreement;
(iv) the Authority shall hand over to the Concessionaire the Construction Plan, the Project
Execution Plan, the DPR, the ESIA Report and any other document and Confidential
Information submitted by the Concessionaire to the Authority prior to termination of this
Agreement;
(v) the Authority shall not use any soft copies of the Construction Plan, the Project Execution
Plan, the DPR, the ESIA Report and any other document and Confidential Information
submitted by the Concessionaire to the Authority prior to termination of this Agreement,
without the prior written consent of the Concessionaire; and
39
(vi) if the access to any part of the Site has been granted to the Concessionaire prior to
termination of this Agreement, then upon termination of this Agreement, the Concessionaire
shall remove all equipment, temporary works, work sheds, labour camps and all other
temporary installations on the Site, and thereafter, the Site will be deemed to automatically
vest with the Authority.
(h) Upon termination of this Agreement pursuant to this Clause 4.6, other than to the extent specified in
this Clause 4.6, no Party shall have any liability to the other Party in connection with this Agreement.
40
ARTICLE 5
(a) at its own cost and expense, procure finance for and undertake the design, engineering, procurement,
development, construction, commissioning, operation and maintenance of the Project Facilities in a
manner that is in compliance with the Technical Specifications, Applicable Laws, the Performance
Standards, Applicable Permits, the O&M Plan, the Waste Acceptance and Rejection Plan, EMP, the
OHS Plan and Good Industry Practice;
(b) operate and maintain the Project Facilities throughout the O&M Period in a manner that is in
compliance with the Technical Specifications, Applicable Laws, the Performance Standards,
Applicable Permits, the O&M Plan, the Waste Acceptance and Rejection Plan, EMP, the OHS Plan
and Good Industry Practice;
(c) design, engineer, procure, construct, operate and maintain the Associated Infrastructure in
accordance with the requirements of this Agreement;
(d) maintain and comply with the terms and conditions of all Applicable Permits in undertaking the
construction and O&M of the Project Facilities;
(e) perform and fulfil all obligations under the Financing Documents;
(f) procure, as required, all necessary rights (including proprietary rights), licenses, agreements and
permissions for materials, methods, processes and systems used or incorporated into the Project;
(g) discharge its obligations as a reasonable and prudent person and make reasonable efforts to maintain
harmony and good industrial relations among the personnel employed by it or its Subcontractors in
connection with the performance of its obligations under the Agreement;
(h) ensure that the WtB Facility is capable of handling and processing Acceptable Waste up to its Design
Capacity on a daily basis;
(i) obtain all Applicable Permits necessary for the delivery of the CBG Output to the Offtaker in
accordance with the terms of the Offtake Agreement;
(j) procure cylinder cascades, trucks, pipelines or other appropriate vehicles and / or infrastructure that
is safe, reliable and fit for purpose in order to transport and deliver the CBG Output;
(k) within [30 (thirty)] days of the Execution Date, and in any event, prior to the commencement of any
work at the Site, appoint a Person with sufficient skill and expertise to act as the Concessionaire's
Representative. The Concessionaire's Representative shall monitor, coordinate and supervise the
completion of the Project Facilities, and liaise with Authority's Representative and the Independent
Engineer during the Concession Period. At any time during the Concession Period, the
Concessionaire may replace the Concessionaire's Representative with prior written notice to
Authority;
41
(l) provide all necessary assistance to the Independent Engineer and Authority in undertaking inspection
of the Project Facilities, and in performing its other obligations and duties under this Agreement;
(m) take all necessary measures to maintain the safety and security of personnel, material and property
at the Site and the Adjoining Properties, in accordance with the approved EMP, OHS Plan, and all
Applicable Laws;
(n) ensure that all excavated materials, earthworks, waste materials, Residual Inert Matter and hazardous
substances are stored and/or disposed in accordance with this Agreement, the EMP, OHS Plan,
Applicable Laws and Applicable Permits;
(p) provide and maintain a buffer zone around the WtB Facility;
(q) procure and maintain an adequate supply of water for the construction, operation and maintenance
of the Project Facilities;
(r) support, cooperate with and facilitate the Authority in the implementation and operation of the
Project in accordance with the provisions of this Agreement; and
(s) hand back the Project Facilities to the Authority upon expiry or early termination of this Agreement
in accordance with the Hand-back Conditions and the Hand-back Requirements.
(a) It is expressly agreed that the Concessionaire shall, at all times, be liable for all its obligations under
this Agreement notwithstanding anything contained in the Project Agreements or any other
agreement, and no default under any Project Agreement or any other agreement shall excuse the
Concessionaire from its obligations or liability under this Agreement.
(b) The Concessionaire shall submit to the Authority copies of all Project Agreements or any
amendments or replacements thereto within [15 (fifteen)] days from the date of their execution.
(c) The Concessionaire shall not make any addition, replacement or amendment to any of the Financing
Documents without the prior written consent of the Authority if such addition, replacement or
amendment has, or may have, the effect of increasing the financial liability of the Authority under
this Agreement, and in the event that any replacement or amendment is made without such consent,
the Concessionaire shall not enforce such replacement or amendment nor permit enforcement thereof
against the Authority. For the avoidance of doubt, the Authority acknowledges and agrees that it shall
not unreasonably withhold its consent for the restructuring or rescheduling of the Debt Due to the
extent that such restructuring or rescheduling does not increase the financial liability of the Authority
under this Agreement.
(d) The Concessionaire shall procure that each of the Project Agreements contains provisions that entitle
the Authority to step into such agreement, in its sole discretion, in substitution of the Concessionaire
in the event of termination or suspension (the Covenant). The Parties agree that in the event the
Authority does not exercise such rights of substitution within a period not exceeding [90 (ninety)]
days from the Hand-back Date, the Project Agreements shall be deemed to cease to be in force and
effect on the Hand-back Date without any liability whatsoever on the Authority and the Covenant
shall expressly provide for such eventuality. The Concessionaire expressly agrees to include the
42
Covenant in all its Project Agreements and undertakes that it shall, in respect of each of the Project
Agreements, procure and deliver to the Authority an acknowledgment and undertaking, in a form
acceptable to the Authority, from the counter party(ies) of each of the Project Agreements, where
under such counter party(ies) shall acknowledge and accept the Covenant and undertake to be bound
by the same and not to seek any relief or remedy whatsoever from the Authority in the event of
termination or suspension.
(e) The Concessionaire shall also procure that such Project Agreements shall also include a covenant
that all disputes arising out of such Agreements shall be settled between the Concessionaire and the
counter party(ies) and that the Authority or its advisors/contractors/consultants shall not be
impleaded in such disputes whatsoever.
The Concessionaire shall ensure optimum utilization of the Site and land available and shall not use the same
for any purpose unconnected with, or which is not incidental to the Project.
The technologies adopted for processing Acceptable Waste shall be those proposed in the Concessionaire’s
Bid submitted in response to the RFP.
The Concessionaire shall ensure that the personnel engaged by it in the performance of its obligations under
this Agreement are at all times properly trained for their respective functions.
(a) The Concessionaire agrees that the Project shall be known, promoted, displayed and advertised by
the name of "Waste to Bio-methanation Facility in [insert the location]".
(b) Notwithstanding the name of the Project set out in Clause 5.6(a), the Concessionaire shall have the
right to:
(i) brand he Project or any part thereof in any manner that advertises, displays or reflects the
name or identity of the Concessionaire or its shareholders; and
(ii) utilize the name of the Project to exhibit technical and financial capability of the
Concessionaire when bidding for other projects,
provided that, any such branding of the Project or utilization of the name of the Project is subject to
the Concessionaire expressly stating that the Project was developed on a PPP basis with the
Authority.
(a) Without prejudice to the provisions of Applicable Laws, Applicable Permits and this Agreement,
upon receiving a notice from the Authority or the Confirming Party for any information that it may
reasonably require or that it considers may be necessary to enable it to perform any of its functions,
43
the Concessionaire shall provide such information forthwith in the manner and form required by the
Authority or the Confirming Party.
(b) After receiving a notice from the Authority or the Confirming Party for comments on the accuracy
and text of any information relating to the Concessionaire’s activities under or pursuant to this
Agreement which the Authority or the Confirming Party proposes to publish, the Concessionaire
shall provide such comments in the manner and form required by the Authority or the Confirming
Party.
(a) The Concessionaire shall make timely payments for all utility services in respect of the Site, including
water, sewerage, electricity, telecommunication, internet and cable charges, etc. on its own account.
(b) The Concessionaire shall hold harmless and keep the Authority indemnified from any fine, penalty,
charges, levies, damages and losses that arise on account of any claims, suits, demands and
proceedings due to the non-payment or delayed payment of such charges.
The Concessionaire having been set up for the sole purpose of exercising the rights and observing and
performing its obligations and liabilities under this Agreement, the Concessionaire or any of its subsidiaries
shall not, except with the previous written consent of the Authority, be or become directly or indirectly
engaged, concerned or interested in any business other than as envisaged herein.
S. Name of the No. of Nature of the shares Value of the Shareholding [in
No. shareholder shares [Equity/Preference] shares held [in %]
held Rs.]
The Concessionaire represents and warrants to the Authority that no arrangements are in place that have
resulted or may result in a breach of the change in ownership restrictions set out in Clause 5.10(b) below.
(i) [The Concessionaire shall ensure that the Selected Bidder holds at least: (i) [51% (fifty one
percent)] of the total Equity Contribution and voting rights of the Concessionaire until [2
(two)] years after the COD; and (ii) [26% (twenty six percent)] of the total Equity
Contribution and voting rights of the Concessionaire during the remaining Concession
Period.]51
(i) [The Concessionaire shall ensure that Members of the Selected Bidder, being the
shareholders of the Concessionaire, comply with the following ownership restrictions:
(A) the consortium shall cumulatively hold not less than [51% (fifty one percent)] of
the total Equity Contribution and voting rights of the Concessionaire until [2
(two)] years after the COD;
(B) the Lead Member shall hold not less than [26% (twenty six percent)] of the total
Equity Contribution and voting rights of the Concessionaire until [2 (two)] years
after the COD; and
(C) the Members, whose Technical Capacity or Financial Capacity was assessed for
the purpose of qualification, shall individually hold not less than [10% (ten
percent)] of the total Equity Contribution and voting rights of the Concessionaire
until [2 (two)] years from the COD. Provided that, any Member who
demonstrated O&M experience for the purpose of qualification, shall hold not
less than [10% (ten percent)] of the total Equity Contribution and voting rights of
the Concessionaire for the Concession Period.
After the expiry of [2 (two)] years from the COD, the Lead Member and other Members can
exit the Concessionaire, subject to: (A) the Member who demonstrated O&M experience for
the purposes of qualification continuing to be part of the Concessionaire; and (B) the
cumulative shareholding of the consortium in the Concessionaire being at least [26% (twenty
six percent)] of the total Equity Contribution and voting rights of the Concessionaire during
the remaining Concession Period.]52
(ii) The Concessionaire shall ensure that the change in ownership restrictions set out in Clause
5.10(b) are incorporated in the articles of association of the Concessionaire.
52 Drafting Note: This paragraph may be deleted if the Selected Bidder is a single entity.
45
ARTICLE 6
(b) make reasonable endeavours to assist the Concessionaire in obtaining the Applicable Permits from
the relevant Government Authorities, provided that the Concessionaire has complied with all the
requirements as per Applicable Laws for applying for such Applicable Permits;
(c) grant, in a timely manner all such approvals, permissions and authorizations which the
Concessionaire may require, or is obliged to seek, from the Authority under this Agreement, in
connection with implementation of the Project and the performance of its obligations;
(d) provide reasonable assistance to the Concessionaire in obtaining permits for utilities such as power,
water, sewerage, telecommunications or any other incidental services/utilities that may be required
for the Project, including providing reasonable assistance to the Concessionaire in procuring the
water and power supply for the construction, operation and maintenance of the Project Facilities;
(e) within [30 (thirty)] days of the Execution Date, and in any event, prior to the commencement of any
construction of the Project Facilities, appoint a Person with sufficient skill and expertise to act as
Authority's Representative. The Authority's Representative shall liaise with the Concessionaire's
Representative and the Independent Engineer during the Concession Period. At any time during the
Concession Period, Authority may replace Authority’s Representative with prior written notice to
the Concessionaire;
(f) grant to the Concessionaire, Right of Way and peaceful and actual possession of the Site in
accordance with the timelines in this Agreement, provide access road(s) to the Site which are capable
of being used throughout the year (including during the monsoon season) and ensure that the
Concessionaire enjoys peaceful access to the Site;
(g) not assign, transfer, or otherwise dispose of its rights, title, and interest in the Site or create any
Encumbrance over any part of the Site, which may adversely impact the exercise of the
Concessionaire's rights and duties under this Agreement;
(h) declare and maintain, or cause to declare and maintain, a no-development zone of habitation around
the Site in accordance with Applicable Laws;
(i) make the SLF or any Alternate Disposal Location available in time to allow the Concessionaire to
deliver any Residual Inert Matter generated from the Trial Operations and operation of the WtB
Facility and any Residual Waste;
(j) cause the Independent Engineer to carry out timely inspection of the Project Facilities, and perform
its other obligations and duties under this Agreement;
46
(k) upon progressive completion of the works for the construction of the Project Facilities, inspect or
cause the Independent Engineer to inspect the works and issue the [Milestone Completion
Certificates53 / Construction Completion Certificate54] to the Concessionaire;
(l) monitor and review the operations and performance of the Project Facilities, including the obligation
to review the records and reports that the Concessionaire is required to maintain, during normal
working hours;
(m) supply adequate quantities of Acceptable Waste required by the Concessionaire for it to conduct the
Trial Operations and performance testing of the Project Facilities;
(n) engage sufficient number of C&T Contractors to ensure that it supplies the Daily Guaranteed
Acceptable Waste Quantity to the Concessionaire at the Receipt Point in accordance with the
requirements of this Agreement;
(o) ensure that the Mixed Waste delivered to the Concessionaire at the Receipt Point does not exceed
the Maximum Permissible Mixed Waste Quantity;
(p) ensure that Acceptable Waste is delivered to the Concessionaire at the Receipt Point and is not
dumped at any other place on or about the Site;
(q) ensure that any excess Acceptable Waste (i.e., Acceptable Waste which is more than the quantities
of Acceptable Waste that the Concessionaire is required to accept in accordance with Clause 18.5(e)),
which is not utilized at the WtB Facility is diverted to an alternate location; [and]
(r) ensure that no Prohibited Waste is delivered to the Concessionaire and if any Prohibited Waste is
delivered at the Site, then cause such Prohibited Waste to be promptly and safely removed from the
Site;
(s) [ensure that the Escrow Account is funded with the Minimum Escrow Balance;]55
(t) [ensure that the LC is procured and maintained in accordance with the requirements as set out in
Clause 22.6;]56 [and]
(u) [make the Grant payments, on satisfactory completion of the relevant Project Milestones in
accordance with Article 22;]57 [and]
(v) [make the Processing Fee payments, after approval of the Invoice, in accordance with Article 22.]58
(a) in case of a failure by the Authority to do so, ensure that the Escrow Account is funded with the
Minimum Escrow Balance;
53 Drafting Note: To be deleted if no Grant is payable and, therefore, there are no Project Milestones.
54 Drafting Note: To be deleted if a Grant is payable and, therefore, there are Project Milestones.
55 Drafting Note: Square bracketed portion to be deleted if no Grant or Processing Fee is being paid to the Concessionaire.
56 Drafting Note: Square bracketed portion to be deleted if no Grant or Processing Fee is being paid to the Concessionaire.
57 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire.
58 Drafting Note: Square bracketed portion to be deleted if no Processing Fee is being paid to the Concessionaire.
47
(b) provide reasonable assistance to the Concessionaire in:
(i) obtaining the Applicable Permits from the relevant Government Authorities, provided that
the Concessionaire has complied with all the requirements as per Applicable Laws for
applying for such Applicable Permits; and
(a) Without prejudice to any rights or remedies of the Authority under this Agreement or otherwise, upon
a request made by the Concessionaire to this effect, the Authority shall, in conformity with Applicable
Laws, permit and enable the Concessionaire to secure refinancing on such terms as may be agreed upon
between the Concessionaire and the entity providing such refinancing, provided that any refinancing
undertaken shall not have the effect of increasing the Authority's financial obligations under this
Agreement. Any refinancing shall be subject to the prior consent of the Authority, provided that such
consent shall not be withheld if the effect of such refinancing will not result in an increase in the
Authority's financial obligations under the Agreement.
(b) The Authority shall endeavor to convey its decision on a request for refinancing submitted by the
Concessionaire within [30 (thirty)] days of receipt of the request. For the avoidance of doubt, the tenure
of debt refinanced may be determined mutually between the Lenders and the Concessionaire, but the
repayment of the debt due shall be completed no later than [1 (one) year] prior to expiry of the
Concession Period.
48
ARTICLE 7
(a) it has full power and authority to execute, deliver and perform its obligations under this Agreement,
the Substitution Agreement, the Escrow Agreement and any other agreements required in relation
to the Project;
(b) it has taken all necessary action to authorize the execution, delivery and performance of this
Agreement, the Substitution Agreement and the Escrow Agreement; and
(c) there are no actions, suits or proceedings pending or to its best knowledge, threatened against or
affecting it before any court, administrative body or arbitral tribunal which might materially and
adversely affect its ability to meet or perform any of its obligations under this Agreement, the
Substitution Agreement or the Escrow Agreement.
(a) it is duly organized, validly existing and of good standing under the laws of India;
(b) it has the financial standing and capacity to design, finance, construct, complete, operate and
maintain the Project Facilities in accordance with this Agreement;
(c) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms, and its obligations under this Agreement will be legally valid, binding
and enforceable obligations against it in accordance with the terms hereof;
(d) 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 thereunder including any obligation,
liability or responsibility hereunder;
(e) the information furnished in the Bid of the Selected Bidder or in response to the RFP, and as updated
on or before the date of this Agreement is true and accurate in all respects as on the Execution Date;
(f) the execution, delivery and performance of this Agreement will not conflict with, result in the
breach of, constitute a default under any of the terms of its memorandum and articles of
association/charter documents or any Applicable Laws or Applicable Permits 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;
(g) 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 the GoI or [insert the relevant State Government]59
which may result in any Material Adverse Effect on its ability to perform its obligations under this
(h) it has complied with all Applicable Laws and Applicable Permits 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;
(i) the Selected Bidder [and any Member of the Selected Bidder] is duly organized and validly existing
under the laws of the jurisdiction of its incorporation, and has requested the Authority to enter into
this Agreement with the Concessionaire pursuant to LOA and has agreed to unconditionally accept
the terms and conditions set forth in this Agreement;
(j) all its rights and interests in the Project shall pass to and vest in the Authority on the Hand-back
Date free and clear of all liens, claims and Encumbrances, without any further act or deed on its
part or act of the Authority and none of the assets of the Project shall be acquired by it or be subject
to any agreement under which a security interest or other lien or Encumbrance is retained by any
person, save and except as expressly provided for in this Agreement;
(k) no sums, in cash or kind, have been paid or will be paid, by it or on its behalf, to any person by way
of fees, commission or otherwise for securing the Concession or entering into this Agreement or
for influencing or attempting to influence any officer or employee of the Authority in connection
therewith;
(l) it shall at no time undertake or permit any change in ownership except as permitted by Clause 5.10;
and
(m) no representation or warranty by it contained in this Agreement or in any other document furnished
by it to Authority, the GoI or [insert the relevant State Government]60 in relation to Applicable
Permits contains any untrue or misleading statement of material fact or omits to state a material
fact necessary to make such representation or warranty.
(a) it is duly organized, validly existing and in good standing under the laws of India;
(b) it has the financial standing and legal capacity to execute this Agreement and perform its obligations
under this Agreement;
(c) it has taken all necessary approvals to execute this and perform its obligations under this
Agreement;
(d) this Agreement constitutes legal, valid and binding obligations 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 the GoI or the [insert the relevant State
(f) it has complied with all Applicable Laws and Applicable Permits in all material respects;
(g) the Site is not subject to any mortgage, lien, charge or any other Encumbrance;
(h) it does not have any liability for any Taxes, or any interest or penalty in respect thereof, of any
nature, that may constitute a lien against the Site; and
(i) all information provided by it in the RFP and this Agreement (including the Technical
Specifications) in connection with the Project is, to the best of its knowledge and belief, true and
accurate in all material respects.
7.4 Acknowledgement
(a) The Parties acknowledge and confirm that the Parties have relied upon and have entered into this
Agreement on the basis of the representations, warranties and undertakings made by the Parties
hereunder.
(b) If any occurrence or circumstance comes to the attention of a Party that renders any of its aforesaid
representations or warranties untrue or incorrect, such Party shall immediately notify the other
Parties. Such notification shall not have the effect of remedying any breach of the representation or
warranty that has been found to be untrue or incorrect nor shall it adversely affect or waive any
obligation of a Party under this Agreement.
(c) Authority and Authority Related Parties or any of their agents or employees shall not be liable to
the Concessionaire in contract, tort, including negligence or breach of statutory duty, statute or
otherwise as a result of:
(i) any inaccuracy, omission, unfitness for any purpose or inadequacy of any kind whatsoever
in the information relating to the Project disclosed by Authority to the Concessionaire; or
(ii) any failure to make available to the Concessionaire any materials, documents, plans or other
information relating to the Project.
8. DISCLAIMER
8.1 The Concessionaire acknowledges that prior to the execution of this Agreement, the Concessionaire has, after a
complete and careful examination, made an independent evaluation of the RFP, Scope of Work, Technical
Specifications, the Site, existing structures, local conditions, physical qualities of ground, subsoil, and geology,
waste characteristics and all information provided by the Authority or obtained, procured or gathered otherwise,
and has determined to its satisfaction the accuracy or otherwise thereof and the nature and extent of difficulties,
risks and hazards as are likely to arise or may be faced by it in the course of performance of its obligations
hereunder. The Authority makes no representation whatsoever, express, implicit or otherwise, regarding the
accuracy, adequacy, correctness, reliability and/or completeness of any assessment, assumptions, statement or
information provided by it and the Concessionaire confirms that it shall have no claim whatsoever against the
Authority in this regard.
8.2 The Concessionaire acknowledges and hereby accepts the risk of inadequacy, mistake or error in or relating to
any of the matters set forth in Clause 8.1 above and hereby acknowledges and agrees that the Authority shall not
be liable for the same in any manner whatsoever to the Concessionaire, the Concessionaire Related Parties or
any person claiming through or under any of them.
8.3 The Parties agree that any mistake or error in or relating to any of the matters set forth in Clause 8.1 above shall
not vitiate this Agreement or render it voidable.
8.4 In the event that any Party becomes aware of any mistake or error relating to any of the matters set forth in Clause
8.1 above, that Party shall immediately notify the other Parties, specifying the mistake or error; provided,
however, that a failure on part of the Authority to give any notice pursuant to this Clause 8.4 shall not prejudice
the disclaimer of the Authority contained in Clause 8.1 and shall not in any manner shift to the Authority any
risks assumed by the Concessionaire pursuant to this Agreement.
8.5 Except as otherwise provided in this Agreement, all risks relating to the Project shall be borne by the
Concessionaire and the Authority shall not be liable in any manner for such risks or the consequences thereof.
52
PART III – DEVELOPMENT AND OPERATIONS
53
ARTICLE 9
9.1 The Concessionaire shall have submitted to the Authority, prior to the Execution Date, an unconditional and
irrevocable bank guarantee for an amount equal to INR [•]62 (i.e., an amount equal to [10% (ten per cent)] of the
Total Project Cost) (the Performance Security). Until the Performance Security has been submitted to the
Authority, the Bid Security shall remain in force and effect, and upon the submission of the Performance
Security, the Authority’s Representative shall release the Bid Security to the Concessionaire. Notwithstanding
anything to the contrary in this Agreement, in the event that the Performance Security is not provided by the
Concessionaire on or before the execution of this Agreement, the Authority may encash the Bid Security and
appropriate the proceeds thereof as damages, and all rights, privileges, claims and entitlements of the
Concessionaire under or arising out of the LOA shall be deemed to have been waived by, and to have ceased
with the concurrence of the Concessionaire.
9.2 The Performance Security shall remain valid for a period until [30 (thirty) days] after the COD.
9.3 To secure the performance of its obligations during the O&M Period, the Concessionaire shall be required to
submit a bank guarantee substantially in the format as the Performance Security for an amount equivalent to INR
[•]63 (i.e., an amount equal to [5% (five per cent)] of the Total Project Cost) (O&M Security) [at least 30 (thirty)
days prior to the COD]. The O&M Security may have an initial validity period of [1 (one) year], and must be
renewed on a year-on-year basis, before the expiry of the 11th (eleventh) month of the relevant year, until the
expiry of the Concession Period.
9.4 The Performance Security shall secure the due performance of the Concessionaire's obligations up to the COD
and the O&M Security shall secure the due performance of the Concessionaire's obligations from the COD till
the expiry of the Concession Period. The cost of procuring the Performance Security and the O&M Security
shall be borne solely by the Concessionaire.
9.5 If the Performance Security is scheduled to expire before the timeline mentioned in Clause 9.2, then the
Concessionaire shall arrange for an extension of the Performance Security at least [30 (thirty) days] prior to such
expiration. If the Concessionaire fails to procure such extension or replacement, the Authority shall be entitled
to drawdown the total amount available under the Performance Security and retain such amount as cash security
until such time that the Concessionaire submits an extension or replacement of the Performance Security.
9.6 If the O&M Security is not renewed by the expiry of the 11th (eleventh) month of the relevant year after the COD,
then the Authority shall be entitled to drawdown the total amount available under the O&M Security and retain
such amount as cash security until such time that the Concessionaire submits an extension or replacement of the
O&M Security.
9.7 The Authority shall be entitled to utilize such retained amount in the same manner as it would utilise the
Performance Security or the O&M Security, as the case may be.
9.8 Upon receipt of a renewed or replacement Performance Security, or O&M Security, as the case may be, the
Authority shall return the unutilized cash security amount for the Performance Security, or O&M Security, to
the Concessionaire.
62 Drafting Note: The Performance Security should be in an amount equal to [10% (ten per cent)] of the Total Project Cost (as set out in limb
(c) of the definition of Total Project Cost).
63 Drafting Note: The O&M Security should be in an amount equal to [5% (five per cent)] of the Total Project Cost (as set out in limb (c) of
9.11 The Authority shall have the right to draw on the Performance Security and claim up to the amount guaranteed
upon the Concessionaire's failure to satisfy any Condition Precedent or honour any of its obligations,
responsibilities or commitments up to the COD, or any amount due and payable by the Concessionaire to the
Authority (including any Delay Liquidated Damages and any amounts the Concessionaire is liable to pay for
breach of the indemnities under Article 33), in accordance with this Agreement.
9.12 The Authority shall have the right to draw on the O&M Security and claim up to the amount guaranteed upon
the Concessionaire's failure to honour any of its obligations, responsibilities or commitments after the COD till
the expiry of the Concession Period, or any amount due and payable by the Concessionaire to the Authority
(including any Liquidated Damages, any amounts the Concessionaire is liable to pay for breach of the
indemnities under Article 33 and any amounts the Concessionaire is liable to pay under Clause 30.2), in
accordance with this Agreement.
9.13 The Authority shall not be required to give any prior notice to the Concessionaire of its intention to make a
demand under the Performance Security or the O&M Security, as the case may be. However, the Authority shall
provide the Concessionaire with a copy of any demand notice issued by the Authority under the Performance
Security or the O&M Security, simultaneously with the issuance of the demand notice to the Scheduled Bank
that has issued the Performance Security or the O&M Security.
9.14 If the Authority makes a demand under the Performance Security or O&M Security, in part or in full, the
Concessionaire shall immediately and in no event later than [15 (fifteen)] days of such demand, restore the value
of such Performance Security or O&M Security to the amount stated in Clause 9.1 or Clause 9.3.
9.15 Within [30 (thirty)] days from the COD or the termination of this Agreement, whichever is earlier, the
Performance Security or, as the case may be, the amount retained by Authority as cash security under Clause
9.5, shall be released to the Concessionaire (after setting-off any sums payable by the Concessionaire to the
Authority), provided that, where the Agreement has not been terminated and the COD has occurred, the
Performance Security shall not be released to the Concessionaire until the O&M Security has been provided by
the Concessionaire.
9.16 Upon the expiry of the Concession Period or the termination of this Agreement, whichever is earlier, the O&M
Security or, as the case may be, the amount retained by the Authority as cash security under Clause 9.6, shall be
released to the Concessionaire (after setting-off any sums payable by the Concessionaire to the Authority) after
the expiry of [30 (thirty)] days from the date of expiry or termination of this Agreement.
55
ARTICLE 10
(a) The Site of the Project Facilities shall comprise the land as described in Schedule [•], and in respect
of which the Rights of Way shall be provided and granted by the Authority to the Concessionaire on
a leave and license basis under and in accordance with this Agreement.
(b) The Site would include (but not be limited to) the land for setting up of Project Facilities relating to
waste to bio-methanation facility and [•] etc.
(c) Without prejudice and subject to the Agreement, the ownership of the Project except the Site,
including all improvements made therein by the Concessionaire, during the Concession Period, shall
at all times remain with the Concessionaire.
(a) The Authority shall, on and from the Execution Date, grant the Concessionaire access to the Site,
along with all necessary Right of Way to enter upon the Site for conducting any site inspection and
studies that may be required for preparing the Construction Plan, the Project Execution Plan, the
DPR and conducting the ESIA.
(b) Within [•] days from the Execution Date, the Authority shall handover to the Concessionaire the
cleared and levelled Site, free of any Encumbrances and from such date, the Authority shall grant
the Concessionaire a license over the Site, along with all necessary Right of Way to enter upon,
access, and occupy the Site. Provided that, license to use the Site granted to the Concessionaire shall
always be subject to the right of the Authority and its nominated contractors to enter upon and access
the Site. The license granted to the Concessionaire shall include the exclusive right to:
(ii) design, construct and commission the Project Facilities at the Site;
(iii) operate and maintain the Project Facilities during the O&M Period;
(iv) install, operate, use, maintain, and remove such equipment, devices or other structures and
improvements on, over, or under the Site, as may be necessary or appropriate for the
operations and activities required or permitted under this Agreement;
(v) use access roads, gates, fences and utilities at or about the Site; and
(vi) construct, use, operate, maintain, replace and repair electric lines, telecommunication lines,
water supply networks and other utilities required to undertake the Project at the Site.
(c) Any charges payable for clearing and levelling the Site, granting access to the Concessionaire and
obtaining all necessary Right of Way will be paid directly by the Authority.
56
(d) The Authority shall provide the Site to the Concessionaire free of Encumbrances and encroachments.
If the Concessionaire discovers any hazardous substances at the time of handover of the Site, the
Authority will remove such hazardous substances at its own cost and expense.
(e) The Concessionaire shall not without the prior written consent or approval of Authority use the Site
for any purpose other than to undertake the Project and purposes incidental thereto, as permitted
under this Agreement or as may be otherwise approved by Authority.
(f) The full ownership and title over the Site shall, at all times during the Concession Period, vest with
the Authority.
(g) The Authority warrants that the Concessionaire shall, subject to Clause 10.1(a), occupy the Site,
from such time that access is granted to the Concessionaire and until the expiry of the Concession
Period. If the Concessionaire is obstructed by any Person claiming to be affected by the Project,
including construction of the Project Facilities at the Site or if any injunction is granted by a court
against the construction of the Project Facilities at the Site, the Authority shall, if called upon by the
Concessionaire, take appropriate actions to tackle or defend such claims and proceedings.
(h) Subject to any substitution rights exercised by the Lenders, the license and the Right of Way granted
by the Authority shall automatically terminate upon termination of this Agreement or expiry of the
Concession Period.
(a) The full ownership, rights and title to the Project Facilities constructed or installed by the
Concessionaire pursuant to this Agreement shall vest with the Concessionaire during the Concession
Period.
(b) Except as otherwise provided in this Agreement, the Concessionaire shall not:
(i) sell or create any Security over the Project Facilities or any part thereof, except in accordance
with the terms of the Financing Documents;
(ii) dispose of any assets forming part of the Project Facilities, other than for the purposes of
replacement due to normal wear and tear; or
(iii) transfer, assign or novate all of its rights and obligations under this Agreement and in
contravention of the terms of this Agreement,
without the prior written consent of the Authority (such consent not being unreasonably withheld or
delayed).
(a) The Authority has made available to the Concessionaire, the layout plans (as set out in Schedule [•]
of this Agreement) and all other relevant data, studies and reports in the Authority’s possession in
connection with the Site and the Project Facilities.
(b) The Concessionaire shall be deemed to have obtained all necessary information as to risks,
contingencies and other circumstances which may influence or affect the implementation of the
Project at the Site.
57
(c) The Concessionaire shall also be deemed to have inspected and examined the Site and its
surroundings, analysed and verified the accuracy and reliability of the studies, reports and data
provided by Authority and any other information available with respect to the Project Facilities and
the Site and to have satisfied itself as to all the relevant matters including:
(i) the nature of the Site, including the subsurface conditions, ecosystem, water table, drainage,
subsoil, the load bearing and other characteristics of the Site;
(ii) the suitability of the Site for undertaking the construction and operation of the Project
Facilities;
(iii) the adequacy of the utilities available till the battery limits of the Site;
(iv) the extent, nature and availability of labour, material, transport, accommodation, storage
facilities and other facilities and resources necessary to undertake the Project;
(v) the nature of design, construction work and O&M services necessary to perform its
obligations under this Agreement;
(vi) Applicable Laws and Applicable Permits required to be obtained and maintained to
undertake the Project;
(vii) the risk of injury or damage to Adjoining Property and to the occupiers of such property or
any other risk;
(viii) the precautions, and methods of working necessary to prevent any public nuisance; and
(ix) all other matters that may affect the performance of its obligations under this Agreement.
(d) The Concessionaire acknowledges and agrees that if any error or discrepancy is subsequently
discovered in the data made available by the Authority, then the Authority and the Concessionaire may
mutually arrive at a decision regarding any extension of [the relevant Scheduled Project Milestone
Completion Date or]64 the Scheduled COD and/or compensation for additional costs incurred due to
such error or discrepancy. Provided that, the Concessionaire shall not be entitled to any extension as
mentioned above, nor shall it be open to the Concessionaire to justify any default or delay on the ground
of the Concessionaire having not visited or acquainted itself with the Sites and Sites’ conditions in any
manner whatsoever. Further, any misinterpretation of the data, studies and reports provided by the
Authority shall not relieve the Concessionaire from the performance of its obligations under this
Agreement on the ground that it could not reasonably be expected to have foreseen any of the matters
listed in Clause 10.4(c) above, which affect or may affect the Project or the performance of any of its
obligations under this Agreement.
Without prejudice to Clause 10.4 above, if during the execution of the Project, the Concessionaire encounters
any adverse physical conditions, which could not have been reasonably foreseen by acting in accordance
with Good Industry Practices, including as a result of a failure by any contractor appointed by the Authority
to rehabilitate the Site or level the Site prior to its handover to the Concessionaire, the Concessionaire may
64 Drafting Note: Square bracketed portion to be deleted if no Grant is payable and, therefore, there are no Project Milestones.
58
seek a Variation in accordance with Clause 31.3. Upon receipt of a request for a Variation due to unforeseen
Site conditions, if, in the opinion of the Independent Engineer, such conditions could not have been
reasonably foreseen by a prudent developer acting in accordance with Good Industry Practices or if such
conditions are the result of the Authority not having fulfilled its obligations under the Agreement, in each
case as evidenced by a notice issued by the Independent Engineer to the Authority and the Concessionaire,
then Authority shall issue a Variation Order in accordance with Article 31. Any decision of Authority
regarding the existence of any unforeseen Site conditions shall be final and binding.
(a) the Concessionaire shall not transfer, alienate, assign, dispose of, sub-license or create any Security
over any part of the Site or its rights and interest in the Site, other than as specifically permitted under
this Agreement;
(b) the Concessionaire shall not allow any encroachment on, or unauthorized occupation of any part of
the Site and in the event of any encroachment or unauthorized occupation, the Concessionaire shall
immediately cause such encroachment or any unauthorized occupants to be removed from the Site.
The Concessionaire shall not be entitled to any extension of time or costs incurred in removal of any
encroachment or any unauthorized occupants from the Site where such encroachment or
unauthorized occupation occurs after the date on which the Site is handed over to the Concessionaire
in accordance with Clause 10.2(b);
(c) the Concessionaire shall not use the Site for any purpose unconnected with the Project;
(d) the grant of any rights to a Subcontractor or any other third party shall not interfere with or hinder
the performance of the Concessionaire’s obligations under this Agreement;
(e) the Concessionaire shall be wholly responsible for safety at and security of the Site and the Project
Facilities;
(f) the Concessionaire shall take all necessary measures to confine its operations, personnel and
equipment to the Site and not encroach on any Adjoining Property;
(g) all minerals, fossils, articles of value or antiquity, structures and other remains or things of geological
or archaeological interest and other objects with historic, antique or monetary value discovered at,
on or under the Site shall be dealt with in accordance with Applicable Laws and the Concessionaire
shall take all necessary precautions to prevent its or its Subcontractor’s personnel from removing or
damaging any such article or thing. Further, immediately upon the discovery of any such article or
thing of value, the Concessionaire shall inform the Authority of such discovery and carry out the
instructions of the Authority in this regard;
(h) the Concessionaire shall make good any damage to any roads, footpaths, conduits, and other works
on any Adjoining Property, which is caused by the Concessionaire or the Concessionaire Related
Parties; and
(i) the Concessionaire shall use all reasonable endeavours not to do or permit to be done anything which
might:
(i) cause destruction, scarring or defacing of natural surroundings in the vicinity of the Site;
59
(ii) be or become a danger or nuisance or give rise to liability in tort to any owners or occupiers
of the Adjoining Property or to members of the public; or
and the Concessionaire shall, at its own expense, take all reasonable measures and precautions to
avoid any such danger, nuisance, tort, damage or interference and shall make good any damage so
caused.
If the construction works and/or the O&M services cannot be carried out without interfering with the
rights of the owner or occupier of any Adjoining Property, the Concessionaire shall promptly and at
its own cost obtain all necessary third party consents and/or the approval of any Government
Authority to undertake such construction works and/or the O&M services. The Authority shall
provide all assistance to the Concessionaire for procuring such approvals.
The Concessionaire shall ensure that the Authority Related Parties and relevant Government Authorities have
access to the Site and the license granted to the Concessionaire over the Site shall always be subject to:
(a) the rights of the Authority, the Authority’s Representative, other Authority Related Parties, and the
Independent Engineer to enter upon and access the Site to inspect and monitor the progress of the
Project, and for the exercise of their rights and the performance of their obligations under this
Agreement, provided that the Authority shall ensure that the exercise of the inspection or monitoring
rights do not impede or obstruct the construction and/or operation of the Project Facilities in any
manner whatsoever; and
(b) the rights of the Government Authorities or other utility providers to enter upon and access the Site
for laying or installing telegraph lines, electric lines or for any other public purpose.
If any physical damage is caused to the Site or the Project Facilities as a result of such access and use of the
Site by the Authority, the Independent Engineer, the Authority Related Parties or Government Authorities,
then the Authority shall bear the costs of remedying such damage and restoring the Site and the Project
Facilities.
60
ARTICLE 11
The Concessionaire shall ensure that the respective entities owning the existing roads, right of way or utilities
on, under or above the Site are enabled by it to keep such utilities in continuous satisfactory use, if necessary,
by providing suitable temporary or permanent diversions with the Authority as the controlling body of such
road, right of way or utility, and the Authority shall, upon written request from the Concessionaire, initiate
and undertake at the Concessionaire‘s cost, legal proceedings for acquisition of any right of way necessary
for such diversion.
The Authority (depending on the respective jurisdiction) shall, subject to Applicable Laws, undertake the
shifting of any utility at its own cost including electric lines, water pipes and telephone cables, to an
appropriate location or alignment within or outside the Site if and to the extent that such utility causes or
shall cause a Material Adverse Effect on the construction, operation or maintenance of the Project.
(a) The Concessionaire shall obtain install and maintain at its cost, all utilities necessary for undertaking
the construction of the Project Facilities, including all temporary power and water connections,
lighting facilities, telephone connections, internet connections, etc. at the Site, provided that, the
Authority shall ensure that any physical infrastructure required to enable the supply of electricity and
water to the Site is made available at the battery limit of the Site (as identified in Schedule [•]).
(b) The Concessionaire shall allow, subject to such conditions as the Authority may specify, access to,
and use of the Site for laying telephone lines, water pipes, electric cables or other public utilities.
Where such access or use causes any financial loss to the Concessionaire, it may require the user of
the Site to pay compensation or damages as per Applicable Laws.
(c) The Concessionaire shall not be entitled to any extension of time or costs or in any other manner be
relieved from the performance of its obligations in relation to Project Facilities to comply with its
obligations under Clause 11.1, 11.3(a) and 11.3(b) above.
(d) The Authority shall provide any reasonable assistance required by the Concessionaire to obtain the
utilities for the construction of the Project Facilities.
The Authority shall assist the Concessionaire in obtaining Applicable Permits for felling of any trees
identified by the Concessionaire if such trees cause a Material Adverse Effect on the construction and O&M
of the Project. The cost of such felling shall be borne by the Authority, and in the event of any delay in felling
of the trees for reasons beyond the control of the Concessionaire, it shall be excused for failure to perform
any of its obligations under this Agreement if such failure is a direct consequence of delay in the felling of
trees. For the avoidance of doubt, the Parties agree that the felled trees shall be deemed to be owned by the
Authority and shall be disposed in such manner and subject to such conditions as the Authority may in its
sole discretion deem appropriate.
61
ARTICLE 12
The Parties acknowledge that for the purposes of implementing the Project, the Concessionaire may require
Financial Assistance from the Lenders. To this end, the Authority shall co-operate with the Concessionaire
to achieve Financial Close, including by signing any relevant documents and providing such consents and
waivers as may be reasonably required by the Lenders.
(a) This Agreement shall not be assigned by the Concessionaire, provided that, subject to the provisions
of this Agreement, the Lenders may be given the right of substitution by execution of the Substitution
Agreement.
(b) In case of a Concessionaire Event of Default and if a Substitution Agreement has been entered into,
the Authority acknowledges that the Lenders will have a right to substitute the Concessionaire in
accordance with Clause 28.2 and the Substitution Agreement. The Authority will suspend its right to
step-in or terminate this Agreement until the expiry of the period available to the Lenders to exercise
their substitution rights under Clause 28.2.
(a) The Concessionaire shall be entitled to create Security over all of its rights, title and interests in and
to the Concession Agreement and the Escrow Agreement in favour of the Lenders for the purpose of
obtaining Financial Assistance for the Project, provided that the creation of such Security will not
result in any financial liability to the Authority.
(b) The Concessionaire shall be entitled to include the Lenders as co-insured and/or additional loss
payees in any of the insurances taken by the Concessionaire in accordance with Article 25 and/or
grant Security over the proceeds of such insurance.
(c) The Concessionaire shall be entitled to create Security over the Project Facilities in favour of the
Lenders for the purpose of obtaining Financial Assistance for the Project.
(d) The Concessionaire shall not be entitled to create any Security over the Site or any part thereof
whether in favour of the Lenders or any third Persons.
62
ARTICLE 13
13.1 Procedure for appointment and duties and functions of the Independent Engineer
(a) Within [90 (ninety) days] of the Execution Date, the Authority and the Concessionaire shall jointly
appoint an appropriately qualified Person as the Independent Engineer. The initial term of appointment
of the Independent Engineer will be for a period of [3 (three)] years, which can be renewed on a year-
on-year basis as mutually agreed between the Authority and the Concessionaire. The procedure for
appointment, replacement and the scope of work of the Independent Engineer is set out at Schedule [•].
(b) In appointing any replacement of the Independent Engineer, Authority and the Concessionaire shall
comply with this Article 13 and Schedule [•].
(c) The Authority shall ensure that a copy of this Agreement is annexed to the appointment letter of the
Independent Engineer highlighting all the rights and obligations of the Independent Engineer. The
appointment letter signed and returned by the Independent Engineer shall acknowledge acceptance of
its rights and obligations set out in this Agreement.
(d) The Independent Engineer shall be required to act independently, reasonably, fairly and expeditiously
to ensure: (a) the timely completion of construction of the Project Facilities in accordance with the
timelines prescribed in this Agreement; and (b) compliance with the KPIs and other O&M obligations
of the Concessionaire after the COD.
(e) The Independent Engineer shall inspect the Project Facilities at least once a month and prepare
inspection reports, setting out the progress of the, construction and operation of the Project Facilities,
defects or deficiencies, if any, and status of compliance with the Construction Plan, the Project
Execution Plan, the DPR, Technical Specifications, Designs and Drawings, EMP, OHS Plan, Waste
Acceptance and Rejection Plan, ESIA Report, Subcontractor management plan, O&M Plan, and KPIs.
The Independent Engineer shall send monthly inspection reports to the Authority.
(f) The Independent Engineer shall at all times during the Concession Period have the right to enter upon
and access the Site to carry out any inspections or to attend meetings or discussions at the Site, in
accordance with its scope of work and responsibilities. The Concessionaire shall have the right to
accompany the Independent Engineer during its inspection of the Project Facilities.
(g) The Independent Engineer shall, at all times, have the right to attend any meetings held by the
Concessionaire to review the progress of the construction or O&M of the Project Facilities, and to
provide its comments/suggestions regarding the progress as well as the manner in which the
construction works or O&M services is being undertaken. Neither any comments/suggestions provided
by the Independent Engineer nor any failure to provide comments/suggestions shall be deemed to be
an acceptance of the construction works or the O&M services or a waiver of the Concessionaire's
obligations to implement the Project, in accordance with this Agreement, the Technical Specifications,
the Designs and Drawings, the EMP, OHS Plan, ESIA Report, Subcontractor management plan, the
O&M Plan and all Applicable Laws and Applicable Permits.
(h) Except as specifically provided in this Agreement, the Independent Engineer shall have no authority,
whether express or implied, to amend, vary or curtail any of the rights or obligations of the Parties.
63
(i) The Concessionaire agrees that notwithstanding any review by the Independent Engineer of any or all
of the construction works or O&M services, the Concessionaire shall bear all risk, responsibility and
liability for the quality, adequacy and suitability of the Project Facilities and its compliance with the
terms of this Agreement.
All fees, costs, charges, and expenses payable to the Independent Engineer shall be agreed in advance of its
appointment and shall be equally shared by the Authority and the Concessionaire. Such amounts shall be
paid to the Independent Engineer by the Authority. [The Authority shall then deduct the Concessionaire's
part of the payment made to the Independent Engineer from amounts due to the Concessionaire under this
Agreement.]65
(a) The Authority and the Concessionaire may mutually decide to replace the Independent Engineer in any
of the following circumstances:
(i) if either of them has a reason to believe that the Independent Engineer has not discharged its
duties in accordance with the terms of this Agreement;
(ii) if they decide not to renew the appointment of the Independent Engineer; or
(iii) if the Independent Engineer tenders its resignation in accordance with the terms of its
appointment letter.
(b) In the event that the appointment of the Independent Engineer is terminated hereunder, the Authority
and the Concessionaire shall appoint forthwith another Independent Engineer in accordance with
Clause 13.1.
The Authority shall require the Independent Engineer to designate and notify to the Authority and the
Concessionaire up to [2 (two)] persons employed in its firm to sign for and on behalf of the Independent
Engineer, and any communication or document required to be signed by the Independent Engineer shall be
valid and effective only if signed by any of the designated persons, provided that the Independent Engineer
may, by notice in writing, substitute any of the designated persons by any of its employees.
65Drafting Note: In cases where no payments are due from the Authority to the Concessionaire under this Agreement, replace the square
bracketed portion with: "The Authority shall raise an invoice on the Concessionaire for the payment of its share of the Independent Engineer's
fees, and the Concessionaire shall make such payments to the Authority within [30 (thirty) days] from the date of receipt of the invoice."
64
ARTICLE 14
The period for construction of the Project Facilities shall commence on and from the Appointed Date and
shall continue until the COD (the Construction Period).
Notwithstanding anything to the contrary in this Agreement, the Concessionaire shall, prior to the Appointed
Date, be entitled to commence:
(c) appointment of Subcontractors for the construction works for the Project Facilities, with the prior
approval of the Authority.
(i) Within [2 (two)] months from the Execution Date, the Concessionaire shall prepare and submit
to the Authority and the Independent Engineer a Project Execution in accordance with the
requirements set out in Schedule [•]. The Project Execution Plan shall include details of the
execution strategy for the Project, manpower deployment, environment, health and safety
standards, estimated timelines for procurement of equipment and materials and construction
of the Project and a Site mobilization plan.
(ii) The Authority and the Independent Engineer shall review and provide comments, if any, on
the draft Project Execution Plan to the Concessionaire, or notify the Concessionaire of their
approval of the draft Project Execution Plan, within [60 (sixty)] days from the date of receipt
of the draft Project Execution Plan from the Concessionaire. The Authority may require the
Concessionaire to amend or modify the draft Project Execution Plan if the Authority or the
Independent Engineer identifies any deficiencies or shortcomings in the draft Project
Execution Plan. If the Concessionaire receives any comments, suggestions or instructions to
modify the draft Project Execution Plan (including any plan included within the Project
Execution Plan) from the Authority or the Independent Engineer, then the Concessionaire shall
incorporate the suggestions made by the Authority and the Independent Engineer and modify
the draft Project Execution Plan to address any such comments, shortcomings or deficiencies
identified by the Authority and the Independent Engineer. Thereafter, the Concessionaire shall
submit the revised Project Execution Plan to the Authority and the Independent Engineer for
their approval. The process set out in this Clause 14.2(a)(ii) shall continue until the Project
Execution Plan is approved by the Authority and the Independent Engineer in accordance with
this Clause 14.2(a)(ii). Within [7 (seven)] days from the approval of the Project Execution
Plan, the Concessionaire shall submit [4 (four)] hard copies and [1 (one)] soft copy on a USB
drive of the Project Execution Plan to the Authority.
(iii) The Concessionaire shall design, engineer and construct the Project Facilities strictly in
accordance with the approved Project Execution Plan. The Concessionaire shall not deviate
65
from or make any subsequent modification or amendment to the approved Project Execution
Plan without the prior written approval of the Authority. Provided that, the Authority shall not
unreasonably withhold such approval if the proposed modification or amendment to the
Project Execution Plan does not result in an extension of the Scheduled COD. The
Concessionaire shall not commence construction of any part of the Project Facilities prior to
approval of the Project Execution Plan in accordance with this Clause 14.2(a).
(iv) Notwithstanding any approval of the Project Execution Plan by the Authority, the
Concessionaire shall, subject to Clause 14.7(b), be solely liable for achieving the COD by the
Scheduled COD. Subject to Clause 14.7(b), the Concessionaire shall not be entitled to any
extension of time and/or costs incurred in the preparation of the Project Execution Plan and
complying with the requirements of this Clause 14.2(a).
(i) Within [4 (four)] months from the Execution Date, the Concessionaire shall prepare and submit
to the Authority and the Independent Engineer a DPR in accordance with the requirements set
out in Schedule [•]. The DPR shall include details of the Proposed Technology, mass and
energy balances, tentative equipment list, demand assessment, technical feasibility, process
flow diagrams, piping/process & instrumentation diagram, order of magnitude costs and
detailed cost estimates, capital investment plan, project financing details, revenue
projections and financial analysis.
(ii) The Authority and the Independent Engineer shall review and provide comments, if any, on
the draft DPR to the Concessionaire or notify the Concessionaire of their approval of the draft
DPR within [60 (sixty)] days from the date of receipt of the draft DPR from the Concessionaire.
The Authority may require the Concessionaire to amend or modify the draft DPR if the
Authority or the Independent Engineer identifies any deficiencies or shortcomings in the draft
DPR. If the Concessionaire receives any comments, suggestions or instructions to modify the
draft DPR (including any plan included within the DPR) from the Authority or the Independent
Engineer, then the Concessionaire shall incorporate the suggestions made by the Authority and
the Independent Engineer and modify the draft DPR to address any such comments,
shortcomings or deficiencies identified by the Authority and the Independent Engineer.
Thereafter, the Concessionaire shall submit the revised DPR to the Authority and the
Independent Engineer for their approval. The process set out in this Clause 14.2(b)(ii) shall
continue until the DPR is approved by the Authority and the Independent Engineer in
accordance with this Clause 14.2(b)(ii). Within [7 (seven)] days from the approval of the DPR,
the Concessionaire shall submit [4 (four)] hard copies and [1 (one)] soft copy on a USB drive
of the DPR to the Authority.
(iii) The Concessionaire shall design, engineer and construct the Project Facilities strictly in
accordance with the approved DPR. The Concessionaire shall not deviate from or make any
subsequent modification or amendment to the approved DPR without the prior written
approval of the Authority. Provided that the Authority shall not unreasonably withhold such
approval if the proposed modification or amendment to the DPR does not result in an extension
of the Scheduled COD. The Concessionaire shall not commence construction of any part of
the Project Facilities prior to approval of the DPR in accordance with this Clause 14.2(b).
(iv) Notwithstanding any approval of the DPR by the Authority, the Concessionaire shall, subject
to Clause 14.7(b), be solely liable for achieving the COD by the Scheduled COD. Subject to
Clause 14.7(b), the Concessionaire shall not be entitled to any extension of time and/or costs
66
incurred in the preparation of the DPR and complying with the requirements of this Clause
14.2(b).
(i) The Concessionaire shall prepare the Designs and Drawings in accordance with the Technical
Specifications, Applicable Laws and Applicable Permits. The Designs and Drawings shall be
drawn to scale, with accurate dimensions, to minimize construction delays, disputes and cost
overruns and to ensure smooth development of the Project Facilities. The Project Facilities
should be designed in a manner such that the Concessionaire can obtain an environmental
clearance for the WtB Facility, an authorisation under the SWM Rules for setting up the WtB
Facility and a consent to operate for the operation of the Project Facilities.
(ii) Within [•] months from the Appointed Date, the Concessionaire shall submit [4 (four)] hard
copies and [1 (one)] soft copy on a USB drive of the draft Designs and Drawings to the
Authority and the Independent Engineer for their review and approval. By submitting the
Designs and Drawings for review to the Authority and the Independent Engineer, the
Concessionaire shall be deemed to have represented that it has determined and verified that
the Designs and Drawings, including the field construction criteria related thereto, are in
conformity with the Technical Specifications, Applicable Laws and Good Industry Practice.
(iii) The Authority and the Independent Engineer shall provide comments if any, on the draft
Designs and Drawings to the Concessionaire or notify the Concessionaire of their approval of
the draft Designs and Drawings within [60 (sixty)] days from the date of receipt of the draft
Designs and Drawings. The Authority may require the Concessionaire to amend or modify
the draft Designs and Drawings if the Authority or the Independent Engineer identifies any
deficiencies, inaccuracies or shortcomings in the draft Designs and Drawings. If the
Concessionaire receives any comments, suggestions or instructions to modify the draft
Designs and Drawings from the Authority or the Independent Engineer, then the
Concessionaire shall modify the draft Designs and Drawings to correct any such
shortcomings, inaccuracies or deficiencies and/or address, in writing, the Authority’s/the
Independent Engineer's comments on the draft Designs and Drawings and submit the revised
Designs and Drawings to the Authority and the Independent Engineer for their approval within
[30 (thirty)] days of receipt of comments. The process set out in this Clause 14.2(c)(iii) shall
continue until the Designs and Drawings are approved by Authority and the Independent
Engineer in accordance with this Clause 14.2(c)(iii).
(iv) Within [7 (seven)] days from the approval of the Designs and Drawings, the Concessionaire
shall submit [4 (four)] hard copies and [1 (one)] soft copy on a USB drive of the final Designs
and Drawings to the Authority.
(v) The Concessionaire shall construct the Project Facilities strictly in accordance with the
approved Designs and Drawings. If there are any errors or deficiencies in the Technical
Specifications, the Designs and Drawings shall take into account, address or rectify such errors
or deficiencies. The Concessionaire shall not deviate from or make any subsequent
modification or amendment to the approved Designs and Drawings without the prior written
approval of the Authority. The Concessionaire shall not commence construction of any part of
the Project Facilities prior to approval of the Designs and Drawings in accordance with this
Clause 14.2. If the Concessionaire undertakes any construction work for the Project Facilities
prior to the approval of the Designs and Drawings, it shall do so at its own risk and the
67
Authority shall have the right to reject any such construction work that does not comply with
the approved Designs and Drawings.
(vi) Notwithstanding any approval of the Designs and Drawings by the Authority and the
Independent Engineer, the Concessionaire shall bear all risk, responsibility and liability for the
suitability, accuracy, adequacy and practicality of the Designs and Drawings. Subject to Clause
14.7(b), the Concessionaire shall not be entitled to any extension of time and/or costs incurred
in the preparation of the Designs and Drawings and complying with the requirements of this
Clause 14.2.
(i) The Concessionaire shall design and develop the WtB Facility on the basis of the Proposed
Technology, approved by the Authority as part of the Designs and Drawings.
(ii) [If the Selected Bidder is the owner of the Proposed Technology, then the Concessionaire shall
enter into a technology license agreement with the Selected Bidder, under which the Selected
Bidder will grant to the Concessionaire an irrevocable, perpetual, assignable, non-exclusive
and royalty-free license to use the Proposed Technology to develop and operate the WtB
Facility.]66
(iii) If the Selected Bidder does not own the Proposed Technology, then the Concessionaire shall,
at its own cost, enter into a technology license agreement with the technology provider, under
which the technology provider will grant to the Concessionaire an irrevocable, perpetual,
assignable and royalty-free license to use the Proposed Technology. At no point will the
Authority be obliged to make any payments to the Concessionaire towards the licensing and
use of the Proposed Technology.
(iv) Upon the expiry or early termination of this Agreement, the Concessionaire shall assign the
license and related rights to use the Proposed Technology for the sole purpose of operating and
maintaining the WtB Facility to the Authority at no additional cost to the Authority.
(v) The Concessionaire shall indemnify the Authority for any claims, losses, damages and costs
suffered by the Authority as a result of an infringement of any third party's Intellectual Property
Rights caused by the operation and use of the Project Facilities.
(vi) The Concessionaire shall be permitted to undertake any upgradation or augmentation of the
Proposed Technology with the prior approval of the Authority, provided that, such upgradation
or augmentation is at no additional cost to the Authority and does not, in any manner, increase
the financial liability of the Authority under this Agreement. If such upgradation or
augmentation of the Proposed Technology requires the Authority to bear any additional costs,
or increases the Authorities financial liability under this Agreement in any manner, the
Concessionaire may seek a Variation in accordance with Article 31.
(a) Within [4 (four)] months from the Execution Date, the Concessionaire shall prepare and submit to
the Authority a detailed Construction Plan. The Construction Plan shall be prepared in accordance
with the requirements set out in Schedule [•] and must include:
66Drafting Note: To be deleted if the Selected Bidder has not incorporated the Concessionaire prior to execution of the Agreement and is
entering into the Agreement itself.
68
(i) [the 4 (four) proposed Project Milestones for disbursement of the Grant and the specific
activities to be performed by the Concessionaire to achieve the Project Milestones]67;
(ii) the detailed plan for completing the construction of the Project Facilities in order to [complete
the Project Milestones by the Scheduled Project Milestone Completion Date and]68 achieve
the COD by the Scheduled COD;
(iii) a quality assurance plan setting out the activities and actions, proposed to be undertaken and
the construction materials, equipment, and machinery to be used for the construction of the
Project Facilities to ensure that the Project Facilities comply with the requirements of the
Technical Specifications and Applicable Laws; and
(iv) an emergency response plan setting out in detail the procedures to be followed by the
Concessionaire, its Sub-Contractors, agents and employees upon the occurrence of an
Emergency.
(b) The Authority and the Independent Engineer shall review and provide comments, if any, on the draft
Construction Plan to the Concessionaire or notify the Concessionaire of their approval of the draft
Construction Plan within [60 (sixty)] days from the date of receipt of the draft Construction Plan
from the Concessionaire. The Authority may require the Concessionaire to amend or modify the draft
Construction Plan if the Authority or the Independent Engineer identifies any deficiencies or
shortcomings in the draft Construction Plan. If the Concessionaire receives any comments,
suggestions or instructions to modify the draft Construction Plan (including any plan included within
the Construction Plan) from the Authority or the Independent Engineer, then the Concessionaire shall
incorporate the suggestions made by the Authority and the Independent Engineer and modify the
draft Construction Plan to address any such comments, shortcomings or deficiencies identified by
the Authority and the Independent Engineer. Thereafter, the Concessionaire shall submit the revised
Construction Plan to the Authority and the Independent Engineer for their approval. The process set
out in this Clause 14.3(b) shall continue until the Construction Plan is approved by the Authority and
the Independent Engineer in accordance with this Clause 14.3(b). Within [7 (seven)] days from the
approval of the Construction Plan, the Concessionaire shall submit [4 (four)] hard copies and [1 (one)]
soft copy on a USB drive of the Construction Plan to the Authority.
(c) The Concessionaire shall construct the Project Facilities strictly in accordance with the approved
Construction Plan. The Concessionaire shall not deviate from or make any subsequent modification
or amendment to the approved Construction Plan without the prior written approval of the Authority.
Provided that the Authority shall not unreasonably withhold such approval if the proposed
modification or amendment to the Construction Plan does not result in an extension of the Scheduled
COD. The Concessionaire shall not commence construction of any part of the Project Facilities prior
to approval of the Construction Plan in accordance with this Clause 14.3.
(d) Notwithstanding any approval of the Construction Plan by the Authority, the Concessionaire shall,
subject to Clause 14.7(b), be solely liable for achieving the COD by the Scheduled COD. Subject to
Clause 14.7(b), the Concessionaire shall not be entitled to any extension of time and/or costs incurred
in the preparation of the Construction Plan and complying with the requirements of this Clause 14.3.
(e) If, after completing the Pre-Construction Works, the Concessionaire is of the view that the
Construction Plan approved under this Clause 14.3 needs to be amended or modified in any way so
67 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
68 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
69
as to incorporate any learnings from the Pre-Construction Works, it shall revise the Construction
Plan and submit it to the Authority and the Independent Engineer and the process set out in Clause
14.3(b) shall follow for approval of the revised Construction Plan. Within [7 (seven)] days from the
approval of the revised Construction Plan, the Concessionaire shall submit [4 (four)] hard copies and
[1 (one)] soft copy on a USB drive of the Construction Plan to the Authority.
(a) Within [30 (thirty)] days from the Execution Date, the Concessionaire shall commence the ESIA, to
identify potential environmental and social risks and impacts arising from the Project, in accordance
with the terms of reference prepared by the Concessionaire, and approved by the Authority, Applicable
Laws, the Performance Standards, Applicable Permits and Good Industry Practices. As part of the
ESIA, the Concessionaire shall establish a baseline measurement for all environmental and social
aspects considered relevant to the Project, which will serve as a reference for comparison with any
existing environmental or social impact of the Project. The Concessionaire shall submit a draft ESIA
Report to the Authority and the Independent Engineer within [12 (twelve)] months from the Execution
Date. The Authority and the Independent Engineer shall review and provide comments, if any, on the
draft ESIA Report to the Concessionaire or notify the Concessionaire of their approval of the draft
ESIA Report within [30 (thirty)] days from the date of receipt of the draft ESIA Report from the
Concessionaire. The Authority may require the Concessionaire to amend or modify the draft ESIA
Report if the Authority or the Independent Engineer identifies any deficiencies or shortcomings in the
draft ESIA Report. If the Concessionaire receives any comments, suggestions or instructions to modify
the draft ESIA Report from the Authority or the Independent Engineer, then the Concessionaire shall
incorporate the suggestions made by the Authority and the Independent Engineer and modify the draft
ESIA Report to address any such comments, shortcomings or deficiencies identified by the Authority
and the Independent Engineer. Thereafter, the Concessionaire shall submit the revised ESIA Report to
the Authority and the Independent Engineer for their approval. The process set out in this Clause 14.4(a)
shall continue until the ESIA Report is approved by the Authority and the Independent Engineer in
accordance with this Clause 14.4(a). Within [7 (seven)] days from the approval of the ESIA Report, the
Concessionaire shall submit [4 (four)] hard copies and [1 (one)] soft copy on a USB drive of the ESIA
Report to the Authority.
(b) Based on the approved ESIA Report, the Concessionaire shall prepare and submit a detailed EMP to
the Authority and the Independent Engineer within [30 (thirty)] days after the approval of the ESIA
Report in accordance with Clause 14.4(a) above.
(c) The EMP shall set out the environment policies, guidelines and procedures to be followed by the
Concessionaire in undertaking the Project in accordance with the approved ESIA Report, Applicable
Laws, Applicable Permits, the Technical Specifications and Good Industry Practices. The details set
out in the EMP will include (i) measures to mitigate the environmental impact of construction and
operations of the Project Facilities as identified through the ESIA; and (ii) details of the stakeholder
communications plan to be developed, implemented and maintained by the Concessionaire, as set out
in Schedule [•].
(d) The Concessionaire shall also, within [•] months from the Appointed Date, develop an OHS Plan,
which sets out the health and safety policies, guidelines and procedures to be followed by the
Concessionaire in undertaking the Project and shall include a comprehensive Site safety assurance plan
developed in accordance with the approved ESIA Report, Applicable Laws, Applicable Permits, the
Technical Specifications and Good Industry Practices.
70
(e) The Authority and the Independent Engineer shall provide comments, if any, on the draft EMP and
OHS Plan to the Concessionaire or notify the Concessionaire of their approval of the draft EMP and
OHS Plan within [60 (sixty)] days from the date of receipt of the draft EMP and OHS Plan from the
Concessionaire. The Authority may require the Concessionaire to amend or modify the draft EMP
and/or OHS Plan if the Authority or the Independent Engineer identifies any deficiencies or
shortcomings in the draft EMP and/or OHS Plan. If the Concessionaire receives any comments,
suggestions or instructions to modify the draft EMP and/or OHS Plan from the Authority or the
Independent Engineer, then the Concessionaire shall modify the EMP and/or OHS Plan to address any
such comments, shortcomings or deficiencies identified by the Authority or the Independent Engineer.
Thereafter, the Concessionaire shall submit the revised EMP and/or OHS Plan to the Authority and the
Independent Engineer for their approval. The process set out in this Clause 14.4(e) shall continue until
the EMP and OHS Plan are approved by the Authority and the Independent Engineer in accordance
with this Clause 14.4(e). Provided that, if the Authority or the Independent Engineer fail to approve the
EMP and/or OHS Plan at least [30 (thirty)] days prior to the Scheduled COD, then the delay in approval
of the EMP and/or OHS Plan shall not prevent the Concessionaire from obtaining the COD Certificate
and commencing commercial operations in accordance with Clause 17.1. Provided further that, if the
Authority or Independent Engineer revert with comments, modifications or suggestions on the draft
EMP and/or OHS Plan after the COD, the Concessionaire shall be required to respond to or incorporate
such modifications in accordance with this Clause 14.4(e), and any additional costs incurred by the
Concessionaire in accepting such modifications shall be to the Authority’s account. Within [7 (seven)]
days from the approval of the EMP and OHS Plan, the Concessionaire shall submit [4 (four)] hard
copies and [1 (one)] soft copy on a USB drive of the EMP and OHS Plan to Authority.
(f) The Concessionaire shall, and shall ensure that its Subcontractors also, comply and conform with all
aspects of the EMP and OHS Plan, approved in accordance with this Clause 14.4, in executing the
Project. Any failure of the Concessionaire or the Subcontractors to comply with the EMP or OHS Plan
shall constitute a Concessionaire Event of Default. The Concessionaire shall indemnify the Authority
against all costs, expenses, penalties and liabilities incurred/suffered by the Authority due to the
Concessionaire’s or any Subcontractor’s failure to comply with the EMP or OHS Plan in the course of
execution of the Project. The Concessionaire shall not deviate from or make any subsequent
modification or amendment to the approved EMP or OHS Plan without the prior written approval of
the Authority.
(g) Neither any approval of the EMP and OHS Plan by the Authority, nor any failure to review and provide
comments on the EMP or OHS Plan shall excuse any failure by the Concessionaire or any
Subcontractor to adopt proper and recognized safety and environment friendly practices during the
execution of the Project. The Concessionaire shall bear all risk, responsibility and liability for the
accuracy and adequacy of the final EMP or OHS Plan in ensuring compliance with all Applicable Laws,
the Performance Standards, Applicable Permits and Good Industry Practices in the execution of the
Project. Subject to Clause 14.7(b) and 14.4(e), the Concessionaire shall not be entitled to any extension
of time and/or costs incurred in preparation of the EMP or OHS Plan and complying with the
requirements of this Clause 14.4.
(h) [The Authority shall, within [•] months of the Execution Date, undertake and complete a biodiversity
assessment plan near the Site in order to identify potential risks and mitigation measures to be adopted
by the Concessionaire to reduce the impact of the construction and O&M of the Project Facilities on
plants, vegetation and animal life in the vicinity of the Site.]69
14.5 Subcontracting
(a) The Concessionaire shall, within [30 (thirty)] days of the approval of the Construction Plan in
accordance with Clause 14.3(b) above, submit to Authority, the draft Subcontractor management
plan, which outlines the works and services (including procurement of equipment and materials)
which the Concessionaire proposes to Subcontract, along with the estimated value of each
Subcontract, details of the Subcontractor and methods by which the Concessionaire will ensure the
Subcontractors comply with the terms of this Agreement, the Construction Plan, the Project
Execution Plan, the DPR, the EMP and OHS Plan, the O&M Plan, Applicable Laws and Applicable
Permits. The Authority and the Independent Engineer shall review and provide comments, if any, on
the draft Subcontractor management plan to the Concessionaire or notify the Concessionaire of their
approval of the draft Subcontractor management plan within [30 (thirty)] days from the date of
receipt of the draft Subcontractor management plan from the Concessionaire. The Authority may
require the Concessionaire to amend or modify the draft Subcontractor management plan. If the
Concessionaire receives any comments, suggestions or instructions to modify the draft Subcontractor
management plan from the Authority or the Independent Engineer, then the Concessionaire shall
incorporate the suggestions made by the Authority and/or the Independent Engineer and modify the
draft Subcontractor management plan to address any such comments. Thereafter, the Concessionaire
shall submit the revised Subcontractor management plan to the Authority and the Independent
Engineer for their approval. The process set out in this Clause 14.5(a) shall continue until the
Subcontractor management plan is approved by Authority and the Independent Engineer in
accordance with this Clause 14.5(a). Provided that, if the Authority or the Independent Engineer fail
to approve the Subcontractor management plan at least [30 (thirty)] days prior to the Scheduled COD,
then the delay in approval of the Subcontractor management plan shall not prevent the
Concessionaire from obtaining the COD Certificate and commencing commercial operations in
accordance with Clause 17.1. Provided further that, if the Authority or Independent Engineer revert
with comments, modifications or suggestions on the draft Subcontractor management plan after the
COD, the Concessionaire shall be required to respond to or incorporate such modifications in
accordance with this Clause 14.5(a), and any additional costs incurred by the Concessionaire in
accepting such modifications shall be to the Authority's account. Within [7 (seven)] days from the
approval of the Subcontractor management plan, the Concessionaire shall submit [4 (four)] hard
copies and [1 (one)] soft copy on a USB drive of the Subcontractor management plan to Authority.
The Concessionaire shall not make any subsequent modification or amendment to the approved
Subcontractor management plan without the prior written approval of Authority.
(b) The Concessionaire may enter into Subcontracts to perform any part of its Scope of Work, in
accordance with the approved Subcontractor management plan, provided that notwithstanding the
approval of the Subcontractor management plan, subcontracts of a value above [25% (twenty-five
per cent) of the Total Project Cost] will be executed only with the prior approval of the Authority.
To clarify, subcontracts proposed to be executed by the Concessionaire of a value below [25%
(twenty-five per cent) of the Total Project Cost] with an approved Subcontractor do not need to be
separately approved by the Authority.
70 Drafting Note: To be included only if there is any displacement of people due to the Project or if any waste pickers are facing loss of revenue
due to a grant of license over the Site to the Concessionaire or diversion of waste to the WtB Facility.
72
(c) The Concessionaire shall provide a copy of each proposed Subcontract of a value above [25%
(twenty-five per cent) of the Total Project Cost], along with details of the relevant Subcontractor, to
the Authority for its approval, which should set out the precise scope of work to be subcontracted to
such Subcontractor and should be consistent with the terms of this Agreement and the approved
Subcontractor management plan.
(d) Within [15 (fifteen)] days of receipt of a draft Subcontract under Clause 14.5(c) above, the Authority
shall notify the Concessionaire of its approval or rejection (along with reasons) of the Subcontractor.
(e) The approval of any Subcontractor and the corresponding Subcontract by the Authority shall be
subject to the following conditions:
(i) the Subcontractor appointed by the Concessionaire possesses the requisite skill, expertise and
capability to perform the relevant obligations of the Concessionaire;
(iii) the Subcontract contains provisions that provide, at the Authority’s option, for the subcontract
to be novated or assigned to the Authority or its nominee without any further consent or
approval from the Concessionaire or the Subcontractor or entitle the Authority or its nominee
to step into such Subcontract, in substitution of the Concessionaire, if this Agreement is
terminated due to a Concessionaire Event of Default. However, the step-in rights of the
Authority shall always be subject to the substitution rights of the Lenders under this Agreement
or the Substitution Agreement; and
(iv) the Concessionaire shall be responsible for the supervision and monitoring of the performance
of any work or services by the Subcontractor.
(f) If the Authority does not notify its approval or rejection of any Subcontract to the Concessionaire
within [15 (fifteen)] days of the receipt of the draft Subcontract, then such Subcontract will be
deemed to be approved by the Authority.
(g) Within [7 (seven)] days of the execution of an amendment to any approved Subcontract, the
Concessionaire shall submit a copy of such amendment to the Authority for its records.
(h) If the Concessionaire proposes to novate an approved Subcontract and/or replace an approved
Subcontractor, then such novation or replacement shall be with prior approval of the Authority and
the process set out in this Clause 14.5 shall apply in such case.
(i) Notwithstanding the approval of the Subcontractor management plan or any Subcontractor by the
Authority, the Concessionaire shall be and remain liable under this Agreement for all work and
services subcontracted under this Agreement and for all acts, omissions or defaults of any
Subcontractor. No default under any Subcontract shall excuse the Concessionaire from its obligations
or liabilities under this Agreement. All references in this Agreement to any act, default, omission,
breach or negligence of the Concessionaire shall be construed to include any such act, default,
omission, breach or negligence of the Subcontractors.
73
The Concessionaire shall design, finance, construct and complete the Project Facilities and achieve the COD
in accordance with Applicable Laws, Applicable Permits, Good Industry Practice, the Technical
Specifications, the EMP, OHS Plan, the Designs and Drawings, the Construction Plan, the Project Execution
Plan, the DPR and other provisions of this Agreement.
For this purpose, from the Execution Date and during the Construction Period, the Concessionaire shall:
(a) complete Pre-Construction Works in accordance with Scope of Work and Technical Specifications.
Subject to Clause 4.3(a) and Article 26, the Concessionaire shall not be entitled to any extension of
time or costs on account of any delays in completing the Pre-Construction Works.
(b) complete the work [corresponding to each Project Milestone by the Scheduled Project Milestone
Completion Date and]71 [so as to ensure that the WtB Facility achieves the COD on or before the
Scheduled COD] in a manner that:
(i) is in compliance with the Technical Specifications, the Designs and Drawings, the
Construction Plan, the Project Execution Plan, the DPR, the EMP, OHS Plan, Applicable
Laws, the Performance Standards, Applicable Permits and Good Industry Practices. For the
avoidance of doubt, if there arises any ambiguity or conflict between the Technical
Specifications, the Performance Standards and any Applicable Laws, then the one setting out
the more stringent requirements or specifications shall prevail;
(ii) the Project Facilities are free from all defects in design, materials, and workmanship;
(iii) the Project Facilities are safe, reliable and fit for purpose;
(iv) the WtB Facility is capable of handling and processing the Acceptable Waste up to the Design
Capacity;
(v) the Project Facilities are capable of Segregating Mixed Waste up to the Maximum Permissible
Mixed Waste Quantity; and
(vi) all aspects of the Project Facilities, including the processes and materials employed in the
construction, operation, and maintenance of the Project Facilities comply with the Applicable
Laws and the Performance Standards in relation to environment, health, and safety, including
in particular the SWM Rules, and there is no damage to the environment resulting from the
construction of the Project Facilities.
(c) reasonably consider and act upon the comments/suggestions made by the Independent Engineer and
Authority during any meetings with the Concessionaire;
(d) rectify any defects and/or deficiencies in the Project Facilities, including any defects and/or
deficiencies identified by the Independent Engineer and the Authority;
(e) ensure that an adequate number of suitably skilled and experienced contractors, architects, workmen
and other personnel are engaged to undertake the Project. The Concessionaire shall be solely
responsible for the work performed by any staff and labour engaged by it to execute the Project and
for payment of all labour charges, fees, cess, payable under Applicable Laws (including labour
welfare legislations) in connection with the skilled and unskilled manpower employed for the Project,
71 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
74
including specifically the Building and Other Construction Workers Welfare Cess Act, 1996. The
Concessionaire shall ensure that its Subcontractors provide all necessary amenities and welfare
facilities for the staff and labour engaged by them at the Site and comply with all applicable labour
laws. The Concessionaire shall indemnify and hold harmless the Authority from and against all
claims, liabilities, expenses, costs and losses suffered or incurred by the Authority due to the
Concessionaire's or any Subcontractor's failure to comply with any Applicable Laws (including
labour welfare legislations);
(f) arrange for all equipment, machinery, tools and other resources, including trucks for transportation
of the Residual Inert Matter and/or Residual Waste to the Delivery Point during Trial Operations,
required to undertake the Project and be solely responsible for such equipment, machinery, tools and
resources, in accordance with the quality assurance plan submitted as part of the Construction Plan.
The Authority may provide the Concessionaire an indicative list of vendors for procurement of
equipment for the Project Facilities, and the Concessionaire may, at its discretion, procure equipment
from such vendors;
(g) take all reasonable measures to ensure that the transportation of any of the Concessionaire's or the
Subcontractors' personnel or equipment, to or from the Site, does not interfere with local traffic in
the vicinity of the Site;
(h) maintain accurate and systematic accounts and records of goods and material utilized and other costs
and expenses incurred in connection with the construction works for the Project Facilities, including
all invoices, receipts, challans, vouchers, quotations and other records and documents with respect
to the Project Facilities in accordance with Applicable Laws; and
(i) prepare and keep up-to-date, "as-built" records of the execution of the work for the Project Facilities,
showing the exact as-built locations, sizes and details of the works executed. The "as-built" records
shall be kept on the Site and be made available to the Independent Engineer and Authority for review
and verification.
(a) The Concessionaire shall comply with the DPR, the Project Execution Plan, the Construction Plan,
the Designs and Drawings and the Technical Specifications and complete the construction of the
Project Facilities so as to ensure that the WtB Facility achieves the COD on or before the Scheduled
COD.
(b) Subject to Clause 14.7(c) below, the Concessionaire shall be entitled to a day-for-day extension of
[the relevant Scheduled Project Milestone Completion Date or, as the case may be,]72 the Scheduled
COD, if the completion of construction, Trial Operations, and testing of the Project Facilities is
delayed due to any of the following reasons (each such event, a Delay Event):
(i) occurrence of a Force Majeure Event, provided that the requirements of Article 26 have been
complied with;
(iii) undue delay by the relevant Government Authority in granting or renewing any Applicable
Permit, despite the Concessionaire having applied for such grant or renewal expeditiously and
having complied with the requirements of Applicable Laws in making such application;
72 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
75
(iv) undue delay by the relevant Government Authority in providing any utility connection, despite
the Concessionaire having applied for such utility connection expeditiously and having
complied with the requirements of Applicable Laws in making such application;
(v) any delay attributable to unforeseen site conditions in accordance with Clause 10.4;
(vi) any delay by the Authority in providing comments or approving the Designs and Drawings in
accordance with the process and timelines set out in Clause 14.2(c);
(vii) a suspension of construction of the Project Facilities pursuant to Clause 27.1(a)(i) or Clause
27.2(a)(i), which is not attributable to the Concessionaire;
(viii) delay by the Independent Engineer in inspecting the completed portion of the works or
notifying the Concessionaire of any defects or deficiencies in the works in accordance with
Clause 16.1(a)(iv);
(ix) delay by the Authority in issuing the [Milestone Completion Certificate in accordance with
Clause 16.1(a)]73 [Construction Completion Certificate in accordance with Clause 16.1(a)]74;
(x) delay by the Independent Engineer in issuing the Trial Operations Commencement Notice in
accordance with Clause 16.1(b);
(xi) undue delay by Authority in obtaining any Applicable Permit required to be obtained by it
under this Agreement;
(xii) [delay by the Authority of more than [30 (thirty)] days beyond the due date in making payment
of the Grant to the Concessionaire in accordance with the terms of this Agreement;]75 or
(xiii) any variation proposed by Authority or necessitated by actual Site conditions in the Scope of
Work, Technical Specifications or the Designs and Drawings in accordance with Article 31.
The Concessionaire shall promptly provide the Authority (with a copy to the Independent Engineer)
with a notice upon becoming aware of any Delay Event listed in this Clause 14.7(b). The notice
should specify the nature of the Delay Event, the extent of delay suffered or likely to be suffered by
the Concessionaire and mitigation measures being taken by the Concessionaire.
The issuance of the notice under this Clause 14.7(b), within [7 (seven)] days from the date the
Concessionaire became aware of the Delay Event, shall be a condition precedent to the
Concessionaire's entitlement to an extension under Clause 14.7(b).
(c) Without prejudice to the Concessionaire's obligations to notify the Authority regarding the
occurrence of a Delay Event above, the Concessionaire shall: (i) keep and maintain records as
reasonably necessary to substantiate and establish claims for extensions under Clause 14.7(b); and
(ii) give the Authority and the Independent Engineer access to such records and documents or provide
the Authority and the Independent Engineer with copies, if so requested.
(d) If the Concessionaire claims an extension of time in accordance with Clause 14.7(b) and Authority
is of the opinion that such delay was caused or materially contributed to by any concurrent or
73 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
74 Drafting Note: Square bracketed portion to be deleted if a Grant is being paid to the Concessionaire.
75
Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
76
interacting cause or causes of delay not listed in Clause 14.7(b), then the Concessionaire shall not be
entitled to any extension of time for the concurrent period of delay.
(e) If two or more of the Delay Events listed in Clause 14.7(b) occur concurrently, then such concurrent
period shall not be counted twice in determining an extension under Clause 14.7(b).
(f) Except as provided in Clause 14.7(b), the Concessionaire shall not be entitled to any extension of
time for any reason whatsoever, including due to:
(i) delay caused in complying with any instructions of Authority or the Independent Engineer
which are attributable to any act or omission of the Concessionaire;
(ii) failure of any Subcontractor to commence or carry out any work within the prescribed
timelines; or
(g) Any Dispute between the Parties with respect to the occurrence, length of subsistence or consequence
of any of the Delay Event shall be settled in a final and binding manner in accordance with Article
34.
(a) Subject to Clause 14.7(b), if the Concessionaire [fails to complete the work corresponding to any
Project Milestone by the relevant Scheduled Project Milestone Completion Date or]76 fails to achieve
the COD by the Scheduled COD, then the Authority shall be entitled to liquidated damages for each
day of delay beyond the [Scheduled Project Milestone Completion Date, or, as the case may be, the]77
Scheduled COD, at the rate of [0.1% (zero point one per cent)] of the Performance Security, up to [6
(six)] months from the [relevant Scheduled Project Milestone Completion Date, or, as the case may
be, the]78 Scheduled COD (collectively, the Delay Liquidated Damages).
(b) The Delay Liquidated Damages will be payable until [the work for the relevant Project Milestone is
completed or, as the case may be,] 79 the COD is achieved or deemed to be achieved in accordance
with Article 17.
(c) [If the Concessionaire achieves the COD by the Scheduled COD, the aggregate Delay Liquidated
Damages recovered by the Authority under Clause 14.8(a) for a delay in achieving any Project
Milestone shall be refunded by the Authority to the Concessionaire, without any interest.] 80
(d) [The Authority shall be entitled to deduct the Delay Liquidated Damages from the amount payable
to the Concessionaire for any Project Milestone, and if such amounts are insufficient, the Authority
shall have a right to invoke the Performance Security to the extent of the Delay Liquidated
Damages.]81
76 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
77 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
78 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
79 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
80 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
81 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
77
(e) The Parties acknowledge that the Delay Liquidated Damages are a genuine pre-estimation of and
reasonable compensation for the loss that shall be suffered by the Authority as a result of the delay
in the completion of the Project Facilities, and not as penalty.
(f) If, for any reason, the above paragraphs relating to the payment of Delay Liquidated Damages are
void, invalid or otherwise inoperative so as to disentitle the Authority from claiming any Delay
Liquidated Damages, then the Authority will be entitled to claim against the Concessionaire for
general damages [for delay in completing the works for the relevant Project Milestone by the
Scheduled Project Milestone Completion Date, or]82 for the delay in achieving the COD by the
Scheduled COD.
(g) [If the Concessionaire fails to complete the works for a Project Milestone within [6 (six)] months of
the Scheduled Project Milestone Completion Date or]83 if the Concessionaire fails to achieve the
COD within [6 (six)] months of the Scheduled COD, other than on account of any Delay Event, then
such failure shall be deemed to be a Concessionaire Event of Default in accordance with Clause 28.1.
(h) The payment of Delay Liquidated Damages shall not relieve the Concessionaire from its obligations
to complete the construction of the Project Facilities and commission the WtB Facility, or from any
of its other duties, obligations or responsibilities under the Agreement.
(i) The Concessionaire shall pay any Delay Liquidated Damages within [30 (thirty)] days of receipt of
an invoice for such liquidated damages from the Authority.
82 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
83 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
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ARTICLE 15
During the Construction Period, the Concessionaire shall, submit monthly reports to the Independent
Engineer (with a copy to the Authority), no later than [7 (seven)] days after the end of each month, which
should set out the following:
(a) extent of progress of construction activities performed by the Concessionaire for the Project
Facilities;
(b) comparison of actual progress against the planned progress of construction works, reasons for delay,
if any and steps taken by the Concessionaire to mitigate the delay;
(c) details of any accident or hazardous incident at the Site and the steps taken by the Concessionaire to
mitigate the consequences of such accident or hazardous incident; and
(d) status of rectification of defects and/or deficiencies discovered by the Independent Engineer or the
Authority.
The Concessionaire shall promptly give such other relevant information as may be required by the
Independent Engineer.
15.2 Inspection
During the Construction Period, the Independent Engineer shall inspect the construction of the Project
Facilities at least once a month and make a report of such inspection (the Inspection Report) stating in
reasonable detail the defects or deficiencies, if any, with particular reference to the Scope of Work and
Technical Specifications. It shall send a copy of the Inspection Report to the Authority and the
Concessionaire within [7 (seven)] days of such inspection and upon receipt thereof, the Concessionaire shall
rectify and remedy the defects or deficiencies, if any, stated in the Inspection Report. Such inspection or
submission of the Inspection Report by the Independent Engineer shall not relieve or absolve the
Concessionaire of its obligations and liabilities hereunder in any manner whatsoever.
15.3 Tests
(a) For determining that the construction works conform to the Technical Specifications, the
Independent Engineer may require the Concessionaire to carry out, or cause to be carried out, tests,
in accordance with Good Industry Practice, for quality assurance. The costs incurred on the tests shall
be borne solely by the Concessionaire.
(b) If the results of any tests conducted under this Clause 15.3 establish any defects or deficiencies in
the construction works, the Concessionaire shall carry out remedial measures and furnish a report to
the Independent Engineer in this regard. The Independent Engineer shall have the right to verify such
reports and if required, request the Concessionaire to carry out or cause to be carried out tests to
determine that such remedial measures have brought the construction works into compliance with
the Technical Specifications, and the procedure set forth in this Clause 15.3 shall be repeated until
such construction works conform to the Technical Specifications.
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15.4 Suspension of Unsafe Construction Works
(a) Upon recommendation of the Independent Engineer to this effect, the Authority may, by notice,
require the Concessionaire to suspend forthwith the whole or any part of the construction work if, in
the reasonable opinion of the Authority, such work is unsafe and a potential safety hazard.
(b) The Concessionaire shall, pursuant to a notice under this Clause 15.4, suspend all or part of the
construction works for such time and in such manner as may be specified by the Authority and carry
out remedial measure to secure the safety of the suspended works. The Concessionaire may by notice,
require the Independent Engineer to inspect such remedial measures adopted and submit a report to
the Authority recommending whether such suspension may be revoked. Upon receiving the
recommendations of the Independent Engineer, the Authority shall either revoke such suspension or
instruct the Concessionaire to carry out further remedial measures that are necessary, in the
reasonable opinion of the Authority, and the procedure set forth in this Clause 15.4 shall be repeated
until the suspension is revoked.
During the Construction Period, the Concessionaire shall provide to the Authority for every quarter, a video
recording, which will be compiled into a [3 (three)] hour USB drive, covering the status and progress of
construction works in that quarter. The first such video recording shall be provided to the Authority within
[7 (seven)] days of the Appointed Date and thereafter, no later than [15 (fifteen)] days after the close of each
quarter.
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ARTICLE 16
(i) Upon completion of construction of all the works in relation to the Project Facilities, as specified
in the Construction Plan, the Project Execution Plan and the DPR, the Concessionaire shall issue
a notice to the Authority, with a copy to the Independent Engineer, requiring the Authority to
cause the Independent Engineer to inspect the completed works. The purpose of such inspection
shall be to determine whether the works have been completed in accordance with the
requirements of Clause 14.6.
(ii) If the Independent Engineer is satisfied that the works have been completed in accordance with
the requirements of Clause 14.6, then it shall submit a report to the Authority to this effect within
[3 (three)] days of such inspection and thereafter, the Authority shall issue a Construction
Completion Certificate to the Concessionaire, within [7 (seven)] days from the date of the
Independent Engineer’s report.
(iii) If the Independent Engineer is of the view that the works do not satisfy the requirements of
Clause 14.6, then the Independent Engineer shall have the right to provide comments,
suggestions and/or instruct the Concessionaire to carry out necessary modifications, to ensure
that the works comply with the requirements of Clause 14.6. Upon receipt of such comments,
suggestions, or instructions from the Independent Engineer, the Concessionaire shall make
necessary modifications to the works to remedy any defects or deficiencies and re-issue a notice
to the Authority and the Independent Engineer. The Concessionaire shall bear all costs of
remedying the defects and deficiencies in the works and shall not be entitled to any extension of
time for remedying such defects or deficiencies. This process shall be repeated until the
Independent Engineer is satisfied that the works have been completed in accordance with the
requirements of Clause 14.6 and the Authority issues the Construction Completion Certificate in
accordance with this Clause 16.1(a).
(iv) If:
(A) the Independent Engineer fails to inspect the completed portion of the works,
within [7 (seven)] days from the date of receipt of a notice from the
Concessionaire under Clause 16.1(a)(i) above;
(B) the Independent Engineer fails to provide any comments or suggestions or notify
the Concessionaire of any defects or deficiencies in the works, within [7 (seven)]
days from the date of inspection of such works; or
(C) the Authority fails to issue the Construction Completion Certificate, within [7
(seven)] days from the date of inspection of the works,
then, such delay shall be treated as a Delay Event under Clause 14.7.]84
84Drafting Note: Square bracketed portion to be deleted if a Grant is payable and in which case, completion will be certified based on
completion of works corresponding to certain Project Milestones.
81
(a) [Completion of Project Milestones
(i) Upon completion of construction of the works corresponding to a Project Milestone, as specified
in the Construction Plan, the Concessionaire shall issue a notice to the Authority, with a copy to
the Independent Engineer, requiring the Authority to cause the Independent Engineer to inspect
the completed works covered by the relevant Project Milestones. The purpose of such inspection
shall be to determine whether the works corresponding to the relevant Project Milestones have
been completed in accordance with the requirements of Clause 14.6.
(ii) If the Independent Engineer is satisfied that the works for the relevant Project Milestone have
been completed in accordance with the requirements of Clause 14.6, then it shall submit a report
to the Authority to this effect within [3 (three)] days of such inspection and thereafter, the
Authority shall issue a Milestone Completion Certificate to the Concessionaire for such
completed Project Milestone, within [7 (seven)] days from the date of the Independent
Engineer’s report.
(iii) If the Independent Engineer is of the view that the works for the relevant Project Milestone do
not satisfy the requirements of Clause 14.6, then the Independent Engineer shall have the right
to provide comments, suggestions and/or instruct the Concessionaire to carry out necessary
modifications, to ensure that the works comply with the requirements of Clause 14.6. Upon
receipt of such comments, suggestions, or instructions from the Independent Engineer, the
Concessionaire shall make necessary modifications to the works to remedy any defects or
deficiencies and re-issue a notice to the Authority and the Independent Engineer. The
Concessionaire shall bear all costs of remedying the defects and deficiencies in the works and
shall not be entitled to any extension of time for remedying such defects or deficiencies. This
process shall be repeated until the Independent Engineer is satisfied that the works for the
relevant Project Milestone have been completed in accordance with the requirements of Clause
14.6 and the Authority issues a Milestone Completion Certificate in accordance with this Clause
16.1(a).
(iv) If:
(A) the Independent Engineer fails to inspect the completed portion of the works
covered by the relevant Project Milestone, within [7 (seven)] days from the date
of receipt of a notice from the Concessionaire under Clause 16.1(a)(i) above;
(B) the Independent Engineer fails to provide any comments or suggestions or notify
the Concessionaire of any defects or deficiencies in the completed portion of the
works covered by the relevant Project Milestone, within [7 (seven)] days from
the date of inspection of such completed portion of the works; or
(C) the Authority fails to issue the Milestone Completion Certificate, within [7
(seven)] days from the date of inspection of the completed portion of the works
covered by the relevant Project Milestone,
then, such delay shall be treated as a Delay Event under Clause 14.7.]85
85 Drafting Note: Square bracketed portion to be deleted if there is no Grant payable and no corresponding Project Milestones.
82
(i) Upon issuance of the [Milestone Completion Certificate for the last Project Milestone] 86 /
[Construction Completion Certificate]87 by the Authority, the Concessionaire shall proceed to
conduct the tests on completion in accordance with this Clause 16.1(b) and the Technical
Specifications (the Tests on Completion).
(ii) The Concessionaire shall notify the Authority and the Independent Engineer of the date(s) on
which the Tests on Completion shall be conducted by the Concessionaire, at least [7 (seven)]
days prior to such date(s) (the Tests on Completion Notice).
(iii) The Concessionaire shall, on the dates specified in the Tests on Completion Notice, carry out the
Tests on Completion under the supervision of the Independent Engineer to demonstrate that the
Project Facilities have been constructed and installed in accordance with the Technical
Specifications.
(iv) If, pursuant to the Tests on Completion, the Independent Engineer identifies any defects or
deficiencies in the Project Facilities, then the Concessionaire shall remedy such defects or
deficiencies identified by the Independent Engineer. The Project Facilities shall be tested again
upon rectification of such defects or deficiencies. This process shall be repeated until such time
that the Tests on Completion demonstrate, to the Independent Engineer’s satisfaction, that the
Project Facilities have been constructed and installed in accordance with the Technical
Specifications. The Concessionaire shall bear all costs of remedying the defects and deficiencies
and retesting the Project Facilities and shall not be entitled to any extension of time for remedying
such defects or deficiencies or for retesting the Project Facilities.
(v) If the Independent Engineer is satisfied that the Project Facilities have been constructed and
installed in accordance with the Technical Specifications, then the Independent Engineer shall
issue a notice to the Authority within [7 (seven)] days of completion of the tests, with a copy to
the Concessionaire, that the Project Facilities are ready for Trial Operations (the Trial
Operations Commencement Notice).
(i) Subject to Clause 16.1(c)(iv) below, within [•] days of issuance of the Trial Operations
Commencement Notice, the Concessionaire shall commence the Trial Operations of the WtB
Facility in accordance with the Technical Specifications, to determine whether the WtB Facility
meets the KPIs on a continuous basis and is fit and ready to be placed into commercial operations
for handling and processing of Acceptable Waste and production of the CBG Output in
accordance with this Agreement. The Concessionaire shall undertake the Trial Operations of the
WtB Facility, including any cascades and/or pipelines used for the storage and transportation of
the CBG Output, for a minimum period of [•] months from the date on which the Trial Operations
of the WtB Facility commence.
(ii) At least [30 (thirty)] days prior to commencement of the Trial Operations, the Concessionaire
shall notify the Authority of the schedule for supply of the quantity of Acceptable Waste (not
exceeding the Daily Guaranteed Acceptable Waste Quantity) required by it on a daily basis to
undertake the Trial Operations of the WtB Facility. The Authority shall ensure that such
quantities of Acceptable Waste is delivered to the Concessionaire at the Receipt Point during the
Trial Operations to enable the Concessionaire to demonstrate that the WtB Facility meets the
Technical Specifications and the KPIs. The Authority shall also ensure that during the period of
86 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
87 Drafting Note: Square bracketed portion to be deleted if Grant is payable and there are Project Milestones.
83
Trial Operations, the SLF or an Alternate Disposal Location is available for scientific disposal
of the Residual Inert Matter or any Residual Waste during such Trial Operations period.
(iii) If the Concessionaire fails to commence or continue the Trial Operations due to inadequate
quantities of Acceptable Waste delivered at the Receipt Point over a consecutive period of [7
(seven)] days, then the Trial Operations shall be deemed to have been successfully completed
and the Acceptance Certificate shall be deemed to have been issued to the Concessionaire under
Clause 16.1(c)(xiii).
(iv) During the Trial Operations, the Independent Engineer shall monitor the performance of the WtB
Facility on a regular basis and shall have the right to test the compliance of the WtB Facility with
the KPIs, Technical Specifications, Designs and Drawings, Applicable Laws, the Performance
Standards and Applicable Permits.
(v) Within [•] days of the issuance of the [Milestone Completion Certificate for the last Project
Milestone 88 ]/ [Construction Completion Certificate 89 ], the Concessionaire shall prepare and
submit to the Independent Engineer, with a copy to the Authority, a schedule of acceptance tests
to be carried out for the WtB Facility as a part of the Trial Operations to demonstrate that the
WtB Facility is capable of achieving the KPIs (Acceptance Tests Schedule).
(vi) Within [5 (five)] days from the date of receipt of the Acceptance Tests Schedule under Clause
16.1(c)(v) above, the Independent Engineer or the Authority may request the Concessionaire to
vary the date(s) of the acceptance tests and the Concessionaire shall accommodate such request,
provided that, such date(s) shall be no later than [7 (seven)] days from the date(s) specified in
the Acceptance Tests Schedule received from the Concessionaire under Clause 16.1(c)(v) above.
(vii) The Concessionaire shall, on the dates specified in the Acceptance Tests Schedule, carry out the
acceptance tests under the supervision of the Independent Engineer to demonstrate that the
Project Facilities are capable of achieving the KPIs and comply with the Technical
Specifications.
(viii) If the Independent Engineer is not satisfied with the results of the acceptance tests or inspection,
then the Concessionaire shall remedy any defects or deficiencies in the Project Facilities
identified by the Independent Engineer or revealed through the acceptance tests. The Project
Facilities shall be tested again upon rectification of such defects or deficiencies. This process
shall be repeated until such time that the acceptance tests demonstrate that the WtB Facility is
capable of achieving the KPIs and the Independent Engineer is satisfied that the Project Facilities
have been completed in accordance with Clause 14.6 and are safe and fit for purpose. The
Concessionaire shall bear all costs of remedying the defects and deficiencies and retesting the
Project Facilities and shall not be entitled to any extension of time for remedying such defects or
deficiencies or for retesting the Project Facilities.
(ix) It is clarified that no Liquidated Damages for failure to achieve the KPIs will be payable by the
Concessionaire during the Trial Operations period.
(x) After the expiry of [•] months from the date of commencement of Trial Operations or after
successful completion of the acceptance tests, whichever is later, the Concessionaire shall issue
a report to the Independent Engineer, with a copy to the Authority, stating that the Trial
Operations have been successfully completed, along with details of compliance with the KPIs,
88 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
89 Drafting Note: Square bracketed portion to be deleted if Grant is payable and there are Project Milestones.
84
performance of various components of the Project Facilities and details of defects identified
during the Trial Operations and steps taken by the Concessionaire to rectify such defects.
(xi) If, the Independent Engineer is satisfied that the Project Facilities are capable of meeting the
KPIs on a consistent basis and are otherwise in compliance with the Technical Specifications,
and capable of safe and reliable operations, then, the Independent Engineer shall issue a notice
to the Authority recommending the issue of the Acceptance Certificate. The Authority shall issue
the Acceptance Certificate within 7 (seven) days of receiving the Independent Engineer's notice.
(xii) If, the Authority or the Independent Engineer believes that the Project Facilities do not comply
with the KPIs, or Technical Specifications, then the Authority or the Independent Engineer shall
notify the Concessionaire within [7 (seven)] days of receiving the Concessionaire's report and
the Concessionaire shall rectify any defects identified by the Authority or the Independent
Engineer and resubmit a report in accordance with Clause 16.1(c)(x). This process shall continue
until the Authority issues an Acceptance Certificate in accordance with Clause 16.1(c)(xi) above.
(xiii) If: (A) if the Authority fails to supply sufficient quantities of Acceptable Waste for
commencement or continuation of Trial Operations in accordance with Clause 16.1(c)(iii); (B)
the Authority or the Independent Engineer fails to notify the Concessionaire of any defects in the
Project Facilities within [7 (seven)] days of receiving the Concessionaire's report under Clause
16.1(c)(x); or (C) the Authority fails to issue the Acceptance Certificate within [7 (seven)] days
of receiving the Independent Engineer's notice under Clause 16.1(c)(xi), in each case due to
reasons not attributable to the Concessionaire, then the Acceptance Certificate shall be deemed
to be issued to the Concessionaire.
(xiv) The Concessionaire will not be entitled to any payment for conducting the Trial Operations and
the acceptance tests, which shall be carried out solely at the cost and risk of the Concessionaire.
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ARTICLE 17
(a) The Concessionaire shall, upon satisfaction of the conditions set out in this Clause 17.1(a) below,
issue a notice to the Authority, with a copy to the Independent Engineer, requesting the Authority to
issue the COD Certificate (COD Conditions Completion Notice). The Authority shall issue the
COD Certificate, with a copy to the Independent Engineer, to the Concessionaire, within 7 (seven)
days from the date of receipt of the COD Conditions Completion Notice, subject to fulfilment of the
conditions set out below:
(i) the Authority having issued (or deemed to have issued) the Acceptance Certificate;
(ii) the Concessionaire having provided and maintained a buffer zone around the WtB Facility;
(iii) the Concessionaire having obtained all Applicable Permits necessary for operation of the
WtB Facility (including but not limited to all approvals for the safety, installation and
energization of any electrical equipment and the consent to operate from the relevant
Government Authorities);
(iv) the Concessionaire having obtained adequate insurance for the Project Facilities in
accordance with Article 25;
(v) the Concessionaire having paid, or the Authority having fully recovered any Delay
Liquidated Damages due and payable to Authority in accordance with Clause 14.8;
(vi) the Concessionaire having submitted to the Authority the Scheduled Maintenance
Programme for the first-year post COD; and
(vii) the Concessionaire having submitted the O&M Security to the Authority.
(b) If the Authority fails to issue the COD Certificate to the Concessionaire within [15 (fifteen)] days
from the date of the issue of the COD Conditions Completion Notice, without reason, then the COD
Certificate shall be deemed to be issued on the 16th (sixteenth) day from the date of the COD
Conditions Completion Notice.
(c) The date on which the COD Certificate is issued (or deemed to be issued) to the Concessionaire shall
be the COD of the Project Facilities.
(d) Within [60 (sixty)] days from the COD of the Project Facilities, the Concessionaire shall: (i) notify
the Authority of the actual capital cost of the Project; and (ii) provide [4 (four)] hard copies and [1
(one)] soft copy on a USB drive, of the complete set of "as-built" drawings for the Project Facilities
to the Authority.
86
ARTICLE 18
The period for the operation and maintenance of the Project Facilities shall commence on and from the COD
and shall continue until the expiry of the Concession Period, unless terminated earlier in accordance with
Article 28.
(a) At least [60 (sixty)] days prior to the Scheduled COD, the Concessionaire shall prepare and submit a
detailed O&M Plan for the Project Facilities based on the Proposed Technology and in accordance with
the Technical Specifications, EMP, OHS Plan, Applicable Laws, the Performance Standards and
Applicable Permits. The O&M Plan shall specify the operation procedures and maintenance procedures
(separately for each component of the Project Facilities). If there are any errors or deficiencies in the
Technical Specifications, the O&M Plan shall take in account, address or rectify such errors or
deficiencies.
(b) The Authority and the Independent Engineer shall review and provide comments, if any, on the draft
O&M Plan to the Concessionaire, or notify the Concessionaire of their approval of the draft O&M
Plan, within [30 (thirty)] days from the date of receipt of the draft O&M Plan from the Concessionaire.
The Authority may require the Concessionaire to amend or modify the draft O&M Plan if the Authority
or the Independent Engineer identify any deficiencies, inaccuracies or shortcomings in the draft O&M
Plan. If the Concessionaire receives any comments, suggestions or instructions to modify the draft
O&M Plan from the Authority or the Independent Engineer, then the Concessionaire shall modify the
draft O&M Plan to correct any shortcomings, inaccuracies or deficiencies identified by the Authority
or the Independent Engineer and/or address, in writing, the Authority’s and/or the Independent
Engineer's comments on the draft O&M Plan and submit the revised O&M Plan to the Authority and
the Independent Engineer for their approval. The process set out in this Clause 18.2(b) shall continue
until the O&M Plan is approved by the Authority and the Independent Engineer in accordance with
this Clause 18.2(b). Provided that, if the Authority or the Independent Engineer fail to approve the
O&M Plan at least [10 (ten)] days prior to the Scheduled COD, then the delay in approval of the
O&M Plan shall not prevent the Concessionaire from obtaining the COD Certificate and
commencing commercial operations in accordance with Clause 17.1. Provided further that, if the
Authority or Independent Engineer revert with comments, modifications or suggestions on the draft
O&M Plan after the COD, the Concessionaire shall be required to respond to or incorporate such
modifications in accordance with this Clause 18.2(c), and any additional costs incurred by the
Concessionaire in accepting such modifications shall be to the Authority's account. The
Concessionaire shall submit [4 (four)] hard copies and [1 (one)] soft copy on a USB drive of the
approved O&M Plan to the Authority.
(c) The Concessionaire shall revise the O&M Plan as and when the Concessionaire thinks it necessary to
do so and in such case the provisions of Clause 18.2(b) will apply as is to the approval of the revised
plan.
(d) The Concessionaire shall undertake the O&M of the Project Facilities strictly in accordance with the
approved O&M Plan (or where the O&M Plan has not been approved prior to the COD, in accordance
with the draft O&M Plan submitted to the Authority until the O&M Plan is approved). The
87
Concessionaire shall not deviate from or make any amendment to the approved O&M Plan without
the prior written approval of the Authority.
(e) Notwithstanding any approval of the O&M Plan by the Authority, the Concessionaire shall bear all
risk, responsibility and liability for the suitability, accuracy, adequacy and practicality of the O&M
Plan. Subject to Clause 18.2(b), the Concessionaire shall not be entitled to any extension of time
and/or costs incurred in the preparation of or updating the O&M Plan and complying with the
requirements of this Clause 18.2.
(a) At least [60 (sixty)] days prior to the Scheduled COD, the Concessionaire shall prepare and submit a
Waste Acceptance and Rejection Plan for the WtB Facility. The Waste Acceptance and Rejection Plan
shall specify the procedures to be followed by the Parties in relation to the delivery, acceptance and
rejection of waste delivered by the Authority (or any C&T Contractors on behalf of the Authority) at
the Receipt Point, including rejection of Prohibited Waste.
(b) The Waste Acceptance and Rejection Plan shall set out the methodology that the Concessionaire
proposes to use when inspecting, testing, Segregating, processing and disposing of waste that is
delivered at the Receipt Point. In particular, the Waste Acceptance, and Rejection Plan shall detail the
manner in which any Mixed Waste that is delivered (up to the Maximum Permissible Mixed Waste
Quantity) shall be Segregated such that any Biodegradable Waste that is capable of being processed at
the WtB Facility is set aside for processing at the WtB Facility to produce the CBG Output, and any
Residual Waste is separated, stored and disposed of in accordance with the requirements of this
Agreement.
(c) The Authority and the Independent Engineer shall review and provide comments, if any, on the draft
Waste Acceptance and Rejection Plan to the Concessionaire or notify the Concessionaire of their
approval of the draft Waste Acceptance and Rejection Plan within [30 (thirty)] days from the date of
receipt of the draft Waste Acceptance and Rejection Plan from the Concessionaire. The Authority may
require the Concessionaire to amend or modify the draft Waste Acceptance and Rejection Plan if the
Authority or the Independent Engineer identify any deficiencies, inaccuracies or shortcomings in the
draft Waste Acceptance and Rejection Plan. If the Concessionaire receives any comments, suggestions
or instructions to modify the draft Waste Acceptance and Rejection Plan from the Authority or the
Independent Engineer, then the Concessionaire shall modify the draft Waste Acceptance and Rejection
Plan to correct any shortcomings, inaccuracies or deficiencies identified by the Authority or the
Independent Engineer and/or address, in writing, the Authority’s and/or the Independent Engineer's
comments on the draft Waste Acceptance and Rejection Plan and submit the revised Waste Acceptance
and Rejection Plan to Authority and the Independent Engineer for their approval. The process set out
in this Clause 18.3(c) shall continue until the Waste Acceptance and Rejection Plan is approved by the
Authority and the Independent Engineer in accordance with this Clause 18.3(c). Provided that, if the
Authority or the Independent Engineer fail to approve the Waste Acceptance and Rejection Plan at
least [10 (ten)] days prior to the Scheduled COD, then the delay in approval of the Waste Acceptance
and Rejection Plan shall not prevent the Concessionaire from obtaining the COD Certificate and
commencing commercial operations in accordance with Clause 17.1. Provided further that, if the
Authority or Independent Engineer revert with comments, modifications or suggestions on the draft
Waste Acceptance and Rejection Plan after the COD, the Concessionaire shall be required to respond
to or incorporate such modifications in accordance with this Clause 18.3(c), and any additional costs
incurred by the Concessionaire in accepting such modifications shall be to the Authority's account.
The Concessionaire shall submit [4 (four)] hard copies and [1 (one)] soft copy on a USB drive of the
approved Waste Acceptance and Rejection Plan to the Authority.
88
(d) The Concessionaire shall revise the Waste Acceptance and Rejection Plan as and when the
Concessionaire thinks it necessary to do so and in such case the provisions of Clause 18.3(c) will apply
as is to the approval of the revised plan.
(e) The Authority (or any C&T Contractors on behalf of the Authority) shall deliver waste to the
Concessionaire at the Receipt Point strictly in accordance with the approved Waste Acceptance and
Rejection Plan (or where the Waste Acceptance and Rejection Plan has not been approved prior to the
COD, in accordance with the draft Waste Acceptance and Rejection Plan submitted to the Authority
until the Waste Acceptance and Rejection Plan is approved). The Concessionaire shall also ensure that
any acceptance and/or rejection of waste that is delivered at the Receipt Point, is done strictly in
accordance with the approved Waste Acceptance and Rejection Plan (or where the Waste Acceptance
and Rejection Plan has not been approved prior to the COD, in accordance with the draft Waste
Acceptance and Rejection Plan submitted to the Authority until the Waste Acceptance and Rejection
Plan is approved).
(f) Notwithstanding any approval of the Waste Acceptance and Rejection Plan by the Authority, the
Concessionaire shall bear all risk, responsibility and liability for the suitability, accuracy, adequacy
and practicality of the Waste Acceptance and Rejection Plan. Subject to Clause 18.3(c), the
Concessionaire shall not be entitled to any extension of time and/or costs incurred in the preparation
of or updating the Waste Acceptance and Rejection Plan and complying with the requirements of this
Clause 18.3.
(a) The Concessionaire shall operate and maintain the Project Facilities in a manner that:
(ii) is compliant with the O&M Standards, Applicable Law, the Performance Standards and the
terms of Applicable Permits;
(iii) ensures the Project Facilities are capable of handling and processing Acceptable Waste up
to its Design Capacity on a daily basis, including handling, processing, Segregating, storing
and disposing of Mixed Waste up to the Maximum Permissible Mixed Waste Quantity;
(iv) is safe and reliable, subject to normal wear and tear of the Project Facilities;
(v) ensures safe and reliable transportation of the Residual Inert Matter and/or any Residual
Waste to the Delivery Point;
(vi) ensures that there is no damage to or deterioration of the environment resulting from the
operation of the Project Facilities;
(vii) ensures that any effluent discharge from the operations of the Project Facilities do not mix
with and pollute any surface water, ground water, stream, pond, or other water body/source;
(viii) ensures that there is no leakage from the operations of the Project Facilities which could
endanger the environment, persons or property at or about the Site;
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(ix) ensures that the Project Facilities comply with all emission control and effluent discharge
norms specified under Applicable Law, failing which the Concessionaire shall be liable to
pay any penalties and/or fines levied by any Government Authority under Applicable Law;
(x) ensures safe and proper handling of any Prohibited Waste delivered at the Site;
(xi) is in compliance with the terms of the Offtake Agreements and Applicable Laws in relation
to the production and delivery of the CBG Output at the delivery point agreed with the
Offtaker;
(xii) ensures that the CBG Output meets the IS 16087: 2016 Standard at a minimum, or such
higher standard as may be prescribed under the Offtake Agreement;
(xiii) maintains the safety and security of personnel, material and property at the Site, in
accordance with the approved EMP, OHS Plan, Applicable Laws, the Performance
Standards and Applicable Permits;
(xiv) [is in compliance with the technology license agreement(s) executed by the Concessionaire
for the technology, processes, know-how and systems used or incorporated into the Project
Facilities;] and
(xv) ensures that all waste materials and hazardous substances are stored and/or disposed in
accordance with the EMP, OHS Plan, Applicable Laws, the Performance Standards and
Applicable Permits.
(i) ensure that it reasonably considers and acts upon the comments/suggestions made by the
Authority and the Independent Engineer during any meetings of the Concessionaire with its
Subcontractors;
(ii) provide the Authority and the Independent Engineer with reasonable access to the Site
during office hours to monitor and inspect the Project Facilities;
(iii) ensure that all equipment, machinery, tools and other resources required to undertake the
O&M of the Project Facilities are arranged for and take all reasonable measures to ensure
that the transportation of any of the Concessionaire’s or the Subcontractors’ personnel or
equipment, to or from the Site, does not unreasonably hinder or cause excess interference
with local traffic in the vicinity of the Site;
(iv) install meters required for measuring the total volume of CBG produced by the WtB Facility,
ensure that the meters installed are calibrated once every [year] during the O&M Period in
accordance with Good Industry Practices and the Technical Specifications and bear all costs
for installation, testing, calibration, maintenance, renewal and repair of meters installed;
(v) develop and implement a safety and surveillance programme for the Project Facilities and
adopt appropriate measures and safeguards for the security of the environment, life, and
property at the Site.
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18.5 Delivery of Acceptable Waste
(a) From the COD and until the expiry of the Concession Period or early termination of this Agreement,
the Authority shall, or shall cause its C&T Contractors to, deliver Acceptable Waste to the
Concessionaire for processing at the WtB Facility, in accordance with the Acceptable Waste Delivery
Schedule notified by the Authority to the Concessionaire.
(b) The Acceptable Waste supplied by the Authority on any day shall not be less than [•] TPD (the Daily
Guaranteed Acceptable Waste Quantity).
(c) If the Acceptable Waste delivered by the Authority on any day during the O&M Period is less than
the Daily Guaranteed Acceptable Waste Quantity, then the Authority shall be liable to pay liquidated
damages to the Concessionaire in accordance with Clause 18.7. The liquidated damages payable by
the Authority for the shortfall in supply of the Daily Guaranteed Acceptable Waste Quantities shall
be calculated and payable on a monthly basis.
(d) If the Authority fails to deliver the Daily Guaranteed Acceptable Waste Quantity for [[3 (three)]
consecutive days or more during the O&M Period, the Royalty to be paid by the Concessionaire in
accordance with Clause 22.5 shall be reduced in accordance with the formula set out in Clause
22.5(d) and if such failure of the Authority continues for]90 [7 (seven)] consecutive days or more
during the O&M Period, then such failure will be treated as an Authority Event of Default, and the
consequences set out in Article 28 shall follow.
(e) The Concessionaire shall receive and accept all quantities of Acceptable Waste delivered by the
Authority at the Receipt Point subject to the following:
(i) on any day during the O&M Period, the Concessionaire shall not be required to accept any
quantities of Acceptable Waste in excess of [110% (one hundred and ten per cent)] of the
Design Capacity; and
(ii) the aggregate quantity of Acceptable Waste required to be accepted by the Concessionaire
during any consecutive 7 (seven) day period shall not exceed [insert a quantity equivalent to
[105% (one hundred and five per cent)] of the Design Capacity multiplied by 7 (seven)] tons;
and
(iii) the Concessionaire shall not accept any waste, including any Acceptable Waste, which is not
delivered by the Authority, or any C&T Contractors appointed by Authority, provided that,
the Concessionaire shall have the right to accept Supplemental Waste in accordance with
Clause 18.5(g).
(f) The Authority shall ensure that the waste delivered to the Concessionaire at the Receipt Point on any
day of the O&M Period does not include Prohibited Waste or quantities of Mixed Waste which
exceeds the Maximum Permissible Mixed Waste Quantity.
(g) If the Acceptable Waste delivered by the Authority is less than the Daily Guaranteed Acceptable
Waste Quantity for any [7 (seven)] days or more in a month during the O&M Period, the
Concessionaire shall have the right to issue a notice to the Authority (the Supplemental Waste
Notice) seeking the Authority’s consent for the procurement of supplemental waste from third
parties that the Concessionaire may process at the Project Facilities (the Supplemental Waste) on
(i) the quantity of Supplemental Waste procured by the Concessionaire on any day during the
O&M Period shall not exceed the Shortfall Quantity on any day in the preceding month during
the O&M Period;
(ii) any approval or deemed approval for procuring Supplemental Waste shall expire on the date
on which the Authority reasonably demonstrates, over a consecutive period of [2 (two)]
months during the O&M Period, that it has supplied Acceptable Waste equal to the Daily
Guaranteed Acceptable Waste Quantity to the Concessionaire;
(iv) procuring, accepting, and processing of the Supplemental Waste does not, in any manner,
hamper, impede or prevent the Concessionaire from complying with its obligations to receive,
accept and process all quantities of Acceptable Waste delivered by the Authority in accordance
with the terms of this Agreement;
(v) procuring, accepting, and processing of the Supplemental Waste by the Concessionaire shall
be at its own risk and cost and shall not relieve the Concessionaire from complying with any
of its obligations under the Agreement (including its obligations to comply with the KPIs);
and
(vi) the Concessionaire shall always prioritize accepting and processing of the Acceptable Waste
delivered by the Authority over any Supplemental Waste procured by the Concessionaire at
all times during the O&M Period.
(h) If any approval or deemed approval for procuring Supplemental Waste expires in accordance with
Clause 18.5(g)(ii) and the Authority subsequently delivers Acceptable Waste less than the Daily
Guaranteed Acceptable Waste Quantity for any [7 (seven)] days or more in a month during the O&M
Period, the Concessionaire shall have the right to issue another Supplemental Waste Notice to the
Authority and the process set out in Clause 18.5(g) shall apply in such a situation.
(a) As part of the Associated Infrastructure, the Concessionaire shall provide [•] weighbridges
(Weighbridges) in accordance with the Technical Specifications, to weigh the waste delivered by the
Authority (or any C&T Contractors on behalf of the Authority) at the Receipt Point and the Residual
Inert Matter generated from the operations of the WtB Facility. The Receipt Point shall be equipped
with adequate facilities for video surveillance, a server room, electronic display unit, and Weighbridge
shall be duly calibrated as per BIS norms and duly certified by the Weights and Measures Department.
(b) The Concessionaire shall weigh each truck carrying a consignment of waste to the Site at the
Weighbridges as follows:
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(i) Each truck entering the Site must obtain an identification number from the Concessionaire’s
personnel posted at the gate.
(ii) At the Weighbridges, the weight of the truck loaded with the consignment of waste will be
taken and the Concessionaire shall record the following details (to the extent applicable) in
the format to be approved by the Authority as part of the O&M Plan and enter such
information into the electronic database:
(G) zone/circle/ward from which the waste has been collected and delivered to the
Concessionaire.
(i) Once a truck carrying a consignment of waste has been weighed at the Weighbridge, the
Concessionaire shall undertake a visual inspection of the consignment of waste on the truck
to determine if any Prohibited Waste or Mixed Waste has been delivered.
(ii) If, upon such visual inspection of a consignment of waste prior to unloading, the
Concessionaire:
(A) determines that such consignment includes any Prohibited Waste, then the
Concessionaire may refuse to accept such consignment and proceed to reject the
consignment without allowing it to be unloaded; or
(B) is of the view that such consignment includes a quantity of Mixed Waste which
is greater than 5% (five per cent) of the total quantity (by weight) of waste in such
consignment, then the Concessionaire shall have the right to reject the
consignment without allowing it to be unloaded.
(i) Once a truck carrying a consignment of waste has been weighed at the Weighbridge, and the
Concessionaire has completed its visual inspection prior to unloading, then, subject to the
Concessionaire's right to reject the entire consignment of waste in accordance with Clause
18.6(c)(ii) above, the Concessionaire shall unload the waste for further inspection.
(iii) The Concessionaire shall physically set aside the rejected consignment of waste, for
inspection by the Independent Engineer.
(iv) The Concessionaire shall promptly (and in any event within [•] hours of delivery of the
relevant consignment of waste that includes Prohibited Waste and/or a quantity of Mixed
Waste which is in excess of 5% (five percent) of the total quantity of waste in the
consignment (by weight)) notify the Authority of the rejection of such consignment of waste,
along with details of the truck carrying the consignment of waste, details of who supplied
the consignment of waste and such other details as the Authority may require.
(v) Upon receipt of a notice from the Concessionaire under Clause 18.6(d)(iv) above, the
Authority shall have the right to cause the Independent Engineer to inspect the relevant waste
consignment within [•] hours of receipt of such notice from the Concessionaire. If the
Independent Engineer certifies that the Mixed Waste does not exceed 5% (five per cent) of
the total quantity of waste in the consignment (by weight) or the waste is not Prohibited
Waste, then the Concessionaire shall be required to accept the waste for processing and
handling at the WtB Facility, in which case such waste shall be deemed to be Acceptable
Waste delivered to the Concessionaire for determining if the Authority has delivered the
Daily Guaranteed Acceptable Waste Quantity. If the Independent Engineer certifies that the
waste is Prohibited Waste and / or constitutes a quantity of Mixed Waste which is in excess
of 5% (five per cent) of the total quantity of waste in the consignment (by weight) which has
been delivered, then the Authority shall (or shall cause the C&T Contractors to) remove such
consignment of waste from the Site within [•] hours of inspection of such waste. If the
Authority chooses to accept the Concessionaire’s determination of Prohibited Waste and /
or quantities of Mixed Waste delivered (and not require the Independent Engineer to
undertake a separate inspection), then the Authority shall cause the consignment of waste to
be removed from the Site within [•] hours of receipt of the notice from the Concessionaire.
All costs associated with the removal and transportation of the rejected consignment of waste
from the Site, including additional costs incurred by the Concessionaire to load the
consignment of waste onto trucks, shall be borne by Authority.
(vi) In handling any Prohibited Waste and / or Mixed Waste that has been delivered to the Site,
the Concessionaire shall comply with the Waste Acceptance and Rejection Plan, the EMP,
the OHS Plan, Applicable Laws, the Performance Standards and Applicable Permits.
(i) After inspection and unloading of the waste, the Concessionaire shall weigh the empty truck.
The Concessionaire shall record the weight of the empty truck and the time of exit of the
truck in the format to be approved by the Authority as part of the Waste Acceptance and
Rejection Plan.
(ii) The difference between the weight of the truck carrying the waste, as recorded at the time of
entry of the truck into the Site, and the weight of the empty truck, will be treated as the
weight/volume of the total waste unloaded at the Receipt Point (the Total Unloaded Waste).
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(iii) Subject to the Concessionaire's right to reject the consignment of waste after unloading in
accordance with Clause 18.6(d)(ii) above, the aggregate of the Total Unloaded Waste
quantities in a day will be treated as the weight/volume of Acceptable Waste actually
received by the Concessionaire for processing at the WtB Facility on such day (the Daily
Acceptable Waste Quantity).
(iv) The Daily Acceptable Waste Quantity will be recorded in a daily weight sheet, in the format
approved by the Authority as part of the Waste Acceptance and Rejection Plan. The daily
weight sheets must be certified by the Independent Engineer.
(v) If the Weighbridges are unavailable for any reason, then the Concessionaire has to make
alternate arrangements for weighing of trucks at its own cost and in a manner acceptable to
the Authority and the Independent Engineer. If the Concessionaire is unable to make
acceptable alternate arrangements to weigh the trucks carrying the waste, then the following
formula will be used to estimate the quantity of waste delivered to the Concessionaire on the
days that the weighbridges are unavailable:
W = WAVG*N
Where,
W = weight of the Acceptable Waste delivered to the Concessionaire at the Receipt Point
during each day for the period when the Weighbridges are not available;
WAVG = the average Daily Acceptable Waste Quantity, per truck delivered at the Receipt
Point over [30 (thirty) days] immediately preceding the date on which the Weighbridges
were first unavailable; and
(a) If the Daily Acceptable Waste Quantity is less than the Daily Guaranteed Acceptable Waste Quantity,
then the Authority shall be liable to pay liquidated damages to the Concessionaire for each day of the
shortfall, which shall be calculated in accordance with this Clause 18.7.
(b) For the shortfall in the Daily Acceptable Waste Quantity as compared to the Daily Guaranteed
Acceptable Waste Quantity (the Shortfall Quantity), the Authority shall compensate the
Concessionaire for the Shortfall Quantity and such compensation shall be calculated as the product
of the Shortfall Quantity and [30% (thirty per cent)] of the Average Per Ton Gross Revenue (the
Guaranteed Waste Liquidated Damages), such that:
Guaranteed Waste Liquidated Damages = Shortfall Quantity multiplied by ([0.30 (zero point three
zero)] x Average Per Ton Gross Revenue)
Where,
Shortfall Quantity = Daily Guaranteed Acceptable Waste Quantity minus Daily Acceptable Waste
Quantity
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Average Per Ton Gross Revenue =
Gross Revenue during the Reference Period divided by Total quantity (in tons) of Acceptable Waste
delivered during the Reference Period.
Reference Period = any [3 (three)] month period immediately preceding the month in which the
Shortfall Quantity arose, provided that, if the Shortfall Quantity arises within the first [3 (three)
months] after the COD then the reference period shall be the period between the COD and the day
immediately preceding the day on which the Shortfall Quantity arose.
(c) The Guaranteed Waste Liquidated Damages shall accrue on a daily basis, for each day there is a
Shortfall Quantity, but will be calculated and payable, on a monthly basis.
(d) If there is a Shortfall Quantity on any day in a month, the Concessionaire shall, by the [15th (fifteenth)
Day] of the immediately following month, prepare and submit to the Authority and the Independent
Engineer an invoice for payment of the Guaranteed Waste Liquidated Damages for the previous
month. As a part of such invoice, the Concessionaire will provide details of the Average Per Ton
Gross Revenue, along with proof of payments received from any party from whom such revenue was
earned. The Independent Engineer shall review the invoice and either accept the Concessionaire’s
calculation of the Guaranteed Waste Liquidated Damages, or reject such calculation, with reasons.
If the Independent Engineer identifies any discrepancy, inaccuracy or shortcoming in the invoice, it
shall require the Concessionaire to amend or modify the invoice and the Concessionaire shall proceed
to revise and re-submit the invoice to the Authority and the Independent Engineer.
(e) Once the Independent Engineer approves the invoice submitted by the Concessionaire pursuant to
Clause 18.7(d), the Authority shall make payment of the Guaranteed Waste Liquidated Damages
within a period of [15 (fifteen) days] from the date of the Independent Engineer’s approval.
(a) The Concessionaire shall be responsible for Segregation of the Mixed Waste up to the Maximum
Permissible Mixed Waste Quantity in accordance with the Waste Acceptance and Rejection Plan.
(b) Any Biodegradable Waste that is Segregated from the Mixed Waste will be processed at the WtB
Facility as if such waste was Acceptable Waste and any Recyclable Materials recovered from the
Segregation of the Mixed Waste may be sold by the Concessionaire in accordance with Clause 18.10.
(c) Any Residual Waste (including any Non-biodegradable Waste) left after Segregation of the Mixed
Waste, and that cannot be processed at the Project Facilities or be sold as Recyclable Materials, shall
be delivered by the Concessionaire at the Delivery Point for disposal in accordance with Clause 18.9.
(a) The Concessionaire shall procure the trucks and other vehicles required for the transportation of the
Residual Inert Matter and any Residual Waste to the Delivery Point and shall ensure that such trucks
and vehicles are operated and maintained in a manner which poses no risk of harm or damage to the
environment, life or property in the course of transportation to the relevant disposal or delivery
location.
(b) The Concessionaire shall load the Residual Inert Matter and/or any Residual Waste onto trucks and
have the weight of each truck taken at the Weighbridges. The Concessionaire shall record the
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following details with respect to each truck which is used to transport the Residual Inert Matter
and/or any Residual Waste:
(c) The details specified in Clause 18.9(b), will be recorded in a daily weight sheet, in the format
approved by the Authority as part of the Waste Acceptance and Rejection Plan. The daily weight
sheets must be certified by the Independent Engineer.
(d) The Concessionaire shall be responsible for safe and reliable transportation of the Residual Inert
Matter and/or any Residual Waste to the Delivery Point and ensure that there is no spillage or leakage
which could cause public nuisance or otherwise endanger environment, life or property.
(e) From the COD and until the expiry of the Concession Period, the Authority shall cause the SLF or
the Alternate Disposal Location to accept the Residual Inert Matter and/or any Residual Waste for
disposal.
(f) If at any time during the O&M Period, the SLF or the Alternate Disposal Location is unavailable to
accept the Residual Inert Matter and/or the Residual Waste, and the Authority instructs the
Concessionaire to deliver the Residual Inert Matter and/or any Residual Waste to an alternate
location, which is more than [•] kms from the Site, then, the Authority shall reimburse the
Concessionaire for any incremental transportation cost incurred by the Concessionaire.
(i) The Concessionaire shall be free to store, use, appropriate, market and sell the CBG Output.
(ii) The Concessionaire may sell the CBG Output, at such price and to such Person as it deems
fit, and the proceeds of such sale shall be to the account of the Concessionaire.
(iii) The Concessionaire shall enter into an Offtake Agreement with any Offtaker of the CBG
Output and the CBG shall be delivered at the delivery point agreed between the
Concessionaire and the Offtaker.
(iv) The Concessionaire shall be responsible for the transportation and delivery of the CBG to
any Offtaker at its own cost, including for the cost of laying pipelines for the transportation
of CBG and/or for the cost of arranging cylinders and cascades for transportation of CBG.
(v) The Concessionaire shall ensure that any cylinder cascades, trucks, pipelines or other
appropriate vehicles and / or infrastructure for the transport of the CBG Output, are deployed
and maintained in good working condition and designed, operated and maintained in a
manner which poses no risk of harm or damage to the environment, life or property in the
course of transportation to the relevant delivery location.
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(vi) The Concessionaire shall maintain records and submit reports to the Concessionaire of the
quantum of the CBG Output sold and delivered on a [weekly] basis. The Independent
Engineer shall have the right to, at any time during the O&M Period, inspect the records
maintained by the Concessionaire in order to verify the quantum of CBG sold and delivered
to the Offtakers.
(i) The Concessionaire shall, as a part of the Associated Infrastructure, create an area of storage
at the Site for the By-Products and any material that is recyclable (Recyclable Material).
(ii) The By-Products and the Recyclable Material shall be handled safely and stored by the
Concessionaire in accordance with the EMP, OHS Plan, Applicable Laws, the Performance
Standards and Applicable Permits.
(iii) The Concessionaire shall maintain records and submit reports to the Authority of the
quantum of By-Products generated from the Project Facilities and the Recyclable Material
recovered on a [weekly] basis. The Independent Engineer shall have the right to, at any time
during the O&M Period, inspect the records maintained by the Concessionaire in order to
verify the quantum of By-Products generated and Recyclable Material recovered.
(iv) The ownership of the By-Products and the Recyclable Material will vest in the
Concessionaire.
(v) The Concessionaire shall be free to sell or otherwise dispose of the By-Product and /or the
Recyclable Material, at such price and to such person as it deems fit, and the proceeds of
such sale shall be to the account of the Concessionaire.
(vi) The Concessionaire shall arrange for transportation of the By-Products and the Recyclable
Material from the Site, at its own cost.
18.11 Utilities
(a) The Concessionaire shall maintain at its cost, all utilities necessary for undertaking the O&M of the
Project Facilities, including all power connections, lighting facilities, telephone connections, internet
connections, etc. at the Site, provided that, the Authority shall ensure that any physical infrastructure
required to enable the supply of electricity and water to the Site is made available at the battery limit
of the Site (as identified in Schedule [•]). .
(b) The Concessionaire shall be responsible for arranging for adequate supply of water for use in the
operation of the WtB Facility during the O&M Period, provided that the Authority shall provide
reasonable assistance to the Concessionaire in obtaining water supply for the WtB Facility. The
charges for any water supplied to the Concessionaire for utilization at the WtB Facility shall be as per
the tariff to be notified by [municipal authority / relevant entity for water supply] 91 and the
Concessionaire shall be responsible to pay all such charges directly to [municipal authority / relevant
entity for water supply]92.
91 Drafting Note: Include the municipal authority / entity responsible for the water supply.
92 Drafting Note: Include the municipal authority / entity responsible for the water supply.
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(c) The Concessionaire shall be responsible for arranging for adequate supply of power for use in the
operation of the WtB Facility during the O&M Period, provided that the Authority shall provide
reasonable assistance to the Concessionaire in obtaining the power supply for the WtB Facility. The
charges for any power supplied to the Concessionaire for utilization at the WtB Facility shall be as per
the tariff to be notified by [relevant entity for power supply] 93 and the Concessionaire shall be
responsible to pay all such charges directly to [relevant entity for power supply]94.
(d) Notwithstanding anything contained in this Clause 18.11, if [municipal authority / insert relevant entity
for water supply] fails to supply adequate quantities of water or [relevant entity for power supply]95
fails to supply adequate quantities of power to the Concessionaire for the operation of the WtB Facility
other than due to reasons attributable to the Concessionaire, the Concessionaire shall be responsible
for arranging an alternate source of water or power (as applicable) in order to ensure the continuous
operations of the WtB Facility and the Concessionaire shall be entitled to claim any additional costs
in such cases from the Authority.
(a) During each day of the O&M Period, the Concessionaire shall ensure that the WtB Facility can
accept and process Acceptable Waste up to its Design Capacity.
(b) The Concessionaire shall notify the Authority (with a copy to the Independent Engineer) as soon as
it becomes aware that the quantity of Acceptable Waste received at the Receipt Point is more than
the quantities of Acceptable Waste that the Concessionaire is required to accept in accordance with
Clause 18.5(e).
(c) If the quantity of Acceptable Waste received at the Receipt Point is more than the quantities of
Acceptable Waste that the Concessionaire is required to accept in accordance with Clause 18.5(e),
as a result of which the Concessionaire is unable to accept the Acceptable Waste at the WtB Facility,
then such a situation shall be treated as a Forced Unavailability for which the Concessionaire shall
not be liable, subject to the Concessionaire having notified the Authority and the Independent
Engineer in accordance with Clause 18.12(b) above. In such cases, the Authority shall (or shall cause
the C&T Contractors to) remove any excess waste from the Site within [•] hours of receiving a notice
from the Concessionaire. The Authority has the right to require the Independent Engineer to verify
the capacity utilization of the WtB Facility at any time during the O&M Period.
18.13 O&M Standards and Maintenance and Repair of the Project Facilities
(a) During the O&M Period, the Concessionaire shall operate and maintain the Project Facilities and
repair any damage to the Project Facilities either by itself, or through an approved Subcontractor,
such that:
(i) the Project Facilities shall be operated and maintained in accordance with the O&M Plan,
Scheduled Maintenance Programme, Applicable Laws, Applicable Permits, Good Industry
Practice, the recommendations of the technology providers and the maintenance standards
provided by the original equipment manufacturers;
(ii) the Project Facilities and all equipment, components and parts are in good working condition
(subject only to wear and tear and Force Majeure);
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(iii) the Project Facilities are capable of achieving their useful economic life in accordance with
the Designs and Drawings;
(iv) any equipment, components or parts of the Project Facilities, including the Weighbridges,
digesters etc., that are damaged or worn out or, in the Concessionaire’s judgement, no longer
practicable to repair as a result of normal wear and tear shall be replaced by the
Concessionaire at its cost;
(v) the Project Facilities shall be subject to Scheduled Maintenance in accordance with the
Scheduled Maintenance Programme; and
(b) For the first year of the O&M Period, the Concessionaire shall, at least [1 (one)] month before the
Scheduled COD, submit to the Authority its scheduled maintenance programme for the WtB Facility,
specifying the Scheduled Maintenance periods for the WtB Facility and the impact of such Scheduled
Maintenance periods on the Availability of the WtB Facility (Scheduled Maintenance
Programme). For every subsequent year of the O&M Period, the Concessionaire shall submit the
Scheduled Maintenance Programme, at least [1 (one)] month prior to the beginning of the relevant
year. The Scheduled Maintenance Programme for the first year will cover the period from the COD
until the end of the calendar year in which the COD occurs.
(c) Within [15 (fifteen)] days of receipt of the Scheduled Maintenance Programme, the Authority shall
notify the Concessionaire of its approval of such schedule.
(d) If the Authority does not accept any one or more of the requested Scheduled Maintenance periods or
its impact on the availability of the WtB Facility to accept and process the Acceptable Waste, the
Authority shall advise the Concessionaire within [15 (fifteen)] days of the receipt of the Scheduled
Maintenance Programme on when any Scheduled Maintenance can be rescheduled or how its impact
on the availability of the WtB Facility may be minimised. The rescheduled time shall be as close as
reasonably practicable to the requested time and shall be of equal duration as the requested period.
If the Authority fails to object to any Scheduled Maintenance within the specified time period or fails
to advise the Concessionaire of a substitute time, the Concessionaire may schedule the Scheduled
Maintenance for such duration and at such time as initially requested.
Notwithstanding the finalization of the Scheduled Maintenance Programme pursuant to this Clause
18.13, the Concessionaire may request a rescheduling of any Scheduled Maintenance upon [60
(sixty)] days’ prior written notice to the Authority. The Authority shall respond to such request within
[10 (ten)] days and shall not unreasonably withhold its permission for such re-scheduling.
(e) Within [5 (five)] days of any re-scheduling of a Scheduled Maintenance in accordance with Clause
18.13(d) above, the Concessionaire shall provide to the Authority, the amended Scheduled
Maintenance Programme, which shall then be the "Scheduled Maintenance Programme".
(f) If at any time during the O&M Period, the WtB Facility is damaged by a Minor Casualty, the
Concessionaire shall, with reasonable diligence, proceed to process the claim with insurance
providers and repair, replace, and restore the damaged portion of the WtB Facility to the same
condition that it was in before the occurrence of such Minor Casualty. To the extent available,
insurance proceeds shall be applied to such repair, replacement or restoration.
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(g) If at any time during the O&M Period, the WtB Facility is damaged by a Total Casualty, then this
Agreement shall be terminable at the option of the Concessionaire. If the Concessionaire elects to
terminate the Agreement, then the consequences set out at Clause 26.7 will follow. If, however, the
Concessionaire elects not to terminate the Agreement, then the Concessionaire shall repair, replace
and restore the damaged WtB Facility to the same condition that it was in before the occurrence of
such Total Casualty. To the extent available, insurance proceeds shall be applied to such repair,
replacement or restoration.
(a) The Concessionaire shall engage (either directly or through an approved Subcontractor) adequate
number of suitably skilled and qualified personnel to undertake the O&M of the Project Facilities in
accordance with the requirements set out in this Article 18.
(b) The Concessionaire shall be solely responsible for discharging all obligations in connection with the
employment of the O&M personnel, including the payment of wages, salaries, Taxes, and
retrenchment compensation and providing all amenities and benefits required under applicable
labour laws.
(c) Subject to compliance with the Applicable Laws and the Performance Standards, the Concessionaire
shall have full freedom to determine its internal human resources (HR) policies, including, the wages,
benefits and salary structure of its employees, the conditions of service, the shifts of work, its hire
and fire policy (whether for misconduct or other cause), and payment of severance or retrenchment
compensation.
(d) The Authority is not and shall not be treated as the "principal employer" of or be deemed to have any
contractual or other relationship with the O&M personnel. The Concessionaire shall hold harmless
and indemnify the Authority against all losses, claims, costs and damages that the Authority may
suffer due to the Concessionaire’s or any of its Subcontractor’s failure to comply with applicable
labour laws.
18.15 Subcontracting
(a) In accordance with the Subcontractor management plan prepared by the Concessionaire and approved
by Authority under Clause 14.5(a), the Concessionaire may enter into Subcontracts to perform any of
its O&M obligations, provided that a Subcontract of a value above [25% (twenty-five per cent) of the
Total Project Cost] will be executed by the Concessionaire only with the prior approval of Authority.
(b) The provisions of Clause 14.5 shall apply to all Subcontracts executed by the Concessionaire for any
O&M aspects of its Scope of Work.
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ARTICLE 19
The Concessionaire shall develop, implement and administer a surveillance and safety programme for
providing a safe environment on or about the Project Facilities, and shall comply with the safety requirements
set out in this Article 19 and Schedule [•] (the Safety Requirements).
(a) The Safety Requirements aim at minimising threat of injuries, loss of human life and damage to
property resulting from accidents on, or in relation to the construction, operation and maintenance
of the Project Facilities, irrespective of the person(s) at fault.
(b) The Safety Requirements shall apply to all phases of construction, operation and maintenance of the
Project Facilities with emphasis on identification of factors associated with accidents, consideration
of the same and implementation of appropriate remedial measures.
(a) The Concessionaire shall abide by the following to ensure safety of Project Facilities, human life and
property:
(b) The Concessionaire shall impart safety training to its employees and shall at all times be responsible
for observance of safety procedures by the Concessionaire Related Parties.
(c) The Concessionaire shall be responsible for undertaking all the measures under its control to ensure
the safety and security of the Project Facilities.
(d) The Concessionaire agrees that the Authority shall be entitled to inspect the Project Facilities to
verify adherence to Safety Requirements and the Concessionaire shall be obliged to facilitate such
inspection and implement the corrective measures identified in such inspection.
All costs and expenses arising out of or relating to Safety Requirements shall be borne by the Concessionaire
to the extent such costs and expenses form part of the works and services included in the Scope of Work.
102
ARTICLE 20
(i) The Concessionaire shall operate the Project Facilities and process the Acceptable Waste at
the WtB Facility strictly in accordance with the O&M Plan, EMP, the Waste Acceptance
and Rejection Plan, OHS Plan, SWM Rules, other Applicable Laws, the Performance
Standards and Applicable Permits and in a manner that causes no damage to the
environment, including any air pollution, odours, pests, insects, litter, soil or ground water
contamination.
(ii) The Concessionaire shall ensure that any effluent discharge from the Project Facilities shall
be treated in accordance with Applicable Laws, the Performance Standards and Applicable
Permits prior to the discharge of the effluent. If an incident occurs at the Site, as result of
which there is any untreated effluent discharged on the Site or Adjoining Property, the
Concessionaire shall ensure proper collection, clean-up and disposal of any such untreated
effluent discharged in accordance with the EMP and O&M Plan.
(iii) The Concessionaire shall carry out continuous environmental monitoring of the WtB Facility
in accordance with the EMP, O&M Plan, Applicable Laws and the Performance Standards.
The monitoring schedule and parameters will be set out in the EMP.
(iv) For the purposes of the continuous environmental monitoring of the WtB Facility, the
Concessionaire shall install and maintain an online monitoring system as part of the Project
Facilities, in accordance with the Technical Specifications, the Performance Standards and
Applicable Laws to monitor compliance with the KPIs.
The Concessionaire shall deliver to the Authority, with a copy to the Independent Engineer, the
following within the specified timelines:
(i) no later than [7 (seven)] days after the close of each month, a monthly report stating in
reasonable detail the condition of the Project Facilities including its compliance or otherwise
with the O&M Plan, O&M Standards, EMP and the OHS Plan and identify and state in
reasonable detail the defects and deficiencies that require rectification., and shall give such
other relevant information as may be required by the Independent Engineer;
(ii) reports relating to any activity, incident or circumstance that threatens or may threaten public
health, safety, the environment or the safety and security of the Site or the Project Facilities
or any Adjoining Property, and any action taken to mitigate the effect of such incident as
soon as reasonably practicable but no later than [12 (twelve)] hours after the occurrence of
such event or circumstance;
(iii) reports on any critical breakdowns or failures in the Project Facilities, including any of the
Weighbridges, within [12 (twelve)] hours of such occurrence;
103
(iv) reports on accidents or other incidents in relation to the O&M personnel or any third party,
including any non-compliance with the EMP or the OHS Plan, along with the actions taken
to minimise recurrence, within [72 (seventy-two)] hours of such occurrence;
(v) daily weight sheets prepared in the format approved by the Authority as part of the O&M
Plan/Waste Acceptance and Rejection Plan, recording the details specified in Clause 18.6 at
the end of each day (i.e., on or before [•] hours every day);
(vi) daily report on the volume of CBG Output produced from the WtB Facility, at the end of
each day (i.e., on or before [•] hours every day);
(vii) [monthly/quarterly] report compiling the data collected from the environmental monitoring
system, on or before the [7th (seventh)] day of the following [month/quarter];
(viii) monthly report on compliance with the KPIs, details of sale of the By-Products and
Recyclable Materials, and details of any Emergency during the relevant month, on or before
the [7th (seventh)] day of the following month. The monthly progress report must be certified
by the Independent Engineer before it is submitted to the Authority;
(ix) copies of any reports, notices or responses submitted for compliance/non-compliance with
Applicable Laws, the terms of this Agreement or Applicable Permits, within [2 (two)] days
of receipt of such notice from or submission of replies to the relevant Government Authority;
and
(x) reports on any material litigation, to which the Concessionaire is a party, and any adverse
orders or judgments passed by any Government Authority that affects or is likely to affect
the performance of the O&M services, as soon as reasonably possible after the occurrence
of any such event.
20.2 Inspection
The Independent Engineer shall inspect the Project Facilities at least once a month. It shall make a report of
such inspection (the O&M Inspection Report) stating in reasonable detail the defects or deficiencies, if any,
with particular reference to the O&M Plan, O&M Standards, KPIs, EMP and the OHS Plan, and send a copy
thereof to the Authority and the Concessionaire within [7 (seven)] days of such inspection.
20.3 Tests
For determining that the Project Facilities conforms to the O&M Plan and the O&M Standards, the
Independent Engineer shall require the Concessionaire to carry out, or cause to be carried out, tests specified
by it. The Concessionaire shall, with due diligence, carry out or cause to be carried out all such tests in
accordance with the instructions of the Independent Engineer and furnish the results of such tests to the
Independent Engineer. The costs incurred on the Tests shall be borne solely by the Concessionaire.
(a) The Concessionaire shall repair or rectify the defects or deficiencies, if any, set out in the O&M
Inspection Report or in the test results referred to in Clause 20.3 and furnish a report to the
Independent Engineer and the Authority within [15 (fifteen)] days of receiving the O&M Inspection
Report or the test results, as the case may be.
104
(b) The Independent Engineer shall require the Concessionaire to carry out or cause to be carried out
tests, at its own cost, to determine if such remedial measures have brought the Project Facilities into
compliance with the O&M Plan and the O&M Standards and the procedure set forth in this Clause
20.4 shall be repeated until the Project Facilities conforms to the O&M Plan and the O&M Standards.
(c) If after the COD, the Concessionaire ceases to operate the WtB Facility for a period of [•] consecutive
hours other than due to a Forced Unavailability, Scheduled Maintenance, or a suspension pursuant
to Clause 27.1 or Clause 27.2, which is not attributable to the Concessionaire, without the prior
written consent of the Authority, then the Authority shall be entitled to step-in and undertake the
O&M of the WtB Facility until the Concessionaire demonstrates to the satisfaction of the Authority
that it can and will resume normal operation and maintenance of the WtB Facility. The exercise of
the Authority’s rights under this Clause 20.4 shall be at the cost, risk and expense of the
Concessionaire. The Concessionaire shall not be entitled to receive any payments for the duration
that the Authority steps-in to operate and maintain the WtB Facility, provided that, any revenue
earned from the O&M of the WtB Facility shall be to the account of the Concessionaire (subject to
payment of all Costs incurred by the Authority in undertaking the O&M of the WtB Facility).
105
ARTICLE 21
(i) The Concessionaire shall ensure that the Availability of the Project Facilities for each month
during the O&M Period shall be [80% (eighty per cent)] (the Availability Guarantee).
The 'Availability’ of the Project Facilities will be determined as a ratio of the number of
hours in a month during which the Project Facilities are available to accept and process
Acceptable Waste up to its Design Capacity, to the total number of hours in such month, and
the term ‘Available’ shall be construed accordingly.
(ii) In computing the Availability of the Project Facilities, the Concessionaire agrees that the
Project Facilities will be deemed to be Available at all times, other than during the period
of:
(B) suspension of the O&M services for the Project Facilities, for reasons attributable
to the Concessionaire (in accordance with Clause 27.1 and 27.2); or
(iii) Notwithstanding anything contained in this Agreement, the Project Facilities will be deemed
to be Available in case of the following:
(B) an Emergency affecting the Project Facilities, which is not attributable to the
Concessionaire.
(iv) If the Concessionaire is unable to achieve the Availability Guarantee in any month during
the O&M Period, then the Concessionaire shall be liable to pay Availability Liquidated
Damages calculated in accordance with the formula set out in Schedule [•]. Provided that,
the Concessionaire shall not be liable to pay any Availability Liquidated Damages during
the Trial Operations period.
(v) The Availability Liquidated Damages payable by the Concessionaire for its failure to
achieve the Availability Guarantee, if any, shall accrue on a monthly basis during the O&M
Period and will be payable by the Concessionaire within [7 (seven)] days from the end of
the month in which the Concessionaire has failed to achieve the Availability Guarantee.
106
(b) Throughput Guarantee
(i) The Concessionaire shall ensure that it accepts all quantities of Acceptable Waste delivered
by the Authority at the Receipt Point, subject to Clause 18.5(e). On any day during the O&M
Period, if the Concessionaire is unable to accept quantities of Acceptable Waste equivalent
to [•]96 TPD (the Throughput Guarantee), then the Concessionaire shall be liable to pay
Throughput Liquidated Damages calculated in accordance with Schedule [•].
(ii) The Concessionaire shall be exempt from achieving the Throughput Guarantee in case of
the following:
(B) an Emergency affecting the Project Facilities, which is not attributable to the
Concessionaire.
(iii) The Throughput Liquidated Damages payable by the Concessionaire for its failure to meet
the Throughput Guarantee, if any, shall accrue during a month on a daily basis but will be
payable by the Concessionaire for the entire month in aggregate, within [7 (seven)] days
from the end of each month during the O&M Period.
(i) The Concessionaire shall ensure that the Residual Inert Matter that is generated from the
WtB Facility or the Residual Waste that is left after Segregation of Mixed Waste, on any
day during the O&M Period shall not exceed in aggregate [7% (seven per cent)] of the Daily
Acceptable Waste Quantity (Residual Inert Matter and Waste Guarantee). If the
Concessionaire is unable to achieve the Residual Inert Matter and Waste Guarantee on any
day of the O&M Period, then the Concessionaire shall be liable to pay Residual Inert Matter
and Waste Liquidated Damages calculated in accordance with the formula set out in
Schedule [•].
(ii) The Residual Inert Matter and Waste Liquidated Damages payable by the Concessionaire
for its failure to achieve the Residual Inert Matter and Waste Guarantee, if any, shall accrue
during a month on a daily basis but will be payable by the Concessionaire for the entire
month in aggregate, within [7 (seven)] days from the end of each month during the O&M
Period.
(d) The Parties acknowledge that the Liquidated Damages are a genuine pre-estimation of and
reasonable compensation for the environmental damage that may be caused and losses that the
Authority may suffer due to the Concessionaire’s failure to comply with the KPIs and not as penalty.
The payment of Liquidated Damages will not absolve the Concessionaire from any other liability
under Applicable Law, including any tortious liability, for causing any environmental pollution or
health hazard due to its failure to comply with the KPIs and/or Applicable Laws.
(e) Within [7 (seven)] days from the end of each quarter, the Concessionaire shall be required to provide
a report on compliance of the WtB Facility with the KPIs (prepared in accordance with Clause
20.1(b)(viii) above), which should indicate the periods during which the WtB Facility did not meet
96
Drafting Note: The minimum amount of Acceptable Waste that the Concessionaire is required to accept on any day of the
O&M Period should be equal to 100% of the Design Capacity of the WtB Facility.
107
the KPIs and the reasons for such failure. The Independent Engineer shall be required to certify each
such report before it is provided to Authority. Such certified report on compliance with KPIs shall
be referred to as the KPI Adherence Report.
108
PART IV – FINANCIAL COVENANTS
109
ARTICLE 22
22.1 [In consideration of the works and services required to be performed by the Concessionaire for designing,
constructing, operating and maintaining the Project Facilities in accordance with this Agreement, the Authority
agrees to pay to the Concessionaire, by way of cash support, an amount equal to INR [•] (being the amount
quoted by the Selected Bidder in its Financial Proposal), subject to, and in accordance with, the provisions of
this Article 22 (Grant).
22.2 The Concessionaire shall be deemed to have satisfied itself regarding the sufficiency of the Grant. No
adjustments shall be made to the Grant payable to the Concessionaire, except for any adjustment in accordance
with Clause 32.2 (as a consequence of a Change in Law) or any permitted Variation. The Grant shall be disbursed
by the Authority in accordance with the provisions of Clause 22.3.
(a) Upon the completion of the Project Milestones, the Authority shall credit the corresponding portion
of the Grant to the Escrow Account in accordance with Clause 22.3(c)(iii) below. The Grant shall be
applied by the Concessionaire to meet the Total Project Cost.
(b) [Notwithstanding the amount quoted by the Selected Bidder in its Financial Proposal, the Grant that
the Concessionaire is entitled to under this Agreement shall be the lower of the following amounts:
(i) the sum specified by the Selected Bidder in the Bid and as accepted by the Authority;
(ii) the sum equal to [150% (one hundred and fifty per cent)] of the Equity Contribution; and
(iii) an amount not exceeding [30% (thirty per cent)] of the Total Project Cost.]
(i) Subject to this Clause 22.3(c), the Grant will be paid by the Authority to the Concessionaire
in the following instalments:
(A) 1st (first) instalment of [25% (twenty per cent)] of the Grant, upon issue of the
Milestone Completion Certificate for the 1st (first) Project Milestone;
(B) 2nd (second) instalment of [25% (twenty per cent)] of the Grant, upon issue of the
Milestone Completion Certificate for the 2nd (second) Project Milestone;
(C) 3rd (third) instalment of [25% (twenty per cent)] of the Grant, upon issue of the
Milestone Completion Certificate for the 3rd (third) Project Milestone; and
(D) 4th (fourth) instalment of [25% (twenty per cent)] of the Grant, upon issue of the COD
Certificate (or the deemed COD Certificate).
(ii) Within [7 (seven) days] of issue of the Milestone Completion Certificate for a Project
Milestone, or the COD Certificate (or the deemed COD Certificate), as the case may be, the
Concessionaire shall submit an Invoice to the Authority for the amount of the Grant linked to
110
such Project Milestone. Any Invoice raised by the Concessionaire for the Grant shall be
accompanied by a copy of the relevant Milestone Completion Certificate and/or the COD
Certificate, as the case may be, issued by the Authority, provided that in case the COD
Certificate is deemed to be issued under Clause 17.1(b)(iii) then the Invoice raised by the
Concessionaire shall be accompanied by a copy of the COD Request Notice.
(iii) Within [30 (thirty)] days of receipt of an Invoice from the Concessionaire pursuant to Clause
22.3(c)(ii) above, the Authority shall verify and certify the amounts due and payable to the
Concessionaire, and either:
(A) approve the Invoice and issue a certificate to the Escrow Bank (with a copy to the
Concessionaire), conveying its approval for the release of the amount specified in the
Invoice, less any necessary deductions or adjustments in accordance with this
Agreement and/or Applicable Laws (including for payments to be made by the
Concessionaire under applicable labour laws and Liquidated Damages, if any); or
(B) issue a notice to the Concessionaire disputing the Invoice and directing the
Concessionaire to issue a revised Invoice, after rectifying the errors or discrepancies
identified by the Authority. If the Authority disputes only part of the Invoice, the
Authority shall issue a certificate to the Escrow Bank (with a copy to the
Concessionaire), conveying its approval for the release of the undisputed amount
specified in the Invoice less any necessary deductions or adjustments in accordance with
this Agreement and/or Applicable Laws.
(iv) The Concessionaire shall submit a revised Invoice to the Authority after rectifying the errors
or discrepancies identified by the Authority and this process will be repeated until the
Authority approves the Invoice.
(v) Any dispute between the Parties in relation to a disputed Invoice will be settled in accordance
with Article 34.
(vi) A certificate issued by the Authority in accordance with Clause 22.3(c)(iii)(A) shall be referred
to as a Payment Certificate.
(vii) If, within [30 (thirty)] days from the date of receipt of an Invoice, the Authority does not
dispute an Invoice, then the Invoice shall be deemed to have been accepted by the Authority,
and the Concessionaire shall have the right to issue instructions to the Escrow Bank (with a
copy to the Authority) to release the amounts specified in the Invoice, upon the expiry of the
[30 (thirty)] day period.
(viii) Immediately upon receipt of a Payment Certificate from the Authority in accordance with
Clause 22.3(c)(iii) or upon receipt of instructions from the Concessionaire in accordance with
Clause 22.3(c)(vii), the Escrow Bank shall release the amount specified in the Payment
Certificate, or, if no Payment Certificate has been issued, then the amount specified in the
relevant Invoice, in accordance with the Escrow Agreement.
(ix) Notwithstanding anything to the contrary in this Agreement, the Authority shall have no
obligation to issue a Payment Certificate unless:
(A) the Performance Security remains valid and in effect at the time;
111
(B) the insurances to be obtained by the Concessionaire in accordance with Article 25 are
valid and in effect;
(C) the Concessionaire Applicable Permits for design, construction and completion of the
Project Facilities are in full force and effect, unless the withdrawal or cancellation of
any Applicable Permit is not attributable to the Concessionaire’s failure to comply with
Applicable Laws;
(D) the Concessionaire has complied with the EMP and OHS Plan in undertaking the design,
construction and O&M of the Project Facilities; and
(a) As consideration for accepting, handling, Segregating, processing and disposing of Acceptable
Waste in accordance with this Agreement, the Authority agrees to pay to the Concessionaire, an
amount equal to INR [•] (being the amount quoted by the Selected Bidder in its Financial Proposal)
per ton of Acceptable Waste accepted by the Concessionaire at the Receipt Point in a month
(Processing Fee), provided that no Processing Fee shall be paid during the Trial Operations period.
(b) The Concessionaire shall, on the [5th (fifth)] day of every month after the COD, or in case the [5 th
(fifth)] day of a month is a holiday, then on the following working day of such month, submit to the
Authority a statement (Processing Fee Statement) setting out the aggregate Daily Acceptable Waste
Quantities delivered by the Authority during the preceding month, along with copies of the daily
weight-sheets for the Daily Acceptable Waste Quantity certified by the Independent Engineer.
(c) The Processing Fee Statement shall be accompanied by an Invoice setting out the total amounts
payable by the Authority towards the Processing Fee.
(d) Within [30 (thirty)] days of receipt of an Invoice from the Concessionaire pursuant to Clause 22.4(c)
above, the Authority shall verify and certify the amounts due and payable to the Concessionaire, and
either:
(i) approve the Invoice and issue a certificate to the Escrow Bank (with a copy to the
Concessionaire), conveying its approval for the release of the amount specified in the Invoice,
less any necessary deductions or adjustments in accordance with this Agreement and/or
Applicable Laws (including for payments to be made by the Concessionaire under applicable
labour laws and Liquidated Damages, if any); or
(ii) issue a notice to the Concessionaire disputing the Invoice and directing the Concessionaire to
issue a revised Invoice, after rectifying the errors or discrepancies identified by the Authority.
If the Authority disputes only part of the Invoice, the Authority shall issue a certificate to the
Escrow Bank (with a copy the Concessionaire), conveying its approval for the release of the
undisputed amount specified in the Invoice less any necessary deductions or adjustments in
97 Drafting Note: In the event that the bidding parameter for the Project is a Processing Fee to be quoted by the Bidders for accepting and
handling waste, the provisions of Clauses 22.1, 22.2 and 22.3 relating to the Grant shall be substituted by the provisions of Clause 22.4 relating
to the payment of the Processing Fee and the Clauses shall be renumbered accordingly. If no Processing Fee is payable, then this Clause 22.4
should be deleted and subsequent clauses re-numbered accordingly. Provided that, if both a Grant and a Processing Fee are payable then both
provisions should be retained and the invoicing process as set out for the Grant and the Processing Fee will continue given that payments for
each are required to be made at different stages.
112
accordance with this Agreement and/or Applicable Laws.
(e) The Concessionaire shall submit a revised Invoice to the Authority after rectifying the errors or
discrepancies identified by the Authority and this process will be repeated until the Authority
approves the Invoice.
(f) Any dispute between the Parties in relation to a disputed Invoice will be settled in accordance with
Article 34.
(g) A certificate issued by the Authority in accordance with Clause 22.4(d)(i) shall be referred to as a
Payment Certificate.
(h) If, within [30 (thirty)] days from the date of receipt of an Invoice, the Authority does not dispute an
Invoice, then the Invoice shall be deemed to have been accepted by the Authority, and the
Concessionaire shall have the right to issue instructions to the Escrow Bank (with a copy to the
Authority) to release the amounts specified in the Invoice, upon the expiry of the [30 (thirty)] day
period.
(i) Immediately upon receipt of a Payment Certificate from the Authority in accordance with Clause
22.4(d) or upon receipt of instructions from the Concessionaire in accordance with Clause 22.4(h),
the Escrow Bank shall release the amount specified in the Payment Certificate, or, if no Payment
Certificate has been issued, then the amount specified in the relevant Invoice, in accordance with the
Escrow Agreement.
(j) Notwithstanding anything to the contrary in this Agreement, the Authority shall have no obligation
to issue a Payment Certificate unless:
(i) the Performance Security remains valid and in effect at the time;
(ii) the insurances to be obtained by the Concessionaire in accordance with Article 25 are valid
and in effect;
(iii) the Concessionaire Applicable Permits for design, construction and completion of the Project
Facilities are in full force and effect, unless the withdrawal or cancellation of any Applicable
Permit is not attributable to the Concessionaire's failure to comply with Applicable Laws;
(iv) the Concessionaire has complied with the EMP and OHS Plan in undertaking the design,
construction and O&M of the Project Facilities; and
22.5 [Royalty98
(a) In consideration of the grant of the Concession, the Concessionaire agrees to pay to the Authority, in
accordance with this Clause 22.5, an amount equal to INR [•] per year plus GST (Royalty). The
98Drafting Note: In the event that the bidding parameter for the Project is a Royalty to be quoted by the Bidders, the provisions of Clauses
22.1, 22.2 and 22.3 relating to the Grant and Clause 22.4 relating to Processing Fee shall be substituted by the provisions of Clause 22.5 relating
to the payment of the Royalty and the Clauses shall be renumbered accordingly. If no Royalty is payable, then this Clause 22.5 should be
deleted and subsequent clauses re-numbered accordingly. Provided that, if both a Grant and a Royalty are payable then provisions relating to
both Grant and Royalty should be retained. The Authority to note that prior to including provisions in relation to Royalty, the Authority must
carry out financial modelling to assess if payment of Royalty by the Concessionaire is financially viable.
113
Royalty shall be payable by the Concessionaire in accordance with Clause 22.5(b) by way of a
NEFT/RTGS/IMPS transfer into a bank account notified by the Authority to the Concessionaire for
this purpose.
(b) Commencing from the COD and until the expiry of the Concession Period, the Royalty shall be
payable in 12 (twelve) equal monthly installments (Monthly Royalty).
(c) [The Royalty shall be escalated by an amount equal to [5% (five per cent)] on the [3rd (third)]
anniversary of the COD and shall, thereafter, be escalated by [5% (five per cent)] every [3 (three)]
years until the expiry of the Concession Period.]99
(d) Without prejudice to the Guaranteed Waste Liquidated Damages payable under Clause 18.7, if the
Daily Acceptable Waste Quantity is less than the Daily Guaranteed Acceptable Waste Quantity for
[3 (three)] or more consecutive days in a month (Consecutive Shortfall Days), then then the Royalty
payable by the Concessionaire for the month in which the Consecutive Shortfall Days occur shall be
reduced and calculated as follows:
Monthly Royalty to be paid in any month where there are Consecutive Shortfall Days = Monthly
Royalty minus (Shortfall Quantity over Consecutive Shortfall Days multiplied by the Royalty Per
Ton).
Where,
Royalty Per Ton = (Monthly Royalty divided by the number of days in the relevant month) divided
by Daily Guaranteed Acceptable Waste Quantity
Illustration
Monthly Royalty for the month of April = INR 30,000 (thirty thousand)
Therefore, Royalty per Ton = (INR 30,000 (thirty thousand) divided by 30 (thirty) days) divided by
50 (fifty) TPD = INR 20 (twenty) per ton
If during a month there is a Shortfall Quantity of 10 (ten) TPD for 3 (three) consecutive days, then
the Shortfall Quantity over the Consecutive Shortfall Days = 30 (thirty) TPD
Monthly Royalty = 30,000 (thirty thousand) - (30 (thirty) x 20 (twenty)) = INR 29,400
(e) The Royalty payable by the Concessionaire to the Authority may be set off by the Concessionaire
against any Guaranteed Waste Liquidated Damages payable by the Authority to the Concessionaire
for a failure by the Authority to deliver the Daily Guaranteed Acceptable Waste Quantity in
accordance with the terms of this Agreement.
(f) Notwithstanding anything to the contrary in this Agreement, the Concessionaire shall have no
obligation to make a payment of Royalty if:
99
Drafting Note: To be deleted if the Royalty is fixed for the entire Concession Period with no escalation.
114
(i) the Authority suspends delivery of Acceptable Waste; and
(g) Subject to Article 28, any Royalty that is withheld by the Concessionaire during subsistence of the
event(s) contemplated under Clause 22.5(f)(i) and 22.5(f)(ii) above, will be released by the
Concessionaire to the Authority within [•] days of the Authority remedying the default and such
event(s) ceasing to exist.]
(a) On or before the Appointed Date, the Authority shall provide the Concessionaire with an
unconditional, revolving, irrevocable stand-by and payable at sight letter of credit (LC) issued by a
Scheduled Bank in the form set out in Schedule [•] for an amount equal to the Minimum Escrow
Balance, which may be drawn upon by the Concessionaire in accordance with this Article 22 and
Article 24. The LC shall have an initial term of [12 (twelve)] months and shall be renewed
automatically, for an amount equivalent to the [•].
(b) The [Authority] will be responsible for the LC opening charges, the LC extension charges, advising
bank charges and discrepancy charges, if any.
(c) If, during the Concession Period, the Concessionaire is unable to obtain payment of any undisputed
amounts due to it from the Escrow Account in accordance with [Clause 22.3(c)(vii)]100 [and /or]
[Clause 22.4(i)]101, because of an insufficiency of funds in the Escrow Account, or due to any other
reason, the Concessionaire shall have the right to draw upon the LC for any outstanding payments
due to the Concessionaire and accordingly the LC issuing bank shall pay without any reference to
instructions from the Authority, an amount equivalent to the undisputed amounts which is due and
payable, on receipt of copy of the Invoice issued by the Concessionaire to the Authority.
(d) If the Concessionaire draws down on the LC at any point in time pursuant to sub-clause (c) above,
the Authority shall replenish and restore the LC to its full value within [7 (seven)] days.
(e) The Authority shall cause the LC issuing bank to intimate the Concessionaire in writing regarding
the establishing of the LC.
(f) The Authority shall ensure that the LC is renewed no later than [10 (ten)] days prior to the expiry of
such LC.]102
(a) The Confirming Party hereby guarantees the payment of any undisputed amounts due and payable
to the Concessionaire under this Agreement, including the [Concessionaire Payments and] 103
Termination Compensation (if any), if[: [(i) in case of the Concessionaire Payments, the
Concessionaire is unable to recover such payments from the Escrow Account and the LC; and (ii)]104
in the case of the termination payments, the Authority fails to make such payments to the
Concessionaire within the timelines set out in Article 29.
100 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire.
101 Drafting Note: Square bracketed portion to be deleted if no Processing Fee is being paid to the Concessionaire.
102 Drafting Note: Square bracketed portion to be deleted if no Grant or Processing Fee is being paid to the Concessionaire.
103 Drafting Note: Square bracketed portion to be deleted if no Grant or Processing Fee is being paid to the Concessionaire.
104 Drafting Note: Square bracketed portion to be deleted if no Grant or Processing Fee is being paid to the Concessionaire.
115
(b) In the event that any amount due and payable by the Authority under this Agreement is not paid
within the period provided in the Agreement and Concessionaire has failed to recover such amounts
from (i) the Escrow Account[; or (ii) the LC]105, for any reason not attributable to the Concessionaire,
the Concessionaire shall issue a notice to the Confirming Party and the Confirming Party shall pay
such amounts to the Concessionaire within [30 (thirty)] days from the date of the notice.
(b) [The Authority may deduct from the Concessionaire Payments and any other amounts due to the
Concessionaire, any income tax or withholding tax that is required to be deducted at source.]107
(c) The Concessionaire shall be responsible for payment of all applicable Taxes, including all procedural
compliances related to the payment of Taxes pursuant to this Agreement, and shall be solely
responsible for any proceedings initiated by any Government Authority, in respect of any non-payment
or short-payment of Taxes.
(d) The Concessionaire shall be responsible for payment of all applicable royalties on any fine and coarse
aggregate, core sand, fine sand, grit and any other minerals extracted and/or used by the Concessionaire
or any Subcontractor for the construction of the Project Facilities and furnish proof of payment of such
royalties to the Authority [along with the Invoices for the Concessionaire Payments]108.
(e) Upon a request from the Concessionaire, the Authority will provide all relevant certificates and
information to enable the Concessionaire to obtain any Tax exemptions available in relation to the
Project. It is clarified that the Authority shall not be responsible in any manner for ensuring that any
applicable Tax exemptions are available to the Concessionaire.
(f) The Concessionaire shall indemnify the Authority from and against any cost or liability that may arise
due to the Concessionaire's failure to pay all applicable Taxes, in connection with the Project.
(g) Any Taxes payable in relation to the Site shall be borne by the Authority.
Upon any Party's failure to make a payment due and payable by it on the due date for such payment, the
defaulting Party shall be liable to pay default interest on all such outstanding amounts at the rate of [•] per
annum or part thereof. This is without prejudice to any Party's right to terminate this Agreement in accordance
with Article 28 or any other right or remedy available to it under this Agreement or Applicable Laws.
The Concessionaire shall not be entitled to retain or set off any amount due to the Authority by it [(other than
the Concessionaire’s right to set off any payment of the Royalty against the Guaranteed Waste Liquidated
Damages due and payable to it by the Authority in accordance with Clause 22.5(e))]109, but the Authority
105 Drafting Note: Square bracketed portion to be deleted if no Grant or Processing Fee is being paid to the Concessionaire.
106 Drafting Note: Square bracketed portion to be deleted if no Grant or Processing Fee is being paid to the Concessionaire.
107 Drafting Note: Square bracketed portion to be deleted if no Grant or Processing Fee is being paid to the Concessionaire.
108 Drafting Note: Square bracketed portion to be deleted if no Grant or Processing Fee is being paid to the Concessionaire.
109 Drafting Note: Square bracketed portion to be deleted if no Royalty is being paid by the Concessionaire.
116
may retain or set off any amount owed to it by the Concessionaire under this Agreement, which has fallen
due and payable against any amount due to the Concessionaire under this Agreement. The Authority shall
notify the Concessionaire at the time it exercises its right to set-off and shall provide the Concessionaire its
reasons for exercising such right to set-off.
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ARTICLE 23
(a) The Concessionaire shall maintain books of accounts recording all its receipts (including revenue
from sale of the CBG Output and other revenues derived/collected by it from or on account of the
Project Facilities and/or its use), income, expenditure, payments, assets and liabilities, in accordance
with this Agreement, Good Industry Practice, Applicable Laws and Applicable Permits.
(b) The Concessionaire shall provide [2 (two)] copies of its balance sheet, cash flow statement and profit
and loss account, along with a report thereon by its Statutory Auditors, within [180 (one hundred and
eighty)] days of the close of the Accounting Year to which they pertain and such audited accounts,
save and except where expressly provided to the contrary, shall form the basis of payments by the
Parties under this Agreement, to the extent required. The Authority shall have the right to inspect the
records of the Concessionaire during office hours and require copies of relevant extracts of books of
accounts, duly certified by the Statutory Auditors, to be provided to the Authority for verification of
basis of payments, and in the event of any discrepancy or error being found, the same shall be
rectified and such rectified account shall form the basis of payments by the Parties under this
Agreement.
(c) The Concessionaire shall, within [45 (forty-five)] days of the close of each quarter of an Accounting
Year, furnish to the Authority its unaudited financial results in respect of the preceding quarter, in
the manner and form prescribed by the Securities and Exchange Board of India for publication of
quarterly results by the companies listed on a stock exchange.
(a) The Concessionaire shall appoint and have during the subsistence of this Agreement as its Statutory
Auditors, a firm chosen by it from the mutually agreed list of [10 (ten)] reputable firms of chartered
accountants (the Panel of Chartered Accountants). All fees and expenses of the Statutory Auditors
shall be borne by the Concessionaire.
(b) The Concessionaire may terminate the appointment of its Statutory Auditors after a notice of [45
(forty-five)] days to the Authority, subject to the replacement Statutory Auditors being appointed
from the Panel of Chartered Accountants.
(c) Notwithstanding anything to the contrary contained in this Agreement, the Authority shall have the
right, but not the obligation, to appoint at its cost from time to time and at anytime, another firm from
the Panel of Chartered Accountants to audit and verify all those matters, expenses, costs, realisations
and things which the Statutory Auditors are required to do, undertake or certify pursuant to this
Agreement.
Any claim or document provided by the Concessionaire to the Authority in connection with or relating to
receipts, income, payments, costs, expenses, accounts or audit, and any matter incidental thereto shall be
valid and effective only if certified by its Statutory Auditors.
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ARTICLE 24
Prior to the Appointed Date, the Concessionaire, the Confirming Party, the Authority and the Escrow Bank
shall enter into the Escrow Agreement, substantially in the format set out in Schedule [•], and the Authority
shall open the Escrow Account with the Escrow Bank in accordance with the Escrow Agreement. The Escrow
Account shall be operational until the expiry of the Concession Period. The Escrow Agreement shall set out
the terms of appointment of the Escrow Bank [and the Authority's obligation to deposit the Concessionaire
Payments]110 in accordance with this Agreement.
(i) [an amount equal to the first instalment of the Grant payable to the Concessionaire as set out
in Clause 22.3(c)(i) prior to the Appointed Date, and from the Appointed Date, the Authority
shall ensure that the Escrow Account is funded with an amount equal to the next instalment
of the Grant due and payable to the Concessionaire in accordance with Clause 22.3;]111
[and/or]
(ii) [at least [30 (thirty)] days prior to the Scheduled COD, an amount equal to the estimated
Processing Fee due and payable to the Concessionaire for a period of 3 (three) months, and
shall ensure that the Escrow Account is funded at all times till the expiry of the Concession
Period or early termination of this Agreement, with such an amount,]112
(b) If at any time after the Appointed Date, the balance in the Escrow Account falls below the Minimum
Escrow Balance, the Authority shall promptly, and in any event, no later than [60 (sixty)] days, fund
the Escrow Account such that the Minimum Escrow Balance is maintained.
(c) Any interest earned on the amounts deposited by the Authority in the Escrow Account will be
counted towards the Minimum Escrow Balance.
(d) If at any time after the Appointed Date, the balance in the Escrow Account falls below the Minimum
Escrow Balance and the Authority is unable to rectify this within [•] days, the Confirming Party shall
promptly fund the Escrow Account such that the Minimum Escrow Balance is maintained.]113
(a) The Concessionaire shall deposit or cause to be deposited the following inflows and receipts into the
Escrow Account:
110 Drafting Note: Square bracketed portion to be deleted if no Grant or Processing Fee is being paid to the Concessionaire.
111 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire.
112 Drafting Note: Square bracketed portion to be deleted if no Processing Fee is being paid to the Concessionaire.
113 Drafting Note: Square bracketed portion to be deleted if no Grant or Processing Fee is being paid to the Concessionaire.
119
(i) all funds constituting the Financial Package disbursed by Lenders in terms of the Financing
Documents;
(ii) all revenues from the sale of the CBG Output, By-Products, Recyclable Materials, certified
emission reductions and verified emission reductions by the Concessionaire;
(iii) proceeds of any rentals, deposits, capital receipts or insurance claims; and
(iv) all payments by the Authority and the Confirming Party, after deduction of any outstanding
payments,
provided that, the senior Lenders may make a direct disbursement to the EPC contractor in
accordance with the express provisions contained in the Financing Documents.
(b) [The Authority and the Confirming Party shall at all times and in any month of the Concession
Period, ensure that in a reserve sub-account (the Reserve Fund) under the Escrow Account, an
amount equivalent to the Minimum Escrow Balance, in accordance with Clause 24.2, is deposited
and maintained. The Parties agree that so long as the Concessionaire performs its obligations
hereunder and the Authority does not notify the Escrow Bank in respect of any non-performance or
breach of obligation by the Concessionaire directing Escrow Bank to stop any appropriation from
Reserve Fund; in case of any delay by the Authority in the payment of any due and undisputed
amount to the Concessionaire subject to and in accordance with terms hereof, the Concessionaire
shall be entitled to tap the Reserve Fund to withdraw the amount due, which would be deposited and
applied as per the application order agreed herein. In case of such tapping, the Authority shall
forthwith top up and maintain the Minimum Escrow Balance in the Reserve Fund.]114
(a) The Concessionaire shall, at the time of opening the Escrow Account, give irrevocable instructions
by way of the Escrow Agreement, to the Escrow Bank instructing, inter-alia, that deposits in the
Escrow Account shall be appropriated in the following order every month, or at shorter intervals as
necessary, and if not due in a month then appropriated proportionately in such month and retained
in the Escrow Account and paid out there from in the month when due:
(i) all taxes due and payable by the Concessionaire for and in respect of the Project;
(ii) all payments relating to construction of the Project, subject to and in accordance with the
conditions, if any, set forth in the Financing Documents;
(iii) the O&M Expenses, subject to the ceiling, if any, set forth in the Financing Agreements;
(iv) the O&M Expenses and other costs and expenses incurred by the Authority in accordance
with the provisions of this Agreement, and certified by the Authority as due and payable to
it;
114 Drafting Note: Square bracketed portion to be deleted if no Grant or Processing Fee is being paid to the Concessionaire.
120
(vii) all payments and damages certified by the Authority as due and payable to it by the
Concessionaire;
(viii) monthly proportionate provision of debt service payments due in an Accounting Year in
respect of Subordinated Debt;
(ix) any reserve requirements set forth in the Financing Documents; and
(b) The Concessionaire shall not in any manner modify the order of payment specified in Clause 24.4(a)
above, except with the prior written approval of the Authority.
(c) The Authority shall have the right, and the Concessionaire hereby expressly grants to the Authority
the right, to recover the costs and damages directly from the Escrow Account, and for that purpose,
the Concessionaire hereby agrees to give irrevocable instructions to the Escrow Bank to make
payment from the Escrow Account in accordance with the instructions of the Authority. Any demand
from the Authority stating that a specified amount is payable shall be final, binding and conclusive
on the Concessionaire and Escrow Bank, and Escrow Bank shall pay, and Concessionaire shall cause
the Escrow Bank to pay such amount without any demur, delay, cavil or protest on receiving a
demand for such costs and damages.
(a) Notwithstanding anything to the contrary contained in this Agreement, all amounts standing to the
credit of the Escrow Account shall, upon expiry of Concession Period or termination of this
Agreement, be appropriated in the following order:
(i) all taxes due and payable by the Concessionaire for and in respect of the Project;
(ii) percentage of Debt Due excluding Subordinated Debt if required to be as per the terms of
this Agreement;
(iv) all payments and damages certified by the Authority as due and payable to it by the
Concessionaire;
(v) retention and payments relating to the liability for defects and deficiencies;
(ix) any other payments required to be made under this Agreement; and
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Provided that no appropriations shall be made under Clause 24.5(a)(x) until a Vesting Certificate has
been issued by the Authority in accordance with Clause 30.4.
(b) The provisions of this Clause 24.5 and the instructions contained in the Escrow Agreement shall
remain in full force and effect until the obligations set forth in Clause 24.5(a) have been fully
discharged.
122
ARTICLE 25
25. INSURANCE
25.1 The Concessionaire shall, obtain and maintain the policies of insurance set out in this Article 25 in the minimum
coverage amounts and during the specified periods for the Project Facilities. In addition, the Concessionaire shall
obtain any additional coverage required by Applicable Laws and/or deemed necessary by the Concessionaire,
the Lenders or the Authority in accordance with this Article 25.
25.2 During the Construction Period, the Concessionaire shall obtain and maintain such insurances for such maximum
sums as may be required under the Financing Documents and Applicable Laws, and such insurances as may be
necessary or prudent in accordance with Good Industry Practices.
25.3 During the O&M Period, the Concessionaire shall obtain and maintain insurance policies including but not
limited to the following:
(b) comprehensive third party liability insurance including injury to or death of personnel of the
Authority or others caused by the Project;
(f) any other insurance that may be necessary to protect the Project Facilities, the Concessionaire and its
employees, including for all Force Majeure Events that are insurable at commercially reasonable
premiums and not otherwise covered in items (a) to (e) above.
25.4 The level of insurance to be maintained by the Concessionaire shall be determined in accordance with the
Financing Documents. The level of insurance to be maintained by the Concessionaire after repayment of the
Lenders' dues in full shall be determined on the same principles as applicable for determining the level of
insurance prior to such repayment of the Lenders' dues, in accordance with the Financing Documents.
25.5 The Concessionaire shall, within [30 (thirty)] days of the Appointed Date, provide a notice to the Authority,
setting out information in respect of the insurances that it proposes to obtain and maintain. Within [15 (fifteen)]
days of receipt of such notice, the Authority may require the Concessionaire to obtain and maintain such other
insurances as it may deem necessary, and in the event of any difference or disagreement relating to any such
insurance, the provisions of Article 34 shall apply.
25.6 The Concessionaire shall purchase insurance from reputable Indian and/or international companies licensed to
operate in India, at competitive terms, and shall maintain the insurances on terms consistent with Good Industry
Practices. Within [15 (fifteen)] days of obtaining any Insurance Cover, the Concessionaire shall furnish to the
Authority, notarised true copies of the certificate(s) of insurance, copies of insurance policies and premia
payment receipts in respect of such insurance.
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(a) the Authority shall be additional insured under all policies maintained by the Concessionaire in
relation to the Site and the Project, against loss or damage;
(b) the insurers shall waive all rights of subrogation against the Authority;
(c) the insurance policy may not be cancelled or materially changed by the insurer without giving [45
(forty-five)] days' prior written notice, except in the case of non-payment, in which case it will be
[10 (ten)] days' prior written notice, to the Authority; and
(d) the Authority shall not be responsible for payment of any insurance premium.
25.8 Any changes in the insurances which impact the Site or the Project Facilities will need the prior written consent
of the Authority, which consent shall not be unreasonably withheld.
25.9 The Concessionaire shall apply proceeds from all insurance claims, except life and injury, for any necessary
repair, reconstruction, reinstatement, replacement, improvement, delivery or installation of the Project Facilities,
and the balance remaining, if any, shall be applied in accordance with the provisions contained in this behalf in
the Financing Documents.
25.10 If the Concessionaire fails to procure or maintain any insurance required pursuant to this Article 25 which is
required to be obtained for the Site or the Project, the Authority shall have the right to procure and maintain such
insurance in accordance with the requirements of this Article 25 and charge the full cost thereof to the
Concessionaire.
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PART V – FORCE MAJEURE AND TERMINATION
125
ARTICLE 26
(a) A Force Majeure Event means any act, event or circumstance or a combination of acts, events or
circumstances or the consequence(s) thereof occurring after the date of this Agreement, which is/are:
(ii) such that the Affected Party is unable to overcome or prevent despite exercise of due care
and diligence;
(iii) which does/do not result from the negligence of such Affected Party or the failure of such
Affected Party to perform its obligations hereunder; and
(b) A Force Majeure Event means the following events and circumstances to the extent that they satisfy
the conditions set out in Clause 26.1(a):
(A) acts of God including storm, tempest, cyclone, hurricane, tsunami, flood, whirlwind,
lightning, earthquake, washout, landslide, soil erosion, volcanic eruption, or extreme
adverse weather or environmental conditions or actions of the elements;
(B) fire or explosion caused by reasons not attributable to the Concessionaire or any
Concessionaire Related Parties;
(F) strikes or boycotts (other than those involving the Concessionaire, its Subcontractors or
its employees) interrupting supplies or services for a continuous period of [7 (seven)]
days and an aggregate period exceeding [14 (fourteen)] days and not being an Indirect
Political Force Majeure Event;
(G) accidents of navigation, air crash, shipwreck, train wreck or other similar failures of
transportation of equipment and/or material necessary for construction or O&M of the
Project Facilities; and
(H) any failure or delay by a Subcontractor but only to the extent caused by another Non-
Political Force Majeure Event and which does not result in any offsetting compensation
being payable to the Concessionaire by or on behalf of such Subcontractor.
126
Non-Political Force Majeure Event shall not include the following conditions, except to the
extent resulting from a Non-Political Force Majeure Event:
(A) hostilities (whether declared as war or not), riot, civil disturbance, revolution, rebellion,
insurrection, act of terrorism, in each case involving the GoI or the [the relevant State
Government] or occurring in [insert the State where the Project Facilities are located];
(B) invasion, armed conflict, coup d'etat, act of foreign enemy, blockade, embargo,
revolution, insurgency, nuclear blast/explosion, politically motivated sabotage,
religious strife or civil commotion, in each case involving the GoI or the [the relevant
State Government] or occurring in [insert the State where the Project Facilities are
located];
(C) strikes, lockout, boycotts or other industrial disputes which are not directly attributable
to the actions of the Affected Party;
(D) any protests by rag pickers who are meant to be relocated and resettled by the Authority;
(E) any protests/agitation by members of the public against development of the Project
Facilities at the Site;
(G) failure of the Authority to permit the Concessionaire to continue perform its obligations
under this Agreement, with or without modifications, in the event of stoppage of any
works after discovery of any geological or archaeological finds or for any other reason;
(H) any failure or delay of any Subcontractor but only to the extent caused by another
Indirect Political Force Majeure Event and which does not result in any offsetting
compensation being payable to the Concessionaire by or on behalf of such
Subcontractor;
127
(I) the imposition, by any Government Authorities, of any lockdowns, curfews or
mandatory quarantine rules arising out of the occurrence of any Non-Political Force
Majeure Event or otherwise, which prevents the construction and/or O&M of the Project
Facilities for an aggregate period exceeding [7 (seven)] days in an Accounting Year;
(A) occurrence of a Change in Law, to the extent that its consequences cannot be dealt with
under and in accordance with the provisions of Article 32 and its effect, in financial
terms, exceeds the sum specified in Clause 32.1;
(B) compulsory acquisition in national interest or expropriation of the Site and/or the Project
Facilities;
(C) any order, notification or judgement issued or passed by any Government Authority,
including the National Green Tribunal, which declares the construction and/or operation
of the Project Facilities on the Site to be unlawful or opposed to public health and
sanitation or as being a threat to the environment and/or ecologically sensitive
areas/zones near the Site (including bird sanctuaries, wildlife sanctuaries, etc.) and
accordingly requires the Authority to cease the construction and/or operation of the
Project Facilities at the Site, unless such judgement is, in any manner, attributable to the
Concessionaire;
(D) any failure or delay of any Subcontractor but only to the extent caused by another Direct
Political Force Majeure Event and which does not result in any offsetting compensation
being payable to the Concessionaire by or on behalf of such Subcontractor;
(i) any act, event or circumstance which primarily affects any of the Concessionaire Related
Parties associated with the Project shall constitute a Force Majeure Event if and to the extent
that it is of a kind or character that, if it had directly affected the Concessionaire, it would
have come within the definition of Force Majeure Event under this Clause 26.1; and
(ii) any act, event or circumstance which primarily affects any of Authority Related Parties shall
constitute a Force Majeure Event if and to the extent that it is of a kind or character that, if
it had directly affected Authority, it would have come within the definition of Force Majeure
Event under this Clause 26.1.
(d) If the Parties are unable to agree in good faith on the occurrence or existence of a Force Majeure
Event, such dispute shall be finally settled in accordance with the dispute resolution procedure set
out in Article 34, provided however that the burden of proof as to the occurrence or existence of such
Force Majeure Event shall be upon the Affected Party.
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26.2 Notice of Force Majeure Events
(a) The Affected Party shall give notice to the other Party in writing of the occurrence of any Force
Majeure Event (the FM Notice), as soon as the same arises or as soon as reasonably practicable and
in any event within [3 (three)] days after the Affected Party knew of its occurrence. The FM Notice
shall set out (i) the nature and extent of each Force Majeure Event which is the subject of any claim
for relief under this Article 26 with evidence in support thereof; (ii) the estimated duration and the
effect or probable effect which such Force Majeure Event is having or will have on the Affected
Party’s performance of its obligations under this Agreement and (iii) the measures which the Affected
Party is taking or proposes to take for alleviating the impact of such Force Majeure Event.
(b) If, following the issue of the FM Notice, the Affected Party receives or becomes aware of any further
information relating to the Force Majeure Event, it shall submit such further information to the other
Party as soon as reasonably practicable.
(c) Any party claiming to have been affected by a Force Majeure Event shall not be entitled to any relief
unless it has complied with all the provisions of this Clause 26.2.
The Affected Party, to the extent rendered unable to perform its obligations or part of the obligation thereof
under this Agreement as a consequence of the Force Majeure Event, shall be excused from performance of
the affected obligations, provided that the period shall not exceed [120 (one hundred and twenty)] days for a
Non-Political Force Majeure Event, [90 (ninety)] days for an Indirect Political Force Majeure Event and [60
(sixty)] days for a Direct Political Force Majeure Event from the date of issuance of the FM Notice.
Save and except as expressly provided in this Agreement, no Party shall be liable in any manner whatsoever
to the other Parties in respect of any loss relating to or arising out of the occurrence or existence of any Force
Majeure Event or the exercise by it of any right pursuant to this Article 26.
The Affected Party shall in consultation with the other Parties, make all reasonable efforts to limit or mitigate
the effects of a Force Majeure Event on the performance of its obligations under this Agreement. The
Affected Party shall also make efforts to resume performance of its obligations under this Agreement as soon
as possible and upon resumption, shall notify the other Parties of the same in writing. The other Parties shall
afford all reasonable assistance to the Affected Party in this regard.
(a) Upon occurrence of a Force Majeure Event prior to the Appointed Date, the Parties shall bear their
respective costs and no Party shall be required to pay any costs to the other Parties.
(b) Upon occurrence of a Force Majeure Event post the Appointed Date, the costs incurred and
attributable to such Force Majeure Event and directly relating to the Project (Force Majeure Costs)
shall be allocated as follows:
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(i) upon the occurrence of a Non-Political Force Majeure Event, the Parties shall bear their
respective Force Majeure Costs and no Party shall be required to pay any costs to any other
Party;
(ii) upon the occurrence of an Indirect Political Event, all Force Majeure Costs up to the
Insurance Cover will be borne by the Concessionaire and to the extent Force Majeure Costs
exceed the Insurance Cover, one half of such excess amount shall be reimbursed by the
Authority;
(iii) upon occurrence of a Direct Political Force Majeure Event, all Force Majeure Costs
attributable to such Direct Political Force Majeure Event shall be reimbursed by the
Authority to the Concessionaire.
For the purposes of this Clause 26.6, 'Force Majeure Costs' mean interest payments on debt, O&M
Expenses, and any increase in the cost of construction works and O&M directly attributable to the
Force Majeure Event and for determining such costs, information contained in the Financial Package
may be relied upon to the extent that such information is relevant. Force Majeure Costs shall not
include any debt repayment obligations or loss of profits or income. Provided however, Force
Majeure Costs attributable to a Direct Political Force Majeure Event shall, in addition to the above,
also include interest on the Equity Contribution which shall be equal to the interest payable on debt,
as specified in the Financial Package/Financing Documents.
If a Non-Political Force Majeure Event continues for a period of [180 (one hundred and eighty)]
days after the notification of a Non-Political Force Majeure Event or any extended period agreed in
pursuance of Clause 26.3, any Party shall, after the expiry of the period of [180 (one hundred and
eighty)] days or any other mutually extended period, be entitled to forthwith terminate this
Agreement in its sole discretion by issuing a notice to that effect to the other Parties.
(i) if the WtB Facility is affected by a Total Casualty, then the Concessionaire may terminate
this Agreement without having to wait for the expiry of the [180 (one hundred and eighty)]
days' period stipulated for a Non-Political Force Majeure Event;
(ii) if the WtB Facility is affected by a Minor Casualty, then the Concessionaire shall be required
to repair and restore the WtB Facility to the same condition as previously existed and the
Concessionaire shall not be entitled to terminate this Agreement on the grounds of a
continuing Non-Political Force Majeure Event.
If an Indirect Political Force Majeure Event continues for a period of [120 (one hundred and twenty)]
days after the notification of an Indirect Political Force Majeure Event or any extended period agreed
in pursuance of Clause 26.3, any Party shall, after the expiry of the period of [120 (one hundred and
twenty)] days or any other mutually extended period, be entitled to forthwith terminate this
Agreement in its sole discretion by issuing a notice to that effect to the other Parties.
(d) All the other consequences of termination that are set out at Article 28 shall apply in case of
termination of this Agreement due to a Force Majeure Event.
(a) Upon the occurrence of any Force Majeure Event prior to the Appointed Date, the period set forth in
Clause 4.5 for fulfilment of Conditions Precedent and for achieving the Appointed Date shall be
extended by a period equal in length to the duration of the Force Majeure Event.
(b) At any time after the Appointed Date and up until the COD, if any Force Majeure Event occurs, the
Concession Period shall be extended by a period, equal in length to the period during which the
Concessionaire was prevented from performing its obligations.
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ARTICLE 27
(i) At any time during the Concession Period, the Concessionaire may suspend, whether
partially or wholly, the construction or O&M of any Project Facility, in case of an
Emergency.
(ii) The Concessionaire acknowledges that suspension of the construction of any Project Facility
pursuant to Clause 27.1(a)(i) shall not entitle the Concessionaire to an extension of time, if
such event is attributable to the Concessionaire, provided that any suspension of construction
of the Project Facilities pursuant to Clause 27.1(a)(i) for reasons not attributable to the
Concessionaire shall be treated as a Delay Event.
(iii) Upon the occurrence of an Emergency, the Concessionaire shall as soon as reasonably
possible, and in no event later than [3 (three)] days after such occurrence, notify the
Authority of such occurrence.
(iv) If, upon notification, the Authority does not concur with the Concessionaire on the nature of
such occurrence, then the Concessionaire shall be required to immediately re-commence the
construction or O&M of the relevant Project Facility, as the case may be. Upon re-
commencement of the construction or O&M services, the Concessionaire may initiate a
Dispute regarding its claim for the occurrence of such an event or circumstance, and such
Dispute shall be finally settled in accordance with the dispute resolution procedure set out
in Article 34, provided however that the burden of proof as to the occurrence or existence of
such an event shall be upon the Concessionaire.
(A) mitigate the effects (including incremental costs and delays) of the events or
circumstances resulting in suspension pursuant to Clause 27.1(a)(i) above.
Notwithstanding anything to the contrary contained in this Agreement, if the
Authority, in its sole assessment, is not satisfied with the steps being taken by the
Concessionaire to mitigate the effects of the Emergency, the Authority shall have
the right to step-in to this Agreement and undertake necessary measures to mitigate
the effect of the Emergency at the cost and risk of the Concessionaire and the
Concessionaire shall not be entitled to receive any payments for the duration that
the Authority steps-in to operate and maintain the WtB Facility, provided that, any
revenue earned from the O&M of the WtB Facility shall be to the account of the
Concessionaire (subject to payment of all Costs incurred by the Authority in
undertaking the O&M of the WtB Facility); and
(B) within [24 (twenty-four)] hours of the ceasing of any of the events or circumstances
resulting in suspension pursuant to Clause 27.1(a)(i) or such longer period as may be
approved by the Authority, mobilize the personnel employed by it or its
Subcontractor in order to resume the construction or O&M services of the relevant
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Project Facility as soon as reasonably practicable, and once the works or services
have resumed, notify the Authority of the resumption of the works or services.
(i) At any time during the Concession Period, the Authority may suspend, whether partially or
wholly, the construction or O&M of a Project Facility, in any of the following events or
circumstances:
(B) if the Concessionaire fails to comply with Applicable Laws, the Performance
Standards, Applicable Permits, the Construction Plan, the Project Execution Plan,
the DPR, the EMP, OHS Plan, the O&M Plan, the Waste Acceptance and Rejection
Plan or otherwise fails to perform its obligations in accordance with this Agreement
(including the Technical Specifications).
(ii) The Concessionaire acknowledges that suspension of the construction of the Project Facilities
shall not entitle the Concessionaire to an extension of time if such event is attributable to the
Concessionaire, provided that any suspension of construction of the Project Facilities pursuant
to Clause 27.2(a)(i) for reasons not attributable to the Concessionaire shall be treated as a Delay
Event.
(A) mitigate the effects (including incremental costs and delays) of the events or
circumstances resulting in suspension pursuant to Clause 27.2(a) above.
Notwithstanding anything to the contrary contained in this Agreement, if the
Authority, in its sole assessment, is not satisfied with the steps being taken by the
Concessionaire to mitigate the effects of the Emergency, the Authority shall have
the right to step-in to this Agreement and undertake necessary measures to mitigate
the effect of the Emergency at the cost and risk of the Concessionaire and the
133
Concessionaire shall not be entitled to receive any payments for the duration that
the Authority steps-in to operate and maintain the WtB Facility, provided that, any
revenue earned from the O&M of the WtB Facility shall be to the account of the
Concessionaire (subject to payment of all Costs incurred by the Authority in
undertaking the O&M of the WtB Facility); and
(B) within [24 (twenty-four)] hours of the ceasing of any of the events or circumstances
resulting in suspension pursuant to Clause 27.2(a) or such longer period as may be
agreed between the Parties, mobilize the personnel employed by it or its
Subcontractor in order to resume the construction or O&M services of the relevant
Project Facility as soon as reasonably practicable, and once the works or services
have resumed, notify the Authority of the resumption of the works or services.
(A) If suspension of the construction or O&M of the relevant Project Facility pursuant
to Clause 27.2(a)(i)(A) continues for a consecutive period of [90 (ninety)] days or a
cumulative period of [180 (one hundred and eighty)] days over the Concession
Period and the Emergency is attributable to the Concessionaire, or a suspension
pursuant to Clause 27.2(a)(i)(B) continues for a consecutive period of [90 (ninety)]
days or a cumulative period of [180 (one hundred and eighty)] days over the
Concession Period, then such suspension shall amount to a Concessionaire Event of
Default in accordance with Clause 28.1; and
(B) if suspension of the construction or O&M of the relevant Project Facility pursuant
to Clause 27.2(a)(i)(A) continues for a consecutive period of [90 (ninety)] days or a
cumulative period of [180 (one hundred and eighty)] days over the Concession
Period, and the Emergency is not attributable to the Concessionaire, then such event
will be treated as an Indirect Political Force Majeure Event and the consequences
set out in Article 28 shall apply.
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ARTICLE 28
A Concessionaire Event of Default means any of the following events arising out of any acts or omissions
of the Concessionaire and which have not occurred solely as a consequence of an Authority Event of Default
or any Force Majeure Event, and where the Concessionaire has failed to remedy the default within the cure
period set forth below, or where no cure period is specified then within a cure period of [60 (sixty)] days:
(a) [the Concessionaire fails to complete the works for a Project Milestone within [6 (six)] months of
the Scheduled Project Milestone Completion Date;]115
(b) the Concessionaire fails to achieve the COD within [6 (six)] months of the Scheduled COD other
than on account of a Delay Event;
(c) [the Concessionaire fails to pay the Royalty in accordance with the terms of this Agreement;]116
(d) the Concessionaire fails to pay the Delay Liquidated Damages within the timelines specified in this
Agreement;
(e) a failure to achieve the KPIs which results in the Concessionaire's aggregate liability for Liquidated
Damages pursuant to Article 21 to exceed [•];
(f) suspension of construction or O&M of the Project Facilities pursuant to Clause 27.1(a)(i) or Clause
27.2(a)(i)(A) (to the extent the Emergency is attributable to the Concessionaire) or a suspension
pursuant to Clause 27.2(a)(i)(B), for a continuous period of [90 (ninety)] days or a cumulative period
of [180 (one hundred and eighty) days] over the Concession Period;
(g) a breach by the Concessionaire of its obligations under this Agreement which has a Material Adverse
Effect on the ability of the Concessionaire to construct and/or operate and maintain the Project
Facilities and such breach, if capable of being remedied, is not remedied within [30 (thirty)] days of
issuance of written notice from Authority specifying such breach and requiring the Concessionaire
to remedy the same;
(h) any representation made or warranties given by the Concessionaire under this Agreement being
found to be false or misleading in any material respect;
(i) failure of the Concessionaire to submit and maintain a valid Performance Security in accordance
with Clause 9.1 or a valid O&M Security in accordance with Clause 9.3;
(j) breach by the Concessionaire of its obligations under Clauses 12.3 (Security Creation), 10 (Project
Site) or 35.12 (Assignment);
(k) breach of the Concessionaire's obligations under Clause 5.10 (Change in Ownership);
(l) failure of the Concessionaire to obtain, renew and maintain any Concessionaire Applicable Permit;
115 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
116 Drafting Note: Square bracketed portion to be deleted if no Royalty is being paid to the Concessionaire under this Agreement.
135
(m) failure of the Concessionaire to comply with any Applicable Law;
(n) failure of the Concessionaire to obtain and maintain Insurance Cover in accordance with Clause 25.2;
(o) failure of the Concessionaire or the Subcontractors to comply with the EMP or OHS Plan in
accordance with Clause 14.4(f);
(p) the Concessionaire being admitted into corporate insolvency resolution process under the Insolvency
and Bankruptcy Code 2016, entering into liquidation or similar state or if any order is made for the
compulsory winding up or dissolution of the Concessionaire or if the Concessionaire becomes unable
to pay its debts or the appointment of a receiver or administrator in respect of the Concessionaire, its
business and assets or any re-structuring, re-organisation, amalgamation, arrangement or
compromise affecting the Concessionaire's ability to fulfil its obligations under this Agreement or
that otherwise has or may have a Material Adverse Effect;
(q) the breach of the Concessionaire's obligations under or the occurrence of an 'event of default' or
analogous event under the Financing Documents or the Escrow Agreement, or termination of the
Financing Documents, or the Escrow Agreement (for reasons attributable to the Concessionaire);
(r) the Concessionaire abandons the construction and operation of the Project Facilities without the prior
written consent of the Authority; or
(s) the breach of the Concessionaire’s obligations under any of the Project Agreements that has or may
have a Material Adverse Effect.
(a) Without prejudice to the other provisions of this Agreement, upon the occurrence of a Concessionaire
Event of Default, the Authority may initiate termination by delivering a Termination Notice to the
Concessionaire. The Termination Notice shall specify with reasonable detail the grounds on which
termination is sought.
(b) If, within [15 (fifteen)] days from the date of the Termination Notice, the Concessionaire rectifies or
remedies the Event of Default to the satisfaction of the Authority or the Authority is satisfied with
the steps taken or proposed to be taken by the Concessionaire or the Event of Default has ceased to
exist, the Authority shall withdraw the Termination Notice, in writing.
(c) If, within [15 (fifteen)] days from the date of the Termination Notice, the Concessionaire does not
rectify or remedy the Event of Default to the satisfaction of the Authority or the Authority is not
satisfied with the steps taken or proposed to be taken by the Concessionaire to remedy the Event of
Default, the Authority shall issue a notice to the Lenders to exercise their substitution rights.
(d) If, within [30 (thirty)] days from the date of receipt of the Termination Notice pursuant to Clause
28.2(c) or such longer period as may be mutually agreed between the Authority and the Lenders, the
Lenders have notified their intent to substitute the defaulting Concessionaire, then:
(i) the Authority shall withdraw the Termination Notice, in writing, with a copy to the
Lenders; and
(ii) the process set out in the Substitution Agreement for nomination and approval of a
substitute concessionaire will apply.
136
Provided that, the Lenders may, instead of exercising the right of substitution, procure that the default
specified in the Termination Notice is cured within a period of [60 (sixty)] days from the date of the
Termination Notice, and upon such curing of the default, the Authority shall withdraw the
Termination Notice.
(e) If, within [30 (thirty)] days from the date of receipt of the Termination Notice pursuant to Clause
28.2(c) or such longer period as may be mutually agreed between Authority and the Lenders, the
Lenders have not notified their intent to substitute the defaulting Concessionaire, then, Authority
shall terminate the Agreement and the consequences set out in Clause 28.5 shall apply.
(f) Notwithstanding anything contained in this Clause 28.2, during the subsistence of a Concessionaire
Event of Default, the Parties shall continue to perform such of their respective obligations under this
Agreement, which are capable of being performed in accordance with this Agreement.
An Authority Event of Default means any of the following events, unless such an event has occurred as a
consequence of a Concessionaire Event of Default, or any Force Majeure Event and where the Authority has
failed to remedy the default within the cure period set forth below, or where no cure period is specified then
within a cure period of [60 (sixty)] days:
(a) a breach by the Authority of its obligations under this Agreement which has a Material Adverse
Effect on the ability of the Concessionaire to construct or operate and maintain the Project Facilities
and such breach, if capable of being remedied, is not remedied within [30 (thirty)] days of a notice
being given by the Concessionaire;
(b) a breach by the Authority of its obligations under Clause 6.1(f) and Clause 6.1(g), in relation to its
rights, title and interest in the Site;
(c) a failure by the Authority to pay the Concessionaire any undisputed amounts due and payable under
this Agreement within [60 (sixty)] days from the date on which such payments were due, and where
such undisputed amounts are not recovered through [(i) the Escrow Account; (ii) the LC; or (iii)]117
from the Confirming Party pursuant to Article 22;
(e) a suspension of the construction or O&M of the Project Facilities by the Authority in breach of
Clause 27.2; or
(f) if the Daily Acceptable Waste Quantity is less than the Daily Guaranteed Acceptable Waste
Quantity for [7 (seven)] consecutive days or more during the O&M Period;
(g) any representation made or warranties given by Authority under this Agreement being found to be
false or misleading in any material respect.
(a) Without prejudice to the other provisions of this Agreement, upon the occurrence of an Authority
Event of Default, the Concessionaire may initiate termination of this Agreement by delivering a
117 Drafting Note: Square bracketed portion to be deleted if no Grant or Processing Fee is to be paid to the Concessionaire.
137
Termination Notice, which shall specify with reasonable detail the grounds on which termination
is sought.
(b) If, within [15 (fifteen)] days from the date of the Termination Notice, the Authority rectifies or
remedies the Authority Event of Default to the satisfaction of the Concessionaire or the
Concessionaire is satisfied with steps taken or proposed to be taken by the Authority or the
Authority Event of Default has ceased to exist, the Concessionaire shall withdraw the Termination
Notice, in writing.
(c) If, within [15 (fifteen)] days from the date of the Termination Notice, the Authority Event of Default
has not been remedied or the Authority has not taken steps or proposed to take steps to remedy the
Authority Event of Default to the satisfaction of the Concessionaire, then the Concessionaire shall
terminate the Agreement and the consequences set out in Clause 28.5 shall follow.
(d) During the subsistence of an Authority Event of Default, the Parties shall continue to perform such
of their respective obligations under this Agreement, which are capable of being performed in
accordance with this Agreement.
In case of termination of the Agreement (including for any termination due to the occurrence of a Force
Majeure Event in accordance with Article 26) after the Appointed Date:
(a) the Concessionaire shall cease all work in relation to construction or O&M, as the case may be,
of the Project Facilities;
(b) the Concessionaire shall cease the Trial Operations, if the Trial Operations of the WtB Facility
have commenced and are ongoing;
(c) the Concessionaire shall take all necessary steps to safeguard and protect the Project Facilities (at
whatever stage of completion) and all other equipment, materials and goods on the Site;
(d) the Authority shall return the Performance Security in accordance with Clause 9.15 or the O&M
Security in accordance with Clause 9.16, as the case may be, within [30 (thirty)] days from the
date of the Termination Notice;
(e) the Concessionaire shall hand over the Site and the Project Facilities (provided that, in case of
termination of the Agreement due to a Force Majeure Event, the Concessionaire shall hand over
the Site and the Project Facilities to the Authority on an "as is where is" basis), to the Authority
or its nominee in accordance with the Hand-back Requirements set out in Clause 30.3, to the
extent applicable; and
(f) the Authority shall have the right to succeed, upon election by the Authority, without the necessity
of any further action by the Concessionaire, to the interests of the Concessionaire under such of
the Project Agreements as the Authority may in its discretion deem appropriate, and shall upon
such election be liable to the Subcontractors and/or Offtakers only for compensation accruing and
becoming due and payable to them under the terms of their respective Project Agreements from
and after the date the Authority elects to succeed to the interests of the Concessionaire. For the
avoidance of doubt, the Concessionaire acknowledges and agrees that all sums claimed by such
Subcontractors and/or Offtakers (including any penalties or other dues claimed by any Offtaker)
as being due and owing for works and services performed or accruing on account of any act,
138
omission or event prior to such date shall constitute debt between the Concessionaire and such
Subcontractors and/or Offtakers, and the Authority shall not in any manner be liable for such
sums, penalties or other dues. It is further agreed that in the event the Authority elects to cure any
outstanding defaults under such Project Agreements, the amount expended by the Authority for
this purpose shall be deducted from the Termination Compensation.
(a) Notwithstanding anything to the contrary contained in this Agreement, any termination of this
Agreement shall be without prejudice to the accrued rights of a Party, including its right to claim
and recover damages and other rights and remedies which it may have in law or contract. All
accrued rights and obligations of a Party under this Agreement, including without limitation, all
rights and obligations with respect to Termination Compensation, shall survive the termination of
this Agreement, to the extent such survival is necessary for giving effect to such rights and
obligations.
(b) Nothing in Article 27 or this Article 28 shall prevent or restrict a Party to seek injunctive relief or
a decree of specific performance or other discretionary remedies of the court.
139
ARTICLE 29
29.1 The Parties acknowledge that no termination payment shall be payable by either Party in case of a termination
of this Agreement prior to the Appointed Date, other than as provided under Clause 4.6. This Article 29 sets out
all payments to be made on termination of this Agreement after the Appointed Date.
If the Agreement is terminated after the Appointed Date for an Authority Event of Default, the
Authority shall be liable to pay to the Concessionaire the aggregate of:
(i) [any accrued and undisputed amounts payable to the Concessionaire under the Agreement
towards the [Grant for Project Milestones completed and certified] [and] [Processing
Fee]]118;
LESS
(iv) [any accrued and unpaid amounts payable to the Authority towards the Royalty (and
interest); and]119
(v) any other amounts due and payable by the Concessionaire under this Agreement (including
Liquidated Damages and any amount payable under Clause 30.2).
If the Agreement is terminated after the Appointed Date for a Concessionaire Event of Default,
Authority shall pay to the Concessionaire, the aggregate of:
(i) [sqa2 [Grant for Project Milestones completed and certified] [and] [Processing Fee]]120;
(ii) [85% (eighty-five per cent)] of Debt Due as on the date of Termination Notice less Insurance
Cover, provided that, if any insurance claims forming part of the Insurance Cover are not
admitted and paid, then [80% (eighty per cent)] of such unpaid claims shall be included in
the computation of Debt Due;
LESS
118 Drafting Note: References to the Grant and/or Processing Fee to be deleted / retained depending on whether any Grant and/or Processing
Fee is payable under the Agreement.
119 Drafting Note: Square bracketed portion to be deleted if no Royalty is payable under the Agreement.
120 Drafting Note: References to the Grant and/or Processing Fee to be deleted / retained depending on whether any Grant and/or Processing
(iv) any other amounts due and payable by the Concessionaire under this Agreement (including
Liquidated Damages and any amount payable under Clause 30.2).
If the Agreement is terminated as a result of a Non-Political Force Majeure Event after the Appointed
Date, the Authority shall be liable to pay to the Concessionaire the aggregate of:
(i) [any accrued and undisputed amounts payable to the Concessionaire under the Agreement
towards the [Grant for Project Milestones completed and certified] [and] [Processing
Fee]]122;
(ii) [85% (eighty five per cent)]% of Debt Due as on the date of Termination Notice less
Insurance Cover, provided that, if any insurance claims forming part of the Insurance Cover
are not admitted and paid, then [80% (eighty per cent)] of such unpaid claims shall be
included in the computation of Debt Due;
LESS
(iii) [any accrued and unpaid amounts payable the to the Authority towards the Royalty (and
interest); and]123
(iv) any amounts due and payable by the Concessionaire under this Agreement (including
Liquidated Damages and any amount payable under Clause 30.2).
If the Agreement is terminated as a result of an Indirect Political Force Majeure Event or a Direct
Political Force Majeure Event, the Authority shall be liable to pay to the Concessionaire the aggregate
of:
(i) [any accrued and undisputed amounts payable to the Concessionaire under the Agreement
towards the [Grant for Project Milestones completed and certified] [and] [Processing
Fee]]124;
LESS
121 Drafting Note: Square bracketed portion to be deleted if no Royalty is payable under the Agreement.
122 Drafting Note: References to the Grant and/or Processing Fee to be deleted / retained depending on whether any Grant and/or Processing
Fee is payable under the Agreement.
123 Drafting Note: Square bracketed portion to be deleted if no Royalty is payable under the Agreement.
124 Drafting Note: References to the Grant and/or Processing Fee to be deleted / retained depending on whether any Grant and/or Processing
(v) any other amounts due and payable by the Concessionaire under this Agreement (including
Liquidated Damages and any amount payable under Clause 30.2).
29.4 All Termination Compensation required to be paid by the Authority to the Concessionaire shall be paid within
[60 (sixty)] days of handover of the Site and the Project Facilities to the Authority in accordance with Article 30.
Notwithstanding anything to the contrary elsewhere in this Agreement, any Termination Compensation
determined pursuant to this Article 29 shall, once paid, be in full and final settlement of any claim, demand
and/or proceedings of the Concessionaire against Authority, in relation to termination of this Agreement and
the Concessionaire shall be excluded from all other rights and remedies in respect of such termination.
29.6 The provisions of this Article 29 shall survive the termination of this Agreement.
125 Drafting Note: Square bracketed portion to be deleted if no Royalty is payable under the Agreement.
142
ARTICLE 30
Upon the expiry or early termination of this Agreement, the Concessionaire shall hand over the Site and the
Project Facilities to the Authority, or any other entity nominated by Authority in accordance with this Article
30.
(a) No later than [30 (thirty)] days from the end of the [•]th year from the COD or [30 (thirty)] days from
the date of termination of the Agreement, as the case may be, the Authority shall or shall cause the
Independent Engineer to carry out a survey of the Site and the Project Facilities to assess whether
they have been maintained by the Concessionaire in accordance with its obligations under this
Agreement, and are in working condition in line with the design life stipulated in the Technical
Specifications.
(b) The Authority shall notify the Concessionaire at least [7 (seven)] days prior to the date on which it
wishes to carry out the survey of the Site and the Project Facilities.
(c) If the survey carried out by the Authority or the Independent Engineer shows that the Concessionaire
has not or is not complying with its obligations under this Agreement, then the Authority shall notify
the Concessionaire of the rectification and/or maintenance work which is required to be undertaken
by the Concessionaire to ensure that the condition of the Site and the Project Facilities, is restored to
the Hand-back Conditions.
(d) The Concessionaire shall carry out such rectification and/or maintenance work to achieve the Hand-
back Conditions within [30 (thirty)] days from the receipt of a notice from the Authority in
accordance with Clause 30.2(c) above, at its own cost and risk. Upon completion of the rectification
and/or maintenance work, the Concessionaire shall request the Authority to carry out a final survey
and inspection of the Site and the Project Facilities. The Authority shall carry out the final survey
within [7 (seven)] days of receipt of a notice from the Concessionaire pursuant to this Clause 30.2(d).
If the Authority is satisfied with the results of the final survey, then the Authority shall notify the
Concessionaire within [7 (seven)] days of carrying out the final survey that the Site and the Project
Facilities, comply with the Hand-back Conditions. If the Authority is not satisfied with the results of
the final survey, then the Authority shall, or shall cause the Independent Engineer, to estimate the
cost of restoring the Site and the Project Facilities, to the Hand-back Conditions and recover such
cost from the Concessionaire, including through deduction of such cost from the from the
Performance Security, O&M Security, or the Termination Compensation, as the case may be,
payable to the Concessionaire.
(a) hand over to the Authority or any entity nominated by the Authority, Site and the Project Facilities,
free of any consideration, except for any Termination Compensation payable under Article 29;
143
(b) transfer to the Authority, or any entity nominated by the Authority, all its rights, title and interest in
the assets comprising in the Project Facilities and execute such deeds and documents as may be
necessary for this purpose and complete all related legal or other formalities;
(c) hand over all documents relating to the Site and the Project Facilities, including Designs and
Drawings, "as-built" drawings and other "as-built" record of the execution of the works, O&M Plan,
operating logs, manuals, reports, plans and records;
(d) [assign the license and related rights to use the Proposed Technology for the sole purpose of operating
and maintaining the Project Facilities to the Authority at no additional cost to the Authority];
(e) transfer or cause to be transferred to the Authority or its nominee any Subcontract that the Authority
or its nominee has chosen to take over and terminate all other Subcontracts;
(f) transfer to the Authority or its nominee all Concessionaire Applicable Permits which the Authority
or its nominee may require, and which can be legally transferred; and
(g) remove from the Site all employees and workmen, and assets, equipment and materials that are not
required to be taken over by the Authority or its nominee.
The provisions of this Article 30 shall survive the termination of this Agreement.
The divestment of all rights, title and interest in the Project Facilities shall be deemed to be complete on the
date when all of the Hand-back Requirements set out in Clause 30.3 above have been fulfilled, and the
Authority shall, without unreasonable delay, issue a certificate substantially in the form set out in Schedule
[•] (the Vesting Certificate),which will have the effect of constituting evidence of divestment by the
Concessionaire of all of its rights, title and interest in the Project Facilities, and their vesting in the Authority.
It is expressly agreed that any defect or deficiency in the Hand-back Requirements shall not in any manner
be construed or interpreted as a restriction on the exercise of any rights by the Authority in respect of the
Project Facilities on the basis that all Hand-back Requirements have been complied with by the
Concessionaire.
144
PART VI – OTHER PROVISIONS
145
ARTICLE 31
31. VARIATION
31.1 Both the Authority and the Concessionaire may, at any time during the Concession Period, propose a Variation
to the Scope of Work, Technical Specifications, Proposed Technology and/or the Designs and Drawings.
(a) The Authority may propose a Variation in the Scope of Work, Technical Specifications or the
approved Designs and Drawings. Provided that, the Authority shall not propose a Variation, which:
(i) is not technically feasible; or (ii) is not in compliance with any Applicable Law or Applicable
Permits.
(b) Within [15 (fifteen)] days of receipt of a request for Variation from the Authority, the Concessionaire
shall submit a proposal to the Authority (with a copy to the Independent Engineer) setting out in
sufficient detail the implications of the proposed Variation, including any implications on the
Construction Plan, [the Scheduled Project Milestone Completion Date,] 126 the Scheduled
Completion Date and Scope of Work and additional costs incurred in undertaking the Variation or
any reduction in costs resulting from the Variation. It is clarified that the additional costs incurred in
undertaking the Variation or any reduction in costs resulting from the Variation will be determined
on the basis of the Authority's schedule of rates for similar works.
(c) Notwithstanding anything to the contrary in this Clause 31.2, the Concessionaire shall have the right
to reject a Variation proposed by the Authority if, in the Concessionaire's view, the proposed
variation will result in: (i) the Concessionaire incurring additional costs, of more than [•]% of the
Total Project Cost; (ii) reduction in the Total Project Cost by more than [•]%; or (iii) a delay of more
than [120 (one hundred and twenty)] days in [a Scheduled Project Milestone Completion Date or]127
the Scheduled Completion Date.
(d) Based on its review of the proposal submitted by the Concessionaire, the Authority may, at its sole
discretion: (i) accept the proposal; or (ii) provide its comments on the proposal seeking amendments
and/or justification for the implications put forth by the Concessionaire; or (iii) reject the proposal
submitted by the Concessionaire and withdraw the proposed Variation, within [15 (fifteen)] days
from the date of receipt of the Concessionaire's proposal under Clause 31.2(b) above.
(e) To the extent the Authority seeks amendments and/or justification in the proposal submitted by the
Concessionaire, the Concessionaire shall incorporate or address, in writing, the Authority's
comments and submit a revised proposal.
(f) On approval of the proposal or the revised proposal, as the case may be, the Authority shall issue a
Variation Order and Concessionaire shall proceed with the Variation in accordance with the
Variation Order.
(g) If the Parties are unable to agree on the implications of a Variation proposed by the Authority, which
in the Authority's view is necessary or desirable for the Project, the Authority shall have the right to
require the Concessionaire to carry out the proposed variation at the cost determined in accordance
with the Authority's schedule of rates for similar works. Where the Authority's schedule of rates does
126 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
127 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
146
not provide schedule of rates for similar works, then the cost of the works covered by the proposed
Variation will be decided by the Independent Engineer. Any dispute on the terms of the Variation
will be resolved in accordance with Article 34.
(h) On implementation of a Variation Order, the Concessionaire shall be entitled to the agreed
adjustment to the Construction Plan, [the, Scheduled Project Milestone Completion Date] 128 ,
Scheduled Completion Date and/or payment of additional amounts, if any, set out in the Variation
Order.
(a) The Concessionaire may propose a Variation where it is necessary or desirable to improve the
efficiency, quality, reliability, durability, maintainability or safety of the Project Facilities. Such a
Variation may be on account of reasons such as if, during the execution of the Project, the
Concessionaire encounters any adverse physical conditions, which could not have been reasonably
foreseen by acting in accordance with Good Industry Practices, including as a result of a failure by
any contractor appointed by the Authority to rehabilitate the Site prior to its handover to the
Concessionaire. Provided that, the Concessionaire shall not be entitled to propose a Variation where
the underlying circumstances leading to the proposed Variation are attributable to the
Concessionaire's failure to perform the works in accordance with the Construction Plan, the Project
Execution Plan, the DPR and Designs and Drawings or due to the Concessionaire's inefficiency.
(b) To propose a Variation, the Concessionaire shall submit a proposal to the Authority (with a copy to
the Independent Engineer), with a statement setting out:
(iii) adjustment to the Construction Plan, [the Scheduled Project Milestone Completion Date]129
and the Scheduled COD; and
(c) Based on its review of the proposal submitted by the Concessionaire, if the Authority is of the view
that the proposed Variation is justified, then it will determine the cost of the proposed Variation
using the Authority's schedule of rates for similar works and where the Authority's schedule of rates
does not provide schedule of rates for similar works, then the cost of the works covered by the
proposed Variation will be decided by the Independent Engineer. Thereafter, the Authority shall
notify the Concessionaire of the additional cost determined by the Authority for the proposed
Variation and any other comments that the Authority may have on the implications of the proposed
Variation. To the extent the Authority seeks amendments and/or justification in the proposal
submitted by the Concessionaire, the Concessionaire shall incorporate or address, in writing, the
Authority's comments.
(d) On the Concessionaire's acceptance of the costs determined by the Authority for the proposed
Variation and any other amendments sought by the Authority to the Concessionaire's proposal, the
128 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
129 Drafting Note: Square bracketed portion to be deleted if no Grant is being paid to the Concessionaire under this Agreement.
147
Authority shall issue a Variation Order and Concessionaire shall proceed with the Variation in
accordance with the Variation Order.
(e) On implementation of a Variation Order, the Concessionaire shall be entitled to the agreed
adjustment in the Construction Plan and/or additional costs, as set out in the Variation Order.
(f) Notwithstanding anything to the contrary in this Article 31, the Concessionaire shall be bound to
implement any Variation that is necessitated by a Change in Law and any consequent adjustment in
the Construction Plan and additional costs shall be determined in accordance with Article 32.
(g) Notwithstanding the above, a Variation made necessary due to any act, omission or default of the
Concessionaire or any Subcontractor in the performance of the Concessionaire's obligations under
this Agreement shall not entitle the Concessionaire to any adjustment in the Construction Plan or
any other compensation or relief.
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ARTICLE 32
The Concessionaire may claim the benefit of and/or relief for a Change in Law event subject to and in
accordance with this Article 32.
(a) If as a result of a Change in Law, the Concessionaire suffers an increase in costs, a reduction in the
net after-tax return or any other financial burden, the aggregate financial effect of which exceeds INR
[•] in any Accounting Year, the Concessionaire may notify the Authority and propose amendments
to this Agreement so as to place the Concessionaire in the same financial position that it would have
enjoyed had there been no such Change in Law.
(b) As soon as practicable and in any event, within [30 (thirty)] days from the receipt of any notice from
the Concessionaire under Clause 32.2(a) above, the Parties shall agree on any amendments to this
Agreement or on any other mutually agreed arrangement by which the Authority will compensate
the Concessionaire.
(c) If no agreement is reached between the Parties within [90 (ninety)] days of receipt of any notice under
Clause 32.2(a) above, the Concessionaire may by notice require the Authority to pay an amount that
would place the Concessionaire in the same financial position as the Concessionaire would have
enjoyed had there been no such Change in Law, and within [15 (fifteen)] days of receipt of such
notice, along with particulars thereof, the Authority shall pay the amount specified in the notice,
provided that if the Authority disputes such claim from the Concessionaire then the dispute will be
finally settled in accordance with the dispute resolution procedure set out in Article 34.
(d) For the avoidance of doubt, it is agreed that this Clause 32.2 shall be restricted to any Change in Law
that directly affects the Concessionaire’s costs of performing its obligations under the Agreement.
(a) If as a result of a Change in Law, the Concessionaire benefits from a reduction in costs, an increase in
the net after-tax return or any other financial gains, the aggregate financial effect of which exceeds INR
[•] in any Accounting Year, the Authority may notify the Concessionaire and propose amendments to
this Agreement so as to place the Concessionaire in the same financial position that it would have
enjoyed had there been no such Change in Law.
(b) As soon as practicable and in any event, within [30 (thirty)] days from the receipt of any notice from
the Authority under Clause 32.2(a) above, the Parties shall agree on any amendments to this Agreement
or on any other mutually agreed arrangement.
(c) If no agreement is reached between the Parties within [90 (ninety)] days of receipt of any notice under
Clause 32.2(a) above, the Authority may by notice require the Concessionaire to pay an amount that
would place the Concessionaire in the same financial position as the Concessionaire would have
enjoyed had there been no such Change in Law, and within [15 (fifteen)] days of receipt of such notice,
along with particulars thereof, the Concessionaire shall pay the amount specified in the notice, provided
149
that if the Concessionaire disputes such claim from the Authority then the dispute will be finally settled
in accordance with the dispute resolution procedure set out in Article 34.
(d) For the avoidance of doubt, it is agreed that this Clause 32.2 shall be restricted to any Change in Law
that directly affects the Concessionaire’s costs of performing its obligations under the Agreement.
The Parties acknowledge and agree that the demand for cash compensation under this Article 32 shall be
restricted to the effect of Change in Law during the respective Accounting Year and shall be made at any
time after commencement of such year, but no later than [1 (one)] year from the close of such Accounting
Year. Any demand for cash compensation payable for and in respect of any subsequent Accounting Year
shall be made after the commencement of the Accounting Year to which the demand pertains, but no later
than [2 (two)] years from the close of such Accounting Year.
150
ARTICLE 33
33. INDEMNITY
33.1 Indemnity
(a) Subject to Clause 33.1(b) below, the Concessionaire shall be responsible for, release, hold harmless
and indemnify the Authority and the Authority Related Parties on demand from and against, all suits,
actions, claims, demands, losses, damages, fines, penalties, costs or expenses (including costs of legal
fees) or liability for:
(iv) non-compliance by the Concessionaire or its Subcontractor(s) with the EMP or OHS Plan;
(vi) Concessionaire's failure to pay all applicable Taxes, in connection with the Project;
(viii) any claims and/or fines or penalties imposed by any Government Authority in relation to the
Site or the Project Facilities,
which may arise out of, or in consequence of the performance or non-performance of the
Concessionaire's obligations under this Agreement.
(b) The Concessionaire shall not be required to indemnify the Authority for any injury, loss, damage,
cost and expense caused by the negligence or Wilful Misconduct of the Authority or the Authority
Related Parties or by a breach by the Authority of its obligations under this Agreement.
(c) The Authority shall have the right, but not the obligation, to contest, defend, and litigate any claim,
action, suit or proceeding by any third party alleged or asserted against them in respect of, resulting
from, related to or arising out of any matter for which they are entitled to be indemnified under this
Agreement, and the reasonable costs and expenses (including legal fees) thereof, shall be subject to
the indemnification obligations of the Concessionaire.
If, however, the Concessionaire acknowledges in writing its obligations to indemnify the Authority
in respect of loss to the full extent provided by this Agreement, the Concessionaire shall be entitled,
at its option, to assume and control the defence of such claim, action, suit or proceeding at its expense
and through a counsel of its choice if it gives prompt notice of its intention to do so to the Authority
and reimburses the Authority for the costs and expenses incurred by the Authority prior to the
assumption by the Concessionaire of such defence. A Party shall not settle or enter into a compromise
with respect to any such claim, action, suit or proceeding without the prior written consent of the
other Parties, which consent shall not be unreasonably withheld or delayed. Notwithstanding the
foregoing, the Authority shall have the right to employ its own counsel and such counsel may
151
participate in such action, but the fees and expenses of such counsel, as and when incurred, shall be
at the expense of the Authority.
(d) The Authority shall be responsible for, release, hold harmless and indemnify the Concessionaire and
the Concessionaire Related Parties on demand from and against, all suits, actions, claims, demands,
losses, damages, fines, penalties, costs or expenses (including costs of legal fees) any other liability
incurred or suffered by the Concessionaire under Applicable Laws, or pursuant to the law of torts,
principles of absolute liability or strict liability or polluter pays principle, as a result of:
(i) any environmental pollution, contamination or health hazard at or below the Site (including
contamination of the land, water, environment and air quality and/or any findings of
pollutants, chemical waste, hazardous waste, minerals, fossils, antiquities, structures or other
remnants or things either of particular geological or archaeological interest)that existed at
the Site prior to handover of the Site to the Concessionaire, provided that, such environmental
pollution, contamination or health hazard is not identified in the Site Contamination Report
and is not attributable to any act or omission of the Concessionaire; or
(ii) any environmental pollution, contamination or health hazard caused by the delivery of any
Prohibited Waste to the Site after the handover of the Site to the Concessionaire.
(e) The Authority shall not, directly or indirectly, bring or cause to be brought any action, demand, claim,
or other proceedings against the Concessionaire in connection with any pre-existing contaminations
and findings at the Site identified in the Site Contamination Report.
(f) The provisions of this Article 33 shall survive the termination of this Agreement.
152
ARTICLE 34
In the event of any dispute, controversy or difference between the Parties arising out of or relating to this
Agreement (a Dispute), the representatives of the Parties shall, within [15 (fifteen)] days of service of a
written notice from one Party to the other Parties (the Dispute Notice) hold a meeting (the Dispute Meeting)
in an effort to resolve the Dispute in good faith. In the absence of any agreement to the contrary, the Dispute
Meeting shall be held at the office of Authority in [•].
If a Dispute is not resolved within [30 (thirty)] days after the service of a Dispute Notice, whether
or not a Dispute Meeting has been held, any Party to the Dispute shall be entitled to refer the
Dispute to arbitration to be finally resolved in the manner set out in this Clause 34.2 by issuing a
notice to the other Parties (Notice of Arbitration). This Agreement and the rights and obligations
of the Parties shall remain in full force and effect pending the award in such arbitration proceeding.
The venue of the arbitration shall be [•] and the language of the arbitration shall be English. The
arbitration shall be conducted in accordance with the Arbitration Act.
(i) The arbitration award of the arbitrator shall be final and binding on the Parties and shall be
enforceable in accordance with its terms. The arbitrator shall state reasons for its findings
in writing.
(ii) The costs of arbitration and the manner of bearing such costs shall be determined by the
arbitrator.
34.3 Survival
The provisions of this Article 34 shall survive the termination of this Agreement.
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ARTICLE 35
35. MISCELLANEOUS
35.1 Survival
(a) Any cause or action which may have occurred in favour of any Party or any right which is vested
in any Party under this Agreement as a result of any act, omission, deed, matter or thing done or
omitted to be done by any Party before the expiry of the Concession Period or by efflux of time or
otherwise in accordance with this Agreement, shall survive the expiry of the Agreement.
(b) The provisions of this Agreement, to the fullest extent necessary to give effect thereto, survive the
Concession Period or the termination of this Agreement and the obligations of Parties to be
performed or discharged following the termination of this Agreement, shall accordingly be
performed or discharged by the Parties.
The Parties hereto acknowledge, confirm and undertake that this Agreement and the RFP constitutes the
entire understanding between the Parties regarding the development of the Project and supersedes all
previous written or oral representations and/or arrangements regarding the Project.
(a) Save and except as provided in this Agreement, the remedies available to the Concessionaire under
this Agreement are not exhaustive and the Concessionaire and third parties shall be entitled to all
other rights and remedies and to take all actions in law and in equity in addition to the remedies
provided for herein.
(b) Save and except as provided in this Agreement, the exercise of any rights by any Party under this
Agreement shall not preclude such Party from availing of any other rights or remedies that may be
available to it under this Agreement or any other agreement in relation to the Project. All remedies
available to the Parties shall be cumulative and the exercise or failure thereof of one or more
remedies by any Party shall not limit or preclude the exercise of or constitute a waiver of any other
remedies by such Party.
35.4 Notices
(a) Any notice or request in reference to this Agreement shall be written in English language and shall
be sent by email, registered post, courier or facsimile and shall be directed to the other Party at the
address mentioned below:
(b) Any notice or demand served by registered post or courier shall be deemed to be duly served [48
(forty eight)] hours after posting and a notice or demand sent by facsimile shall be deemed to have
been served at the time of its transmission and in proving service of the same it will be sufficient
to prove, in the case of a letter, that such letter was sent by registered post or courier, addressed and
placed in the post and in the case of a facsimile transmission, that such facsimile was duly
transmitted to a current facsimile number of the addressee at the address referred above.
(c) Any Party may change the above address by prior written notice to the other Parties.
This Agreement shall be governed by the laws of India and shall be subject to the exclusive jurisdiction of
the courts at [•].
35.6 Counterparts
This Agreement may be executed in [3 (three)] counterparts, each of which, when executed and delivered,
will be an original, and the [3 (three)] counterparts together shall constitute one and the same instrument.
35.7 Language
(a) The formal text of this Agreement and other agreements in relation to the Project shall be in the
English language.
(b) All notices and communications between the Parties under this Agreement shall be in English and
all arbitration proceedings undertaken pursuant to this Agreement shall be conducted in English.
35.8 Confidentiality
(a) No recipient Party shall, without the prior written consent of the disclosing Party, at any time
divulge or disclose or suffer or permit its representatives to divulge or disclose to any person or use
for any purpose unconnected with the Project any Confidential Information during the Concession
Period and for a period of [5 (five)] years after the expiry or termination of this Agreement, except
to its representatives officers, directors, advisors, employers, agents and Associates (including
Authority Related Parties and the Concessionaire Related Parties) who have a legitimate need to
know the Confidential Information in order to perform their duties relating to the Agreement.
(b) This Clause 35.8 shall not apply to Confidential Information, which:
155
(i) at the time of disclosure or thereafter has become part of public knowledge or literature
without a breach of this Agreement;
(ii) is already in the possession of the Party receiving such Confidential Information before it
was received from any other Party and which was not obtained under any obligation of
confidentiality from the Party which disclosed such information;
(iii) was obtained from a third party (other than one disclosing it on behalf of a Party) who was
free to divulge the same and who was not under any obligation of confidentiality in relation
to such Confidential Information to the Party, which disclosed the information;
(iv) is disclosed by the Concessionaire to the Lenders, any actual or bona fide potential
shareholders, investors or bankers (and their professional advisers) of the Concessionaire;
(v) is required to be disclosed pursuant to any legal and mandatory requirement of any court,
legislative or administrative body or any Government Authority, or the rules of any
applicable stock exchange;
(vi) is disclosed by the Concessionaire to its Associates or the permitted assignees and
transferees;
(ix) is disclosed to any professional advisors or consultants of any Persons to whom a Party is
entitled to disclose Confidential Information under this Clause 35.8(b);
(x) is disclosed to any Person in connection with the dispute resolution provisions under this
Agreement;
(xi) is independently developed by the receiving Party without reliance on the Confidential
Information disclosed by the disclosing Party; or
(xii) is disclosed to any Government Authority or any other body in any relevant jurisdiction in
connection with the obtaining or renewal of any Applicable Permit required for the Project.
Provided that the Party making a disclosure of Confidential Information pursuant to (iv) and (vi)
to (ix) (inclusive) above shall ensure that any Person to whom it makes such disclosure undertakes
to hold such Confidential Information subject to the same confidentiality obligations as those set
out in Clause 35.8(a) above.
(c) A Party making a disclosure of Confidential Information pursuant to Clause 35.8(a) shall,
(i) at the time of making such disclosure, inform its representatives and Associates of their
obligation of confidentiality pursuant to this Agreement and ensure their compliance; and
(ii) be liable for any breach of such obligations by such representatives and Associates.
(d) In the event that a Party is required or requested to make a disclosure of Confidential Information
referred to in Clause 35.8(b)(v) above, such Party shall prior to such disclosure (to the extent
156
permissible by Applicable Law) use its best efforts to promptly notify the disclosing Party or its
Associate so that appropriate protection order and/or other action can be taken if possible. In the
absence of such a protection order restricting disclosure, the Party required to make such disclosure
may disclose only that portion of the Confidential Information which it is legally required to
disclose and shall use reasonable efforts to obtain assurances that confidential treatment will be
accorded to the Confidential Information.
(e) The recipient party agrees that it, its Associates and representatives shall, upon request by the
disclosing Party promptly:
(i) return, and use all reasonable endeavours to procure that any third party to whom the
recipient party has disclosed the Confidential Information pursuant to this Agreement shall
return, all the Confidential Information that is in tangible form (including, without
limitation, Confidential Information contained on compact discs or other electronic storage
media or devices) furnished, together with any copies or extracts; and
(ii) destroy, and use all reasonable endeavours to procure that any third party to whom the
recipient party has disclosed the Confidential Information pursuant to this Agreement shall
destroy, all analysis, compilations, studies or other documents which have been prepared
and which reflect or refer to any Confidential Information,
provided that the recipient party shall be entitled to retain such Confidential Information which
forms part of the permanent records of the recipient party or its Associates and which was prepared
for the purposes of the review or decision-making process of the recipient party or such Affiliate
and/or which the recipient party or its Associates is required to retain by Applicable Law if it
continues to keep such Confidential Information confidential in accordance with this Agreement.
35.9 Amendments
(a) Any provision of this Agreement may be amended, supplemented or modified only by an agreement
in writing signed by the Parties.
(b) A Party may at any time request the other to enter into discussions to review the operation of any
part of this Agreement and, but without commitment by the other Parties, to determine whether it
should be amended by mutual agreement provided that, unless there is such mutual agreement, the
provisions of this Agreement (as then most recently, if at all, amended) shall continue to apply
whatever the outcome of any such discussions or review and whether or not any such discussions
or review take place.
(a) Unless otherwise specified, any provision or breach of any provision of this Agreement may be
waived before or after it occurs only if evidenced by an agreement in writing signed by the Parties.
(b) Any consent under or pursuant to any provision of this Agreement must also be in writing and
given prior to the event, action or omission for which it is sought.
(c) Any such waiver or consent may be given subject to any conditions thought fit by the Party giving
it and shall be effective only in the instance and for the purpose for which it is given.
35.11 Severability
157
(a) If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect
under any Applicable Law, the legality, validity or enforceability of the remaining provisions will
not, in any way, be affected or impaired.
(b) The Parties shall negotiate in good faith with a view to agreeing one or more provisions which may
be substituted for any such invalid, illegal or unenforceable provision and which produce as nearly
as is practicable in all the circumstances the appropriate balance of the commercial interests of the
Parties.
35.12 Assignment
(a) Except as expressly permitted in this Agreement, the Concessionaire shall not be entitled to divest,
transfer, assign or novate all or substantially all of its rights, interests, benefits and obligations
under this Agreement, without the prior written consent of the Authority.
(b) The rights and obligations of the Authority under this Agreement shall not be assigned, novated or
otherwise transferred (whether by virtue of any Applicable Law or otherwise) to any Person other
than a public body or a government company or a statutory corporation that:
(iii) has the legal capacity, power and authority to become a party to and to perform the
obligations of the Authority under this Agreement, as the case may be; and
(iv) has sufficient financial standing or financial resources to perform the obligations of the
Authority under this Agreement.
Nothing contained or implied in this Agreement shall constitute or be deemed to constitute a partnership or
agency between the Parties and no Party shall have any authority to bind, commit or make any representations
on behalf of any other Party.
(a) Each Party shall be responsible for paying its own costs and expenses incurred in connection with
the negotiation, preparation and execution of this Agreement, the Substitution Agreement and the
Escrow Agreement.
(b) The Concessionaire shall bear the applicable stamp duty and registration fee (if applicable) in
respect of this Agreement, the Substitution Agreement and the Escrow Agreement
No forbearance, indulgence, relaxation or inaction by the Concessionaire at any time to require performance
of any of the provisions of this Agreement shall in any way affect, diminish or prejudice the right of the
Authority to require performance of that provision, and no delay in exercising or omission to exercise any
right, power or remedy accruing to the Authority upon any default or otherwise under this Agreement shall
158
impair any such right, power or remedy or shall be construed to be a waiver thereof or any acquiescence in
such default, nor shall the action or inaction of the Authority in respect of any default or any acquiescence
by it in any default, affect or impair any right, power or remedy of the Authority in respect of any other
default.
This Agreement and all rights hereunder are intended for the sole benefit of the Parties and, to the extent
expressly provided, for the benefit of the Authority Related Parties, the Concessionaire Related Parties and
the Lenders, and shall not imply or create any rights on the part of, or obligations to, any other Person.
(a) agree that the execution, delivery and performance by it of this Agreement constitute commercial acts
done and performed for commercial purpose;
(b) agrees that, should any proceedings be brought against it or its assets, property or revenues in any
jurisdiction in relation to this Agreement or any transaction contemplated by this Agreement, no
immunity (whether by reason of sovereignty or otherwise) from such proceedings shall be claimed by
or on behalf of the Authority with respect to its assets; and
(c) consent to the enforcement of any judgment or award against them in any such proceedings.
In witness whereof the Parties hereto have signed this Agreement on this ____________day of ____________.
[•] (AUTHORITY)
By:
Name:
Title:
By:
Name:
Title:]
By:
Name:
Title:
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WWW.TRILEGAL.COM
October 2023
01 Background
02 Model RFP
BACKGROUND
MODEL RFP
© 2022 Trilegal. All Rights Reserved. 5
PROJECT SCOPE, STRUCTURE AND BID PROCESS
AUTHORITY’S SCOPE CONCESSIONAIRE’S SCOPE PROJECT STRUCTURE
▪ Grant license for the project site ▪ Design, construct, operate and maintain ▪ Grant based model: Authority to pay
the WtB Facility Concessionaire a grant as a capital subsidy
▪ Ensure delivery of source segregated
organic waste to the Concessionaire ▪ Segregate mixed waste up to a maximum ▪ Processing fee model: Authority to pay
permissible quantity Concessionaire a per ton fee for
▪ Identify location for disposal of processing waste
residual waste ▪ Dispose off residual waste
▪ Produce and sell the CBG output ▪ Royalty based model: Concessionaire to
pay Authority a royalty
BID PROCESS
01 02 03 04 05 06 07
04
Issue of RFP, Issue of Site Response to bidder Submission of Opening of Opening of Issue of LoA
Concession Contamination Report, queries and issuance of bids (including qualification bids and financial proposal
Agreement waste Inspection, revised RFP / qualification bid notification to eligible and notification to
and Project IM Project site visit and Concession Agreement and financial bid) bidders selected bidder
pre-bid meeting
© 2022 Trilegal. All Rights Reserved. 6
ELIGIBILITY CRITERIA AND QUALIFICATION CRITERA
ELIGIBILITY CONDITIONS QUALIFICATION CRITERIA
▪ Bidder may be a Company or Consortium (not ▪ Technical criteria – relevant design and construction
exceeding 3 members) experience and O&M experience for 365 consecutive days
▪ No conflict of interest, fraud or corrupt practices. in the seven years preceding the bid date
▪ Lock-in restrictions: ▪ Financial criteria – minimum net worth test and a
minimum average annual turnover test
Lock-in restrictions
Step 2 - Bidder
Qualification criteria
Selected bidder to hold 51% Consortium to hold 51% equity with lowest grant
equity until 2 years after COD until 2 years after COD and 26%
and 26% equity for the equity for the remaining / highest royalty
remaining concession period concession period
Step 2 - Bidder
PERFORMANCE SECURITY
with lowest Grant /
lowest Processing
▪ Bidder to submit earnest money deposit in the
Fee / highest Royalty
amount specified in the RfP in the form of a
bank guarantee
Step 1 - Bidder to meet:
Eligibility conditions
Technical criteria
Financial criteria (net worth)
Authority to deliver the Daily Guaranteed Acceptable Waste Concessionaire to receive and accept Acceptable
Quantity (Maximum Permissible Mixed Waste Quantity – 5%) – Waste subject to:
failing which:
- 100% of the design capacity per day
- monthly LDs linked to average 3 months revenue for
- Not more than 105% of cumulative design capacity
- 7 days in a month – right to request supplementary waste in a week
from third parties
- Delivery by Authority or its C&T contractors
- 3 consecutive days – reduction in royalty
- 7 consecutive days – event of default 10
© 2022 Trilegal. All Rights Reserved.
CONDITIONS PRECEDENT
Concessionaire CPs Authority CPs
- Providing performance security - Granting right of way, free of encumbrances
- Preparing the Project Execution Plan, DPR, and Construction - Reviewing and approving the Project Execution Plan, DPR,
Plan Construction Plan and ESIA report
- Environmental and Social Impact Assessment (ESIA) - Obtaining applicable permits required to execute CA and
- Obtaining applicable permits for construction and financial facilitating the concessionaire in obtaining permits
close Common - Providing access roads, capable of transportation of
- Achieving financial close and submitting financing package Execution of substitution and equipment and materials to the site
- Submission of documents with respect to shareholding, escrow agreements
- Opening and funding the escrow account and providing LC
constitutional documents, legal opinion on capacity, audited - Ensuring availability of physical infrastructure for utilities.
financial statements, etc.
• Letter of Credit
Oil Marketing
• Delay Interest Companies under Industrial
the SATAT Consumers
GRANT PROCESSING FEE scheme
Capital support to be paid by Processing fee to be paid by
the Authority in instalments the Authority per ton of
during the Concession Period, Acceptable Waste accepted by
upon satisfactory completion the Concessionaire after COD City
of the Project Milestones (on a monthly basis) Government
Buses
TERMINATION COMPENSATION
Authority default and Political Force Majeure Events Concessionaire default and Non-Political Force Majeure Events
(i) Accrued and undisputed amounts payable to the Concessionaire towards the (i) Accrued and undisputed amounts payable to the Concessionaire towards the
Grant for Project Milestones completed and certified* or the Processing Fee*; Grant for Project Milestones completed and certified* or the Processing Fee*;
(ii) Debt Due as on the date of Termination Notice; (ii) [85%] of Debt Due as on the date of Termination Notice;
(iii) Adjusted Net Equity; LESS
LESS (i) Accrued and unpaid amounts payable to the Authority towards the Royalty (and
(i) Accrued and unpaid amounts payable to the Authority towards the Royalty (and interest)*; and
interest)*; and (ii) Any other amounts due and payable by the Concessionaire (including LDs).
(ii) Any other amounts due and payable by the Concessionaire (including LDs).
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