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Invitation to IE Tender - Revision Page 1
MINISTRY OF INFRASTRUCTURE AND TRANSPORT PROVISIONAL CONTRACTOR: ARIADNE AIRPORT GROUP
GENERAL SECRETARIAT OF INFRASTRUCTURE
GENERAL SECRETARIAT
OF TRANSPORT INFRASTRUCTURE
“ΕΥΔΕ/ΚΕΣΠ/Π&ΒΕ”
CONCESSION AGREEMENT FOR DESIGN - CONSTRUCTION - FINANCING - OPERATION - MAINTENANCE AND EXPLOITATION OF THE NEW INTERNATIONAL AIRPORT OF HERAKLION CRETE & DESIGN - CONSTRUCTION AND FINANCING OF THE ROAD CONNECTIONS
OPEN INTERNATIONAL TENDER FOR THE SELECTION OF INDEPENDENT ENGINEER
INVITATION TO TENDER - REVISION
ATHENS OCTOBER 2017
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INVITATION TO TENDER For the selection of a contractor for the project:
Provision of Independent Engineer services for the Project: “DESIGN - CONSTRUCTION - FINANCING - OPERATION -
MAINTENANCE AND EXPLOITATION OF THE NEW INTERNATIONAL AIRPORT OF HERAKLION CRETE & DESIGN - CONSTRUCTION AND
FINANCING OF THE ROAD CONNECTIONS” 1. PREAMBLE The Ministry of Infrastructure, Transport, and Networks, acting on behalf of
the Hellenic Republic, conducted an International Open Tender for the
implementation of the Project “Design - Construction - Financing - Operation -
Maintenance and Exploitation of the New International Airport of Heraklion
Crete & Design - Construction and Financing of the Road Connections” (the
“Project”). The Tender Notice of the Project (the “Tender Notice”) and the rest of the
Tender Documents of the Project were approved with Decision no.
ΕΠΠ/ΑΚ/Φ1.1/ οικ 1524/14-05-2014 of the Minister of Infrastructure, Transport
and Networks and were finalized with Decision no. ΕΠΠ-
ΒΕ/Γ/ΑΚ/Φ1.1/9548/29-09-2016 of the Minister of Infrastructure, Transport,
and Networks, with the purpose of selecting a contractor for the above-
mentioned Project, the sole awarding criterion being the lowest financial offer.
The Tender was conducted on the 27th of October 2016 and the consortium
of companies under the trade name “Consortium TERNA SA – GMR Airports
Limited ” and the distinctive title “ARIADNE AIRPORT GROUP" was selected
as the Provisional Contractor, according to Decision no. ΕΠΠ-
ΒΕ/Γ/Φ27/5100/30-05-2017 of the Minister of Infrastructure, Transport and
Networks.
Pursuant to article 28 of the Tender Notice, the selected Provisional
Contractor is obliged to conduct an open international tender in order to select
the individual or legal person that will undertake the duties of Independent
Engineer (“Independent Engineer Tender”), as described in detail in the Draft
Concession Agreement regarding the Project’s Design - Construction Period
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(Period T1) and will enter into an Independent Engineer Contract with the
Company (as this is defined hereinafter).
Now, hereby, a notice of the above-mentioned open international tender is
given in order for the selection of the Project’s Independent Engineer, and the
terms and conditions of participation in that tender are defined.
2. DEFINITIONS Unless otherwise defined herein, the definitions set forth herein have the
meaning that is given in the Tender Notice and the Draft Concession
Agreement of the Project including their Annexes (the “Tender Documents”).
Participation in the Independent Engineer Tender requires a thorough study of
the Project's Tender Documents and their attachments, and IE Bidders hereby
declare, through their participation in the IE Tender, that they have taken full
cognizance and unreservedly accept all the terms of this IE Invitation, the
Draft IE Agreement as well as the Tender Documents.
In addition, the following terms used herein have the following definitions:
“Independent Engineer or IE” means the person that shall control and
approve the Designs and supervise the Project’s Constructions during the
Design - Construction Period, in accordance with IE Agreement and the more
specific terms of the Project’s Tender Documents.
“IE Contractor” means the Lowest IE Bidder who shall sign the IE
Agreement, according to the provisions of 16.1 hereof.
“Second Lowest IE Bidder" means the person who shall be ranked second
in the IE Tender, after the evaluation of the IE Bids and shall be designated as
such by the IE Tender Committee.
“IE Bidder” means any individual or legal person or consortium or joint
venture that has submitted a bid in the IE Tender.
“IE Tender” or “Independent Engineer Tender” means the tender
announced hereby for the selection of the Project’s Independent Engineer.
“IE Bidder’s Participation Letter of Guarantee” means the bank letter of
guarantee according to the terms of article 11, which each IE Bidder shall
submit with their bid.
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“Consortium” means the consortium of companies under the trade name
“CONSORTIUM TERNA SA – GMR Airports Limited”, with the distinctive title
“ARIADNE AIRPORT GROUP”, having its registered seat in Athens, No. 85,
Messogion Ave, Postal Code 115 26, that already has been announced as
Provisional Contractor of the Project hence, invites the interested parties to
submit bids according to this invitation.
“IE Tender Committee” means the committee, which will be constituted
according to the provisions of article 28.5.5 of the Tender Notice, whose
objective is to conduct the IE Tender and evaluate the IE Tenders, according
to the terms set forth in this IE Invitation and in the Project’s Tender Notice.
“Company” or “Airport Company” means the societe anonyme company of
special/exclusive purpose that shall be established by the Initial Shareholders
under the Greek law in which, following the amendment of its Original Articles
of Association according to the provisions of clause 9.3.1 of the Draft
Concession Agreement, the Hellenic Republic shall participate as a
Shareholder with a percentage of 45,90%.
“Members of the Consortium” are: a) the societe anonyme company under
the trade name “TERNA SA”, having its registered seat in Athens, number 85,
Messogion Ave., Postal Code 115 26, and b) the company under the trade
name “GMR Airports Limited”, having its registered seat in India, New Udaan
Bhawan, Opposite Terminal 3, Indira Gandhi International Airport, New Delhi
– 110037.
“Lowest IE Bidder” means the person who shall be ranked first in the IE
Tender, after the evaluation of the IE Bids by the IE Tender Committee.
“IE Invitation” means this invitation to the IE Tender, including its annexes,
amendments and any clarifications that may be provided according to article
9.2 hereof, which in total constitute an integral part hereof.
“IE Bid” means all the papers, supporting documents and records that shall
be submitted by the IE Bidder, according to the provisions hereof.
“IE Financial Bid” means the content of subfolder “B” of the IE Bid.
“Compatible Airport” has the meaning of article 17.3.1 of the Tender Notice.
“Draft IE Agreement” means the attached hereof as Annex V draft
agreement which the IE Bidders are obliged to take into consideration for the
submission of their bid.
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“IE Agreement” means the agreement which will be executed between the IE
Contractor and the Company according to Draft IE Agreement.
3. SCOPE OF THE TENDER – DATE AND DEADLINE FOR THE SUBMISSION OF BIDS 3.1 The Consortium, in its capacity as Provisional Contractor of the Project,
hereby announces an international open tender for the selection of
Independent Engineer, with the lowest IE Bid being the sole awarding
criterion, in accordance with the terms of this IE Invitation and the Project’s
Tender Documents.
3.2 The receipt, check, and evaluation of the IE Bids shall be conducted at
the Consortium's registered seat by the IE Tender Committee.
3.3 The submission of the IE Bids shall take place at the Consortium's seat
in Athens, No. 85, Messogion Ave, Postal Code 115 26 on Thursday,
December 7, 2017 from 10.00 am to 12.00 pm at the latest.
The date mentioned above may be postponed by decision of the Consortium
taking into consideration the Period of Contractual Document Finalization,
according to provisions of article 28 of the Project’s Tender Notice.
3.4 The submission of IE Bids may alternatively be done in two ways:
(i) by submission at the Consortium’s registered seat, by a duly
authorized representative of the IE Bidder, on the date of
submission of IE Bids and within the above period set for the receipt
of IE Bids, or
(ii) by registered mail or courier company at the Consortium's
registered seat for the attention of the representative of the
Consortium, i.e. Mr. Alexander Aligizakis or Mr. Emmanouil
Moustakas, on the date of submission of IE Bids and within the
receipt period of IE Bids set in clause 3.3 above, against proof of
delivery/receipt. It is clarified that in these cases, the responsibility
for the timely submission of the IE Bid lies with the IE Bidder.
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3.5 The receipt may continue after the expiry of the time for the submission
of IE Bids, in case the submission of bids that has timely begun continues
uninterrupted due to the number of prospective bidders.
3.6 Any bid that will be submitted to the Consortium after the date and time
mentioned above shall be considered overdue and shall be returned to the IE
Bidder without being opened.
4. SUMMARY DESCRIPTION OF THE SCOPE
The IE Contractor shall enter into the Independent Engineer Agreement with
the Company, under which they shall undertake to perform the duties, as
described in the Tender Documents, the IE Invitation and the attached herein
Draft IE Agreement and under the terms thereof.
5. RIGHT OF PARTICIPATION AND ELIGIBILITY CONDITIONS – CRITERIA 5.1 Individual persons or legal entities as well as consortiums and joint
ventures are entitled to participate in the IE Tender, as long as they. or in
case of consortium or joint venture, their members:
(i) are established in a Member State of the European Union, the European
Economic Area, or a Member State of the World Trade Organization or in
States that have entered into bilateral agreements with the European Union
regarding the procedures for the award of public contracts; and
(ii) Comply with the terms and conditions outlined in this article (5).
IE Bidders are not required to obtain a specific legal form in order to
participate to the IE Tender.
5.2 In case of a consortium or joint venture who submit a common bid, the
below terms shall apply:
a) their Members will be collectively and in full obligant between them,
i) before the Consortium as regards to IE Bidder’s obligations
and/or the Lowest IE Bidder’s obligations, according to the terms
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hereof and ii) if announced IE Contractor, before the Consortium
and the Company, once the latter is constituted.
b) the participation percentage of their members declared through the
IE Bid, will be binding in case the specific IE Bidder is announced
as the Lowest IE Bidder and/or the IE Contractor.
c) any IE Bid submitted by consortium or joint venture must be signed
by the legal representatives or the joint representative, who is
legally designated by each if the members of the consortium or the
joint venture.
5.3 Any individual or legal person as well as consortiums or joint ventures
are entitled, on penalty of exclusion from the procedure, to participate with
one and only IE Bid. Additionally the members of a consortium or a joint
venture are not entitled, on penalty of exclusion from the procedure, to
participate in more than one IE Bidders.
5.4 More specifically, the individual or legal person wishing to be selected
as Independent Engineer should meet the following criteria, on penalty of
exclusion from the IE Tender procedure:
i. Have a proven experience in independent engineer duties, in
developing and implementing project quality management systems,
design checking, time schedules, certification of works and
construction supervision in at least one (1) Compatible Airport which
must have been completed over the last decade (2007-2016). It is
noted that the above required experience is considered to be
possessed by an IE Bidder who demonstrates at least the fulfillment of
the duties of independent engineer regarding (A) the passenger
terminal building of at least one Compatible Airport including all the
installations and systems of the said building and (B) aircraft traffic and
parking areas, which necessarily include aircraft parking and service
areas (apron), taxiways and runway of at least one Compatible Airport,
including the required infrastructure and the required facilities and
networks of those areas, without requiring the above (A) and (B)
sections to refer to the same Compatible Airport. The above required
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experience is taken into account provided that it concerns all stages of
development of Compatible Airport parts (A) and (B) above, as
described in the first field of this article 5.4i, until such parts are
complete and become fully operational and provided that each of these
complete segments corresponds to one and only Compatible Airport.
For the purpose of clarification of this article, experience which refers to
(A) and/or (B) parts of Compatible Airport shall not be taken into
account if it has derived from expansion or completion of an existing
Compatible Airport in case the above conditions are not met. In case that the above experience of the IE Bidder results from their
participation in a consortium or joint venture, it shall only be taken into
account if the participation percentage in such consortium or joint
venture is over 50%.
In case the IE Bidder is a consortium or joint venture, then:
(a) In case the above experience under (A) and (B) parts of Compatible
Airport is provided by one member, then this member must (i)
participate in the consortium or joint venture with a percentage of more
than fifty per cent (50%), a percentage which will remain irreducible
throughout the duration of the IE Agreement including any extensions
and (ii) be the leader of the IE Bidder, a position he / she will maintain
throughout the duration of the IE Agreement including any extensions.
(b) In the event that in order to prove the above required experience
the IE Bidder invokes the experience of more of its members, then the
members of the IE Bidder, whose experience is invoked, shall
participate in the consortium or joint venture cumulatively with more
than fifty percent (50%). This cumulative percentage shall remain
irreducible throughout the duration of the IE Agreement including any
extensions. In this case, the one of the members of the IE Bidder -
whose experience is invoked - which will hold the highest percentage of
participation in relation to the other members, will be the leader of the
IE Bidder, a position he/she will maintain throughout the duration of the
AM Agreement, including any extensions. In the event that the IE
Bidder’s members - whose experience is invoked - hold the same
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percentage of participation, then it is at their discretion to indicate the
IE Bidder’s leader.
ii. Operate within a certified ISO 9001 or equivalent quality assurance
system. In case of a consortium or joint venture, the obligation of this
clause must be applicable to the person(s) who provide(s) the required
experience to the IE Bidder including the person who will be the leader
of the IE Bidder.
iii. Have no direct relation (in case of consortium or joint venture, this
applies for each member separately) with the Provisional Contractor or,
where applicable, the Members of the Provisional Contractor, which
creates a conflict of interest.
iv. Be insured, at the time of bid submission, against professional liability
risks for an amount of at least ten million Euro (10,000,000.00 €) per
event and twenty million Euro (20,000,000.00 €) cumulatively. In case
of a consortium or joint venture, the obligation of this clause must be
applicable at least to the person who will be the leader of the IE Bidder.
In case where a foreign currency conversion in € is required, in order to
document the above amounts, the reference date shall be the bid
submission date, as defined in the above clause 3.3 hereof.
v. Have a turnover from the provision of independent engineering
services over the last five (5) financial years, which, cumulatively
calculated, will be at least equal to the total amount of twenty million (€
20,000,000.00 before VAT). In case the IE Bidder is a consortium or
joint venture, in order to confirm fulfillment of this condition, the sum of
weighted averages of turnover of each of their member for the
provision of independent engineering services, will be taken into
consideration. The calculation shall be carried out based on the
participation share in the IE Bidder, as per declaration of these
members. In case where a foreign currency conversion in € is required,
in order to document the above amount, the reference date shall be the
bid submission date, as defined in the above clause 3.3 hereof.
vi. Ensure the participation in the execution of the tasks of Independent
Engineer, of suitably qualified and experienced persons as to the
provision of such services in projects of a similar size, object and
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complexity to those of the Project and the services it is required to
cover according to the needs of the Project, such as these needs arise
from the Tender Documents and the Draft IE Agreement. IE Bidders
should have at least the technical personnel listed in the table of Annex
I (a) for the execution of the Project.
5.5 Each IE Bidder, or in case of consortium or joint venture, each member
of IE Bidder must meet, on penalty of exclusion, cumulatively the following
criteria regarding their personal status:
5.5.1 Be recorded in a professional or commercial register in accordance
with the law of their country of establishment.
5.5.2 Not be in a state of bankruptcy, liquidation, receivership, termination of
business or composition and, in the case of foreign persons, in any
similar situation arising from a similar procedure, as provided in the
national legislation of their country of establishment.
5.5.3 Not be the subject to proceedings for bankruptcy, liquidation,
receivership, termination of business or composition and, in the case of
foreign persons, in any other similar situation arising from a similar
procedure, as provided in the national legislation of their country of
establishment.
5.5.4 The individual or legal person or each of the consortium or joint venture
members (in the case the IE Bidder or any of its members, is
established in a country whose legislation stipulates the criminal liability
of legal persons), their legal representatives and directors according to
their articles of association or equivalent document, must not have
been convicted by a final court sentence, in accordance with the
legislation of their country of establishment, for one or more of the
offenses listed below:
i. Participation in a criminal organization, as defined in article 2,
paragraph 1, of Framework Decision 2008/841/ΔΕΥ of the
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Council of 24th October 2008, for the cure of organized crime
(EE L 300 of 11.11.2008, p. 42).
ii. Bribery, as such is respectively defined in article 3 of the
convention regarding the fight against corruption where
officials of the European Communities or of the states-
members of the union are involved (EE C 195 of 25.6.1997, p.
1) and in article 2, paragraph 1 of Framework Decision
2003/568/ΔΕΥ of the Council of 22nd July 2003 for the cure of
bribery in private sector (EE L 192 of 31.7.2003, p. 54) as well
as according the applicable law or the national legislation of
the IE Bidder’s country of establishment.
iii. Fraud within the meaning of article 1 of the Convention
relating to the protection of the financial interests of the
European Communities (EE C 316 of 27.11.1995, p. 48),
which was ratified with Law 2803/2000 (Α/48).
iv. Money laundering or financing of terrorism, as defined in
article 1 of Directive 2005/60/EK of European Parliament and
Council of 26.10.2005 for the prevention of the exploitation of
the credit system for the purpose of money laundering and
funding terrorist activities (EE L 309 of 25.11.2005, p. 15), as
amended and in force, which was further annexed to the
Greek law by Law 3691/2008, as amended and in force.
v. Terrorist crimes or crimes connected with terrorist activities,
as defined, respectively, in articles 1 and 3 of Framework
Decision 2002/475/ΔΕΥ of Council of 13 June 2002, for the
fighting of terrorism (EE L 164 of 22.6.2002, p. 3) or
instigation of or assisting or attempting the perpetration of a
crime, as defined in article 4 thereof.
vi. Child labor and other forms of trafficking in human beings, as
defined in article 2 of Directive 2011/36/EE of the European
Parliament and of the Council of 5 April 2011, for preventing
and combating trafficking in human beings and protecting its
victims, and for replacement of Framework Decision
2002/629/ΔΕΥ of Council (ΕΕ L 101 of 15.4.2011, p. 1), which
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was further annexed into the national legislation by Law
4198/2013 (A’215).
As legal representatives and commanding officers are defined the
administrators in the case of general partnerships (O.E. according to
Greek law), limited partnerships (E.E. according to Greek law),
private holding companies (I.K.E. according to Greek law) and
limited liability companies (Ε.Π.Ε. according to Greek law), the
chairman of the board of directors and the chief executive officer in
the case of a public societe anonym (S.A.) and the individuals that
represent and exercise the management of the legal entity in any
other vase of company types, according to the laws of the concerned
country of establishment In the event that the IE Bidder is a
consortium or joint venture, the same shall apply for the legal
representatives and directors of each of the members of the
consortium or joint venture.
5.5.5 Have not committed any major professional misconduct.
5.5.6 Have fulfilled obligations relating to the payment of social security
contributions (primary and secondary) in accordance with the Greek
legislation, or the legislation of the country in which they are
established.
5.5.7 Have fulfilled obligations relating to the payment of taxes and dues, in
accordance with the applicable Greek legislation, provided that they
conduct business activities in Greece, or, otherwise, in accordance with
the legislation of the country in which they are established.
5.5.8 Not be subject to any legal restrictions for the participation to the tender
on the date of submission of the IE Bids.
5.5.9 Have not submitted a false or incomplete statement regarding the
information mentioned above.
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5.5.10 IE Bidders not meeting all the conditions of this article shall be
excluded from the IE Tender.
5.5.11 The Consortium reserves the right to exclude an IE Bidder from the IE
Tender procedure on grounds of protection of the country's public
interest, national security and national defense, in case this is required
for the above reasons by the Contracting Authority on its discretion,
whereby such exclusion will be duly justified by the Consortium by
reference to the non-confidential reasons on which it would be
informed by the Contracting Authority. In this context, the Consortium
may require from IE Bidders to provide any necessary information
regarding their property status, in order to exercise such right.
5.5.12 The Consortium reserves the right to exclude from the IE Tender
procedure any IE Bidder who has demonstrably violated the privacy of
the IE Bids or the tender procedure and has adulterated the
competition.
6. TENDER DOSSIERS 6.1 The IE Bid shall be enclosed in a single sealed file that shall include:
(a) The sealed subfile “A” with the indication “PARTICIPATION
DOCUMENTS” which includes the supporting documents referred to in
article 7 hereof and the IE Bidder’s Participation Letter of Guarantee
referred to in article 11 hereof.
(b) The sealed subfile “B” with the indication “FINANCIAL BID,” which
includes the elements of the IE Financial Bid of the IE Bidder, as
described in article 8 hereof.
6.2 Each IE Bidder shall be required to submit the IE Bid in:
(a) one (1) original, and
(b) one (1) copy.
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6.3 The word "ORIGINAL" shall be written on the single sealed file
containing the original, and in the event of a mismatch this shall prevail over
the copy.
6.4 The single sealed file of the IE Bids must necessarily have the
following indications:
TENDER DOSSIER FOR THE SELECTION OF AN INDEPENDENT ENGINEER FOR THE PROJECT “Design - Construction - Financing - Operation - Maintenance and Exploitation of the New International
Airport of Heraklion Crete & Design - Construction and Financing of the Road Connections”
To the Consortium “Consortium TERNA SA – GMR Airports Limited”, with distinctive title “ARIADNE AIRPORT GROUP” No. 85, Messogion Ave, postal code 115 26, Athens
(To the attention of Messrs. Al. Aligizakis or Emm. Moustakas) [Name of IE Bidder and in case of consortium or joint venture, the names of
all members]
[Contact Address of IE Bidder (street, number, city, postal code, telephone
numbers, fax number, email address)]
To be opened only by the IE Tender Committee
Each sealed subfile shall be marked as “Subfile A - PARTICIPATION
DOCUMENTS” or “Subfile B - FINANCIAL BID” as appropriate.
Any omission to indicate the above mentioned details on the folders shall be
completed upon submission of the IE Bid by the IE Tender Committee and
shall not constitute grounds for exclusion of the IE Bidder.
6.5 Subject to the following paragraph, all of the documentation of IE Bid
shall be submitted either in originals or duly authorized copies.
6.6 Original documents in any language other than Greek may be
submitted in this language, on condition that they are accompanied by an
official translation in Greek (in accordance with the applicable Greek
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legislation). In a case of doubt, inconsistency or mismatch between the texts,
the text of the translation into Greek shall prevail. An exception is made for
the setting up legal entities and associated corporate documents, the letters of
guarantee and the documents issued by foreign authorities, in respect of
which the original text shall prevail in the event of a mismatch, doubt, and
inconsistency. Similarly, when the translation of national regulations and
official specifications and/or other equivalent texts is required, the original
version shall prevail.
6.7 All public documents relating to foreign persons to be submitted by IE
Bidders to the IE Tender shall be duly authorized either by the competent
Consulate in the IE Bidder’s country of establishment or by affixing an
Apostille in accordance with the Hague Convention of 5-10-1961 (which was
ratified by Law 1497/84), so that their authenticity is certified, and shall be
accompanied by a legitimate translation into Greek. It should be noted that
this formality applies to documents which are regarded as public documents
under article 1 of that Convention, namely: (i) documents originating from an
authority or a civil servant of a judicial authority of the state; (ii) administrative
documents; (iii) notary documents; and (iv) solemn statements, such as
registration certificates, statement for certainty of time and signature
authorizations on a private document.
6.8 In the event that any of the supporting documents referred to in article
7 below is not issued by the respective country of the IE Bidder, such
document may be replaced by an sworn statement or, if this is not applicable,
by a statement of the lawful representatives of the IE Bidder before a judicial
or administrative authority, notary public, or the competent professional body
in the respective country of establishment. Such sworn declaration or
statement shall certify/state the inability to obtain the relevant supporting
documents issued in the respective country as well as the compliance of the
IE Bidder or any of its members with the respective terms hereof.
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6.9 Each sheet of the original IE Bid must be initialed by the lawful
authorized representative of the IE Bidder.
6.10 IE Bidders are invited to properly prepare and submit their bid, to take
account of the content of the Tender Documents and the Draft IE Agreement,
and to comply with the relevant instructions contained herein.
6.11 The bid files should include supporting documents and information as
set out below.
It should be noted that subfile “A” should not include, on penalty of exclusion,
any element of the IE Financial Bid.
7. SUBFILE “A” (PARTICIPATION DOCUMENTS)
IE Bidders are required to submit the following supporting documents in a
sealed subfile “A” with the indication “PARTICIPATION DOCUMENTS” with
their IE Bid:
(i) A document accompanying the submission of the IE Bid addressed
to the Consortium, signed by the legal representative of the IE
Bidder or in case of a consortium, by the legal representatives of
the members or their joint representative, and including the
following:
• statement of participation in the tender for the nomination of
Independent Engineer;
• identification data of the IE Bidder and in case of a
consortium or joint venture of its members as well, i.e. full
name/trade name and the necessary contact details (postal
address, telephone number, fax number, e-mail).
(ii) A table of contents of subfiles “A” and “B”.
(iii) The legalization documents proving the appointment and the
representation power of the legal representatives of the IE Bidder,
according to the law of their country of establishment.
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(iv) In case of a consortium or joint venture, the IE Bidder will submit a
notary act for the establishment of the joint venture, which will at
least include:
• The participation shares of the members into the
consortium/joint venture which will be actually their
participation percentages in case of Lowest IE Bidder
selection and awarding of the IE Tender as well as their
role/scope of service provision in the consortium/joint
venture.
• Declaration for collective and in full obligation towards the
Consortium and in case of being the IE Contractor, towards
the Company upon its establishment.
• In the event that the IE Bidder is a consortium, a statement
that upon its nomination as the IE Contractor, it will establish,
after its nomination as the Lowest IE Bidder, a joint venture
according to Greek legislation and that the provisions of
article 5.4 (i) shall unremittingly apply.
• Designation of one (joint) or more legal representatives that
will represent the IE Bidder, sign and act on account of the IE
Bidder in all relationships with the Consortium until the
execution of the IE Agreement.
(v) Solemn Statement in case of consortium or joint venture, of their
joint representative or joint representatives, on the acceptance of
their appointment.
(vi) A certificate of entry (in case of consortium or joint venture for each
of its members) in the professional register of their country of
establishment, in force at the date of submission of the IE Bids.
(vii) A table of projects demonstrating the required experience under
article 5.4 (i) hereof, including, among other things, information
about the type, the location of the project, the IE Bidder's employer,
in accordance with the form of Annex II. In case of a consortium or
joint venture, the obligation of this clause must be at least
applicable to the person(s) whose experience is invoked by the IE
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Bidder in order to prove the required experience including the
person who will be the leader of the IE Bidder.
(viii) Certification issued by the respective Client of the project as well as
certificates/letters/contractual documents demonstrating their
participation, according to the provisions hereof in the projects
referred to in the immediately preceding case and the completion
thereof, in order to document the fulfillment of the criteria under
article 5.4 (i). In case that the above experience of the IE Bidder
results from their participation in a consortium or joint venture, the
consortium or joint venture in which the IE Bidder or its member
participated and the percentage of participation in it shall be
declared. In case of a bidding consortium or joint venture, the
obligation of this clause must be applicable to the person(s) whose
experience is invoked by the IE Bidder in order to prove the
required experience including the person who will be the leader of
the IE Bidder.
(ix) An ISO 9001 or equivalent certificate, effective on the date of
submission of the IE Bid. In case of a consortium or joint venture,
the obligation of this clause must be applicable to the person(s) who
provide(s) the required experience to the IE Bidder including the
person who will be the leader of the IE Bidder.
(x) A certification of insurance of the interested party, valid on the date
of bid submission, against professional liability risks for an amount
of at least ten million euro (10,000,000.00 €) per event and twenty
million euro (20,000,000.00 €) cumulatively. In case of a consortium
or joint venture, the obligation of this clause must be applicable at
least to the person who will be the leader of the IE Bidder.
(xi) A Solemn Statement pursuant to Law 1599/1986, in which the IE
Bidder shall declare that:
a) they accept to perform Independent Engineer tasks in the
Project, in accordance with this IE Invitation and the terms
described in the Draft Concession Agreement, and
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b) they or any of their members do not have a direct relationship
with the Provisional Contractor or, where applicable, the Members
of the Provisional Contractor, which creates a conflict of interest.
(xii) Published annual financial balance statements, outturn accounts,
and profit distribution table (corporate and, if applicable,
consolidated) of the IE Bidder for the last five (5) financial years
and, in the case of a individual person, the respective Income Tax
Filings and Income Tax Returns or other suitable reports and
documents. The financial statements of legal persons should be
audited by a statutory auditor and shall be submitted in duly
authorized copies, as they were legally published. In the case
where there is no legal obligation to publish and audit annual
financial statements as regards a legal person, a statutory auditor’s
statement accompanied by signed financial statements reflecting
the asset structure of that legal person for the respective period,
should be provided. In case of a consortium or joint venture the
information of this clause shall be submitted for each of the
members of IE Bidder.
(xiii) IE Bidders must submit a Solemn Statement in accordance with
Law 1599/1986 according to the form of Annex I (b), to which they
will be bound:
- for the organization and structure of their personnel in accordance
with article 5.4 (vi) hereof
- for full compliance with Project’s requirements, as derived from the
Tender Documents and the Draft IE Agreement.
- for their compliance with the table of Annex I (a).
(xiv) A Solemn Statement pursuant to Law 1599/1986, given by the legal
representative or legal representatives of the IE Bidder about the
non-concurrence, as regards themselves or the IE Bidder or in case
of consortium or joint venture their members, of any of the grounds
for exclusion mentioned in articles 5.5.2 to 5.5.9 hereof, where the
above-mentioned terms shall be listed in detail according to this
invitation and in line with the template of solemn statement of
Annex III hereof.
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(xv) A Solemn Statement under Law 1599/1986 by their legal
representative or legal representatives, in which the IE Bidder shall
declare as follows:
a) that they have taken cognizance of the terms hereof and its
annexes and accept them unconditionally.
b) the period of effect of their IE Bid according to the provisions of
article 10 hereof and that they accept the extension of its duration,
in accordance with the provisions of the same article.
c) that the data and information provided with the IE Bid are true.
d) that they have taken cognizance of this IE Invitation and the
Tender Documents as notified to IE Bidders, which are considered
to be an integral part of this IE Invitation, and accept them
unreservedly.
e) that if they are designated as the IE Contractor, they shall comply
with the applicable T1 Period Implementation Schedule of the
Project.
(xvi) For the participation in this IE Tender and the submission of a valid
IE Bid, IE Bidders are required to submit on penalty of exclusion of
their bid, an IE Bidder’s Participation Letter of Guarantee in
accordance with article 11 hereof.
8. SUBFILE “B” (FINANCIAL BID) 8.1 IE Bidders are required to draw up and prepare their financial bid,
which shall be contained in the sealed subfile “B” entitled “FINANCIAL BID,”
taking into account the following:
a) The IE Bid shall be given in the form of a fixed lump sum, according to the
sample of Annex VI of this IE Invitation. During the completion of such Annex
by the IE Bidders, any change of its content shall in no way be possible. The
price offered shall necessarily include all of the IE Contractor's fees and other
costs for the provision of Independent Engineer’s services in the Project,
always in accordance with the provisions of the Tender Documents and the
Draft IE Agreement, i.e. indicatively but not limited to:
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(i) The fee for the execution of the tasks in accordance with the Draft
Concession Agreement.
(ii) The remuneration of all the personnel employed in the Project
irrespective of their seat, including social insurance contributions, in
accordance with applicable law, and any expenses for food,
accommodation, travel etc.
(iii) Project-related costs, regardless of location, i.e. indicatively:
mobilization, installation costs, office expenses, cost of
consumables.
(iv) Expenditure of file keeping, process approval of studies and work
certifications, costs associated with quality control obligations (eg
taking and keeping samples of materials and specimens, etc.).
(v) Correspondence costs.
(vi) Expenses for the issuance of residence & work permits for the
personnel, according to the applicable legislation.
(vii) Any expenses for the establishment of a consortium or joint venture;
(viii) Insurance costs in accordance with the terms of the Tender
Documents, the Draft IE Agreement and the applicable legislation.
(ix) The total taxes that shall be charged to the IE under the IE
Agreement.
b) The payment of IE Contractor’s fee will be made in accordance with the
Independent Engineer's payment schedule which will be agreed between the
Consortium and the IE Contractor before or at the time of execution of the IE
Agreement and will be annexed thereto as annex II In any case, IE fee’s
payments will be monthly in accordance with IE’s organization chart and the
Project Timetable. The determination of IE Contractor’s remuneration in the
case of Supplementary Services or Supplementary Works or due to extension
of the Design-Construction Agreement, will be implemented according to the
provisions of Draft IE Agreement.
c) The lump sum price of the IE Bid, as it shall be prepared in accordance with
the above, shall not exceed the amount of thirteen million euro (13,000,000.00
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€), on penalty of exclusion. The above-mentioned price does not include the
corresponding VAT.
8.2 The data of the IE Financial Bid shall not be subject to change during
the IE Tender. In case the Consortium requests an extension of the duration
of the IE Bid, IE Bidders shall not be entitled, upon giving notice of their
consent to such extension, to submit a new IE Financial Bid, subject to clause
14.7.
8.3 IE Bidders do not have the right to withdraw their bid or part thereof
after its submission. If the bid or part thereof is withdrawn, or if the IE Bidder
who may be selected as the IE Contractor based on such bid, fails to appear
for the signature of the Independent Engineer Agreement, this IE Bidder shall
be subject to sanctions; more specifically:
- exclusion and loss of any right to adjudication
- forfeiture of the IE Bidder’s Participation Letter of Guarantee without any
other formality or judicial action.
8.4 The fee of IE, as it derives by the IE Contractor’s IE Financial Bid is a
fixed fee and is not subject to any escalation for any reason, even if the time
of the Project’s Design - Construction Period is extended.
9. PROVIDED DATA - CLARIFICATIONS 9.1 In order for their participation in the IE Tender, the interested parties
may be informed of the Project's Tender Notice and the Draft Concession
Agreement and its attachments as well as the rest of data in accordance with
the following instructions:
(i) Submission of a request by the IE Bidder to the Consortium where the
full details must be provided (indicatively name / trade name, address,
telephone, fax number, name of legal representative, etc.) so that the
Consortium has at its disposal the a full list of interested parties for sending
any additional documents, clarifications etc., simultaneously to the following
e-mail addresses:
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(ii) Submission to the Consortium of the confidentiality statement attached
hereof as Annex VII ("Confidentiality Statement"), in accordance with the
Confidentiality Agreement attached thereto, accompanied by the necessary
legalization documents of the person signing it.
(iii) Following review and approval by the Consortium of the above
elements (i) and (ii), interested parties will receive instructions from the
Consortium to access the Project provided data.
9.2 Any questions related to the IE Tender can be sent simultaneously to
the email addresses listed in the clause 9.1(i) hereof, the latest ten (10) days
before the final submission date of IE Bids. The Consortium, as the awarding
authority of the IE Tender, shall respond to requests for clarifications within a
reasonable time, and the latest six (6) days from the closing submission date
of the IE Bids. In any case, the Consortium’s answer shall be provided
electronically, without IE Bidders being able to revoke any clarifications or
commitments of the Consortium that have been provided orally.
10. BID VALIDITY PERIOD The IE Bids shall be effective and commit IE Bidders for twelve (12) months
from the day after the IE Tender is conducted, with the Consortium having the
right to extend such term unilaterally, by means of a statement, for a further
period of six (6) months. In any case, their validity shall be extended
automatically with the same terms according to the duration of the pre-
signature procedure of the Concession Agreement, in accordance with the
provisions of the Project's Tender Notice and the Draft Concession
Agreement.
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11. IE BIDDER PARTICIPATION LETTER OF GUARANTEE 11.1 The letter of guarantee of this article is obligatorily issued by a Bank or
Credit Institution legally operating in one of the Member States of the
European Union or the European Economic Area (EEA) and is entitled to
issue letters of guarantee in accordance with the relevant legislation.
11.2 In order for the participation in this IE Tender and the submission of a
valid IE Bid, IE Bidders are required to submit, on penalty of rejection of their
bid, an IE Bidder’s Participation Letter of Guarantee for an indefinite period
and the amount of five hundred twenty thousand euro (520.000,00 €).
11.3 The IE Bidder’s Participation Letter of Guarantee shall be drawn up
according to the form of Annex IV. The submittal of more than one letter of
guarantee is acceptable, on condition that their content conforms to the form
and their sum is equal to the minimum limit set herein.
11.4 The IE Bidder’s Participation Letter of Guarantee shall be returned as
follows:
a) To the IE Bidder that will be nominated Lowest IE Bidder, according to the
terms hereof, and to the Second Lowest IE Bidder within five (5) business
days after the signature of the Independent Engineer Agreement between the
IE Contractor and the Company.
b) To the remaining IE Bidders, within five (5) business days from the
execution of IE Agreement.
c) To any IE Bidder within five (5) business days from any cancellation of IE
Tender or any cancellation of the IE Tender's results by the Consortium
occurring in any way.
12. LANGUAGE OF THE IE TENDER The official language of the IE Tender is Greek. All elements thereof and any
document of the Consortium, in its capacity as awarding authority of the IE
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Tender, and any document of the IE Bidders shall be drawn up in Greek or
accompanied by an official Greek translation.
13. BID EVALUATION PROCEDURE – CLARIFICATIONS – COMPLETIONS 13.1 In order to participate validly in the IE Tender, the interested parties
shall submit a bid, in accordance with the terms hereof, on the date of
submission of the IE Bids as defined in article 3 hereof.
13.2 The IE Tender Committee shall receive the bids from IE Bidders on the
day and time specified in article 3 hereof, whether they have physically
submitted or sent by post, in accordance with the terms of clause 3.4.
13.3 IE Bidders do not have the right to withdraw their IE Bid or part thereof
after it has been submitted, on penalty of forfeiture of the IE Bidder's
Participation Letter of Guarantee.
13.4 The IE Bidder is required to submit all requested data. References to
documents are allowed if such documents are attached to the IE Bid, and the
relevant reference is made.
13.5 Following the opening of the IE Bids, the IE Tender Committee at its
absolute discretion and in accordance with the principle of equal treatment, is
entitled to ask IE Bidders for clarifications and/or additions on their IE Bid
which shall be provided by the IE Bidders within five (5) days from the
submission of the Consortium’s relevant request. However, the above-
mentioned clarifications, additions and/or corrections may not result in the
modification of the basic elements of their bid, the change of which could
cause distortion of competition or discriminations. This paragraph applies also
regarding the review of the Awarding Documents.
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14. REVIEW OF TENDER DOSSIERS 14.1 On the date of submission of the IE Bids and upon the expiry of the
time limit for the submission of bids, the IE Tender Committee first examines
the timely submission of the IE Bids and numbers and initials the IE Bid files
that were submitted within the time limit. Then, it unseals, numbers and initials
subfiles “A” (Participation Documents) and initials the contents of the original
subfiles “A”. The IE Tender Committee reserves the right to continue
reviewing subfiles “A” of IE Bidders at subsequent meetings.
14.2 During evaluation of subfiles “A”, the IE Tender Committee shall first
check the completeness of the contents thereof (Participation Documents)
and subsequently shall examine the compliance of the IE Bid with the terms
and criteria of article 5 hereof.
14.3 Subject to article 13.5 hereof, if the IE Tender Committee discovers:
(i) either that subfile “A” does not include all the supporting documents and
data in accordance with the terms of article 7;
(ii) or that the IE Bidder does not meet the terms and conditions of article 5
hereof,
the IE Bidder shall be excluded from the IE Tender.
14.4 After reviewing subfiles “A” of the IE Bids, the IE Tender Committee
shall prepare Record I and submit the same to the Consortium which notifies
the IE Bidders as for the result of the evaluation of subfile “A”. In the case of
exclusion of an IE Bidder, the submitted subfile “B” shall be returned to this IE
Bidder, by registered mail, with Consortium’s own care.
14.5 Upon completion of the evaluation of subfiles “A” of the IE Bids, the IE
Tender Committee invites IE Bidders in writing, and unseals subfiles “B” of the
IE Bidders who have not been excluded and initials the content of the original
documents. The IE Tender Committee reserves the right to continue
examining subfiles “B” of the IE Bidders.
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14.6 Then, or at a subsequent meeting, the IE Tender Committee examines
the submission by each IE Bidder of the supporting documents of subfile “B”
(IE Financial Bid) under article 8 hereof. Then, the IE Tender Committee shall
draw up Record II (Minutes of Financial Bids’ review). IE Bidders who do not
meet the requirements set on penalty of exclusion for the IE Financial Bid are
excluded from the procedure by the IE Tender Committee. Lowest IE Bidder,
based on Record II, is awarded the IE Bidder that submitted the lowest overall
price (Lowest IE Bidder), as the Independent Engineer’s fee and has not been
excluded, for any reason, from the IE Tender. In the same Record II, the
Committee shall announce the Second Lowest IE Bidder, namely the IE
Bidder that submitted the immediately higher IE Financial Bid compared to
that of the Lowest IE Bidder.
The decision of the same committee is binding for the Consortium, which is
obliged to assign to the Lowest IE Bidder according to the procedure of clause
16.1 hereof, the IE Agreement of the Project.
14.7 In case two or more IE Bidders are bidding with total financial bids of
an equal amount, the IE Tender Committee shall invite in writing the equal
Lowest IE Bidders to submit a new, improved, written IE Financial Bid on a
date and time to be specified by the Committee in the Record referred to in
the preceding article. The new bids, which shall only include subfile “B”, must
meet the conditions set forth herein and shall be evaluated in the same
manner as above. If the equal Lowest IE Bidders refuse to submit a new bid
or in the event of a new tie, a draw shall by conducted by the IE Tender
Committee with the presence of the equal Lowest IE Bidders.
15. REJECTION OF IE BIDS 15.1 Any deviations from the terms that are defined herein as grounds for
exclusion entail the rejection of the relevant IE Bid and the exclusion of this IE
Bidder.
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15.2 An IE Bid which, in the opinion of the IE Tender Committee, is vague,
not subject to evaluation or under consideration, may be rejected as
inadmissible.
15.3 Alternative bids or counter bids are not allowed, and the IE Bidders
who have submitted them shall be excluded from the IE Tender.
15.4 Should the IE Tender Committee discover that an IE Bid contains false
or inaccurate information, such bid shall be rejected.
15.5 In case of an extremely low bid, according to the judgment of the IE
Tender Committee, the latter may request from any IE Bidder further written
substantiation of their bid. Furthermore, in case that according to the
judgment of the IE Tender Committee, the substantiation is not considered
adequate, such bid shall be rejected.
15.6 In case that during the evaluation of the IE Bids, a rejection in
accordance with the above arises thereof, the IE Tender Committee shall
document such rejection in the relevant record that will be composed.
16. RESULTS – AWARD– PREPARATION & EXECUTION OF INDEPENDENT ENGINEER AGREEMENT 16.1 Following the announcement of the Lowest IE Bidder in accordance
with the provisions of article 14 hereof, the Lowest IE Bidder will be invited
within a reasonable term to submit (a) the supporting documents detailed in
Annex VIII hereto; and (b) the table of Annex III of the Draft IE Agreement,
duly completed, accompanied by detailed CVs for its minimum technical
personnel included in this table as well as appropriate evidence and
documents proving the qualifications and experience of each person and
position of the table submitted, as well as solemn statements by those
persons stating that they accept to undertake the tasks the Lowest IE Bidder
intents to assign them (the "Awarding Documents"). In the event of non-
submission of the information of this paragraph or in case this information is
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not in compliance with the requirements of this paragraph, the Consortium
shall exclude the Lowest IE Bidder from the tender with simultaneous
forfeiture of the IE Bidder’s Participation Letter of Guarantee without any other
formality or judicial action and will nominate the Second Lowest IE Bidder as
Lowest IE Bidder.
16.2 After the submission of the Awarding Documents and provided that
they have been approved by the Consortium the IE Contractor will be
announced. In accordance with the provisions of the present and the current
legislation the IE Contractor will be invited, at the latest on the Concession
Commencement Date, to sign the Independent Engineering Agreement,
according to the Draft IE Agreement.
16.3 The IE Agreement will be executed between the Company and the IE
Contractor. In case the latter is a consortium, they must have already
submitted to the Consortium among the Awarding Documents according to
Annex VIII, documentation of established joint venture in accordance with
their statement made according to article 7 (iv) hereof and all legal
requirements so that it is legally recognized, which will be entered into an
agreement as an Independent Engineer with the Company, while the
members of the joint venture will remain individually, collectively and in full
obligant between them for all the obligations of the joint venture as well as for
the loyal and punctual fulfillment of the Independent Engineer tasks defined in
the IE Agreement. The IE Agreement shall be in the Greek language, in
accordance with the Draft IE Agreement.
16.4 The Independent Engineer shall be entirely and solely responsible for
compliance with the applicable legislation as regards to any personnel
employed by them for the performance of the obligations under the
Independent Engineer Agreement, in accordance with the terms of the Tender
Documents and the Independent Engineer Agreement.
16.5 For the avoidance of doubt, it should be noted that the designation of
the Lowest IE Bidder in accordance with the provisions of article 14 and the
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present article does not constitute a conclusion or invitation for the IE
Agreement execution.
17. POSSIBILITY OF IE TENDER CANCELLATION The IE Tender Committee may, with a reasoned opinion, and without the
bidders having any right for compensation claim, propose:
(i) the discontinuance, cancellation or interruption of the IE Tender at any
stage of the procedure.
(ii) the discontinuance of the IE Tender and the resumption thereof, either with
a modification of the terms hereof or not.
In any of the above cases, as well as in the event of non-submission of any IE
Bid, the Consortium may repeat the IE Tender, with or without modification of
the terms hereof.
18. CONFIDENTIALITY – OBLIGATION OF FIDELITY a) IE Bidders, their representatives, and any third party associated with them
under any relationship and in any capacity in the context of this tender are
under the obligation to maintain absolute confidentiality with regard to the
information brought to their knowledge within the framework of this tender, by
signing a statement of confidentiality prior to their access to the data site
where the information provided by the Consortium is uploaded.
b) Throughout the period that the Independent Engineer Agreement will be in
force, and also after the termination thereof, the Independent Engineer shall
undertake the obligation to keep confidential and not to disclose to any third
party any documents or information of which they may take cognizance during
the execution of the services and the fulfillment of their obligations. The
above-mentioned restriction shall apply without any time limitations also after
the issuance of a Work Completion Certificate for Period T1. Moreover, they
shall also undertake the obligation not to disclose part of or the whole of their
scope to be executed, without the prior written consent of the Consortium or
the Company of the Project throughout the effect period of the confidentiality
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terms. The Independent Engineer is also subject to an obligation of fidelity
towards the counter-parties of the Concession Agreement and due diligence
in the performance of their duties and must perform their obligations duly and
timely, as such obligations are defined in the Tender Documents and the
Independent Engineer Agreement.
19. EXPENSES OF BIDDERS 19.1 All costs relating to the preparation and submission of the IE Bids shall
be borne by IE Bidders.
19.2 Participation of IE Bidders in the IE Tender does not entitle them to
raise any claim or compensation against the Consortium, the State and the IE
Tender Committee, even if the IE Tender Committee rejects the IE Bidder.
20. OTHER TERMS 20.1 The solemn statements of article 8 of Law 159/1986, which are
required from the IE Bidders according to the provisions herein, are not
required to be certified with a signature authentication. In the case of a foreign
IE Bidder and wherever in this invitation the submission of a solemn
statement is required in accordance with article 8 of Law 1599/1986, an
affidavit before a judicial or administrative authority or a notary public may be
submitted instead, in accordance with the laws of the country of the IE
Bidder’s establishment.
20.2 The participation of a sole IE Bidder is not an impediment to the
adjudication of the result of the IE Tender, provided that such bid will be
considered by the IE Tender Committee, to be meeting the selection criteria of
this IE Invitation.
20.3 Any changes during the IE Tender procedure regarding the IE Bidders’
identity (including any changes to the IE Bidder’s Control are not allowed and
the IE Bidder will be excluded. IE Bidders are required to notify any such
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change to the Consortium promptly and in writing. For the purposes of this
article, the change of an IE Bidder’s trade name shall not constitute a change
of their identity. IE Bidders are in any case required to notify to the
Consortium any change of their trade name.
20.4 IE Bidders are not required to declare within their bid, any
subcontractors to whom they intend to assign part of their scope if they are
nominated as IE Contractor. It is pointed out that the Independent Engineer is
not entitled to assign any part of their scope to a subcontractor without the
Company's written consent. Moreover, if any part of the Independent
Engineer’s object is assigned to a subcontractor, the Independent Engineer
shall not be released from any of their commitments, obligations, and
responsibilities arising from the IE Agreement, due to the fact that part of their
obligations is performed by a subcontractor. The case of assigning an object
to subcontractors shall be described in detail in the IE Agreement.
20.5 Any disputes that may arise from the IE Tender shall be settled
exclusively by the competent courts of Athens in accordance with Greek law.
20.6 The following annexes are attached hereto:
• Annex I:
o I(a) Table of minimum requirements of technical personnel
o Template of Solemn Statement, according to Law 1599/1986
regarding the organization and structure of the IE Bid
personnel.
• Annex II: Template table of projects demonstrating the IE Bidder’s
experience
• Annex III: Template of Solemn Statement, according to Law
1599/1986, for the non-concurrence of the grounds for exclusion
referred to in articles 5.5.2 to 5.5.9
• Annex IV: Draft IE Bidder’s Participation Letter of Guarantee
• Annex V: Draft IE Agreement
• Annex VI: Template of IE Financial Bid
• Annex VII: a) Draft Confidentiality Statement and b) Confidentiality
Agreement
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• Annex VIII: Awarding Documents
20.7 It is pointed out that the Draft Concession Agreement (together with its
attachments) is subject to a finalization procedure based on the Tender
Documents and may be modified prior to its execution by the Company,
without any change thereto justifying any modification or withdrawal of the IE
Bid of the IE Contractor or part thereof, or the claim of any compensation by
the IE Contractor against the Consortium or the Company.
20.8 The Consortium may, at its sole discretion, invite the IE Bidders to
participate in a site visit at the Project area at any time before the date of
submission of IE Bids. In such case, the participation costs of each of the IE
Bidders in this visit will be borne exclusively by the same.
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ANNEXES
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ANNEX I
ANNEX Ι (a)
MINIMUM REQUIREMENTS OF IE’s TECHNICAL PERSONNEL No Work position Qualifications Period
(months)*
Α Basic team (Presence in Athens and/or Crete according to the Project’s needs)
1 Project Director Civil or Surveyor Engineer, holder of Bachelor’s and Master’s degree, with over 25 years of experience in construction management or construction supervision of major infrastructure projects, at least one of which shall be an international airport.
60
2 Deputy Project Director Electrical or Mechanical Engineer, holder of Bachelor’s and Master’s degree, with over 20 years of experience in construction management or design supervision or construction supervision of major transport and building infrastructure projects.
60
3 Planning & Controls Manager Engineer, holder of Bachelor’s and Master’s degree, with over 10 years of experience in cost control and planning of major infrastructure projects.
60
4 Quality Assurance Manager Engineer, holder of Bachelor’s and Master’s degree, with over 15 years of experience in Quality Assurance issues
60
5 Aeronautical systems and NavAids special expert
Electronic or Electrical Engineer, holder of Bachelor’s and Master’s degree, with over 20 years of proven experience in aeronautical systems and air navigation aids
24
6 Operational readiness and commissioning special expert (ORAT)
Electronic or Electrical or Mechanical Engineer, holder of Bachelor’s and Master’s degree, with over 20 years of experience in operational readiness of airports and commissioning (ORAT)
24
7 Special expert on operational airport characteristics
Engineer, holder of Bachelor’s and Master’s degree, with over 20 years of experience in design and/or control of operational airport characteristics.
55
Β Design review team (Constant presence in Athens and occasionally in Crete)
1 Design Manager Civil or Surveyor Engineer, holder of Bachelor’s and Master’s degree, with over 25 years of experience in design supervision of major infrastructure projects, at least one
18
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of which shall be an international airport.
2 Design Manager Assistant 1 Civil Engineer, holder of Bachelor’s and Master’s degree, with over 10 years of experience in design supervision of major infrastructure projects, at least one of which shall be an international airport.
18
3 Design Manager Assistant 2 Mechanical or Electrical Engineer, holder of Bachelor’s and Master’s degree, with over 10 years of experience in design supervision of building, operational and industrial facilities, in at least one international airport.
18
4 Structural Engineer 1 Civil Engineer, holder of Bachelor’s and Master’s degree, with over 20 years of experience in development and/or review of structural designs of airport building facilities.
10
5 Structural Engineer 2 Civil Engineer, holder of Bachelor’s and Master’s degree, with over 20 years of experience in development and/or review of structural designs of structures.
8
6 Architect Architect, holder of Bachelor’s and Master’s degree, with over 20 years of experience in development and/or review of architectural designs of airport building facilities.
10
7 Specialist on road works safety audit Civil or Surveyor Engineer, holder of Bachelor’s and Master’s degree, with over 20 years of experience in transportation projects and proven experience of safety auditor duties during the last 5 years.
2
8 Traffic engineer 1 Civil or Surveyor Engineer, holder of Bachelor’s and Master’s degree, with over 20 years of experience in development and/or review of traffic designs of airport traffic areas (runways, taxiways, aircraft parking areas, airside road network etc).
8
9 Traffic engineer 2 Civil or Surveyor Engineer, holder of Bachelor’s and Master’s degree, with over 20 years of experience in development and/or review of motorways traffic designs.
6
10 Hydraulic Engineer Civil or Surveyor Engineer, holder of Bachelor’s and Master’s degree, with over 20 years of experience in development and/or review of sewerage-drainage designs of motorway projects, hydraulic networks and waste water treatment facilities.
10
11 Wastewater treatment plant Engineer Civil or Chemical Engineer, holder of Bachelor’s and Master’s degree, with over 20 years of experience in development and/or review of wastewater treatment plant designs.
2
12 E/M Engineer Mechanical or Electrical Engineer, holder of Bachelor’s and Master’s degree, with over 20 years of experience in development and/or review of E/M designs of major building
20
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facilities.
13 Geotechnical Engineer Civil Engineer, holder of Bachelor’s and Master’s degree, with over 20 years of experience in development and/or review of geotechnical designs of major structures.
6
14 Pavement Engineer Civil or Surveyor Engineer, holder of Bachelor’s and Master’s degree, with over 15 years of experience in development and/or review of flexible and rigid pavement designs.
2
C Construction supervision team (Constant presence in Crete and occasionally in Athens)
1 Engineer 1 Civil Engineer, holder of Bachelor’s and Master’s degree, with over 15 years of experience in construction supervision of building facilities.
44
2 Engineer 2 Civil Engineer, holder of Bachelor’s and Master’s degree, with over 15 years of experience in construction supervision of building facilities.
36
3 Engineer 3 Civil Engineer-geotechnical field, holder of Bachelor’s and Master’s degree, with over 15 years of experience in construction supervision of infrastructure works, including at least one project of airport pavements.
32
4 Engineer 4 Civil or Surveyor Engineer, holder of Bachelor’s and Master’s degree, with over 15 years of experience in construction supervision of infrastructure works.
44
5 Engineer 5 Civil or Surveyor Engineer, holder of Bachelor’s and Master’s degree, with over 15 years of experience in construction supervision of infrastructure works.
36
6 Engineer 6 Architect, holder of Bachelor’s and Master’s degree, with over 15 years of experience in construction supervision of building facilities.
44
7 Engineer 7 Architect, holder of Bachelor’s and Master’s degree, with over 15 years of experience in construction supervision of building facilities.
36
8 Engineer 8 Mechanical or Electrical Engineer, holder of Bachelor’s and Master’s degree, with over 15 years of experience in construction supervision of operational and industrial facilities.
36
9 Engineer 9 Mechanical or Electrical Engineer, holder of Bachelor’s and Master’s degree, with over 15 years of experience in construction supervision of building facilities.
34
10 Information technology (IT), controls and automation engineer
Electrical Engineer, holder of Bachelor’s and Master’s degree, with over 10 years of experience in DCS, SCADA, IT systems.
6
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11 Engineer for environmental demands of the Project
Environmental Engineer or Engineer of Environment, holder of Bachelor’s and Master’s degree, with over 10 years of experience in building, industrial and high-nuisance facilities.
24
MINIMUM MONTHS OF OCCUPATION 853
* It is clarified that the period (months) of employment of each individual is cumulative and refers to the whole of the Design-Construction Period.
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ANNEX I(b)
TEMPLATE OF SOLEMN STATEMENT REGARDING ORGANIZATION AND STRUCTURE OF PERSONNEL
SOLEMN STATEMENT
(article 8 of Law 1599/1986)
The accuracy of the data submitted with this declaration may be verified based on
the archives of any other services (article 8, paragraph 4, of Law 1599/1986)
TO THE PROVISIONAL CONTRACTOR OF THE PROJECT “Design - Construction
- Financing - Operation - Maintenance and Exploitation of the New International
Airport of Heraklion Crete & Design - Construction and Financing of the Road
Connections”
I, the undersigned this solemn statement ……………………………….
………………….., residing in ……………………………………… holder of No.
…………….. Police Identity Card / passport, issued on …………… by ……………….,
acting herein as the representative of the [legal person or consortium or joint venture]
under the trade name …………………………………………….., taking my own
responsibility and being aware of the sanctions1 specified according to the provisions
of article 22, paragraph 6, of Law 1599/1986, declare that:
In case the [legal person or consortium or joint venture] I represent is nominated as
Independent Engineer, the latter will be bound:
1) for the organization and structure of their personnel in accordance with article 5.4
(vi) of IE Invitation
2) for full compliance with Project’s requirements, as derived from the Tender
Documents and the Draft IE Agreement.
3) for their compliance with the table of Annex I (a) of IE Invitation.
1 “Whoever knowingly makes a false statement or denies or hides the truth in a written statutory declaration of
article 8 is punished with imprisonment for at least three months. If the person committing these acts intended to reap benefit for themselves or for another person by injuring a third party or intended to injure another person, they are punished with imprisonment for up to ten years.”
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(place) ___________ (date) ___________201_
_________________________________________
(signature)
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ANNEX II
ANNEX II
SUBFOLDER A - PARTICIPATION DOCUMENTS
TABLE OF PROJECTS TO DEMONSTRATE THE IE BIDDER'S EXPERIENCE No. TRADE NAME OF
TENDERER / MEMBER OF TENDERER
AIRPORT / PROJECT
COUNTRY OF THE AIRPORT’S
ESTABLISHMENT
DESCRIPTION OF IE SCOPE
PERIOD OF PROVISION OF THE SERVICE
[time of commencement (mm/yy) & end
(mm/yy)
PARTICIPATION PERCENTAGE IN
THE INDEPENDENT
ENGINEER
CLIENT/EMPLOYER [contact details and/or
refference to an internet link]
FORECASTED AVERAGE ANNUAL TRAFFIC OF THE
AIRPORT
1
2
3
4
5
6
7
8
…
(date) ___________201_
(signature)
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ANNEX III TEMPLATE OF SOLEMN STATEMENT
SOLEMN STATEMENT
(article 8 of Law 1599/1986)
The accuracy of the data submitted with this declaration may be verified based on
the archives of any other services (article 8, paragraph 4, of Law 1599/1986)
TO THE PROVISIONAL CONTRACTOR OF THE PROJECT “Design - Construction
- Financing - Operation - Maintenance and Exploitation of the New International
Airport of Heraklion Crete & Design - Construction and Financing of the Road
Connections”
I, the undersigned this solemn statement ……………………………….
………………….., residing in ……………………………………… holder of No.
…………….. Police Identity Card / passport, issued on …………… by ……………….,
acting herein as the representative of the [legal person or consortium or joint venture]
under the trade name …………………………………………….., taking my own
responsibility and being aware of the sanctions2 specified according to the provisions
of article 22, paragraph 6, of Law 1599/1986, declare that:
1. The [legal person or each of the members of the consortium or joint venture]
that I represent is not in a state of bankruptcy, liquidation, receivership,
termination of business or composition3. The [legal person or each of the
members of the consortium or joint venture] that I represent is not in a state of
bankruptcy, liquidation, receivership, termination of business or composition, or
in any analogous situation arising from a similar procedure provided for by the
national laws of ......................... .....................................4
2 “Whoever knowingly makes a false statement or denies or hides the truth in a written statutory declaration of
article 8 is punished with imprisonment for at least three months. If the person committing these acts intended to reap benefit for themselves or for another person by injuring a third party or intended to injure another person, they are punished with imprisonment for up to ten years.”
3 The following sentence is deleted in case the legal person or consortium or joint venture are established in Greece.
4 The first sentence of this paragraph shall be deleted where the legal person or consortium or joint venture are established abroad and the country of their establishment shall be entered.
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2. The [legal person or each of the members of the consortium or joint venture]
that I represent is not the subject to proceedings for bankruptcy, liquidation,
termination of business or composition5. The [legal person or each of the
members of the consortium or joint venture] that I represent is not the subject
to proceedings for bankruptcy, liquidation, termination of business or
composition, or any analogous situation arising from a similar procedure
provided for by the national laws of ......................... .....................................6
3. [The (legal person or each of the members of the consortium or joint venture)
that I represent and]7 the legal representatives and the administrators of the
[legal person or each of the members of the consortium or joint venture] that I
represent, as these are specified according to article 5.5.4 of the IE Invitation,
i.e. the persons named below:
(a) ……………..
(b) ……………..
…………………,
have not been convicted by a final sentence of a Greek or a foreign court, for:
• Participation in a criminal organisation, as defined in article 2, paragraph
1, of Framework Decision 2008/841/ΔΕΥ of the Council of 24th October
2008, for the cure of organized crime (EE L 300 of 11.11.2008, p. 42).
• Bribery, as such is respectively defined in article 3 of the convention
regarding the fight against corruption where officials of the European
Communities or of the states-members of the union are involved (EE C
195 of 25.6.1997, p. 1) and in article 2, paragraph 1 of Framework
Decision 2003/568/ΔΕΥ of the Council of 22nd July 2003 for the cure of
bribery in private sector (EE L 192 of 31.7.2003, p. 54) as well as
according to the applicable law [or the national legislation of the IE
Bidder’s country of establishment]8.
• Fraud within the meaning of article 1 of the Convention relating to the
protection of the financial interests of the European Communities (EE C
5 The same as in footnote No. 3. 6 The same as in footnote No. 4. 7 The phrase in brackets is deleted if the IE Bidder or its member is established in a country whose legislation
does not provide for the criminal liability of legal persons. 8 The phrase in brackets is deleted if the IE Bidder or its members are established in Greece.
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316 of 27.11.1995, p. 48), which was ratified with Law 2803/2000
(A/48).
• Money laundering or financing of terrorism, as defined in article 1 of
Directive 2005/60/EK of European Parliament and Council of
26.10.2005 for the prevention of the exploitation of the credit system for
the purpose of money laundering and funding terrorist activities (EE L
309 of 25.11.2005, p. 15), as amended and in force, which was further
annexed to the Greek law by Law 3691/2008, as amended and in force.
• Terrorist crimes or crimes connected with terrorist activities, as defined,
respectively, in articles 1 and 3 of Framework Decision 2002/475/ΔΕΥ
of Council of 13 June 2002, for the fighting of terrorism (EE L 164 of
22.6.2002, p. 3) or instigation of or assisting or attempting the
perpetration of a crime, as defined in article 4 thereof.
• Child labor and other forms of trafficking in human beings, as defined in
article 2 of Directive 2011/36/EE of the European Parliament and of the
Council of 5 April 2011, for preventing and combating trafficking in
human beings and protecting its victims, and for replacement of
Framework Decision 2002/629/ΔΕΥ (EE L 101 of 15.4.2011, p. 1),
which was further annexed into the national legislation by Law
4198/2013 (A/215).
4. The [legal person or each of the members of the consortium or joint venture]
that I represent has not committed any major professional misconduct.
5. The [legal person or each of the members of the consortium or joint venture]
that I represent has fulfilled obligations relating to the payment of social
security contributions (primary and supplementary) in accordance with the
applicable Greek legislation [and that it has paid to its contractors’ organisation
the contributions due until the time of the IE Tender]9 10. The [legal person or
each of the members of the consortium or joint venture] that I represent has
fulfilled obligations relating to the payment of social security contributions
according to the legislation of ..........................11,12.
9 The phrase in brackets is deleted if the IE Bidder or its members are not a legal person registered in the
Register of Contractors' Enterprises (Μ.Ε.ΕΠ.). 10 The following sentence is deleted if the legal person or consortium or joint venture are established in Greece. 11 The first sentence of this paragraph shall be deleted where the legal person or consortium or joint venture are
established only abroad and have no business activity in Greece, and the country of their establishment shall be entered.
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6. The [legal person or each of the members of the consortium or joint venture]
that I represent has fulfilled obligations relating to the payment of taxes and
dues, in accordance with the applicable Greek legislation13. The [legal person
or each of the members of the consortium or joint venture] that I represent has
fulfilled obligations relating to the payment of taxes, in accordance with the
laws of ...............................14,
7. The [legal person or each of the members of the consortium or joint venture]
that I represent is not subject to any legal restrictions as to its participation in
the IE Tender on the date of submission of the IE Bids.
8. All my declarations set forth above are true. I am aware and accept that the
truth of these statements may be verified at any stage of the IE Tender and that
in case any of these declarations should prove to be untrue, apart from other
legal consequences, the provisions of article 15.4 of the IE Invitation shall apply
to the IE Bidder.
(place) ___________ (date) ___________201_
_________________________________________
(signature)
12 If the legal person or consortium or joint venture are established abroad and also have business activity in
Greece, no sentence of this paragraph shall be deleted, the country of their establishment shall be entered in the second paragraph, and the relevant declaration shall refer to both their country of establishment and Greece.
13 The same as in footnote No.10. 14 The same as in footnotes No. 11 and 12.
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ANNEX IV
DRAFT LETTER OF GUARANTEE FOR THE PARTICIPATION IN THE IE TENDER
(place - date)
From: (Bank or Credit Institution according to the provisions of article 11 of the IE
Invitation)
(the “Bank”)
To: The “Consortium TERNA SA – GMR Airports Limited”, distinctive title
“ARIADNE AIRPORT GROUP” (the “Beneficiary”)
LETTER OF GUARANTEE NO. _________ FOR EURO …………………
Gentlemen,
1. We have the honor to inform you that we hereby irrevocably and
unreservedly guarantee to you, waiving our right to object invoking the
benefit of division and discussion, in favor of [_________ (name), having
its seat in the Municipality of ____, no. ___, _____ Street/
consortium_________(name) and its members, i.e. (a) _________ (name),
having its seat in the Municipality of ____, no. ___, _____ Street,
(b)………….., (c)…………..]15 (the “IE Bidder”), up to the amount of Euro
………………., to which our guarantee is restricted for the participation of
the above-mentioned IE Bidder in the tender announced by the Beneficiary
(the "IE Tender"), which shall be conducted on ____________ and on any
other date, in case of deferral, under the invitation to tender for the award
of the project: Provision of Independent Engineer Services for the Project: “DESIGN - CONSTRUCTION - FINANCING - OPERATION - MAINTENANCE AND EXPLOITATION OF THE NEW INTERNATIONAL
15 Fill in as appropriate.
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AIRPORT OF HERAKLION CRETE & DESIGN - CONSTRUCTION AND FINANCING OF THE ROAD CONNECTIONS” (the “IE Invitation”)
2. This letter of guarantee only refers to obligations connected to the
participation in the above mentioned IE Tender, undertaken by the IE
Bidder and their members, according to the IE Invitation.
3. This letter of guarantee shall be in force for an indefinite period from the IE
Bid submission date and, in any case, until receiving your written
notification that we can be considered waived from any obligation
connected to it or until it is returned to us, and in any case, within the time
restrictions set forth in the IE Invitation.
4. The amount indicated above shall remain at your disposal and shall be
paid to you in whole or in part, without any pretext and any plea or
objection with the issuance hereof, in accordance with the terms of the IE
Invitation, waiving our right to object invoking the benefit of division and
discussion.
5. This letter of guarantee is governed by the Greek law and any discrepancy
arising out of or relating to this letter of guarantee shall be subject to the
exclusive jurisdiction of the courts of Athens.
[We hereby declare that all letters of guarantee, including this one, supplied by our
Bank to the State and to legal entities of public jurisdiction and which are still in
effect, without full coverage by bank counter-indemnity or by collateral security, does
not exceed the limits set by the competent authority for our bank]16.
Date 201_
_________________________________________
On behalf of
[Bank]
16 Include, if applicable.
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ANNEX V
DRAFT IE AGREEMENT
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MINISTRY OF INFRASTRUCTURE AND TRANSPORT PROVISIONAL CONTRACTOR: ARIADNE AIRPORT GROUP
GENERAL SECRETARIAT OF INFRASTRUCTURE
GENERAL SECRETARIAT
OF TRANSPORT INFRASTRUCTURE
“ΕΥΔΕ/ΚΕΣΠ/Π&ΒΕ”
CONCESSION AGREEMENT FOR DESIGN - CONSTRUCTION - FINANCING - OPERATION - MAINTENANCE AND EXPLOITATION OF THE NEW INTERNATIONAL AIRPORT OF HERAKLION CRETE & DESIGN - CONSTRUCTION AND FINANCING OF THE ROAD CONNECTIONS
OPEN INTERNATIONAL TENDER FOR THE SELECTION OF INDEPENDENT ENGINEER
DRAFT INDEPENDENT ENGINEER AGREEMENT
ATHENS OCTOBER 2017
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DRAFT INDEPENDENT ENGINEER AGREEMENT
THIS AGREEMENT is made in ............., the ................. 201....
BETWEEN:
(1) The Societe Anonyme with the name “HERAKLION CRETE INTERNATIONAL
AIRPORT SOCIETE ANONYME” and trade name “HERAKLION CRETE
INTERNATIONAL AIRPORT S.A.””, legally constituted according to Greek law, which
has its registered office in the Municipality of Heraklion, herein represented by Mr.
………………….., (hereinafter referred to as the “Company”);and
(2) the company or consortium or joint venture with the trade name
“...........................................”,legally constituted, with registered office at
......................................., represented by ................................, (hereinafter referred to as
“Independent Engineer” or “IE”)
together the "Parties".
WHEREAS:
A) The Greek State (hereinafter referred to as "State") awarded the Company the project
"Design - Construction - Financing - Operation - Maintenance and Exploitation of the
New International Airport of Heraklion Crete & Design - Construction and Financing of
Road Connections" (hereinafter referred to as "Project") in accordance with the specific
terms set out in the Concession Agreement.
B) The company “.................................”, (hereinafter referred to as "Constructor") has
undertaken the design and construction of the Project pursuant to the Design-
Construction Agreement with the Company, dated [date], (hereinafter referred to as
"DCA"), in accordance with the specific conditions set out therein.
C) Pursuant to Article 28.5 of the Tender Notice of the Project (the "Tender Notice"), an
open tender for the selection of Independent Engineer was conducted. In specific, this
tender commenced with the Invitation (hereinafter referred to as “IE Invitation”) including
its appendices, dated [date], as it was approved with the [number of protocol] decision of
the Awarding Authority according to the provisions of article 28.5.7 of the Tender Notice.
D) Today, and pursuant to the completion of the process set out in article 28.5 of the
Tender Notice and the selection committee selected the Lowest IE Bidder, as described
in article 28.5.10 of the Tender Notice, the Agreement of the Independent Engineer is
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herein signed between the Parties and as set out in the IE Invitation, according to which
the IE, undertakes the duties of the Independent Engineer of the Project in accordance
with the provisions of the Concession Agreement, the Tender Notice, the IE Invitation,
and this IE Agreement.
Given the above: IT IS NOW HEREBY AGREED, COVENANTED AND SIMULTANEOUSLY RECOGNIZED AS FOLLOWS: 1. INTERPRETATION
1.1 In this IE Agreement,
"Tender Notice" is the tender notice of the Project, including its annexes, as finalized by
decision No ΕΠΠ-ΒΕ/Γ/ΑΚ/Φ1.1/9548/29-09-2016 of Minister of Infrastructure,
Transportation and Networks.
"Assignment" has the meaning given to it in clause 5 of this Agreement.
“Project” has the meaning given to it in preamble under clause (A).
“Constructor”, has the meaning given to it in preamble under clause (B).
“DCA”, has the meaning given to it in preamble under clause (B).
"Concession Agreement" means the concession agreement, dated [date] together with
its appendices, signed between the Company and the State for the Project.
“Independent Engineer Agreement” or “IE Agreement” is this agreement including
its appendices, which constitute an inextricable part hereof.
and
"Services" means the services of the Independent Engineer as given in article 4 of this
agreement.
1.2 In this IE Agreement, unless the context otherwise requires:
(a) words importing the singular shall include the plural and vice versa and words
importing a gender include every gender;
(b) references to a person which has ceased to exist or has been reconstituted,
amalgamated, reconstructed or merged, or the functions of which have become
exercisable by any person or body in its place, shall be taken to refer to the
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person or body established or constituted in its place or by which its functions
have become exercisable;
(c) any references to this IE Agreement (or any specific provision of it, or to its
appendices), or to any other document shall be construed as references to this IE
Agreement, the specific provision, its appendices or the respective document or
any substitute for that document in the approved form as in force for the time
being and as from time to time entered into or replaced, and including any
amendments and replacements thereof and all variations, alterations,
modifications and supplements thereto;
(d) any references to statutory provisions, in respect of any primary or secondary
legislation shall be construed as references to those provisions as replaced,
amended or re-enacted from time to time;
(e) where provision is made for the giving of notice, consent or approval by any
person such notice, consent or approval shall be in writing and the term "notify"
shall be construed accordingly and any reference to the term "approval" includes
a reference to certification of compliance with a requirement of this IE Agreement
or the Concession Agreement or the giving of any form of consent;
(f) clause headings and any table of contents are only inserted for convenience and
shall not affect the interpretation of this IE Agreement;
(g) any references to clauses and appendices are references to clauses or
appendices of this IE Agreement unless otherwise explicitly stated;
(h) any capitalized words and expressions defined in the Tender Notice and/or the
Concession Agreement and/or the IE Invitation shall have the same meaning
whenever used in this IE Agreement, unless otherwise explicitly stated herein;
and
(i) in the event of a conflict and only, between this IE Agreement and the
Concession Agreement the provisions in the Concession Agreement shall
prevail.
2. EFFECTIVE DATE OF THIS IE AGREEMENT AND DURATION
2.1 This IE Agreement shall come to effect on the Concession Commencement Date. In the
event that the Company considers - at its sole discretion and in accordance with the
terms of the Concession Agreement - that the Services to be provided by the
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Independent Engineer are required at a time earlier than the Concession
Commencement Date, the IE Agreement enters into force within [•] days from the receipt
by the Independent Engineer of a relevant written notice issued by the Company.
2.2 Subject to article 11 herein, this IE Agreement shall expire only when all the Services
which the Independent Engineer is obliged to provide in accordance with this IE
Agreement have been fully and soundly performed.
3. APPOINTMENT OF INDEPENDENT ENGINEER
The Company appoints hereby the Independent Engineer as the Independent Engineer
under the Concession Agreement and the Independent Engineer accepts such
appointment.
4. INDEPENDENT ENGINEER'S OBLIGATIONS
4.1 The Independent Engineer undertakes to perform all the responsibilities, functions and
duties set out in the Concession Agreement (as amended, expanded or extended from
time to time), and as arise by the DCA, the IE Invitation and this IE Agreement, and are
explicitly agreed to be the responsibility of the Independent Engineer (the "Services").
Independent Engineer Services will also include all the responsibilities of the supervisory
engineer, as defined in accordance with applicable Greek legislation.
4.2 During the performance of the Services the Independent Engineer shall comply with the
provisions of the Concession Agreement and the DCA (as both are amended, expanded
or extended from time to time) and take due account of the obligations (including the
milestones) of the Company as set out thereunder.
4.3 The Independent Engineer has a duty of care to and is liable towards the State as if the
State were a contributing party to this IE Agreement.
4.4 The Independent Engineer confirms that he is fully aware of the Concession Agreement
and the DCA content, insofar as they relate to the Services the Independent Engineer is
obliged to provide under this IE Agreement. In case of conflict and only between the
terms of this IE Agreement and the terms of the Concession Agreement and/or the terms
of the DCA, the provisions of the Concession Agreement prevail, unless and to the
degree that the IE Agreement contains additional duties and/or obligations of the
Independent Engineer -in which case the terms hereof prevail- to the extent that these
terms do not place the Company and the State in a less favourable position. In case of
dilatation of the scope of the Independent Engineering Services, such as in case of
undertaking Additional Services or Additional Works, or extensions, according to the
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terms of the Concession Agreement or as a consequence of any modification of the
Concession Agreement and/or the DCA, any additional remuneration of the IE is defined
in accordance with article 7 hereof.
4.5 Within one (1) month from the date this IE Agreement comes into effect, according to the
provisions of article 1 above, the Company and the Independent Engineer will come to a
written agreement as to any further details on the manner of submitting the Designs to
the Independent Engineer as such is defined in this IE Agreement, as well as the
deadlines on which the Independent Engineer must issue the Design Approval
Certificate, taking into consideration the relevant provisions of the Concession
Agreement.
4.6 During the performance of its obligations under this IE Agreement, the Independent
Engineer shall exercise the standards of due skill, care and diligence to be reasonably
expected by a suitable and competent consulting engineer who is experienced in the
provision of such services on projects of a similar size, scope and complexity to those of
the Project and the Services agreed in this IE Agreement (referred to herein as "Good Industry Practice").
4.7 The Independent Engineer undertakes to carry out the Services in accordance with a
quality assurance system that is consistent with BS EN ISO 9001 as long as this IE
Agreement remains in force.
4.8 The Independent Engineer shall act reasonably in performing all aspects of its functions
and obligations under this IE Agreement (including those required under the Concession
Agreement). Without limiting the general nature of its duty, the Independent Engineer
shall:
(a) in the case of denial of any approval, duly justify such decision;
(b) require only information and data which are reasonably necessary for the
determination of the issue under question;
(c) take into account only those factors which any person acting as an Independent
Engineer would, using Good Industry Practice, consider to be objectively and
reasonably necessary;
(d) perform its duties and obligations diligently, with the objective of not unduly
hindering or delaying the Company and/or the State in their compliance with
deadlines defined in the Concession Agreement;
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(e) act independently, fairly and impartially in dealings between the Company and
the State; and
(f) liaise with any technical consultant designated by the Company and/or the State
in the context of the execution of the Concession Agreement and will comply with
the reasonable requests of such technical consultant in order to provide them
information.
4.9 The Independent Engineer shall comply with the reasonable instructions of the Company
and\or the State. For clarity, any instruction by the Company and/or the State which is
inconsistent with the explicit terms of this IE Agreement and/or the Concession
Agreement, is not considered reasonable.
4.10 The Company may request a written opinion from the Independent Engineer on the
Constructor's methodology of work, techniques (including, without limitation, any
temporary works), sequence of construction or management of the construction of the
Project (for which the Constructor remains wholly responsible). Additionally, the
Company and/or the State may request at any time the IE to provide certification of
completion percentage of the Project’s physical object as well as the corresponding
value of these Constructions.
4.11 All certificates issued by the Independent Engineer shall comply with the requirements of
the Concession Agreement.
4.12 The Independent Engineer is obliged to certify that any Constructions have been
properly executed and to the extent they comply with the requirements provided by the
Concession Agreement, the Tender Notice, the Special Conditions of Contract, the
required specifications of the Project and the applicable Greek legislation regarding the
Project and the Services.
4.13 Upon request of the Company or the State, the Independent Engineer shall, pursuant to
article 29.3.1(g) of the Concession Agreement, certify the Constructions properly
executed by the Constructor and the value of such Constructions, up to the Termination
Date.
4.14 The Independent Engineer shall not express any opinion on nor shall interfere with or
provide advice in relation to any matters relating to the Project which are beyond its role
and responsibilities as set out in this IE Agreement and the Concession Agreement.
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5. ASSIGNMENT / SUBCONTRACTING
5.1 The Independent Engineer shall perform the Services using the personnel appointed in
accordance with article 6. The Independent Engineer shall not assign (in whole or in
part) any of its rights or benefits under this IE Agreement nor sub-contract any of the
Services which the IE is obliged to carry out without the written consent of the Company
and the State.
5.2 In the case the Independent Engineer wishes to subcontract part of its contractual
obligations, it shall notify the Company and the State all necessary information about the
proposed subcontractor, such as his experience, staff to be employed for the Project,
representation, personal status, financial information, as well as the specific duties to be
assigned thereto. The Company shall decide on the request within [•] days of complete
submission of the above information and the provision of any relevant clarification or
additional information concerning the person of the proposed subcontractor as
requested by the same within the above period of time. Should the Company fail to reply
within the above period, this shall be deemed as no consent.
5.3 The Independent Engineer shall remain liable and shall not be relieved of any of its
commitments, obligations and responsibilities under this IE Agreement on account of
having subcontracted part of its obligations. The Independent Engineer shall also ensure
that in regards with the subcontract agreement, all the Company and/or the State rights
under this IE Agreement shall also apply towards the subcontractor and shall constitute
the latter’s obligations as well, and that the subcontract shall not generate any rights for
the parties thereto against the Company and/or the State.
5.4 In the event of early expiry of this IE Agreement at any time and on any grounds:
(i) The Company shall, at its sole discretion, have the right to continue executing the
subcontract agreement as regards the unexecuted by the subcontractor part thereof, by
entering into the position of the IE, subject to the same conditions or, upon agreement
with the subcontractor, with more favourable conditions. If the Company chooses not to
continue the implementation of the subcontract agreement, it shall not be liable to the
subcontractor neither shall it undertake any financial or other obligation thereto.
(ii) The Company shall not be liable or undertake any financial or other obligation as may
result from the already completed — by the subcontractor — part of the subcontract
agreement, for which all liabilities shall be solely borne by the IE.
(iii) Upon request of the Company, the IE and the subcontractor shall provide the
Company with any information relating to the progress of the subcontract agreement.
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5.5 The Company shall not be entitled to intervene between the IE-subcontractor relations,
unless the subcontractor has breached materially certain conditions of this IE Agreement
and/or the Concession Agreement and provided that the Company has formerly
requested the IE in writing to remedy the breach of the contractual conditions within a
reasonable deadline and the subcontractor has not remediated the respective material
breach within the requested time period. As part of its intervention, the Company may
even request the immediate replacement of the subcontractor or their personnel.
Irrespectively of whether the Company has intervened or not, the IE’s responsibilities
and obligations under this IE Agreement shall not be invalidated or compromised.
5.6 Notwithstanding any other provision of this IE Agreement, the Company and the
Independent Engineer agree that this IE Agreement shall continue under the same terms
and conditions if:
(a) the State substitutes the Company pursuant to article 17.8.3 of the Concession
Agreement, or
(b) the State intervenes in the Project pursuant to article 20 of the Concession
Agreement.
5.7 In case of substitution by the State in accordance with article 5.6 (a), the Independent
Engineer will not be entitled to any claim against the Company regarding any obligation,
liability and duty according to this IE Agreement, that arise after the Company has been
substituted. The Independent Engineer will not, nor is entitled to, make any claim or
otherwise seek any compensation from the Company resulting from or related to any
violation, act or omission of the State after the date of substitution, the responsibility for
which has been undertaken by the State.
5.8 The Parties undertake, in the event of substitution, to conclude all the necessary
documents in order for the substitution to take effect.
6. PERSONNEL
6.1 Throughout this IE Agreement, the Independent Engineer shall provide sufficient
personnel for the appropriate provision of the Services which will have a suitable level of
qualification with experience in the provision of such services on projects of a similar
size, scope and complexity to those of the Project and the Services agreed herein and in
accordance with the requirements set out in the Concession Agreement, in the IE
Invitation and in this IE Agreement. In any case the Independent Engineer shall provide
the personnel for the provision of the Services designated in the table of Annex III of this
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IE Agreement. In the event an increase or differentiation in relation to the
aforementioned table of the Independent Engineer's staff is required for the proper and
timely provision of the Services in accordance with the needs of the Project, the
Independent Engineer is obliged to increase its staff accordingly without being entitled to
additional remuneration or compensation, provided of course that the need to provide
additional staff is not due to any act, omission or delay of the Company. Additionally,
staff reduction and/or replacement in relation to the table of Annex III may apply only
with the written consent of the Company.
6.2 The Company is entitled to request the removal of any person who takes part in the
provision of any of the Services provided that this person, in the opinion of the Company,
is not performing its duties satisfactorily, violates its duties or displays inappropriate
conduct regarding the provision of the Services and the fulfilment of the obligations and
duties of the Independent Engineer under this IE Agreement and/or the Concession
Agreement or, finally, its presence in the Project arises a matter of national security
(provided that the latter is requested in writing by the State). In these cases the
Company shall provide written notice to the Independent Engineer for the above, setting
a deadline of no less that five (5) working days for the restoration of the violation. The
Independent Engineer is obliged to comply with any such requests by the Company,
otherwise, in case of non-compliance, and, at the sole discretion of the Company, the
provisions of article 11.3 and thereafter hereof regarding termination shall apply. In case
a matter of national security arises after the relevant notice by the State, the Company
provides immediately a written notice to the Independent Engineer, through reporting of
the non confidential reasons upon which the same was notified by the State, setting a
deadline for the removal of the person/s whose presence causes a matter of national
security, of one (1) working day, thereafter the Independent Engineer acts according to
the notice of the Company, otherwise, and provided it has been requested by the State,
the provisions of article 11.3 and thereafter of this IE Agreement regarding termination
shall apply.
6.3 The Independent Engineer shall be responsible for obtaining and maintaining, at its own
cost, all residence permits and work permits for its personnel required by any applicable
law.
6.4 The Independent Engineer shall bear sole responsibility for the payment of all salaries,
benefits, allowances, and social security contributions in relation to its personnel
required by any applicable law or any legal order should apply in IE’s case.
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6.5 The Independent Engineer is responsible for the negligent actions or omissions of the
persons it employs for the performance of the Services, regardless if their recruitment is
based on an employment contract, a contract for the provision of services or any other
kind of relationship.
7. REMUNERATION OF INDEPENDENT ENGINEER
7.1 In consideration of the performance of the Services and for the general performance of
the duties assumed in this IE Agreement, the Independent Engineer is entitled to a lump
sum of a total amount [written in full and in numbers], as this arises from IE Financial
Offer according to the provisions of the IE Invitation and is attached herein as Annex I.
Any preliminary works fee is included within the price of this clause. The aforementioned
fee of the IE is fixed and not subjected to escalation under any circumstance, even in the
event there is an extension of the time of the Design-Construction Period.
7.2 The Independent Engineer fee (lump sum), as this applies in the IE’s Financial Offer
(Annex I) for the performance of its duties, as they result from the IE Invitation, this IE
Agreement and the Concession Agreement, includes all the fees and other expenses of
the Independent Engineer required for performing the Services always in accordance
with the provisions of the Tender Documents, IE Invitation and this agreement for the
entire Design-Construction Period, including indicatively and not limited to:
(i) The fee for the execution of the Services in accordance with article 4 of this IE
Agreement, the DCA and the Concession Agreement.
(ii) The remuneration of all the personnel employed in the Project irrespective of
their location, including social insurance contributions, in accordance with
applicable law, and any food, accommodation, travel etc.
(iii) Project-related costs, regardless of location, i.e. indicatively: mobilization,
installation costs, office expenses, cost of consumables.
(iv) Expenditure of file keeping, process approval of studies and work certifications,
costs associated with quality control obligations (eg taking and keeping samples
of materials and specimens, etc.).
(v) Correspondence costs.
(vi) Expenses for the issuance of residence & work permits for the personnel,
according to the applicable legislation.
(vii) Any expenses for the constitution of a joint venture or consortium.
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(viii) Insurance costs in accordance with the terms of article 10 of this IE Agreement
and the applicable legislation.
(ix) The total taxes that shall be charged to the IE under this IE Agreement.
In addition to such remuneration and subject to articles 7.6 and 7.7, the Independent
Engineer is not entitled to and clearly waives the right to claim or receive any additional
amount.
7.3 The payment of IE fee will apply according to the provisions of Annex II of this
agreement (Payment Schedule of Independent Engineer’s Fee). The Company shall pay
to the Independent Engineer each amount set out in the Independent Engineer's
invoices issued according to the terms of this IE Agreement subject to the correction of
any error or any disputed amounts which shall be dealt and resolved in accordance with
article 7.4 below, within thirty (30) days from the date of receipt by the Company of such
statement of account or invoices accompanied by any supporting documents. Payments
shall be made to bank accounts of Greek bank institution, indicated by the Independent
Engineer.
7.4 In case the Company disputes any part of invoice of the Independent Engineer, the
Company shall proceed with payment of the remaining part of the account or invoice
which is not disputed and the Parties shall endeavour in good faith to reach agreement
on the part which is disputed. If the Parties fail to reach agreement the dispute shall be
resolved in accordance with article 14 of this IE Agreement. In such case, the
Independent Engineer shall continue to provide its Services.
7.5 All fees to the Independent Engineer (both the lump sum and any remuneration for
additional services according to article 7 of this IE Agreement) are exclusive of Value
Added Tax that shall be borne by the Company.
7.6 Payments to the Independent Engineer for any additional works whatsoever not included
in Services (“Additional Services”), obviously including the Additional Works, which
have been appointed in writing by the Company, shall be amounted to a percentage
equal to one and a half per cent (1.5%) of the corresponding value of the construction
scope related to the Additional Services, before the overhead and contractor’s profit
(Γ.Ε. and O.E.). In this case the Independent Engineer shall submit to the Company for
approval the organization chart of the staff proposed for the performance of the
Additional Services. The Independent Engineer shall be entitled to payment under this
clause only if the requirement for the Additional Services does not result from acts,
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omissions or errors of the Independent Engineer, for the rectification of which, the
Independent Engineer is responsible at its own cost.
7.7 In the event of an extension of the Overall Deadline of the Design and Construction
Period as defined in the Concession Agreement, provided that such extension does not
result from actions, omissions or errors by the Independent Engineer, the Independent
Engineer shall be entitled to a fee equal to one and a half per cent (1.5%) of the
corresponding value of the Constructions that will be performed during the extension
period.
7.8 The Independent Engineer shall submit to the Company for approval the organization
chart of the personnel proposed to be employed either in the case of Additional Services
or Additional Works or during the extension of the Overall Deadline of Design and
Construction Period. Such personnel shall satisfy the requirements of the first paragraph
of article 6.1.
7.9 The Independent Engineer waives any right for retention it is entitled to, according to the
Greek Law (article 325 of the Greek Civil Code).
8. LIABILITY OF INDEPENDENT ENGINEER
8.1 Subject to articles 8.2 – 8.5 below, and subject to (a) the Company taking reasonable
steps to mitigate its loss and (b) any contributory negligence on the part of the Company,
the Independent Engineer shall be liable to compensate the Company for any legally
enforceable loss or damage of the Company to the extent resulting from a breach
caused by the Independent Engineer of any of its obligations under this IE Agreement
and/or the Concession Agreement.
8.2 With the sole exception of liability according to article 8.3, the aggregate liability of the
Independent Engineer under or in connection with this IE Agreement howsoever arising
(including without limitation, whether arising contractually or by negligence or for breach
of statutory duty or by way of indemnity or otherwise) shall be limited to thirty million euro
(€30,000,000.00) excluding VAT. For the avoidance of doubt such limit includes the
Independent Engineer's liability under or in connection with all deeds pursuant to article
5.
8.3 The Independent Engineer’s liability is not excluded or restricted in the following cases:
(a) fraud or wilful misconduct or gross negligence; or
(b) death or personal injury resulting from the Independent Engineer’s negligence; or
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(c) incompliance with environmental legislation and Environmental Requirements; or
(d) infringement of Intellectual and Industrial Property Rights, as defined in the
Concession Agreement.
In the above cases the liability of the Independent Engineer shall be unlimited, and none
of such cases shall be taken into account in determining whether the limit of liability
under article 8.2 has been reached or exceeded.
8.4 The Independent Engineer is not responsible under this IE Agreement or otherwise for
advising on or for taking measures to prevent or mitigate the effect of any act of
terrorism or any action that may be taken in order to control, prevent, suppress or in any
way relating to an act of terrorism (herein called "terrorism matters") and any liability of
the Independent Engineer under or in connection with this IE Agreement whether
contractual or in tort, in negligence, for breach of statutory duty or otherwise for any
claim which may arise out of or in connection with terrorism matters is excluded.
8.5 The Independent Engineer is not responsible under this IE Agreement or otherwise for
advising on matters which wholly, partly, directly or indirectly arise out of or result from
the use of asbestos (including without limitation the costs of testing, monitoring,
abatement, mitigation, removal, remediation or disposal of any asbestos or product or
waste that contains asbestos) or pollution and contamination (including without limitation
by naturally occurring or man-made substances, forces or organisms or any combination
of them whether permanent or transitory) and however occurring (herein called
"asbestos and pollution and contamination matters") and any liability of the
Independent Engineer under or in connection with this IE Agreement whether
contractual or in tort, in negligence, for breach of statutory duty or otherwise for any
claim which may arise out of or in connection with asbestos and pollution and
contamination matters is excluded.
9. INDEMNITIES
9.1 Subject always to the obligation of the Company, as this arises by the Concession
Agreement to take reasonable steps to mitigate its loss, the Independent Engineer shall
indemnify and hold harmless the Company for and against any legally enforceable
losses suffered or payments made, in respect of injury and/or death of persons and/or
damage to property caused by any of the Independent Engineer's directors, employees,
or agents or any other persons for which the Independent Engineer is responsible,
except if and to the extent that fraud, negligence or breach of any legal obligation
(including performance of legal obligations in a prompt and timely manner) by the
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Company, the Constructor, any subcontractor of the Company and the directors,
employees, agents or representatives each of the above, has caused or contributed to
such loss.
9.2 Subject always to the obligation of the Independent Engineer to take reasonable steps to
mitigate its loss, the Company shall indemnify and hold harmless the Independent
Engineer for and against any losses suffered or payments made, in respect of injury
and/or death of persons and/or damage to property caused by any of the Company’s
directors, employees, or agents or any other persons for which the Company is
responsible except to the extent that fraud, negligence or breach of any legal obligation
(including performance of legal obligations in a prompt and timely manner) by the
Independent Engineer, any of the Independent Engineer's subcontractors and the
directors, employees, agents or representatives of each of them has caused or
contributed to the loss. Notwithstanding the foregoing, the aggregate liability of the
Company under or in connection with this IE Agreement howsoever arising (including
without limitation, whether arising contractually or in negligence or for breach of statutory
duty or by way of indemnity or otherwise) shall be limited to one million euro
(€1,000,000.00) for each and every claim and three million euro (€3,000,000.00) in
aggregate, excluding the indemnities in respect of injury and/or death of persons as
provided in this clause and which shall be unlimited.
10. INSURANCE
10.1 The Independent Engineer has entered into force and shall maintain throughout the
period during which the Independent Engineer is liable under this IE Agreement and in
any case for a period of five (5) completed years after the issuance of the PT1WCC,
professional indemnity insurance on the customary terms and conditions which apply for
an independent consulting engineer carrying on activities similar to those of Independent
Engineer for projects similar to the Project and for services similar to the Services. The
professional indemnity insurance shall have a limit of indemnity the fee of fifteen million
euro (€15,000,000.00) for each and every claim and the fee of thirty million euro
(€30,000,000.00) in aggregate, for loss which was a result of any negligent breach of
duty, act, error or omission (or single series of negligent acts, errors or omissions) by the
Independent Engineer.
10.2 The Independent Engineer shall comply with the requirements of the applicable
insurance legislation, indicatively for the personnel it employs during the execution of the
Services. The Independent Engineer shall insure all such personnel against personal
injury and death notwithstanding that such insurance may not be mandatory under
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Greek legislation. In addition, Independent Engineer is required to insure against any
risk the equipment used regarding the performance of IE duties under this agreement
(vehicles, machinery, tools, etc.), moreover its insurers shall wave their rights of
subrogation against the Company and its staff.
10.3 All insurance policies required to be issued by the Independent Engineer pursuant to
article 10 in this IE Agreement, shall be issued and maintained by a reputable insurer,
according to the provisions of the Concession Agreement.
10.4 Upon request by the Company, the Independent Engineer shall submit a certificate of
the insurance company or the insurance agent to the Company for inspection, stating
the details (specifying at least: limits, sublimits and deductibles) of any insurance policy
required to be maintained pursuant to clause 10 in this IE Agreement.
10.5 Regardless any other provision of this article 10, the Independent Engineer shall ensure
that the terms of all insurance policies issued pursuant to this IE Agreement fully comply
with Article 21 and Annex 7 of the Concession Agreement to the extent that the
aforementioned Article and Annex specifically apply to the Independent Engineer such
as, but not limited to, the civil liability of Independent Engineer and its staff for the use
and circulation of vehicles owned or controlled by IE (eg rental, leasing) on the basis of
the compulsory insurance provisions regarding vehicle liability as required by the Greek
Legislation.
10.6 The Independent Engineer shall provide any reasonable assistance to the Company so
that the Company is able to comply with its obligations according to the Concession
Agreement, as long as such assistance would not conflict with any other obligation of the
Independent Engineer under this IE Agreement and/or the Concession Agreement.
11. TERMINATION OF IE AGREEMENT AND SUSPENSION (OF PROVISION) OF SERVICES OF INDEPENDENT ENGINEER
11.1 The Company may serve a suspension order requiring from the Independent Engineer
to temporarily suspend the performance of any of the Services, provided that the
Company shall only be entitled to do so to the extent that the performance of any of its
relevant obligations are suspended under the Concession Agreement.
11.2 In the event of suspension of the total of the Services pursuant to article 11.1 above, the
Company shall pay to the Independent Engineer:
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(a) any instalments of its remuneration and any other due sums to the Independent
Engineer which had become past-due before the date of issuance of the
suspension order;
(b) such proportion of the next instalment of remuneration payable to the
Independent Engineer as corresponds to the Services it has provided up to the
date on which suspension order takes effect; and
(c) the Independent Engineer's reasonable removal and mobilization expenses,
provided that such expenses are not of IE’s responsibility, if and when the
Company requests that the Independent Engineer re-undertakes the
performance of the Services.
For the avoidance of doubt, the Company will not make any instalment of remuneration
payable to the Independent Engineer during the suspension period according to article
7.1 above and Annex II of this IE Agreement. Exceptionally, in case of partial suspension
of the Services provided by the Independent Engineer, - according to the provisions in
the relevant order of the Company – the Independent Engineer shall be entitled to
receive part of the remuneration, as this shall be agreed as applicable with the
Company, taking into account the Independent Engineer’s occupation during the
relevant period.
Beyond the above, the Independent Engineer will not be entitled to any other
remuneration or compensation resulting from the suspension of the Services.
11.2A Suspension of the Services is notified to the Independent Engineer by delivery of a
relevant written order issued by the Company in which the reason for suspension of the
services and the commencement date of the suspension period are stated, which shall
not be less than fifteen (15) days from receiving the relevant order. In such case, the
Independent Engineer is obliged to suspend in total or in part the provision of the
Services according to the Company orders and within the defined deadline, taking care
at the same time for the completion of works that were under execution on the date of
receiving the above order.
After the relevant written notice issued by the Company, the Independent Engineer is
obliged to restart the provision of the Services within a reasonable period of time and
according to the orders that will be defined in the notice.
11.3 Subject to any other rights at its disposal, the Company may issue a written notice to the
Independent Engineer stating that, in its opinion, the Independent Engineer is not
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adequately performing its obligations or that it is not providing the Services in
accordance with this IE Agreement. The Company shall specify in such written notice
the nature of the Independent Engineer's failure and may instruct the Independent
Engineer to take whatever actions are necessary in order to comply with its obligations
under this IE Agreement, within reasonable period of time, which shall not be less than
five (5) working days. Furthermore, as long as it receives relevant notice from the State
according to the provisions of article 17.7.4 of the Concession Agreement, the Company
is obliged to issue in written the deadline for compliance to the Independent Engineer,
which shall not be less than five (5) working days or one (1) working day in case of a
matter of national security. In case the Independent Engineer does not comply with the
terms of such written notice, the Company may, by giving a further written notice,
terminate this IE Agreement. The termination shall become effective on the
establishment of the new Independent Engineer in the Project (who is selected
according to article 28.5 of the Tender Notice), until which date the Independent
Engineer shall continue to exercise its duties, unless the Company defines, at its sole
discretion, that the termination has immediate effect. In the above cases of termination,
the Independent Engineer shall be only entitled to receive the sums referred to in articles
11.4(a) and 11.4(b) and no further compensation.
11.4 Obviously subject to clause 11.1, in the event of failure of the Company to pay the
Independent Engineer any instalment of its remuneration or any other sum due to the IE
that has become past-due, under article 7, and the value of such sum or sums either
singularly or in aggregate exceed(s) by three times the maximum instalment to be
received according to the payment schedule provided in Annex II, then provided that
such payments are not disputed by the Company in good faith and provided that such
failure continues for [•] days after such sum became past-due, the Independent
Engineer may serve a written notice on the Company (and copy such notice to the State)
("Non-payment Notice"). If following the service of a Non-payment Notice in
accordance with the foregoing the relevant sum is not paid in full within [•] months from
the date of issuing the Non-payment Notice, the Independent Engineer may terminate
this IE Agreement by written notice to the Company (which shall be copied to the State).
In this case, the Independent Engineer shall be entitled to receive the payments (without
double counting):
(a) any outstanding instalment of IE’s remuneration and any other sum owed to IE
prior to the date of issue of the notice of termination of IE Agreement;
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(b) such proportion of the next instalment of remuneration payable to the
Independent Engineer as corresponds to the Services it has performed up to the
date of termination; and
(c) [•]% of the total unpaid remuneration as specified in Annex II applicable to the
remaining (unexecuted) part of this IE Agreement, which amount shall be
considered as full and final settlement of all claims of the Independent Engineer
under this IE Agreement.
11.5 The Company may terminate this IE Agreement with immediate effect:
(a) in the event of termination of the Concession Agreement in any way, whereupon
the Independent Engineer shall be entitled to the payments set forth in articles
11.2 (a) & (b), unless the Company is substituted pursuant to article 5.7; or
(b) in the event the Independent Engineer is declared bankrupt or becomes insolvent
or is put under administration, liquidation, dissolution or any proceedings for the
IE being declared bankrupt or insolvent or coming into liquidation or dissolution
commence or generally in case any event occurs or proceeding with similar
effects commences.
11.6 Termination or expiry of this IE Agreement for any reason whatsoever shall not affect the
rights and responsibilities of the Parties which have accrued prior to or because of such
termination or expiry or any obligation of the Parties which are going to apply beyond the
termination or expiry of this IE Agreement.
11.7 The Independent Engineer acknowledges that the State may request the Company to
terminate this IE Agreement according to the provisions of the Concession Agreement.
In such case the Company, as also mentioned in article 11.3, shall be entitled to
terminate this IE Agreement pursuant to article 11.5, i.e. with immediate effects.
11.8 Unless otherwise expressly provided in this article 11, the Independent Engineer shall
not be entitled to any compensation in respect of the termination of this IE Agreement.
12. RECORDS, AUDIT AND CONFIDENTIALITY
12.1 The Independent Engineer shall keep suitable records and maintain appropriate books
for the Project recording the hours worked by its personnel and shall keep records of all
hours worked by salaried staff and of all expenses related to any Services of the
Independent Engineer which are carried out and for which the Independent Engineer is
entitled to receive payment.
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12.2 The Company or auditors appointed by the Company shall have the right to carry out
one or more audits of the records and books of the Independent Engineer related to the
Services of the Independent Engineer. Such audits shall be carried out in a way that
disruption to the work of the Independent Engineer is the minimum possible.
12.3 Unless otherwise reasonably required by applicable legislation, the Independent
Engineer shall not, during its contractual engagement or at any time after its expiry or
termination, for any reason disclose to any person or otherwise make use of any
confidential information of which IE has or may during execution of its duties become
aware of, relating to the Company, the Project, this IE Agreement or the Concession
Agreement, nor shall it disclose to any person whatsoever anything relating to the
Company without the prior written consent of the Company. Exceptionally, the
Independent Engineer may only disclose confidential information to employees and/or
associates only to the extent necessary to have knowledge of such information for the
proper performance of IE’s duties and will bear full responsibility for any breach of
confidentiality obligations of such persons. The above restriction shall continue to apply,
without limitation in time, after issuing the T1 Period Works Completion Certificate as
well, unless and until such confidential information are published without any liability of
the Independent Engineer. The Independent Engineer may disclose confidential
information to the State without the prior written consent of the Company. The
Independent Engineer is also responsible for fidelity towards the counter-parties of the
Concession Agreement and for exquisite diligence during the execution of ΙΕ duties and
must execute timely and adequately ΙΕ obligations, as defined in the Tender Documents
and this IE Agreement.
The Independent Engineer shall grant to the Company and the State a non-exclusive,
irrevocable, royalty free licence to copy and use any documents, and to reproduce the
information contained therein for any purpose related to the Project. Such licence shall include
a licence to grant further licences and to transfer the same to third parties providing such
actions are carried out under the same conditions as related to the Company.
13. APPLICABLE LAW
This IE Agreement is governed by the Greek Law.
14. DISPUTE RESOLUTION
14.1 The Independent Engineer shall make any possible effort to provide the Company and
the State with all such documents, data and information as either the Company and/or
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the State may reasonably request in connection with the conduct of any dispute or
negotiations that may arise during the period that this IE Agreement remains in force.
14.2 In the event of any dispute - excluding Technical Disputes which will be resolved in
accordance with the procedures set forth in the Concession Agreement - arising out of or
in connection with this IE Agreement-, the Parties agree to refer the matter for settlement
in accordance with the Dispute Resolution Rules Of the International Chamber of
Commerce.
14.3 Any dispute that is not settled within sixty (60) days following the submission of the
matter to settlement proceedings, pursuant to article 14.2, or within any other period as
the Parties may have agreed in writing, shall be finally settled by arbitration in
accordance with the applicable at that time Rules of Arbitration of the International
Chamber of Commerce by one arbitrator appointed in accordance with such rules. This
arbitration shall take place in Greece and shall be conducted in Greek.
14.4 If the dispute to be referred to arbitration under article 14.3 raises issues which are
substantially the same or connected with the issues raised in another dispute that has
already been referred to arbitration under this IE Agreement, the Concession Agreement
and/or the DCA (an "Existing Dispute"), or arises out of the same, substantial, real facts
as the ones of an Existing Dispute (a "Related Dispute") then:
(a) if the Independent Engineer and the Company so agree, the arbitration tribunal
appointed or to be appointed for the resolution of any such Existing Dispute shall
also be appointed for the resolution of any Related Dispute;
(b) where pursuant to article 14.4 (a), the same arbitration tribunal has been
appointed in relation to two or more Related Disputes, the arbitration tribunal may
order that the whole or part of the matters to be resolved, shall be raised at the
same hearing, under the terms and conditions which the court considers
appropriate.
Article 14.4 shall not be applicable for the arbitrators appointed pursuant to Article 33.3.4
of the Concession Agreement in relation to any dispute, any powers or jurisdiction
beyond those conferred upon them by the expressed terms of the Concession
Agreement.
14.5 The Independent Engineer shall continue to carry out the Services whilst arbitration
proceedings or Technical Disputes procedures, as defined in the Concession
Agreement, are in progress unless instructed by the Company to suspend any part
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thereof, in which case the Independent Engineer shall be relieved of the obligation to
perform such part of the Services and shall not be entitled to any payment in connection
therewith.
15. NOTICES
15.1 Notices shall be delivered by hand recording the date of receipt or by facsimile or by
registered letter (return receipt requested) to the following addresses:
(a) To the Company
[name, recipient address]
(b) To the Independent Engineer
[name, recipient address ]
The persons named above are hereby appointed by the Company and the Independent
Engineer as their representatives to receive any notifications in relation to the process (process
agents). Each of the Company and the Independent Engineer shall immediately notify one
another for any subsequent change regarding their representative and process agent.
16. AMENDMENTS AND WAIVERS
16.1 The terms of this IE Agreement may be amended, modified, completed, varied or waived
only with the written agreement of the Parties and only subject to the prior approval of
the State according to the provisions of the Concession Agreement.
16.2 The failure to exercise or delay in exercising of any right or legal remedy foreseen in this
IE Agreement or by law does not constitute a waiver of the right or legal remedy or a
waiver of other rights or legal remedies. A waiver of the right in the case of breach of any
of the terms of this IE Agreement or a default under this IE Agreement, does not
constitute a waiver of any other right in case of another breach or default and shall not
affect the rest of the terms of this IE Agreement. A waiver of right in the event of a
breach or default of any of the terms of this IE Agreement or obligation according to this
IE Agreement will not prevent any Party from subsequently requiring compliance with the
waived obligation. The rights and legal remedies foreseen by this IE Agreement are
cumulative (subject as otherwise provided in this IE Agreement)and do not exclude any
right or legal remedy provided by law.
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17. CONFLICT OF INTEREST RESTRICTION
The Independent Engineer declares that at the time of execution of this IE Agreement is
not directly related to the Provisional Contractor or, where applicable, to the Members of
the Provisional Contractor, which may result in a situation of conflicting interests
("Conflict of Interest Situation"). Throughout this IE Agreement and for a period of one
year from the termination or expiration of the same in any way, the Independent
Engineer should not be in a Conflict of Interest Situation with the Company or/and the
respective shareholders of the Company. In the event that the Independent Engineer at
any time considers that IE is in a Conflict of Interest Situation, it must inform the
Company without delay, who will terminate the Independent Engineer Agreement.
18. MISCELLANEOUS
18.1 This IE Agreement constitutes the whole agreement between the Parties and takes
precedence over and supersedes all previous communications (oral or written) and
agreements between the Parties in relation to its subject matter.
18.2 If any provision of this IE Agreement is found to be illegal or invalid the remaining
provisions of this IE Agreement shall not be affected and the Parties shall negotiate in
good faith in order to replace the invalid or illegal provision with a valid and legal one
which will reflect the original intention of the Parties.
18.3 Communication between the Company and the Independent Engineer shall be either in
English or Greek. All reports and certificates drawn up by the Independent Engineer and
submitted to the State will be drafted in Greek and English. In case a document has
been drafted in both languages, the one written in the Greek language shall prevail. The
cost of correspondence in both Greek and English language is included in the
Independent Engineer's financial offer and IE is not entitled to any additional
remuneration for this purpose throughout the duration of this IE Agreement.
18.4 The Independent Engineer acknowledges and accepts that the Company may use the
reports, certificates, opinions or equivalent estimates of Independent Engineer and share
them for information purposes with persons involved in the execution of the Project, such
as, especially, the State, the Constructor, the insurers, in compliance with the
Company’s obligations under the Concession Agreement, the DCA, the Insurance
Contracts, etc.
18.5 Throughout this IE Agreement, change in the identity of the Independent Engineer
and/or change in IE control (e.g. indicatively and not limited to, in cases of buyout,
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merger etc. which will result in change in the control of the Independent Engineer)
without the written consent of the Company is not allowed. In the event where the
Independent Engineer, violating this IE Agreement, proceeds with such change, the
Company is entitled to:
(a) replace, immediately or within a deadline at its sole discretion, the Independent
Engineer without payment of any fee payable to the IE even if such payment is past-due
or is related to completed IE scope;
(b) receive immediately, through this declaration clear and enforceable title, from the
Independent Engineer an amount of two million Euro (€ 2,000,000.00), as a reasonable
and fair penalty; and
(c) receive a compensation from the Independent Engineer for the total amount of the
resulting loss and/or its cost which are related to the aforementioned replacement and
the general cost of the replacement process that is performed according to article 28.5
of the Tender Notice.
18.6 In case the Independent Engineer is a joint venture, then the provisions of the IE
Invitation and specifically the provisions of articles 5.4 7(iv) and 16.3 are effective
throughout this IE Agreement. Accordingly, it is restricted and completely invalid towards
the Company the reduction of the leader’s percentage of the consortium or joint venture,
as this is derived from (a) the notary act under clause 7 (iv) of the IE Invitation and (b)
the establishment document of the consortium under clause 16.3 of the IE Invitation,
unless the Company and the State have provided written consent. With the explicit
exception of the lead member, the participation percentages of the rest of the consortium
members whose experience has been invoked by the IE in order to prove the required
experience, according to the provisions of IE Invitation, may be redistributed among
those members, without the written consent of the Company. In case the Independent
Engineer, violating this provision, proceeds to such modification (percentage change or
modification of the leader), the rights of the Company under a, b and c as those are
described in article 18.5 above, shall come into effect.
18.7 The following annexes are attached in this IE Agreement:
• Annex I: The financial offer dated [date] of the Independent Engineer
• Annex II: The agreed payment schedule of the IE lump sum fee
• Annex III: Table of minimum IE personnel.
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This IE Agreement has been entered into force on the date stated at the beginning of this IE
Agreement.
…/…
SIGNATORIES For the Company ........................................................ For the Independent Engineer ......................................................
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ANNEXES1
1 More annexes may be added in this IE Agreement during its finalization, if deemed necessary by the Parties.
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ANNEX I
INDEPENDENT ENGINEER’S FINANCIAL OFFER
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ANNEX II
PAYMENT SCHEDULE OF INDEPENDENT ENGINEER’S FEE
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ANEX III
TABLE OF MINIMUM INDEPENDENT ENGINEER’S PERSONNEL
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ANNEX III
TABLE OF MINIMUM IE’s PERSONNEL
Α/Α Full name Specialization Position Brief description of CV Sum of employment months
Μonth No. (to be extended up to 60th month)
1 2 3 4 5 6 7 8 9 10
11
12
13
14
15 … …
1 2 3 4 5 6 7 8
……
(date) ………….201
(signature)
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Invitation to IE Tender - Revision Page 49
ANNEX VI
TEMPLATE OF IE FINANCIAL BID
________________[Date]
To: Consortium TERNA SA – GMR Airports Limited
No 85, Messogion Ave.,
pc 11526, Athens,
Greece
Ladies/Gentlemen:
We, the undersigned, acting herein as the representative of the IE Bidder with the
trade name [………………………..] would like to bring to your attention that we would
like to and may provide the services of Independent Engineer for the Project:
“DESIGN - CONSTRUCTION - FINANCING - OPERATION - MAINTENANCE AND
EXPLOITATION OF THE NEW INTERNATIONAL AIRPORT OF HERAKLION
CRETE & DESIGN - CONSTRUCTION AND FINANCING OF THE ROAD
CONNECTIONS” in accordance with the IE Invitation dated [date], the Tender
Documents of the Project, the Draft IE Agreement and the rest of information which
were notified to us and have been taken into consideration in order to draw up our
offer.
Therefore, for the provision of Independent Engineer services for the aforementioned
Project, we are hereby offering the below final and binding financial offer in the form
of a lump sum:
(_________________________________________________________________)
[Amount in words and number in euro] which (a) does not include VAT; and (b)
includes the total of taxes, dues, fees and expenses necessary for the provision of
Independent Engineer services, according to the aforementioned information.
The above offer shall be valid and binding against the Consortium for twelve (12)
months as of the following day to the day of conducting the IE Tender, according to
clause 10 of the IE Invitation.
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Yours sincerely,
_____________________________ [authorized signature]
_____________________ [name and title of signatory]:
_______________________ [name of IE Bidder]
______________________ [address]
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ANNEX VII
DRAFT CONFIDENTIALITY STATEMENT AND CONFIDENTIALITY AGREEMENT
A) CONFIDENTIALITY STATEMENT
[IE Bidder’s or IE Bidder member’s corporate name]
[IE Bidder’s or IE Bidder member’s registered address]
CONSORTIUM TERNA SA – GMR Airports Limited,
No. 85, Messogion Ave, pc 115 26, Athens, Greece
Attention: Messrs. Al. Aligizakis or Emm. Moustakas
In [location] on [date], 2017
Confidentiality Statement
We, [name and position of the representative], empowered to act in the name and on behalf of [name of the [IE Bidder or IE Bidder’s member] by virtue of [evidence of power of attorney] dated [date], hereby declare that [IE Bidder or IE Bidder’s member] are aware of and adhere unconditionally and irrevocably to the terms of the Confidentiality Agreement between the Greek State and TERNA S.A. executed on 30th December 2015, as if they were a party thereto.
We hereby agree and acknowledge the following:
i) Any disclosed to us by the CONSORTIUM TERNA SA – GMR Airports Limited, document in English language, is considered as non-binding and in case of any discrepancy with the respective original Greek document, the latter shall prevail.
ii) We shall keep records with the names of each individual to whom disclosure of the whole or part of Confidential Information (as such term is defined in the Confidentiality Agreement) will be made.
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Yours sincerely,
_________________________________
On behalf of: [IE Bidder’s or IE Bidder member’s corporate name]
By: [name of representative of IE Bidder or IE Bidder’s member]
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B) CONFIDENTIALITY AGREEMENT
[No English translation provided]
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ANNEX VIII
AWARDING DOCUMENTS
In order to approve the result of the IE Tender and awarding the IE
Contractor, the Lowest IE Bidder or, in case of a consortium, each member
thereof, must submit to the Consortium according to clause 16.1 hereof, the
following certificates and other documents::
i. For the cases of articles 5.5.2 and 5.5.3 of this IE Invitation,
documents issued by a competent court or administrative authority of
the country of domicile of the Lowest IE Bidder, proving that these
conditions are met.
ii. Regarding the case of article 5.5.4 of this IE Invitation and for each
one of the Lowest IE Bidder's lawful representatives (or the members
thereof, in case the Lowest IE Bidder is a consortium), a criminal
record extract or in case of foreign persons, a similar document by a
court or administrative authority of their country of domicile, at the time
of submittal of the supporting documents. In case the criminal record
extract submitted according to the above is not clear, either a Solemn
Statement or sworn statement before notary public shall be also
submitted of the person for whom the respective extract was issued,
specifying the offenses for which the penalties referred to in this
extract have been imputed. The Lowest IE Bidder (or their members,
in case of consortium) shall also submit legalization documents for the
documentation of their lawful representatives (with general
representation capacity) at the time of submittal of the associated
supporting documents, in order to allow identification of the persons
subject to the requirements of producing respective criminal record
extracts. In case there is no alteration with respect to the lawful
representation of the Lowest IE Bidder or their members (in case of
consortium), a pertinent Solemn Statement by the lawful
representative shall be submitted.
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Invitation to IE Tender - Revision Page 55
iii. For the cases of articles 5.5.6 and 5.5.7, a certificate issued by a
competent authority and the competent social insurance agencies of
the state of establishment of the Lowest IE Bidder. In case a foreign
company has been permanently established or conducts business in
Greece, then the required certificates must be submitted according to
the provisions of the Greek legislation.
iv. For the cases of article 16.3, document of joint venture establishment.
v. Certification of insurance issuance of the Lowest IE Bidder (in case of
a consortium, for the established joint venture), according to the
provisions of article 10 of the Draft IE Agreement.
The above documents and supporting information shall be valid on the date of
their submittal to the Consortium.
The submittal of Awarding Documents is subject to the provisions of articles
6.5 up to and including 6.8 of this IE Invitation.