INVITATION TO NEGOTIATE COMMERCIAL DEVELOPMENT PROJECT OF GDYNIA MIĘDZYTORZE - PDF

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INVITATION TO NEGOTIATE COMMERCIAL DEVELOPMENT PROJECT OF GDYNIA MIĘDZYTORZE Proceedings number: Disclaimer: Polish version is the original version. In case of discrepancies between

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INVITATION TO NEGOTIATE COMMERCIAL DEVELOPMENT PROJECT OF GDYNIA MIĘDZYTORZE Proceedings number: Disclaimer: Polish version is the original version. In case of discrepancies between the translations, Polish version shall prevail. Warsaw, December 2013 Invitation to Negotiate The terms defined and used in this Invitation to Negotiate have the following meaning: 1. Investor, the Potential Investor - which will be chosen for Project realization; 2. Costs of Consultancy costs of preparation and service of the Project incurred by PKP S.A. in order to select Investor, in particular: costs of law, finance and real estate market consultancy; 3. Memorandum, the Information Memorandum; 4. Response to the Invitation the written response for the Invitation to Negotiate; 5. Bids or Bid binding offers submitted in the stage II of the proceedings by Potential Investors/Potential Investor, which were allowed to take part in stage II of the proceedings; 6. Fee, the fee paid by the Potential Investors; Part 1 of the Fee the fee charged for access to the Memorandum paid by February 28, 2014; Part 2 of the Fee the fee charged by the Inviting Party for carrying the proceedings in order to select the Investor for the Project realization required in case of Potential Investor decides to submit the Response to the Invitation paid by March 24, 2014 ; 7. Potential Investors or Potential Investor entities or entity, including consortia, which submitted Response to the Invitation; 8. Project, the joint with Investor venture regarding development (including development of commercial area) of developed land Gdynia Międzytorze located in Gdynia between Jana z Kolna, Janka Wiśniewskiego and Wendy streets, with total area of approx ha - subject to the land availability and submitted Responses to the Invitation and Bids; 9. Inviting Party, the Board of PKP S.A., or a PKP S.A. Board Member, or Managing Director for Real Estate at PKP S.A.; 10. Invitation to Negotiate, the this Invitation to Negotiate. The Inviting Party, in the name and on behalf of Polish State Railways Joint Stock Company ( PKP S.A. ) with seat in Warsaw, 62 Szczęśliwicka str., entered into the Register of Entrepreneurs kept by the District Court for the Capital City of Warsaw, XII Division for Economy of the National Court Register, under KRS number , REGON , NIP , with initial capital, fully paid-up, of PLN 10,150,715,600 acting on the basis of the Resolution of the Management Board of PKP S.A. No. 682 dated November 21, 2013, hereby invites all interested parties to negotiate in order to select an Investor for development of the Project. Potential Investors, who will pay Part 1 of the Fee for access to the Memorandum, submit confidentiality statement, pay Part 2 of the Fee, submit a written Response to the Invitation and demonstrate the required experience may access to negotiate. 2 The procedure adopted to select an Investor is two-staged. In the I stage the Inviting Party shall evaluate the Responses to Invitation filed by the Potential Investors, in particular within scope of experience and financial capability of Potential Investors, as well as it will assess the proposed concepts for development of the Project site. In the I stage the Inviting Party can carry on preliminary negotiations. As a result of such assessment the Inviting Party may select no more than five Potential Investors for negotiations in the II stage. In the II stage, after the Potential Investors submit their Bids and following any possible additional negotiations with the Potential Investors, the Inviting Party shall select an Investor who placed a Bid characterised by the most beneficial relationship between parameters specified by the Inviting Party. Evaluation criteria will not be disclosed to Potential Investors. The negotiations will include in particular: the legal form of cooperation, the scope of rights and responsibilities of PKP S.A. and Potential Investor, how the Project is to be completed and how much time it will take to complete the Project, the value (amount) of capital invested to the Project, the terms and conditions of Project financing, way of assessment, completion time and distribution of the amounts of income and profit generated by the Project between PKP S.A. and Potential Investor; how to secure the funds to finance the Project, eventually, a precise definition of existing obligations imposed with regard to environmental protection, protection of cultural heritage, and other obligations binding PKP S.A. and the Potential Investor, as a result of contracts and the common legislation, the proposed land development - architectural and town planning concept, the form of a legal title by which PKP S.A. transfers the property for construction purposes. The expenses made by the entities willing to participate in negotiations shall not be refunded by the Inviting Party. All costs required to participate in the proceedings, including costs incurred to prepare the Response to the Invitation, Bids and to participate in negotiations are held by Potential Investor and Investor. The Investor selected in the proceedings shall reimburse to PKP S.A. the Cost of Consultancy, in accordance with the schedule of costs prepared by the Inviting Party. The Inviting Party informs that negotiations with the Potential Investor selected for the II stage may be dependent upon that Potential Investor secures the Cost of Consultancy in the form of a bank guarantee issued by a bank domiciled in the territory of the Republic of Poland, in accordance with an example specified by the Inviting Party, or a no interest rate bearing security deposit, paid to the account of PKP S.A. The estimated amount of the Cost of Consultancy shall be communicated to those Potential Investors who will be qualified to participate in II stage. To confirm that the conditions of participation in this procedure were met, the Potential Investor must respond to Invitation to Negotiate by submitting a written Response to the Invitation, including the following documents: 3 1. a short presentation of the Potential Investor and his experience (not more than 15 pages of A4 format, and optionally an additional multimedia presentation), with highlighted commercial investments under construction and in preparatory stage; 2. a preliminary architectural and town planning concept for the Project including a visual presentation in electronic form, on a DVD and on paper, in a bound volume and in form of hard A1 charts (6 pieces). The concept should include a description and a specification of areas; 3. an initial estimates of the costs and expenses on Project completion; 4. an initial business plan for the Project; 5. methodology and duration (schedule) of Project completion, amount of profit expected to be generated by the Project, and its distribution between PKP S.A. and the Investor, including a projected cash flow annually by stages; 6. a concept of legal and business partnership with PKP S.A., including a key legal terms and conditions of such cooperation, terms and conditions and method of financing of the Project, etc.; 7. presentation of benefits which the involvement in Project works will bring to PKP S.A. and from income from usage of structures included by Project; 8. the statements listed below: a) The Potential Investor has not been declared bankrupt, no bankruptcy proceedings are under way, and no liquidation proceedings have been initiated against it, it has not been disqualified from practising business activities, its business is not under compulsory administration, it has not settled with creditors and no repair procedure of its business is under way; b) in case of collective entities, as understood by the Act on Liability of collective entities for prohibited and penalised acts: - no penal or penal-fiscal proceedings are under way against it, and no legally binding judgment has been issued to declare it liable, under the regulations governing liability of collective entities, for prohibited and penalised acts; - it has not seriously violated or failed to discharge any of its contractual obligations; c) it is not in default with payment of any social security liabilities and keeps repaying its taxes as required by law; d) it has the experience, as well as the technical equipment and staff required to complete the Project; e) in case of persons authorised to represent collective entities (including all Board Members, general partners, procurators and potential plenipotentiaries in these proceedings) and partners in private partnerships: 4 - no penal or penal-fiscal proceedings are under way against him/her, and no legally binding judgment has been issued declaring him/her guilty of a bribery, an offence against business trading or other offence committed to obtain material benefits, or a tax offence, or an offence of participation in an organized group or association established to commit a crime or a tax offence; - he/she has not seriously violated or failed to meet his/her contractual obligations; f) the Potential Investor is in the economic and financial position which supports completion of the Project; g) the Potential Investor has properly carried out, within the last five years preceding the date of the Invitation to Negotiate or, if its duration is shorter, within such duration at least one commercial development project, which contract value is not lower than PLN 70 (say: seventy) million net; h) in case of being selected by the Inviting Party, the Investor will refund the Costs of Consultancy to PKP S.A., in accordance with the specifications of costs prepared by the Inviting Party; i) the Potential Investor agrees to present the Project s architectural and town planning concept to persons and institutions involved in the Project completion; 9. As confirmation of statements referred to in item 8, the Potential Investor is obliged to submit the following documents: a) a copy of an entry in the National Court Register (KRS) or a copy of any other document to confirm that the company was entered in the register or Central Register and Information on Business Activity (Centralna Ewidencja i Informacja o Działalności Gospodarczej); b) an up-to-date statement of the competent head of a tax office and the competent unit of the Social Security Fund (Zakład Ubezpieczeń Społecznych) or Agricultural Social Insurance Fund (Kasa Rolniczego Ubezpieczenia Społecznego) to certify respectively that the Potential Investor is not in default with payment of taxes, fees and health or social insurance, or statements that he has received the legal release, deferment or payment in instalments of his overdue liabilities or a withdrawal in whole of execution of a competent body s decision or he is not the payer of social insurance premiums; c) statement of the competent head of a tax office of registration as an active VAT taxpayer or exempt from payment (if the Potencial Investor is bound to pay VAT), or a statement that he is not VAT taxpayer; d) a list of persons and entities who will participate in Project completion or in partnership with who the Potencial Investor is intend to manage the Project. The list must include data on professional qualifications of such persons, their experience and education; 5 e) own financial statements for two most recent trading years, including an opinion of an expert auditor, if such financial statement was required by law to be audited, or if the period, during which the entity has been in business, is shorter for such period, together with the most recent financial statement F-01, or in case when the Potential Investor does not keep the accounting books as required by the Accounting Act copies of income statements for the two most recent trading years; f) a specification of carried out (completed) over the five most recent years, or if the period, during which the entity has been in business, is shorter over such period, investmentconstruction projects of commercial character with the contract value of not less than PLN 70 (say: seventy) million net, together with potential references (this specification may include projects completed by the Potential Investor as part of a consortia or capital groups); g) power of attorney to represent the Potential Investor in case when the Response to the Invitation is signed by persons whose right to represent it cannot be concluded from their positions in the Potential Investor s administration bodies; h) police clearance certificate regarding the Potential Investor and persons empowered to represent the Potential Investor (including all Board Members, general partners, procurators and a potential plenipotentiary in these proceedings) and partners in private partnerships; i) any possible other documents, which may be considered of importance by the Potential Investor. 10. In case of Potential Investor domiciled in a foreign country instead of polish documents listed above, he must present: a) document certifying that the Potential Investor is authorized to appear in legal transactions, in accordance with the legislation of his domicile, the way of representation and persons authorized to represent the Potential Investor; b) documents issued by competent bodies to confirm that in the country of Potential Investor s domicile, he is not in default with payment of taxes and fees or social insurance premiums, or that he obtained consent for a release, deferment or payment in instalments of his overdue liabilities; c) own financial statements for two most recent trading years, including an opinion of an expert auditor, if such financial statement was required by law to be audited, or if the period, during which the entity has been in business, is shorter for such period, including the balance sheet, the profit and loss account and the cash flow statement drawn up as upon the end of the quarter preceding the deadline for submission of the Response to the Invitation; 6 d) police clearance certificate regarding the Potential Investor and persons empowered to represent the Potential Investor (including all Board Members, general partners, procurators and a potential plenipotentiary in these proceedings) and partners in private partnerships, issued by administration body in the country of the Potential Investor s domicile and properly by bodies in the country of nationality of person empowered to representation or plenipotentiary in these proceedings; e) if one, a number of, or all documents referred to in items a d above are not issued or are not being drawn up in the Potential Investor s country of domicile, the Potential Investor may replace them with one or a number of documents containing the proper statements filed by the Potential Investor to the proper court, administration, professional or economic self-administration body, or to a notary public in the Potential Investor s country of domicile. Any documents drawn up in a foreign language shall be translated into Polish by a sworn translator, and their translations shall be submitted together with the primary documents. A number of entities may jointly participate in procedure only in a Consortium form. Above statement concerns also companies in the capital groups. Any established Consortium shall submit to the Inviting Party a copy (certified for compliance with the original) of the Consortium contract. Acquisition of Memorandum containing detailed information on the Project, course of procedure and structure of response to the Invitation to Negotiate follows payment of Part 1 of the Fee in amount of 10,000 (say: ten thousand) PLN transfered to PKP S.A. banking account No.: titled Oplata za udostępnienie Memorandum Informacyjnego dla Projektu Gdynia Miedzytorze ( Payment for access to Information Memorandum for the Commercial Development Project of Gdynia Międzytorze ) by April 15, The contact person, responsible for explanations concerning rules of giving access to Memorandum, acceptance of applications and giving access to Memorandum, is Magdalena Ciuk, mobile: +48 (0) on work days from Mondays to Fridays between 09:00 a.m. 04:00 p.m., fax: +48 (0) , or Memorandum can be accessed from January 20, 2014, by receipt after arrangement by phone. To receive the Memorandum a Potential Investor should present a receipt to confirm payment of Part 1 of the Fee for the Memorandum acquisition, the up-to-date (i.e. issued 3 months prior to presentation at the earliest) documents identifying the Potential Investor (an up-to-date excerpt from the National Court Register (KRS) or a excerpt of any other document to confirm that the company was entered in the register or Central Register and Information on Business Activity (Centralna Ewidencja i Informacja o Działalności Gospodarczej) and submit a confidentiality statement, which contents can be found at Appendix to the Invitation to Negotiate and in an electronic format on the website ( Gdynia Miedzytorze Project Invitation to Negotiate web site), by authorised representatives. 7 In case of another person than submitting confidentiality statement will receipt Memorandum the Potential Investor should present power of attorney for person authorised to receipt Memorandum signed by authorised representatives. Part 2 of the Fee amounts to 30,000 (say: thirty thousand) PLN and is due to pay by April 24, The rules of payment Part 2 of the Fee are present in Memorandum. Due to limitations of possibility to request for explanations associated with the Project, according to Memorandum, to (1) within seven days preceding the deadline for submission of the Response to the Invitation and (2) only Potential Investors who bought the Memorandum, submitted the confidentiality statement and paid Part 2 of the Fee, it is advisable that above formalities should be fulfil properly quickly. The contact person, responsible for giving explanations associated with the Project, is Pawel Nowakowski, mobile: +48 (0) , or fax: +48 (0) , who is accessible on work days from December 27, 2013 to April 25, 2014, between 09:00 a.m. 04:00 p.m. The Responses to the Invitation shall be submitted in accordance with information contained in the Memorandum, in the PKP S.A. Central Office, in Warsaw, at 62 Szczęśliwicka street, at the office reception on the ground floor, indicating the Department of Investments as a recipient by: - May 5, 2014, 02:00 p.m. documents defined in above items 1 and 8-10, - July 11, 2014, 02:00 p.m. documents defined in above items 2-7. Potential Investors shall be notified about the results of assessment of their Responses to the Invitation by August 19, The Inviting Party reserves its right to: select one or a few Potential Investors for negotiations; withdraw from negotiations with one, few or all Potential Investors in each stage of proceedings without giving reasons; extend the deadline for submission of Responses to the Invitation or Bids; demand additional information from Potencial Investors, who submit the Response to the Invitation; prolong the time allowed for information that the Response to the Invitation or Bids was considered; change the procedure and schedule of negotiations; cancel the proceedings in each stage without giving reasons; refuse to enter into an investment contract in case when the consent for entering into the contract was not obtained from corporate bodies, the Minister of Transport or another organ public administration, if such consent for contract will be required by law. Appendix: - Example of Confidentiality Statement 8 , date 201_ EXAMPLE OF CONFIDENTIALITY STATEMENT Appendix To: PKP S.A. on location CONFIDENTIALITY STATEMENT I/We the undersigned:, acting as in the name and on behalf of, with seat in, in association with our response to the invitation to negotiate in a proceeding for selection of an Investor to cooperate in development project, which will include commercial area, of partial developed land located at Gdynia Miedzytorze, w
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