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Procedure

Szczecin, 17 September 2020

ANNOUNCEMENT OF INITIATING THE PROCEEDINGS AND THE INVITATION TO PARTICIPATE IN THE PROCEEDINGS

I. DESCRIPTION OF THE SUBJECT MATTER OF THE PROCEEDINGS

  1. ZARZĄD MORSKICH PORTÓW SZCZECIN I ŚWINOUJŚCIE S.A. with its registered office in Szczecin, address: ul. Bytomska 7, 70-603 Szczecin, entered into the Register of Entrepreneurs of the National Court Register under KRS No 0000033768, registration court: District Court Szczecin-Centrum in Szczecin, REGON: 811649448, NIP: 9551889161 (hereinafter: ZMPSiŚ S.A.) announces the initiation of proceedings aimed at awarding a preliminary agreement that obliges the parties to execute a final agreement on the use of future land real estate to be created as a result of reclaiming of sea area within the borders of the seaport in Świnoujście, designated for operating a container terminal according to a concept proposed and implemented by a user (hereinafter: Proceedings).
  2. The Proceedings shall be carried out pursuant to: ‘Procedure for the proceedings aimed at awarding a preliminary agreement that obliges the parties to execute a final agreement on the use of real estate located within the borders of the seaport in Świnoujście, designated for operating a container terminal according to a concept proposed and implemented by a user’ (hereinafter: Procedure). The Procedure, the complete text of an invitation to participate in the Proceedings as well as any and all other documents relating to the Proceedings shall be available on the website of ZMPSiŚ S.A. at: http://www.port.szczecin.pl/en/offer/deepwater-container-terminal/procedure/
  3. The purpose of the Proceedings is for ZMPSiŚ S.A. to select, according to assessment criteria identical for all offers and determined in the Procedure, a Participant to the Proceedings with whom ZMPSiŚ S.A. intends to execute a Preliminary Agreement that obliges the parties to execute a Final Agreement by a set deadline on the transfer for use by the Participant to the Proceedings selected by ZMPSiŚ S.A. pursuant to the Procedure of a future land real estate, which will be created as a result of reclaiming of sea area within the borders of the seaport in Świnoujście. The Final Agreement may also concern the use of existing land real estate that is functionally related to the above-mentioned land real estate created as a result of reclaiming of sea area and real estate that is directly adjacent to it.
  4. Conditions for executing the Final Agreement shall be, among other, obtaining by the Participant to the Proceedings selected by ZMPSiŚ S.A. according to the Procedure and at his cost a permit for erecting or using artificial islands, structures, and equipment in the Polish sea areas, according to the Act of 21 March 1991 on the sea areas of the Republic of Poland and the maritime administration, the reclamation by the Participant to the Proceedings at his cost and risk of a relevant sea area and obtaining by ZMPSiŚ S.A. a usufruct or another title to use such real estate, of the content that enables ZMPSiŚ S.A. to dispose of such real estate in the adequate scope.
  5. The Participant to the Proceedings selected by ZMPSiŚ according to the Procedure, without the right to demand from ZMPSiŚ S.A. the reimbursement of any incurred expenditures or account for any incurred outlays, damages or any other benefits, at his cost and risk, shall adapt the sea area designated for the Real Estate and, if necessary, sea areas adjacent to that area, real estate adjacent to that sea area, and Real Estate or other real estate functionally related to the Real Estate as a part of the Project, in order to implement the concept proposed by the Participant to the Proceedings.
  6. The Participant to the Proceedings selected by ZMPSiŚ according to the Procedure, without the right to demand from ZMPSiŚ S.A. the reimbursement of any incurred expenditures or account for any incurred outlays, damages or any other benefits, shall bear any and all costs and risks due to the preparation and implantation of the concept proposed by the Participant to the Proceedings and the commercial use of the Real Estate, including but not limited to: costs related to any and all administrative and legal procedures, obtaining consents, permits, decisions, etc., and the preparation of any and all documents, studies, analyses, applications, etc., required to take the above-mentioned measures.
  7. Every Participant to the Proceedings shall at his cost and risk and at his discretion analyse the actual status of affairs and a legal status of the location of the Real Estate and assess the conditions in the zone of the relevant sea area and in the seaport in Świnoujście as well as any and all other facts and circumstances that affect a decision of a Participant to the Proceedings concerning the participation in the Proceedings or making an Offer.

    II. GENERAL INFORMATION ON THE PROGRESS OF THE PROCEEDINGS
  1. The Proceedings shall be conducted exclusively in Polish.
  2. Subject to any provisions to the contrary in the Procedure, the Proceedings shall be carried out in two stages set forth in section III.4 of the Procedure. The 1st stage of the Proceedings shall involve the verification of formal conditions for participating in the Proceedings, formal requirements set forth in the Procedure, which have to be fulfilled by an Offer, and the assessment of Offers that are not subject to rejection, in order to determine a score obtained by every Offer not subject to rejection in the 1st stage of the Proceedings. The 2nd stage of the Proceedings shall involve negotiations carried out with a Participant to the Proceedings concerned, regarding in particular the specification of: the concept included in an Offer made by the Participant to the Proceedings, the conditions of using and maintaining the Real Estate, and deadlines or conditions for implementing the Project or its part, which may be repeated a number of times, with respect to consecutive Participants to the Proceedings in an order that corresponds to a falling score obtained by each Offer at the 1st stage of the Proceedings.
  3. Only Participants to the Proceedings who have been invited by ZMPSiŚ to participate in that stage of the Proceedings may participate in the 2nd stage of the Proceedings.
  4. The Proceedings shall be carried out in the following forms: written, documented, oral and using means of electronic communication. The Procedure shall determine a form suitable for an action undertaken within the Proceedings.
  5. Pursuant to a resolution of the Management Board of ZMPSiŚ S.A., the Proceedings may be closed without a resolution at every stage, including for convenience, by placing an announcement in the same form as an invitation to the Proceedings in the same journals as the invitation to the Proceedings.

    III. CONDITIONS FOR PARTICIPATING IN THE PROCEEDINGS
  1. Notwithstanding anything to the contrary in the Procedure, the right to make an Offer in the Proceedings shall be held by Participants to the Proceedings whose participation in the Proceedings does not violate Law or the Procedure and who are not subject to exclusion from the participation in the Proceedings according to the criteria set forth in section IX of the Procedure.
  2. All Participants to the Proceedings from Member States of the European Union, states that belong to the European Economic Area or states that have executed relevant agreements with the Government of the Republic of Poland shall participate in the Proceedings on the same conditions.
  3. Participants to the Proceedings shall bear any and all costs and risks that result from or are related to the participation in the Proceedings. Participants to the Proceedings shall not have the right to make any claims against ZMPSiŚ S.A. or any other persons due to costs or risks that stem from the participation in the Proceedings.
  4. Detailed terms and conditions of participating in the Proceedings have been set forth in the Procedure.

    IV. CRITERIA OF EXCLUDING PARTICIPANTS FROM THE PARTICIPATION IN THE PROCEEDINGS
  1. The criteria of excluding Participants from the participation in the Proceedings are set forth in section IX of the Procedure.
  2. Notwithstanding anything to the contrary in the Procedure, the following persons may not participate in the Proceedings or may be excluded from the Proceedings at any time
    a) persons who are members of the authorities of ZMPSiŚ S.A. or the Commission or their next of kin in the meaning of art. 115 § 11 of the Act of 6 June 1997 Penal Code;
    b) persons or unincorporated organizational units who are given a legal capacity by Law and who do not meet the conditions for the participation in the Proceedings set forth in the Procedure and resulting from Law or whose participation in the Proceedings violates Law or the Procedure;
    c) persons or unincorporated organizational units who are given a legal capacity by Law who are subject to an initiated liquidation, who have been declared bankrupt, whose assets are managed by a liquidator or court, who have executed an arrangement with their creditors, whose business activity is suspended or are in a similar situation that results from a similar procedure provided for in the regulations of place where the procedure is initiated;
    d) persons or unincorporated organizational units who are given a legal capacity by Law who misled ZMPSiŚ S.A. or the Commission when presenting information that they are not subject to exclusion or that they fulfil the conditions for participating in the Proceedings;
    e) persons or unincorporated organizational units who are given a legal capacity by Law who have presented in the Proceedings information that misled ZMPSiŚ S.A. or the Commission, which had or might have a major impact on decisions taken in the Proceedings by ZMPSiŚ S.A. or the Commission;
    f) persons or unincorporated organizational units who are given a legal capacity by Law for whom a valid ruling has been issued, according to reliable information, which confirms the commitment of one of the following acts:
    (i) the participation in a criminal organization according to the definition of such an organization given in art. 2 of the Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime (OJ EU L 2008/300) or defined in Law;
    (ii) corruption, according to a definition given in art. 3 of the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union (OJ EU L 1997/19) and art.2(1) of the Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector (OJ EU L 2003/192) or defined in Law;
    (iii) financial abuse in the meaning of art. 1 of the Convention on the protection of the European Communities’ financial interests (OJ EU L 1995/316) or defined in Law;
    (iv) terrorist offences or offences linked to terrorist activities according to a definition given in art. 1 and art. 3 respectively of the Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (OJ EU L 2002/164) or defined in Law, or abetting to commit an offence, assistance, complicity or attempting to commit an above-mentioned offence;
    (v) money laundering or financing terrorist activity according to a definition given in art. 1 of the Directive of the European Parliament and of the Council 2005/60/EC of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (OJ EU L 2005/309) or defined in Law; or
    (vi) child labour and other forms of human trafficking, according to a definition given in art. 2 of the Directive of the European Parliament and of the Council 2011/36/EU of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims (OJ EU L 2011/101) or defined in Law;
    g) persons or unincorporated organizational units who are given a legal capacity by Law if according to reliable information a person sentenced with a valid judgement for committing one of the acts listed in section IV.2(f) above is a member of managing or supervisory authorities of the person or organizational unit;
    h) consortia whose members include persons or unincorporated organizational units listed in any of the provisions of section IV.2(a-g) above;
    i) persons or unincorporated organizational units who are given a legal capacity by Law, in relation to which the Minister of National Defence or an organisational unit of the Ministry of National Defence or an institution competent for the protection of the internal or external security of the Polish State shall raise objections with regard to the defence or security of the Polish State.

    V. MAJOR ELEMENTS OF AN OFFER
  1. An Offer shall fulfil all formal criteria set forth in the Procedure.
  2. Major elements of an Offer shall constitute in particular any information and declarations included in the content of an Offer and assessed in the Proceedings based on criteria indicated in section III.5 of the Procedure and in section VIII hereof as well as formal requirements concerning an Offer included in the content of the Procedure.
  3. The Participant to the Proceedings shall, among other, fill out a form enclosed as Schedule No 3 to the Procedure and submit it after completion as a part of the Offer, including but not limited to the indication in the content of that form of an amount that, if the Final Agreement is executed, the Participant to the Proceedings will pay ZMPSiŚ S.A. for using the Real Estate during the term of the Final Agreement, where the amount offered by the Participant to the Proceedings shall not be lower than a minimum amount of a fee (rent) for the use of the Real Estate indicated by ZMPSiŚ S.A. in section IX hereof.
  4. All documents listed in section XIII.13 of the Procedure, prepared in line with section XIII of the Procedure, shall be enclosed to the Offer.
  5. Detailed requirements concerning the form and content of an Offer as well as a the conditions for the validity of an Offer have been set forth in the Procedure.

    VI. TERM OF THE OFFER
  1. In the content of an Offer, every Participant to the Proceedings shall make a declaration that he is bound without any reservations or conditions by the whole Offer he makes in the period until 31 December 2021, and until the expiry of this deadline the Participant to the Proceedings shall expect a response from ZMPSiŚ S.A. to his Offer.

    VII. OBLIGATION TO PAY AN OFFER DEPOSIT
  1. A condition for participating in the Proceedings and having an Offer considered is the payment by a Participant to the Proceedings of the whole amount of an Offer deposit before the deadline for making Offers set in section X.1 hereof.
  2. An Offer deposit may be paid exclusively with money, with a transfer to the bank account of ZMPSiŚ S.A. No 28 1240 3826 1111 0000 4403 0937.
  3. An Offer deposit in the Proceedings shall amount to PLN 5,000,000.00 (five million zlotys).
  4. A date of paying an Offer deposit in the Proceedings shall be a date (day and time) of crediting the bank account of ZMPSiŚ S.A. indicated in section XIV.2 of the Procedure and in section VII.2 above.

    VIII. CRITERIA AND METHOD OF ASSESSING OFFERS
  1. Valid Offers shall be assessed at the 1st stage of the Proceedings based on information and declarations included in the form enclosed as Schedule No 3 to the Procedure, according to the following criteria that will be identical for all Offers:

    a) price criteria:

    (i) the value of an annual fee (rent) that the Participant to the Proceedings undertakes to pay ZMPSiŚ S.A. for the use of the Real Estate;
  • Offers shall be assessed according to this criterion in the scale 0-30
  • an Offer with the highest value of benefit for ZMPSiŚ shall obtain 30 points
  • other Offers will be given a number of points on the pro-rata base of benefits offered in the content of an Offer to the value of an Offer with a highest score;

    (ii) the value of a fee for ZMPSiŚ S.A. that the Participant to the Proceedings undertakes to pay ZMPSiŚ S.A. for every unit of container capacity (1 TEU) handled in sea transport;
  • Offers shall be assessed according to this criterion in the scale 0-10
  • an Offer with the highest value of benefit for ZMPSiŚ shall obtain 10 points
  • other Offers will be given a number of points on the pro-rata base of benefits offered in the content of an Offer to the value of an Offer with a highest score;

    (iii) the value of a fee for ZMPSiŚ S.A. that the Participant to the Proceedings undertakes to pay ZMPSiŚ S.A. for every unit of container capacity (1 TEU) handled in transhipment;
  • Offers shall be assessed according to this criterion in the scale 0-10
  • an Offer with the highest value of benefit for ZMPSiŚ shall obtain 10 points
  • other Offers will be given a number of points on the pro-rata base of benefits offered in the content of an Offer to the value of an Offer with a highest score;

    b) functional and quality criteria:

    (i) the conformity of a concept presented by the Participant to the Proceedings of developing the Real Estate to the general purpose of using the Real Estate assumed by ZMPSiŚ S.A. in Schedule No 2 to the Procedure;
  • Offers shall be assessed according to this criterion in the scale 0-5
  • an Offer assessed as best may obtain 4-5 points
  • an Offer with an average assessment may obtain 2-3 points
  • an Offer assessed as worst may obtain 0-1 point
  • an Offer shall be given the best assessment if it is most in line with the general purpose of using the Real Estate assumed by ZMPSiŚ S.A. in Schedule No 2 to the Procedure;

    (ii) the annual handling capacity (in TEU) guaranteed by the Participant to the Proceedings of the deepwater container terminal located on the Real Estate after completing the 1st phase of constructing the Project;
  • Offers shall be assessed according to this criterion in the scale 0-15
  • an Offer with the highest guaranteed handling capacity shall obtain 15 points
  • other Offers will be given a number of points on the pro-rata base of benefits offered in the content of an Offer to the value of an Offer with a highest score;

    (iii) a deadline for achieving the target annual handling capacity by the deepwater container terminal located on the Real Estate guaranteed by the Participant to the Proceedings;
  • Offers shall be assessed according to this criterion in the scale 0-15
  • an Offer assessed as best may obtain 11-15 points
  • an Offer with an average assessment may obtain 6-10 points
  • an Offer assessed as worst may obtain 0-5 point
  • an Offer shall be given the best assessment if it sets the shortest deadline;

    (iv) The level of conformity of the concept of developing the Real Estate presented by the Participant to the Proceedings to the military mobility programme implemented by the EU;
  • Offers shall be assessed according to this criterion in the scale 0-5
  • an Offer assessed as best may obtain 4-5 points
  • an Offer with an average assessment may obtain 2-3 points
  • an Offer assessed as worst may obtain 0-1 point
  • an Offer shall be given the best assessment if it fulfils most requirements out of those indicated in Schedule No 12 to the Procedure;

    c) environmental criteria:

    (i) the application by the Participant to the Proceedings in a concept of developing the Real Estate of solutions that minimise the negative impact on the natural environment (flora and fauna);
  •  in the assessment of this criterion, an Offer may obtain either 0 or 1 point
  • 1 point shall be obtained by every Offer that contains information about the application in the concept of developing the Real Estate of solutions that minimise the negative impact on the natural environment (flora and fauna);

    (ii) the application by the Participant to the Proceedings in a concept of developing the Real Estate of solutions that minimise the negative impact on the atmosphere;
  •  in the assessment of this criterion, an Offer may obtain either 0 or 1 point
  • 1 point shall be obtained by every Offer that contains information about the application in the concept of developing the Real Estate of solutions that minimise the negative impact on the atmosphere;

    (iii) the application by the Participant to the Proceedings in a concept of developing the Real Estate of solutions that provide the power supply to a ship during her stay at a quay, in order to supply the ship’s equipment;
  • in the assessment of this criterion, an Offer may obtain either 0 or 1 point
  • 1 point shall be obtained by every Offer that contains information about the application in the concept of developing the Real Estate of solutions that provide the supplies of electricity to a ship during her stay at a quay, in order to supply the ship’s equipment;
    d) social criteria:

    (i) actions for the local community proposed by the Participant to the Proceedings.
  • Offers shall be assessed according to this criterion in the scale 0-7
  • an Offer with a highest value of benefits guaranteed by the Participant to the Proceedings for the local community shall obtain 7 points
  • other Offers will be given a number of points on the pro-rata base of benefits offered in the content of an Offer to the value of an Offer with a highest score.

    2. A final assessment of an Offer (a number of points obtained by an Offer during the 1st stage of the Proceedings) shall equal the total of products of the total number of points obtained by an Offer in specific groups of criteria mentioned above and weights of relevant criteria.

    IX. MINIMUM VALUE OF A FEE (RENT)
  1. The Final Agreement mentioned in section I.3 above shall be a paid agreement.
  2. A minimum value of a fee (rent) for using the Real Estate indicated in the content of the Offer (a form that informs about the intentions of the Participant to the Proceedings, enclosed as Schedule No 3 to the Procedure) shall not be lower than the amount of (VAT excluded): PLN 21.00 (twenty-one zlotys) per year for every 1m2 of the area of the Real Estate.
  3. The Management Board of ZMPSiŚ S.A. resolves that the value of the fee (rent) for the use of the Real Estate indicated in section 1 of this Resolution shall be reduced:
    a) in the period until the end of the first full twelve calendar months from the date of executing a lease agreement (Final Agreement mentioned in the Procedure) – by 80% (eighty per cent); and
    b) in the period from the beginning of the thirteenth full calendar month from the date of executing a lease agreement (Final Agreement mentioned in the Procedure) to the expiry of a deadline indicated in the content of the Offer (section 2.10 of Schedule No 3 to the Procedure) guaranteed by a Participant to the Proceedings for obtaining a permit for using all the facilities that enable the safe service of minimum one seagoing megamax vessel with 14.5 m draught and handling containers from a served megamax vessel – by 50% (fifty per cent).

    X. DEADLINE AND PLACE OF MAKING OFFERS
  1. A deadline for making Offers shall be 9 November 2020, 3.00 p.m.
  2. Offers may be made before the deadline indicated in section X.1 above, exclusively in the following places:
    a) personally in room No 1 at the registered office of ZMPSiŚ S.A. in Szczecin, at 7 Bytomska street, or
    b) by mail or courier service delivered to the address of ZMPSiŚ S.A. in Szczecin, at 7 Bytomska street.

    XI. DATE AND PLACE OF OPENING OFFERS
  1. Offers made before the deadline set in section X.1 hereof shall be opened in public on 10 November 2020 at 10.00 a.m.
  2. A place of the public opening of Offers made in the Proceedings before the deadline set in section X.1 hereof shall be the registered office of ZMPSiŚ S.A. in Szczecin at 7 Bytomska street, room No 316.

    XII. METHOD OF DOWNLOADING DOCUMENTATION RELATING TO THE PROCEEDINGS
  1.  In order to download the Documentation, the Participant to the Proceedings shall e-mail a message in Polish to: ct@port.szczecin.pl
  2. A message mentioned in section XII.1 shall contain the following information, as minimum:
    a) a name of an author of a message;
    b) a phone number of the author of a message with an international country code;
    c) the indication of a person or an unincorporated organizational unit that is interested in participating in the Proceedings (a full name and address of a registered office); and
    d) an e-mail address to which information may be sent that enables to download the Documentation.
  3. A message with an individual link and a password for downloading the Documentation shall be e-mailed to the address mentioned in section XII.2(d) above.
  4. No responses shall be given to any applications that do not meet the requirements set forth in section XII.1 and XII.2 above.

    XIII. FINAL INFORMATION
  1. Taking any actions in the course of the Proceedings, including but not limited to making an Offer, shall mean a confirmation that a Participant to the Proceedings has become acquainted with the wording of the Procedure current as of the date of its application, understands its content, accepts the Procedure without any reservations and undertakes to follow and apply all the provisions of the Procedure in the Proceedings.
  2. Any and all capitalised terms used herein that have not been defined directly in this document shall have the meaning given thereto in section I of the Procedure.
  3. Should any differences occur between the provisions of this document and the content of the Procedure, the Procedure shall prevail.
  4. The Procedure, the Documentation, the invitation to participate in the Proceedings and any other documents concerning the Proceedings or prepared by ZMPSiŚ S.A. in relation to the Proceedings shall not constitute: an offer in the meaning of art.66 § 1 Civil Code or art.661 § 1 Civil Code, an announcement of an auction or a tender in the meaning of art.701 Civil Code or an invitation to execute an agreement mentioned in art.71 Civil Code.