Pimpri Chinchwad Municipal Corporation REQUEST FOR PROPOSAL Selection of Operator For Purchase, Installation, Operation and Maintenance of new 3.0T MRI machine and O&M of the existing 0.3T MRI machine at the MRI Centre in Y.C.M Hospital September 2018 Tender No: 12/2018-19 This RFP Document consists of: Part 1: Request for Proposal Part 2: Draft Operation & Maintenance Agreement
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Pimpri Chinchwad Municipal Corporation · Operation and Maintenance of new 3.0T MRI machine and O&M of the existing 0.3T MRI machine at the MRI Centre in Y.C.M Hospital Pimpri Chinchwad
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Pimpri Chinchwad Municipal Corporation
REQUEST FOR PROPOSAL
Selection of Operator
For
Purchase, Installation, Operation and Maintenance of new
3.0T MRI machine and O&M of the existing 0.3T MRI
machine at the MRI Centre in Y.C.M Hospital
September 2018
Tender No: 12/2018-19
This RFP Document consists of:
Part 1: Request for Proposal
Part 2: Draft Operation & Maintenance Agreement
Tender Notice:
PIMPRI CHINCHWAD MUNICIPAL CORPORATION
Tender No. 12/2018-19
Request for Proposal for the Selection of Operator for Purchase, Installation,
Operation and Maintenance of new 3.0T MRI machine and O&M of the existing 0.3T
MRI machine at the MRI Centre in Y.C.M Hospital
Pimpri Chinchwad Municipal Corporation (PCMC) operates eight hospitals which includes one
multi-speciality hospital, seven maternity & general hospitals in Pimpri Chinchwad city. PCMC
through this RFP intends to appoint an Operator for operating and managing the MRI centre with
0.3T and 3 T MRI machine in YCM hospital. Currently PCMC has 0.3T MRI machine at its MRI
centre in YCM hospital.
The Operator for the project will be selected based on the lowest percentage quote submitted for
providing MRI services to the citizens and undertaking the operation and maintenance of the
project for 10 years.
More details about the bid submission procedure and the selection methodology are available in
the Request for Proposal (RFP) document. PCMC thereof invites bids from firms having experience
as envisaged in the Request for Proposal (RFP) document. Interested Bidders may download the
RFP document in the electronic form only from https://mahatenders.gov.in/nicgep/app from 26th
October 2018 onwards. However, the cost of such an RFP document i.eRs. 5,000 (Rupees Five
Thousand Only) shall be paid along with the submission of the bids, failing which the bid
submission would not be accepted. The pre bid meeting for the tender is scheduled on 12th
2018 at the office of Medical Officer of Health, PCMC at 3.00 pm
Advt. No. 310
No. MSB/4/KV/202/2018
Dated: 25/10/2018
Sd/-
Commissioner, PCMC
PART 1 – REQUEST FOR PROPOSAL
Operation and Maintenance of MRI Facility at YCM Hospital
4.1 PROJECT BACKGROUND ................................................................................................................. 12 4.2 THE SCOPE OF THE PROJECT .......................................................................................................... 12 4.3 THE AGREEMENT OF THE PROJECT ................................................................................................. 12
5 DESCRIPTION OF THE SELECTION PROCESS .......................................................................... 14
5.1 SELECTION PROCESS ...................................................................................................................... 14 5.2 STEP 1 RESPONSIVENESS OF BID................................................................................................... 14 5.3 STEP 2 (COVER 1) EVALUATION OF TECHNICAL AND FINANCIAL CAPABILITY .............................. 14 5.4 STEP 3 EVALUATION OF FINANCIAL PROPOSAL ............................................................................ 15 5.5 GENERAL COMPLIANCE CRITERIA .................................................................................................. 15 5.6 TIME TABLE AND MILESTONES ....................................................................................................... 16
6 PROCEDURES TO BE FOLLOWED ................................................................................................ 17
6.1 ENQUIRIES & CLARIFICATIONS ....................................................................................................... 17 6.2 AMENDMENTS TO THE RFP ............................................................................................................... 17 6.3 SUBMISSION OF THE BID ................................................................................................................. 17
6.4 INITIALLING OF THE BIDS ................................................................................................................. 19 6.5 INSTRUCTIONS TO BIDDERS............................................................................................................. 19 6.6 BIDDER’S RESPONSIBILITY.............................................................................................................. 21 6.7 VALIDITY OF TERMS OF THE BID ...................................................................................................... 21 6.8 FEES AND DEPOSITS TO BE PAID BY THE BIDDERS........................................................................ 22
6.8.1 Bid Security ............................................................................................................................ 22 6.9 NON ASSOCIATION WITH PROJECT ADVISORS ................................................................................ 22 6.10 CONSEQUENCES OF NOT ADHERING TO THE PROCESS............................................................. 22 6.11 RIGHT TO REJECT THE PROPOSAL ............................................................................................. 22
2 FACILITY MANAGEMENT RIGHTS ............................................................................................................. 60
2.1 GRANT OF FACILITY MANAGEMENT RIGHTS ............................................................................................... 60 2.2 PERIOD OF RIGHTS ...................................................................................................................................... 60 2.3 ACCEPTANCE OF RIGHTS ............................................................................................................................ 60
3 PROJECT SITE ................................................................................................................................................ 60
3.1 RIGHT TO ENTER PROJECT SITE ................................................................................................................. 60 3.2 RIGHTS AND USE OF THE PROJECT SITE ................................................................................................... 60 3.3 APPLICABLE PERMITS ................................................................................................................................. 61 3.4 EXCLUSIVITY OF THE CONTRACT ................................................................................................................ 61
4.1 RESPONSIBILITIES OF THE OPERATOR ....................................................................................................... 61 4.2 RESPONSIBILITIES OF PIMPRI CHINCHWAD MUNICIPAL CORPORATION .................................................... 62 4.3 COST OF SATISFYING THE CONDITIONS PRECEDENT ................................................................................. 62 4.4 NON- FULFILMENT OF THE CONDITIONS PRECEDENT ................................................................................ 62
5.1 SUPERINTENDENT YCM .............................................................................................................................. 62 5.2 SCOPE OF WORK OF THE SUPERINTENDENT YCM .................................................................................... 63
6.1 FINANCIAL OBLIGATIONS ............................................................................................................................ 64 6.1.1 Performance Security ....................................................................................................................... 64 6.1.2 Outstanding municipal dues ............................................................................................................ 64
6.2 OPERATIONAL OBLIGATIONS ...................................................................................................................... 64 6.2.1 Project Implementation – O & M of MRI Centre ........................................................................... 64 6.2.2 Maintenance Contract ...................................................................................................................... 66 6.2.3 Insurance ............................................................................................................................................ 67 6.2.4 Application of Insurance Proceeds ................................................................................................. 67 6.2.5 Un-insurable Risks ............................................................................................................................ 67 6.2.6 Applicable Permits ............................................................................................................................ 67
6.3 GENERAL OBLIGATIONS ............................................................................................................................. 67 6.4 NO BREACH OF OBLIGATIONS .................................................................................................................... 69
9 PROPREITORY RIGHTS ................................................................................................................................ 70
12 FORCE MAJEURE ....................................................................................................................................... 72
12.1 FORCE MAJEURE EVENT ........................................................................................................................ 72 12.2 EXCLUSIONS FROM FORCE MAJEURE EVENT ........................................................................................ 73
Operation and Maintenance of MRI Facility at YCM Hospital
52
12.3 NOTICE OF FORCE MAJEURE EVENT ...................................................................................................... 73 12.4 PERFORMANCE OF OBLIGATIONS ........................................................................................................... 74 12.5 TERMINATION DUE TO FORCE MAJEURE EVENT .................................................................................... 75 12.6 LIABILITY FOR OTHER LOSSES, DAMAGES ETC. ...................................................................................... 76
13 EVENTS OF DEFAULT AND TERMINATION ......................................................................................... 76
13.1 EVENTS OF DEFAULT .............................................................................................................................. 76 13.2 TERMINATION DUE TO EVENT OF DEFAULT ............................................................................................ 77 13.3 RIGHTS OF CORPORATION ON TERMINATION ......................................................................................... 79 13.4 ACCRUED RIGHTS OF PARTIES ............................................................................................................... 80 13.5 RIGHTS OF OPERATOR ON TERMINATION ............................................................................................... 80
14 OBLIGATIONS AND RIGHTS AT THE END OF CONTRACT PERIOD ............................................ 80
14.1 OPERATOR’S OBLIGATIONS .................................................................................................................... 80 14.2 CORPORATION’S RIGHTS ........................................................................................................................ 81
16 REPRESENTATIONS AND WARRANTIES ............................................................................................ 81
16.1 REPRESENTATIONS AND WARRANTIES OF THE OPERATOR ................................................................... 81 16.2 REPRESENTATIONS AND WARRANTIES OF CORPORATION .................................................................... 83 CORPORATION REPRESENTS AND WARRANTS TO THE OPERATOR THAT: .............................................................. 83 16.3 OBLIGATION TO NOTIFY CHANGE ........................................................................................................... 83
17.1 ASSIGNMENT AND CHARGES .................................................................................................................. 83 17.2 INTEREST AND RIGHT OF SET OFF ......................................................................................................... 83 17.3 GOVERNING LAW AND JURISDICTION ..................................................................................................... 84 17.4 WAIVER .................................................................................................................................................... 84 17.5 SURVIVAL................................................................................................................................................. 84 17.6 AMENDMENTS .......................................................................................................................................... 84 17.7 NOTICES .................................................................................................................................................. 85 17.8 SEVERABILITY ......................................................................................................................................... 85 17.9 LANGUAGE .............................................................................................................................................. 86 17.10 EXCLUSION OF IMPLIED WARRANTIES ETC ............................................................................................ 86 17.11 COUNTERPARTS ...................................................................................................................................... 86 SCHEDULE I. LIST OF EQUIPMENT’S AT PROJECT SITE FOR EXISTING 0.3T MRI MACHINE ................................. 87 SCHEDULE II. THE SPECIFICATIONS OF EXISTING 0.3T MRI MACHINE ............................................................... 88 SCHEDULE III. SCOPE OF WORK ........................................................................................................................... 94 SCHEDULE IV: SCHEDULE OF RATES FOR MRI SERVICES ......................................................................................... 98 SCHEDULE V. PROFORMA OF PERFORMANCE SECURITY ..................................................................................... 99 SCHEDULE VI. MRI STAFF DETAILS (QUALIFICATION AND EXPERIENCE) .......................................................... 101 SCHEDULE VII. NECESSARY APPLICATIONS AND MINIMUM HARDWARE REQUIREMENT ..................................... 102
Operation and Maintenance of MRI Facility at YCM Hospital
53
TABLE OF SCHEDULES
Sr. No. PARTICULARS PAGE No.
1. Schedule I: List of equipment at the Project Site 87
2. Schedule II: Specification of 0.3T MRI Machine 88
3. Schedule III: Scope of Work 94
4. Schedule IV: Schedule of rates for MRI Service 97
5. Schedule V:Proforma of Performance Security 99
6. Schedule VI: MRI staff details (qualification and experience) 101
7. Schedule VII: Necessary applications and Minimum hardware
requirement
102
Operation and Maintenance of MRI Facility at YCM Hospital
54
This Operations and Maintenance Agreement on Public Private Partnership basis (Revenue Sharing) is
mutually agreed and entered into on this ____ day of ____, Two Thousand and Eighteen at Pimpri.
BETWEEN
Pimpri Chinchwad Municipal Corporation (hereinafter referred as “Corporation”), having its principal office
at Pimpri Chinchwad Municipal Corporation main building, Pune Mumbai Road, Pimpri – 411018 and
represented by Shri _________________________________, the Medical Officer of Health for the city
Primpri Chinchwad (hereinafter referred as “Medical Officer Health”) in which expression are included
unless such inclusion is inconsistent with the context, his successor or successors for the time being
holding the office of the Municipal Commissioner; of ONE PART.
AND
_____________, a company incorporated under the provisions of the Indian Companies Act, 1956,
having its registered office at ______________, hereinafter referred to as the “Operator” which
expression shall unless repugnant to the context include its successors and permitted assigns, of the
OTHER PART.
WHEREAS,
Operation and Maintenance of MRI Facility at YCM Hospital
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A. Pimpri Chinchwad Municipal Corporation (PCMC) intends to provide operation and maintenance of its
MRI Centre at YCM hospital in Pimpri to a private Operator for providing MRI service (hereinafter
referred as the Project).
B. For the said purpose Corporation vide its tender notice number______________________ had
invited proposals from eligible bidders for the Project. In response thereto Corporation had received
proposals from various bidders including the Operator for implementing the Project.
C. Corporation, after evaluating the aforesaid proposals, accepted the proposal submitted by the bidder
__________ for operating, managing and maintaining the Project.
D. Thereafter Corporation had issued a Letter of Award (LOA) bearing No. _____ dated _____, to the
Operator and which has been acknowledged by Operator’s letter bearing No. ____ dated _____.
E. Corporation has executed this Agreement to assign to the Operator its rights and obligations with
regard to operation and maintenance of the MRI Centre at YCM hospital as per the provisions
mentioned in this Agreement.
F. The Operator is granted operation and maintenance right for the Project for a period of 10 (ten) years
from the Appointed Date as per the terms and conditions mentioned herein. The Operator shall at the
expiry of the Contract Period deliver the MRI Centre and the equipment listed in 0 in good and
operable conditions to the Corporation free of cost.
G. Corporation confirms the receipt of the following from the Operator:
a. Bank Guarantee dated _____ for an amount of Rs. _________ (Rupees _______ only) as
Performance Security, for the performance of the obligations of the Operator under this
Agreement.
In terms of the Letter of Award, the Parties hereto are required to enter into the Operation and
Maintenance Agreement being these presents to record the terms, conditions and covenants.
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:
1 DEFINITIONS AND INTERPRETATIONS
1.1 DEFINITIONS
In this Agreement, the following words and expressions shall, unless repugnant to the context or meaning
thereof, have the meaning hereinafter respectively ascribed to them hereunder:
Operation and Maintenance of MRI Facility at YCM Hospital
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“Affected Party” shall mean the Party claiming to be affected by a Force Majeure Event in accordance
with Article 12.1.
“Agreement” shall mean this Operation and Maintenance Agreement with its recitals and schedules, and
includes any amendments hereto made in accordance with the provisions hereof.
“Applicable Law” means and includes any statute, law, bye-law, rule, regulation, ordinance,
judgment, order, decree, injunction, writs or orders of any court of record, clearance, directive, guideline,
policy, requirement, or other governmental restriction or any similar form of decision of, or determination
by, or any interpretation or administration having the force of law of any of the foregoing, by any
Government Agency having jurisdiction over the matter in question, whether in effect as of the date of this
Agreement or thereafter.
“Applicable Permits” shall mean all clearances, permits, authorisations, consents and approvals
required to be obtained or maintained by the Operator under Applicable Law, in connection with the
operations and maintenance of the Project during the subsistence of this Agreement.
“Appointed Date” shall mean the date of the signing of this Agreement between Corporation and the
Operator.
“Basic Documents” means this Operation and Maintenance Agreement to be executed between the
Operator and Corporation.
“Contract Period” shall mean a period of 10 (ten) years commencing from the Appointed Date and as
ascribed under Article 2.2.
“Conditions Precedent” shall have meaning as ascribed under Article 4.
“Corporation” shall have mean Pimpri Chinchwad Municipal Corporation.
“Commencement Certificate” shall mean the certificate issued by the Corporation to the Operator after
the Superintendent YCM is satisfied with the compliance of the Operator to Conditions Precedent in
Article 4.
“Commercial Operation Date (COD)” shall be the date on which the Commencement Certificate is
issued to the Operator
“Emergency” shall mean a condition or situation that is likely to endanger the safety of the individuals on
or about the Project Site or which poses an immediate threat of material damage to the Project.
“Financial Year” shall mean the period commencing from April 1 of any given year to March 31 of the
succeeding year.
“Force Majeure”or “Force Majeure Event” shall mean an act, event, condition or occurrence as
specified in Article 12.1 of this Agreement.
“GoM” shall mean the Government of Maharashtra.
“Good Industry Practice” shall mean the exercise of that degree of skill, diligence, prudence, integrity
and foresight in compliance with the undertakings and obligations under this Agreement which would
reasonably and ordinarily be expected of a skilled and an experienced person engaged in the
implementation, operation and maintenance or supervision or monitoring thereof or any of them of a
project similar to that of the Project.
Operation and Maintenance of MRI Facility at YCM Hospital
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“Government Agency or Authority” shall mean Government of India (GoI), GoM, Corporation or any
state government or governmental department, commission, board, body, bureau, agency, authority,
instrumentality, court or other judicial or administrative body, central, state, or local, having jurisdiction
over the Parties, the Project Site or any portion thereof, or the performance of all or any of the
services or obligations of the Operator under or pursuant to this Agreement.
“Fee” shall be the charges payable by Patient/s to Operator for availing the MRI Service as per Error!
eference source not found.such fee shall be payable for availing the complete MRI Service and will be
inclusive of all the consumables and taxes involved for providing the service.
“Letter of Award (LOA)” shall mean the letter issued by the Corporation to the successful bidder.
“Material Adverse Effect” shall mean a material adverse effect on (a) the ability of the Operator to
exercise any of its rights to perform / discharge any of its duties / obligations under and in accordance
with the provisions of this Agreement and / or (b) the legality, validity, binding nature or enforceability of
this Agreement.
“Material Breach” shall mean a breach by either Party of any of its obligations under this Agreement
which has or is likely to have a Material Adverse Effect on the Project and which such Party shall have
failed to cure.
“MRI Service” shall mean Magnetic Resonance Imaging service provided through the MRI equipment at
the YCM hospital.
“MRI Centre” shall mean the location in YCM hospital where Magnetic Resonance Imaging equipment is
installed for providing the MRI Service.
“Parties” shall mean the parties to this Agreement and “Party” shall mean either of them, as the context
may admit or require.
“Performance Security” shall mean the bank guarantee (irrevocable) provided by the Operator as a
guarantee for the performance of its obligations and is in accordance with Article 6.1.1.
“Person” shall mean (unless otherwise specified or required by the context), any individual, company,
Corporation, partnership, joint venture, trust, unincorporated organisation, government or government
body or any other legal entity.
“Patient” shall be the person/s who has been informed or advised or prescribed by a medical practitioner
to avail MRI Service and has approached MRI Centre at YCM hospital for availing the MRI Service.
“Preliminary Notice” shall mean the notice of intended termination by the Party entitled to terminate this
Agreement to the other Party setting out, inter alia, the underlying Event of Default.
“Project” shall mean operation and maintenance of (old and new machine) MRI Centre at YCM hospital
along with the equipment listed in 0 for providing only MRI Service and as per the terms and conditions of
this Agreement.
“Project Agreements” means collectively this Agreement and any other material contract entered into or
may enter into by the Operator in connection with the Project.
“Project Site” shall mean MRI Centre at YCM hospital at Pimpri where the Operator shall operate,
manage and maintain the MRI Service for patients in accordance with the provisions of this Agreement.
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“Premium” shall mean amount to be paid by the Operator on an annual basis for the Area, equipment/
facilities provided by Corporation as listed in 0 of this Agreement.
“Request for Proposal (RFP) document” shall mean the ‘Request for Proposal Document’, dated -
_________ issued by Corporation to the bidders in the proposal stage, as may be amended and
modified from time to time together with all annexures, Schedules, along with such corrigendum,
addendum, amendments which may be made from time to time.
“Rupees” or “Rs.” refers to the lawful currency of the Republic of India.
“Standards of Reasonable and Prudent Operator” means the standards, practices, methods and
procedures expected from a person seeking in good faith to perform its contractual obligations and in so
doing and in the general conduct of its undertaking exercising that degree of skill, diligence, prudence and
foresight which would reasonably and ordinarily be expected from a skilled and experienced Person
engaged in the same type of undertaking under the same or similar circumstances and conditions
including the conditions as contemplated by the Basic Documents.
“Security Deposit” shall mean the bank guarantee (irrevocable) provided by the Operator as a
guarantee for the upkeep of the equipment/ facilities provided by Corporation as listed in 0 under this
Agreement.
“Service Provider” shall mean an authorised service provider of MRI machine with whom the Operator
has entered into a contract in relation to the maintenance of the electrical equipment of the MRI
equipment.
“Termination” shall mean early termination of this Agreement pursuant to Termination Notice or
otherwise in accordance with the provisions of this Agreement, but shall not, unless the context otherwise
requires, include expiry of this Agreement due to efflux of time in the normal course.
“Termination Date” shall mean the date specified in the Termination Notice as the date on which
Termination occurs.
“Termination Notice” shall mean the notice of Termination by either Party to the other Party, in
accordance with the applicable provisions of this Agreement.
“YCM” shall mean YashwantraoChavhan Memorial Hospital of Corporation at Pimpri.
1.2 INTERPRETATION
In this Agreement, unless the context otherwise requires,
a. any reference to a statutory provision shall include such provision as is from time to time modified or
re-enacted or consolidated so far as such modification or re-enactment or consolidation applies to, or
is capable of being applied to any transactions entered into hereunder;
b. references to Applicable Law shall include the laws, acts, ordinances, rules, regulations, notifications,
guidelines or bylaws which have the force of law;
c. the words importing singular shall include plural and vice versa, and words denoting natural persons
shall include partnerships, firms, companies, corporations, joint ventures, trusts, associations,
organisations or other entities (whether or not having a separate legal entity);
Operation and Maintenance of MRI Facility at YCM Hospital
59
d. the headings are for convenience of reference only and shall not be used in, and shall not affect, the
construction or interpretation of this Agreement;
e. the words "include" and "including" are to be construed without limitation;
f. any reference to day, month or year shall mean a reference to a Gregorian calendar day, month or
year respectively;
g. the Schedules to this Agreement form an integral part of this Agreement as though they were
expressly set out in the body of this Agreement;
h. any reference at any time to any agreement, deed, instrument, license or document of any description
shall be construed as reference to that agreement, deed, instrument, license or other document as
amended, varied, supplemented, modified or suspended at the time of such reference;
i. references to recitals, Articles, Sub-Articles, clauses, or Schedules in this Agreement shall, except
where the context otherwise requires, be deemed to be references to recitals, Articles, Sub-Articles,
clauses and Schedules of or to this Agreement;
j. the damages payable by either Party to the other of them as set forth in this Agreement, whether on
per diem basis or otherwise, are mutually agreed genuine pre-estimated loss and damage likely to be
suffered and incurred by the Party entitled to receive the same and are not by way of penalty;
k. any reference to any period commencing “from” a specified day or date and “till” or “until” a specified
day or date shall include both such days or dates;
l. in case of any conflict or discrepancy in the articles/ clauses in the body of the Agreement and those
in the schedules, the articles/ clauses in the body of the Agreement shall prevail.
m. any agreement entered by the Operator for the purpose of this Project shall be to the extent of the
rights provided under the provisions of this Agreement. Further, the timelines mentioned in this
Agreement shall be strictly adhered while entering into any agreement for the purpose of this Project.
It is hereby clarified that in the event of any conflict / dispute between the terms and conditions of the
agreement entered by the Operator for the purpose of this Project with that of the Operation and
Maintenance Agreement, then the provisions of the Operations and Maintenance Agreement would
prevail.
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2 FACILITY MANAGEMENT RIGHTS
2.1 GRANT OF FACILITY MANAGEMENT RIGHTS
Subject to and in accordance with the terms and conditions set forth in this Agreement,
Corporation hereby grants and authorises the Operator to occupy, operate and maintain the
Project.
2.2 PERIOD OF RIGHTS
The Contract Period for operations and maintenance for the Project is for a period of 10 (Ten)
years from the Appointed Date. The Operator is authorised to occupy, operate, manage and
maintain the Project in accordance with the provisions hereof.
The contract period may be extended by further 5 years, subject to satisfactory performance,
adherence to terms and conditions and mutual agreement of both parties.
Provided that in the event of Termination, the period shall be limited to the period commencing
from the Appointed Date till the Termination Date.
2.3 ACCEPTANCE OF RIGHTS
The Operator hereby accepts the operations and maintenance rights hereby granted by
Corporation and agrees and undertakes to perform / discharge all of its obligations without any
consideration in return as highlighted in Article 8, in accordance with the provisions hereof.
3 PROJECT SITE
3.1 RIGHT TO ENTER PROJECT SITE
(a) Corporation shall, within 5 (five) days of the Appointed Date, grant the Operator the right to enter
the Project Site, to execute its operation and maintenance rights, subject to the provisions of
Article 4.1.
3.2 RIGHTS AND USE OF THE PROJECT SITE
(a) The Operator shall have the right to use the Project Site for the purpose of implementing the
Project in accordance with the provisions of this Agreement.
(b) The ownership of the Project Site shall be and continue to be of the Corporation.
(c) The Operator shall not create any Encumbrance on the whole or any part of the Project Site save
and except (ask what else is required on site) as set forth and permitted under this Agreement.
(d) The Operator shall throughout the Contract Period carry activities in the Project Site as
specifically mentioned under this Operation and Maintenance Agreement and as permitted and
governed by the laws of India or the State of Maharashtra.
Operation and Maintenance of MRI Facility at YCM Hospital
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(e) The Operator shall not, without the prior written approval of the Corporation, use the Project Site
for any purpose other than for the purpose of the Project and purposes incidental or ancillary
thereto.
(f) The structural changes and/or additional equipment purchased/leased by the Operator for
providing MRI Service at Project Site has to have prior written approval from the Corporation.
(g) The Operator cannot lease and/or use the MRI Centre and its equipment listed in Schedule I as
security against any type of consideration whatsoever.
3.3 APPLICABLE PERMITS
The Operator shall obtain and maintain the Applicable Permits and adhere to Applicable Law in such
sequence as is consistent with the requirements of the Project. The Operator shall be responsible and
shall be in compliance with the terms and conditions subject to which Applicable Permits have been
issued.
3.4 EXCLUSIVITY OF THE CONTRACT
The Operator shall be the sole and exclusive person entitled to undertake the project in the project area
i.e. YCM Hospital in line with the scope of work assigned under this agreement and PCMC agrees that no
agreement permitting similar activity in project area shall be entered by PCMC during the contract period.
4 CONDITIONS PRECEDENT
4.1 RESPONSIBILITIES OF THE OPERATOR
The Operator shall fulfil the following conditions precedent within 30 (thirty) days from the Appointed
Date:
(a) The Operator shall have executed a Performance Security in favour of Corporation for an amount
of Rs10,00,000/- (Rupees Ten lakhs only) in the form of Bank Guarantee from a nationalised /
schedule bank located at Pimpri for the Project at the time of signing of the Agreement as per
format mentioned under Schedule IV.
(b) The Operator shall also have received necessary applicable permits from competent authority
under relevant laws applicable.
(c) The Operator shall have prepared and submitted to Superintendent YCM, for verification the
educational and work experience details for each of the staff employed by Operator for providing
the MRI Service through the MRI Centre and get it approved in writing from the Superintendent
as eligible for working at the MRI Centre at YCM hospital in Pimpri. Also, at time of signing of
agreement, the staff to be on regular pay roll of operator.
In case of any replacements, staff to be replaced by equal or better qualified candidates.
(d) The Operator shall receive the Commencement Certificate from the Corporation to start operation
of the MRI Centre at the YCM hospital.
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4.2 RESPONSIBILITIES OF PIMPRI CHINCHWAD MUNICIPAL CORPORATION
Corporation shall fulfil the following conditions precedent within 45 (forty five) days from the Appointed
Date:
(a) Corporation shall on its best effort basis provide support to the Operator in obtaining timely
approvals, permissions and authorisations for performance of obligations for the Project.
(b) Corporation shall grant the right to enter the Project Site to the Operator within 5 (five) daysfrom
the Appointed Date for use during the Contract Period for the purpose of the Project, free of any
charges, but subjected to the provisions of Article 4.1.
(c) Corporation shall provide to the Operator the available warranty documents of the MRI Centre.
4.3 COST OF SATISFYING THE CONDITIONS PRECEDENT
The cost of satisfying the above Conditions Precedent shall be borne by the respective Parties
responsible for satisfaction of the Conditions Precedent.
4.4 NON- FULFILMENT OF THE CONDITIONS PRECEDENT
(a) In case of non-fulfilment of the Conditions Precedent attributable to reasons beyond the control of
the Operator or Corporation, the period for satisfaction of Conditions Precedent may be extended
by mutual consent of the Operator and the Corporation.
(b) If any of the Conditions Precedent contemplated in Articles 4.1 and 4.2 has not been satisfied in
full or has not been waived, within the time stipulated or from such extended time that the Parties
may agree upon, then and in such event the Party other than the defaulting Party shall have the
right to terminate this Agreement by giving 30 (thirty) days’notice in writing to the other Party,
given at any time thereafter, but prior to such Conditions Precedent being satisfied or waived, and
if the Conditions Precedent are not satisfied or waived within such notice period, upon expiry of
such notice, this Agreement shall terminate.
(c) If the Agreement is terminated due to non-satisfaction of Conditions Precedent set forth in Article
4.1 except set forth in Article 13.2(a.f), the Operator shall not be compensated in any manner
whatsoever and the Performance Security shall be forfeited and encashed by the Corporation.
Provided that Operator would be exempted under Article 4.1(b) only when Corporation is satisfied
that the Operator has applied for availing the permissions from the respective authorities and no
response or delayed response is expected from the respective authorities
(d) If the Agreement is terminated due to non-satisfaction of Conditions Precedent set forth in Article
4.2 and Article 4.1(b), then Corporation shall release the Performance Security, Security Deposit
and Premium.
5 SUPERINTENDENT YCM
5.1 SUPERINTENDENT YCM
The Corporation shall nominate an officer of PCMC who shall act as Superintendent YCM. The
Superintendent YCM shall supervise and monitor the operation and maintenance of the Project. The
scope of work of the Superintendent YCM shall include but shall not be limited as mentioned under Article
5.2.
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5.2 SCOPE OF WORK OF THE SUPERINTENDENT YCM
a. Role of the Superintendent YCM
The Superintendent YCM is expected to facilitate the smooth implementation of the Project and
as per the terms and conditions of this Agreement. Broadly the role of the Superintendent YCM
is to review, monitor and where required by the Agreement, approve activities associated with
the implementation and operation of the Project to ensure compliance by the Operator to the
operational obligations.
b. Scope of services
The services to be provided by the Superintendent YCM are listed below. In addition, the scope
of services would also include such other functions as are required to be undertaken pursuant to
specific provisions of this Agreement.
During the period of this Agreement the Superintendent YCM would monitor, in accordance with
Good Industry Practice, the operation and maintenance activities undertaken by the Operator so
as to ensure compliance with the Operator obligations and other provisions of this Agreement.
The specific activities to be undertaken include the following:
a. Provide administration of the contract in full and in complete accordance with Applicable
Laws;
b. Conduct a general inspection of the Project at least once a month and as and when
exigencies require, to ascertain conformity to the Operator obligations;
c. The Superintendent YCM shall, in the ordinary course, maintain a record of the activities
undertaken by it in discharge of its functions and responsibilities. This would include
records in respect of the following:
i. Manpower deployed and other organisational arrangements of the Operator;
ii. Reviews of documents submitted to it by the Operator to meet its obligations as per
Article 4.1 and Article 6;
iii. Inspections undertaken and notices/ instructions issued to the Operator;
iv. Review of compliance with the commissioning requirements;
v. Force Majeure events;
vi. Breaches and defaults by the Parties;
vii. Maintain a record of the instance of deviation of Operator from its obligations till the end
of the Contract Period or as may be reasonably required and requested by Corporation or
as may be necessary to give effect to the provisions of this Agreement.
viii. Review of the operational procedure for the operation and maintenance of the MRI
equipment and delivery of the MRI Service.
ix. Review of Operator’s maintenance obligation for the MRI Centre and its equipment.
x. Shall verify and certify that all insurance taken by the Operator for the MRI Centre and its
equipment is sufficient to cover the risk of damage and is adequate as per the Good
Industry Practise.
Operation and Maintenance of MRI Facility at YCM Hospital
64
6 OPERATOR’S OBLIGATIONS
In addition to and not in derogation or substitution of any of its other obligations under this
Agreement, the Operator shall have the following obligations:
6.1 FINANCIAL OBLIGATIONS
6.1.1 Performance Security
The Operator shall, for due and punctual performance of its obligations hereunder relating to the Project,
deliver to the Corporation, simultaneously with the execution of this Agreement, a bank guarantee from a
scheduled / nationalized bank located in Pimpri acceptable to Corporation, in favour of Corporation, in the
form as set out in Schedule IV, (“Performance Security”) for an amount of Rs10,00,000/- (Rupees Ten
lakhs only). All charges, fees, costs and expenses for providing the Performance Security in the form of a
bank guarantee shall be borne and paid by the Operator.
The Operator agrees that the Performance Security shall be kept valid for a period of 10 (Ten) years and
6 (six) months from the Appointed Date, which shall cover through the Contract Period. Provided that if
the Agreement is terminated due to any event other than an Operator Event of Default, the Performance
Security if subsisting as of the Termination Date shall, subject to Corporation’s right to receive amounts, if
any, due from the Operator under this Agreement, be duly discharged and released to the Operator.
In the event of encashment of the Performance Security by the Corporation, in full or part, the Operator
shall within 30 (thirty) days of receipt of the encashment notice from Corporation provide a fresh
Performance Security or replenish the Performance Security to the original amount, as the case may be.
The provisions under this clause shall apply mutatis mutandis to such fresh Performance Security. The
Operator’s failure to comply with this provision shall constitute an Operator Event of Default which shall
entitle Corporation to terminate this Agreement in accordance with the provisions of Articles 13 hereof.
6.1.2 Outstanding municipal dues
In case operator is already a service provider or was a service provider, in any capacity in any of the
hospitals owned by PCMC and has any outstanding municipal dues in that capacity towards corporation,
he shall have to settle them first
The Operator shall pay all the outstanding municipal dues to the Corporation within 90 days from the
Appointed Date. The failure to pay such dues shall be treated as Operator event of default.
6.2 OPERATIONAL OBLIGATIONS
6.2.1 Project Implementation – O & M of MRI Centre
a. Unless otherwise permitted by Corporation, no operation of MRI Centre shall begin until the
Superintendent YCM is in place and has assumed charge.
b. The Operator shall, before commencement of operation;
i. have requisite organisation and designate and appoint suitable officers/ representatives as it
may deem appropriate to supervise the Project, to liaise with the Superintendent YCM /
Operation and Maintenance of MRI Facility at YCM Hospital
65
Corporation and to be responsible for all necessary exchange of information required
pursuant to this Agreement;
c. The Operator shall start operation of the MRI Centre within 6 (six) months after receiving
the Commencement Certificate (work order) from Corporation to start operation.
d. Operator shall maintain qualified and experienced staff at the MRI Centre for providing the MRI
Service to the Patient/s.
e. The Superintendent YCM, may, by written notice, require the Operator to suspend forthwith the
whole or any part of the operation of MRI Service, if in its reasonable opinion the same is being
carried on in a manner that is not in conformity with Good Industry Practice of maintaining
qualified staff at MRI Centre or was careless in maintenance of the equipment provided in the
MRI Centre.
f. The Operator shall provide the MRI Service from the MRI Centre at YCM hospital on 24x7 (24
hrs/day and for 7 days in a week) basis for the Contract Period.
g. The Operator shall have the right to collect the Fee as stipulated in Error! Reference source not
ound. from the date of issue of Commencement Certificate by Corporation. The Fee charged for
the MRI Service will be revised as per Article 8.2.
h. The Operator shall maintain record of patient at MRI Centre in the format prescribed by
Superintendent YCM and shall submit the same every 30 (thirty) days for verification.
i. The Operator shall intimate at least 15 (fifteen) days prior to change in staff at the MRI Centre
and get approved from the Superintendent YCM. The replaced staff should meet the requirement
as mentioned in the Schedule V of this Agreement.
j. The Operator shall assist Superintendent YCM to inspect the MRI Centre.
k. The Operator shall in good faith take due care in operation and maintenance of the equipment
provided at MRI Centre.
l. The Operator shall ensure after handing over the area as required for the new MRI machine,
Operator shall construct the following in the area provided by Corporation:
1. Toilet facility
2. Changing Room
3. Locker Room
4. Chiller Room
5. Technical Room
6. UPS Room and,
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7. Console Room
These above mentioned are pre-requisite for starting an MRI centre which shall be constructed
before start of operations.
m. The Operator shall maintain the list of services provided through the MRI Centre at all times
and the same should be available to the public and the Superintendent YCM on demand.
The Operator shall intimate and get approved from Superintendent YCM the dis-continuation of
any MRI Service listed in Error! Reference source not found.provided through the MRI Centre at
CM hospital.
Provided further, if MRI Centre service is non-operative in any of the services listed in Error!
eference source not found.for more than 7 (seven) days, Corporation shall, subject to the
provisions of Article 13.1, be entitled to terminate this Agreement and to appropriate the
Performance Security. The Operator shall pay to the Corporation Rs. 5,000/- (Rupees five
thousand only) per day as Liquidated Damages by way of demand draft towards “The
Commissioner, Pimpri Chinchwad Municipal Corporation” payable at Pimpri for the period of non-
operation. The Superintendent YCM through a written notice will indicate the period in days for
non-operation of MRI Service and the same shall be referred for computing the liquidated
damages. The start date for calculation of liquidated damages will be 3 (three) days after the non-
operation of the MRI Service.
6.2.2 Maintenance Contract
(a) The Operator shall enter into a contract with a Service Provider for the maintenance of MRI
centre equipment/ machinery during the Contract Period at its own cost and expense for:
i. Maintaining the MRI equipment detailed in 0; andfor the avoidance of doubt, it is hereby
clarified that notwithstanding the appointment of a service provider by the Operator for the
aforesaid purpose, the Operator shall be liable for the non-performance of its duties and for
the non-discharge of all its obligations and responsibilities, which it shall have towards
Corporation under this Operation and Maintenance Agreement and the appointment of
Service Provider (s) for the aforesaid purposes shall neither release nor exonerate the
Operator from its obligations hereunder, including full and timely compliance with the terms of
this Agreement. The Operator does hereby also agree and acknowledge that it shall remain
responsible for obligations performed or to be performed by the Service Provider to the same
extent as if such obligations were to be always performed by the Operator.
The Operator acknowledges and undertakes to ensure that the terms of any contract
between the Operator and the service provider shall be in conformity with the provisions of
this Operations and Maintenance Agreement and in the event of any conflict between such
contract and this Operations and Maintenance Agreement; the provisions of this Operations
and Maintenance Agreement shall prevail.
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67
(b) The Operator shall submit a copy of the maintenance contract to the Superintendent YCM and
get its written approval as being adequate for maintaining MRI Centre equipment in operational
condition at all time during the Contract Period. The Operator shall submit to the Superintendent
YCM a copy of all the payment receipt for payment made against the maintenance contract
to the Service Provider.
6.2.3 Insurance
The Operator shall at its own cost, purchase and maintain by due re-instatement or otherwise, insurance
of the MRI machine for the value equivalent to the book value of the MRI machine as on the date of
signing of this Agreement. Such insurance shall be in the name of the Corporation and at all times during
the Contract Period, the beneficiary of the insurance policy shall be the Corporation.
The Operator shall maintain a register of entry in order of premiums paid towards the Project facilities and
proof of payments made shall be submitted to the Superintendent YCM on a regular basis.
6.2.4 Application of Insurance Proceeds
Subject to the provisions of this Agreement, the proceeds of all insurance policies received shall be given
to the Corporation. The Corporation shall apply such proceeds for the purpose it is dedicated for.
6.2.5 Un-insurable Risks
If any risk, which has been previously insured, becomes un-insurable due to the fact that the insurers
have ceased to insure such a risk and therefore insurance cannot be maintained / re-instated in respect
of such risk, the Operator shall not be deemed to be in breach of its obligations regarding insurance
under this Agreement.
6.2.6 Applicable Permits
The Operator shall, in respect of the Project, procure the Applicable Permits and be in compliance thereof
at all times.
6.3 GENERAL OBLIGATIONS
The Operator shall at its own cost and expense:
a. shall provide for equipment or instrument or consumable material as deemed necessary or
appropriate in discharging the obligation of providing the MRI Services as per Good Industry
Practice. Such equipment and instrument whose ownership lies with the Operator has to be
intimated to and approved by the Superintendent YCM.
b. shall not do or permit any activity on the Project Site which may be nuisance, annoyance or
disturbance to the owners, occupiers or residents of other premises in the vicinity.
c. shall not interfere or cause damage to the properties of Corporation whether located outside or
inside the Project Site of any sort during the course of the operation or the maintenance of the
Project. For any such interference the Operator shall acquire prior written permission from
Corporation.
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68
d. shall at the expiry of the Contract Period hand back peaceful possession of the Project to
Corporation free of cost and in good operable condition in accordance with provision mentioned
under Article 14;
e. shall in a timely manner obtain all statutory approvals, permission and authorisation which
the Operator requires or is obliged to seek from the respective agencies;
f. obtain all Applicable Permits as required by or under the Applicable Law and be in compliance
thereof at all times;
g. ensure and procure that any contract relating to the Project, entered into by the Operator for
implementing the Project in accordance with this Agreement contains provisions that would entitle
a nominee of the Corporation to step into such contract/s at the Corporation’s discretion, in place
and substitution of the Operator, pursuant to the provisions of this Agreement;
h. the Operator shall not appoint any Person as its agent, by a Power of Attorney or otherwise, for
the purposes of this Agreement except its Officer or Servant;
i. procure and maintain in full force and effect, as necessary, appropriate proprietary rights,
licenses, agreements and permissions for materials, methods, processes and systems used in or
incorporated into the Project;
j. make efforts to maintain harmony and good industrial relations among the personnel employed in
connection with the performance of its obligations under this Agreement and shall be solely
responsible for compliance with all labour laws and solely liable for all possible claims and
employment related liabilities of its staff employed in relation with the Project and hereby
indemnifies the Corporation against any claims, damages, expenses or losses in this regard and
that in no case and shall for no purpose shall the Corporation be treated as employer in this
regard;
k. shall not repair the MRI equipment from anyone other than the Authorised Service Provider
during the period of maintenance contract with the Maintenance Supplier;
l. shall be responsible for all the damages/consequences, legal or otherwise for its acts or deeds or
omission during the Contract Period for operation of MRI Centre at the YCM hospital in Pimpri.
m. shall handover all the soft copies of the images and the reports to the Hospital Authority on a
decided date every year for all Medico-legal cases
n. shall arrange separately for anaesthetist if required for any of the MRI treatment. The Operator
may charge separately for such service after prior approval from Corporation.
Operation and Maintenance of MRI Facility at YCM Hospital
69
o. shall pay all the requisite taxes and charges levied by any other Government Authority as
applicable but excluding charges levied by PCMC for the operation of the MRI Centre.
6.4 NO BREACH OF OBLIGATIONS
The Operator shall not be considered to be in breach of its obligations under this Agreement nor shall it
incur or suffer any liability if and to the extent performance of any of its obligations under this Agreement
is affected by or on account of any of the following:
a. Force Majeure Event, subject to Article 12;
b. Corporation Event of Default;
c. Compliance with the instructions of the Superintendent YCM / Corporation or the directions of
any Government Agency other than instructions issued as a consequence of a breach by the
Operator of any of its obligations hereunder.
7 CORPORATION’S OBLIGATIONS
In addition to and not in derogation or substitution of any of its other obligations under this Agreement, the
Corporation shall have the following obligations:
Corporation within its purview shall:
a. Provide right to enter and use the Project Site after the Operator’s obligation in this Agreement
are met;
b. where appropriate provide on best effort basis necessary liaison to the Operator in securing
Applicable Permits;
c. Provide free of charge space for setting up new 3 tesla and 0.3 tesla MRI machine;
d. Provide free of charge covered space for changing room for the patients at MRI Centre;
e. Provide free of charge metered water8 connection at MRI centre. The cost of providing metered
water connection and payment of water consumption charges shall be borne by the Corporation;
f. Provide free of charge separate toilet area for the MRI Centre. The Operator shall construct,
operate and maintain and shall bear the expenses of the same.
g. bear the cost and provide free of charge electricity9, property tax, rent for the space for the
operation of MRI (0.3 T & 3 T) centre;
h. Observe and comply with all its obligations set forth in this Agreement
i. In case the Corporation sends patient for free MRI scan or approves concession in MRI scan then
Corporation shall bear the cost of the scan at the prevailing rates as per accepted Financial
proposal and shall compensate the charges to the operator on monthly basis.10
8Water connections, drainage, electrical wiring will be brought till the MRI unit however, necessary arrangements within unit
is the responsibility of the bidder
9The hospital has provision of generator and electricity backup, but UPS(if required by bidder) has to be procured by him at
his own cost
10In such case, Corporation may ask the operator to send details of such free treatments or treatments provided at
concessional rates on monthly basis on a decided date
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70
8 CONSIDERATION AND FEE REVISION
8.1 PAYMENTMECHANISM
The Operator shall levy a Fee to the Patients using the MRI Services. The Fee for individual items of the
MRI Services shall be as per Error! Reference source not found.of this Agreement.
All fee for MRI treatment levied to the Patients shall be collected by the Operator and such collections
shall be audited by the Corporation’s Officer at the YCM hospital.
The Operator can provide additional service related to or associated to MRI equipment, other than those
listed in Error! Reference source not found.subject to approval from the Corporation and can charge for it
nly after it has been approved in writing by the Corporation. The rates for such services shall be
determined by the Corporation.
In case the Corporation sends patient for free MRI scan or approves concession in MRI scan then
Corporation shall bear the cost of the scan at the prevailing rates as per accepted Financial proposal and
shall compensate the charges to the operator on monthly basis.11
8.2 FEE REVISION MECHANISM
The Corporation shall provide a 2 (two) percent annual escalation in the Fee for all MRI Services listed in
Error! Reference source not found.. The escalation shall be applicable from the second year (after 12
onths from the date of issue of work order). The annual escalation in Fee shall be calculated by applying
the escalation rate increase on the Fee prevalent in the previous year of the Contract Period. Any change
in Good & Service Tax (GST) during the contract period shall be compensated to the operator at actual
by escalating the fee charged to the patient
9 PROPREITORY RIGHTS
The Operator acknowledges and agrees that all rights in and to any information, material, invention and
discovery of any kind, including any and all works in any medium whatsoever that refer to, relate to,
incorporate, include, analyze or utilize such information, material, invention and discovery, or any
improvements or modifications thereto and derivations therefrom (together known as the “Proprietary
Information”), developed by the Operator and used for purposes of implementing the Project, shall be
owned solely and exclusively by Corporation. The Operator agrees and acknowledges that it shall not be
entitled to use the Proprietary Information independent of the Project or otherwise than in connection with
the Project. Corporation alone shall have all the proprietary rights on the work delivered by the Operator.
11In such case, Corporation may ask the operator to send details of such free treatments or treatments provided at
concessional rates on monthly basis on a decided date
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10 CONFIDENTIALITY
a. Each Party acknowledges that it may, in the course of performing its responsibilities under
this Agreement, have access to or acquire information, which is proprietary to or confidential
to the other Party or its affiliated companies or their clients or to third parties to whom the
other Party owes a duty of confidentiality. Any and all such information which either Party (“the
Receiving Party”) or its employees, agents, or sub-contractors have acquired or received access
to, including without limitation the "Proprietary Information" (as defined in Article 9) shall be
deemed to be confidential and proprietary information (“Confidential Information”). The Receiving
Party agrees to hold the Confidential Information in strict confidence and not to disclose such
information to any third party or to use such information for any purpose whatsoever other than as
required under the terms of this Agreement and to advise each of its employees, agents and sub-
contractors who may have access to or acquire the Confidential Information of their obligations to
keep such information confidential.
b. If Receiving Party is mandatorily required to disclose any information contained in the
Confidential Information under any applicable law or if Receiving Party receives a request to
disclose all or any part of the information contained in the Confidential Information under the
terms of (a) a valid and effective subpoena by a court of competent jurisdiction or (b) order issued
or decree by a court of competent jurisdiction, the Receiving Party shall (i) immediately notify the
other Party of the existence, terms and circumstances surrounding such a mandatory
requirement or request, (ii) consult with the other Party on the advisability of taking available legal
steps to resist or narrow such mandatory requirement or request, (iii) cooperate with the other
Party in their efforts to resist or narrow such mandatory requirement or request and (iv) if
disclosure of such information is still required, exercise its commercially reasonable efforts to
obtain an order or other reliable assurance that confidential treatment will be accorded to such
information. The other Party shall directly bear all costs associated or indemnify and keep
indemnified the Receiving Party in full on demand from and against any and all legal fees, costs
and expenses incurred in the Receiving Party's effort to comply with this provision.
c. Notwithstanding the foregoing provisions of this clause, no obligations of confidentiality shall exist
in respect of information which:
i. is at the date of this Agreement in, or at any time thereafter comes into, the public domain
other than through a breach of this Agreement by the Receiving Party; or
ii. can be shown by the Receiving Party to have been known to the Receiving Party prior to it
being disclosed to it by the Other Party; or
iii. subsequently comes into the possession of either Party from a third party which had a lawful
right to disclose such information without restriction or which is independently developed by
such third party; or
iv. is disclosed, subject to the provisions of Article 10(b) above, pursuant to legal or regulatory
requirements; or
v. the Receiving Party has written authority from the other Party to disclose.
d. Neither Party shall make any public disclosure relating to this Agreement or the subject matter of
this Agreement without the prior written consent of the other Party.
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11 INDEMNITY
a. The Operator agrees to indemnify and hold harmless Corporation and its officers and
employees (each a “Corporation Indemnified Party”) promptly upon demand at any time and
from time to time, from and against any and all losses, claims, damages, liabilities, costs
(including reasonable attorneys' fees and disbursements) and expenses (collectively, “Losses”)
to which Corporation Indemnified Party may become subject, insofar as such Losses directly
arise out of, in any way relate to, or result from:
i. any mis-statement or any breach of any representation or warranty made by Operator or
ii. the failure by Operator to fulfil any agreement, covenant or condition contained in this
Agreement, including without limitation the breach of any terms and conditions of this
Agreement by any employee or agent of the Operator or
iii. any claim or proceeding by any third party against Corporation arising out of any act, deed or
omission by the Operator.
For the avoidance of doubt, indemnification of Losses pursuant to this article shall be made in
an amount or amounts sufficient to restore each Corporation Indemnified Party to the
financial position it would have been in had the Losses not occurred.
b. Any payment made under this Agreement pursuant to an indemnity or claim for breach of any
provision of this Agreement shall be net of applicable taxes.
12 FORCE MAJEURE
12.1 FORCE MAJEURE EVENT
Force Majeure shall mean any event or circumstance or combination of events or circumstances set out
below that materially and adversely affects any Party in the performance of its obligations in accordance
with the terms of this Agreement, but only if and to the extent that such events and circumstances
pertains to the Project or has a direct effect on the operations on the Project Site, which are not within the
affected Party’s reasonable control, and/or the effects of which the affected Party could not have
prevented through prudent business practices or, through reasonable skill and care, including through the
expenditure of reasonable sums of money;
a. earthquake, flood, inundation and landslide
b. storm, tempest, hurricane, cyclone, lightning, thunder or other extreme atmospheric disturbances
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73
c. fire caused by reasons not attributable to the Operator or any of the employees, Contractors or
agents appointed by the Operator for purposes of the Project;
d. acts of terrorism;
e. strikes, labour disruptions or any other industrial disturbances not arising on account of the
acts or omissions of the Operator or the Contractor
f. War, hostilities (whether declared or not), invasion, act of foreign enemy, rebellion, riots,
weapon conflict or military actions, civil war, ionising radiation, contamination by radioactivity from
nuclear fuel, any nuclear waste, radioactive toxic explosion, volcanic eruptions, any failure or
delay of a Contractor caused by the events mentioned in this sub clause for which no offsetting
compensation is payable to the Operator by or on behalf of the Contractor
g. action of a Government Agency having Material Adverse Effect including but not limited to
i. acts of expropriation, compulsory acquisition or takeover by any Government Agency of the
Project or any part thereof or of the Operator’s or the Operator’s rights in relation to the
Project,
ii. any judgement or order of a court of competent jurisdiction or statutory authority in India
made against the Operator in any proceedings which is non-collusive and duly prosecuted by
the Operator, and
iii. any unlawful, unauthorised or without jurisdiction refusal to issue or to renew or the
revocation of any Applicable Permits, in each case, for reasons other than Operator’s breach
or failure in complying with the Project Requirements, Applicable Laws, Applicable Permits,
any judgement or order of a Governmental Agency or of any contract by which the Operator
as the case may be is bound.
h. early determination of this Agreement by Corporation for reasons of national emergency or
national security.
12.2 EXCLUSIONS FROM FORCE MAJEURE EVENT
Force Majeure shall expressly not include the following conditions, except to the extent resulting from a
Force Majeure:
a. Unavailability, late delivery or changes in cost of consumables, equipments, materials, spare
parts for the Project;
b. An indirect effect on the operations of the Project
c. Non- performance resulting from normal wear and tear typically experienced in a Project of this
kind; and non- performance caused by, or connected with, the non-confirming party’s (a)
negligent or intentional acts, errors or omission (b) failure to comply with any of the Laws of India,
or (c) breach of, or default under this Agreement.
12.3 NOTICE OF FORCE MAJEURE EVENT
a. As soon as practicable and in any case within 7 (seven) days of the date of occurrence of a Force
Majeure Event or the date of knowledge thereof, the Affected Party shall notify Corporation/
Superintendent YCM if applicable and the other party of the same setting out, inter alia, the
following in reasonable detail:
i. the nature and extent of the Force Majeure Event;
ii. the estimated Force Majeure Period;
iii. the nature of and the extent to which, performance of any of its obligations under this
Agreement is affected by the Force Majeure Event;
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iv. the measures which the Affected Party has taken or proposes to take to alleviate/mitigate the
impact of the Force Majeure Event and to resume performance of such of its obligations
affected thereby; and
v. any other relevant information concerning the Force Majeure Event, and /or the rights
and obligations of the Parties under this Agreement.
b. As soon as practicable and in any case within 5 (five) days of notification by the Affected Party in
accordance with the preceding article 12.3 (a), the Parties shall along with Corporation/
Superintendent YCM if applicable meet and hold discussions in good faith and where necessary
conduct physical inspection / survey of the MRIcentre in order to:
i. assess the impact of the underlying Force Majeure Event,
ii. to determine the likely duration of Force Majeure Period and,
iii. to formulate damage mitigation measures and steps to be undertaken by the Parties for
resumption of obligations, the performance of which shall have been affected by the
underlying Force Majeure Event.
c. The Affected Party shall during the Force Majeure Period provide to the other Party regular (not
less than weekly) reports concerning the matters set out in the preceding article 12.3 (b) as also
any information, details or document, which the other Party may reasonably require.
12.4 PERFORMANCE OF OBLIGATIONS
If the Affected Party is rendered wholly or partially unable to perform any of its obligations under this
Agreement because of a Force Majeure Event, it shall be excused from performance of such obligations
to the extent it is unable to perform the same on account of such Force Majeure Event provided that:
a. due notice of the Force Majeure Event has been given as required by the preceding Article 12.3;
b. the excuse from performance shall be of no greater scope and of no longer duration than is
necessitated by the Force Majeure Event;
c. the Affected Party has taken all reasonable efforts to avoid, prevent, mitigate and limit damage, if
any, caused or is likely to be caused to the Project as a result of the Force Majeure Event and to
restore the Project, in accordance with the Good Industry Practice and its relative obligations
under this Agreement;
d. when the Affected Party is able to resume performance of its obligations under this Agreement, it
shall give to the other Party and the Superintendent YCM written notice to that effect and shall
promptly resume performance of its obligations hereunder, the non-issue of such notice being no
excuse for any delay for resuming such performance;
e. the Affected Party shall continue to perform such of its obligations which are not affected by the
Force Majeure Event and which are capable of being performed in accordance with this
Agreement; and
f. any insurance proceeds received shall be entirely applied to repair, replace or restore the assets
damaged on account of the Force Majeure Event, or in accordance with Good Industry Practice.
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12.5 TERMINATION DUE TO FORCE MAJEURE EVENT
a. Termination
If a Force Majeure Event, excluding events described under Articles 12.1 (g) and 12.1 (h)
continues or is in the reasonable judgement of the Parties likely to continue beyond a period of
120 days, the Parties may mutually decide to terminate this Agreement or continue this
Agreement on mutually agreed revised terms. If the Parties are unable to reach an agreement in
this regard, the Affected Party shall after the expiry of the said period of 120 days, be entitled to
terminate this Agreement.
Notwithstanding anything inconsistent contained in this Agreement, if a Force Majeure Event is
an event described under Articles 12.1 (g) or 12.1 (h), and the same subsists for a period
exceeding 365 days, then either Party shall be entitled to terminate this Agreement.
Provided that Corporation may at its sole discretion have the option to terminate this Agreement
any time after the occurrence of any event described under Articles 12.1 (g) or 12.1 (h).
b. Termination Notice
If any Party, having become entitled to do so, decides to terminate this Agreement pursuant to
the preceding sub clause 12.5(a), it shall issue Termination Notice setting out;
i. in sufficient detail the underlying Force Majeure Event;
ii. the Termination Date which shall be a date occurring not earlier than 60 days from the date of
Termination Notice;
iii. the estimated Termination Payment including the details of computation thereof and;
iv. any other relevant information.
c. Obligation of Parties
Following issue of Termination Notice by either Party, the Parties shall promptly take all such
steps as may be necessary or required to ensure that;
i. the Termination Payment, if any, payable by Corporation in accordance with the following sub
clause 12.5(d) is paid to the Operator on the Termination Date and
ii. the Project is handed back to Corporation by the Operator on the Termination Date.
d. Termination Payment
Upon Termination of this Agreement due to a Force Majeure Event, Termination Payment shall be
made to the Operator by Corporation in accordance with the following:
a. If the Termination is due to a Force Majeure Event, described under Articles 12.1 the Operator
shall be entitled to receive and appropriate the proceeds of any amounts under the Performance
Security and/or annual Premium.
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i. Provided Corporation shall be entitled to deduct the amount due from Performance Security
and/ or Security Deposit as per the provisions mentioned this Agreement before the Operator
can appropriate.
12.6 LIABILITY FOR OTHER LOSSES, DAMAGES ETC.
Save and except as expressly provided in this Article 12, neither Party hereto shall be liable in any
manner whatsoever to the other Party in respect of any loss, damage, cost, expense, claims, demands
and proceedings relating to or arising out of occurrence or existence of any Force Majeure Event.
13 EVENTS OF DEFAULT AND TERMINATION
13.1 EVENTSOFDEFAULT
Event of Default shall mean either Operator Event of Default or the Corporation Event of Default or both
as the context may admit or require.
a. Operator Event of Default
Any of the following events shall constitute an Event of Default by the Operator ("Operator Event
of Default") unless such event has occurred as a result of one or more reasons set out under No
Breach of Obligations mentioned under Article 6.4
a. The Operator subject to Article 4.1(b) has failed to start operation by providing the MRI
Service at the Project Site with 30 (thirty) days of receiving written approval from Corporation
to start the operation for any reason whatsoever;
b. The Operator is found interfering or causing damage to the properties of the Corporation or
others during the Contract Period;
c. The Operator has failed to provide Performance Security as per the Article 6.1.1;
d. The Operator has failed to provide annual Premium every year.
e. The Operator has failed to pay any outstanding municipal dues issued by the Corporation as
per the Article 6.1.2
f. The Operator has charged to Patients more than the Fee mentioned in Error! Reference
ource not found., without the prior written permission from the Corporation;
g. The Operator has failed to provide the MRI Services to the Patient(s) for more than 5 (five)
aggregated days in a month;
h. At any time from the Appointed Date, the Operator fails to carry out the maintenance of the
equipment at MRI Centre and has failed to rectify the same within 10 (ten) days from the date
of Preliminary Notice;
i. The Operator commences MRI Service operations prior to the receipt of Commencement
Certificate from Corporation;
j. Any information related to staff capability detailed in Schedule V or related to insurance of the
MRI Centre or related to insurance proceed is found false or misleading and the same has
not been rectified within 15 (fifteen) days from the date of Preliminary Notice;
k. A resolution for voluntary winding up has been passed by the shareholders of the Operator;
l. Any petition for winding up of the Operator has been admitted and liquidator or provisional
liquidator has been appointed or the Operator has been ordered to be wound up by Court of
competent jurisdiction, except for the purpose of amalgamation or reconstruction with the
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prior consent of Corporation, provided that, as part of such amalgamation or reconstruction
and the amalgamated or reconstructed entity has unconditionally assumed all surviving
obligations of the Operator under this Agreement;
m. The Operator has abandoned the Project;
n. The Operator has unlawfully repudiated this Agreement or has otherwise expressed an
intention not to be bound by this Agreement;
o. The Operator has suffered an attachment levied on any of its assets which has caused or is
likely to cause a Material Adverse Affect on the Project and such attachment has continued
for a period exceeding 90 (ninety) days.
p. The Operator has not paid the liquidation damages as per Article 6.2.1;
b. Corporation Event of Default
Any of the following events shall constitute an event of default by Corporation ("Corporation Event
of Default”), when not caused by Operator Event of Default or Force Majeure Event
a. The Operator has not received the right to enter the Project Site from Corporation within 30
(thirty) days from the Appointed Date subjected to the condition of Article 4.1;
b. The Corporation is in material breach of any of its obligations under this Agreement and has
failed to cure such breach within 60 (sixty) days of receipt of notice thereof issued by the
Operator;
c. The Corporation has failed to release the Fee collected for the MRI service provided by the
Operator to Patients for more than 60 (sixty) days; provided that such receivables by the
Operator are subjected to any dispute or written notice issued by the Corporation in relation
to the Project or MRI Services.
d. The Corporation has unlawfully repudiated this Agreement or otherwise expressed its
intention not to be bound by this Agreement;
e. Any representation made or warranties given by the Corporation under this Agreement has
been proved to be false or misleading.
13.2 TERMINATION DUE TO EVENT OF DEFAULT
a. Termination for Operator Event of Default
i. Without prejudice to any other right or remedy which Corporation may have in respect
thereof under this Agreement, upon the occurrence of a Operator Event of Default,
Corporation shall be entitled to terminate this Agreement in the manner as set out under
Article 13.213.2 (ii)
ii. If Corporation decides to terminate this Agreement pursuant to preceding clause 13.2 a
(i), it shall in the first instance issue Preliminary Notice to the Operator. Within 30 (thirty)
days of receipt of the Preliminary Notice, the Operator shall submit to Corporation in
sufficient detail, the manner in which it proposes to cure the underlying Event of Default if
any (the “Operator's Proposal to Rectify”). In case of non-submission of the Operator's
Proposal to Rectify within the said period of 30 (thirty) days, the Corporation shall be
entitled to terminate this Agreement by issuing Termination Notice.
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If the Operator's Proposal to rectify is submitted within the period stipulated thereof, the
Operator shall have further period of 30 (thirty) days to remedy / cure the underlying
Event of Default (“Cure Period”). If, however the Operator fails to remedy / cure the
underlying Event of Default within such further period allowed, Corporation shall be
entitled to terminate this Agreement, by issue of Termination Notice.
b. Termination for Corporation Event of Default
i. Without prejudice to any other right or remedy which the Operator may have in respect
thereof under this Agreement, upon the occurrence of Corporation Event of Default, the
Operator shall be entitled to terminate this Agreement by issuing Termination Notice.
ii. If the Operator decides to terminate this Agreement pursuant to preceding clause 13.2 b
(i) it shall in the first instance issue Preliminary Notice to Corporation. Within 45 (forty
five) days of receipt of Preliminary Notice, Corporation shall forward to the Operator its
proposal to remedy/ cure the underlying Event of Default ("Corporation Proposal to
Rectify”). In case of non-submission of Corporation Proposal to Rectify within the period
stipulated therefore, Operator shall be entitled to terminate this Agreement by issuing
Termination Notice.
iii. If Corporation Proposal to Rectify is forwarded to the Operator within the period stipulated
therefore, Corporation shall have further period of 30 (thirty) days to remedy / cure the
underlying Event of Default. If, however Corporation fails to remedy / cure the underlying
Event of Default within such further period allowed, the Operator shall be entitled to
terminate this Agreement by issuing Termination Notice.
c. Termination Notice
If a Party having become entitled to do so decides to terminate this Agreement pursuant to the
preceding Sub-Article 13.2 (a) or (b), it shall issue Termination Notice setting out:
i. in sufficient detail the underlying Event of Default;
ii. the Termination Date which shall be a date occurring not earlier than 60 (sixty) days from
the date of Termination Notice;
iii. the estimated termination payment including the details of computation thereof; and,
iv. any other relevant information.
d. Obligation of Parties
Following issue of Termination Notice by either Party, the Parties shall promptly take all such
steps as may be necessary or required to ensure that;
a. until Termination the Parties shall, to the fullest extent possible, discharge their
respective obligations so as to maintain the continued operation of the Project;
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b. the termination payment, if any, payable by Corporation in accordance with the following
Sub-Article 13.2(f) is paid to the Operator on the Termination Date; and
c. the Project is handed back to Corporation as instructed by Corporation, by the
Operator on the Termination Date along with any payment that may be due by the
Operator to the Corporation.
e. Withdrawal of Termination Notice
Notwithstanding anything inconsistent contained in this Agreement, if the Party who has been
served with the Termination Notice cures the underlying Event of Default to the satisfaction of
the other Party at any time before the Termination occurs, the Termination Notice shall be
withdrawn by the Party which had issued the same.
Provided that the Party in breach shall compensate the other Party for any direct costs /
consequences occasioned by the Event of Default, which caused the issue of Termination
Notice
f. Termination Payments
a. If the Agreement is terminated due to Operator Event of Default, the Operator shall not
be entitled to receive any termination payment from Corporation and the Performance
Security shall be invoked by the Corporation.
b. If the Agreement is terminated due to Corporation Event of Default, the Operator shall
receive from the Corporation, the Performance Security if subsisting till the date of
termination of this Agreement.
i. Provided Corporation shall be entitled to deduct the amount due from Performance
Security and Security Deposit as per the provisions mentioned this Agreement before
the Operator can appropriate.
13.3 RIGHTS OF CORPORATION ON TERMINATION
a. Upon Termination of this Agreement for any reason whatsoever, Corporation shall upon
making the Termination Payment, if any, to the Operator, have the power and authority to:
i. enter upon and take possession and control of the Project forthwith;
ii. prohibit the Operator and any person claiming through or under the Operator from
entering upon / dealing with the Project;
b. Notwithstanding anything contained in this Agreement, Corporation shall not, as a
consequence of Termination or otherwise, have any obligation whatsoever including but not
limited to obligations as to compensation for loss of employment, continuance or
regularisation of employment, absorption or re-employment on any ground, in relation to
any person in the employment of or engaged by the Operator/ contractor in connection with
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the Project, and the hand back of the Project Site by the Operator to Corporation shall be
free from any such obligation.
c. Notwithstanding anything contained in this Agreement, Corporation shall not, as a
consequence of Termination or otherwise, have any obligation whatsoever including
but not limited to obligations as to compensate for act or deed of the Operator during
the Contract Period.
13.4 ACCRUED RIGHTS OF PARTIES
Notwithstanding anything to the contrary contained in this Agreement, Termination pursuant to any of the
provisions of this Agreement shall be without prejudice to accrued rights of either Party including its right
to claim and recover money damages and other rights and remedies which it may have in law or contract.
The rights and obligations of either Party under this Agreement, including without limitation those relating
to the Termination Payment, shall survive the Termination but only to the extent such survival is
necessary for giving effect to such rights and obligations.
13.5 RIGHTS OF OPERATOR ON TERMINATION
Upon termination of this agreement for any reason whatsoever, the Operator shall upon making the
termination payment, if any to the Corporation have the Power and Authority to;
a. Receive the movable equipment and consumable purchased and owned by the Operator during
the Contract Period provided that prior approval of the Superintendent YCM was taken.
b. Receive compensation for immovable property, constructed or installed during the Contract
Period provided that prior approval of the Superintendent YCM was taken before the construction
or installation of immovable property.
14 OBLIGATIONS AND RIGHTS AT THE END OF CONTRACT PERIOD
14.1 OPERATOR’S OBLIGATIONS
i. The Operator shall on the date of expiry or termination of the Contract Period, hand back the
Project to Corporation in good operable condition as per terms of this Agreement and Operator
agrees that Corporation shall not be required to issue any notice to Operator for handover upon
such termination or expiry of the Contract Period.
ii. At least 6 (six) months before the expected expiry of the Contract Period, a joint inspection of the
Project shall be undertaken by Corporation, Operator and Superintendent YCM. Corporation and
Superintendent YCM shall, within 15 (fifteen) days of such inspection prepare and furnish to the
Operator a list of works/ jobs (“Project Handback Requirements”), if any, to be carried out so as to
conform to this Agreement. The Operator shall promptly undertake and complete such works/
jobs at least 3 (three) months prior to the expected expiry of the Contract Period and ensure that
the Project continues to meet such requirements until the same are handed back to Corporation.
iii. The Operator hereby acknowledges Corporation’s rights specified in Article 13.3 and Article
14.2(14.2) enforceable against it upon the expiry and Termination and its corresponding
obligations arising there from. The Operator undertakes to comply with and discharge promptly all
such obligations.
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iv. The Operator shall not remove the immovable improvements at the MRI centre which shall
become the property of PCMC. The Operator shall be free to remove its MRI Machine (3T) and
its associated equipment, hardware and consumables only from the MRI Centre.
14.2 CORPORATION’S RIGHTS
i. Corporation shall have the discretionary right to enter into an Operation and Maintenance
Contract with the existing Operator or any other operator of its choice at the expiry or termination
of the Contract Period based on the broad principles of this Agreement.
ii. It is expressly agreed that upon the expiry or termination of the Contract Period the Operator and
any person claiming through or under the Operator are prohibited from having access to or
entering upon the Project Site and dealing with or any part thereof and Corporation shall be
entitled to prevent any such access or entry;
iii. After the expiry or Termination of the Agreement, the continued occupation or use of Project Site
by the Operator shall be considered as illegal and unauthorised occupation upon the property of
Corporation and Operator shall be liable to pay Liquidated Damages to Corporation for an
amount of Rs. 50,000 (Rs. Fifty Thousand only) per day till the date of eviction of the Operator.
Further, to the Liquidated damages, the Performance Security if subsisting shall be en-cashed.
iv. Corporation shall not notify and is not obliged to notify the Operator about the action to takeover
the Project on the date of the expiry of the Contract Period and Corporation shall not in any
manner whatsoever be liable for any liabilities, claims, damages, losses, etc arising from such
action for takeover of Project.
15 DISPUTE RESOLUTION
Save where expressly stated to the contrary in this Agreement, any dispute, difference or controversy of
whatever nature between the Parties, howsoever arising under, out of or in relation to this Agreement
shall in the first instance be referred to the Medical Health Officer of PCMC.
In the event the dispute remains unresolved, then the same shall be referred to a committee chaired by
the Commissioner of PCMC and comprising of the Internal Auditor of PCMC, the Chief Accounts Officer
of PCMC, the Medical Health Officer of PCMC. The decision of this committee shall be final and binding
on the Parties.
Pending the decision on a dispute the Parties shall continue to perform their respective obligations under
this Agreement without prejudice to a final adjustment in accordance with such resolution.
16 REPRESENTATIONS AND WARRANTIES
16.1 REPRESENTATIONS AND WARRANTIES OF THE OPERATOR
The Operator represents and warrants to Corporation that:
a. it is duly organised, validly existing and in good standing under the laws of India;
b. it has full power and authority to execute, deliver and perform its obligations under this
Agreement and to carry out the transactions contemplated hereby;
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c. it has taken all necessary corporate and other action under Applicable Laws and its constitutional
documents to authorise the execution, delivery and performance of this Agreement;
d. it has the financial standing and capacity to undertake the Project;
e. this Agreement constitutes its legal, valid and binding obligation enforceable against it in
accordance with the terms hereof;
f. the execution, delivery and performance of this Agreement will not conflict with, result in the
breach of, constitute a default under or accelerate performance required by any of the terms of
the Operator's Memorandum and Articles of Association or any Applicable Laws or any covenant,
agreement, understanding, decree or order to which it is a party or by which it or any of its
properties or assets are bound or affected;
g. there are no actions, suits, proceedings or investigations pending or to the Operator's knowledge
threatened against it at law or in equity before any court or before any other judicial, quasi judicial
or other authority, the outcome of which may constitute Operator Event of Default or which
individually or in the aggregate may result in Material Adverse Effect;
h. it has no knowledge of any violation or default with respect to any order, writ, injunction or any
decree of any court or any legally binding order of any Government Agency which may result in
Material Adverse Effect;
i. it has complied with all Applicable Laws and has not been subject to any fines, penalties,
injunctive relief or any other civil or criminal liabilities which in the aggregate have or may have
Material Adverse Effect;
j. no representation or warranty by the Operator contained herein or in any other document
furnished by it to Corporation or to any Government Agency in relation to Applicable Permits
contains or will contain any untrue statement of material fact or omits or will omit to state a
material fact necessary to make such representation or warranty not misleading;
k. no bribe or illegal gratification has been paid or will be paid in cash or kind by or on behalf of the
Operator to any person to procure the rights for the operation and maintenance of the Project.
a. Without prejudice to any express provision contained in this Agreement, the Operator
acknowledges that prior to the execution of this Agreement, the Operator has after a
complete and careful examination made an independent evaluation of the Project and the
information provided by the Corporation, and has determined to its satisfaction the nature
and extent of risks and hazards as are likely to arise or may be faced by the Operator in the
course of performance of its obligations hereunder.
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l. The Operator also acknowledges and hereby accepts the risk of inadequacy, mistake or error in
or relating to any of the matters set forth above and hereby confirms that Corporation shall not be
liable for the same in any manner whatsoever to the Operator.
16.2 REPRESENTATIONS AND WARRANTIES OF CORPORATION
CORPORATION REPRESENTS AND WARRANTS TO THE OPERATOR THAT:
a. Corporation has the full power and authority to grant the rights for operation and maintenance
of the Project;
b. Corporation has taken all the necessary action to authorise the execution, delivery and
performance of this Agreement;
c. This Agreement constitutes Corporation’s legal, valid and binding obligation enforceable
against it in accordance with the terms hereof;
d. There are no suits or other legal proceedings pending or threatened against Corporation in
respect of the Project.
16.3 OBLIGATION TO NOTIFY CHANGE
In the event that any of the representations or warranties made / given by a Party ceases to be true or
stands changed, the Party who had made such representation or given such warranty shall promptly
notify the other within 30 (thirty) days of the same.
17 MISCELLANEOUS
17.1 ASSIGNMENT AND CHARGES
a. The Operator shall not assign in favour of any person this Agreement or the rights, benefits and
obligations hereunder save and except with prior consent of the Corporation.
17.2 INTEREST AND RIGHT OF SET OFF
a. Any sum which becomes payable under any of the provisions of this Agreement by one Party to
the other Party shall, if the same be not paid within the time allowed for payment thereof, shall
be deemed to be a debt owed by the Party responsible for payment thereof to the Party entitled
to receive the same. Such sum shall until payment thereof carry interest at prevailing
Benchmark prime lending rate (SBAR) of State Bank of India per annum plus 2% from the due
date for payment thereof until the same is paid to or otherwise realised by the Party entitled to
the same. Without prejudice to any other right or remedy that may be available under this
Agreement or otherwise under law, the Party entitled to receive such amount shall also have
the right of set off.
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b. Provided the stipulation regarding interest for delayed payments contained in this Article 17.2
shall neither be deemed nor construed to authorise any delay in payment of any amount due by
a Party nor be deemed or construed to be a waiver of the underlying breach of payment
obligations.
17.3 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by the laws of India. The Courts at Pune / Pimpri shall have jurisdiction
over all matters arising out of or relating to this Agreement.
17.4 WAIVER
a. Waiver by either Party of any default by the other Party in the observance and performance of
any provision of or obligations under this Agreement:
i. shall not operate or be construed as a waiver of any other or subsequent default hereof or
of other provisions or obligations under this Agreement;
ii. shall not be effective unless it is in writing and executed by a duly authorised representative
of such Party; and
iii. shall not affect the validity or enforceability of this Agreement in any manner.
b. Neither the failure by either Party to insist on any occasion upon the performance of the terms,
conditions and provisions of this Agreement or any obligation hereunder nor time or other
indulgence granted by a Party to the other Party shall be treated or deemed as waiver / breach
of any terms, conditions or provisions of this Agreement.
17.5 SURVIVAL
Termination of this Agreement
a. shall not relieve the Operator, the Corporation of any obligations already incurred hereunder
which expressly or by implication survives Termination hereof, and
b. except as otherwise provided in any provision of this Agreement expressly limiting the liability of
either Party, shall not relieve either Party of any obligations or liabilities for loss or damage to
the other Party arising out of or caused by acts or omissions of such Party prior to the
effectiveness of such Termination or arising out of such Termination.
17.6 AMENDMENTS
This Agreement and the Schedules together constitute a complete and exclusive understanding of the
terms of the Agreement between the Parties on the subject hereof and no amendment or modification
hereto shall be valid and effective unless agreed to by all the Parties hereto and evidenced in writing.
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17.7 NOTICES
Unless otherwise stated, notices to be given under this Agreement including but not limited to a
notice of waiver of any term, breach of any term of this Agreement and termination of this
Agreement, shall be in writing and shall be given by hand delivery, recognised international courier,
mail, telex or facsimile transmission and delivered or transmitted to the Parties at their respective
addresses set forth below:
If to the Corporation:
Authorised Representative
The Corporation
__________
__________
If to the Operator:
Authorised Representative,
___________________
Or such address, telex number, or facsimile number as may be duly notified by the respective Parties
from time to time, and shall be deemed to have been made or delivered
i. in the case of any communication made by letter, when delivered by hand, by recognised
international courier or by mail (registered, return receipt requested) at that address, and
ii. in the case of any communication made by telex or facsimile, when transmitted properly
addressed to such telex number or facsimile number.
17.8 SEVERABILITY
If for any reason whatsoever any provision of this Agreement is or becomes invalid, illegal or
unenforceable or is declared by any court of competent jurisdiction or any other instrumentality to be
invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall not
be affected in any manner, and the Parties shall negotiate in good faith with a view to agreeing upon one
or more provisions which may be substituted for such invalid, unenforceable or illegal provisions, as
nearly as is practicable. Provided failure to agree upon any such provisions shall not be subject to dispute
resolution under this Agreement or otherwise.
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17.9 LANGUAGE
All notices required to be given under this Agreement and all communications, documentation and
proceedings which are in any way relevant to this Agreement shall be in writing and in English language.
17.10 EXCLUSION OF IMPLIED WARRANTIES ETC
This Agreement expressly excludes any warranty, condition or other undertaking implied at law or by
custom or otherwise arising out of any other agreement between the Parties and any representation by
any Party not contained in a binding legal agreement executed by the Parties.
17.11 COUNTER PARTS
This Agreement may be executed in six counterparts, each of which when executed and delivered shall
constitute an original of this Agreement but shall together constitute one and only the Agreement.
IN WITNESS WHEREOF THE, PARTIES HAVE EXECUTED AND DELIVERED THIS AGREEMENT AS
OF THE DATE FIRST ABOVE WRITTEN.
SIGNED SEALED AND DELIVERED
For and on behalf of Corporation by:
(Signature)
(Name)
(Designation)
For and on behalf of OPERATOR by:
(Signature)
(Name)
(Designation)
In the presence of:
1)
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2)List of equipment’sat Project Site for existing 0.3T MRI machine
Operational Equipment
1. Gantry
2. MRI Unit (0.3 Tesla machine HITACHI ERIS 2.0)
3. Operator Console
4. Laser Camera
5. Receivers Coils (6 numbers)
6. UPS and Batteries
7. Air Conditioner (2 numbers)
Other Equipment
1. Electrical connections points
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Schedule I. The specifications of existing 0.3T MRI Machine
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Schedule II. Scope of Work
The scope of work for the Project is as follows:
Operational Work Overview
1. General Guidelines –
a. Operator will purchase and install the new 16 Channel – 3.0 Tesla machine and operate &
maintain the machine New (3.0 Tesla) for the period of 10 (Ten) years stating from the date of
work order.
b. The operator has to operate & maintain the old 0.3 Tesla Machine at the YCM MRI Centre for a
minimum period of 5 years from the date of work order. After which the operator may decide to
discontinue the operation and maintenance of 0.3 T MRI machine.
c. The new 16 Channel – 3.0 Tesla machine shall have the necessary applications and minimum
hardware requirements as mentioned in the Schedule VI of the agreement.
d. The Operator shall provide the MRI Service to the Patients on a 24 hours basis throughout the
Contract Period. The Operator shall carry out all the activities as deemed necessary according
to the Good Industry Practice of providing MRI Service to the Patient. The Operator shall at its
own cost provide the consumables for providing the MRI Service.
e. PCMC will bear the cost and provide free of charge water12
supply, electricity13
, property tax
and rent of space for the operation of MRI Centre (0.3 T and 3 T) at YCM Hospital.
f. PCMC hall provide the required space for installation and operation of MRI services for 3T MRI
Machine.
g. The scope of work of the Operator will include purchasing new machine of 16 Channel – 3.0
Tesla, installing and operating and maintaining both the machines (Old and New) in
accordance with the provision of Agreement.
a) The Operator will have to construct a toilet facility, changing room, locker room,
chiller room, technical room, UPS room and console room in the space provided for
the new 3 tesla machine.
b) Similar facility is available for 0.3T MRI machine which needs to be operated and
maintained for minimum 5 year period.
h. The Contract Period will be for 10 (Ten) years which will be renewed on satisfactory
performance demonstrated by operator in the following areas:
a) Up to 90% up time
b) Reports shall be handed over to the patients within 24 hours, while in case of
emergency reports to be submitted in 1 hour
12Water connections, drainage, electrical wiring will be brought till the MRI unit however, necessary arrangements within unit
is the responsibility of the bidder
13The hospital has provision of generator and electricity backup, but UPS(if required by bidder) has to be procured by him at
his own cost
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2. MRI Service procedure – The MRI Service shall provide adequate no. of films (plastic film) / contrast
consumables required as per industry practice which shall be monitored by Medical Superintendent
from time to time.
3. Regular operational activity – The Operator shall follow the following guidelines for operating the
MRI Centre and shall carry all additional activities as deemed necessary for operating the MRI
Centre:
a. Operator shall appoint competent persons for operating the MRI equipment and shall observe
due care in using the MRI equipment.
b. Shall provide guidelines to the Patient about the procedure followed for MRI.
c. Shall maintain adequate records related to providing the MRI Service.
d. Shall maintain due hygiene at the MRI Centre as per Good Industry Practice.
Management work overview
4. Management activity – Corporation requires the Operator shall carry out the following managerial
activity during the Contract Period but is no way limited to these guidelines and shall carry all
additional activities as deemed necessary for managing the MRI Centre:
a. Shall maintain sufficient and qualified staff at all time at the Project Site.In case of replacements,
shall have to replace the staff by equal or better candidates.
b. Shall maintain at all times the necessary approvals and permissions required for operating the
MRI Centre.
c. Shall address all issues legal or otherwise arising due to the operation of MRI Service.
d. Shall coordinate with the Superintendent YCM as per the terms, condition and obligation of this
Agreement.
e. Shall provide all information related to the operation of MRI Centre required during inspection by
the Superintendent YCM or by any Medical Authority in India.
f. Shall coordinate with the Superintendent YCM in resolving any dispute or difference in opinion on
operation and maintenance of the MRI Centre.
g. Shall pay all bills and financial liability on time related to the operation and maintenance of the
MRI Centre. Delay in payment of bills will attract a penalty of Rs. 5000 per day.
h. PCMC shall levy penalty of Rs.2000 per instance of non-availability of manpower or non-
functioning of the equipment for providing MRI services or MRI services not adhering to good
industry practices resulting in complaints from the patients.
i. The operator shall take all the necessary government permissions.
Maintenance Work Overview
5. Maintenance activity – Corporation requires the Operator to carry out the following activity as part of
Maintenance activity during the Contract Period but is no way limited to these guidelines and shall
carry all additional activities as deemed necessary for maintaining the MRI Centre:
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a. Shall carry out regular preventive and breakdown maintenance on time of all the electrical
equipment’s and fixture so as to ensure smooth operation of providing MRI Service.
b. Shall maintain at its own cost all supplies of equipment’s and consumables as may be required
for providing the MRI Service as per Good Industry Practice.
c. Shall appoint an experienced and qualified Service Provider for all equipment at MRI Centre
and carry out all preventive and break down maintenance activities on time for the continuous
operation of the MRI Centre.
d. Shall have signed Memorandum of Association with Original equipment manufacturer (OEM) for
Annual Maintenance Contract, provide documentary proof of same.
Type of MRI Scan
6. The operator shall ensure that the following MRI Services shall be made available at the MRI Centre.
Sr.
No.
List of MRI Services
1 MRI Head
2 MRI Orbits
3 MRI Nasopharynx and PNS
4 MRI Neck
5 MRI Shoulders Single Joint
6 MRI Shoulders Both Joint
7 MRI Wrist Single Joint
8 MRI Wrist both Joint
9 MRI Knee Single Joint
10 MRI Knee both Joint
11 MRI Ankle Single
12 MRI Ankle Both
13 MRI Hip
14 MRI Pelvis
15 MRI Extremities (Arm/ Forearm/ Thigh/ Leg)
16 MRI Temporomandibular Single Joint
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Sr.
No.
List of MRI Services
17 MRI Temporomandibular both Joint
18 MR Temporal Bone / Inner Ear
19 MRI Abdomen
20 MRI Angiography
21 MRI Spine Screening
22 MRI Chest
23 MRI Cervical/ Cervico Dorsal Spine
24 MRI Dorsal/ Dorso Lumbar Spine
25 MRI Lumber/ Lumbo-Sacral Spine
26 MRI Breast
27 MRI Thorax
28 MRI Venography
29 Whole body MRI (For oncological workup)
30 MR Enteroclysis
31 MR Cholecysto-pancreatography
32 MR for Salivary Glands with Sialography
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Schedule IV: Schedule of rates for MRI services
Sr.
No.
Services Rate (in Rupees)
Without Contrast With Contrast
1 MRI (3 T) Rate as per accepted
financial proposal
Rate as per accepted
financial proposal
2 MRI (0.3 T) Rate as per accepted
financial proposal
Rate as per accepted
financial proposal
3 Anaesthesia Rs.500 per patient 14
Rs.500 per patient
14The rate is for the first year, to be modified taking into account yearly escalation as mentioned in the agreement
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Schedule IV. Proforma of Performance Security
(Proforma of Bank Guarantee)15
THIS DEED OF GUARANTEE executed on this the ___________day of _______________at
__________________ by _______________(Name of the Bank) having its Registered office at
__________________ hereinafter referred to as “the Guarantor” which expression shall unless it be
repugnant to the subject or context thereof include successors and assigns;
In Favour of
Pimpri Chinchwad Municipal Corporation (hereinafter called “Corporation”), having its principal office at
Pimpri Chinchwad Main Building, Pune Mumbai Road, Pimpri – 411018, Maharashtra which expression
shall unless it be repugnant to the subject or context thereof include its, successors and assigns;
Whereas
By the Operation and Maintenance Agreement (“the Operation and Maintenance Agreement”) being
entered into between Corporation and ____, a company incorporated under the Companies Act, 2013,
having its registered office at ______________, (“the Operator”), the Operator has been granted the
rights to operate and maintain MRI Centre at YCM hospital in Pimpri (hereinafter referred to as “the
Project”).
A. In terms of Article 6.1.1 of the Operation and Maintenance Agreement, the Operator is required to
furnish to Corporation, an unconditional and irrevocable bank guarantee for an amount of Rs.
_________ (Rupees ___________ only) as security for due and punctual performance / discharge of
its obligations under the Operation and Maintenance Agreement.
B. At the request of the Operator, the Guarantor has agreed to provide bank guarantee, being these
presents guaranteeing the due and punctual performance / discharge by the Operator of its
obligations relating to the Project.
NOW THEREFORE THIS DEED WITNESSETH AS FOLLOWS:
Capitalised terms used herein but not defined shall have the meaning assigned to them respectively in
the Operations and Maintenance Agreement.
1. The Guarantor hereby irrevocably guarantees the due and punctual performance by M/s
____________________ (hereinafter called “the Operator”) of all its obligations relating to the Project
and in connection with achievement of obligations of the Operator in accordance with the Operation
and Maintenance Agreement.
15
To be issued by a Scheduled Bank in India
Operation and Maintenance of MRI Facility at YCM Hospital
100
2. The Guarantor shall, without demur, pay to Corporation sums not exceeding in aggregate Rs.
________/- (Rupees _________ only), within 5 (five) calendar days of receipt of a written demand
thereof from Corporation stating that the Operator has failed to meet its obligations under the
Operation and Maintenance Agreement. The Guarantor shall not go into the veracity of any
breach or failure on the part of the Operator or validity of demand so made by Corporation and
shall pay the amount specified in the demand notwithstanding any direction to the contrary given
or any dispute whatsoever raised by the Operator or any other Person. The Guarantor’s obligations
hereunder shall subsist until all such demands are duly met and discharged in accordance with the
provisions hereof.
3. In order to give effect to this Guarantee, Corporation shall be entitled to treat the Guarantor as the
principal debtor. The obligations of the Guarantor shall not be affected by any variations in the terms
and conditions of the Operation and Maintenance Agreement or other documents or by the extension
of time for performance granted to the Operator or postponement/ non exercise / delayed exercise of
any of its rights by Corporation or any indulgence shown by Corporation to the Operator and the
Guarantor shall not be relieved from its obligations under this Guarantee on account of any such
variation, extension, postponement, non-exercise, delayed exercise of any of its rights by Corporation
or any indulgence shown by Corporation, provided nothing contained herein shall enlarge the
Guarantor’s obligation hereunder.
4. This Guarantee shall be irrevocable and shall remain in full force and effect until ______16
unless
discharged / released earlier by Corporation in accordance with the provisions of the Operation and
Maintenance Agreement. The Guarantor’s liability in aggregate be limited to a sum of Rs.
__________/- (Rupees _______ Only).
5. This Guarantee shall not be affected by any change in the constitution or winding up of the Operator /
the Guarantor or any absorption, merger or amalgamation of the Operator / the Guarantor with any
other Person.
6. The Guarantor has power to issue this guarantee and discharge the obligations contemplated herein,
and the undersigned is duly authorised to execute this Guarantee pursuant to the power granted
under ______________.
IN WITNESS WHEREOF THE GUARANTOR HAS SET ITS HANDS HEREUNTO ON THE DAY,
MONTH AND YEAR FIRST HEREINABOVE WRITTEN
SIGNED AND DELIVERED
by ____________________________________Bank
by the hand of Shri _______________________
its __________________and authorised official.
16
ten years and six months from the date of signing the Agreement
Operation and Maintenance of MRI Facility at YCM Hospital
101
Schedule V. MRI Staff details (Qualification and Experience)
MRI Team Supporting Documents
The team for operating the MRI facility at YCM hospital on 24 hrs
basis should have minimum 1 Radiologist17
, 6 MRI technician, 4
nurses and 4 ward boys18
. The eligibility criteria for each of them
shall be as follows:
I. Eligibility criteria for Radiologist: The radiologist
should hold MD degree in Radiology or Diploma in
Medical Radiology (DMRD) with minimum 5 years of
experience in radiology field
II. Eligibility criteria for MRI technician: The technician
should hold a Degree/ Diploma as MRI technician
from an institute recognised by Paramedical Board in
India or recognised university and should have an
experience as a MRI technician for minimum 1 (one)
years.
III. Eligibility criteria for Nurse:: The Nurse should hold
an ANM/GNM Diploma or Bachelor of Science
Degree in Nursing from an institute recognised by
Indian Nursing Council or any recognised Nursing
Council in India or abroad and should have an
experience as a Nurse for minimum 1 (one) year.
IV. Eligibility for Ward Boy: The ward boy should be
10thpass with minimum 1 (one) year of experience of
working in a hospital or medical facility.
Relevant Certificates of education and
work experience
Also mention name, designation,
address and telephone number of the
contact officer from whom the details
can be verified
17There should be a panel of 3 radiologists, so that the work of radiologists is distributed in shifts and at least 1 Radiologist is
always available at MRI Centre.
18At the time of signing the agreement, the proposed staff should be on regular payroll of the operator
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Schedule VI. NecessaryapplicationsandMinimum hardware requirement