Instructions to Bidders (ITB) - Section I Contents .pdf · and Management of Hemodialysis unit for maintenance of Hemodialysis in the state of Himachal Pradesh through Public Private

Setting up of Hemodialysis Units for Maintenance of Hemodialysis in the State of Himachal Pradesh under PPP format

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Instructions to Bidders (ITB)-Section I


Instructions to Bidders (ITB) - Section I

Contents DISCLAIMER 3

1.INVITATION FOR PROPOSAL 4

1.1 Introduction 4

2.PROJECT BACKGROUND 6

2.1 Introduction 6

2.2 Commercial Consideration 9

2.3 Statutory Clearances 9

2.4 Bidding Schedule 9

3. GENERAL TERMS AND CONDITIONS FOR EVALUATION 10

3.1 The evaluation of the Proposals 10

3.2 Technical Qualification Conditions 10

3.3 Proposal submitted by an Unincorporated Joint Venture: 12

3.4 Proposal submitted by a Single Bidder 13

3.5 Fee and Deposits to be paid by the Bidder 14

3.6 Submission of Foreign Documents 15

3.7 Using Net-worth and/or Technical Support/ Expertise of Holding/ Parent

Company 16

3.8 One Bid per Bidder 16

3.9 Proposal Preparation and Cost 16

3.10 Due Diligence, Inspection and Investigation 16

3.11 Validity of Proposal 17

3.12 Right to Reject Proposals 17

3.13 Disputes 17

4. TENDERING PROCEDURE AND SCHEDULES 18

4.1 General 18

4.2 Amendment of RFP 18

4.3 Preparation and submission of Proposal 18

4.4 Language and Currency 19

4.5 Bidder’s Responsibility 19

4.6 Sealing and Marking of Proposals 20

4.7 Modification and Withdrawal of Proposals 21

4.8 Opening of Proposals 21

4.9 Evaluation of Proposals 22


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4.10 Confidentiality 23

4.11 Acceptance of the Proposal 24

4.12 Execution of Concession Agreement 24

4.13 Bids of other Bidders 25

4.13 Verification and Disqualification 25

5. PRESCRIBED FORMATS 27

A. Letter of Application & Interest 27

B. General Information on the Bidder 29

C. Format for Financial Proposal 30

D. Affidavit 31

E. Format for Power of Attorney for Signing of Application 33

F. Format for Proposal Security (Bank Guarantee) 34

G. Power of Attorney by Each Member of the JV in Favour of Lead Member 36

H. Format of Parent / Holding Company Deed of Guarantee 37

I. Format of Successful Bidder Guarantee towards SPC 40

J. Draft Joint Venture Agreement 43

K Format of Deed of Guarantee (in case of JV) towards SPC 48


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DISCLAIMER The information contained in this Request for Proposal (RFP) document or subsequentlyprovided to

Bidders, whether verbally or in documentary form by or on behalf ofDepartment of Health and Family

Welfare, Himachal Pradesh (herein referred to as“DoH&FW” or the “Concessioning Authority”),

National Rural Health Mission (NRHM),H.P. , State Health and Family Welfare society (herein

referred to as “Confirming Party”or“SH&FWS”) or any of its employees or advisors, is provided to

Bidders on the terms andconditions set out in this RFP document and any other terms and

conditions subject towhich such information is provided.

This RFP document is not an Agreement and is not an offer or invitation to any other party.The

purpose of this RFP document is to provide the Bidders with information to assist theformulation of

their Proposal submission. This RFP document does not purport to containall the information each

Bidder may require. This RFP document may not be appropriate forall persons and it is not possible

for SH&FWS/ DoH&FW and their employees or advisors toconsider the investment objectives,

financial situation and particular needs of each Bidder.Certain Bidders may have a better knowledge

of the proposed Project than others. Eachrecipient must conduct its own analysis of the information

contained in this RFP documentor to correct any inaccuracies therein that may appear in this RFP

document and is advisedto carry out its own investigation into the proposed Project, the legislative

and regulatoryregimes which applies thereto and by and all matters pertinent to the proposed Project

andto seek its own professional advice on the legal, financial, regulatory and taxationconsequences

of entering into any agreement or arrangement relating to the proposedProject.

SH&FWS/ DoH&FW and their employees and advisors make no representation or warrantyand shall

incur no liability under the Law of Contract, Tort, the Principles of Restitution orunjust enrichment or

otherwise for any loss, expense or damage, accuracy, reliability orcompleteness of the RFP

document, which may arise from or be incurred or suffered inconnection with anything contained in

this RFP, any matter deemed to form part of this RFPdocument, the award of the Project, the

information and any other information supplied byor on behalf of SH&FWS/ DoH&FW or their

employees, any consultants or otherwise arisingin any way from the selection process for the

Project.

SH&FWS/ DoH&FW may in its absolute discretion, but without being under any obligationto do so,

can amend or supplement the information/clauses/articles in this RFP document.The information

that SH&FWS/ DoH&FW is in a position to furnish is limited to this RFPand the information available

at the contact addresses given in para 1.1.6, along with anyamendments/ clarifications thereon.

This RFP and the information contained herein are confidential and for use only by theperson to

whom it is issued. It may not be copied or distributed by the recipient to thirdparties (other than in

confidence to the recipient's professional advisor). In the event thatthe recipient does not continue

with the involvement in the project in accordance with RFPthe information contained in the RFP shall

not be divulged to any other party. Theinformation contained in the RFP must be kept confidential.

Mere submission of a responsive Bid/ Proposal does not ensure selection of the bidder

asConcessionaire.


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1. INVITATION FOR PROPOSAL

1.1 Introduction

1.1.1 In order to improve the quality of health care services provided in the State, Department of

Health & Family Welfare, Himachal Pradesh (DoH&FWor the “Concessioning Authority”) and

NRHM, H.P., State Health & Family WelfareSociety (SH&FWS or the “Confirming Party”)

proposes to invite private sector players for setting up of a Hemodialysis unit for

maintenance of Hemodialysis at the Regional Hospitals of Kullu, HP. Hemodialysis Units

shall be set up for catering to the needs of the patients in Himachal Pradesh, which are

presently going faraway places for getting these services.

1.1.2 This Request for Proposal (RFP) document is for the Development, Operation, Maintenance

and Management of Hemodialysis unit for maintenance of Hemodialysis in the state of

Himachal Pradesh through Public Private Partnership mode for a pre-determined

Concession Period of 7 (Seven) years (the “Project”).

1.1.3 An Agreement will be drawn up amongst, Department of Health & Family Welfare,Himachal

Pradesh (DoH&FWor the “Concessioning Authority”) / Himachal Pradesh State Health

&Family Welfare Society (SH&FWS or the “ConfirmingParty”); and the Successful Bidder/

Concessionaire [i.e. either the individual / single bidder or the Special Purpose Company

(SPC), as formed by the JV, whichever acknowledged as the Successful Bidder”] on PPP

basis (“the ConcessionAgreement”).

1.1.4 A “Single Stage” bidding process has been planned for determining the Successful Bidder.

The Bidders would be required to meet the minimum threshold Technical Qualification

Conditions and qualify for undertaking the Project as set out in this RFP document. The

Financial Proposals of only those Bidders that possess the minimum Technical Qualification

Conditions (as laid down in Clause 3.2) and other relevant documents (as per the formats

provided in Clause 5) would be opened and evaluated.

1.1.5 The RFP document contains information about the Project, bidding process, Proposal

submission, qualification and Financial Proposal requirement.

1.1.6 Interested Bidders may obtain the RFP document from the address given below up to

28.4.2016 on all working days between 1000 hrs and 1700 hrs IST by written request clearly

stating “Request for setting up of Hemodialysis Units for Maintenance of Hemodialysis in the

State of Himachal Pradesh under PPP format” and on submission of a non-refundable fee of

Indian Rupees (“Rs”) 10,000.0 (Rupees Ten Thousand only) by way of crossed demand

draft/ bankers cheque (valid for a period of 180 days) drawn in favour of “Chief Medical

Officer, Kullu, Himachal Pradesh”, payable on any scheduled bank in Kullu. CMO willnot be

responsible for any delay, loss or non-receipt of RFP document sent by post/ courier.

Address for obtaining the RFP document:


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Chief Medical Officer,

Kullu,District Kullu

Himachal Pradesh, India

Phone: (01902) 223077

1.1.7 The purchaser of the RFP document must be the Bidder itself or a member of the

Consortium submitting the Proposal.

1.1.8 The RFP document is also available on the following website

http://www.nrhmhp.gov.in/

Bidders who download the RFP document from the website, will be required to pay the non-

refundable fee of Rs. 10,000 (Rupees Ten Thousand only), by way of a crossed Demand

Draft drawn in favour of Chief Medical Officer, Kullu,HP payable on any scheduled bank in

Kullu, at the time ofthe submission of the Proposal.

1.1.9 The RFP submissions must be received no later than 1:00 PMon/ before 29th April 2016, in

the manner specified in the RFP document at the address given below and Chief Medical

Officer. Kullu, HP shall not be responsible for any delay in receiving the Proposal and

reserves the right to reject and/ or accept any or all the Proposals without assigning any

reason thereof.


Kullu,District Kullu


Phone: (01902) 223077


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2. PROJECT BACKGROUND

2.1 Introduction

2.1.1 Department of Health & Family Welfare (“DoH&FW” or the “ConcessioningAuthority”) and

NRHM,H.P., State Health &Family Welfare Society (SH&FWS) have decided to set up

Hemodialysis unit for maintenance of Hemodialysis at theRegional Hospital in Kullu, in

thestate of Himachal Pradesh through Public Private Participation mode (‘the Project/s’).

2.1.2 Scope of work

1. It is proposed to set up a Hemodialysis unit in the Regional Hospital Kullu on PPP format

in the given built up space in the hospitals. The built up space will be allotted by the

concessioningauthority.

2. The successful bidder would perform Hemodialysis procedure for various patients.

3. The Hemodialysis unit would attend to all related emergency cases round the clock.

4. The built up space for the project will be provided by the DoH&FW to the private partners.

5. The successful bidder (s) would be required to Build, Operate and Transfer the

Hemodialysis unit at the Regional HospitalKullu HP.

6. The existing power and water connection, if any, will be provided by the DoH&FW and the

recurring costs and the enhancement of load costs will be borne by the private partners.

The successful bidder would install DG set at their own cost.

7. The successful bidder would install Reverse Osmosis (RO) unit, raw and product water

storage tank, layout piping and other necessary infrastructure up to the point of use. The

recurring cost of water would be borne by the successful bidder.

8. The successful bidder would invest in all the machinery, air conditioning, RO units etc. The

actual capacity needs to be worked out by the selected private partners only.

9. The Concessionaire has to install at least 6 (Six) brand new Hemodialysis machines and

related infrastructure. No refurbished machines would be accepted.

10.The successful bidder would dedicate one machine each for patients infected with HIV,

hepatitis-B and hepatitis-C. These infected patients will be treated in isolated rooms. All

care will be taken by the PPP partner to isolate the infected patients.

11. The successful bidder would recruit and manage all the required personnel including

consulting Nephrologists, technicians, nurses, ward boys and other support staff. All

personnel required to operate the facility would be on the rolls of the successful bidder

and all salary, perks etc will be paid by him.


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12. The minimum number of key personnel with minimum qualification and experience would

require to be provided by the successful bidder.

S.NO. Description Minimum Qualification and experience Number

1 Consulting

Nephrologist

DM or DNB in Nephrology with 3 years of experience / MD

with 2 year training in nephrology from a recognized center

with 3 years of experience

1

2 Dialysis Doctor MBBS and Certified in advanced cardiac life support

(ACLS) with 3 years of experience

2

3 Dialysis

Technician

One year or longer certificate course in DialysisTechnology

(after high school)certified by a government authority

with 3 years of experience

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4 Nurses Auxiliary nurse midwife (ANM) and registered with Nursing

Council with 6 month experience in a dialysis unit.

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5 Ward

Boys/Attendant

3 years of experience 2

13. There shall not be any changes in the team structure in the normal course. However, in

case of any such changes due to genuine reasons during the concession period, shall be

informed to DoH&FW and the Private Partner has to satisfy DoH&FW that the new team

or team member is of the same quality as indicated above.

14. The concession period would be for 7 (seven) years.

15. The patients will have the option to buy consumables from the open market.

16. The concessionaire would also maintain adequate inventory of all consumables. The

successful bidder would procure only the best quality consumables. The quality of

consumables would be subjected to periodic inspection by the representatives of

DoH&FW.

17. The successful bidder would charge the patients for consumable at a rate which would

be atleast 20% less than the prevailing MRP.

18. The successful bidder would maintain all purchases and inventory records through the

software proposed. The representative of DoH&FW would periodically review the

inventory cost and compare with prevailing MRP to verify the actual price charged to the

patients.

19. The successful bidder would sell consumables to the patients of the Hemodialysis unit

only and not to outsiders. However, in case of emergency to any outside patient, the

successful bidder could sell consumables after the approval of Chief Medical Officer

(CMO) of the Regional Hospital.

20. The services to various category of free patients as defined as per the State policy or

relevant guidelines would be provided free of any user charges and consumables.

However, The Concessionaire shall have the right to claim reimbursements for the

amount spent on the Tests of such Patients.

21. It is responsibility of the successful bidder to keep Hemodialysis unit in good working

condition.

2.1.3. Location of the Facilities


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The Hemodialysis Unit will be set up at Regional Hospital Kullu, Distt. Kullu HP.

The built up area, within the hospitals, which shall be given to the Successful Bidder

forthe setup of Hemodialysis unit, shall be individually termed as “Facility” andcollectively

the “Facilities”.The details of the location have been detailed out in Schedule 1 of the

draft Concession

Agreement (Section II of the RFP document).

2.1.3 SH&FWS/ DoH&FW, propose to select a Successful Bidder for taking up

thedevelopment of the aforesaid Project in the form of a Concession.

1. The Concession Period for the Project shall be for a period of 7 (Seven) years.

{For details refer Article 3.3 of the draft Concession Agreement(Section-II of the

RFP document)}

2. This Concession Period is to be considered from the date on the satisfaction of the

Conditions Precedent i.e. Compliance Date. {Refer Article3.3 of the draft

Concession Agreement (Section-II of the RFP document)}

2.1.4 Project Structure

1.The Facilities within the location shall be licensed to the Concessionaire for the

purpose of setting up of the Hemodialysis unit.

2.The Concessionaire shall develop the Facilities of a location, as a Hemodialysis

unit, within the stipulated Development Period of 6 (six) months. {Refer Article 3.4

of draft Concession Agreement (Section-II of the RFPdocument)}. Pursuant to the

completion of the development, the Concessionaire shall thereby, operate,

maintain and manage the Hemodialysis unit.

3.The Concessionaire shall have the right to levy and collect revenues, as generated

pursuant to the operationalizationof the Hemodialysis unit as per the provisions laid

down in the draft Concession Agreement (Section-II of the RFP document).

4.However, it is being clarified here that the act of granting permission to develop,

operate and maintain the Project shall not vest or create any proprietary interest in

the Project or any part thereof including any permanent fixtures, fittings, etc.

installed at the location of the Facilities in favor of the Concessionaire.

2.1.5 End of the Concession Period

At the end of the Concession Period, by efflux of time or premature termination for

any reason whatsoever, all rights given under theConcession Agreement shall cease

to have effect and the Facilities & theentire Project, thereof shall transfer back to the


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respective authorities as per the provisions of the draft Concession Agreement

(Section II of the RFPdocument).

2.2 Commercial Consideration

The Successful Bidder/ Concessionaire would quote ‘User Fee per

DialysisProcedure’ without consumables to be charged from patients i.e. Bid Variable

as perits Financial Proposal/Bid. The User Fee shall be increased at the rate of 5%

(fivepercent) after every year, over the preceding user fee to be rounded off to

thenearest rupee. The Successful Bidder/ Concessionaire shall charge the User Fee

onand after the Operations Date. {For details refer Article 5.1 of the draft Concession

Agreement (Section-II of the RFP document)}.

2.3 Statutory Clearances

2.3.1 For the permissible development of the Facilities under reference, theConcessionaire

is required to adhere to the applicable norms/ laws and arrange approvals from all

Local/ Competent Authorities. The Concessionaire shall obtainclearances and

sanctions from competent authorities for utilities, fire fighting,electric connection etc.

It is to be clearly understood that all such clearances are tobe obtained by the

Successful Bidder/ Concessionaire and SH&FWS/ DoH&FW can only provide

assistance, wherever possible, on best effort basis without any bindingobligation.

2.4 Bidding Schedule

The DoH&FW/SH&FWS shall endeavour to adhere to the following schedule:

S.No. Particular Date & Time/ Place

Sale of RFP document Between 1000 hrs and 1700 hrs IST, Upto

28th

April 2016.

Last Date for Receiving Pre Bid

Queries

Upto 9th April, 2016

Pre Bid Conference 11:00 AM on 11.4.2016 in the Chamber of

Chief Medical Officer, Kullu

Submission of Bids Upto 1:00 PM on/ before 29.4.2016

Opening of Technical Bids 29.4.2016 at 3:00 PM in the Chamber of

Chief Medical Officer, Kullu

Opening of Financial Bids of

Technically Qualified Bidders

Will be communicated separately


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3. GENERAL TERMS AND CONDITIONS FOR EVALUATION

3.1 The evaluation of the Proposals

1. Step 1 – Opening of Technical Proposals and Short-Listing

2. Step 2 - Opening of Financial Proposals of technically qualified bidders

The entire bidding process has been explained elaborately in clause 4 of Section-I of

this RFP document.

3.1.1 The Successful Bidder shall be issued Notice of Award (NoA) for Hemodialysis Unit

at RH Kullu.After acceptance of the NoA within 7 (seven) days from the date of

receipt of the NoA, the Successful Bidder/ Special Purpose Company (SPC) shall

enter into aConcession Agreement (draft enclosed as Section II to the RFP

document) with the Chief Medical Officer, Kullu HP within 60 (sixty) days of

conveying his acceptance of the NoAor the date as mutually agreed between the

Parties to the Agreement.

3.2 Technical Qualification Conditions

3.2.1 The Bidder may be a sole applicant (Single Entity) or a group of entities coming

together as Consortium/Joint Venture to implement the Project. The bidder cannotbe

an individual or group of individuals. Only registered entities such as

companiesregistered under Companies Act, societies under Society Registration

Act,Partnership Firms under Partnership Act, trusts under Indian/State Trusts Act

andrecognized NGOs under any of the above Acts.

Any entity which has been barred by the DoH&FW/SH&FWS or Government

ofHimachal Pradesh from participating in Projects and the bar subsists as on

theProposal Due Date would not be eligible to submit the Proposal, either

individuallyor as member of a Consortium.

3.2.2 The Bidder should be legally competent to enter into a contract as per prevailinglaws.

3.2.3 Only those Bidders meeting both the following “Minimum Eligibility Criteria” andother

relevant documents as per Clause 5 and other provisions of Section-I of theRFP

Document shall be “Technically Qualified” for the Project. It is expresslyclarified here

that a bidder can apply and would be considered for eligibility onlyunder the following

criterion.

1.Technical Capability

For demonstrating technical capacity and experience (the “Technical Capacity”), the

Applicant, during the last 2 years prior to the Application Due Date should have:

Category 1 (Dialysis Operators, Hospitals, Hospital Chains)


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(i) Operated & managed dialysis facilities, having at least 6 (six) Hemodialysis

machines at one centre.

(ii) The above experience could be demonstrated by a single entity or the lead

member (i.e. technical member) of the Consortium. (There can be Maximum of Two

(2) members in Consortium)

(iii) The facility should have been operational for at least 2 years prior to the

submission date/ Application Due Date.

Category 2 (Equipment Manufacturers)

(i) Should be a manufacturer of Hemodialysis machines and should have installed at

least 30 Hemodialysis machines in India during the last 2years prior to the

Application Due Date.

(ii) Further such entity should be able to demonstrate presence in installing and

servicing dialysis equipments in India during the last 2 years priorto submission date/

Application Due Date.

(iii) The above experience could be demonstrated by a single entity or the lead

member (i.e. technical member fulfilling technical criteria) of theConsortium (There

can be Maximum of Two (2) members in theConsortium).

2.Financial Capability

For demonstrating Financial Capacity (the “Financial Capacity”):

(i)In case of Category 1(Dialysis Operators, Hospitals, and Hospital Chains):

a. The Applicant shall have a minimum Net worth of Rs. 15000000 (Rupees One

Crore Fifty Lacs only) at the close of the preceding financial year i.e. 2015-16.

b. The net-worth of the consortium shall be evaluated for eligibility purpose.

(Maximum 2 members in Consortium)

(ii)In case of Category 2 (Equipment Manufacturers):

a. The Applicant shall have a minimum Net Worth of Rs. 25000000 (Rupees Two

Crores and fifty Lakhs only) at the close of the preceding financial year i.e. 2015-16.

b. The net-worth of the consortium shall be evaluated for eligibility purpose.

(Maximum 2 members in Consortium)

However, it is being clarified here that the revaluation reserve, capital reserve and

value of intangible assets like good will, miscellaneous expenditure to theextent not

written off etc. shall not be taken into account for calculating the NetWorth.


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3.3 Proposal submitted by an Unincorporated Joint Venture:

3.3.1 There can be a maximum of 2 (two) members in a Joint Venture (JV) / Consortium.

3.3.2 The JV as a whole must satisfy both the Technical and Financial Capabilityrequirements

given in Clause 3.2.3.

3.3.3 Any material changes in the membership of a Bidder (during the Bidding Process or

Concession Agreement) will be rejected by Chief Medical Officer, Kullu HP.

Proposalssubmitted by a JV must provide a written agreement (Joint Venture (JV)

Agreement)to be signed by each member in that JV which describes the responsibilities

andproposed equity commitments of each member in the JV. One of the JV members(the

technical member/ partner) would be required to be nominated as LeadMember and the

same shall also be mentioned in the Joint Venture (JV) Agreement.The Joint Venture (JV)

Agreement shall be as per the format attached in Clause 5(J).

3.3.4 The Joint Venture shall, inter alias form a Special Purpose Company (SPC) registeredin

India for the implementation of the Project. SPC shall be formed within 60 (sixty)days of

receipt of Notice of Award (NoA). The SPC would enter into the ConcessionAgreement and

subsequently carry out all the responsibilities of the SuccessfulBidder and undertake the

Project as stipulated in the Concession Agreement. Theproposed shareholding of the

members of the JV in the SPC must be in compliancewith the criteria specified in the RFP

document. However, the membership structureof the Bidder shall not be changed by the

Bidder without priorwritten approval of Chief Medical Officer, Kullu HP. The aggregate equity

share holding of the members/ partners ofthe JV in the issued and paid up equity share

capital of the SPC shall not be less than(i) 76% (seventy six per cent) till the issuance of

Development CompletionCertificate and (ii) 51% (fifty one per cent) during the Operation &

MaintenancePeriod thereafter.

3.3.5 In addition to the above obligations, the Lead Member of the JV shall maintain aminimum

equity component of at least 51% for the entire Concession Period, in theSPC so formed

under this clause.

3.3.6 Members of the JV shall be liable jointly and severally for the execution of theProject in

accordance with the terms of the Concession Agreement and a statementto this effect shall

be included in the Joint Venture (JV) Agreement mentioned underClause 3.3.3 above, as

well as in the Proposal and in the Concession Agreement.Chief Medical Officer Kullu, HP

may require such documents / undertakings/ indemnities as itmay deem fit from JV members

before or at the time of issuance of Notice of Award(NoA)/ signing of Concession Agreement.

3.3.7 Each of the JV members shall be required to furnish a Deed of Guarantee {as per theformat

laid down in Clause 5(K)}, towards the SPC, including an irrevocable BoardResolution from

such JV members, pledging their Financial strength and Technicalsupport and their expertise

towards the development of the Project.


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3.3.8 The Lead Member nominated at the time of submission of the Proposal shallcontinue to be

the Lead Member of the SPC. Such Lead Member shall holdauthorization in the form of

Power of Attorney. The Proposal must designate one ormore person(s) to represent the

Bidder in its dealings with Chief Medical Officer, Kullu HP.Unless specifically advised to the

contrary, Chief Medical Officer, Kullu, HP will assume that theperson(s) designated is

authorized to perform all tasks, including, but not limited to, providing information, responding

to inquiries and entering into contractualcommitments on behalf of the Company or the JV as

the case maybe. Any and alllimitations on the authority of the designated person (s) should

be detailed in theProposal.

3.3.9 Each member of the JV shall submit a signed letter (on the company's Letter Head)with the

Proposal, which states that the said member:

(a) Has reviewed the entire Proposal.

(b) Is in accord with each key element of the Proposal, including, but not limited to,

its technical and pricecomponents, description of the member's

responsibilitiesand commitments to the Project, and the designatedperson(s)

who will represent the JV during the negotiationprocess. Any substantive

exception or caveat should beaddressed in the enclosed letter.

(c) Has participated in only one Proposal for each location ofthis Project.

(d) Each of the JV members will be jointly and severally liableto Chief Medical

Officer, Kullu and DoH&FW.

All pertinent information that may affect the performance of the responsibilities of any JVmember –

such as ongoing litigation, financial distress, or any other such matter – must bedisclosed.

3.4 Proposal submitted by a Single Bidder

3.4.1 The Single Bidder (i.e. either a Company or a registered Partnership Firm orregistered

Society) may, at its discretion, form a Special Purpose Company (SPC)registered in India for

the implementation of the Project. SPC shall be formed within60 (sixty) days of receipt of

Notice of Award. The SPC would enter into theConcession Agreement and subsequently

carry out all the responsibilities of theSuccessful Bidder and undertake the Project as

stipulated in the ConcessionAgreement. The Single Bidder shall be required to furnish a

Deed of Guarantee {asper the format laid down in Clause 5(I)}, towards the SPC, including

an irrevocableBoard Resolution from such Successful Single Bidder, pledging their

Financialstrength and Technical support and their expertise towards the development of

theProject.

3.4.2 The proposed shareholding of the Successful Single Bidder in the SPC must be

incompliance with the criteria specified in the RFP document. The aggregate equityshare

holding of the Successful Single Bidder in the issued and paid up equity sharecapital of the

SPC shall not be less than (i) 76% (seventy six per cent) till theissuance of Development

Completion Certificate and (ii) 51% (fifty one per cent)during the Operation & Maintenance

Period thereafter.


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3.4.3 The Successful Single Bidder, alongwith the SPC as formed, shall be liable jointly

andseverally for the execution of the Project in accordance with the terms of theConcession

Agreement and a statement to this effect shall be included in theConcession Agreement.

CMO/ DoH&FW may require such documents /undertakings/ indemnities as it may deem fit

from the Successful Single Bidderbefore or at the time of issuance of Notice of Award/

signing of ConcessionAgreement.

3.4.4 The Proposal must designate one or more person(s) to represent the Bidder in itsdealings

with CMO/ DoH&FW. Unless specifically advised to the contrary,CMO/ DoH&FW shall

assume that the person(s) designated is authorized toperform all tasks, including, but not

limited to, providing information, responding toinquiries and entering into contractual

commitments on behalf of the SuccessfulSingle/ Individual Bidder as the case maybe. Any

and all limitations on the authorityof the designated person (s) should be detailed in the

Proposal.

3.5 Fee and Deposits to be paid by the Bidder

3.5.1 Proposal Security

(i) The Proposal shall be accompanied by an initial Proposal Security for a valueof

Rs. 1 Lakh (Rupees one Lakh only) in respect of RH Kullu, HP, in any one of

thefollowing manners:

a) A Bank Guarantee issued by a Scheduled Bank in favor of “Chief Medical Officer,

Kullu, Himachal Pradesh” and in theformat given in Clause 5 (F). However, it is

being clarified herethat the bank guarantees should be from scheduled bank

andpayable at Kulluor

b) Demand Draft in favour of “Chief Medical Officer, Kullu, Himachal Pradesh”

payable at Kullu.

(ii) The Proposal Security shall be valid for a minimum period of 180 (onehundred

and eighty) days from the Proposal Due date. On request fromCMO/SH&FWS,

the Bidders would be required to extend the validity of theProposal Security on the

same terms and conditions.

(iii) The Proposal Security of the Successful Bidder shall be returned after

thesubmission of performance security and signing of the ConcessionAgreement.

(iv) Any Bid/ Proposal submitted without the Proposal Security in the form

asspecified in the RFP document shall be summarily rejected.

(v) The Proposal Security of Bidders whose Proposal is rejected on account ofbeing

Non-Responsive or Non-Reasonable in accordance with the RFPdocument, shall

be returned/refunded within a period of one eighty (180)days from the date of

opening of technical proposal by Chief Medical Officer, Kullu HP. TheProposal

Security shall be forfeited by Chief Medical Officer, Kullu, in the following cases:

a) If the Bidder withdraws his Bid/ Proposal after Technical Proposalopening and

during the Proposal Validity Period.

b) If the Successful Bidder fails within the specified time limit to signthe Concession

Agreement.


15


c) If the Successful Bidder fails within the specified time limit to furnishthe required

Performance Security or fails to start the work withinstipulated period.

3.5.2 Performance Security

(a) The Successful Bidder/ Concessionaire, for due and faithful performance of itsobligations

under the Concession Agreement, shall be required to provide toCMO/DoH&FW within 60

(sixty) days of receipt of the Notice of Award from theCMO/DoH&FW.

“Performance Security” of Rs 5 Lacs (Rupees Five Lacs only), infavour

of Chief Medical Officer/ Department of Health and Family Welfare.

Refer Article5.2 of the draft Concession Agreement (Section II of the

RFPdocument). However, it is being clarified here that the

bankguarantees should be from scheduled bank and payable atKullu.

3.6 Submission of Foreign Documents

If the Bidder is submitting any documents (as part of the Bid/ Proposal), created ororiginating

from outside the Republic of India, such as work experience certificate(s),financial detail(s),

Power Of Attorney(s), Undertaking(s), documentary evidence(s),qualifying document(s), etc.

then the Bidder, before any such Foreign Document(s)are sent to India for the purpose of

applying towards this Project, shall be required toget each and every page of such Foreign

Document(s), duly authenticated/embossed/ legalized from the Indian Embassy/Indian High

Commission situated inthe country from where such Foreign Document(s) were created or

are originatingfrom. Such authentication/ embossment/ legalization from the Indian

Embassy/Indian High Commission shall also apply to all such document(s) that are in

language other than English, which shall be compulsorily be required to betranslated (as the

true translated copies of the original) by a duly certified/authorized /qualified Translator,

supported by the affidavit of the said Translator,certifying the correctness of the English

translation.

However, in the case of Foreign Document(s) created or originating from Countriesthat have

signed, ratified and have made operational the Hague ConventionAbolishing the

Requirement of Legalization for Foreign Public Documents, 5 October,1961 “Hague

Legalization for Convention, 1961”, the Bidders may affix an ‘Appostille”sticker on each and

every page of their Foreign Document(s) [including allcommercial document(s) duly

notarized]. Thereafter, the Bidder shall becompulsorily required to get all such “Appostilled”

Foreign Document(s) approved,certified and attested from the Indian Embassy /Indian High

Commission in thatcountry where the ‘Foreign Document(s)’ were created or are originated

from OR theMinistry of External Affairs, Government of India, New Delhi and the Bidder/s

shallfollow any other relevant norms/guidelines laid by the Ministry of External

Affairs,Government of India, New Delhi.


16


3.7 Using Net-worth and/or Technical Support/ Expertise of Holding/ Parent

Company

The Bidders who have used the Net Worth and/ or Technical Support/ Expertise oftheir

Holding / Parent Company to satisfy the Minimum Eligibility Criteria shall berequired to

furnish a Deed of Guarantee {as per format attached in Clause 5(H)} fromtheir Holding /

Parent Company (including an irrevocable Board Resolution fromsuch Holding/ Parent

Company) pledging their Financial strength and Technicalsupport and their expertise

towards the development of the Project, apart fromauthorizing the said Bidder to take part in

the Bidding Process. Failure to furnish suchirrevocable Deed of Guarantee (accompanied by

a Board Resolution) from theHolding/ Parent Company by the Bidder alongwith their

Proposal may entailautomatic disqualification of their proposals by CMO/ DoH&FW.

3.8 One Bid per Bidder

Each bidder shall submit only one bid for the Hemodialysis unit at RH Kullu, HP.

3.9 Proposal Preparation and Cost

All Bidders are required to submit a detailed proposal (herein-after referred to asthe Proposal

or Bid) in accordance with the guidelines set forth in this RFPdocument. Bidders should

provide information sought herein in the prescribedformats in order to accurately establish

and interpret the information provided. Thecost of preparation of Proposal and related

expenses shall be borne by the Biddersthemselves

3.10 Due Diligence, Inspection and Investigation

The Bidders shall be deemed to have conducted a due diligence exercise withrespect to all

aspects of the Project, including a detailed survey of the Project Site and location area and

information/ data provided by CMO/ DoH&FW in the RFPDocument, when they submit the

Proposal. Interested Bidders are invited to visitand inspect the Project Site(s) for any or all

location(s) at their own expense. Failureto investigate fully the Project Site(s) or site

conditions shall not be a valid ground torelieve the Bidder subsequently after its Proposal nor

shall it relieve the Bidderfrom any responsibility for estimating the difficulty or costs of

successfullycompleting the Project.


17


3.11 Validity of Proposal

3.11.1 The Proposal shall remain valid for a period not less than one hundred eighty (180)days from

the due date of submission (Proposal Validity Period).CMO, Kullu/DoH&FW reserve the right

to reject any Proposal that does not meet thisrequirement. Validity of Proposal shall be

extended for a specified additional periodat the request of CMO, Kullu/ DoH&FW.

3.11.2 A Bidder agreeing to the request will not be allowed to modify his Proposal, butwould be

required to extend the validity of his Proposal Security for the period ofextension.

3.11.3 The Proposal Validity Period of the Successful Bidder shall be extended till the dateof

execution of the Concession Agreement.

3.12 Right to Reject Proposals

3.12.1 CMO Kullu/ DoH&FW reserve the right to reject any / all Proposals including thelowest

Proposal or withdraw the invitation of the proposal at any stage withoutciting any reason.

Nothing contained herein shall confer any right upon a bidder orcreate any obligation/ liability

upon CMO Kullu/ DoH&FW of any type whatsoever.

3.12.2 Misrepresentation / Fraud / Breach of Terms and ConditionsIf it is discovered at any

point of time that the bidder has suppressed any fact orgiven a false statement or has done

misrepresentation or fraud or has violated anyof the terms of this Bid/ Proposal, the Bid/

Proposal will be cancelled by CMO Kullu/DoH&FW. In such an event, the bidder will not be

entitled to any compensationwhatsoever, or refund of any other amount paid by him.

3.13 Disputes

Any issue, difference of opinion, or dispute between any Successful Bidder,Bidder/s, or the

Concessioning Authority pertaining to any aspect of the presentbidding process, shall be

referred to sole arbitrator duly appointed by PrincipalSecretary- Health and Family Welfare,

Government of Himachal Pradesh. The awardof such arbitrator shall be final and binding on

the parties thereto. Arbitration &Conciliation Act, 1996 & rules made thereunder as amended

from time to time shall be applicable to such arbitration proceedings.


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4. TENDERING PROCEDURE AND SCHEDULE

4.1 General

4.1.1 The Bidders may send their queries to CMO, Kullu/ DoH&FW w.r.t. this Project.

4.1.2 Pre-Bid Meeting

(i) The purpose of the Pre-Bid Meeting will be to clarify and discuss issues withrespect to the

Project, the RFP document or any other related issues.

(ii) The Bidder or his authorized representative is invited to attend a Pre-BidMeeting, which

shall take place at the venue as mentioned in Bidding Schedule.

(iii) It is preferable to attend the Pre-Bid Meeting. Subsequent to the date of the Pre-Bid

Meeting, CMO Kullu/ DoH&FW may not respond to questions or inquiriesfrom any Bidder

who has not attended the Pre-Bid Meeting. The bidders cansend their queries as per the

Bidding Schedule.

(iv)The Bidders designated representatives are invited to attend the Pre-BidMeeting at their

own cost, to be held as per the Bidding Schedule.

4.2 Amendment of RFP

4.2.1 At any time prior to the Proposal Due Date, CMO Kullu/ DoH&FW may, for any

reason,whether at its own initiative or in response to clarifications requested by a

Bidder,modify the RFP document through the issuance of Addendum. This will be sent

inwriting to all the Bidders and shall be binding upon them.

4.2.2 In order to give the Bidders reasonable time in which to take an Addendum intoaccount, or

for any other reason, CMO Kullu/ DoH&FW may, at its discretion, extendthe Proposal Due

Date.

4.3 Preparation and submission of Proposal

4.3.1 Completed Proposals shall be accepted on or before 1:00PM on 29.04.2016 as per

BiddingSchedule at the address given below.


Kullu, Distt.Kullu,


4.3.2 CMO Kullu/ DoH&FW, at its sole discretion, retains the right, but is not obliged, toextend the

Proposal Due Date by issuing an Addendum.


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4.3.3 Bidders shall furnish the information strictly as per the formats given in Clause 5 ofthis RFP

document without any ambiguity. CMO Kullu/ DOH&FW shall not be heldresponsible if the

failure of any bidder to provide the information in the prescribedformats results in lack of

clarity in interpretation and consequent disqualification.

4.3.4 Intentionally Left Blank

4.3.5 In case of a JV, wherever required, the Proposal must contain such informationindividually

for each member of the JV.

4.3.6 In case of a JV, the members shall submit a Joint Venture (JV) Agreement conveyingtheir

intent to jointly bid for the Project and in case the Project is awarded to them,to form a ‘SPC’

that will subsequently carry out all its responsibilities as the‘Concessionaire’. The MOA shall

also include the nomination of the Lead Member inthe JV and clearly outline the proposed

shareholding and responsibilities of eachmember at each stage.

4.3.7 All Proposals/Bids shall be signed by the duly ‘Authorised Signatory’ of the Bidder. Incase of

a JV, the Proposal shall be signed by the duly Authorised Signatory of theLead Member.

Bidders shall submit a supporting Power of Attorney authorizing theSignatory of the Proposal

to commit the bidder and agreeing to ratify all acts, deedsand things lawfully done by the

said attorney. In case of a JV, such Power of Attorneyshall be signed by all members of the

JV and shall be legally binding on all of them.

4.3.8 The Authorised Signatory shall initial the Proposal on each page. He shall also initialall the

alterations, omissions, additions, or any other amendments made to theProposal.

4.3.9 All witnesses and sureties shall be the persons of status and probity and their fullnames and

addresses shall be stated below their signature. All signatures in theProposal documents

shall be dated.

4.3.10 Bidders are required to submit one original set of the Proposal, including theOriginal RFP

document and Addenda issued to them and clearly marked as“ORIGINAL”.

4.3.11 any firm which submits or participates in more than one Proposal for the saidProject (each

location) shall be disqualified and shall also cause the disqualificationof all the JVs in which it

is amember.

4.4 Language and Currency

4.4.1 The Proposal and all related correspondence and documents shall be written inEnglish

language. If any supporting document attached to the Bid/ Proposal is in anyother language,

the same will be supported by an English translation (dulyauthenticated/ attested from Indian

Embassy in respective countries) and in case ofany ambiguity the translation (original as

translated by SH&FWS/ DoH&FW) shallprevail.

4.4.2 The currency for the purpose of the Proposal/ Bid shall be Indian National Rupee(INR).

4.5 Bidder’s Responsibility


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4.5.1 It would be deemed that prior to the submission of Proposal, the Bidder has made acomplete

and careful examination of:

a. The requirements and other information set forth in this RFP document.

b. The various aspects of the Project including, but not limited to the following:

1111.The Project Site(s) for any/ all Location(s), existing facilities and structures(if any), access

roads and public utilities in the vicinity of the Project Site(s)for any/ all Location(s);

2.2.2.2. All other matters that might affect the Bidder’s performance under the termsof this RFP

document, including all risks, costs, liabilities and contingenciesassociated with the Project

(each Location).

4.5.2 Project Site Visit

a. The Bidders prior to submitting their Bid/ Proposal for the Project for Regional Hospital,

Kullu, are expected to visit and examine the Project Site and the site surroundings at his/her

own expenses, the ProjectSite for location being offered on an “as is where is” basis

andascertain on their own responsibility information, technical data, patient data, market

study, etc. including actual condition of existing services which may ormay not have to be

shifted/removed/replaced etc.

b. It shall be assumed that all these factors were accounted for by the Bidder whilequoting his

bid. The bidder shall be deemed to have full knowledge of the site for whether he inspects it

or not.

4.5.2 CMO Kullu/ DOH&FW shall not be liable for any mistake or error or neglect by thebidder in

respect of the above. Proposals that are not substantively responsive tothe requirements of

this RFP document will be rejected.

4.6 Sealing and Marking of Proposals

4.6.1 The Proposals shall be sealed, marked and submitted as explained below:

a) Envelope No.1containing the Proposal Security (as per Format F) shall bemarked as

“PROPOSAL SECURITY DEPOSIT”.

b) Envelope No.2, duly marked as “TECHNICAL PROPOSAL” and shallcontain the

following:

1.Relevant documents (like Certificate of Incorporation, JointVenture (JV)

Agreement (if applicable), audited financialstatements and evidence of

experience like client certificate,details of financing arrangements, sale /

lease agreements,installation report(s) and AMC/ CMC agreements,

certificatesfrom statutory authority etc.) Confirming the

“TechnicalQualification Conditions” laid down in Clause 3.2;

2.Letter of Application and Interest (As per Format A);

3.General Information on the Bidder (As per Format B);

4.Power of Attorney for Signing of Application (as per Format E);


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5. Affidavit (As per Format D);

6.Original RFP Document duly signed (on each page) by anauthorized

representative as a token of acceptance;

7.Power of Attorney by Each Member of the JV in Favour of Lead

Member (as per Format G);

8. Deed of Guarantee (as per Format H), if applicable;

9. A letter (on company’s letter head) from all the JV members aslaid down in

Clause 3.3.9.

10. All required submissions, if the Bidder is applying through JVand as

stated in the RFP Document.

c) Envelope No. 3Duly marked as “FINANCIAL PROPOSAL”for the Regional Hospital

Kullu, H.P.

d) All the above envelopes shall be enclosed in an outer cover/ envelopemarked as “RFP

for setting up of Hemodialysis unit for maintenanceof Hemodialysis in Regional

Hospital Kullu, Himachal Pradesh under PPP format”.

e) The Outer envelope shall be addressed to:


Kullu, Distt.Kullu (HP)


If the envelope is not sealed and marked, as instructed above, CMO Kullu assumes noresponsibility

for the misplacement or premature opening of the Proposal submitted. Inthat case, the prematurely

opened proposals will be rejected.

4.6.2 Any Proposal received by Chief Medical Officer after 1:00 PM on the Proposal Due

Datewill be liable for rejection.

4.7 Modification and Withdrawal of Proposals

4.7.1 No Proposal shall be modified or withdrawn by the Bidder after the ProposalDue

Date.

4.7.2 Withdrawal of a Proposal during the interval between Proposal Due Date

andexpiration of the Proposal Validity Period would result in forfeiture of theProposal

Security.

4.8 Opening of Proposals

4.8.1 The Technical Proposals received shall be opened by the Committee constituted

byCMO Kullu as per approval of DoH&FW in the presence of the Bidders as per

Bidding Schedule, unlessintimated otherwise. The date for opening of Financial

Proposals shall be intimatedin advance to the technically qualified bidders.

4.8.2 CMO Kullu/ DoH&FW reserves the right to reject any Proposal, if

1. It is not signed, sealed and marked as stipulated in Clause 4.6.

2. The information and documents have not been submitted asrequested and

in the formats specified in the RFP.


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3. There are inconsistencies between the Proposal and thesupporting

documents.

4. It does not mention the Validity Period as set out in Clause 3.11.

5. There are conditions proposed with the Technical and/or

Financial Proposals.

6. It provides the information with material deviations.

4.8.3 A material deviation or reservation is one:

a) Which affects in any substantial way, the scope, quality, orperformance of the

Project, or

b) Which limits in any substantial way, inconsistent with the RFPdocument,

CMO Kullu/ DOH&FW rights or the Bidder’s obligations, or

c) Which would affect unfairly the competitive position of other

Bidders’ presenting substantially responsive bids.

4.8.4 No request for modification or withdrawal shall be entertained by CMO Kullu/

DOH&FW in respect of such Proposals.

4.9 Evaluation of Proposals

The evaluation will be done in 2 Steps as explained below:

4.9.1 In Step-I, the Proposal Security in Envelope 1 shall be first checked. Proposalswithout the

appropriate Proposal Security shall be rejected. Then thesubmission(s) in Envelope 2 shall

be checked. Eligibility of the bidders w.r.t.their capability for applying for shall be determined

at thisstage. All Bidders passing Step-I of the evaluation will be considered

responsiveenough to be considered for the next steps.

In Step–II of evaluation, the Financial Proposals in Envelope 3 of only thoseBidders who

have passed Step-I shall be opened by Chief Medical Officer, Kullu inpresence of the

nominees of the bidders, who choose to attend the same.The selection will be made on the

basis of the lowest rates(user fee). The Bidder quoting the lowest rates shall be invited to

sign theConcession Agreement. In the event that two or more bidders quote the samerate /

tie (i.e. bidders). The concessioning authority shall identify the selectedbidder by draw of lots,

which shall be conducted with prior notice in thepresence of the bidders who chose to attend.

4.9.2 In the event that the Lowest Bidder withdraws or is not selected for any reason inthe first

instance (the “first round of bidding”), the Authority may invite all theremaining Bidders to

revalidate or extend their respective Proposal Security, asnecessary, and match the Bid of

the aforesaid Lowest Bidder (the “second round ofbidding”). If in the second round of bidding,

only one Bidder matches the LowestBidder, it shall be the Selected Bidder. If two or more

Bidders match the saidLowest Bidder in the second round of bidding, then the Bidder whose

Bid waslowest as compared to other Bidder(s) in the first round of bidding shall be

theSelected Bidder. For example, if the third and fifth lowest Bidders in the first roundof

bidding offer to match the said lowest Bidder in the second round of bidding, thesaid third

lowest Bidder shall be the Selected Bidder.

4.9.3 In the event that no Bidder offers to match the Lowest Bidder in the second roundof bidding

as specified in Clause 4.9.2, the Authority may, in its discretion, invitefresh Bids (the “third


23


round of bidding”) from all Bidders except the Lowest Bidderof the first round of bidding, or

annul the Bidding Process, as the case may be. Incase the Bidders are invited in the third

round of bidding toevalidate or extendtheir Bid Security, as necessary, and offer fresh Bids,

they shall be eligible forsubmission of fresh Bids provided, however, that in such third round

of biddingonly such Bids shall be eligible for consideration which are lower than the Bid ofthe

second lowest Bidder in the first round of bidding.

4.9.4 Even if only a single Bid/ Proposal is received (and technically qualified) or singleBid/

Proposal amongst several is technically qualified, CMO Kullu/ DoH&FW retainsthe right to

open his Financial Proposal and award the Project.

4.9.5 CMO Kullu/ DoH&FW would have the right to review the Proposals and seekclarifications

where necessary. The response from the bidder(s) shall only be inwriting but no change in

the substance of the Proposal would be permitted. It isclarified that bidders are free to make

suggestions but are not allowed to submitany conditional bid as specified earlier.

4.9.6 The Proposal (Financial and Technical) should be unconditional and anyconditionality

attached with the Proposal/ Bid may result in the rejection of theProposal. However, in case

the Technical Proposal is unconditional and there is aconditionality attached with the

Financial Proposal, theFinancial Proposal shall be rejected. Anyconditionality attached with

Technical Proposal shall result in rejection of Proposal submitted by the Bidder

4.9.7 Financial Proposal(s) for any/ all Bidders who do not qualify the Step-I of evaluation shall not

be opened and will be returned unopened.

4.10 Confidentiality

4.10.1 Information relating to the examination, clarification, evaluation andrecommendation for the

short-listed Bidders shall not be disclosed to anyperson not officially concerned with the

process. SH&FWS/ DoH&FW will treatall information submitted as part of all Proposals in

confidence and will insistthat all who have access to such material treat it in confidence.

SH&FWS/DoH&FW will not divulge any such information unless it is ordered to do so by any

Government authority that has the power under law to require itsdisclosure or due to

statutory compliances.


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4.11 Acceptance of the Proposal

4.11.1 CMO Kullu/ DOH&FW shall issue Notice of Award (NoA) to the Successful Bidderfor

eachProject i.e. for each Location.

4.11.2 The Successful Bidder is required to send his acceptance of theNoA within seven (7) days

from the date of its receipt.

4.11.3 CMO Kullu/ DoH&FW shall retain the right to withdraw the NoA in the event of theSuccessful

Bidder’s failure to accept the NoA, withinthe time limit specified in the above clause.

4.11.4 In this event, CMO Kullu/ DoH&FW shall forfeit the Proposal Security of theSuccessful

Bidder.

4.12 Execution of Concession Agreement

4.12.1 The Successful Bidder/ SPC is required to sign the ConcessionAgreement within 60 days of

conveying his acceptance of the NoA to CMO Kullu/DoH&FW in writing or the date as

mutually agreed between the Parties to theConcession Agreement. But prior to signing of the

Agreement, the SuccessfulBidder/ Concessionaire must satisfy the following conditions:

1. The Successful Bidder/ Concessionaire hassubmitted the requisite Performance

Security to CMO Kullu/ DoH&FW

2. Formation of a SPC, as per the provisions laid down in Clause 3.3/3.4, within 60

days of receipt of Notice of Award by the SuccessfulBidder (either a JV or Single

Bidder).

3. Furnishing of Deed of Guarantee by the Successful Bidder {if a JV,then as per format

provided in Clause (K) and to be provided by allthe JV members towards the SPC]

and if a Single Bidder, then as performat provided in Clause 5(I)}.

CMO Kullu/ DOH&FW shall not execute the Concession Agreement until theseconditions

have been satisfied.

However, it is being expressly clarified here for avoidance of any doubt thatConcession

Agreement shall be signed by the Successful Bidder, and any provisions explained before

and hereafter areapplicable.

4.12.2 Failure to meet the above conditions shall result in a breach and CMO Kullu/DoH&FW shall

be entitled to cancel the NoA without being liable, in any mannerwhatsoever, to the Bidder

and to appropriate the Proposal Security and any otheramount deposited till that time as

‘Damages’.


25


4.12.3 The cost of stamp duty for execution of Concession Agreement, registration chargesand any

other related Legal Documentation charges and other incidental chargesshall be borne by

the Successful Bidder.

4.12.4 In case of failure to sign the Concession Agreement within the stipulated time,CMO Kullu /

DoH&FW shall retain the right to cancel the NoA and forfeit theSuccessful Bidder’s Proposal

Security and any other amount deposited till that timewithout being liable in any manner

whatsoever to the Successful Bidder.

4.13 Bids of other Bidders

4.13.1 CMO Kullu/ DoH&FW shall return the Proposal Security received from the Bidderswho have

not qualified in Step-I of the evaluation, within 180 (One hundredeighty) days of opening of

the Technical Proposal/ Bid. The Proposal Security shallbe returned without payment of any

interest.

4.13.2 Proposal Security received from all the short listed Bidders after Step–II ofevaluation (except

L1, L2, & L3) shall be returned within 60 (Sixty) days from thedate of opening of Financial

Proposal, and returned thereafter, without payment ofany interest. Proposal security of L1,L2

and L3 bidder would beretained till the concession agreement is signed between the

successful bidder andCMO Kullu.

4.13 Verification and Disqualification

4.14.1. CMO Kullu/DoH&FW reserves the right to verify all statements, information

anddocuments submitted by the Bidder in response to the RFP or the

BiddingDocuments and the Bidder shall, when so required by the CMO

Kullu/DoH&FW,make available all such information, evidence and documents as

may benecessary for such verification. Any such verification or lack of

suchverification, by CMO Kullu/DoH&FW shall not relieve the Bidder of itsobligations

or liabilities hereunder nor will it affect any rights ofCMO Kullu/DoH&FW there under.

4.13.2 CMO Kullu/DoH&FW reserves the right to reject any Bid and appropriate the

BidSecurity if: at any time, a material misrepresentation is made or uncovered, orthe

Bidder does not provide, within the time specified by CMO Kullu/DoH&FW,the

supplemental information sought by CMO Kullu/DoH&FW for evaluation ofthe Bid.

Such misrepresentation/ improper response shall lead to thedisqualification of the

Bidder. If the Bidder is a Consortium, then the entireConsortium and each Member

may be disqualified/ rejected. If suchdisqualification / rejection occurs after the Bids


26


have been opened and the lowestBidder gets disqualified / rejected, then CMO

Kullu/DoH&FW reserves the rightto:

(i) Invite the remaining Bidders to submit their Bids in accordance withClauses

4.9.2 and 4.9.3; or

(ii) Take any such measure as may be deemed fit in the sole discretion ofCMO

Kullu/DoH&FW, including annulment of the Bidding Process.

4.14.3 In case it is found during the evaluation or at any time before signing of

theConcession Agreement or after its execution and during the period of

subsistencethereof, including the Concession thereby granted by CMO

Kullu/DoH&FW, thatone or more of the eligibility conditions have not been met by the

Bidder, or theBidder has made material misrepresentation or has given any

materially incorrector false information, the Bidder shall be disqualified forthwith if not

yet appointedas the Concessionaire either by issue of the NoA or entering into of

theConcession Agreement, and if the Selected Bidder has already been issued

theNoA or has entered into the Concession Agreement, as the case may be, the

sameshall, notwithstanding anything to the contrary contained therein or in this

RFP,be liable to be terminated, by a communication in writing byCMO

Kullu/DoH&FW to the Selected Bidder or the Concessionaire, as the casemay be,

without CMO Kullu/DoH&FW being liable in any manner whatsoever tothe Selected

Bidder or Concessionaire. In such an event, CMO Kullu /DoH&FWshall be entitled to

forfeit and appropriate the Bid Security or PerformanceSecurity, as the case may be,

as Damages, without prejudice to any other right orremedy that may be available to

CMO Kullu /DoH&FW under the BiddingDocuments and/ or the Concession

Agreement, or otherwise.


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5. PRESCRIBED FORMATS

A. Letter of Application & Interest

(To be submitted and signed by the Bidder’s authorised signatory)


Kullu, Distt.Kullu,


Sub: RFP for setting up of Hemodialysis unit for maintenance of Hemodialysis in

the State of Himachal Pradesh under PPP format

Sir,

1. Being duly authorized to represent and act for and on behalf of.

……………(Hereinafterreferred to as “the applicant”), and having studied and fully

understood all theinformation provided in the RFP document, the undersigned hereby apply

as a Bidderfor “ Setting up of Hemodialysis unit for maintenance of Hemodialysis in the

Stateof Himachal Pradesh at Regional Hospital, Kullu”according to the terms &

conditions of the RFP Documentissued by CMO/ DoH&FW.

2. Our Technical & Financial Proposals are as per the requisite formats along with

thesupporting documents, duly filled and signed on each page are enclosed in

separatesealed envelopes as specified.

3. The Proposal Security is enclosed in the Envelope 1 marked “Proposal Security Depositfor

Regional Hospital Kullu” (All Proposal Security to be enclosed in Envelope 1 forevaluation

purpose).

4. CMO Kullu/ DoH&FW and its authorised representatives are hereby authorized toconduct

any inquiries / investigation to verify the statements, documents andinformation submitted in

connection with the application and to seek clarification fromour banker regarding any

financial and technical aspects. This letter of application willalso serve as authorization to

any individual or authorized representative of anyinstitution referred to the supporting

information, to provide such information deemednecessary and requested by yourselves to

verify statements and information providedin the application or with regard to the resources,

experience and competence of theapplicant.


28


5. CMO Kullu/ DoH&FW and its authorized representatives may contact the following persons

for any further information:

Name of the person (s): …………

Address: ……………………………………..

Phone: …………….. Fax: ………………….

Email: ……………………….

6. This application is made with full understanding that:

(a) CMO Kullu/ DOH&FW reserve the right to reject or accept any Bid/ Proposal,cancel

the bidding process, and / or reject all Bids.

(b) CMO Kullu/ DOH&FW shall not be liable for any of the above actions and shall be

under no obligation to inform the applicant of the same.

7. We, the undersigned declare the statements made and the information provided in theduly

completed application forms enclosed, as complete, true and correct in everydetail.

8. We hereby confirm that we have read, understood and accepted all the detailed termsand

conditions of this RFP document and Project related Information as required for theProposal.

We have also visited the Facilities for the assessment and have made our owndue diligence

and assessment regarding the project.

9. We agree to keep our Proposal valid for one hundred eighty (180) days from the date

ofsubmission of Proposal thereof and not to make any modifications in its terms

andconditions not acceptable to the CMO Kullu/ DOH&FW. Should this Proposal be

accepted,we hereby agree to abide by and fulfill all the terms, conditions and provisions of

theaforesaid documents.

10. This application is made with the full understanding that the validity of proposalsubmitted by

us will be subject to verification of all information, terms and conditionssubmitted at the time

of bidding and its final acceptance by CMO Kullu/ DOH&FW. Weagree that, without prejudice

to any other right or remedy, CMO Kullu/ DOH&FW shall beat liberty to forfeit the said

Proposal Security absolutely.

Authorised signatory Date:

Name and seal of Bidder Place:


29


B. General Information of the Bidder

1. (a) Name :

(b) Country of incorporation:

(c) Address of the corporate headquarters and its branch office(s), if any, inIndia:

2. Details of individual(s) who will serve as the point of contact / communication forCMO Kullu/

DoH&FW within the Company:

(a) Name :

(b) Designation :

(c) Company :

(d) Address :

(e) Telephone Number :

(f) Fax Number :

(g) E-Mail Address :

3. In case of JV:

a. The information above (1&2) should be provided for all the members of the JV.

b. Information regarding role of each member should be provided:

S.No. Name of Member Proportion of Equity to be held

in the JV

Role*

1.

2.

* Specify whether Lead Member (Technical Member)/ Ordinary Member

Signed

(Name of the Authorised Signatory)

For and on behalf of

(Name of the bidder)

Designation:

Place:

Date:


30


To be enclosed:

1. Documents certifying Bidder’s legal status i.e. Certificate of incorporation / registration.

2. In case of a JV, JV Agreement & Power of Attorney signed by each JV partner, clearlyindicating

the lead partner.

3. Latest brochures/ organization profiles, etc.

C. Format for Financial Proposal

(To be submitted and signed on the Bidder’s letterhead by the Bidder’s authorized signatory)


Kullu, Distt.Kullu,


Sub: RFP for setting up of Hemodialysis unit for maintenance of Hemodialysis inthe State

of Himachal Pradesh under PPP format

Sir,

We hereby submit our Financial Proposal for the Regional Hospital, Kullu. If the project is awarded

to us, we agree tocharge the following rates.

Lowest charges proposed by the technically qualified bidders shall be the solecriteria for

selection of the successful bidder

Description Amount (Rs.)

User Fee per Dialysis Procedure

excluding consumables

Rs…………….(in fig)

Rs…………………………………………………..only

(in words)

We agree that the above agreed User shall be payable by us in accordance with Clauses2 & 4

of Section I (Instructions to Bidders) of the RFP Document and Article 5.1 of thedraft

Concession Agreement (Section-II of the RFP document).

We are making this Proposal after taking into consideration all the terms and conditionsstated in the

RFP document, and after careful assessment of the site, all risks andcontingencies and all other

conditions that may affect the financial proposal.

We agree to keep our Proposal valid for 180 (One Hundred and Eighty) days from the duedate of

submission of this Proposal.


31


Authorised signatory Date:

Name and seal of Bidder Place:

D. Affidavit

(To be given separately by each JV member, in case of a JV or otherwise by the Bidder on a

Stamp Paper of Rs. 10/-)

I,………………. S/o …..…, resident of ………………., the ……………... (insert designation) of

the………………..(insert name of the single Bidder/JV Member if a JV), do solemnly affirm and

stateas under :

1. That I am the authorised signatory of …………..(insert name of company /JV

member)(hereinafter referred to as “Bidder/JV Member”) and I am duly authorised by the

Boardof Directors of the Bidder/JV Member to swear and depose this Affidavit on behalf of

thebidder/JV member.

2. That I have submitted information with respect to our eligibility for the “setting up

ofHemodialysis unit for maintenance of Hemodialysis in Regional Hospital Kullu,

HimachalPradesh (hereinafter referred to as “Project”) and I further state that all the

saidinformation submitted by us is accurate, true and correct and is based on our

recordsavailable with us.

3. That I hereby affirm to furnish any information, which may be requested by CMO

Kullu/DOH&FW to verify our credentials/information provided by us under this Proposal

andas may be deemed necessary by CMO Kullu/ DOH&FW.

4. That if any point of time including the Concession Period, in case CMO Kullu/

DOH&FWrequests any further/additional information regarding our financial and/or

technicalcapabilities, or any other relevant information, I shall promptly and immediately

makeavailable such information accurately and correctly to the satisfaction of CMO

Kullu/DOH&FW.

5. That I fully acknowledge and understand that furnishing of any false or misleadinginformation

by us in our RFP/ Proposal shall entitle us to be disqualified from thetendering process for

the said Project. The costs and risks for such disqualification shallbe entirely borne by us.

6. That, we fully acknowledge and understand that in case any false or misleadinginformation,

as furnished by us in our RFP, is found at a later stage after the signing ofthe Concession

Agreement between CMO Kullu/DoH&FW and ………….. (Insert name of organization/ JV-


32


JV), it shall entitle CMO Kullu/DoH&FW to terminate the said signed Concession

Agreementbetween the Parties. The costs and risks for such termination shall be entirely

borne byus.

7. I state that all the terms and conditions of the Request for Proposal (RFP) Documenthave

been duly complied with.

DEPONENT

VERIFICATION :-

I, the above named deponent, do verify that the contents of paragraphs 1 to 6 of thisaffidavit are true

and correct to my knowledge. No part of it is false and nothing materialhas been concealed.

Verified at ………………………, on this …………………. .day of………….…….., 2016.

DEPONENT


33


E. Format for Power of Attorney for Signing of Application

Know all men by these presents, we/ I ……………………………………. (name and address of

theregistered office) do hereby constitute, appoint and authorize Mr./Ms…………………..(nameand

residential address) as our attorney, to do in our name and on our behalf, all such acts,deeds and

things necessary in connection with or incidental to our Bid/ Proposal for theproject envisaging

construction, operation and maintenance of the Project in the country ofIndia, including signing and

submission of all documents and providinginformation/responses to CMO Kullu/ DoH&FW,

representing us in all matters beforeCMO Kullu/ DoH&FW, and generally dealing with CMO Kullu/

DoH&FW in all matters inconnection with our Bid/ Proposal for the said Project i.e. setting up of

Hemodialysis unit at Regional Hospital Kullu, H.P.

We hereby agree to ratify all acts, deeds and things lawfully done by our said attorneypursuant to

this Power of Attorney and that all acts, deeds and things done by our aforesaidattorney shall always

be deemed to have been done by us.

For………………………………………….

Accepted

…………………...(Signature)

(Name, Title and address) of the Attorney

Note:

∗ The mode of execution of the Power of Attorney should be in accordance with theprocedure, if any,

laid down by the applicable law and the charter documents of theexecutant(s) and when it is so

required the same should be under common sealaffixed in accordance with the required procedure.


34


F. Format for Proposal Security (Bank Guarantee)

PROPOSAL SECURITY FORMAT

(To be valid for 180 days from the Proposal Due Date)

UNCONDITIONAL AND IRREVOCABLE BANK GUARANTEE

Bank Guarantee No.:_____________ Dated:_________________

Issuer of Bank Guarantee:

__________________(Name of the Bank)

__________________________________

__________________________________

(hereinafter referred to as the “Bank”)

Beneficiary of Bank Guarantee:


Kullu, Distt.Kullu,


Nature of Bank Guarantee:

Unconditional and irrevocable Bank Guarantee.

Context of Bank Guarantee:

In pursuance of Clause 3.4.1 of Section 1 of the Request for Proposal Document

dated____(hereinafter referred to as the “RFP” inclusive of Concession Agreement) for the setting

upof Hemodialysis unit for maintenance of Hemodialysis in the State of HimachalPradesh at

RegionalHospital, Kullu (hereinafter referred to as the “Project”), provided however, such

context of the BankGuarantee or reference to the Agreement in this Bank Guarantee shall in no

manner torelied upon at any stage to adversely affect or dilute the unconditional and irrevocable

nature of this Bank Guarantee. The Contract of Bank Guarantee is an independent Contractbetween

the Bank and CMO Kullu and is not dependent upon execution or performance of anyAgreement

between CMO Kullu/ DOH&FW and _____________________(name of the Bidder).

Operative part of the Bank Guarantee:

1. At the request of the ____ (name & address of the Bidder), we

________________________,___________________ (name and address of the bank),

hereinafter referred to as the“Bank”), do hereby unconditionally and irrevocably affirm and

undertake that weare the Guarantor and are responsible to the CMO Kullu i.e. the

beneficiary on behalfof the Bidder, up to a total sum of Rs. ______Lakhs (Rupees


35


__________________ Lakhs Only), such sumbeing payable by us to the CMO Kullu

immediately upon receipt of first writtendemand from CMO Kullu.

2. We unconditionally and irrevocably undertake to pay to the CMO Kullu on animmediate

basis, upon receipt of first written demand from the CMO Kullu andwithout any cavil or

argument or delaying tactics or reference by us to Bidder andwithout any need for the CMO

Kullu to convey to us any reasons for invocation of theGuarantee or to prove the failure on

the part of the Bidder to repay the amount of_______ or to show grounds or reasons for the

demand or the sum specified therein,the entire sum or sums within the limits of Rs. ___

Lakhs (Rupees _____ Lakhs Only).

3. We hereby waive the necessity of the CMO Kullu demanding the said amount fromBidder

prior to serving the Demand Notice upon us.

4. We further agree and affirm that no change or addition to or other modification tothe terms of

the Agreement, shall in any way release us from any liability under thisunconditional and

irrevocable Guarantee and we hereby waive notice of any suchchange, addition or

modification. We further agree with the CMO Kullu that theCMO Kullu shall be the sole and

the exclusive judge to determine that whether or notany sum or sums are due and payable to

him by Concessionaire, which arerecoverable by the CMO Kullu by invocation of this

Guarantee.

5. This Guarantee will not be discharged due to the change in constitution of the Bankor the

Bidder. We undertake not to withdraw or revoke this Guarantee during itscurrency/ validity

period, except with the previous written consent of the CMO Kullu.

6. We unconditionally and irrevocably undertake to pay to the CMO Kullu , any amountso

demanded not exceeding Rs. ____ Lakhs (Rupees ____ Lakhs Only),notwithstanding any

dispute or disputes raised by Bidder or anyone else in any suitor proceedings before any

dispute review expert, arbitrator, court, tribunal or otherauthority, our liability under this

Guarantee being absolute, unconditional andunequivocal. The payment so made by us

under this Guarantee to the CMO Kullu, shallbe a valid discharge of our liability for payment

under this Guarantee and the Biddershall have no claim against us for making such

payment.

7. This unconditional and irrevocable Guarantee shall remain in full force and effectand shall

remain valid until ______________ (180 days from the Proposal Due Date).

Notwithstanding any contained herein:

1. Our liability under this Bank Guarantee shall not exceed Indian Rs. ___ Lakhs(Rupees ____

Lakhs Only).

2. This unconditional and irrevocable Bank Guarantee shall be valid w.e.f. __________(Date of

Submission of Bid) to ____________.

We are liable to pay the guaranteed amount or any part thereof under this unconditionaland

irrevocable Bank Guarantee only and only if Chief Medical Officer, Kullu, Himachal Pradesh, serves

upon us a written claim or demand on or before_________________________.

__________________

Authorized Signatory

For Bank


36


G. Power of Attorney by Each Member of the JV in Favour of Lead Member

Dated ---------

POWER OF ATTORNEY

TO WHOMSOEVER IT MAY CONCERN

WHEREAS we have decided to participate in the bidding process for the “setting up

ofHemodialysis unit for maintenance of Hemodialysis in the State of Himachal

PradeshthroughPublic Private Participation format in Regional Hospital, Kullu(the “Project”)”

as member of ---------[name of the JV] independently, we, ---------------------[name of authorizing

company/agency], a --------- incorporated under the laws of ------------------, the registeredaddress of

which is --------------, to lawfully represent and act on our behalf as the LeadMember of the JV to sign

any qualification statement, proposal, conduct negotiations, signcontracts, incur liabilities and

receive instructions for us and on our behalf and execute allother necessary matters in connection

with the Project. We hereby confirm that we arejointly and severally liable, together with other

members of the JV, to the CMO Kullu/DOH&FW for all of the obligations of the JV in respect of our

qualification statement,technical and financial proposal for the Project, in accordance with the RFP

document forthe Project issued on ------ and as amended prior to date hereof

We hereby ratify and confirm that all acts done by our said attorney ------ (name of leadmember)

shall be binding on us as if the same has been done by us personally. We herebyalso ratify and

confirm that if we are selected as the Successful Bidder, we shall incorporatea Company under The

Companies Act, 1956 as per the following shareholding pattern:

Party % Shareholding

IN WITNESS WHEREOF, we have hereunto set our respective hands this ---------day of --------2016

in the presence of the following witnesses

Witness 1 Witness 2

Signature ------------- Signature -----------

Name -------------- Name ------------


37


Address -------------- Address ------------

By --------------------- [the Authorising Company]

Signature --------------------- [Signature of authorised signing officer]

Name --------------------- [Name of authorised signing officer]

Title --------------------- [Title of authorised signing officer]

H. Format of Parent / Holding Company Deed of Guarantee

FORMAT OF PARENT / HOLDING COMPANY DEED OF GUARANTEE (TO BE MADE

ONSTAMP PAPER OF REQUISITE VALUE AND NOTARISED)

DEED OF GUARANTEE

THIS DEED OF GUARANTEE executed at __________ this ____ day of ________ by M/s

_________(mention complete name) a company duly organized and existing under the laws

of___________ (insert jurisdiction / country), having its Registered Office at ___________hereinafter

called “the Guarantor” which expression shall, unless excluded by or repugnantto the subject or

context thereof, be deemed to include its successors and permitted assigns.

WHEREAS

A. Department of Health and Family Welfare (hereinafter called “DoH&FW”

or“Concessioning Authority”) and NRHM,H.P., State Wealth and Family

WelfareSociety (SH&FWS or “Confirming Party”), which expression shall unless

excluded byor repugnant to the context thereof, be deemed to include its successor

and assigns),had, invited Bids / proposals for the “Project” – Setting up of

Hemodialysis unitfor maintenance of Hemodialysis in the State of Himachal

Pradesh at Regional Hospital Kulluby issuingRequest For Proposal (“RFP”)

document (including its addendums) to theprospective “Bidders” to implement the

said Project for and on behalf of theConcessioning Authority.

B. M/s __________ (mention complete name), a company duly organized and

existingunder the laws of India (insert jurisdiction / country), having its Registered

Office at__________ (give complete address) hereinafter called “the Subsidiary”,

whichexpression shall, unless excluded by or repugnant to the subject or context

thereof,be deeded to include its successor and permitted assigns, ∗ is a Subsidiary of

theGuarantor, which has in response to the above mentioned RFP document

(includingits addendums) is submitting its Bid / Proposal _________ to Department

of Healthand Family Welfare (hereinafter called “DoH&FW” or “Concessioning

Authority”)and Himachal Pradesh Infrastructure Development Board (hereinafter

called“SH&FWS”) to fulfill the condition that the Subsidiary shall arrange a


38


guaranteefrom its Parent / Holding company, guaranteeing due and satisfactory

performanceof the work covered under the said RFP document (including its

addendums) or anychange made in may be deemed appropriate by the CMO Kullu/

DoH&FW at anystage.

* Subsidiary shall mean and include – in case of a company or corporation, which is directly orindirectly owned

by the Guarantor / Parent / Holding Company, by way of ownership of morethan 50% (fifty per cent) of the

voting shares of such Subsidiary company. In case of a person(which is not a company or corporation), the

power to direct the management and policies ofsuch person, whether by operation of law or by contract or

otherwise.

C. The Guarantor represents that they have gone through and understood

therequirement of the above said RFP document (including its addendums) and

arecapable of and committed to provide technical, financial and such other supports

asmay be required by the Subsidiary for the successful execution of the same.

D. The Guarantor is executing this Deed of Guarantee in favour of CMO Kullu/

DoH&FW,wherein theGuarantor and the Subsidiary shall be jointly and severally

liabletowards the Project and the Guarantor shall also be pledging / providing

technical,financial and such other supports as may be necessary to the Subsidiary

forperformance of the work relating to the said Project as per the RFP

document(including its addendums) and as per the Concession Agreement

contained in theRFP document.

E. Accordingly, at the request of the Subsidiary and in consideration of and as

arequirement for CMO Kullu/ DoH&FW to enter into agreement(s) with the

Subsidiary, the Guarantor hereby agrees to give this guarantee and undertakes as

follows:

1. The Guarantor (Parent / Holding Company) unconditionally agrees that

incase of non-performance by the Subsidiary of any of its obligations in

anyrespect, the Guarantor shall, immediately on receipt of notice of demand

byCMO Kullu/ DOH&FW, take up the Project without any demur or objection,

incontinuation and without loss of time and without any cost to CMO

Kullu/DOH&FW and duly perform the obligations and responsibilities of

theSubsidiary to the satisfaction of CMO Kullu/ DOH&FW. In case the

Guarantoralso fails to discharge its obligations herein and is not able to

complete theProject satisfactorily, CMO Kullu/ DOH&FW shall have absolute

rights foreffecting the execution of the Project from any other person at the

risks andcosts of the Guarantor. The Guarantor also undertakes to make

good anyloss that may be caused to CMO Kullu/ DOH&FW for any non-

performance orunsatisfactory performance by the Guarantor or the

Subsidiary of any oftheir obligations.

2. The Guarantor agrees that the Guarantee herein contained shall remainvalid

and enforceable till the satisfactory execution and completion of theProject

(including discharge of the warranty obligations) awarded to theSubsidiary till

the completion of the Concession Period (including anyextension).


39


3. The Guarantor shall be jointly with the Subsidiary, as also

severallyresponsible for the satisfactory execution and performance of

Project duringthe currency of the “Concession Agreement” to be entered

between theSubsidiary and CMO Kullu/ DOH&FW.

4. The Guarantor represents that this Guarantee has been issued after

dueobservance of the appropriate laws in force in India. The Guarantor

herebyundertakes that the Guarantor shall obtain and maintain in full force

andeffect all the governmental and other approvals, permits and consents

thatare necessary and do all other acts and things necessary or desirable

inconnection therewith or for the due performance of the

Guarantor’sobligations hereunder.

5. The Guarantor also agrees that this Guarantee shall be governed

andconstrued in accordance with the laws in force in India and subject to

theexclusive jurisdiction of the courts of only Shimla, India.

6. The Guarantor hereby declares and represents that this Guarantee has

beengiven without any undue influence or coercion from any person and that

theGuarantor has fully understood the implications of the same.

7. The Guarantor represents and confirms that the Guarantor has the

legalcapacity, power and authority to issue this Guarantee and that giving of

thisGuarantee and the performance and observations of the

obligationshereunder do not contravene any existing law or any judgment.

8. The Guarantor represents and confirms that in pursuance to Para / Point

7,the Guarantor has submitted and provided to CMO Kullu/ DOH&FW (with

thisDeed of Guarantee), a valid Board Resolution duly authorizing the

Guarantorto pledge / provide technical, financial and such other supports as

may benecessary for performance of the work relating to the said Project as

per theRFP and Concession Agreement.

For & on behalf of (Parent / Holding

Company)

M/s___________________________

Witness:

1.

2.


40


I. Format of Successful Bidder Guarantee towards SPC

Format of Successful Bidder Guarantee towards SPC (if applicable & after NOA)

(To Be Made On Stamp Paper of Requisite Value and Notarised)

DEED OF GUARANTEE

THIS DEED OF GUARANTEE executed at _______ this ____ day of _______ by __________

(mentioncomplete name) a company duly organized and existing under the laws of ___________

(insertjurisdiction / country), having its Registered Office at ___________ hereinafter called

“theGuarantor” or the “Successful Bidder”, which expression shall, unless excluded by orrepugnant

to the subject or context thereof, be deemed to include its successors andpermitted assigns.

WHEREAS

A. Department of Health and Family Welfare, Himachal Pradesh (hereinafter called“DoH&FW”

or “Concessioning Authority”) and NRHM, H.P., State Health and FamilyWelfare Society

(SH&FWS or “Confirming Party”), which expression shall unlessexcluded by or repugnant to

the context thereof, be deemed to include its successorand assigns), had, invited Bids /

Proposals for the “Project” Setting up ofHemodialysis unit for maintenance of

Hemodialysis in the State of HimachalPradesh at Regional Hospital Kulluby issuing

Request For Proposal (“RFP”) document (including itsaddendums) to the prospective

“Bidders” to implement the said Project for and onbehalf of the Concessioning Authority.

B. M/s __________ (mention compete name), a company duly organized and existingunder the

laws of India (insert jurisdiction / country), having its Registered Office at__________ (give

complete address) hereinafter called the Special Purpose Company“the SPC”, which

expression shall, unless excluded by or repugnant to the subject orcontext thereof, be

deemed to include its successor and permitted assigns, ∗ is anAssociate of the Guarantor,

and has been formed for the development of the Projectwith one of the condition that the

SPC shall arrange a guarantee from its Parent /Holding Company, i.e. Guarantor,

guaranteeing due and satisfactory performance ofthe work covered under the said RFP


41


document (including its addendums) or anychange made in may be deemed appropriate by

the CMO Kullu/ DOH&FW at anystage.

C. The Bid / Proposal submitted by the Guarantor was accepted by Department ofHealth &

Family Welfare (DoH&FW)/ NRHM,H.P., State Health & Family Welfare

* Associate shall mean and include – in case of a company or corporation, which is directly orindirectly owned

by the Guarantor / Parent / Holding Company, by way of ownership of morethan 50% (fifty per cent) of the

voting shares of such Subsidiary company. Incase of a person(which is not a company or corporation), the

power to direct the management and policies ofsuch person, whether by operation of law or by contract or

otherwise.

Society (hereinafter referred as “SH&FWS”), and this Guarantor was declared

the“Successful Bidder”. Accordingly, the Guarantor is executing this Deed of

Guaranteetowards / in favour of its SPC after the issuance of Notice of Award (NOA) dated

______ by DoH&FW/ CMO Kullu to the Guarantor / Successful Bidder.

D. The Guarantor represents that it has gone through and understood the requirementof the

above said RFP document (including its addendums) and are capable of andcommitted to

provide technical, financial and such other supports as may berequired by the SPC for the

successful execution of the same.

E. The Guarantor is executing this Deed of Guarantee in favour of CMO Kullu/

DoH&FW,wherein the Guarantor and the Associate shall be jointly and severally

liabletowards the Project and the Guarantor shall also be pledging / providing

technical,financial and such other supports as may be necessary to the Associate

forperformance of the work relating to the said Project as per the RFP document(including its

addendums) and as per the Concession Agreement contained in theRFP document.

F. Accordingly, at the request of the Associate and in consideration of and as arequirement for

CMO Kullu/ DoH&FW to enter into agreement(s) with the SPC, theGuarantor hereby agrees

to give this guarantee and undertakes as follows:

1. The Guarantor (Parent / Holding Company) unconditionally agrees that incase of

non-performance by the SPC of any of its obligations in any respect,the Guarantor

shall, immediately on receipt of notice of demand byCMO Kullu/ DoH&FW, take up

the Project without any demur or objection, incontinuation and without loss of time

and without any cost CMO Kullu/DOH&FW and duly perform the obligations and

responsibilities of the SPC tothe satisfaction of CMO Kullu/ DoH&FW. In case the

Guarantor also fails todischarge its obligations herein and is not able to complete the

Projectsatisfactorily, CMO Kullu/ DoH&FW shall have absolute rights for effecting

theexecution of the Project from any other person at the risks and costs of

theGuarantor. The Guarantor also undertakes to make good any loss that maybe


42


caused to CMO Kullu/ DoH&FW for any non-performance or

unsatisfactoryperformance by the Guarantor or the SPC of any of their obligations.

2. The Guarantor agrees that the Guarantee herein contained shall remainvalid and

enforceable till the satisfactory execution and completion of theProject (including

discharge of the warrantyobligations) awarded to the SPCtill the completion of the

Concession Period (including any extension).

3. The Guarantor shall be jointly with the SPC, as also severally responsible forthe

satisfactory execution and performance of Project during the currency ofthe

“Concession Agreement” to be entered between the SPC and CMO Kullu/DOH&FW.

4. The Guarantor represents that this Guarantee has been issued after dueobservance

of the appropriate laws in force in India. The Guarantor herebyundertakes that the

Guarantor shall obtain and maintain in full force andeffect all the governmental and

other approvals, permits and consents thatare necessary and do all other acts and

things necessary or desirable inconnection therewith or for the due performance of

the Guarantor’sobligations hereunder.

5. The Guarantor also agrees that this Guarantee shall be governed andconstrued in

accordance with the laws in force in India and subject to theexclusive jurisdiction of

the courts of only Shimla, India.

6. The Guarantor hereby declares and represents that this Guarantee has beengiven

without any undue influence or coercion from any person and that theGuarantor has

fully understood the implications of the same.

7. The Guarantor represents and confirms that the Guarantor has the legalcapacity,

power and authority to issue this Guarantee and that giving of thisGuarantee and the

performance and observations of the obligationshereunder do not contravene any

existing law or any judgment.

8. The Guarantor represents and confirms that in pursuance to Para / Point 7,the

Guarantor has submitted and provided to CMO Kullu/ DOH&FW (with thisDeed of

Guarantee), a valid Board Resolution duly authorizing the Guarantorto pledge /

provide technical, financial and such other supports as may benecessary for

performance of the work relating to the said Project as per theRFP and Concession

Agreement.

For & on behalf of (Parent / Holding

Company)

_______________________________

Witness:

1.

2.


43


J. Draft Joint Venture Agreement


This Joint Venture Agreement (the “AGREEMENT”) made at ________ on this __ day of _______,

2016

BY AND AMONGST

M/s ___________________________ {Lead Member (JV Member 1)}, a _________________

incorporatedunder ____________________ (name of the relevant act/law of under which registered

in theCountry of Registration) and having its registered office / a company incorporated under

theLaws of ________________________ (hereinafter referred to as “________”, which expression

shallunless repugnant to the context or meaning thereof be deemed to mean and include its

successors in interest, subsidiaries and assigns) of the ONE PART;

AND

M/s _______________________ (JV Member 2), a _______________ incorporated under the

_____________ and having its registered office / a company incorporated under the Laws

of_____________________ (hereinafter referred to as “___________”, which expression shall

unless repugnant to the context or meaning thereof be deemed to mean and include its successors

in interest, subsidiaries and assigns) of the SECOND PART;

(________, ___________ and ___________ shall be individually referred to as the “Party” and

jointlyreferred to as the “Parties” or “JV Members”).

WHEREAS:

A. NRHM,H.P., State Health & Family Welfare Society (hereinafter referred to as the“SH&FWS”

or “Confirming Party”)/ Department of Health and Family Welfare,Himachal Pradesh

(DoH&FWor the “Concessioning authority”), invited Bids/Proposals from registered

Partnership Firms, Company and Joint Venture for thework of ‘SETTING UP OF


44


HEMODIALYSIS UNIT FOR MAINTENANCE OFHEMODIALYSIS IN THE STATE OF

HIMACHAL PRADESH at Regional Hospital KulluUNDER PPP FORMAT’(hereinafter

referred to as the “Project”).

B. M/s ______________, M/s. _______________ and M/s. ________________ have agreed

toconsolidate their resources and experience, and apply jointly as a Joint Venture(hereinafter

referred to as the “Joint Venture”), vide this Joint Venture Agreement,for the purpose of

developing and completing the Project, within time framestipulated in the Request for

Proposal Document (hereinafter referred to as the“RFP document”).

C. M/s ____________________, M/s. ________________ and M/s. _____________ have

thereforeagreed to enter into this Joint Venture Agreement in respect of the submission of

theBid/ Proposal for the Project on the terms set out below.

NOW THEREFORE IN CONSIDERATION OF THE PREMISES AND THE MUTUAL

CONVENANTS HEREIN CONTAINED THE PARTIES HEREBY AGREE AS FOLLOWS:

1. The recital herein contained shall constitute and integral and operative part ofthis

AGREEMENT.

2. The Parties hereto agree to consolidate their resources and hereby form a JointVenture to

jointly prepare, submit and Bid for the Project, which has financingand commercial benefits,

as detailed in the RFP document issued by CMO Kullu/ Department of Health and Family

Welfare(DoH&FW) for the development, implementation/execution and completion ofthe

Project.

3. The Parties hereto agree that __________ shall be the Lead Member and___________and

_________ shall be the JV Members respectively of the Joint Venture.

4. The Parties shall mutually and jointly take all the decisions in respect of theProject on behalf

of the Joint Venture. _____________ (Lead Member) shall beauthorized to act on behalf of

the Joint Venture as their representative fordevelopment, implementation/execution and

completion of the Project.

5. ________________ undertakes that it has the necessary qualification to fulfilltechnical and

financial capability criteria for the development,implementation/execution and completion of

the Project as detailed in the RFPDocument {including the draft Concession Agreement

(Section-II of the RFPdocument)}.

6. For the purpose of execution of the Project, in the event of award of the Projectto the Joint

Venture, the Parties will set up a Special Purpose Company (“SPC”),formed under the

Companies Act, 1956. The common equity shareholdingpattern of the SPC shall consist of

______% shares to be held by ______, ________%shares to be held by _________, and

__________% shares to be held by ______________

.___________ (Lead Member) shall individually and compulsorily hold at least 51%equity

stake in the SPC till the end of the Concession Period. On successful awardof the Project,

the SPC shall enter into Concession Agreement (the “ConcessionAgreement”) with CMO


45


Kullu/ DoH&FW (as per the RFP Document), which shallspecify the terms and conditions of

the development and completion of theProject and shall carry out all the responsibilities in

the terms of the RFPDocument.

The registered office of the Joint Venture/SPC shall be located at _______________.

7. __________, _________ and ___________ shall be jointly and severally liable for

thedevelopment/ implementation, operation and maintenance of the Project in accordance

with the terms of the RFP Document. It is further unanimouslyagreed by the Parties that the

Lead Member, alongwith other JV Members in theSPC shall:-

a) coordinate the day to day activities of the Joint Venture/SPC;

b) undertake to be jointly and severally liable/responsible for all theobligations and

liabilities relating to the Project, in accordance withthe terms of the RFP Document

and the Concession Agreement withCMO Kullu/ DoH&FW, till the end of the

Concession Period;

c) complete all works assigned under the RFP Document (includingConcession

Agreement) within the time period stipulated in the RFPdocument; and

d) Execute individual/independent Deed of Guarantee by all JVMembers, towards the

SPC, in favour of CMO Kullu/ DoH&FW for thepledging / providing technical, financial

and such other supports asmay be necessary for the performance of works assigned

under theRFP Document (including draft Concession Agreement) within thetime

period stipulated in the RFP document.

8. The role and the responsibility of each Party for the development/implementation, operation

& maintenance and execution of the Project shall beas follows:

Name of Member Type of Member Role & Responsibility

_______________

JV Member 1 (Lead

Member)

________________

_____________________

JV Member 2

___________________

Name of Member Type of Member Role & Responsibility

9. All the basic/fundamental terms and conditions of this AGREEMENT shall beincorporated in

the Article of Association of the SPC (to be incorporated by theParties). Any other terms and

conditions to the extent not agreed upon by theParties in this AGREEMENT (and which are

not contradictory to thebasic/fundamental provisions of this AGREEMENT) shall be mutually

agreedupon by the Parties and incorporated in the Article of Association of the SPC

10. Confidentiality – All information, document, etc. exchanged between the Partiesrelated to this

agreement or the preparation of any bid or the performance ofthe Project shall remain

confidential and shall not be revealed to third partiesfor a certain time period to be agreed

upon. Unless otherwise required by law,the Parties undertake not to disclose to any third

party or any else and / or useany Information, without prior consent of the other Party.


46


11. Term and Duration – This AGREEMENT shall come into effect on the date ofsubmission of

the Bid/Proposal for the development, implementation/executionand completion of the

Project. This AGREEMENT shall terminate upon thesuccessful completion of the Project and

may be extended further for suchperiod as may be required by the SH&FWS/ DoH&FW. This

AGREEMENT can beterminated only upon Joint Ventures/SPC’s Bid for the Project is

conclusively rejected by the SH&FWS/ DoH&FW.

12. Costs/Expenses – All out-of-pocket expenses/costs of and incidental to thisAGREEMENT

including stamp duty and registration fees, if any shall be borneand paid by the Parties in

proportion to their shareholding in the SPC. Each Party shall pay and bear their own

advocated/solicitors fees in the preparationof this AGREEMENT.

13. Governing Law – This AGREEMENT shall in all respect be governed, construedand

interpreted in accordance with laws of Republic of India.

14. Settlement of Disputes – Any disputes arising out of this AGREEMENT shall beamicably

settled by the authorised representatives of the Parties, failing withany such disputes shall be

resolved by Arbitration in accordance with theArbitration and Conciliation Act, 1996, by one

or more arbitrators appointed inaccordance with the said Act. This Clause shall survive the

termination of thisAGREEMENT.

Language of Arbitration shall be English. The venue of the Arbitrationproceedings shall be in

______________, India. The Parties jointly and severallyundertake that the development,

implementation/execution and completion ofthe Project shall not be affected during the

dispute(s) or the settlement ofdispute(s) period.

The Award rendered by the Arbitral Tribunal shall be final and binding upon theParties.

15. In the event of a dispute between the Parties over the subject of thisAGREEMENT, the

prevailing party shall be entitled to reasonableadvocates/solicitors’ fees and costs incurred in

the resolution of such dispute.

16. Amendments – This AGREEMENT can be amended or suppressed by furtheragreement

made in writing at the request of any of the Parties after unanimousapproval by the Parties

and by obtaining prior consent and written approvalfrom SH&FWS/ DoH&FW.

17. Notices – Any notices, requests, demands or any communications from anyparty to the other

party under this Agreement shall be by Regd. /Speed mail orfacsimile transmission sent to

the addresses as indicated in this Agreement. Anyparty may change its address but shall

promptly inform SH&FWS/ DoH&FW andthe other Parties/JV Members of any such change.

18. Language – The official language of this AGREEMENT and all future agreementsshall be

English


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19. Assignment – None of the Parties to this AGREEMENT shall have the right toassign its

benefits or liabilities under this AGREEMENT to any other company,firm or person without

obtaining prior consent and written approval ofSH&FWS/ DoH&FW.

20. Entire Agreement – This Agreement constitutes the entire agreement betweenthe Parties

and supersedes all prior writings, agreements or understandingsrelating to the subject matter

thereof.

IN WITNESS WHEREOFthe Parties hereto have caused this AGREEMENT to be executed bytheir

duly authorized representatives the day and year first above written.

SIGNED AND DELIVERED BY _____________________________

By: _________________________

Title: _________________________

Date: _________________________


By: _________________________

Title: _________________________

Date: _________________________


By: _________________________

Title: _________________________

Date: _________________________

Witness:

1. _________________________

2. _________________________


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K. Format of Deed of Guarantee (in case of JV) towards SPC

Format of Deed of Guarantee (in case of JV) towards SPC (if applicable & after NOA)


DEED OF GUARANTEE

THIS DEED OF GUARANTEE executed at _______ this ____ day of _______ by __________

(mention complete name) a company duly organized and existing under the laws of ___________

(insertjurisdiction / country), having its Registered Office at ___________ hereinafter called “the

Guarantor” or the “Joint Venture (JV) Member- (1/2)”, which expression shall, unlessexcluded by or

repugnant to the subject or context thereof, be deemed to include itssuccessors and permitted

assigns.

WHEREAS

A. NRHM, H.P., State Health & Family Welfare Society ; (hereinafter called

“SH&FWS”)/Department of Health and Family Welfare, Himachal Pradesh (DoH&FWor

the“Concessioning Authority”), which expression shall unless excluded by orrepugnant to

the context thereof, be deemed to include its successor and assigns),had invited Bids /

Proposals for the “Project” – Setting up of Hemodialysis unit formaintenance of

Hemodialysis in the State of Himachal Pradesh at Regional Hospital Kulluby

issuingRequest For Proposal (“RFP”) document (including its addendums) to theprospective

“Bidders” to implement the said Project for and on behalf of theConcessioning Authority.

B. M/s __________ (mention compete name), a company duly organized and existingunder

thelaws of India (insert jurisdiction / country), having its Registered Office at_________ (give

complete address) hereinafter called the Special Purpose Company“the SPC”, which

expression shall, unless excluded by or repugnant to the subject orcontext thereof, be

deemed to include its successor and permitted assigns, ∗ is anAffiliate of the Guarantor, and

has been formed for the development of the Projectwith one of the condition that the SPC

shall arrange guarantees from its JointVenture (JV) Members, i.e. Guarantors, guaranteeing


49


due and satisfactoryperformance of the work covered under the said RFP document

(including itsaddendums) or any change made in may be deemed appropriate by the CMO

Kullu/DoH&FW at any stage.

C. The Bid / Proposal submitted by the Joint Venture (JV) Members i.e.

(i)_______,(ii)_________ and (iii)___________ [Guarantors] was accepted by State Health &

FamilyWelfare Society (hereinafter referred as “SH&FWS” or the “Confirming

Party”)/Department of Health and Family Welfare, Himachal Pradesh (DoH&FWor the

“Concessioning authority”), and the Guarantors were declared the “SuccessfulBidder”.

Accordingly, this Guarantor i.e. Joint Venture (JV) Member- (1/2) isexecuting this individual

Deed of Guarantee towards / in favour of this SPC after theissuance of Notice of Award

(NOA) dated ______ by SH&FWS/ DoH&FW to the Successful Bidder.

* Affiliate shall mean and include – in case of a company or corporation, which is directly or indirectly owned by

the Guarantor / Parent / Holding Company, by way of ownership of more than 25% (twenty five per cent) [in

case of Lead Member – 51% (fifty one percent)] of the voting shares of such Affiliate company.

D. The Guarantor represents that it has gone through and understood the requirement of the

above said RFP document (including its addendums) and are capable of and committed to

provide technical, financial and such other supports as may berequired by the SPC for the

successful execution of the same.

E. The Guarantor is executing this Deed of Guarantee in favour of CMO Kullu/

DoH&FW,wherein the Guarantor (alongwith other Joint Venture (JV) Members) and

theAffiliate (SPC) shall be jointly and severally liable towards the Project and theGuarantor

shall also be pledging / providing technical, financial and such othersupports as may be

necessary to the Affiliate (SPC) for performance of the workrelating to the said Project as per

the RFP document (including its addendums) andas per the Concession Agreement

contained in the RFP document.

F. Accordingly, at the request of the Affiliate and in consideration of and as arequirement for

DHFW/ HSPCB to enter into agreement(s) with the SPC, theGuarantor hereby agrees to

give this Guarantee and undertakes as follows:

1. The Guarantor (JV Member-1/2) unconditionally agrees that in case of

nonperformanceby the SPC of any of its obligations in any respect, theGuarantor

shall, immediately on receipt of notice of demand by SH&FWS/DoH&FW, take up the

Project without any demur or objection, incontinuation and without loss of time and

without any cost to SH&FWS/DoH&FW and duly perform the obligations and

responsibilities of the SPC tothe satisfaction of SH&FWS/ DoH&FW. In case the

Guarantor also fails todischarge its obligations herein and is not able to complete the

Projectsatisfactorily, SH&FWS/ DoH&FW shall have absolute rights for effecting the

execution of the Project from any other person at the risks and costs of

theGuarantor. The Guarantor also undertakes to make good any loss that maybe

caused to SH&FWS/ DoH&FW for any non-performance or

unsatisfactoryperformance by the Guarantor or the SPC of any of their obligations.


50


2. The Guarantor agrees that the Guarantee herein contained shall remainvalid and

enforceable till the satisfactory execution and completion of theProject (including

discharge of the warranty obligations) awarded to the SPCtill the completion of the

Concession Period (including any extension).

3. The Guarantor shall be jointly with the SPC, as also severally responsible forthe

satisfactory execution and performance of Project during the currency ofthe

“Concession Agreement” to be entered between the SPC and SH&FWS/DoH&FW.

4. The Guarantor represents that this Guarantee has been issued after dueobservance

of the appropriate laws in force in India. The Guarantor herebyundertakes that the

Guarantor shall obtain and maintain in full force andeffect all the governmental and

other approvals, permits and consents that are necessary and do all other acts and

things necessary or desirable inconnection therewith or for the due performance of

the Guarantor’sobligations hereunder.

5. The Guarantor also agrees that this Guarantee shall be governed andconstrued in

accordance with the laws in force in India and subject to theexclusive jurisdiction of

the courts of only Shimla, India.

6. The Guarantor hereby declares and represents that this Guarantee has beengiven

without any undue influence or coercion from any person and that theGuarantor has

fully understood the implications of the same.

7. The Guarantor represents and confirms that the Guarantor has the legalcapacity,

power and authority to issue this Guarantee and that giving of thisGuarantee and the

performance and observations of the obligationshereunder do not contravene any

existing law or any judgment.

8. The Guarantor represents and confirms that in pursuance to Para / Point 7,the

Guarantor has submitted and provided to CMO Kullu/ DoH&FW (with thisDeed of

Guarantee), a valid Board Resolution duly authorizing the Guarantorto pledge /

provide technical, financial and such other supports as may benecessary for

performance of the work relating to the said Project as per theRFP and Concession

Agreement.

For & on behalf of _____________________

_______________________________

Witness:

1.

2.


51
