Model EPC Agreement

Revised draft for discussion
MODEL
EPC AGREEMENT
FOR
HIGHWAYS
National Council of Applied Economic Research

New Delhi
Contents
PART I
PRELIMINARY
Recitals
1
Definitions and Interpretation
1.1
1.2
1.3
1.4
Definitions
Interpretation
Measurements and Arithmetic Conventions
Priority of Agreements and Errors/Discrepancies
PART II
SCOPE OF PROJECT AND OBLIGATIONS OF THE PARTIES
2
Scope of the Project
2.1
Obligations of the Contractor
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9

Obligations relating to Sub-contracts and any other Agreements
Employment of foreign nationals
Employment and Removal of Contractors personnel
Advertisement on Project Highway
Contractor's Care of the Construction Work
Electricity, Water and Gas
Unforeseeable Difficulties
Obligations relating to Change in Ownership
Obligations of the Authority
4.1
4.2

Maintenance obligations prior to Signing of Agreement
Representations and Warranties
5.1
5.2
5.3
Representations and Warranties of the Contractor

Representations and Warranties of the Authority
Disclosure
Disclaimer
6.1
Disclaimer
PART III
DESIGN, CONSTRUCTION AND MAINTENANCE

7
Performance Security
7.1
7.2
7.3
7.4
Extension of Performance Security
Appropriation of Performance Security
Release of Performance Security
Right of Way
8.1
8.2
8.3
8.4
8.5
8.6
8.7
8.8
The Site
Compensation for delay in handing over the Site
Procurement of the Site
Site to be free from Encumbrances
Protection of Site from encroachments
Special/temporary right of way
Access to Authority and Engineer
Geological and archaeological finds
Utilities, Obstructions and Trees
9.1
9.2
9.3
9.4
Existing utilities and roads

Shifting of utilities and removal of obstructions
New utilities
Felling of Trees
10
Design and Construction of the Project Highway
10.1
10.2
10.3
10.4
10.5
Obligations prior to commencement of Construction Works

Design and Drawings
Construction of the Project Highway
Maintenance during Construction Period
Extension of Time for Completion
11
Quality Assurance, Monitoring and Supervision
11.1
11.2
11.3
11.4
11.5
11.6
11.7
11.8
11.9
11.10
11.11
11.12
11.13
11.14
11.15
11.16
Quality of Materials and Workmanship

Quality control system
Methodology
Inspection and technical audit by the Authority
External Audit
Audit
Monthly progress reports
Inspection
Samples
Tests
Examination of Works before covering up
Rejection
Remedial of Work
Delays during construction
Quality control records and documents
Video recording

12
Completion Certificate
12.1
12.2
12.3
12.4
12.5
12.6
Tests on Completion
Rescheduling of Tests
Taking Over Certificate
Certificate of Performance
Clearance of Site
13
Change of Scope
13.1
13.2
13.3
13.4
13.5
13.6
Change of Scope
Procedure for Change of Scope
Payment for Change of Scope
Restrictions on Change of Scope
Change of Scope during Maintenance Period
Power of the Authority to undertake works
14
Maintenance
14.1
14.2
14.3
14.4
14.5
14.6
14.7
14.8
14.9
14.10
Maintenance obligations of the Contractor

Maintenance Requirements
Maintenance Manual
Maintenance Programme
Safety, vehicle breakdowns and accidents
Lane closure
Reduction of payment for non-performance of maintenance obligations
Authoritys right to take remedial measures
Restoration of loss or damage to Project Highway
Advertising on the Site
15
Safety Requirements
15.1
15.2
15.3
15.4
Safety Requirements
Use of Explosives
Accident Prevention Officer
Expenditure on Safety Requirements
16
Supervision and Monitoring of during Maintenance Period
16.1
16.2
16.3
16.4
16.5
Inspection by the Contractor

Inspection and Payments
Tests
Remedial measures
Reports of unusual occurrence
17
Traffic Regulation
17.1
17.2
Traffic regulation by the Contractor

Highway Patrolling System
18
Defects Liability

18.1
18.2
18.3
18.4
18.5
18.6
18.7
Defects Liability
Remedying Defects
Cost of Remedying Defects
Contractors failure to rectify Defects
Contractor to Search
Performance Warranty
Clearance of Site
19
Engineer
19.1
19.2
19.3
19.4
19.5
19.6
19.7
Appointment of Engineer
Duties and authority of the Engineer
Delegation by the Engineer
Instructions
Remuneration
Replacement of the Engineer
Determination
PART IV
FINANCIAL MATTERS
20
Payments
20.1
20.2
20.3
20.4
20.5
20.6
20.8
20.9
20.10.
20.11
20.12
20.13
20.14
20.15
20.16
20.17
20.18
20.19
Contract Price
Advance Payment
Procedure for estimating the monthly payment for the Project Highway
Monthly Statement for Construction Works
Monthly Payment for Construction Works
Monthly Statement for Maintenance of the Project Highway during the
Maintenance Period
Monthly Payment for Maintenance of Works the Project Highway during the
Maintenance Period
Payment of Damages
Time of Payment and Interest
Price Adjustment for the Construction Works
Price Adjustment for Maintenance of Project Highway
Base, Current and Provisional Indices
Limit of Price Adjustment
Final Statement for Construction Works
Discharge
Final Payment Certificate
Annual Statement for Maintenance
Change in law
Correction of Certificates
21
Insurance
21.1
21.2
Insurance during Agreement Period

Notice to the Authority
20.7

21.3
21.4
21.5
21.6
21.7
21.8
21.9
21.10
21.11
21.12
21.13
Evidence of Insurance Cover

Remedy for failure to insure
Waiver of subrogation
Contractors waiver
Cross Liabilities
Accident or injury to Workmen
Insurance against Accident to Workmen
Responsibility for Amounts not recovered
Application of insurance proceeds
Compliance with Policy Conditions
PART V
FORCE MAJEURE, SUSPENSION, TERMINATION
22
Force Majeure
22.1
22.2
22.3
22.4
22.5
22.6
22.7
22.8
22.9
22.10
Force Majeure
Non-Political Event
Indirect Political Event
Political Event
Duty to report Force Majeure Event
Effect of Force Majeure Event on the Agreement
Termination Notice for Force Majeure Event
Termination Payment for Force Majeure Event
Dispute Resolution
Excuse from performance of obligations
23
Suspension
23.1
23.2
23.3
Suspension of Construction Work for Contractors failure

Extension of Time on account of Suspension
Authority to act on behalf of Contractor
24
Termination
24.1
24.2
24.3
24.4
24.5
24.6
24.7
Termination for Contractor Default

Termination for Authority Default
Termination for Authoritys Convenience
Requirements after Termination
Termination Payment
Property
Survival of rights
PA RT VI
OTHER PROVISIONS
25
Assignment and Charges
25.1
Restrictions on assignment and charges

26
Liability and Indemnity
26.1
26.2
26.3
26.4
26.5
26.6
General indemnity
Indemnity by the Contractor
Notice and contest of claims
Defence of claims
No consequential claims
Survival on Termination
27
Dispute Resolution
27.1
27.2
27.3
27.4
27.5
Dispute Review Board

Recommendation of Dispute Review Board
Disbanding the Dispute Review Board
Arbitration
Adjudication by Regulatory Authority or Commission
28
Miscellaneous
28.1
28.2
28.3
28.4
28.5
28.6
28.7
28.8
28.9
28.10
28.11
28.12
28.13
28.14
28.15
28.16
28.17
Governing law and jurisdiction

Waiver of immunity
Delayed payments
Waiver
Liability for review of Documents and Drawings
Exclusion of implied warranties etc.
Survival
Entire Agreement
Severability
No partnership
Third Parties
Successors and Assigns
Notices
Language
Counterparts
Confidentiality
Copyright and Intellectual Property Rights
29
Definitions
29.1
Definitions
Schedules
A
Site of the Project
1.
The Site
Annex-I: Site
Annex-II: Dates of Handing over Possession of Right of Way
Annex-III: Environment Clearances
Development of the Project Highway

1
2

Construction
Annex-I: Description of Project Highway
Project Facilities
1
2
Project Facilities
Description of Project Facilities
Specifications and Standards
Construction
Annex-I: Specifications and Standards for Construction and Maintenance
1
2
3
4
5
6
7.
Repair/rectification of defects and deficiencies
Other defects and deficiencies
Extension of time limit
Emergency repairs/restoration
Daily Inspection by the Contractor
Pre-monsoon Inspection
Annex I Repair/ Rectification of Defects and Deficiencies
Applicable Permits
Applicable Permits
Safety and Welfare Provisions for Labour
1
2.
3
4
5.
6
7
8
Guiding principles of Safety Requirements

Obligations of the Contractor for Safety Requirements
Appointment of Safety Auditor
Safety measures during Design Period
Safety measures during Construction Period
Safety Audit
Costs and Expenses
Safety & Welfare Provisions for labour to be employed by the Contractor
Annex I Safety & Welfare Provisions for labour
Contract Price Weightages
Contract Price
Shifting of Utilities and Obstructions
Project Completion Schedule

2
3
4
5
6
Project Milestone-I
Project Milestone-II
Project Milestone-III
Scheduled Completion Date
Extension of period
Drawings
1
2
Drawings
Additional drawings
Annex-I: List of Drawings
Tests
1
2
3
4
Schedule for Tests

Tests
Agency for conducting Tests
Completion/Provisional Certificate
1
2
Provisional Certificate
Payment Reductions for Non-compliance
1
2
Payment reduction for non-compliance with the Maintenance Requirements

Percentage reductions in lump sum payments
Indemnity Bond
Selection of Engineer
1
2
3
Fee and expenses
Appointment of government entity as Engineer
Officers of the Authority
Forms for payments to the Contractor
1
2
3

Monthly Statement for Maintenance of the Project Highway
Contractors Claim for Damages for delay in providing the Right of Way.
Insurance
1
2
3
4
5
Insurance of Works and Contractor's Equipment during Construction Period

Insurance for Contractor's Defect Liability Period
Insurance during the Maintenance Period
Third Party Insurance (including Authority's Property)
Insurance for Indirect Political Event
Disputes Review Boards Rules and Procedures
Part I
Preliminary

ENGINEERING, PROCUREMENT, CONSTRUCTION AND MAINTENANCE
AGREEMENT
THIS AGREEMENT1 is entered into on this the .. day of , 20..

BETWEEN
THE NATIONAL HIGHWAYS AUTHORITY OF INDIA, established
under the National Highways Authority of India Act 1988, represented by its
Chairman and having its principal offices at G-5 & 6, Sector 10, Dwarka,
New Delhi-110075 (hereinafter referred to as the Authority which
expression shall, unless repugnant to the context or meaning thereof, include
its administrators, successors and assigns) of One Part;
AND
2
{.. LIMITED}$, a company incorporated under the provisions of

the Companies Act, 1956 and having its registered office at ,
(hereinafter referred to as the Contractor which expression shall, unless
repugnant to the context or meaning thereof, include its successors and
permitted assigns and substitutes) of the Other Part.
WHEREAS:
(A)
The Government of India had entrusted to the Authority [the development,

maintenance and management of National Highway No. **2 including the
section from km ** to km ** (approx. *** km)]3.
(B)
The Authority had resolved to [augment the existing road from km ** to km

** (approximately *** km) on the *** section of National Highway No.**
(hereinafter called the NH -**) in ***** by Four-Laning and subsequent
Six-Laning thereof] on Engineering, Procurement, Construction and
Maintenance (EPC) basis in accordance with the terms and conditions to
be set forth in an agreement to be entered into.
(C)
The Authority had accordingly invited proposals by its [Notice/ Request for
Qualification No. *** dated ***] (the Request for Qualification or
RFQ) for short listing of bidders for Engineering, Procurement,
Construction and Maintenance of the above referred section of NH -** on
EPC basis and had shortlisted certain bidders including, inter alia, the {the
selected
bidder/
consortium
comprising
.,
. and (collectively the
Serially numbered footnotes in this Agreement are for guidance of the Authority and should
be omitted from the draft Agreement forming part of Bid Documents. Footnotes marked $
shall be retained in the draft Agreement.
The provisions in curly parenthesis and the blank spaces in the draft Agreement shall be
suitably modified/ filled after completion of the bid process to reflect the particulars relating
to the selected bidder.
All asterisks in this Model Agreement should be substituted by project-specific particulars in
the draft Agreement forming part of Bid Documents.
All project-specific provisions in this Model Agreement have been enclosed in square
parenthesis and may be modified, as necessary, before issuing the draft Agreement forming
part of Bid Documents.

Consortium) with ..as its Lead Member}.
(D)
The Authority had prescribed the technical and commercial terms and
conditions, and invited bids (the Request for Proposals or RFP) from
the bidders shortlisted pursuant to the RFQ for undertaking the Project.
(E)
After evaluation of the bids received, the Authority had accepted the bid of
the {selected bidder/ Consortium} and issued its Letter of Acceptance No.
.. dated .. (hereinafter called the LOA) to the {selected
bidder/ Consortium} for Engineering, Procurement, Construction and
Maintenance of the above section of NH ** at contract price (the Contract
Price) of Rs [***] requiring the selected bidder/Consortium to inter alia:.
(a)
provide to the Authority an irrevocable and unconditional guarantee from a

Bank for a sum equivalent to Rs. ***** crore (Rupees ***** crore)4 in the
form set forth in Schedule H, within 21 days of the date of issue of LOA;
deliver to the Authority a legal opinion from the legal counsel of the selected
bidder/ Consortium with respect to the authority of the selected bidder/
Consortium to enter into this Agreement and the enforceability of the
provisions thereof, within 21 days of the date of issue of LOA;
provide a guarantee for a sum equivalent to Rs. ***** crore (Rupees *****
crore)5 from the Lead Member of the selected Consortium in the form set
forth in Appendix VII of the RFP accepting the responsibility to pay to the
Authority in the event of default of the Contractor in the payment of any
amount due or recoverable from him in accordance with the provisions of
the Agreement, within 21 days of the date of issue of LOA;}; and
execute this Agreement within 28 (twenty eight) days of the date of issue of
LOA.
(b)
{(c)
(d)
(F)
{The selected Consortium has since promoted and incorporated the

Contractor as a limited liability company under the Companies Act 1956,
and has requested the Authority to accept the Contractor as the entity which
shall undertake and perform the obligations and exercise the rights of the
selected Consortium under the LOA,} including the obligation to enter into
this Agreement pursuant to the LOA for executing the Project.}
(G)
{By its letter dated ., the Contractor has also joined in the said
request of the selected Consortium to the Authority to accept it as the entity
which shall undertake and perform the obligations and exercise the rights of
the selected Consortium including the obligation to enter into this Agreement
pursuant to the LOA. It has further represented to the effect that it has been
promoted by the selected Consortium for the purposes hereof.}
(H)
{The Authority has agreed to the said request of the selected Consortium and
the Contractor, and has accordingly agreed to enter into this Agreement with
the Contractor for execution of the Project on EPC basis, subject to and on
the terms and conditions set forth hereinafter.}
4
5
Calculated @ 5% (five per cent) of the Contract Price specified in the LOA.
Calculated @ 15% (fifteen per cent) of the Contract Price specified in the LOA

(I)
The Contractor has fulfilled the requirements specified in Recital (E) above;
NOW THEREFORE in consideration of the foregoing the Authority hereby
covenants to pay the Contractor, in consideration of the Engineering,
Procurement, Construction and Maintenance of the Project Highway, the
Contract Price or such other sum as may become payable under the
provisions of the Agreement at the times and in the manner prescribed by the
Agreement and the respective covenants and agreements set forth in this
Agreement, the sufficiency and adequacy of which is hereby acknowledged,
and intending to be legally bound hereby, the Parties agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION

1.1
Definitions
The words and expressions beginning with capital letters and defined in this
Agreement (including those in Article 29) shall, unless the context otherwise
requires, have the meaning ascribed thereto herein, and the words and
expressions defined in the Schedules and used therein shall have the meaning
ascribed thereto in the Schedules.
1.2
Interpretation
1.2.1
In this Agreement, unless the context otherwise requires,
(a)
references to any legislation or any provision thereof shall include

amendment or re-enactment or consolidation of such legislation or any
provision thereof so far as such amendment or re-enactment or consolidation
applies or is capable of applying to any transaction entered into hereunder;
(b)
references to laws of India or Indian law or regulation having the force of

law shall include the laws, acts, ordinances, rules, regulations, bye laws or
notifications which have the force of law in the territory of India and as from
time to time may be amended, modified, supplemented, extended or reenacted;
(c)
references to a person and words denoting a natural person shall be

construed as a reference to any individual, firm, company, corporation,
society, trust, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or more
of the above and shall include successors and assigns;
(d)
the table of contents, headings or sub-headings in this Agreement are for

convenience of reference only and shall not be used in, and shall not affect,
the construction or interpretation of this Agreement;
(e)
the words include and including are to be construed without limitation

and shall be deemed to be followed by without limitation or but not
limited to whether or not they are followed by such phrases;
(f)
references to construction or building include, unless the context

otherwise requires, survey and investigation, design, developing,
engineering, procurement, supply of Plant, Materials, Equipment, labour,
delivery, transportation, installation, processing, fabrication, testing,
commissioning and maintenance of the Project Highway, including
removing of Defects, if any, and other activities incidental to the
construction and construct or build shall be construed accordingly;

(g)
references to development include, unless the context otherwise requires,

construction, renovation, refurbishing, augmentation, up-gradation and other
activities incidental thereto, and develop shall be construed accordingly;
(h)
any reference to any period of time shall mean a reference to that according
to Indian Standard Time;
(i)
any reference to day shall mean a reference to a calendar day;
(j)
references to a business day shall be construed as a reference to a day

(other than a Sunday) on which banks in [Delhi] are generally open for
business;
(k)
any reference to month shall mean a reference to a calendar month as per the
Gregorian calendar;
(l)
references to any date, period or Project Milestone shall mean and include
such date, period or Project Milestone as may be extended pursuant to this
Agreement;
(m)
any reference to any period commencing from a specified day or date and
till or until a specified day or date shall include both such days or dates;
provided that if the last day of any period computed under this Agreement is
not a business day, then the period shall run until the end of the next business
day;
(n)
the words importing singular shall include plural and vice versa;
(o)
references to any gender shall include the other and the neutral gender;
(p)
lakh means a hundred thousand (100,000) and crore means ten million
(10,000,000);
(q)
indebtedness shall be construed so as to include any obligation (whether

incurred as principal or surety) for the payment or repayment of money,
whether present or future, actual or contingent;
(r)
references to the winding-up, dissolution, insolvency, or

reorganisation of a company or corporation shall be construed so as to
include any equivalent or analogous proceedings under the law of the
jurisdiction in which such company or corporation is incorporated or any
jurisdiction in which such company or corporation carries on business
including the seeking of liquidation, winding-up, reorganisation, dissolution,
arrangement, protection or relief of debtors;
(s)
save and except as otherwise provided in this Agreement, any reference, at

any time, to any agreement, deed, instrument, licence or document of any
description shall be construed as reference to that agreement, deed,
instrument, licence or other document as amended, varied, supplemented,
modified or suspended at the time of such reference; provided that this Subclause shall not operate so as to increase liabilities or obligations of the
Authority hereunder or pursuant hereto in any manner whatsoever;

(t)
any agreement, consent, approval, authorisation, notice, communication,

information or report required under or pursuant to this Agreement from or
by any Party or the Engineer shall be valid and effective only if it is in
writing under the hand of a duly authorised representative of such Party or
the Engineer, as the case may be, in this behalf and not otherwise;
(u)
the Schedules and Recitals to this Agreement form an integral part of this
Agreement and will be in full force and effect as though they were expressly
set out in the body of this Agreement;
(v)
references to Recitals, Articles, Clauses, Sub-clauses or Schedules in this

Agreement shall, except where the context otherwise requires, mean
references to Recitals, Articles, Clauses, Sub-clauses and Schedules of or to
this Agreement, and references to a Paragraph shall, subject to any contrary
indication, be construed as a reference to a Paragraph of this Agreement or of
the Schedule in which such reference appears; and
(w)
the damages payable by either Party to the other of them, as set forth in this
Agreement, whether on per diem basis or otherwise, are mutually agreed
genuine pre-estimated loss and damage likely to be suffered and incurred by
the Party entitled to receive the same and are not by way of penalty (the
Damages).
(x)
time shall be of the essence in the performance of the Parties respective

obligations. If any time period specified herein is extended, such extended
time shall also be of the essence.
1.2.2 Unless expressly provided otherwise in this Agreement, any Documentation

required to be provided or furnished by the Contractor to the Authority shall
be provided free of cost and in three copies, and if the Authority is required
to return any such Documentation with their comments and/or approval, they
shall be entitled to retain two copies thereof.
1.2.3 The rule of construction, if any, that a contract should be interpreted against
the parties responsible for the drafting and preparation thereof, shall not
apply.
1.2.4 Any word or expression used in this Agreement shall, unless otherwise
defined or construed in this Agreement, bear its ordinary English meaning
and, for these purposes, the General Clauses Act 1897 shall not apply.
1.3
Measurements and arithmetic conventions

All measurements and calculations shall be in the metric system and
calculations done to 2 (two) decimal places, with the third digit of 5 (five) or
above being rounded up and below 5 (five) being rounded down.
1.4
Priority of agreements and errors/discrepancies
1.4.1 This Agreement, and all other agreements and documents forming part of or
referred to in this Agreement are to be taken as mutually explanatory and,

unless otherwise expressly provided elsewhere in this Agreement, the
priority of this Agreement and other documents and agreements forming part
hereof or referred to herein shall, in the event of any conflict between them,
be in the following order:
(a)
this Agreement; and
(b)
all other agreements and documents forming part hereof or referred to

herein; i.e. the Agreement at (a) above shall prevail over the agreements and
documents at (b) above.
1.4.2 Subject to the provisions of Sub-clause 1.4.1, in case of ambiguities or

discrepancies within this Agreement, the following shall apply:
(a)
between two or more Clauses of this Agreement, the provisions of a specific

Clause relevant to the issue under consideration shall prevail over those in
other Clauses;
(b)
between the Clauses of this Agreement and the Schedules, the Clauses shall
prevail and between Schedules and Annexes, the Schedules shall prevail;
(c)
between any two Schedules, the Schedule relevant to the issue shall prevail;
(d)
between the written description on the Drawings and the Specifications and
Standards, the latter shall prevail;
(e)
between the dimension scaled from the Drawing and its specific written
dimension, the latter shall prevail; and
(f)
between any value written in numerals and that in words, the latter shall
prevail.
Part II
Scope of Project and Obligations of the
Parties

ARTICLE 2
SCOPE OF THE PROJECT
2.1

Under this Agreement the scope of the Project (the Scope of the Project)
shall mean and include:
(a)
construction of the Project Highway on the Site set forth in ScheduleA and as specified in Schedule-B together with provision of Project
Facilities as specified in Schedule-C, and in conformity with the
Specifications and Standards set forth in Schedule-D;
(b)
maintenance of the Project Highway in accordance with the

provisions of this Agreement and in conformity with the
requirements set forth in Schedule E; and
(c)
performance and fulfilment of all other obligations of the Contractor

in accordance with the provisions of this Agreement and matters
incidental thereto or necessary for the performance of any or all of
the obligations of the Contractor under this Agreement.

ARTICLE 3
OBLIGATIONS OF THE CONTRACTOR
3.1
3.1.1 Subject to and on the terms and conditions of this Agreement, the Contractor
shall, at its own cost and expense, undertake the survey, investigation,
design, engineering, procurement, construction, and maintenance of the
Project Highway and observe, fulfil, comply with and perform all its
obligations set out in this Agreement or arising hereunder.
3.1.2 The Contractor shall comply with all Applicable Laws and Applicable
Permits (including renewals as required) in the performance of its obligations
under this Agreement.
3.1.3 Subject to the provisions of Sub-clauses 3.1.1 and 3.1.2, the Contractor shall
discharge its obligations in accordance with Good Industry Practice and as a
reasonable and prudent person.
3.1.4 The Contractor shall remedy any and all loss or damage to the Project
Highway or Materials to be incorporated in the Project Highway from the
Start Date till the end of the Defects Liability Period at the Contractors cost
if such loss or damage is attributable to the Contractors acts or omissions.
3.1.5 The Contractor shall, at its own cost and expense, in addition to and not in
derogation of its obligations elsewhere set out in this Agreement:
(a)
make, or cause to be made, necessary applications to the relevant

Government Instrumentalities with such particulars and details as
may be required for obtaining Applicable Permits set forth in
Schedule F, and obtain and keep in force and effect such Applicable
Permits in conformity with the Applicable Laws;
(b)
procure, as required, the appropriate proprietary rights, licences,

agreements and permissions for Materials, methods, processes and
systems used or incorporated into the Project Highway;
(c)
make reasonable efforts to maintain harmony and good industrial

relations among the personnel employed by it or its Sub-contractors
in connection with the performance of its obligations under this
Agreement;
(d)
ensure and procure that its Sub-contractors comply with all

Applicable Permits and Applicable Laws in the performance by them
of any of the Contractors obligations under this Agreement;
(e)
not do or omit to do any act, deed or thing which may in any manner
be violative of any of the provisions of this Agreement;
(f)
support, cooperate with and facilitate the Authority in the

implementation and operation of the Project in accordance with the

provisions of this Agreement; and
3.2
(g)
ensure that the Contractor and its Sub-contractors comply with the
safety and welfare measure for labour set forth in Schedule G; and
(h)
The Contractor shall keep, on the Site, a copy of the Agreement, publications
named in the Agreement, the Drawings, Documents relating to the Project, and
Change of Scope Orders and other communications given under the Agreement.
The Engineer and his authorised personnel shall have the right of access to all these
documents at all reasonable times.
Obligations relating to Sub-contracts and any other agreements
3.2.1 The Contractor shall obtain prior written approval of the Authority for all Sub-contracts.
Further, the Contractor shall not sub-contract exceeding [30] [thirty] percent of the Contract
Price.
3.2.2 It is expressly agreed that the Contractor shall, at all times, be responsible
and liable for all its obligations under this Agreement notwithstanding
anything contained in the agreements with its Sub-contractors or any other
agreement that may be entered into by the Contractor, and no default under
any such agreement shall excuse the Contractor from its obligations or
liability hereunder.
3.3
Employment of foreign nationals

The Contractor acknowledges, agrees and undertakes that employment of
foreign personnel by the Contractor and/or its Sub-contractors and their subcontractors shall be subject to grant of requisite regulatory permits and
approvals including employment/residential visas and work permits, if any
required, and the obligation to apply for and obtain the same shall and will
always be of the Contractor. Notwithstanding anything to the contrary
contained in this Agreement, refusal of or inability to obtain any such
permits and approvals by the Contractor or any of its Sub-contractors or their
sub-contractors shall not constitute Force Majeure Event, and shall not in any
manner excuse the Contractor from the performance and discharge of its
obligations and liabilities under this Agreement.
3.4
Employment and Removal of Contractors personnel
3.4.1 The Contractor shall ensure that the personnel engaged by it in the
performance of its obligations under this Agreement are at all times properly
trained for their respective functions.
3.4.2 The Engineer may direct the Contractor to remove any member of the
Contractors personnel. Provided that, any such direction issued by the
Engineer shall contain in detail the reasons for the removal of such person.
3.4.3 The Contractor shall on receiving such a direction from the Engineer order
for the removal of such person or persons with immediate effect. It shall be
the duty of the Contractor to ensure that such persons are evicted from the
Site within 7 [seven] days of any such direction being issued in pursuance of

Clause 3.4.2. The Contractor shall further ensure that such persons have no
further connection with the Construction Works under the Agreement.
3.5
Advertisement on Project Highway

The Project Highway or any part thereof shall not be used in any manner to
advertise any commercial product or services. It is agreed that the Contractor
may display citizen information boards with its contents and locations
approved by the Engineer.
3.6
3.7
Contractor's Care of the Construction Works

Subject to the insurance obligations of the Parties, the Contractor shall bear
full risk in and take full responsibility for the care of the Construction Works
and Materials, goods and equipment for incorporation therein from the Start
Date until the Taking-Over Certificate is issued, except and to the extent that
any loss of or damage to the same shall arise out of any default or neglect of
the Authority.
Electricity, Water and Gas
The Contractor shall be responsible for the provision of all power, water and
other services he may require.
3.8
Unforeseeable Difficulties
Except as otherwise stated in the Contract:
{3.9
(a)
the Contractor accepts total responsibility for having foreseen all

difficulties and costs of successfully completing the Construction
Works; and
(b)
the Contract Price shall not be adjusted to take account of any

unforeseen difficulties or costs.
Obligations relating to Change in Ownership
3.9.1 In the event the Contractor is a company incorporated under the Indian
Companies Act promoted and formed by the Consortium referred to in
Recitals (F), (G) and (H), the Contractor shall not undertake or permit any
Change in Ownership, except with the prior approval of the Authority.
3.9.2 Notwithstanding anything to the contrary contained in this Agreement, the
Contractor agrees and acknowledges that:
(a)
all acquisitions of Equity by an acquirer, either by himself or with

any person acting in concert, directly or indirectly, including by
transfer of the direct or indirect legal or beneficial ownership or
control of any Equity, in aggregate of not less than 15% (fifteen per
cent) of the total Equity of the Contractor; or
(b)
acquisition of any control directly or indirectly of the Board of

Directors of the Contractor by any person either by himself or

together with any person or persons acting in concert with him shall
constitute a Change in Ownership requiring prior approval of the
Authority from national security and public interest perspective, the
decision of the Authority in this behalf being final, conclusive and
binding on the Contractor, and undertakes that it shall not give effect
to any such acquisition of Equity or control of the Board of Directors
of the Contractor without such prior approval of the Authority. For
the avoidance of doubt, it is expressly agreed that approval of the
Authority hereunder shall be limited to national security and public
interest perspective, and the Authority shall endeavour to convey its
decision thereon expeditiously. It is also agreed that the Authority
shall not be liable in any manner on account of grant or otherwise of
such approval and that such approval or denial thereof shall not in
any manner absolve the Contractor from any liability or obligation
under this Agreement.
For the purposes of this Sub-clause 3.9.2:
(i)
the expression acquirer, control and person acting in concert

shall have the meaning ascribed thereto in the Securities and
Exchange Board of India (Substantial Acquisition of Shares and
Takeover) Regulations, 1997 or any statutory re-enactment thereof as
in force as on the date of acquisition of Equity, or the control of the
Board of Directors, as the case may be, of the Contractor;
(ii)
the indirect transfer or control of legal or beneficial ownership of

Equity shall mean transfer of the direct or indirect beneficial
ownership or control of any company or companies whether in India
or abroad which results in the acquirer acquiring control over the
shares or voting rights of shares of the Contractor; and
(iii)
power to appoint, whether by contract or by virtue of control or

acquisition of shares of any company holding directly or through one
or more companies (whether situate in India or abroad) the Equity of
the Contractor, not less than half of the directors on the Board of
Directors of the Contractor or of any company, directly or indirectly
whether situate in India or abroad, having ultimate control of not less
than 15% (fifteen per cent) of the Equity of the Contractor shall
constitute acquisition of control, directly or indirectly, of the Board of
Directors of the Contractor.}

ARTICLE 4
OBLIGATIONS OF THE AUTHORITY
4.1
4.1.1 The Authority shall, at its own cost and expense, undertake, comply with and
perform all its obligations set out in this Agreement or arising hereunder.
4.1.2 The Authority shall be responsible for the correctness and completeness of
the Schedules A, B, C, D and E relating to the Scope of the Project.
4.1.3 The Authority shall provide to the Contractor:
(a)
the Right of Way in accordance with the provisions of Clauses 8.2

and 8.3;
(b)
approval of the Railway authorities in the form of a general

arrangement drawing that would enable the Contractor to construct
road over-bridges/ under-bridges at level crossings on the Project
Highway in accordance with the Specifications and Standards and
subject to the terms and conditions specified in such approval within
a period of [90] days from the Start Date; and
(c)
all Applicable Permits relating to environmental protection and

conservation of the Site as set forth in Sub-clause 8.2.7.
[Provided that the Authority may from time to time by notice extend,
for up to an aggregate of 3 (three) months, the period for procuring
the approval set forth in Sub-clause (b) and/ or Sub-clause (c) above
and in that event the land to be covered by over-bridges or the
affected sections of the Project Highway, as the case may be, shall be
included in the Appendix referred to in Clause 8.3 and dealt with in
accordance with the provisions thereof; and provided further that
upon procurement of such approval, the Contractor shall be entitled
to a period of 12 (twelve) months therefrom for completion of the
over-bridges.]
4.1.4 The Authority agrees to provide support to the Contractor and undertakes to
observe, comply with and perform, subject to and in accordance with the
provisions of this Agreement and the Applicable Laws, the following:
(a)
upon written request from the Contractor, and subject to the

Contractor complying with Applicable Laws, provide reasonable
support and assistance to the Contractor in procuring Applicable
Permits required from any Government Instrumentality for
implementation and operation of the Project;
(b)
upon written request from the Contractor, provide reasonable

assistance to the Contractor in obtaining access to all necessary
infrastructure facilities and utilities, including water and electricity at
rates and on terms no less favourable to the Contractor than those

generally available to commercial customers receiving substantially
equivalent services;
4.2
(c)
procure that no barriers are erected or placed on or about the Project

Highway by any Government Instrumentality or persons claiming
through or under it, except for reasons of Emergency, national
security, law and order or collection of inter-state taxes;
(d)
not do or omit to do any act, deed or thing which may in any manner
be violative of any of the provisions of this Agreement;
(e)
support, cooperate with and facilitate the Contractor in the

implementation and operation of the Project in accordance with the
(f)
upon written request from the Contractor and subject to the

provisions of Clause 3.3, provide reasonable assistance to the
Contractor and any expatriate personnel of the Contractor or its Subcontractors to obtain applicable visas and work permits for the
purposes of discharge by the Contractor or its Sub-contractors their
obligations under this Agreement and the agreements with the Subcontractors.
Maintenance obligations prior to the Appointed Date

The Authority shall maintain the Project Highway, at its own cost and
expense, so that its traffic worthiness and safety are at no time materially
inferior as compared to its condition 7 (seven) days prior to the last date for
submission of the Bid, and in the event of any material deterioration or
damage other than normal wear and tear, undertake repair thereof, or pay to
the Contractor the cost and expense, as determined by the Engineer, for
undertaking such repair after the Start Date. For the avoidance of doubt, the
Authority shall undertake only routine maintenance prior to the signing of
the Agreement, and it shall undertake special repairs only for ensuring safe
operation of the Project Highway, or in the event of excessive deterioration
or damage caused due to unforeseen events such as floods or torrential rain.

ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1
Representations and Warranties of the Contractor

The Contractor represents and warrants to the Authority that:
(a)
it is duly organised and validly existing under the laws of India, and
has full power and authority to execute and perform its obligations
under this Agreement and to carry out the transactions contemplated
hereby;
(b)
it has taken all necessary corporate and/or other actions under

Applicable Laws to authorise the execution and delivery of this
Agreement and to validly exercise its rights and perform its
obligations under this Agreement;
(c)
this Agreement constitutes its legal, valid and binding obligation,

enforceable against it in accordance with the terms hereof, and its
obligations under this Agreement will be legally valid, binding and
enforceable obligations against it in accordance with the terms
hereof;
(d)
it is subject to the laws of India, and hereby expressly and irrevocably

waives any immunity in any jurisdiction in respect of this Agreement
or matters arising thereunder including any obligation, liability or
responsibility hereunder;
(e)
the information furnished in the Bid and as updated on or before the

date of this Agreement is true and accurate in all respects as on the
date of this Agreement;
(f)
the execution, delivery and performance of this Agreement will not

conflict with, result in the breach of, constitute a default under, or
accelerate performance required by any of the terms of its
Memorandum and Articles of Association or any Applicable Laws or
any covenant, contract, agreement, arrangement, understanding,
decree or order to which it is a party or by which it or any of its
properties or assets is bound or affected;
(g)
there are no actions, suits, proceedings, or investigations pending or,

to its knowledge, threatened against it at law or in equity before any
court or before any other judicial, quasi-judicial or other Authority,
the outcome of which may result in the breach of this Agreement or
which individually or in the aggregate may result in any material
impairment of its ability to perform any of its obligations under this
Agreement;
(h)
it has no knowledge of any violation or default with respect to any

order, writ, injunction or decree of any court or any legally binding

order of any Government Instrumentality which may result in any
material adverse effect on its ability to perform its obligations under
this Agreement and no fact or circumstance exists which may give
rise to such proceedings that would adversely affect the performance
of its obligations under this Agreement;
5.2
(i)
it has complied with Applicable Laws in all material respects and has
not been subject to any fines, penalties, injunctive relief or any other
civil or criminal liabilities which in the aggregate have or may have a
material adverse effect on its ability to perform its obligations under
this Agreement;
(j)
no representation or warranty by it contained herein or in any other

document furnished by it to the Authority or to any Government
Instrumentality in relation to Applicable Permits contains or will
contain any untrue or misleading statement of material fact or omits
or will omit to state a material fact necessary to make such
representation or warranty;
(k)
no sums, in cash or kind, have been paid or will be paid, by it or on

its behalf, to any person by way of fees, commission or otherwise for
securing the Contract or entering into this Agreement or for
influencing or attempting to influence any officer or employee of the
Authority in connection therewith;
(l)
all information provided by the [selected bidder/ Consortium

Members of which the selected bidder was the Lead Partner] in
response to the Request for Qualification and Request for Proposals
or otherwise, is to the best of its knowledge and belief, true and
accurate in all material respects;and
(m)
nothing contained in the Agreement shall create any contractual

relationship or obligation between any Contractors designers /
design consultants and the Authority.
Representations and Warranties of the Authority

The Authority represents and warrants to the Contractor that:
(a)
it has full power and authority to execute, deliver and perform its
obligations under this Agreement and to carry out the transactions
contemplated herein and that it has taken all actions necessary to
execute this Agreement, exercise its rights and perform its
obligations, under this Agreement;
(b)
it has taken all necessary actions under the Applicable Laws to

authorise the execution, delivery and performance of this Agreement;
(c)
it has the financial standing and capacity to perform its obligations

under this Agreement;
5.3
(d)
this Agreement constitutes a legal, valid and binding obligation

enforceable against it in accordance with the terms hereof;
(e)
it has no knowledge of any violation or default with respect to any

order, writ, injunction or any decree of any court or any legally
binding order of any Government Instrumentality which may result in
any material adverse effect on the Authoritys ability to perform its
obligations under this Agreement;
(f)
it has complied with Applicable Laws in all material respects; and
(g)
it has good and valid right to the Site.
Disclosure
In the event that any occurrence or circumstance comes to the attention of
either Party that renders any of its aforesaid representations or warranties
untrue or incorrect, such Party shall immediately notify the other Party of the
same. Such notification shall not have the effect of remedying any breach of
the representation or warranty that has been found to be untrue or incorrect
nor shall it adversely affect or waive any obligation of either Party under this
Agreement.

ARTICLE 6
DISCLAIMER
6.1
Disclaimer
6.1.1 The Contractor acknowledges that prior to the execution of this Agreement,
the Contractor has, after a complete and careful examination, made an
independent evaluation of the Request for Qualification, Request for
Proposals, Scope of the Project, Specifications and Standards of design,
construction and maintenance, Site, local conditions, physical qualities of
ground, subsoil and geology, traffic volumes, suitability and availability of
access routes to the Site and all information provided by the Authority or
obtained procured or gathered otherwise, and has determined to its
satisfaction the accuracy or otherwise thereof and the nature and extent of
difficulties, risks and hazards as are likely to arise or may be faced by it in
the course of performance of its obligations hereunder. Save as provided in
Clause 5.2, the Authority makes no representation whatsoever, express,
implicit or otherwise, regarding the accuracy, adequacy, correctness,
reliability and/or completeness of any assessment, assumptions, statement or
information provided by it and the Contractor confirms that it shall have no
claim whatsoever against the Authority in this regard.
6.1.2 The Contractor acknowledges and hereby accepts to have satisfied itself as to
the correctness and sufficiency of the Contract Price.
6.1.3 The Contractor acknowledges and hereby accepts the risk of inadequacy,
mistake or error in or relating to any of the matters set forth in Sub-clause
6.1.1 above and hereby acknowledges and agrees that the Authority shall not
be liable for the same in any manner whatsoever to the Contractor, or any
person claiming through or under any of them.
6.1.4 The Parties agree that any mistake or error in or relating to any of the matters
set forth in Sub-clause 6.1.1 above shall not vitiate this Agreement.
6.1.5 In the event that either Party becomes aware of any mistake or error relating
to any of the matters set forth in Sub-clause 6.1.1 above, that Party shall
immediately notify the other Party, specifying the mistake or error.
6.1.6 Except as otherwise provided in this Agreement, all risks relating to the
Project shall be borne by the Contractor and the Authority shall not be liable
in any manner for such risks or the consequences thereof.
Part III
Design, Construction and Maintenance

ARTICLE 7
PERFORMANCE SECURITY
7.1
7.1.1 The Contractor shall, for the performance of its obligations hereunder during
the Construction Period and Maintenance Period, provide to the Authority an
irrevocable and unconditional guarantee from a Bank in the form set forth in
Schedule-H (the Performance Security) for the periods and amounts
specified in Sub-clause 7.1.3.
7.1.2 The Contract Price of (a) Design, road works, culverts, minor bridges and
other works, (b) major bridges and structures, and (c) Maintenanceshall be
estimated on the basis of weightage of different items of design and
construction stated in Schedule I. The the Contract Price is also stated in
Schedule I.
7.1.3 The Performance Security shall be furnished separately for (a) road works
and other works and (b) major bridges and structures pursuant to Sub-clause
7.1.1 in the amounts and at the times specified below:
Serial
No.
Percentage of
the
Contract
Price separately
for (a) and (b)
as defined in
Sub-clause
7.1.2.
(1)
1
(2)
2.5
Amount of
Performanc
e Security
for
(a) and (b)
as defined
in
Subclause
7.1.2.
(Rs.)
(3)
(a):
(b):
2.
2.5
(a):
(b):
Specified time for Validity Period

furnishing
to the Authority
Cumulativ
e Total of
the Bank
Guarantee
as
percentage
of
the
Contract
Price
(4)
(5)
(6)
Within
twenty-one (a): See Note 2.5
(21) days of the Issue (1) below.
(b):See Note
of LOA
(2) below.
Along with the claim

for interim payment
when the cumulative
payment due to the
Contractor exceeds
15 (fifteen) percent of
Contract Price for
Design
and
Construction Works
(a): See Note 5.0

(3) below.
(b):See Note
(4) below.
Serial
No.
Percentage of
the
Contract
Price separately
for (a) and (b)
as defined in
Sub-clause
7.1.2.
(1)
3.
(2)
2.5
Amount of
Performanc
e Security
for
(a) and (b)
as defined
in
Subclause
7.1.2.
(Rs.)
(3)
(a):
(b):
4.
2.5
(a):
(b):

furnishing
to the Authority
(4)
for interim payment
when the cumulative
payment due to the
Contractor exceeds
30 (thirty) percent of
Contract Price for
Design
and
Construction Works
for interim payment
when the cumulative
payment due to the
Contractor exceeds
45
(forty-five)
percent of Contract
Price for Design and
Construction Works
Cumulative
Total of the
Bank
Guarantee
as
percentage
of
the
Contract
Price
(5)
(6)
(a): See Note 7.5
(3) below.
(b):See Note
(4) below.
(a): See Note 10.0

(3) below.
(b):See Note
(4) below.
Serial
No.
Percentage of
the
Contract
Price separately
for (a) and (b)
as defined in
Sub-clause
7.1.2.
(1)
5.
(2)
2.5
Amount of
Performanc
e Security
for
(a) and (b)
as defined
in
Subclause
7.1.2.
(Rs.)
(3)
(a):
(b):
6.
2.5
(a):
(b):

furnishing
to the Authority
(4)
for interim payment
when the cumulative
payment due to the
Contractor exceeds
60 (sixty) percent of
Contract Price for
Design
and
Construction
for interim payment
when the cumulative
payment due to the
Contractor exceeds
75
(seventy-five)
percent
of
the
Contract Price for
Design
and
Construction
Cumulative
Total of the
Bank
Guarantee as
percentage of
the
Contract
Price
(5)
(6)
(a): See Note 12.5
(5) below.
(b):See Note (6
below.
(a): See Note 15.0

(5) below.
(b):See Note (6
below.
Note (1). From Start Date till [90] days after the end of the Defect Liability Period
of roads and other works.
Note (2). From Start Date till [90] days after the end of the Defect Liability Period
for major bridges and structures.
Note (3). From the date of the claim till [90] days after the end of the Defect
Liability Period of roads and other works.
Note (4). From the date of the claim till [90] days after the end of the Defect
Liability Period for major bridges and structures.
Note (5). From the date of the claim till [90] days after the issue of last Completion
Certificate for roads and other works.

Note (6). From the date of the claim till [90] days after the issue of the last
Completion Certificate for major bridges and structures.
7.2
Extension of Performance Security

Notwithstanding anything to the contrary stated above, the Contractor shall
ensure that each Performance Security is valid and enforceable until the
Contractor has completed the Project Highway and remedied any Defects in
accordance with the Agreement. The terms of the Performance Security
specify its expiry date, and if the Contractor has not become entitled to
receive the Performance Certificate for items at serial nos. 1 to 4 of Subclause 7.1.3, or has not become entitled to receive the Completion Certificate
for items at serial nos. 5 and 6 Sub-clause 7.1.3, as the case may be, by the
date 28 days prior to the expiry date of the Performance Security, the
Contractor shall extend the validity of the Performance Security until the
Project Highway have been completed and any Defects have been remedied.
7.3
Appropriation of Performance Security

The Authority shall not make a claim under the Performance Security, except
for amounts to which the Authority is entitled under the Agreement in the
event of:
(a)
failure by the Contractor to extend the validity of the Performance

Security as described in Clause 7.2, in which event the Authority may
claim the full amount of the Performance Security,
(b)
failure by the Contractor to pay the Authority an amount due, as

either agreed by the Contractor or determined under Sub-clause 21.4
or Article 27 (Dispute Resolution), within 42 days after the
agreement, determination, date of coming into effect the
recommendation of the Board, or the Award.
(c)
failure by the Contractor to remedy a default within 42 days after

receiving the Authority's notice requiring the default to be remedied,
or
(d)
circumstances which entitle the Authority to termination of the

Agreement under Sub-clause 24.1 (Termination for Contractor
Default), irrespective of whether notice of termination has been
given.
The Authority shall indemnify and hold the Contractor harmless against and
from all damages, losses and expenses (including legal fees and expenses)
resulting from a claim under the Performance Security to the extent to which
the Authority was not entitled to make the claim,
7.4
Release of Performance Security
7.4.1 The Authority shall return the Performance Security:

(a)
submitted under serial nos. 1 to 4 of Sub-clause 7.1.3 to the

Contractor within 42 (forty two) days of the issue of the Performance
Certificate issued under Clause 12.5 (Certificate of Performance);
and
(b)
submitted under serial nos. 5 to 6 of Sub-clause 7.1.3 to the

Contractor within 42 after the issue of Completion Certificate under
Article 12.
7.4.2 No claim shall be made against such security after the issue of the
Performance Certificate or the Completion Certificate, as the case may be.
ARTICLE 8
RIGHT OF WAY
8.1
The Site
8.1.1 The site of the Project Highway (the Site) shall comprise the real estate
described in Schedule-A in respect of which the Right of Way shall be
provided by the Authority to the Contractor. The Authority shall be
responsible to the Contractor for:
8.2
(a)
acquiring and providing physical possession of the Site free from all
encroachments and encumbrances, and free access thereto for the
execution of the Agreement; and
(b)
obtaining licences and permits for environment clearance for the

Project Highway.
Compensation for delay in handing over the Site
8.2.1 The Authority shall provide the Right of Way to the Contractor:
(i)
on the date(s) stated in Schedule-A; and
(ii)
In the event Schedule-A does not specify any time schedule for
providing the Right of Way for any part of the Site , the Authority
shall provide to the Contractor the Right of Way to such part(s)
within 30 (thirty) days of the Start Date.
8.2.2 If Right of Way of a part of the Site is not given within fourteen days of the
date specified in Sub-clause 8.2.1 for any reason other than Force Majeure or
breach of this Agreement by the Contractor, the Authority shall pay
Damages to the Contractor in accordance with the provision of Sub-clause
8.2.3.
8.2.3 For any period of delay in giving the Right of Way to the Contractor
exceeding 14 (fourteen) days but not exceeding ten percent of the
Construction Period of the Project, the Contractor shall be entitled to
Damages in a sum calculated in accordance with the following formula:
Amount of Damages Rs. per day = 0.05 (RW + BS) x 1/30
Where
RW means cost of Road Works in the part of the Site for which handing over
the possession was delayed.
RW =(Crw /Lrw ) x LA rw
Crw = Total cost of Road Works in accordance with Clause 20.1
Lrw = Total length of the Project Highway in kilometres.

LArw = Length in kilometres of the affected part of the Site for which
handing over the possession was delayed.
BS means cost of major bridges and structures in the part of the Site for
which handing over the possession was delayed.
BS = (Cbs/Lbs ) x LAbs
Cbs =Total cost of bridges and structures in accordance with Clause 20.1
Lbs = Length of the major bridges and structures in the Project Highway in
running metres, listed in the Schedule-A
LAbs =length of major bridges and structures in running metres of the
affected part of the Site for which handing over the possession was delayed.
8.2.4 For the period of the delay in handing over the Right of Way beyond ten
percent of Construction Period, the Contractor shall be entitled to the
Damages in a sum calculated at the rate of one and a half times the Damages
determined on the basis of the formula stated in Sub-clause 8.2.3.
8.2.5 In all cases covered by Sub-clauses 8.2.3 and 8.2.4, the Contractor shall be
entitled to extension of Construction Period in that particular stretch in which
the handing over the Right of Way of the part of the Site was delayed. The
period of extension shall be equal to the period of delay in handing over the
possession of the Site; provided that if delays involve time overlaps, the
overlaps shall not be additive.
8.2.6 Notwithstanding the provisions of Sub-clause 8.2.3 to 8.2.5, the Authority
may withdraw such affected works for which the Right of Way has not been
acquired and handed over to the Contractor subject to the condition that the
aggregate value of the works withdrawn, as determined by the Engineer,
does not exceed 5 (five) per cent of the Contract Price for the Design and
Construction of the Project Highway. The Contract Price shall be reduced by
the value of the work withdrawn and the Contractor shall not be entitled to
any Damages or compensation for the reduction in the scope of the Project
Highway.
Provided the Authority exercises this right not later than two months after the
Scheduled date of handing over the Right of Way has expired.
8.2.7 The Schedule-A states the present status of the environment clearances
obtained or awaited, as the case may be, indicating the expected dates of
obtaining clearances.
8.2.8 The Contractor shall allow access to and use of the Site and/or the
Construction Works for laying/installing telegraph lines, electric lines or for
such other public purposes as the Authority may require.
Provided that if such access or use results in material adverse effect, the
Contractor shall use its best endeavor to ensure that the impact thereof upon
the Construction Works is minimized. In the event of any physical damage to

the Site and/or the Construction Works on account thereof, the Contractor
shall provide all information and assistance as the Authority may reasonably
require for seeking compensation or damages from such user of the Site in
accordance with applicable Laws.
8.2.9 It is expressly agreed that trees on the Site are property of the Authority.
8.3
Procurement of the Site
8.3.1 After the signing of the Agreement, the Authority Representative and the
Contractor shall, on a mutually agreed date and time, inspect the Site and
prepare a memorandum containing an inventory of the Site including the
vacant and unencumbered land, buildings, structures, road works, trees and
any other immovable property on or attached to the Site. Such memorandum
shall have appended thereto an appendix (the Appendix) specifying in
reasonable detail those parts of the Site to which vacant access and Right of
Way has not been given to the Contractor. Signing of the memorandum, in
two counterparts (each of which shall constitute an original), by the
authorised representatives of the Parties shall be deemed to constitute a valid
evidence of giving the Right of Way to the Contractor during the
Construction Period under and in accordance with the provisions of this
Agreement and for no other purpose whatsoever.
8.3.2 On and after signing the memorandum referred to in Sub-clause 8.3.1, and
until the issue of the Taking Over Certificate, the Contractor shall maintain a
round-the-clock vigil over the Site and shall ensure and procure that no
encroachment thereon takes place,
8.3.3 The Authority shall make best efforts to provide the Right of Way to the
Contractor in respect of all land included in the Appendix, and in the event
of delay for any reason other than Force Majeure or breach of this
Agreement by the Contractor, it shall pay to the Contractor Damages in a
sum calculated in accordance with Clause 8.2
8.4
Site to be free from Encumbrances

Subject to the provisions of Clause 8.3, the Site shall be made available by
the Authority to the Contractor pursuant hereto free from all Encumbrances
and occupations and without the Contractor being required to make any
payment to the Authority on account of any costs, compensation, expenses
and charges for the acquisition and use of such Site for the duration of the
Construction Period. For the avoidance of doubt, it is agreed that existing
rights of way, easements, privileges, liberties and appurtenances to the Site
shall not be deemed to be Encumbrances.
8.5
Protection of Site from encroachments
8.5.1 During the Construction Period, the Contractor shall protect the Site from
any and all occupations, encroachments or Encumbrances, and shall not
place or create nor permit any Sub-contractor or other person claiming
through or under the Contractor to place or create any Encumbrance or

security interest over all or any part of the Site or the Project Assets, or on
any rights of the Contractor therein or under this Agreement, save and except
as otherwise expressly set forth in this Agreement. In the event of any
encroachment or occupation on any part of the Site, the Contractor shall
report such encroachment or occupation forthwith to the Authority and
undertake its removal at its cost and expenses.
8.5.2 During the Maintenance Period, the Contractor shall keep a vigil over the
Site and shall ensure that no occupations or encroachments thereon take
place; and in the event of any encroachment or occupation on any part of the
Site, the Contractor shall report such encroachment or occupation forthwith
to the Authority.
8.6
Special/temporary right of way

The Contractor shall bear all costs and charges for any special or temporary
right of way required by it in connection with access to the Site. The
Contractor shall obtain at its cost such facilities on or outside the Site as may
be required by it for the purposes of the Project Highway and the
performance of its obligations under this Agreement.
8.7
Access to the Authority and Engineer
8.7.1 The Right of Way given to the Contractor hereunder shall always be subject
to the right of access of the Authority and the Engineer and their employees
and agents for inspection, viewing and exercise of their rights and
performance of their obligations under this Agreement.
8.7.2 The Contractor shall ensure, subject to all relevant safety procedures, that the
Authority has un-restricted access to the Site during any emergency
situation, as decided by the Engineer.
8.8
Geological and archaeological finds

It is expressly agreed that mining, geological or archaeological rights do not
form part of the Agreement with the Contractor for the Construction Works,
and the Contractor hereby acknowledges that it shall not have any mining
rights or interest in the underlying minerals, fossils, antiquities, structures or
other remnants or things either of particular geological or archaeological
interest and that such rights, interest and property on or under the Site shall
vest in and belong to the Authority or the concerned Government
Instrumentality. The Contractor shall take all reasonable precautions to
prevent its workmen or any other person from removing or damaging such
interest or property and shall inform the Authority forthwith of the discovery
thereof and comply with such instructions as the concerned Government
Instrumentality may reasonably give for the removal of such property. For
the avoidance of doubt, it is agreed that any reasonable expenses incurred by
the Contractor hereunder shall be reimbursed by the Authority. It is also
agreed that the Authority shall procure that the instructions hereunder are
issued by the concerned Government Instrumentality within a reasonable
period.
ARTICLE 9
UTILITIES, OBSTRUCTIONS AND TREES
9.1
Existing utilities and roads

Notwithstanding anything to the contrary contained herein, the Contractor
shall ensure that the respective entities owning the existing roads, right of
way or utilities on, under or above the Site are enabled by it to keep such
utilities in continuous satisfactory use, if necessary, by providing suitable
temporary diversions with the authority of the controlling body of that road,
right of way or utility.
9.2
Shifting of utilities and removal of obstructions
9.2.1 The Contractor shall carry out the shifting of underground or over-ground
utilities, and remove the obstructions listed in Schedule J to the specified
locations within or outside the Site, after the Authority has obtained
clearances from the owners of utilities or the obstruction by the dates stated
in the Schedule J. Contractor shall not be responsible for the delays and
consequential loss/damages in case the Authority does not get clearances for
shifting of underground or over-ground utilities or removal of obstructions in
accordance with the dates stated in the Schedule J. In such cases, the
Engineer shall determine the extension of time and the amount payable to the
Contractor.
9.2.2 The Contractor shall be responsible for shifting any underground utility not
foreseen and included in Schedule J. The cost of such shifting shall be borne
by the Authority or by the entity owning such utility. However, the Authority
shall obtain, at its own cost, permission for shifting of such utilities. The
Contractor shall be granted extension of time to be determined by the
Engineer.
9.3
New utilities
9.3.1 The Contractor shall allow, subject to such conditions as the Authority may
specify, access to, and use of the Site for laying telephone lines, water pipes,
electric cables or other public utilities. For the avoidance of doubt, it is
agreed that use of the Site under this Clause 9.3 shall not in any manner
relieve the Contractor of its obligation to construct and maintain the Project
Highway in accordance with this Agreement and any damage caused by such
use shall be restored forthwith at the cost of the Authority.
9.3.2 The Authority may, by notice, require the Contractor to connect any
adjoining road to the Project Highway, and the connecting portion thereof
falling within the Site shall be constructed by the Contractor at the
Authoritys cost in accordance with Article 10.
9.3.3 The Authority may by notice require the Contractor to connect, through a
paved road, any adjoining service station, hotel, motel or any other public
facility or amenity to the Project Highway, whereupon the connecting

portion thereof that falls within the Site shall be constructed by the
Contractor on payment of the cost. The cost to be paid by the Authority to
the Contractor shall be determined by the Engineer.
9.4
Felling of trees
The Authority shall obtain the Applicable Permits for felling of trees to be
identified by the Authority for this purpose if and only if such trees cause a
material adverse effect on the construction or maintenance of the Project
Highway. The cost of such felling shall be borne by the Authority, and in the
event of any delay in felling thereof for reasons beyond the control of the
Contractor, the Contractor shall be excused for failure to perform any of its
obligations hereunder if such failure is a direct consequence of delay in the
felling of trees. For the avoidance of doubt, the Parties hereto agree that the
felled trees shall be deemed to be owned by the Authority and shall be
disposed in such manner and subject to such conditions as the Authority may
in its sole discretion deem appropriate.
ARTICLE 10
DESIGN AND CONSTRUCTION OF THE PROJECT HIGHWAY
10.1
Obligations prior to commencement of Construction Works
10.1.1 Prior to commencement of Construction Works, the Contractor shall:

(a)
appoint its representative (the Project Manager) duly authorised

to deal with the Authority in respect of all matters under or arising
out of or relating to this Agreement, for the Construction Period and
one year thereafter;
(b)
undertake, do and perform all such acts, deeds and things as may be
necessary or required before commencement of Construction Works
under and in accordance with this Agreement, the Applicable Laws
and Applicable Permits; and
(c)
make its own arrangements for quarrying of materials needed for the
Project Highway under and in accordance with the Applicable Laws
and Applicable Permits.
10.1.2 The Authority shall appoint an engineer (the Engineer), in accordance

with the provisions of Article 19, as its representative for the Project
Highway within 15 days of the signing of the Agreement by both the Parties.
The Authority shall notify the Contractor the name, address and the date of
appointment of the Engineer.
10.1.3 Within 14 days of the Start Date, the Contractor shall submit to the Authority
and the Engineer a programme (the Programme) for the Construction
Works, developed using networking techniques giving the following details:
Part I Contractors organisation for the Project, the general methods and
arrangements for design and construction, environmental
management plan, quality assurance plan including Design Quality
Plan (the DQP), safety during construction, Contractors personnel
and Equipment.
Part II Programme for completion of all major stages and Project Milestones
of the Construction Works as specified in Project Completion
Schedule set forth in Schedule K.
Part III Monthly cash flow forecast.
10.1.4 The Contractor shall appoint a design director (the Design Director) to
head the Contractors Units, responsible for surveys, investigations,
collection of data, and preparation of preliminary and detailed designs.
10.1.5 Design shall be developed in conformity with the specifications and
standards set forth in Schedule D. In case any relaxation in design standards

is required due to restricted Right of Way in certain reaches, especially in
built up areas, the alternative design criteria for such reaches may be worked
out for review of the Engineer.
10.1.6 The Contractor shall appoint an independent design quality manager (the
Design Quality Manager) who shall not be associated with the
preparation of the design or construction of the Project Highway. The Design
Quality Manager shall certify the fulfillment of design quality requirements.
10.1.7 The Contractor shall appoint proof check consultant (the Proof Check
Consultant) with the consent of the Authority. The Proof Check
Consultants shall:
(i)
proof check the detailed designs, approved and signed by the Design
Director, supported with calculations, drawings and certificate from
the Contractors Design Quality Manager in accordance with the
provisions of this Sub-clause 10.1.7; and
(ii)
evolve a system approach with the Design Director so as to minimize

the time required for final designs and construction drawings.
10.1.8 The Contractor shall submit design, duly certified by Proof Check
Consultant, to the Authority in three distinct stages as indicated below:
Stage I
Preliminary Design;
Stage II
Final Design; and
Stage III
Working Drawings.
These stages shall form the basis for releasing stage payments and for review
of the progress.
10.2
Design and Drawings
10.2.1 In respect of the Contractors obligations with respect to the Design and
Drawings of the Project Highway as set forth in Schedule-L, the following
shall apply:
(a)
The Contractor shall prepare and submit, with reasonable promptness

and in such sequence as is consistent with the Project Completion
Schedule, three copies each of all Drawings, to the Engineer for
review;
(b)
The Contractor shall compute, and supply to the Engineer, the

quantities of various items of works and stages stated in Sub-clause
20.3.1. The total estimated quantities will form the basis for
estimating the monthly payments for the Construction Works in
accordance with Clause 20.3.
(c)
By submitting the Drawings for review to the Engineer, the

Contractor shall be deemed to have represented that it has determined

and verified that the design and engineering, including field
construction criteria related thereto, are in conformity with the Scope
of the Project, the Specifications and Standards and the Applicable
Laws;
(d)
Within 15 (fifteen) days of the receipt of the Drawings, the Engineer

shall review the same and convey its observations to the Contractor
with particular reference to their conformity or otherwise with the
Scope of the Project and the Specifications and Standards. The
Contractor shall not be obliged to await the observations of the
Engineer on the Drawings submitted pursuant hereto beyond the said
15 (fifteen) days period and may begin or continue Construction
Works at its own discretion and risk;
(e)
If the aforesaid observations of the Engineer indicate that the

Drawings are not in conformity with the Scope of the Project or the
Specifications and Standards, such Drawings shall be revised by the
Contractor and resubmitted to the Engineer for review. The Engineer
shall give its observations, if any, within 7 (seven) days of receipt of
the revised Drawings;
(f)
No review and/or observation of the Engineer and/or its failure to

review and/or convey its observations on any Drawings shall relieve
the Contractor of its obligations and liabilities under this Agreement
in any manner nor shall the Engineer or the Authority be liable for
the same in any manner; and if errors, omissions, ambiguities,
inconsistencies, inadequacies or other Defects are found in the
Drawings, they and the construction works shall be corrected at the
Contractor's cost, notwithstanding any review under this Article 10;
(g)
Without prejudice to the foregoing provisions of this Clause 10.2, the

Contractor shall submit to the Authority for review and comments its
Drawings relating to alignment of the Project Highway, finished road
level, [location and layout of the Toll Plaza[s]] and general
arrangement drawings of major bridges, flyovers and grade
separators, and the Authority shall have the right but not the
obligation to undertake such review and provide its comments, if any,
within 30 (thirty) days of the receipt of such Drawings. The
provisions of this Clause 10.2 shall apply mutatis mutandis to the
review and comments hereunder;
(h)
The Contractor shall be responsible for delays in submitting the

Drawing as set forth in Schedule L caused by reason of delays in
surveys and field investigations, and shall not be entitled to seek any
relief in that regard from the Authority.
(i)
Within 90 (ninety) days of the Project Completion Date, the

Contractor shall furnish to the Authority and the Engineer a complete
set of as-built Drawings, in 2 (two) hard copies and in micro film
form or in such other medium as may be acceptable to the Authority,
reflecting the Project Highway as actually designed, engineered and

constructed, including an as-built survey illustrating the layout of the
Project Highway and setback lines, if any, of the buildings and
structures forming part of Project Facilities.
10.2.2 The Contractors time and cost impacts of revisions arising from Authoritys
review of designs caused by the Contractors non-compliance with the
requirements of the Agreement shall be borne by the Contractor, unless there
is a Change in the Scope of the Construction Works.
10.2.3 The Construction Works shall be executed in accordance with the Design
reviewed by the Engineer in accordance with the provisions of this Clause
10.2, and shall not be thereafter amended or altered without the prior written
approval of the Authority.
10.3
Construction of the Project Highway
10.3.1 The Contractor shall set out and undertake construction of the Project
Highway as specified in Schedule-B and Schedule-C, and in conformity with
the Specifications and Standards set forth in Schedule-D. The Contractor shall be
responsible for the correct positioning of all parts of the Construction Works, and shall
rectify any error in the positions, levels, dimensions or alignment of the Construction
Works.The [650th (six hundred and fiftieth) day] from the Start Date shall be
the Construction Period and the Contractor agrees and undertakes that the
construction shall be completed within the Construction Period and any
extension of time granted according to the provisions of the Agreement.
10.3.2 The Contractor shall construct the Project Highway in accordance with the
Project Completion Schedule set forth in Schedule-K. In the event that the
Contractor fails to achieve any Project Milestone within a period of 30
(thirty) days from the date set forth for such Milestone in Schedule K, unless
such failure has occurred due to Force Majeure or for reasons solely
attributable to the Authority, it shall pay Damages to the Authority in a sum
calculated at the rate of 0.05% (zero point zero five per cent) of the Contract
Price for Design and Construction for delay of each day until such Milestone is
achieved; provided that if the Construction Period for any or all Project
Milestones is extended in accordance with the provisions of this Agreement,
the dates set forth in Schedule K shall be deemed to be modified accordingly
and the provisions of this Agreement shall apply as if Schedule K has been
amended as above; provided further that in the event Project is completed
within the Construction Period, the Damages paid under this Sub-clause
10.3.2 shall be refunded by the Authority to the Contractor, but without any
interest thereon. For the avoidance of doubt, it is agreed that recovery of
Damages under this Sub-clause 10.3.2 shall be without prejudice to the rights
of the Authority under this Agreement including the right of Termination
thereof.
10.3.3 The Parties hereby accept that delays cause loss to the public and the
national economy for whose benefit the Project is meant, and that the loss is
not susceptible to precise measurement. The Parties hereby agree that the
rate of Damages agreed in this Clause 10.3 is a reasonable pre-determined
amount, and that the Damages are not by way of penalty.

10.3.4 The Authority shall notify the Contractor of its decision to impose Damages
in pursuance with the provisions of this Clause 10.3. Provided that no
deduction on account of Liquidated Damages shall be effected by the
Authority without notifying the Contractor its decision to impose the
Damages. Further, the total amount of of Damages under Sub-clause 10.3.2
shall not exceed ten percent of the Contract Price.
10.3.5 In the event that construction of the Project Highway is not completed within
180 ( one hundred and eighty) days after the Construction Period, unless the
delay is on account of reasons solely attributable to the Authority or due to
Force Majeure, the Authority shall be entitled to terminate this Agreement.
10.4
Maintenance during Construction Period

During the Construction Period, the Contractor shall maintain, at its cost, the
existing lane(s) of the Project Highway so that the traffic worthiness and
safety thereof are at no time materially inferior as compared to their
condition 7 (seven) days prior to the date of this Agreement, and shall
undertake the necessary repair and maintenance works for this purpose;
provided that the Contractor may, at its cost, interrupt and divert the flow of
traffic if such interruption and diversion is necessary for the efficient
progress of Construction Works and conforms to Good Industry Practice;
provided further that such interruption and diversion shall be undertaken by
the Contractor only with the prior written approval of the Engineer which
approval shall not be unreasonably withheld. For the avoidance of doubt, it is
agreed that the Contractor shall at all times be responsible for ensuring safe
operation of the Project Highway.
10.5
Extension of Time for Completion
10.5.1 In the event the Contractor is entitled to any extension of time (the EOT)
for Completion if and to the extent that completion for the purposes of Clause 10.3 is or will be delayed by any of the following causes:
(a)
Change of Scope (unless an adjustment to the Time for Completion

has been agreed under Sub-clause 13.3 [Change of Scope];
(b)
a cause of delay giving an entitlement to EOT under the Agreement;

or
(c)
any delay, impediment or prevention caused by or attributable to the

Authority, the Authority's Personnel, or the Authority's other
contractors on the Site; .
the Contractor shall, no later than 28 days from the occurrence of such an
event or circumstance, inform the Engineer by notice in writing stating in
reasonable detail the event or circumstances giving rise to the claim.
Provided that, the period of 28 days shall be calculated from the date on
which the Contractor became aware, or should have become aware, of the
occurrence of such an event or circumstance.

10.5.2 In the event of the failure of the Contractor to submit to the Engineer the
notice in accordance with the provisions of Sub-clause 10.5.1 within the time
specified therein, the Contractor shall not be entitled to any EOT in Time for
Completion and shall forfeit its right for any such claims in future. For the
avoidance of doubt, in the event of failure of the Contractor as mentioned
above, the Authority shall be discharged from all liability in connection with
the claim.
10.5.3 The Engineer shall, on the receipt of claim notice in accordance with the
provisions of Sub-clause 10.5.1, examine the claim and make his
determination of Extension of Time within 90 (ninety) of the date of receipt
of the claim notice. In the event the Engineer requires any clarifications to
examine the claim, the Engineer shall seek the same within 14 (fourteen)
days from the date of receiving the claim notice. The Contractor shall, on the
receipt of the Engineers communication requesting for clarification, furnish
the same within 14 days to the Engineer. The Engineer shall, within a period
of 60 [sixty] days from the receipt of Contractors clarifications, in
consultation with the Authority and the Contractor, notify the Contractor and
the Authority in writing his determination. In the event of the failure of the
Engineer to make the determination and notify the Authority and the
Contractor as provided for above in this Sub-clause 10.5.3, within a period of
90 (ninety) days from the receipt of the notice for EOT in pursuance of this
Clause 10.5, the Engineer shall be deemed to have extended the time for
completion asked for in the Contractors application.
Provided that when determining each extension of time under this Clause
10.5, the Engineer shall review previous determinations and may increase,
but shall not decrease, the total EOT.
10.5.4 If the event or circumstance giving rise to the claim notice has a continuing
effect:
(a)
(b)
this fully detailed claim shall be considered as interim;

the Contractor shall, no later than 7 (seven) days after the close of each
month, send further interim claims at monthly intervals, giving the
accumulated delay and the extension of time claimed, and such further
particulars as the Engineer may reasonably require; and
(c) the Contractor shall send a final claim within 28 days after the end of
the effects resulting from the event or circumstance.
The Engineer shall examine the final claim in accordance with the provisions
of Sub-clause 10.5.3 within a period of 90 days from the date of receipt of
the final claim.

ARTICLE 11
QUALITY ASSURANCE, MONITORING AND SUPERVISION
11.1
Quality of Materials and Workmanship

The Contractor shall ensure that the Project Assets and workmanship are in
accordance with the requirements specified in the Agreement, Specifications
and Standards and Good Industry Practice.
11.2
Quality control system
11.2.1 The Contractor shall establish a suitable quality control mechanism to ensure
compliance with the requirements of the Specifications and Standards in
accordance with the provisions of this Agreement (the Quality Assurance
Plan or QAP).
11.2.2 The Contractor shall, within 21 days of the Appointed Date, submit to the
Engineer for approval, the proposed Quality Assurance Plan which shall
include the following:
(i)
organisation, duties and responsibilities, procedures, inspections,

documentation;
(ii)
quality control mechanism including sampling and testing of

Materials, Plant, Project Assets, test frequencies, standards,
acceptance criteria, testing facilities, reporting, recording and
interpretation of test results, approvals, check list for Site activities,
proformas for testing and calibration; and
(iii)
internal quality audit system.
11.2.3 The Contractor shall provide and procure all reasonable assistance,
documents, apparatus and instruments, fuel, consumables, water, electricity,
labour, Material, samples, and qualified personnel as are necessary for
examining and testing the Project Assets and workmanship in accordance
with the Quality Assurance Plan.
11.2.4 The cost of supplying samples and testing of Project Assets and
workmanship for the tests provided for in the Quality Assurance Plan or in
the Agreement shall be borne by the Contractor.
11.2.5 It is hereby expressly agreed by the Parties that the Contractor shall on the
directions issued by the Engineer carry out such tests including those not
provided for in the Agreement that are in accordance with the Good Industry
Practice to assess the quality of the Project Assets or workmanship. The
Contractor shall bear the cost of the tests and samples if the quality of the
Project Assets or workmanship is not in compliance with the Specifications
and Standards. In any other case, the cost of test shall be a determined by the
Engineer and shall be payable by the Authority.
11.3. Methodology

The Contractor shall, at least 14 days prior to the commencement of the
Construction Work in accordance with the Programme or any part thereof,
submit to the Engineer for approval the methodology proposed to be adopted
for executing the Construction Work, giving details of the method of
working, equipment to be deployed (capacity and number), traffic
management and measures for ensuring quality of construction and safety.
11.4. Inspection and technical audit by the Authority
The Authority or any representative authorized by the Authority in this
behalf shall have the right to inspect and review the progress of the
construction of Project Highway and issue appropriate directions to the
Engineer for taking necessary action in the event the Construction Works are
not in accordance with the Programme, provisions of this Agreement, the
Specifications and Standards, the Quality Assurance Plan and/or the Good
Industry Practice. The Authority or any representative authorized by the
Authority in this behalf shall also have the right to assess the quality and
quantity of the Materials brought to the Site for incorporation in the
construction of the Project Highway and the workmanship of the
Construction Works executed. Provided that, the Authority shall give at least
[7] days prior notice to the Engineer and the Contractor of its intention to
carry out such tests and that such tests shall be carried out in the presence of
the representatives of the Engineer and the Contractor.
11.5
External Audit
Any time during the Construction Works, the Authority shall appoint an
external auditor (technical) to conduct audit of the Contractors quality
system and the Construction Works and notify to the Contractor and the
Engineer of any deficiencies or Defects in the construction of the Project
Highway. The Contractor shall provide any such external auditor appointed
by the Authority all assistance as may be required by him in the conduct of
his audit. Notwithstanding anything stated in this Clause 11.5, the external
audit shall not affect any of the Contractors or the Engineers obligations as
specified in the Agreement.
11.6
Audit
The Authority shall have the right to inspect the accounts and the records
relating to the performance of the Contractor and require the accounts to be
duly certified by any auditor, appointed by the Authority for this purpose.
11.7
Monthly progress reports

During the Construction Period, the Contractor shall, no later than 7 (seven)
days after the close of each month, furnish to the Authority and the Engineer
a monthly report on progress of the Construction Works and shall promptly
give such other relevant information as may be required by the Engineer.
11.8
Inspection

11.8.1 The Engineer and his authorized agents shall at all reasonable times:
(a)
have full access to all parts of the Site and to all places from which
natural Materials are being obtained; and
(b)
during production, manufacture and construction (at the Site and, to

the extent specified in the Agreement elsewhere), be entitled to
examine, inspect, measure and test the Materials and workmanship,
and to check the progress of manufacture of Plant and production and
manufacture of Materials.
11.8.2 The Contractor shall give the Engineer and his authorized agents full
opportunity to carry out these activities, including providing access,
facilities, permissions and safety equipment. No such activity shall relieve
the Contractor from any obligation or responsibility.
11.8.3 The Contractor shall bear the cost of carrying out tests in accordance with
the provisions of the Agreement.
11.8.4 The Engineer shall submit a monthly inspection report (the Inspection
Report) to the Authority and the Contractor bringing out the results of
inspections and the remedial action taken by the Contractor in respect of
Defects .The Contractor shall rectify and remedy the Defects or deficiencies,
if any, stated in the Inspection Report. Such inspection or submission of
Inspection Report by the Engineer shall not relieve or absolve the Contractor
of its obligations and liabilities under the Agreement in any manner
whatsoever.
11.9
Samples
The Contractor shall submit the following samples of Materials and relevant
information to the Engineer for pre-construction review in accordance with
the procedure for review of design and drawings:
(a) manufacturer's test reports and standard samples of Materials; and
(b) [samples ]
Each sample shall be labelled as to origin and intended use in the Project and
submitted at the Contractors cost.
11.10 Tests
11.10.1 For determining that the Construction Works conform to the Specifications
and Standards, the Engineer shall require the Contractor to carry out or cause
to be carried out tests, at such time and frequency and in such manner as may
be specified by the Engineer from time to time, in accordance with Good
Industry Practice for quality assurance.
11.10.2 In the event that results of any tests conducted under this Clause 11.10
establish any Defects or deficiencies in the Construction Works, the
Contractor shall carry out remedial measures and furnish a report to the

Engineer in this behalf. The Engineer shall require the Contractor to carry
out or cause to be carried out tests to determine that such remedial measures
have brought the Construction Works into compliance with the
Specifications and Standards, and the procedure shall be repeated until such
Construction Works conform to the Specifications and Standards. For the
avoidance of doubt, the cost of such tests and remedial measures in
pursuance thereof shall be solely borne by the Contractor.
11.11 Examination of work before covering up
In respect of the work which Engineer is entitled to examine, inspect,
measure and/or test before it is covered up or put out of view or any part of
the work is placed thereon, the Contractor shall give notice to the Engineer
whenever any such work is ready and before it is covered up. The Engineer
shall then either carry out the examination, inspection, measurement or
testing without unreasonable delay, or promptly give notice to the Contractor
that the Engineer does not require to do so.
11.12 Rejection
If, as a result of an examination, inspection, measurement or testing, any
Plant, Materials, design or workmanship is found to be defective or
otherwise not in accordance with the provisions of this Agreement, the
Engineer may reject the Plant, Materials, Design or workmanship by giving
notice to the Contractor, with reasons. The Contractor shall then promptly
make good the Defect and ensure that the rejected item complies with the
requirements of the Agreement.
If the Engineer requires the Plant, Materials, Design or workmanship to be
retested, the tests shall be repeated under the same terms and conditions. If
the rejection and retesting cause the Authority to incur any additional costs,
such cost shall be paid by the Contractor to the Authority within [**(***).]
days of such request being made.
11.13 Remedial Work
11.13.1 Notwithstanding any previous test or certification, the Authority may
instruct the Contractor to:
(a)
remove from the Site and replace any Plant or Materials which are
not in accordance with the provisions of this Agreement;
(b)
remove and re-execute any other work which is not in accordance

with the provisions of this Agreement and the Specification and
Standards ; and
(c)
execute any work which is urgently required for the safety of the
Project Highway, whether because of an accident, unforeseeable
event or otherwise.
11.13.2 If the Contractor fails to comply with the instructions issued by the Engineer

under Sub-clause 11. 13.1 or fails to correct a Defect within the time
specified in the Engineers notice , the Engineer may assess the cost of
having the Defect repaired and carry out the said repair work. The cost so
incurred by the Engineer for the repair work shall be recoverable as debt due
from the Contractor by the Authority, and may be deducted by the Authority
from any monies due to be paid to the Contractor.
11.14 Delays during construction
Without prejudice to the provisions of Clause 10.3, in the event the
Contractor does not achieve any of the Project Milestones or the Engineer
shall have reasonably determined that the rate of progress of Construction
Works is such that Completion of the Project Highway is not likely to be
achieved by the end of the Construction Period, it shall notify the same to the
Contractor, and the Contractor shall, within 15 (fifteen) days of such notice,
by a communication inform the Engineer in reasonable detail about the steps
it proposes to take to expedite progress and the period within which it shall
achieve the Project Completion Date.
11.15 Quality control records and documents
The Contractor shall hand over to the Engineer all its quality control records
and documents for the Construction Works before the Completion Certificate
pursuant to Clause 12.2 is issued to the Contractor.
11.16 Video recording

During the Construction Period, the Contractor shall provide to the Authority
for every calendar quarter, a video recording, which will be compiled into a
3 (three)-hour compact disc or digital video disc, as the case may be,
covering the status and progress of Construction Works in that quarter. The
video recording shall be provided to the Authority no later than 15 (fifteen)
days after the close of each quarter after the Start Date.

ARTICLE 12
COMPLETION CERTIFICATE
12.1
Tests on Completion
12.1.1 At least 30 (thirty) days prior to the likely completion of the Project
Highway, or a section thereof, the Contractor shall notify the Engineer of its
intent to subject the Project Highway or a Section thereof, to Tests. The date
and time of each of the Tests shall be determined by the Engineer in
consultation with the Contractor, and notified to the Authority who may
designate its representative to witness the Tests. The Contractor shall provide
such assistance as the Engineer may reasonably require for conducting the
Tests. In the event of the Contractor and the Engineer failing to mutually
agree on the dates for conducting the Tests, the Contractor shall fix the dates
by giving not less than 10 (ten) days notice to the Engineer.
12.1.2 All Tests shall be conducted in accordance with Schedule M. The Engineer
shall observe, monitor and review the results of the Tests to determine
compliance of the Project Highway or a Section thereof, with Specifications
and Standards and if it is reasonably anticipated or determined by the
Engineer during the course of any Test that the performance of the Project
Highway or Section or any part thereof, does not meet the Specifications and
Standards, it shall have the right to suspend or delay such Test and require
the Contractor to remedy and rectify the Defects or deficiencies. Upon
completion of each Test, the Engineer shall provide to the Contractor and the
Authority copies of all Test data including detailed Test results. For the
avoidance of doubt, it is expressly agreed that the Engineer may require the
Contractor to carry out or cause to be carried out additional Tests, in
accordance with Good Industry Practice, for determining the compliance of
the Project Highway or Section thereof with the Specifications and
Standards.
12.2
Upon completion of Construction Works and the Engineer determining the
Tests to be successful, it shall forthwith issue to the Contractor and the
Authority a certificate substantially in the form set forth in Schedule N (the
Completion Certificate). However, before the Completion Certificate is
issued, the Contractor shall hand over to the Engineer all its quality control
documents for the Construction Works.
12.3
Rescheduling of Tests
If the Engineer certifies to the Authority and the Contractor that it is unable
to issue the Completion Certificate because of events or circumstances on
account of which the Tests could not be held or had to be suspended, the
Contractor shall be entitled to re-schedule the Tests and hold the same as
soon as reasonably practicable.
12.4
Taking Over

The Authority shall take over the Project Highway, within 7 [seven] days of
the Engineer issuing the Completion Certificate in accordance with the
provisions of Clause 12.2. The Authority shall also issue a taking over
certificate (the Taking Over Certificate) to the Contractor specifying the
details of the Right of Way taken over from the Contractor.
12.5
Certificate of Performance
The Contractor shall request the Engineer, within 28 days after the
completion of the Maintenance Period of (i) five years for road works and
other works, and (ii) of ten years of major bridges and structures, , to issue a
Certificate of Performance (the Certificate of Performance) of
completion of all the maintenance obligations in accordance with the
Agreement. The Engineer shall do so upon deciding that the maintenance
works were completed and Defects, if any, brought to the notice of the
Contractor under the Defect Liability Period have been remedied.
12.6
Clearance of Site
Upon receiving the Completion Certificate under this Article 12, the
Contractor shall remove any remaining Contractor's Equipment barring the
one required for maintenance, surplus Materials, wreckage, rubbish and
Temporary Works from the Site within a period of 30 (thirty) days. In the
event of the failure of the Contract to do so, it shall pay to the Authority
compensation at the rate of Rs. [** (***)] lakh per day as agreed amount of
pre-estimated compensation for delay in clearance of Site.

ARTICLE 13
CHANGE OF SCOPE
13.1
Change of Scope
13.1.1 The Authority may, notwithstanding anything to the contrary contained in

this Agreement, require the Contractor to make modifications/alterations to
the Construction Works (Change of Scope) before the issue of the
Completion Certificate either by giving an instruction or by requesting the
Contractor to submit a proposal for Change of Scope involving additional
cost or reduction in cost.. Any such Change of Scope shall be made and
valued in accordance with the provisions of this Article 13.
13.1.2 Change of Scope may include:
(a)
change in specifications of any item of Construction Works;
(b)
omission of any work from the Scope of the Project; and / or
(c)
any additional work, Plant, Materials or services which are not

included in the Scope of the Project, including any associated Tests
on Completion.
13.1.3 If the Contractor determines at any time that a Change of Scope will, if
adopted, (i) accelerate completion, (ii) reduce the cost to the Authority of
executing, maintaining or operating the Project Highway, (iii) improve the
efficiency or value to the Authority of the completed Project Highway, or
(iv) otherwise be of benefit to the Authority, it shall prepare a proposal with
relevant details at its own cost. The Contractor shall submit such proposal,
supported with the relevant details and the amount of reduction in the
Contract Price to the Authority to consider such Change of Scope. The
Authority shall, within 15 (fifteen) days of receipt of such proposal , either
accept such Change of Scope with modifications, if any, and initiate
proceedings therefor in accordance with this Article 13 or inform the
Contractor in writing of its reasons for not accepting such Change of Scope.
13.1.4 The Contractor shall not make any alteration and/or modification in the
Design and scope of the Project Highway considered final under Sub-clause
10.2.3 until and unless the Engineer has issued a Change of Scope Order.
13.2
Procedure for Change of Scope
13.2.1 In the event of the Engineer determining that a Change of Scope is

necessary, it shall issue to the Contractor a notice specifying in reasonable
detail the works and services contemplated thereunder (the Change of
Scope Notice).
13.2.2 Upon receipt of a Change of Scope Notice, the Contractor shall, with due
diligence, provide to the Authority such information as is necessary, together
with preliminary documentation in support of:

(a)
the impact, if any, which the Change of Scope is likely to have on the
Project Completion Schedule if the works or services are required to
be carried out during the Construction Period; and
(b)
the options for implementing the proposed Change of Scope and the
effect, if any, each such option would have on the costs and time
thereof, including the following details:
(i)
break down of the quantities, unit rates and cost for different
items of work.
(ii)
proposed design for the Change of Scope.
(iii)
proposed modifications, if any, to the Construction Period of

the Project Highway.
13.2.3 The Contractors quotation for the Change of Scope shall be based on the
detailed design and the rates for various items of work as derived on the
basis of MoSRTH Standard Data Book and the prevailing market rates for
the various items.
13.2.4 For items which are not included in the Standard Data Book suitable rate or
price shall be agreed upon between the Engineer and the Contractor.
13.2.5 Upon reaching an agreement, the Authority shall issue an order (the
Change of Scope Order) requiring the Contractor to proceed with the
performance thereof. In the event that the Parties are unable to agree, the
Authority may, by issuing a Change of Scope Order, require the Contractor
to proceed with the performance thereof.
13.2.6 The provisions of this Agreement, insofar as they relate to Construction
Works and Tests, shall apply mutatis mutandis to the works undertaken by
the Contractor under this Article 13.
13.3
Payment for Change of Scope

Payment for Change of Scope shall be made in accordance with the
provisions of Article 20.
13.4
Restrictions on Change of Scope
13.4.1 No Change of Scope shall be executed unless the Engineer has issued the
Change of Scope Order.
13.4.2 The total value of all Change of Scope shall not exceed the [**% (*** per
cent)] of the Contract Price for the Construction Works.
13.4.3 Notwithstanding anything to the contrary in this Clause 13.4, no change
made necessary because of any default of the Contractor in the performance
of its obligations under the Agreement shall be deemed to be Change of
Scope, and such Change of Scope shall not result in any adjustment of the
Contract Price or the Construction Period.

13.5
Change of Scope during Maintenance Period

The procedure for Change of Scope for the Construction Works under
Clauses 13.1 and 13.2 shall apply mutatis mutandis to Change of Scope of
Maintenance during the Maintenance Period.
13.6
Power of the Authority to undertake works
13.6.1 Notwithstanding anything to the contrary contained in Clauses 13.1 and 13.5
the Authority may, after giving notice to the Contractor and considering its
reply thereto, award such works or services to any person on the basis of
open competitive bidding; provided that the Contractor shall have the option
of matching the first ranked bid in terms of the selection criteria, subject to
payment of 2% (two per cent) of the bid amount to the Authority$, and
thereupon securing the award of such works or services. For the avoidance of
doubt, it is agreed that the Contractor shall be entitled to exercise such option
only if it has participated in the bidding process and its bid does not exceed
the first ranked bid by more than 10% (ten percent) thereof. It is also agreed
that the Contractor shall provide assistance and cooperation to the person
who undertakes the works or services hereunder.
13.6.2 The works undertaken in accordance with this Clause 13.6 shall conform to
the Specifications and Standards and shall be carried out in a manner that
minimises the disruption in operation of the Project Highway. The provisions
of this Agreement, insofar as they relate to Construction Works and Tests,
shall apply mutatis mutandis to the works carried out under this Clause 13.6.
The Authority shall transfer 75% (seventy five percent) of the amount so received to the first ranked
bidder whose bid shall have been matched by the Contractor.

ARTICLE 14
MAINTENANCE
14.1
Maintenance obligations of the Contractor
14.1.1 The Contractor shall appoint its representative hereafter called

(Maintenance Engineer), one month before the end of the term of the
Project Manager specified in Sub-clause 10.1.1, duly authorised to deal with
the Authority in respect of all matters under or arising out of or relating to
this Agreement, for the remaining Maintenance Period.
14.1.2 During the Maintenance Period, the Contractor shall maintain the Project
Highway in accordance with this Agreement and carry out the necessary
works to comply with the provisions of this Agreement, Applicable Laws
and Applicable Permits, and conform to Specifications and Standards and
Good Industry Practice. The obligations of the Contractor hereunder shall
include:
(a)
permitting safe, smooth and uninterrupted flow of traffic on the

Project Highway during Maintenance Period;
(b)
minimising disruption to traffic in the event of accidents or other

incidents affecting the safety and use of the Project Highway by
providing a rapid and effective response and maintaining liaison with
emergency services of the State;
(c)
undertaking routine maintenance including prompt repairs of

potholes, cracks, joints, drains, embankments, structures, pavement
markings, lighting, road signs and other traffic control devices;
(d)
undertaking repairs to structures;
(e)
informing the Authority of any unauthorised use of the Project

Highway;
(f)
informing the Authority of any encroachments on the Project

Highway;
(g)
protection of the environment during maintenance and provision of

equipment and materials therefor;
(h)
operation and maintenance of all communication, traffic control,

patrolling, and administrative systems necessary for the efficient
maintenance of the Project Highway; and
(i)
complying with Safety Requirements in accordance with Article 15.
14.1.3 In respect of any Defect or deficiency not specified in Schedule E, the

Contractor, at its own cost, shall undertake repair or rectification in
accordance with Good Industry Practice; and the Engineer may, in
conformity with Good Industry Practice, specify the permissible limit of

deviation or deterioration with reference to the Maintenance Specifications
and Standards.
14.1.4 The Contractor shall remove promptly from the Project Highway all surplus
construction machinery and Material, waste materials (including hazardous
materials and waste water), rubbish and other debris (including, without
limitation, accident debris) and keep the Project Highway in a clean, tidy and
orderly condition, and in conformity with the Applicable Laws, Applicable
Permits and Good Industry Practice. [For the avoidance of doubt, it is agreed
that the debris and material excavated shall be carried to and deposited at
****]
14.1.5 The Contractor shall maintain, in conformity with Good Industry Practice, all
stretches of approach roads, over-passes, under-passes or other structures
situated on the Site but not forming part of the carriageway.
14.2
The Contractor shall ensure and procure that at all times during the
Maintenance Period, the Project Highway conforms to the maintenance
requirements set forth in Schedule E (the Maintenance Requirements).
14.3
Maintenance Manual
14.3.1 No later than 180 (one hundred and eighty) days prior to the Completion of
Project Highway, the Contractor shall, in consultation with the Engineer,
evolve a maintenance manual (the Maintenance Manual) for the regular
and preventive maintenance of the Project Highway in conformity with the
Specifications and Standards, Maintenance Requirements, Safety
Requirements and Good Industry Practice, and shall provide 5 (five) copies
thereof to the Authority and 2 (two) copies to the Engineer.
14.3.2 Without prejudice to the provision of Sub-clause 14.3.1, the Maintenance
Manual shall, in particular, include provisions for maintenance of Project
Assets and shall provide for life cycle maintenance, routine maintenance and
periodic maintenance which may be reasonably necessary for maintenance
and repair of the Project Assets, including replacement thereof, such that its
overall condition conforms to Good Industry Practice.
14.4
Maintenance Programme
14.4.1
The Contractor shall prepare monthly maintenance programme (the

Maintenance Programme) in consultation with the Engineer and submit
the same to the Engineer not later than seven days prior to the
commencement of the month in which the Maintenance is to be carried out.
For this purpose a joint monthly inspection by the Contractor and the
Engineer shall be undertaken. The Maintenance Programme of maintenance
shall contain the following detail:
(a)
The condition of the road in the format prescribed by the Engineer;
14.5
(b)
The proposed maintenance works; and
(c)
Deployment of resources for maintenance works.
Safety, vehicle breakdowns and accidents
14.5.1 The Contractor shall ensure safe conditions for the Users, and in the event of
unsafe conditions, lane closures, diversions, vehicle breakdowns and
accidents, it shall follow the relevant operating procedures for removal of
obstruction and debris without delay. Such procedures shall conform to the
provisions of this Agreement, Applicable Laws, Applicable Permits and
Good Industry Practice.
14.5.2 The Contractors responsibility for rescue operations on the Project Highway
shall be limited to an initial response to any particular incident until such
time that the competent authority takes charge and shall include prompt
removal of vehicles or debris or any other obstruction, which may endanger
or interrupt the smooth flow of traffic. [For this purpose, it shall maintain
and operate a round-the-clock vehicle rescue post with one mobile crane
having the capacity to lift a truck with a Gross Vehicle Weight of 30,000
(thirty thousand) kilograms; and such post shall be located at ****.]
14.6
Lane closure
The Contractor shall not close any lane of the Project Highway for
undertaking maintenance works except with the prior written approval of the
Engineer. Such approval shall be sought by the Contractor through a written
request to be made at least 7 (seven) days before the proposed closure of lane
and shall be accompanied by particulars thereof. Within 3 (three) days of
receiving such request, the Engineer shall grant permission with such
modifications as it may deem necessary and a copy of such permission shall
be sent to the Authority.
14.7
Reduction of payment for non-performance of maintenance obligations
14.7.1 In the event that the Contractor fails to repair or rectify any Defect or
deficiency set forth in the Schedule E within the period specified therein, it
shall be deemed failure of performance of Maintenance obligations by the
Contractor and the Authority shall be entitled to effect reduction in monthly
lump sum payment for maintenance in accordance with paragraph 2 of
Schedule O and Clause 20.7 (Monthly Payment for Maintenance), without
prejudice to the rights of the Authority under the Agreement, including
Termination thereof.
14.7.2 If the nature and extent of any Defect or deficiency justifies more time for its
repair or rectification than the time specified in Schedule E, the Contractor
shall be entitled to additional time in conformity with Good Industry
Practice. Such additional time shall be determined by the Engineer and
conveyed to the Contractor and the Authority with reasons thereof.

14.8
Authoritys right to take remedial measures

In the event the Contractor does not maintain and/or repair the Project
Highway or any part thereof in conformity with the Maintenance
Requirements, the Maintenance Manual or the Maintenance Programme, as
the case may be, and fails to commence remedial works within 15 (fifteen)
days of receipt of the Maintenance Inspection Report or a notice in this
behalf from the Authority or the Engineer, as the case may be, the Authority
shall, without prejudice to its rights under this Agreement including
Termination thereof, be entitled to undertake such remedial measures at the
risk and cost of the Contractor, and to recover its cost from the Contractor. In
addition to recovery of the aforesaid cost, a sum equal to 20% (twenty per
cent) of such cost shall be paid by the Contractor to the Authority as
Damages.
14.9
Restoration of loss or damage to Project Highway

Save and except as otherwise expressly provided in this Agreement, in the
event that the Project Highway or any part thereof suffers any loss or damage
during the Maintenance Period from any cause whatsoever, the Contractor
shall, at its cost and expense, rectify and remedy such loss or damage
forthwith so that the Project Highway conforms to the provisions of this
Agreement.
14.10 Advertising on the Site

The Contractor shall not undertake or permit any form of commercial
advertising, display or hoarding at any place on the Site.

ARTICLE 15
SAFETY REQUIREMENTS
15.1
Safety Requirements
15.1.1 The Contractor shall comply with the provisions of this Agreement,
Applicable Laws and Applicable Permits and conform to Good Industry
Practice for securing the safety of the Users. The Contractor shall develop,
implement and administer a surveillance and safety programme for providing
a safe environment on or about the Project Highway, and shall comply with
the safety requirements set forth in Schedule-G (the Safety
Requirements).
15.1.2 The Contractor shall appoint an experienced and qualified safety consultant
(the Safety Consultant) for carrying out safety audit of the Project
Highway in accordance with the Safety Requirements, and shall take all
other actions necessary for securing compliance with the Safety
Requirements. The Safety Consultant shall not be associated with the design
and construction of the Project Highway.
15.1.3 The Contractor shall be liable for any loss or damage caused by any
negligence in safety requirements by the Contractor during the period of this
Agreement.
15.2
Use of Explosives
Subject to the Applicable Laws and the Applicable Permits, the Contractor
shall comply with the following:
15.3
(a)
the use of explosives by the Contractor shall be subject to the

prior approval/authorization of the concerned Government
Instrumentality;
(b)
the Contractor shall at all times take all such safety measures
as may be required for the importation, handling,
transportation, storage and use of explosives and shall, at all
times when engaged in blasting operations, post sufficient
warning flagmen to the full satisfaction of the Engineer.
(c)
the Contractor shall, by a notice in writing, [**] days prior to

the blasting operation, notify all parties including Government
Instrumentalities, private parties concerned or affected or
likely to be concerned or affected by blasting operations for
their prior approval; and
(d)
the Contractor shall pay all license fees and charges which
may be required for storage of explosives or in respect of any
other matter related thereto.
Accident prevention officer

15.3.1 The Contractor shall appoint an accident prevention officer (the Accident
Prevention Officer) at the Site, responsible for maintaining the requisite
safety standards at the Site and for protection against accidents.
15.3.2 The Accident Prevention Officer shall be a competent person and shall
possess the requisite qualifications as may be required by the Engineer for
this purpose.
15.3.3 The Accident Prevention Officer shall have the authority to issue instructions
and take protective measures to prevent accidents. For the avoidance of
doubt, the Contractor shall provide the Accident Prevention Officer with all
assistance as may be required by him for effective and efficient discharge of
his authority throughout the execution of the Construction Works.
15.3.4 The Contractor shall within 24 [twenty four] hours notify the Engineer in
writing about the occurrence of any accident at the Site. Provided that the
notice shall contain in detail the reasons for such accident and loss or
damage caused by it. It is further provided that the Contractor shall maintain
records and make reports concerning health, safety and welfare of persons,
and damage to property, as the Engineer may reasonably require.
15.4
Expenditure on Safety Requirements

All costs and expenses arising out of or relating to Safety Requirements shall
be borne by the Contractor as part of the Contract Price.

ARTICLE 16
SUPERVISION AND MONITORING DURING MAINTENANCE PERIOD
16.1
Inspection by the Contractor
16.1.1 The Maintenance Engineer shall undertake regular inspections to evaluate

continuously the degree of compliance with the Maintenance Standards and
Requirements, and maintain an updated inventory of the condition of the
road and structures and other assets under the Agreement.
16.1.2 The Contractor shall carry out a detailed pre-monsoon inspection of all
bridges, culverts and drainage system before [1st June] every year in
accordance with the guidelines contained in IRC: SP35. Report of this
inspection together with details of proposed maintenance works as required
on the basis of this inspection shall be sent to the Engineer before [10th
June] every year. The Contractor shall complete the proposed maintenance
works before the onset of the monsoon and send a compliance report to the
Engineer. Post monsoon inspection shall be done by the 30th September and
the inspection report together with details of any damages observed and
proposed action to remedy the same shall be sent to the Engineer.
16.2
Inspection and Payments
16.2.1 The Engineer may inspect the Project Highway at any time to ensure
compliance with the Maintenance Standards and Requirements. It shall make
a report of such inspection (Maintenance Inspection Report) stating in
reasonable detail the Defects or deficiencies, if any, with particular reference
to the Maintenance Requirements, the Maintenance Manual, the
Maintenance Programme and Safety Requirements, and send a copy thereof
to the Authority and the Contractor within 7 (seven) days of such inspection.
16.2.2 After the Contractor submits to the Engineer the Monthly Statement for
Maintenance of the Highway Project pursuant to Clause 20.6, the Engineer
shall carry out a formal (scheduled) inspection within seven days to certify
the amount payable to the Contractor. The Engineer shall inform the
Contractor of the Engineers intention to carry out the inspection at least two
days in advance. The Maintenance Engineer shall assist the Engineer in
verifying compliance with the Maintenance Standards and Requirements.
16.2.3 For each case of non-compliance of Maintenance Standards and
Requirements on the basis of the formal inspection by the Engineer, the
Engineer will calculate the amount of payment reduction in accordance with
the formula given in Schedule O.
16.2.4 Any deduction made on account of non-compliance will not be paid even
after establishing the compliance subsequently. The deductions will continue
to be made every month until the compliance is done.

16.3
Tests
For determining that the Project Highway conforms to the Maintenance
Requirements, the Engineer shall require the Contractor to carry out, or
cause to be carried out, tests specified by it in accordance with Good
Industry Practice. The Contractor shall, with due diligence, carry out or
cause to be carried out all such tests in accordance with the instructions of
the Engineer and furnish the results of such tests forthwith to the Engineer.
16.4
Remedial measures
16.4.1 The Contractor shall repair or rectify the Defects or deficiencies, if any, set
forth in the Maintenance Inspection Report or in the test results referred to in
Clause 16.3 and furnish a report in respect thereof to the Engineer and the
Authority within 15 (fifteen) days of receiving the Maintenance Inspection
Report or the test results, as the case may be; provided that where the
remedying of such Defects or deficiencies is likely to take more than 15
(fifteen) days, the Contractor shall submit progress reports of the repair
works once every week until such works are completed in conformity with
this Agreement.
16.4.2 The Engineer shall require the Contractor to carry out or cause to be carried
out tests, at Contractors cost, to determine that such remedial measures have
rectified the defects or deficiencies and have brought the Project Highway
into compliance with the Maintenance Requirements and the procedure set
forth in this Clause 16.4 shall be repeated until the Project Highway
conforms to the Maintenance Requirements. In the event that remedial
measures are not completed by the Contractor in conformity with the
provisions of this Agreement, the Authority shall be entitled to recover
Damages from the Contractor under and in accordance with the provisions of
Clause 14.8.
16.5
Reports of unusual occurrence

The Contractor shall, during the Maintenance Period, prior to the close of
each day, send to the Authority and the Engineer, by facsimile or e-mail, a
report stating accidents and unusual occurrences on the Project Highway
relating to the safety and security of the Users and Project Highway. A
weekly and monthly summary of such reports shall also be sent within three
days of the closing of each week and month, as the case may be. For the
purposes of this Clause 16.5, accidents and unusual occurrences on the
Project Highway shall include:
(i)
accident, death or injury to any person;
(ii)
damaged or dislodged fixed equipment;
(iii)
any traffic hold up;
(iv)
flooding of Project Highway; and

(v)
Any other unusual occurrence.

ARTICLE 17
TRAFFIC REGULATION
17.1
Traffic regulation by the Contractor
17.1.1 The Contractor shall take all necessary measures and make arrangements for
the safety during the construction of the Project Highway or a Section
thereof in accordance with the requirements of Clause 112 of the MoSRTH
Specifications. It shall provide, erect, and maintain all such barricades, signs,
markings, flags, lights as required or directed by the Engineer for safety of
the traffic passing through the Section under construction or maintenance.
17.1.2 All works shall be carried out in a manner creating least interference to
traffic passing through the Project Highway or a Section thereof. In stretches
where construction or maintenance works on the carriageway are taken up,
the Contractor shall ensure that proper passage is provided for the traffic.
Where it is not possible or safe to allow traffic on part width of the
carriageway, a temporary diversion of proper specifications approved by the
Engineer shall be constructed by the Contractor at its own cost. The
Contractor shall take prior approval of the Engineer for the any proposed
arrangement for traffic regulation during Construction Period or the
Maintenance Period, as the case may be.

ARTILCE 18
DEFECTS LIABILITY
18.1
Defects Liability Period
18.1.1 The Contractor shall be responsible for all the Defects and deficiencies,
except usual wear and tear in the Project Highway or any section thereof, as
the case may be.
18.1.2 The defects liability period (the Defect Liability Period) for the Project
Highway shall be as follows:
18.2
(a)
For works other than major bridges and structures, [five] years from
the date of issue of the Completion Certificate; and
(b)
for the major bridges and structures, as listed in Schedule B, [ten]

years from the date of issue of the Completion Certificate.
Remedying Defects
The Contractor shall repair or rectify all Defects and deficiencies observed
by the Engineer in the Project Highway during the Defects Liability Period
within a period of 15 (fifteen) days from the date of notice issued by the
Engineer in this behalf; provided that for any notice issued by the Engineer
[** (***)] days before the expiration of the Defects Liability Period, the
Contractor shall repair or rectify all Defects and deficiencies within 15 days
of the expiration of the Defects Liability Period.
18.3
Cost of Remedying Defects

For the avoidance of doubt, any repair or rectification in accordance with the
provisions of Clause 18.2 above , including any additional testing, shall be
carried out by the Contractor at his own risk and cost, if and to the extent
that such rectification or repair is attributable to:
18.4
(a)
the design of the Project;
(b)
Plant, Materials or workmanship not being in accordance with the

Agreement and the Specifications and Standards;
(c)
improper maintenance of the Project by the Contractor; and/ or
(d)
failure by the Contractor to comply with any other obligation under

the Agreement.
Contractors failure to rectify Defects

In the event that the Contractor fails to repair or rectify such Defect or
deficiency within the period specified in Clause 18.2, the Authority shall be
entitled to get the same repaired, rectified or remedied at the Contractors
risk and cost so as to make the Project Highway conform to the

Specifications and Standards and the provisions of this Agreement. All costs
consequent thereon shall, after due consultation with the Authority and the
Contractor, be determined by the Engineer. The cost so determined and an
amount equal to twenty percent of the cost as Damages shall be recoverable
by the Authority from the Contractor and may be deducted by the Authority
from any monies due or to become due to the Contractor.
18.5
Contractor to Search
18.5.1 The Engineer may instruct the Contractor to examine, under the Engineers
directions, the cause of any Defect, or faults in the Project Highway or part
thereof before the expiry of the Defects Liability Period.
18.5.2 In the event such Defect or fault is attributable to the Contractor, the
Contractor shall rectify such Defect or fault within the period specified by
the Engineer, and shall bear the cost of the examination and rectification of
such Defect or faults.
18.5.3 In the event such Defect or fault is not attributable to the Contractor, the
Engineer shall, after due consultation with the Authority and the Contractor,
determine the amount of the costs incurred by the Contractor for such
examination. The Engineer shall notify the same to the Contractor, with a
copy to the Authority, and the said amount shall be added to the Contract
Price. For the avoidance of doubt, the Contractor shall rectify such Defect or
faults prior to the expiry of the Defects Liability Period.
18.6
Performance Warranty
The Contractor shall warranty the performance of the Major Bridges and
Structures listed in Schedule B with respect to the Defects noted on account
of Design, Plant, Materials incorporated and/or workmanship for the period
of ten years from the date of issue of Completion Certificate. For this
purpose the Contractor shall provide the following:
(i)
The Contractor shall indemnify the Authority with respect to any

claim from a third party for damages/loss caused by non-performance
of the Major Bridge or any part thereof. An Indemnity Bond in form
and manner prescribed in Schedule P shall be furnished accordingly;
and
(ii)
The Contractor shall furnish to the Authority a bank guarantee in

accordance with Clause 7.1.
ARTICLE 19
ENGINEER
19.1
Appointment of Engineer
19.1.1 The Authority shall appoint either its own officer or a consulting engineering
firm substantially in accordance with the selection criteria set forth in
Schedule-Q, to be the engineer under this Agreement (the Engineer),
separately for the Construction Works and for the Maintenance of the Project
Highway.
19.1.2 The appointment of the Engineer for the Construction Works shall be made
no later than 15 (fifteen) days from the date of this Agreement and shall be
for the Construction Period of the Project Highway and one year thereafter.
The Authority shall notify the appointment or replacement of the Engineer to
the Contractor.
19.1.3 On expiry of the term of the Engineer appointed under Sub-clause 19.1.2, the
Authority shall appoint either its own officer or a consulting engineering
firm in accordance with the procedure set forth in Sub-clause 19.1.1 for the
Maintenance of the Project Highway for the remaining period of the
Maintenance. The Authority may, in its discretion, appoint the Engineer for a
term of two years and renew it later, or appoint another Engineer.
19.1.4 The Engineers staff shall include suitably qualified engineers and other
professionals who are competent to assist the Engineer to carry out his
duties.
19.2
Duties and authority of the Engineer
19.2.1 The Engineer, in the representative capacity of the Authority, shall have the
power and authority to decide on contractual matters between the Parties,
and perform the duties and exercise the authority in accordance with the
provisions of this Agreement, subject to obtaining prior written approval of
the Authority before taking any action on the following:
(a)
agreeing to or determining an extension of time under Clause 10.5;
(b)
determining additional cost to the Contract Price;
(c)
suspending construction on the Project Highway or any part thereof

under Clause 23.1; and
(d)
issuing the Change of Scope Order, including the new rates or prices,
except in an emergency situation, as determined by the Engineer
under Article 13.
19.2.2 The prior approval of the Authority to be obtained by the Engineer in terms
of Sub-clause 19.2.1 shall only be obtained from the officers in the

Authoritys organisation as have been specified in the Schedule R.
19.2.3 The Engineer shall submit regular periodic reports (at least once every
month) to the Authority in respect of its duties and authority specified in this
Clause 19.2. Provided that such periodic report shall be submitted by the
Engineer within 7 (seven) days of the beginning of every month.
19.3 Delegation by the Engineer
19.3.1 The Engineer may, by order in writing, delegate any of his duties and
responsibilities to suitably qualified assistants, or may revoke any such
delegation, under intimation to the Authority and the Contractor.
19.3.2 Any failure of the Engineer or his assistants appointed in pursuance of Subclause 19.3.1, to disapprove any work, Plant or Materials shall not constitute
approval, and shall therefore not prejudice the right of the Engineer or his
assistant to reject the work, Plant or Materials, not in accordance with the
Agreement and the Specifications and Standards.
19.3.3 Notwithstanding anything stated in Sub-clause 19.3.1 above, the Engineer
shall not delegate the authority to seek Authoritys prior approval wherever
required in accordance with the provisions of Clause 19.2.
19.4
Instructions
19.4.1 The Engineer may issue to the Contractor (at any time) instructions for the
remedying of any Defects. The Contractor shall take instructions only from
the Engineer, or from an assistant to whom the appropriate authority has
been delegated under Clause 19.3.
19.4.2 Subject to and in accordance with this Clause 19.4 any instruction issued by
the Engineer to the Contractor constituting a Change of Scope shall be in
accordance with the provisions of Article 13.
19.4.3 The instructions issued by Engineer or by his delegated assistant shall be in
writing. However, if the Engineer or his delegated assistant issue any oral
instructions to the Contractor, he shall confirm in writing the oral
instructions within 2 [two] working days of issuing them.
19.4.4 In case the Contractor does not receive the confirmation of the oral
instruction within the time prescribed above, the Contractor shall seek the
written confirmation of the oral instructions from the Engineer or the
delegated assistant who issued the oral instructions. In case of failure of the
Engineer or his delegated assistant to reply to the Contractor within 2 (two)
days of the receipt of the communication from the Contractor, the Contractor
shall not carry out the instruction.
19.4.5 The Contractor shall comply with the instructions given by the Engineer or
his delegated assistant.
19.4.6 In case of any dispute on any of the instructions issued by the delegated
assistant, the Contractor may refer the dispute to the Engineer, who shall

then confirm, reverse or vary the instructions within [3] business days of the
dispute being referred.
19.5
Remuneration
The remuneration, cost and expenses of the Engineer shall be paid by the
Authority.
19.6
Replacement of the Engineer

The Authority may, in its discretion, replace the Engineer at any time, but
only after appointment of another Engineer in accordance with Clause 19.1.
19.7
Determination
19.7.1 The Engineer shall consult with each Party in an endeavour to reach
agreement wherever the Agreement provides for the determination of any
matter by the Engineer. If such agreement is not achieved, the Engineer shall
make a fair determination in accordance with the Agreement taking due
regard of all relevant circumstances. The Engineer shall give notice to both
the Parties of each agreement or determination, with supporting particulars.
If the Contractor disputes any instruction, decision, or direction of the
Engineer, the Dispute shall be resolved in accordance with the Dispute
Resolution Procedure.
19.7.2 Each Party shall give effect to each agreement or determination made by the
Engineer in accordance with the provisions of this Agreement.
Part IV
Financial Matters

ARTICLE 20
PAYMENTS
20.1
Contract Price
20.1.1 The Authority shall make payments to the Contractor for the construction of
the Project Highway and its Maintenance during the period of the Agreement
on the basis of the lump sum Contract Price stated in Schedule J, subject to
adjustments in accordance with the provisions of the Agreement. The
monthly payments for the construction of the Project Highway shall be
estimated in accordance with Sub-clause 20.3.
20.1.2 The Contract Price includes all duties, taxes, and fees that may be levied in
accordance with the laws and regulations in force as on the Base Date on the
Contractor's Equipment, Plant, Materials and supplies acquired for the
purpose of the Agreement and on the services performed under the
Agreement. Nothing in the Agreement shall relieve the Contractor from its
responsibility to pay any tax including any tax that may be levied in India on
profits made by it in respect of the Agreement.
20.1.3 Contract Price shall not be adjusted for any of the change in costs stated in
Sub-clause 20.1.2 above except as stated in Sub-clauses 20.10 and 20.11.
20.1.4 The Contract Price shall not be adjusted to take account of any unforeseen
difficulties or costs, unless otherwise provided for in the Agreement.
20.1.5 Unless otherwise stated in the Agreement, the Contract Price covers all the
Contractors obligations under the Agreement and all things necessary for
the proper Design, Construction and Maintenance and the remedying of any
Defects in the Project Highway.
20.1.6 All payments under the Agreement shall be made in Indian Rupees.
20.2
Advance Payment
20.2.1 The Authority shall make an advance payment (the Advance Payment),
equal in amount to [ten] percent of the Contract Price for Design and
Construction works,,at the interest rate of 5 (five) percentage point above the
Bank Rate for mobilization expenses and acqusition of the equipment for the
Construction Works. The Advance Payment shall be made in two equal
instalments. .
20.2.2 The Contractor shall apply to the Engineer for the amount of the Advance
Payment within 30 (thirty) days of the Start Date, enclosing with it an
irrevocable and unconditional guarantee, for half the amount of the Advance
Payment, from the Bank to remain effective till the complete and full
repayment of the said amount with interest thereon.
20.2.3 The first installment shall be paid to the Contractor within thirty days of the
date of receipt of the Contractors request in accordance with the provisions
of Sub-clause 20.2.2.

20.2.4 Within three months after the payment of the first installment of Advance
Payment, the Contractor shall submit to the Engineer a certificate of
utilisation of the Advance Payment, supported with evidence of its
utilisation, as certified by the Engineer, and an irrevocable and unconditional
guarantee, for half the amount of the Advance Payment, from the Bank to
remain effective till the complete and full repayment of the said amount with
interest thereon.
20.2.5 The second installment shall be paid to the Contractor within thirty days of
the receipt of the utilisation certificate and the Bank Guarantee in accordance
with the provisions of Sub-clause 20.2.4.
20.2.6 TheContractor shall demonstrate that the use of the second instalment of the
Advance Payment by supplying copies of invoices or other documentary
evidence to the Engineer within 90 (ninety) days of receiving such second
instalment. The Engineer shall issue a certificate of the proper utilisation of
the installment. The unutilised amount of the Advance Payment shall be
recovered from the next IPC issued by the Engineer.
20.2.7 The each instalment of Advance Payment shall be recovered in equated
monthly instalments so as to recover the entire Advance Payment within a
period before the expiry of the seventy five percent of the Construction
Period.
20.2.8 The recovery of Advance Payment shall commence from the fourth Interim
Payment Certificate or 120 (one-hundred and twenty) days from the Start
Date, whichever is earlier. The interest due up to the date of start of recovery
shall also be recovered from the fourth interim payment certificate.
20.2.9 If the advance payment has not been fully repaid by the time specified in
clause 20.2.7, or prior to termination under Clause 22.7 (Force Majeure) or
Article 24 (Termination), (as the case may be), the whole of the balance then
outstanding shall immediately become due and payable by the Contractor to
the Authority.
20.3
Procedure for estimating the monthly payment for the Project Highway
20.3.1 The Authority shall make interim payments to the Contractor as certified by
the Engineer on the basis of the progress achieved for the stages and
components valued in accordance with the weightage (in percentage) of the
Contract Price assigned to each item and its stage of progress in accordance
with the provisions of Schedule I.
20.3.2 The Contractor shall base its claim for interim payment for the Design on the
completion of each stage of Design of works.
20.3.3 The Contractor shall base its claim for interim payment for each components
under the Road Works and Bridge Works and Structures on the basis of
actual quantity of work executed till the end of the month for which the
payment is claimed in relation to the Contractors total estimated quantity in
accordance with Sub-clause 10.2.1 (b), supported with documents to the
satisfaction of the Engineer.

20.3.4 The Contractor shall claim payment for Other Works on the basis of equal
monthly installment spread over the time for the completion of Project
Highway.
20.4

The Contractor shall submit a monthly statement (the Monthly
Statement), in 3 copies, by the 7th (seventh) day of each month to the
Engineer in the form set forth in Schedule S, showing the amount calculated
in accordance with Sub-clause 20.3.1, to which the Contractor considers
himself entitled. The Monthly Statement shall be accompanied with the
progress reports and any other supporting documents.
20.5
Monthly Payment for Construction Works
20.5.1 Within 7 days of receipt of the Monthly Statement from the Contractor
pursuant to Clause 20.4, the Engineer shall broadly determine the amount
due to the Contractor and recommend the same to the Authority for release
to the Contractor 75 (seventy-five) percent of the amount so determined as
part payment against the Monthly Statement, pending issue of the Interim
Payment Certificate (the IPC) by the Engineer. Within 7 business days of
the receipt of recommendation of the Engineer, the Authority shall make
electronic payment directly to the Contractors bank account.
20.5.2 Within 21 days of the receipt of the Monthly Statement referred to in Clause
20.4, the Engineer shall determine and shall deliver to the Authority and the
Contractor an Interim Payment Certificate (the IPC) certifying the amount
due and payable to the Contractor, after adjusting the payments already
released to the Contractor against the said statement.
20.5.3 In cases where there is a difference of opinion as to the value of any
component/stage, the Engineers view shall prevail.
20.5.4 The Engineer may withhold from payment the estimated cost of work,
rectification of work or obligation.
20.5.5 Notwithstanding the terms of this Clause 20.5 or any other clause of the
Agreement, no amount shall be certified by the Engineer for payment until
the Performance Security due in accordance with Clause 7.1 has been
provided by the Contractor and has been verified and accepted by the
Authority.
20.5.6 Payment by the Authority shall not be deemed to indicate the Authority's
acceptance, approval, consent or satisfaction with the work done.
20.6
Monthly Statement for Maintenance of the Project Highway during the

Maintenance Period
20.6.1 The Contractor shall submit to the Engineer a monthly statement in 3 copies
by the 7th day of each month in the format set forth in Schedule S for the
Maintenance of the Project Highway done during the previous month;.

20.6.2 The Maintenance of the Project Highway shall be billed on the basis of
monthly lump sum rate stated in the Schedule J.
20.7
Monthly Payment for Maintenance of the Project Highway during the

Maintenance Period
20.7.1 Within 14 days of receipt of the Monthly Statement from the Contractor
pursuant to Clause 20.6, the Engineer shall check the Contractors monthly
statement and certify the amount to be paid to the Contractor taking into
account:
(i)
The nature of maintenance carried out on the basis of the monthly

lump sum rate stated in the Contract Price.
(ii)
Adjustment for reduction for non-compliance with the Maintenance

Standards in accordance with Sub-clause 20.7.2.
The Engineer shall deliver to the Authority an IPC approving or amending

the monthly statement in such a way that, in the Engineers opinion, it
reflects the amount due to the Contractor in accordance with the Agreement.
In cases where there is a difference of opinion as to the value of any item, the
Engineers view shall prevail.
20.7.2 Maintenance activities shall be measured per km; provided however, their
payment shall be effected by compliance with the Maintenance
Requirements, and shall be billed in fixed monthly amounts in accordance
with the Agreement. If the Maintenance Standards and Maintenance
Requirements set forth in Schedule E are not met, reduction in payments
shall be made in accordance with the provisions of Schedule O. The
reductions for non-compliance with the maintenance Standards and
Requirements will be applied on the basis of monthly inspections and
payment reduction in accordance with the Maintenance Standards and
Maintenance Requirements set forth in Schedule E.
20.7.3 The deduction made from a monthly certificate on account of noncompliance with the maintenance standards shall not be subsequently
considered for payments after the compliance is achieved by repair or
rectification.
20.8
Payment of Damages
20.8.1 The Contractor shall claim Damages for delay in providing the Right of Way
sixty days after the scheduled date of providing the Right of Way to the
Contractor. The claim shall be made in the form set forth in Schedule S.
20.8.2 The Engineer shall issue the IPC within 28 days of the receipt of the claim
under Sub-clause 20.8.1, after making adjustments according to the
Agreement.
20.9
Time of Payment and Interest

20.9.1 The Authority shall pay to the Contractor any amount due under any
payment certificate issued by the Engineer in accordance with the provisions
of this Article 20, or in accordance with any other clause of this Agreement
as follows:
(i)
no later than 42 (forty two) days from the date of submission of the
Monthly Statement by the Contractor to the Engineer for certification
in accordance with the provisions of Clauses 20.4, 20.6, or 20.8 for
an IPC. Provided that, in the event the IPC is not issued by the
Engineer within the aforesaid period of 42 (forty two) days, the
Authority shall pay the amount shown in the Contractors Monthly
Statement and that any discrepancy shall be added to, or deducted
from, the next payment certificate issued to the Contractor; and
(ii)
no later than 56 (fifty six) days from the date of submission of the
Final Statement for Construction Works along with the discharge
submitted to the Engineer in accordance with the provisions of
Clauses 20.14 and 20.15 for certification, in the case of the Final
Payment Certificate.
20.9.2 In the event of the failure of the Authority to make payment to the Contractor
within the time period stated in Sub-clauses 20.5.1 and 20.9.1, the Authority
shall be liable to pay to the Contractor interest at the rate of [5 (five)]
percentage point above the Bank Rate upon all sums remaining unpaid from
the date on which the same should have been paid, calculated in accordance
with the provisions of Sub-clause 20.9.1(i) and (ii).
20.10. Price Adjustment for the Construction Works
20.10.1The amounts payable to the Contractor for Design of the Construction Works
shall not be adjusted during the currency of the Agreement.
20.10.2The amounts payable to the Contractor for Construction Works, subject to
Sub-clause 20.10.1, shall be adjusted during the currency of the Agreement
in the IPC issued by the Engineer for the increase or decrease in the index
cost of labour, cement, steel, Plant, machinery and spares, bitumen, fuel and
lubricants and other local material inputs to the Construction Works, by the
addition or subtraction of the amounts determined by the formulae prescribed
in the Sub-clause 20.10.4.
20.10.3To the extent that full compensation for any increase or decrease in costs to
the Contractor is not covered by the provisions of this or other clauses in the
Agreement, the prices included in the Agreement shall be deemed to include
amounts to cover the contingency of such other increase or decrease of costs.
Price Adjustment Formulae for Construction Works
20.10.4Contract Price for Construction Works shall be adjusted for increase or
decrease in rates and price of labour, cement, steel, Plant, machinery and
spares, bitumen, fuel and lubricants and other local material inputs to the
Construction in accordance with the following principles and procedures in

accordance with formula given below. (a) Price adjustment shall apply
only for work carried out within the stipulated time or extensions granted by
the Authority and shall not apply to work carried out beyond the stipulated
time; price adjustment for extensions for reasons attributable to the
Contractor, shall be regulated in accordance with Sub-clause 20.13 (Limit of
Price Adjustment).
(b)
Following expressions and meanings are assigned to the value of the work
done during each month:
R=
Total value of work done during the month.
(i)
Adjustment for Labour Component
Price adjustment for increase or decrease in the cost due to labour shall be paid in
accordance with the following formula:
VL =
0.85R x Pl/100 x( (Li - Lo)/ Lo )
VL =
increase or decrease in the cost of work during the month under

consideration due to changes in rates for local labour.
Lo =
the average consumer price index for industrial workers for [Delhi],
published by Labour Bureau, Ministry of Labour, Government of India,
(hereinafter called CPI) in the previous month prior to the closing date of
submission of bids
Li =
The average CPI in the previous month prior to the last day of the period to
which a particular IPC is related.
Pl =
ii)
Percentage of labour component of the work.

Adjustment for Cement Component
Price adjustment for increase or decrease in the cost of cement procured by the
Contractor shall be paid in accordance with the following formula.
Vc =
0.85R x Pc/100 x ((Ci - Co)/Co)
Vc =
Increase or decrease in the cost of work during the month under

consideration due to changes in the rates for cement
Co =
The all India average wholesale price index as published by the Ministry of
Commerce & Industry, Government of India (hereinafter called WPI) for
cement in the previous month prior to the closing date of submission of bids.
Ci =
The WPI for cement in the previous month prior to the last day of the period
to which a particular IPC is related.
Pc =
(iii)
Percentage of cement component of the work.

Adjustment for Steel Component

Price adjustment for increase or decrease in the cost of steel procured by the
Contractor shall be paid in accordance with the following formula:
Vs =
0.85R x Ps/100 x ((Si - So)/So)
Vs =

consideration due to changes in the rates for steel.
So =
The WPI for steel (Bars and Rods) in the previous month prior to the closing
date of submission of bids as published in WPI.
Si =
The WPI for steel (Bars and Rods) in the previous month prior to the last day
of the period to which a particular Interim Payment Certificate is related.
Ps =
Percentage of steel component of the work
(iv)
Adjustment for Plant, Machinery and Spares Component
Price adjustment for increase or decrease in the cost of Plant, machinery and spares
procured by the Contractor shall be paid in accordance with the following
formula:
Vp =
0.85R x Pp/100 x ((Pi - Po)/Po)
Vp =

consideration due to changes in the rates for Plant and machinery spares
Po =
The WPI for heavy machinery and parts in the previous month prior to the
closing date of submission of bids.
Pi =
The WPI for heavy machinery and parts in the previous month prior to the
last day of the period to which a particular IPC is related.
Pp =
Percentage of Plant and machinery spares component of the work.
Note: For the application of this paragraph (iv), the index of heavy machinery and
parts has been chosen to represent the Plant, machinery and spare
components.
(v)
Adjustment for Bitumen Component
Price adjustment for increase or decrease in the cost of bitumen procured by the
Contractor shall be paid in accordance with the following formula:
Vb =
0.85R Pb/100 x ((Bi BO)/Bo)
Vb =
increase or decrease in the cost of work during the month under

consideration due to changes in the rates for bitumen:
BO = average official retail price of bitumen at the nearest refinery at [Panipat] in

the previous month prior to the date of submission of Bids.
Bi=
the average official retail price of bitumen at nearest refinery at [Panipat], in

the previous month prior to the last day of the period to which a particular
IPC is related.
Pb =
(vi)
Percentage of bitumen component of the work.

Adjustment for Fuel and Lubricants (POL)
Price adjustment for increase or decrease in the cost of POL (fuel and
lubricant) shall be paid in accordance with the following formula:
Vf =
0.85R x Pf/100 x ((Fi - Fo)/Fo)
Vf =

consideration due to changes in rates for fuel and lubricants.
Fo =
The average official retail price of High Speed Diesel (HSD) oil at the
existing consumer pumps of IOC in the State of [Haryana] in the previous
month prior to date of submission of bids.
Fi =
The average official retail price of HSD at the existing consumer pumps of
IOC in the State of [Haryana] in the previous month prior to the last day of
the period to which a particular IPC is related
Pf =
Percentage of fuel and lubricants component of the work.
Note: For the application of this paragraph (vi), the price of high speed diesel oil at
the IOC pumps has been chosen to represent fuel and lubricant components.
(vii)
Adjustment for Other Local Materials

Price adjustment for increase or decrease in cost of local materials other than
cement, steel, bitumen, heavy machinery, Plant, spares and POL procured by
the Contractor and used in the Project Highway shall be paid in accordance
with the following formula:
Vm = 0.85R x Pm/100 x ((Mi - Mo)/Mo)

Vm = Increase or decrease in the cost of work during the month under
consideration due to changes in rates for local materials other than cement,
steel, bitumen, plant spares and POL.
Mo = The WPI for (all commodities) in the previous month prior to date of
submission of bids.
Mi =
The WPI for all commodities in the previous month prior to the last day of
the period to which a particular IPC is related.
Pm =
Percentage of local Materials component (other than cement, steel, bitumen,

heavy machinery, Plant, spares and POL) of the work.

(viii)
The following percentages will govern the price adjustment of the Contract
Price:
1
Labour Pl
10%
Plant and Machinery and Spares - PP
15%
POL - Pf
10%
Bitumen- Pb
Cement - P
y%
Steel - Ps
z%
Other Materials - Pm
x%
Actual
percentage of
material used
Total
65-(x+y+z)
100%
(x, y, z are the actual percentage of cost of material of bitumen, cement and
steel respectively used for execution of work in accordance with the IPC for
the month, subject to the condition that if the sum of x, y, and z . exceed 60
(sixty) percent, the values of x, y, and z shall be suitably adjusted so that
their sum does not exceed sixty percent.))
20.11. Price Adjustment for Maintenance of Project Highway
Monthly Lump sum payment for Routine Maintenance shall be adjusted
every year for changes in rates and prices of various inputs in accordance
with the formula given below:
V = P X (W1-W)/W
V=
Increase or decrease in the monthly lump sum payment
P=
Monthly lump sum payment due to the Contractor adjusted for any payment
reduction for non compliance of the Road Maintenance Standards
W=
All India average wholesale price index (all commodities) in the previous
month prior to the last date of submission of Bids.
W1=
All India average wholesale price index (all commodities) on the first day of
the 12 months- period under consideration for determining the price
adjustment.
20.12 Base, Current and Provisional Indices

The base cost indices or prices shall be those prevailing in the previous

month prior to the closing date for submission of bids. Current indices or
prices shall be those prevailing in the previous month to which a particular
IPC is related. If at any time the current indices are not available, provisional
indices as determined by the Engineer will be used, subject to subsequent
correction of the amounts payable to the Contractor when the applicable
indices become available.
20.13 Limit of Price Adjustment
In the event of the failure of the Contractor to complete the Project within
Construction Period prescribed under Sub-clause 10.3.2, the adjustment of
prices thereafter until the completion of the Project shall be made using
either the indices or prices relating to prescribed Construction Period, or the
current indices or prices, whichever is more favourable to the Authority,
provided that if an Extension of Time is granted under the Agreement, the
above position shall apply to the adjustments made after expiry of such
extension of time.
20.14 Final Statement for Construction Works
20.14.1 Not later than 60 days after the issue of the last of the Completion
Certificates, the Contractor shall submit to the Engineer for consideration six
copies of a Draft Final Statement for Construction Works, with supporting
documents showing in detail, in the form prescribed by the Engineer after
consultation with the Authority:
(a)
the summary of Contractors monthly claims for Construction Works

in accordance with the Agreement as submitted in accordance with
this Clause 20.14;
(b)
the amounts received from the Authority against each claim; and
(c)
Any further sums which the Contractor considers due to him from the
Authority.
If the Engineer disagrees with or cannot verify any part of the Draft Final
Statement, the Contractor shall submit such further information as the
Engineer may reasonably require and shall make such changes in the Draft
Final Statement as may be agreed between them. The Contractor shall then
prepare and submit to the Engineer the final statement as agreed (hereinafter
called Final Statement for Construction Works of the Project). If
following the discussions between the Engineer and the Contractor and any
changes to the Draft Final Statement which may not be agreed between
them, it becomes evident that a dispute exists, the Engineer shall deliver to
the Authority an IPC for those parts of the Draft Final Statement which are
not in dispute. The dispute shall then be settled in accordance with Article 27
(Dispute Resolution).
20.14.2 If the Engineer does not prescribe the format referred to in Sub-clause
20.4.1 within 15 days of the date of issue of the last Completion Certificate,
the Contractor shall submit the statement in such form as it deems fit.

20.15 Discharge
Upon submission of the Final Statement for Construction Works of the
Project under Clause 20.14, the Contractor shall give to the Authority, with a
copy to the Engineer, a written discharge confirming that the total of the
Final Statement represents full and final settlement of all monies due to the
Contractor in respect of the Agreement for the Construction Works arising
out of this Agreement. Provided that such discharge shall become effective
only after payment due under the Final Payment Certificate issued pursuant
to Clause 20.16 has been made.
20.16 Final Payment Certificate
20.16.1 Within 28 days after receipt of the Final Statement for Construction Works
under Clause 20.14, and the written discharge under Clause 20.15, the
Engineer shall deliver to the Authority (with a copy to the Contractor) a final
payment certificate (the Final Payment Certificate) stating:
(a)
the amount which, in the opinion of the Engineer, is finally due under
the Agreement or otherwise; and
(b)
after giving credit to the Authority for all amounts previously paid by
the Authority and for all sums to which the Authority is entitled, the
balance, if any, due from the Authority to the Contractor or from the
Contractor to the Authority as the case may be.
20.16.2 In accordance with Clause 20.9 ((Time of Payment and Interest), the
Authority shall pay to the Contractor the amount which is finally due, less all
amounts previously paid by the Authority and any deductions for the
amounts the Authority considers himself to be entitled in accordance with
the Agreement after providing the particulars to the Contractor.
20.17 Annual Statement for Maintenance
20.17.1 Not later than 45 (forty five) days at the end of each one year from the start
of Maintenance Works, the Contractor shall submit to the Engineer six
copies of an annual Statement for Maintenance of the Project Highway,
with supporting documents showing the details set forth below in the form
prescribed by the Engineer after consultation with the Authority:(a)
the total amount claimed in accordance with the monthly statement

for Maintenance of Project Highway and Change of Scope,
(b)
the amount paid in accordance with the Interim Payment Certificates,
(c)
any sums which the Contractor considers to be due to him, with

supporting documents.
The Engineer shall certify final payment in accordance with Clause 20.7 for
the year.
20.17.2 If the Engineer does not prescribe the format within 15 days of the date of

issue of Completion Certificate, the Contractor shall submit the statement in
such form as it deems fit.
20.18 Change in law
20.18.1 If as a result of Change in Law, the Contractor suffers any additional costs
for the execution of this Agreement, save and except as expressly provided
for in this Clause 20.18 or in accordance with the provisions of this
Agreement, the Contractor shall, within [28] days from the date he becomes
reasonably aware of such addition in cost, notify the Authority with a copy to
the Engineer of such additional cost due to Change in Law.
20.18.2 If as a result of Change in Law, the Contractor benefits from any reduction
in costs for the execution of this Agreement, save and except as expressly
provided for in this Clause 20.18 or in accordance with the provisions of this
Agreement, the Contractor shall, within [28] days from the date he becomes
reasonably aware of such reduction in cost, notify the Authority with a copy
to the Engineer of such reduction in cost due to Change in Law.
20.18.3 The Engineer shall, within [14] days from the date of receipt of the notice
from the Contractor, determine any addition or reduction to the Agreement
Price, as the case may be, due to the Change in Law.
20.19 Correction of Certificates
The Engineer may by an Interim Payment Certificate make any correction or
modification in any previous Interim Payment Certificate issued by the
Engineer. Further, if any work is not being carried out to the Engineers
satisfaction for which a notice has been issued to the Contractor, to omit the
value of such work in any IPC.

ARTICLE 21
INSURANCE
21.1
Insurance during Agreement Period
21.1.1 The Contractor shall effect and maintain at its own cost, during the
Construction Period and the Maintenance Period, the insurances specified in
Schedule T and as per the requirements under the Applicable Laws.
21.1.2 The Authority and the Contractor in accordance with their obligations as
provided for in this Agreement shall be liable to bear the cost of any loss or
damage that does not fall under the scope of this Article 21 or cannot be
recovered from the insurers.
21.1.3 Subject to the exceptions specified in Sub-clause 21.1.4 below, the
Contractor shall, save and except as provided for in the Agreement fully
indemnify, hold harmless and defend the Authority from and against any and
all losses, damages, costs, charges and/or claims with respect to:
(a)
the death of or injury to any person; or
(b)
the loss of or damage to any property (other than the Construction

Works);
that may arise out of or in consequence of the execution and completion of

the Works and the remedying of any Defects therein.
21.1.4 Notwithstanding anything stated above in Sub-clause 21.1.3, the Authority
shall fully indemnify the Contractor from and against any and all losses,
damages, costs, charges, proceedings and/or claims arising out of or with
respect to
(a)
the permanent use or occupation of land or any part thereof by the

Authority;
(b)
the right of the Authority to execute the Construction Works, or any

part thereof, on, over, under, in or through any land;
(c)
the damage to property which is the unavoidable result of the

execution and completion of the Construction Works, or the
remedying of any Defects therein, in accordance with the Agreement;
and
(d)
the death of or injury to persons or loss of or damage to

property resulting from any act or neglect of the Authority, his
agents, servants or other contractors, not being employed by the
Contractor,
Provided that, in the event of any injury or damage as a result of the

contributory negligence of the Contractor, the Authority shall be liable to
indemnify the Contractor from and against any and all losses, damages,

costs, charges, proceedings and/or claims to the extent as may be
proportionately determined to be the liability of the Authority, his servants or
agents or other contractors not associated with the Contractor in such injury
or damage.
21.1.5 Without prejudice to the obligations of the Parties as specified under Sub
clauses 21.1.3 and 21.1.4, the Contractor shall maintain or effect such third
party insurances (including Authority property) as specified in Schedule T.
Provided that the Contractor shall ensure that any such insurance maintained
or effected in pursuance of this Sub-clause 21.1.5 shall be for at least the
minimum amount specified in the Schedule T.
21.2
Notice to the Authority
No later than 14 (fourteen) days prior to the Start Date, the Contractor shall
by notice furnish to the Authority, in reasonable detail, information in
respect of the insurances that it proposes to effect and maintain in accordance
with this Article 21. Within 14 (fourteen) days of receipt of such notice, the
Authority may require the Contractor to effect and maintain such other
insurances as may be necessary pursuant hereto, and in the event of any
difference or disagreement relating to any such insurance, the Dispute
Resolution Procedure shall apply.
21.3
Evidence of Insurance Cover
21.3.1 All insurances obtained by the Contractor in accordance with this Article 21
shall be maintained with insurers on terms consistent with Good Industry
Practice. Prior to seven days before the Start Date, the Contractor shall
furnish to the Authority notarised true copies of the certificate(s) of
insurance, copies of insurance policies and premia payment receipts in
respect of such insurance, and no such insurance shall be cancelled,
modified, or allowed to expire or lapse until the expiration of at least 45
(forty five) days after notice of such proposed cancellation, modification or
non-renewal has been delivered by the Contractor to the Authority. The
Contractor shall act in accordance with the directions of the Authority.
Provided that the Contractor shall produce to the Authority the insurance
policies in force and the receipts for payment of the current premiums.
21.3.2 The Contractor shall notify, with prior approval of the Engineer, insurers of
changes in the nature, extent, or programme for the execution of the
Construction Works and ensure the adequacy of the insurances at all times in
accordance with the terms of the Agreement

21.4
Remedy for failure to insure

If the Contractor shall fail to effect and keep in force all insurances for which
it is responsible pursuant hereto, the Authority shall have the option to either
keep in force any such insurances, and pay such premia and recover the costs
thereof from the Contractor, or in the event of computation of a Termination
Payment, treat an amount equal to the Insurance Cover as deemed to have
been received by the Contractor.
21.5
Waiver of subrogation
All insurance policies in respect of the insurance obtained by the Contractor
pursuant to this Article 21 shall include a waiver of any and all rights of
subrogation or recovery of the insurers thereunder against, inter alia, the
Authority, and its assigns, successors, undertakings and their subsidiaries,
affiliates, employees, insurers and underwriters, and of any right of the
insurers to any set-off or counterclaim or any other deduction, whether by
attachment or otherwise, in respect of any liability of any such person
insured under any such policy or in any way connected with any loss,
liability or obligation covered by such policies of insurance.
21.6
Contractors waiver
The Contractor hereby further releases, assigns and waives any and all rights
of subrogation or recovery against, inter alia, the Authority and its assigns,
undertakings and their subsidiaries, affiliates, employees, successors,
insurers and underwriters, which the Contractor may otherwise have or
acquire in or from or in any way connected with any loss, liability or
obligation covered by policies of insurance maintained or required to be
maintained by the Contractor pursuant to this Agreement (other than third
party liability insurance policies) or because of deductible clauses in or
inadequacy of limits of any such policies of insurance.
21.7
Cross Liabilities
Any such insurance maintained or effected in pursuance of this Article 21
shall include a cross liability clause such that the insurance shall apply to the
Contractor and to the Authority as separate insured.
21.8
Accident or injury to Workmen

Notwithstanding anything stated in this Agreement, it is hereby expressly
agreed between the Parties that the Authority shall not be liable for or in
respect of any damages or compensation payable to any workman or other
person in the employment of the Contractor or Subcontractor, save and
except as for the death or injury resulting from any act, omission or default
of the Authority, his agents or servants. The Contractor shall indemnify and
keep indemnified the Authority from and against all such claims,
proceedings, damages, costs, charges, and expenses whatsoever in respect of
the above save and except for those acts , omissions or defaults for which the
Authority shall be liable.

21.9

The Contractor shall effect and maintain during Construction Period and the
Maintenance Period such insurances as may be required to insure the
Contractors personnel/any persons employed by him on the Project Highway
from and against any liability incurred in pursuance of this Clause 21.9.
Provided that for the purposes of this Clause 21.9, the Contractors
personnel/any person employed by the Contractor shall include the
Subcontractor and his personnel. It is further provided that, in respect of any
persons employed by any Subcontractor, the Contractor's obligations to
insure as aforesaid under this Clause 21.9 shall be satisfied if the
Subcontractor shall have insured against the liability in respect of such
persons in such manner that the Authority is indemnified under the policy.
The Contractor shall require such Subcontractor to produce to the Authority,
when required, such policy of insurance and the receipt for the payment of
the current premium within 7 [seven] days of such demand being made by
the Authority.
21.10 Insurance for Indirect Political Events

The Contractor shall effect or maintain, at its own cost, insurance for any
loss or damage as result of the risks of Indirect Political Events for the
amount stated in the Schedule T.
21.11 Responsibility for Amounts not recovered
The Authority and the Contractor in accordance with their obligations as
provided for in this Agreement shall be liable to bear the cost of any loss or
damage that does not fall under the scope of this Article 21 or cannot be
recovered from the insurers.
21.12
Application of insurance proceeds

The proceeds from all insurance claims, except life and injury, shall be paid
to the Contractor and it shall apply such proceeds for any necessary repair,
reconstruction, reinstatement, replacement, improvement, delivery or
installation of the Project Highway.
21.13 Compliance with Policy Conditions

Each Party hereby expressly agrees to fully indemnify the other Party from
and against all losses and claims arising from its failure to comply with
conditions imposed by the insurance policies effected in accordance with the
Agreement.
Part V
Force Majeure, Suspension, Termination

ARTICLE 22
FORCE MAJEURE
22.1
Force Majeure
As used in this Agreement, the expression Force Majeure or Force
Majeure Event shall mean occurrence in India of any or all of Non-Political
Event, Indirect Political Event and Political Event, as defined in Clauses
22.2, 22.3 and 22.4 respectively, if it affects the performance by the Party
claiming the benefit of Force Majeure (the Affected Party) of its
obligations under this Agreement and which act or event (i) is beyond the
reasonable control of the Affected Party, and (ii) the Affected Party could
not have prevented or overcome by exercise of due diligence and following
Good Industry Practice, and (iii) has Material Adverse Effect on the Affected
Party.
22.2
Non-Political Event
A Non-Political Event shall mean one or more of the following acts or
events:
(a)
act of God, epidemic, extremely adverse weather conditions,

lightning, earthquake, landslide, cyclone, flood, volcanic eruption,
chemical or radioactive contamination or ionising radiation, fire or
explosion (to the extent of contamination or radiation or fire or
explosion originating from a source external to the Site);
(b)
strikes or boycotts (other than those involving the, Contractor, Subcontractors or their respective employees/representatives, or
attributable to any act or omission of any of them) interrupting
supplies and services to the Project Highway for a continuous period
of 24 (twenty four) hours and an aggregate period exceeding 7
(seven) days in an Accounting Year, and not being an Indirect
Political Event set forth in Clause 22.3;
(c)
any failure or delay of a Sub-contractor/Contractor but only to the

extent caused by another Non-Political Event and which does not
result in any offsetting compensation being payable to the Authority
by or on behalf of such Contractor;
(d)
any judgement or order of any court of competent jurisdiction or

statutory authority made against the Contractor in any proceedings
for reasons other than (i) failure of the Contractor to comply with any
Applicable Law or Applicable Permit, or (ii) on account of breach of
any Applicable Law or Applicable Permit or of any contract, or (iii)
enforcement of this Agreement, or (iv) exercise of any of its rights
under this Agreement by the Authority;
(e)
the discovery of geological conditions, toxic contamination or

archaeological remains on the Site that could not reasonably have

been expected to be discovered through a site inspection; or
(f)
22.3
any event or circumstances of a nature analogous to any of the

foregoing.
Indirect Political Event

An Indirect Political Event shall mean one or more of the following acts or
events:
22.4
(a)
an act of war (whether declared or undeclared), invasion, armed

conflict or act of foreign enemy, blockade, embargo, riot,
insurrection, terrorist or military action, civil commotion or
politically motivated sabotage;
(b)
industry-wide or State-wide strikes or industrial action for a

continuous period of 24 (twenty four) hours and exceeding an
aggregate period of 7 (seven) days in an Accounting Year;
(c)
any civil commotion, boycott or political agitation which prevents

construction of the Project Highway by the Contractor for an
aggregate period exceeding 7 (seven) days in an Accounting Year;
(d)
any failure or delay of a Contractor to the extent caused by any

Indirect Political Event and which does not result in any offsetting
compensation being payable to the Authority by or on behalf of such
Contractor;
(e)
any Indirect Political Event that causes a Non-Political Event; or
(f)
any event or circumstances of a nature analogous to any of the

foregoing.
Political Event
A Political Event shall mean one or more of the following acts or events by
or on account of any Government Instrumentality:
(a)
Change in Law, only if consequences thereof cannot be dealt with

under and in accordance with the provisions of Clause 20.18;
(b)
compulsory acquisition in national interest or expropriation of any

Project Assets or rights of the Contractor or of the Sub-Contractors;
(c)
unlawful or unauthorised or without jurisdiction revocation of, or

refusal to renew or grant without valid cause, any clearance, licence,
permit, authorisation, no objection certificate, consent, approval or
exemption required by the Contractor or any of the Sub-contractors to

perform their respective obligations under this Agreement; provided
that such delay, modification, denial, refusal or revocation did not
result from the Contractors or any Sub-contractors inability or
failure to comply with any condition relating to grant, maintenance or
renewal of such clearance, licence, authorisation, no objection
certificate, exemption, consent, approval or permit;
22.5
(d)
any failure or delay of a Contractor but only to the extent caused by

another Political Event and which does not result in any offsetting
compensation being payable to the Authority by or on behalf of such
Contractor; or
(e)
any event or circumstance of a nature analogous to any of the

foregoing.
Duty to report Force Majeure Event
22.5.1 Upon occurrence of a Force Majeure Event, the Affected Party shall by
notice report such occurrence to the other Party forthwith. Any notice
pursuant hereto shall include full particulars of:
(a)
the nature and extent of each Force Majeure Event which is the
subject of any claim for relief under this Article 22 with evidence in
support thereof;
(b)
the estimated duration and the effect or probable effect which such
Force Majeure Event is having or will have on the Affected Partys
performance of its obligations under this Agreement;
(c)
the measures which the Affected Party is taking or proposes to take

for alleviating the impact of such Force Majeure Event; and
(d)
any other information relevant to the Affected Partys claim.
22.5.2 The Affected Party shall not be entitled to any relief for or in respect of a
Force Majeure Event unless it shall have notified the other Party of the
occurrence of the Force Majeure Event as soon as reasonably practicable,
and in any event no later than 7 (seven) days after the Affected Party knew,
or ought reasonably to have known, of its occurrence, and shall have given
particulars of the probable material effect that the Force Majeure Event is
likely to have on the performance of its obligations under this Agreement.
22.5.3 For so long as the Affected Party continues to claim to be materially affected
by such Force Majeure Event, it shall provide the other Party with regular
(and not less than weekly) reports containing information as required by
Sub-clause 22.5.1, and such other information as the other Party may
reasonably request the Affected Party to provide.
22.6
Effect of Force Majeure Event on the Agreement
22.6.1 Upon the occurrence of any Force Majeure after the Appointed Date, the
costs incurred and attributable to such event and directly relating to the

Agreement (the Force Majeure costs) shall be allocated and paid as
follows:
(a)
upon occurrence of a Non-Political Event, the Parties shall bear their

respective Force Majeure costs and neither Party shall be required to
pay to the other Party any costs thereof;
(b)
upon occurrence of an Indirect Political Event, all Force Majeure

costs attributable to such Indirect Political Event, and not exceeding
the Insurance Cover for such Indirect Political Event, shall be borne
by the Contractor, and to the extent Force Majeure costs exceed such
Insurance Cover, (i) one half of such excess amount shall be
reimbursed by the Authority to the Contractor for the Force Majeure
events; and
(c)
upon occurrence of a Political Event, all Force Majeure costs

attributable to such Political Event shall be reimbursed by the
Authority to the Contractor.
For the avoidance of doubt, Force Majeure Costs may include costs directly
attributable to the Force Majeure Event, but shall not include debt repayment
obligations, if any, of the Contractor
22.6.2 Save and except as expressly provided in this Article 22, neither Party shall
be liable in any manner whatsoever to the other Party in respect of any loss,
damage, cost, expense, claims, demands and proceedings relating to or
arising out of occurrence or existence of any Force Majeure Event or
exercise of any right pursuant hereto.
22.6.3 Upon the occurrence of any Force Majeure Event prior to the Start Date or
during the Construction Period the period set forth in Clause 10.1.3 for the
completion of the project as the Construction Period shall be extended by a
period equal in length to the duration of the Force Majeure Event.
22.7
Termination Notice for Force Majeure Event
22.7.1 If a Force Majeure Event subsists for a period of 60 [sixty] days or more
within a continuous period of 120 [one hundred and twenty] days, either
Party may in its discretion terminate this Agreement by issuing a
Termination Notice to the other Party without being liable in any manner
whatsoever, save as provided in this Article 22, and upon issue of such
Termination Notice, this Agreement shall, notwithstanding anything to the
contrary contained herein, stand terminated forthwith; provided that before
issuing such Termination Notice, the Party intending to issue the
Termination Notice shall inform the other Party of such intention and grant
15 (fifteen) days time to make a representation, and may after the expiry of
such 15 (fifteen) days period, whether or not it is in receipt of such
representation, in its sole discretion issue the Termination Notice.
22.8
Termination Payment for Force Majeure Event

22.8.1 In the event of the Agreement being terminated under Clause 22.7 on
account of a Non-Political Event, the Engineer shall issue a payment
certificate which shall include:
(a)
(b)
for termination during the Construction Period

(i)
an amount equal to the value of the Construction Works done

less payments already made, less Advance Payments
outstanding against the Contractor up to the date of the issue
of the Termination Notice, less other recoveries due in terms
of the Agreement, less taxes due to be deducted at source in
accordance with Applicable Law; Provided that the value of
Construction Works done shall be estimated in accordance
with the provisions of Article 20;
(ii)
the cost of Plant and Materials ordered for the Construction

Works which have been delivered to the Contractor. Provided
that such Plant and Materials shall become the property of the
Authority when paid for by the Authority and the Contractor
shall place the same at the Authoritys disposal; and.
(iii)
and the Contractor's costs of protecting and securing the

Construction Works.
for termination during Maintenance Period of the Project Highway:

(i)
an amount equal to the value of the Maintenance completed

and not yet paid, less other recoveries due in terms of the
Agreement and less taxes due to be deducted at source in
accordance with Applicable Law. Provided that, the value of
the Maintenance completed shall be estimated in accordance
(ii)
the cost of Materials ordered for the Maintenance which have

been delivered to the Contractor, Provided that such Plant and
Materials shall become the property of the Authority when
paid for by the Authority and the Contractor shall place the
same at the Authoritys disposal; and.
(iii)
and the Contractor's costs of protecting and securing the

Maintenance work in progress.
22.8.2 If Termination is on account of an Indirect Political Event, the Engineer shall

issue a payment certificate which shall include:
(a)
for termination during the Construction Period:

(i)
the amount for the value of the Construction Works done less
payments already made, less Advance Payments outstanding
against the Contractor up to the date of the issue of the
Termination Notice, less other recoveries due in terms of the

Agreement, less taxes due to be deducted at source in
accordance with Applicable Law. Provided that the value of
Construction Works completed shall be estimated in
accordance with the provisions of Article 20;
(b)
(ii)
the cost of Plant and Materials ordered for the Construction

Works which have been delivered to the Contractor, Provided
that such Plant and Materials shall become the property of
the Authority when paid for by the Authority and the
Contractor shall place the same at the Authoritys disposal;
(iii)
the reasonable cost of removal of Equipment and the cost of

removal of Temporary Works;
(iv)
repatriation of the Contractor's foreign personnel employed

solely on the Construction Works; and
(v)
the Contractor's costs of protecting and securing the Works .
for termination during Maintenance Period of the Project Highway:

(i)
an amount equal to the value of the Maintenance completed

and not yet paid, less other recoveries due in terms of the
Agreement and less taxes due to be deducted at source in
accordance with Applicable Law.. Provided that the value of
the Maintenance completed shall be estimated in accordance
(ii)
the cost of Materials ordered for the Maintenance which have

been delivered to the Contractor. Provided that such Plant and
Materials shall become the property of the Authority when
paid for by the Authority and the Contractor shall place the
same at the Authoritys disposal; and.
(iii)
the Contractor's costs of protecting and securing the

Maintenance work in progress.
22.8.3 If Termination is on account of a Political Event, the Authority shall make a

Termination Payment to the Contractor in an amount that would be payable
under Sub-clause 24.5.2 as if it were an Authority Default.
22.9
Dispute resolution
In the event that the Parties are unable to agree in good faith about the
occurrence or existence of a Force Majeure Event, such Dispute shall be
finally settled in accordance with the Dispute Resolution Procedure;
provided that the burden of proof as to the occurrence or existence of such
Force Majeure Event shall be upon the Party claiming relief and/or excuse on
account of such Force Majeure Event.

22.10 Excuse from performance of obligations
If the Affected Party is rendered wholly or partially unable to perform its
obligations under this Agreement because of a Force Majeure Event, it shall
be excused from performance of such of its obligations to the extent it is
unable to perform on account of such Force Majeure Event; provided that:
(a)
the suspension of performance shall be of no greater scope and of no

longer duration than is reasonably required by the Force Majeure
Event;
(b)
the Affected Party shall make all reasonable efforts to mitigate or

limit damage to the other Party arising out of or as a result of the
existence or occurrence of such Force Majeure Event and to cure the
same with due diligence; and
(c)
when the Affected Party is able to resume performance of its

obligations under this Agreement, it shall give to the other Party
notice to that effect and shall promptly resume performance of its
obligations hereunder.

ARTICLE 23
SUSPENSION OF CONSTRUCTION
23.1. Suspension of Construction Work for Contractors failure
23.1.1 In the event of the failure of the Contractor to duly and effectively perform
any of its obligations or to perform proper execution of the Construction
Works in accordance with the provisions of this Agreement, upon
recommendation of the Engineer to this effect,
the Authority may by notice require the Contractor to suspend forthwith the
performance of any obligations under the Agreement or the whole or any
part of the Construction Works.
23.1.2 The Contractor shall, pursuant to the notice under Sub-clause 23.1.1, suspend
the Construction Works or any part thereof for such time and in such manner
as may be specified by the Authority and thereupon carry out remedial
measures to secure the safety of the suspended works and the Users. The
Contractor may by notice require the Engineer to inspect such remedial
measures forthwith and make a report to the Authority recommending
whether or not the suspension hereunder may be revoked. Upon receiving the
recommendations of the Engineer, the Authority shall either revoke such
suspension or instruct the Contractor to carry out such other and further
remedial measures as may be necessary in the reasonable opinion of the
Authority, and the procedure set forth in this Clause 23.1 shall be repeated
until the suspension hereunder is revoked.
23.1.3 All reasonable costs incurred for maintaining and protecting the Construction
Works or any part thereof during the period of suspension (the
Preservation Costs), shall be borne by the Contractor; provided that if the
suspension has occurred as a result of any breach of this Agreement by the
Authority, the Preservation Costs shall be borne by the Authority.
23.2
Extension of Time on account of Suspension

If suspension of Construction Works is for reasons not attributable to the
Contractor, the Engineer shall determine any extension of the dates set forth
in the Project Completion Schedule to which the Contractor is reasonably
entitled, and shall notify the Authority accordingly whereupon the Authority
shall extend such Project Completion Schedule dates in accordance with the
recommendations of the Engineer. Notwithstanding anything contained
herein, such period of extension determined by the Engineer shall in no case
exceed the period of Suspension for which the Construction Works remain
suspended.
23.3
Authority to act on behalf of Contractor

During the period of Suspension, the Authority may at its own discretion, on
behalf of the Contractor, undertake to fulfil any of his obligations for
remedying and rectifying the cause of Suspension. Provided that any cost

incurred by the Authority in fulfilling the obligations of the Contractor for
the remedying or rectifying the cause of Suspension shall be borne by the
Contractor. The Authority shall have the right to deduct any such expense
incurred and another twenty percent thereof as Damages from any payment
due or to be due to the Contractor under the provisions of this Agreement.

ARTICLE 24
TERMINATION
24.1
Termination for Contractor Default
24.1.1 Save as otherwise provided in this Agreement, in the event that any of the
defaults specified below shall have occurred, and the Contractor fails to cure
the default within the Cure Period set forth below, or where no Cure Period
is specified, then within a Cure Period of 60 (sixty) days, the Contractor shall
be deemed to be in default of this Agreement (the Contractor Default),
unless the default has occurred solely as a result of any breach of this
Agreement by the Authority or due to Force Majeure. The defaults referred
to herein shall include:
(a)
The Contractor fails to extend or provide Performance Security in

accordance with the Agreement;
b)
the Contractor stops Construction Works and/or the Maintenance for

28 [twenty eight] days without reflecting the same in the current
programme and such stoppage has not been authorized by the
Engineer
(c)
Scheduled Completion Date does not occur within the period

specified in paragraph 5 of Schedule K;
(d)
the Contractors fails to rectify any Defect, the non rectification of

which shall have a Material Adverse Effect on the Project, within the
time specified in this Agreement or as directed by the Engineer;
(e)
the Contractor is in breach of the Safety Requirements;
(f)
the Contractor subcontracts the Construction Works or any part

thereof without the prior approval of the Engineer or assigns any part
of the Construction Works or the Maintenance without the prior
approval of the Authority;
(g)
the Contractor creates any Encumbrance in breach of this Agreement;
(h)
the Contractor repudiates this Agreement or otherwise takes any

action or evidences or conveys an intention not to be bound by the
Agreement;
[(i)
a Change in Ownership has occurred in breach of the provisions of

Clause 3.3;]
(j)
the Contractor is adjudged bankrupt or insolvent, or if a trustee or

receiver is appointed for the Contractor or for the whole or material
part of its assets that has a material bearing on the Construction
Works or the Maintenance of the Project Highway;
(k)
the Contractor has been, or is in the process of being liquidated,

dissolved, wound-up, amalgamated or reconstituted in a manner that
would cause, in the reasonable opinion of the Authority, a Material
Adverse Effect;
(l)
a resolution for winding up of the Contractor is passed, or any

petition for winding up of the Contractor is admitted by a court of
competent jurisdiction and a provisional liquidator or receiver is
appointed and such order has not been set aside within 90 (ninety)
days of the date thereof or the Contractor is ordered to be wound up
by Court except for the purpose of amalgamation or reconstruction;
provided that, as part of such amalgamation or reconstruction, the
entire property, assets and undertaking of the Contractor are
transferred to the amalgamated or reconstructed entity and that the
amalgamated or reconstructed entity has unconditionally assumed the
obligations of the Contractor under this Agreement; and provided
that:
(i)
the amalgamated or reconstructed entity does not have the

capability and experience necessary for the performance of its
obligations under this Agreement; and
(ii)
the amalgamated or reconstructed entity does not have the

financial standing to perform its obligations under this
Agreement and does not have a credit worthiness at least as
good as that of the Contractor as at the Appointed Date.
(m)
any representation or warranty of the Contractor herein contained

which is, as of the date hereof, found to be materially false or the
Contractor is at any time hereafter found to be in breach thereof;
(n)
the Contractor submits to the Authority any statement, notice or other

document, in written or electronic form, which has a material effect
on the Authoritys rights, obligations or interests and which is false in
material particulars;
(o)
the Contractor has failed to fulfil any obligation, for which failure
Termination has been specified in this Agreement;
(p)
the Contractor commits a default in complying with any other

provision of this Agreement if such a default causes a Material
Adverse Effect on the Authority.
(q)
failure of the Contractor to comply with the Engineers notice issued

under Article 23 to suspend the work;
(r)
When it is discovered by the Authority that the Contractor and its

officers, employees, agents and advisers have:
(i)
not acted in a bonafide manner during the bidding process and

the execution of the Agreement; and/or

(ii)
directly or indirectly or through an agent, engaged in corrupt,

fraudulent, coercive, undesirable or restrictive practices in the
bidding process or the execution of the Contract.
For the purposes of this Sub-clause 24.1.1, the terms set forth are defined as
follows:
(a)
corrupt practice means the offering, giving, receiving,

directly or indirectly, of anything of value to influence the
action of a public official in the bidding process, or the
execution of the Contract;
(b)
fraudulent practice means a misrepresentation or omission

of facts in order to influence the bidding process, or to obtain
payments from the Authority for the execution of the
Contract;
(c)
coercive practice means harming or threatening to harm,

directly or indirectly, persons or their property to influence
their participation in the bidding process or in discharging
their duties in the execution of the Contract;
(d)
undesirable practice means establishing contact with any

person connected with or employed by the Authority with the
objective of canvassing, lobbying or in any manner
influencing or attempting to influence the bidding process or
the monitoring, inspection or reporting the execution of the
Contract; and
(e)
restrictive practice means forming a cartel or arriving at any

understanding or arrangement among bidders with the
objective of restricting or manipulating a full and fair
competition in the bidding process.
24.1.2 Without prejudice to any other rights or remedies which the Authority may
have under this Agreement, upon occurrence of a Contractor Default, the
Authority shall be entitled to terminate this Agreement by issuing a
Termination Notice to the Contractor; provided that before issuing the
Termination Notice, the Authority shall by a notice inform the Contractor of
its intention to issue such Termination Notice and grant 15 (fifteen) days to
the Contractor to make a representation, and may after the expiry of such 15
(fifteen) days, whether or not it is in receipt of such representation, issue the
Termination Notice.
24.1.3 After termination of the Agreement for Contractor Default, the Authority
may complete the Works and/or arrange for any other entities to do so. The
Authority and these entities may then use any Materials, goods, Contractors
documents and other design documents made by or on behalf of the
Contractor.

24.2
Termination for Authority Default
24.2.1 In the event that any of the defaults specified below shall have occurred, and
the Authority fails to cure such default within a Cure Period of 90 (ninety)
days or such longer period as has been expressly provided in this Agreement,
the Authority shall be deemed to be in default of this Agreement (the
Authority Default) unless the default has occurred as a result of any
breach of this Agreement by the Contractor or due to Force Majeure. The
defaults referred to herein shall include:
(a)
The Authority commits a material default in complying with any of

the provisions of this Agreement and such default has a Material
Adverse Effect on the Contractor;
(b)
the Authority has failed to make any payment to the Contractor

within the period specified in this Agreement;
(c)
the Authority repudiates this Agreement or otherwise takes any

action that amounts to or manifests an irrevocable intention not to be
bound by this Agreement; or
(d)
the Engineer fails, within 56 [fifty six] days after receiving a

statement and supporting documents, to issue the relevant Interim
Payment Certificate.
24.2.2 Without prejudice to any other right or remedy which the Contractor may
have under this Agreement, upon occurrence of an Authority Default, the
Contractor shall be entitled to terminate this Agreement by issuing a
Termination Notice to the Authority; provided that before issuing the
Termination Notice, the Contractor shall by a notice inform the Authority of
its intention to issue the Termination Notice and grant 15 (fifteen) days to the
Authority to make a representation, and may after the expiry of such 15
(fifteen) days, whether or not it is in receipt of such representation, issue the
Termination Notice.
24.3
Termination for Authoritys convenience

Notwithstanding anything stated herein-above, the Authority may terminate
the Agreement for convenience. The termination shall take effect 28 [twenty
eight] days from the date of notice sent by registered post to the Contractors
address. The Authority shall not terminate the Agreement under this Clause
24.3 in order to execute the balance of the Construction Works/ Maintenance
and/or arrange for any other entities to do so.
24.4
Requirements after Termination

Upon Termination of the Agreement in accordance with the terms of this
Article 24, the Contractor shall comply with and conform to the following
Requirements:
(a)
deliver to the Authority all Plant and Materials which have become

the property of the Authority under this Article 24;
24.5
(b)
deliver all relevant records, as may be required by the Engineer,

reports, Intellectual Property and other licences pertaining to the
Construction Works, Maintenance, Contractors documents, and
other design documents made by or for him and as built Drawings
for which the Completion Certificate has been issued;
(c)
transfer and/or deliver all Applicable Permits to the extent

permissible under Applicable Laws; and
(d).
vacate the Site within [**(***)] days.
Termination Payment
24.5.1 Upon Termination on account of a Contractor Default during the

Construction Period / Maintenance, the Authority shall pay to the Contractor,
by way of Termination Payment, an amount equal to the value of the
Construction Works done less payments already made, less Advance
Payments received by the Contractor up to the date of the issue of the
Termination Notice, less other recoveries due in terms of the Agreement, less
taxes due to be deducted at source in accordance with Applicable Law and
less :
(i)
the 20 (twenty) percent of the balance of the cost of Construction

Works and Maintenance in the event that the progress achieved is
less than seventy percent of the Construction Works; or
(ii)
the 30 (thirty) percent of the balance of the cost of Construction

Works and Maintenance in the event that the progress achieved is
seventy percent or more of the Construction Works.
24.5.2 Upon Termination on account of an Authority Default under Clause 24.2 or

Authoritys Convenience under Clause 24.3, the Authority shall pay to the
Contractor, by way of Termination Payment, an amount equal to:
(a)
the amount due and payable to the Contractor for the Construction
Works / Maintenance executed up to the date of the issue of the
Termination Notice less Advance Payments received by the
Contractor up to the date of the issue of the Termination Notice, less
other recoveries due in terms of the Agreement and less taxes due to
be deducted at source in accordance with Applicable Law;
(b)
the cost of the Plant and Materials procured for the Construction
Works / Maintenance by the Contractor not having been incorporated
in the Construction Works and which shall become the property of
the Authority upon such Termination Payment; .
(c)
the reasonable cost of removal of the Equipment and the cost of

removal of temporary work;
(d)
reasonable cost for repatriation of the Contractor's personnel

employed solely on the Construction Works; and
(e)
10 (ten) percent of the cost of the Construction Works not completed,

and 10 (ten) percent of the cost of Maintenance not completed.
24.5.3 Termination Payment shall become due and payable to the Contractor within
15 (fifteen) days of a demand being made by the Contractor to the Authority
with the necessary particulars, and in the event of any delay, the Authority
shall pay interest at a rate equal to 5 (five) percentage point above the Bank
Rate on the amount of Termination Payment remaining unpaid; provided that
such delay shall not exceed 90 (ninety) days. For the avoidance of doubt, it is
expressly agreed that Termination Payment shall constitute full discharge by
the Authority of its payment obligations in respect thereof hereunder.
24.5.4 The Contractor expressly agrees that Termination Payment under this Article
24 shall constitute a full and final settlement of all claims of the Contractor
on account of Termination of this Agreement for any reason whatsoever and
that it shall not have any further right or claim under any law, treaty,
convention, contract or otherwise.
24.6
Other rights and obligations of the Authority

Upon Termination for any reason whatsoever, the Authority shall:
24.7
(a)
be deemed to have taken possession and control of the Project

Highway forthwith;
(b)
take possession and control of all Materials, stores, implements,

construction plants and equipment on or about the Site; and
(c)
be entitled to restrain the Contractor and any person claiming through

or under the Contractor from entering upon the Site or any part of the
Project.
Survival of rights
Notwithstanding anything to the contrary contained in this Agreement any
Termination pursuant to the provisions of this Agreement shall be without
prejudice to the accrued rights of either Party including its right to claim and
recover money damages, insurance proceeds, security deposits, and other
rights and remedies, which it may have in law or Agreement. All rights and
obligations of either Party under this Agreement, including Termination
Payments, shall survive the Termination to the extent such survival is
necessary for giving effect to such rights and obligations.
Part VI
Other Provisions

ARTICLE 25
ASSIGNMENT AND CHARGES
25.1
Restrictions on assignment and charges

This Agreement shall not be assigned by the Contractor to any person, save
and except with the prior consent in writing of the Authority, which consent
the Authority shall be entitled to decline without assigning any reason.

ARTICLE 26
LIABILITY AND INDEMNITY
26.1
General indemnity
26.1.1 The Contractor will indemnify, defend, save and hold harmless the Authority
and its officers, servants, agents, Government Instrumentalities and
Government owned and/or controlled entities/enterprises, (the Authority
Indemnified Persons) against any and all suits, proceedings, actions,
demands and third party claims for any loss, damage, cost and expense of
whatever kind and nature, whether arising out of any breach by the
Contractor of any of its obligations under this Agreement or from any
negligence under Agreement or tort or on any other ground whatsoever,
except to the extent that any such suits, proceedings, actions, demands and
claims have arisen due to any negligent act or omission, or breach or default
of this Agreement on the part of the Authority Indemnified Persons.
26.2
Indemnity by the Contractor
26.2.1 Without limiting the generality of Clause 26.1, the Contractor shall fully
indemnify, hold harmless and defend the Authority and the Authority
Indemnified Persons from and against any and all loss and/or damages
arising out of or with respect to:
(a)
failure of the Contractor to comply with Applicable Laws and

Applicable Permits;
(b)
payment of taxes required to be made by the Contractor in respect of

the income or other taxes of the Contractors Sub-contractors,
suppliers and representatives; or
(c)
non-payment of amounts due as a result of Material or services

furnished to the Contractor or any of its Sub-contractors which are
payable by the Contractor or any of its Sub-contractors.
26.2.2 Without limiting the generality of the provisions of this Article 26, the
Contractor shall fully indemnify, hold harmless and defend the Authority
Indemnified Persons from and against any and all suits, proceedings, actions,
claims, demands, liabilities and damages which the Authority Indemnified
Persons may hereafter suffer, or pay by reason of any demands, claims, suits
or proceedings arising out of claims of infringement of any domestic or
foreign patent rights, copyrights or other intellectual property, proprietary or
confidentiality rights with respect to any materials, information, design or
process used by the Contractor or by the Contractors Sub-contractors in
performing the Contractors obligations or in any way incorporated in or
related to the Project. If in any such suit, action, claim or proceedings, a
temporary restraint order or preliminary injunction is granted, the Contractor
shall make every reasonable effort, by giving a satisfactory bond or
otherwise, to secure the revocation or suspension of the injunction or
restraint order. If, in any such suit, action, claim or proceedings, the Project

Highway, or any part thereof or comprised therein, is held to constitute an
infringement and its use is permanently enjoined, the Authority shall
promptly make every reasonable effort to secure for the Authority a licence,
at no cost to the Authority, authorising continued use of the infringing work.
If the Contractor is unable to secure such licence within a reasonable time,
the Contractor shall, at its own expense, and without impairing the
Specifications and Standards, either replace the affected work, or part, or
process thereof with non-infringing work or part or process, or modify the
same so that it becomes non-infringing.
26.3
Notice and contest of claims

In the event that either Party receives a claim or demand from a third party in
respect of which it is entitled to the benefit of an indemnity under this Article
26 (the Indemnified Party) it shall notify the other Party (the
Indemnifying Party) within 15 (fifteen) days of receipt of the claim or
demand and shall not settle or pay the claim without the prior approval of the
Indemnifying Party, which approval shall not be unreasonably withheld or
delayed. In the event that the Indemnifying Party wishes to contest or dispute
the claim or demand, it may conduct the proceedings in the name of the
Indemnified Party, subject to the Indemnified Party being secured against
any costs involved, to its reasonable satisfaction.
26.4
Defence of claims
26.4.1 The Indemnified Party shall have the right, but not the obligation, to contest,
defend and litigate any claim, action, suit or proceeding by any third party
alleged or asserted against such Party in respect of, resulting from, related to
or arising out of any matter for which it is entitled to be indemnified
hereunder, and reasonable costs and expenses thereof shall be indemnified
by the Indemnifying Party. If the Indemnifying Party acknowledges in
writing its obligation to indemnify the Indemnified Party in respect of loss to
the full extent provided by this Article 26, the Indemnifying Party shall be
entitled, at its option, to assume and control the defence of such claim,
action, suit or proceeding, liabilities, payments and obligations at its expense
and through the counsel of its choice; provided it gives prompt notice of its
intention to do so to the Indemnified Party and reimburses the Indemnified
Party for the reasonable cost and expenses incurred by the Indemnified Party
prior to the assumption by the Indemnifying Party of such defence. The
Indemnifying Party shall not be entitled to settle or compromise any claim,
demand, action, suit or proceeding without the prior written consent of the
Indemnified Party, unless the Indemnifying Party provides such security to
the Indemnified Party as shall be reasonably required by the Indemnified
Party to secure the loss to be indemnified hereunder to the extent so
compromised or settled.
26.4.2 If the Indemnifying Party has exercised its rights under Clause 26.3, the
Indemnified Party shall not be entitled to settle or compromise any claim,
action, suit or proceeding without the prior written consent of the
Indemnifying Party (which consent shall not be unreasonably withheld or
delayed).

26.4.3 If the Indemnifying Party exercises its rights under Clause 26.3, the
Indemnified Party shall nevertheless have the right to employ its own
counsel, and such counsel may participate in such action, but the fees and
expenses of such counsel shall be at the expense of the Indemnified Party,
when and as incurred, unless:
(a)
the employment of counsel by such party has been authorised in

writing by the Indemnifying Party; or
(b)
the Indemnified Party shall have reasonably concluded that there may
be a conflict of interest between the Indemnifying Party and the
Indemnified Party in the conduct of the defence of such action; or
(c)
the Indemnifying Party shall not, in fact, have employed independent

counsel reasonably satisfactory to the Indemnified Party, to assume
the defence of such action and shall have been so notified by the
Indemnified Party; or
(d)
the Indemnified Party shall have reasonably concluded and

specifically notified the Indemnifying Party either:
(i)
that there may be specific defences available to it which are

different from or additional to those available to the
Indemnifying Party; or
(ii)
that such claim, action, suit or proceeding involves or could

have a material adverse effect upon it beyond the scope of this
Agreement:
Provided that if Sub-clauses (b), (c) or (d) of this Sub-clause 26.4.3 shall be
applicable, the counsel for the Indemnified Party shall have the right to direct
the defence of such claim, demand, action, suit or proceeding on behalf of
the Indemnified Party, and the reasonable fees and disbursements of such
counsel shall constitute legal or other expenses hereunder.
26.5
No consequential claims
Notwithstanding anything to the contrary contained in this Article 26, the
indemnities herein provided shall not include any claim or recovery in
respect of any cost, expense, loss or damage of an indirect, incidental or
consequential nature, including loss of profit, except as expressly provided in
this Agreement.

26.6
Survival on Termination
The provisions of this Article 26 shall survive Termination.

ARTICLE 27
DISPUTE RESOLUTION
27.1
Dispute Review Board
27.1.1 Subject to the provisions of Sub-clause 27.1.11, any dispute, difference or

controversy of whatever nature howsoever arising under or out of or in
relation to design and construction of the Project Highway under this
Agreement including its interpretation between the Parties and so notified in
writing by either Party to the other Party (the Dispute) shall in the first
instance, be referred to the Disputes Review Board (the Board). For the
avoidance of doubt, it is hereby expressly stated that Dispute shall also
include any disagreement by either Party with any action, inaction, opinion,
instructions, determination, certificate or valuation of the Engineer.
Notwithstanding anything stated here, any Disputes in respect of the
maintenance of Project Highway during the Maintenance Period shall not be
referred to the Board, and shall be referred to Arbitration directly.
27.1.2 The Board shall comprise of 3 (three) members of whom each Party shall
select one, and the third member shall be appointed by the two members so
selected and approved by the Parties, and in the event of any disagreement
between the two members or the Parties, on the appointment of the third
member the appointment shall be made by the Executive Committee, Indian
Road Congress.. Provided that, any member appointed hereof shall be
reasonably qualified and experienced in the type of construction involved in
the Project and with the interpretation of contractual documents.
27.1.3 Each Party hereby reserves the right to approve or reject any member
appointed by the other Party in pursuance of the provisions of Sub-clause
27.1.2. However, if a Party fails to nominate any member within a period of
28 (twenty-eight) days from the Appointed Date, or convey its approval or
rejection of the member appointed by the Other Party within a period of 14
(fourteen) days, the member shall be appointed by the Executive Committee,
Indian Road Congress at the request of any Party.
27.1.4 Notwithstanding anything to the contrary stated hereinabove, in the event the
two members appointed by the Parties fail to appoint the third member
within a period of 21 (twenty one) days from the date of the selection of the
last member on the Board or if any Party fails to approve the third member
within a period of 14 (fourteen) days from his selection, the appointment of
the third member shall be made by the Executive Committee, Indian Roads
Congress.
27.1.5 The third member of the Board appointed in accordance with the provisions
of this Clause 29.1 shall serve as the chairman of the Board.
27.1.6 Subject to the provisions of Sub-clause 27.1.2, the members shall sign the
Board members declaration of acceptance in pursuance of the rules and
procedures of the Board as provided for in Schedule U.

27.1.7 The Board shall become functional not later than 90 (ninety) days from the
date of the signing of the declaration of acceptance in pursuance of Subclause 27.1.6.
27.1.8 In the event of death, disability, or resignation of any member, the
replacement of any member shall be in accordance with the procedure set out
in Clause 27.1.
27.1.9 In the event any member fails to perform his obligations in accordance with
this Clause 27.1 for any reason other than those mentioned in Sub-clause
27.1.8, the other members on the Board shall promptly inform the Parties in
writing of such failure. The Parties shall, no later than 28 (twenty eight) days
from the receipt of such information, replace such non performing member
in accordance with the procedure set out in Sub-clause 27.1.2. Provided that,
if the Parties fail to replace any such member within the time period
stipulated hereinabove, the replacement shall be made by the Executive
Committee, Indian Road Congress in accordance with the procedure set out
in Sub-clause 27.1.2. For the avoidance of doubt, any replacement in
accordance with this Clause 27.1 shall be complete when the new member
signs the Board members declaration of acceptance.
27.1.10 Notwithstanding anything to the contrary stated above, the Board shall
continue to be functional and its activities shall have the same force and
effect during the period of any such vacancy as if the vacancy had not
occurred. Provided that, the Board shall not conduct any hearing or issue a
recommendation until the replacement is completed.
27.1.11 Notwithstanding anything stated to the contrary in Clause 27.1.1 above, if
the value of a dispute exceeds an amount of Rs. 10 (ten) crores, either Party
may invoke arbitration proceedings under Clause 27.4 without making a
reference to the Board in accordance with the provisions of Sub-clause
27.1.1.
27.2
Recommendation of Dispute Review Board
27.2.1 Any recommendation of the Board shall be final and binding on both Parties,
who shall promptly proceed to enforce the same. Subject to the Termination
or repudiation of the Agreement, this Agreement and the rights and
obligations of the Parties shall remain in full force and effect, pending the
recommendation of Board in any Board proceeding hereunder.
Notwithstanding anything to the contrary stated above, the Parties shall not
enforce any recommendation of the Board in the event of either or both
Parties invoke arbitration proceedings in accordance with Clause 27.4
27.2.2 In the event either Party is dissatisfied with any recommendation of the
Board, or if the Board fails to issue its recommendation within 56 (fifty six)
days after receipt by the chairman of the Board of the written request for
recommendation or any extension mutually agreed upon by the Authority
and the Contractor, which shall not in any case exceed a period of 84 [eighty
four] days from the date of receipt of the written request for recommendation
by the chairman of the Board, then either the Authority or the Contractor

may, within 28 (twenty eight) days after the receipt of the recommendation
from the Board, or within 28 [twenty eight] days after the expiry of the said
period, as the case may be, give notice to the other Party, with a copy for
information to the Engineer, of his intention to commence arbitration in
accordance with the provisions of Clause 27.4 as to Dispute. It is expressly
agreed between the Parties that no arbitration in respect thereof may be
commenced unless such notice is given.
27.2.3 Notwithstanding anything to the contrary stated above in this Clause 27.2,
the recommendation of the Board, issued within the time period stipulated in
Sub-clause 27.2.2 above, shall become final and binding on the Parties, if
either or both Parties fail to issue a notice of intention to commence
arbitration as to such dispute within a period of 28 (twenty eight) days from
the date of receipt of such recommendation from the Board.
27.2.4 The recommendation of the Board shall be admissible as evidence in any
subsequent dispute resolution procedure, including arbitration or litigation in
relation to the Dispute.
27.2.5 All recommendations which have become final and binding shall be
implemented by the Parties forthwith and such implementation shall also
include any relevant action to be taken by the Engineer. Failure to implement
the recommendation of the Board shall be a fundamental breach of the
Agreement. The affected Party may refer such failure itself to the arbitrators
and accordingly give notice to the other Party of its intention to refer the
matter to Arbitration.
27.3
Disbanding the Dispute Review Board
27.3.1 During the Construction Period, if the Parties are of the opinion that the
Board is not discharging its functions effectively, the Parties may, by mutual
agreement disband the Board and reconstitute a new Board. The new Board
shall be reconstituted in accordance with the procedure set out in Sub-clause
27.1.2, within 28 (twenty eight) days from the date on which the notice
disbanding the original Board became effective.
27.3.2 The Parties shall jointly sign a notice specifying that the Board shall stand
disbanded with effect from the date specified in the notice. The notice shall
be posted by a registered letter with AD or delivered personally to each
member of the Board. A member shall be deemed to have received the
delivery of the notice even if he refuses to do so.
27.3.3 Subject to the Termination or repudiation of the Agreement, the Contractor
shall be obligated to perform all its obligations and execute the Construction
Works in accordance with the Agreement.
27.4
Arbitration
27.4.1 Subject to the provisions of Sub-clause 27.1.11 above, any Dispute in respect
of which the recommendation(s), if any, of the Board have not become final
and binding in accordance with Sub-clause 27.2.3, or a Dispute relates to the

Maintenance of the Project Highway shall be finally decided by reference to
arbitration by an arbitral tribunal appointed in accordance with Sub-clause
27.4.2. Such arbitration shall be held in accordance with the Rules of
Arbitration of the International Centre for Alternative Dispute Resolution,
New Delhi (the Rules), or such other institutional rules as may be
mutually agreed by the Parties, and shall be subject to the provisions of the
Arbitration Act. The venue of such arbitration shall be [Delhi], and the
language of arbitration proceedings shall be English.
27.4.2 The arbitral tribunal shall consist of three arbitrators, of whom each Party
shall select one from the panel of arbitrators maintained under the Rules, and
the third arbitrator shall be appointed by the two arbitrators so selected from
the panel of arbitrators maintained under the Rules, and in the event of
disagreement between the two arbitrators, the appointment shall be made in
accordance with the Rules.
27.4.3 The arbitral tribunal shall have the power to open up, review and revise any
decision, opinion, instructions, determination, certificate or valuation of the
Engineer and any recommendation(s) of the Board related to the Dispute.
27.4.4 The arbitrators shall make a reasoned award (the Award). Any Award
made in any arbitration held pursuant to this Article 27 shall be final and
binding on the Parties as from the date it is made, and the Contractor and the
Authority agree and undertake to carry out such Award without delay.
27.4.5 The Contractor and the Authority agree that an Award may be enforced
against the Contractor and/or the Authority, as the case may be, and their
respective assets wherever situated.
27.4.6 This Agreement and the rights and obligations of the Parties shall remain in
full force and effect, pending the Award in any arbitration proceedings
hereunder.
27.4.7 The Authority shall publish the complete arbitration Award on its website,
within a period of 7 (seven) days from the receipt of a copy of the Award.
27.5
Adjudication by Regulatory Authority or Commission

In the event of constitution of a statutory Regulatory Authority or
Commission with powers to adjudicate upon disputes between the Contractor
and the Authority, all Disputes arising after such constitution shall, instead of
reference to arbitration under Clause 27.4, be adjudicated upon by such
Regulatory Authority or Commission in accordance with the Applicable Law
and all references to Dispute Resolution Procedure shall be construed
accordingly. For the avoidance of doubt, the Parties hereto agree that the
adjudication hereunder shall not be final and binding until an appeal against
such adjudication has been decided by an appellate tribunal or High Court, as
the case may be, or no such appeal has been preferred within the time
specified in the Applicable Law.

ARTICLE 28
MISCELLANEOUS
28.1
Governing law and jurisdiction

This Agreement shall be construed and interpreted in accordance with and
governed by the laws of India, and the courts at [Delhi] shall have exclusive
jurisdiction over matters arising out of or relating to this Agreement.
28.2
Waiver of immunity
Each Party unconditionally and irrevocably:
(a)
agrees that the execution, delivery and performance by it of this Agreement

constitute commercial acts done and performed for commercial purpose;
(b)
agrees that, should any proceedings be brought against it or its assets,

property or revenues in any jurisdiction in relation to this Agreement or any
transaction contemplated by this Agreement, no immunity (whether by
reason of sovereignty or otherwise) from such proceedings shall be claimed
by or on behalf of the Party with respect to its assets;
(c)
waives any right of immunity which it or its assets, property or revenues now
has, may acquire in the future or which may be attributed to it in any
jurisdiction; and
(d)
consents generally in respect of the enforcement of any judgement or award

against it in any such proceedings to the giving of any relief or the issue of
any process in any jurisdiction in connection with such proceedings
(including the making, enforcement or execution against it or in respect of
any assets, property or revenues whatsoever irrespective of their use or
intended use of any order or judgement that may be made or given in
connection therewith).
28.3
Delayed payments
The Parties hereto agree that payments due from one Party to the other Party
under the provisions of this Agreement shall be made within the period set
forth therein, and if no such period is specified, within 28 (twenty eight) days
of receiving a demand along with the necessary particulars. In the event of
delay beyond such period, the defaulting Party shall pay interest for the
period of delay calculated at a rate equal to 5 (five) percentage point above
the Bank Rate, and recovery thereof shall be without prejudice to the rights
of the Parties under this Agreement including Termination thereof.
28.4
Waiver
28.4.1 Waiver, including partial or conditional waiver, by either Party of any

default by the other Party in the observance and performance of any
provision of or obligations under this Agreement:-

(a)
shall not operate or be construed as a waiver of any other or

subsequent default hereof or of other provisions of or obligations
(b)
shall not be effective unless it is in writing and executed by a duly

authorised representative of the Party; and
(c)
shall not affect the validity or enforceability of this Agreement in any

manner.
28.4.2 Neither the failure by either Party to insist on any occasion upon the
performance of the terms, conditions and provisions of this Agreement or
any obligation thereunder nor time or other indulgence granted by a Party to
the other Party shall be treated or deemed as waiver of such breach or
acceptance of any variation or the relinquishment of any such right
hereunder.
28.5
Liability for review of Documents and Drawings

Except to the extent expressly provided in this Agreement:
28.6
(a)
no review, comment or approval by the Authority or the Engineer of

any Document or Drawing submitted by the Contractor nor any
observation or inspection of the construction, or maintenance of the
Project Highway nor the failure to review, approve, comment,
observe or inspect hereunder shall relieve or absolve the Contractor
from its obligations, duties and liabilities under this Agreement, the
Applicable Laws and Applicable Permits; and
(b)
the Authority shall not be liable to the Contractor by reason of any

review, comment, approval, observation or inspection referred to in
Sub-clause (a) above.
Exclusion of implied warranties etc.

This Agreement expressly excludes any warranty, condition or other
undertaking implied at law or by custom or otherwise arising out of any
other agreement between the Parties or any representation by either Party not
contained in a binding legal agreement executed by both Parties.
28.7
Survival
28.7.1 Termination shall:

(a)
not relieve the Contractor or the Authority, as the case may be, of any
obligations hereunder which expressly or by implication survive
Termination hereof; and
(b)
except as otherwise provided in any provision of this Agreement

expressly limiting the liability of either Party, not relieve either Party
of any obligations or liabilities for loss or damage to the other Party
arising out of, or caused by, acts or omissions of such Party prior to

the effectiveness of such Termination or arising out of such
Termination.
28.7.2 All obligations surviving Termination shall only survive for a period of 3
(three) years following the date of such Termination.
28.8
Entire Agreement
This Agreement and the Schedules together constitute a complete and
exclusive statement of the terms of the agreement between the Parties on the
subject hereof, and no amendment or modification hereto shall be valid and
effective unless such modification or amendment is agreed to in writing by
the Parties and duly executed by persons especially empowered in this behalf
by the respective Parties. All prior written or oral understandings, offers or
other communications of every kind pertaining to this Agreement are
abrogated and withdrawn. For the avoidance of doubt, the Parties hereto
agree that any obligations of the Contractor arising from the Request for
Qualification or Request for Proposals, as the case may be, shall be deemed
to form part of this Agreement and treated as such.
28.9
Severability
If for any reason whatever, any provision of this Agreement is or becomes
invalid, illegal or unenforceable or is declared by any court of competent
jurisdiction or any other instrumentality to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining
provisions shall not be affected in any manner, and the Parties will negotiate
in good faith with a view to agreeing to one or more provisions which may
be substituted for such invalid, unenforceable or illegal provisions, as nearly
as is practicable to such invalid, illegal or unenforceable provision. Failure to
agree upon any such provisions shall not be subject to the Dispute Resolution
Procedure set forth under this Agreement or otherwise.
28.10 No partnership
This Agreement shall not be interpreted or construed to create an association,
joint venture or partnership between the Parties, or to impose any partnership
obligation or liability upon either Party, and neither Party shall have any
right, power or authority to enter into any agreement or undertaking for, or
act on behalf of, or to act as or be an agent or representative of, or to
otherwise bind, the other Party.
28.11 Third Parties
This Agreement is intended solely for the benefit of the Parties, and their
respective successors and permitted assigns, and nothing in this Agreement
shall be construed to create any duty to, standard of care with reference to, or
any liability to, any person not a Party to this Agreement.
28.12 Successors and Assigns

This Agreement shall be binding upon, and inure to the benefit of the Parties
and their respective successors and permitted assigns.
28.13 Notices
Any notice or other communication to be given by any Party to the other
Party under or in connection with the matters contemplated by this
Agreement shall be in writing and shall:
(a)
in the case of the Contractor, be given by facsimile or e-mail and by

letter delivered by hand to the address given and marked for attention
of the person set out below or to such other person as the Contractor
may from time to time designate by notice to the Authority; provided
that notices or other communications to be given to an address
outside [Delhi] may, if they are subsequently confirmed by sending a
copy thereof by registered acknowledgement due, air mail or by
courier, be sent by facsimile or e-mail to the number as the
Contractor may from time to time designate by notice to the
Authority;
[***]
(b)
in the case of the Authority, be given by facsimile or e-mail and by

letter delivered by hand and be addressed to the [Chairman] of the
Authority with a copy delivered to the Authority Representative or
such other person as the Authority may from time to time designate
by notice to the Contractor; provided that if the Contractor does not
have an office in [Delhi] it may send such notice by facsimile or email and by registered acknowledgement due, air mail or by courier;
and
(c)
any notice or communication by a Party to the other Party, given in

accordance herewith, shall be deemed to have been delivered when in
the normal course of post it ought to have been delivered and in all
other cases, it shall be deemed to have been delivered on the actual
date and time of delivery; provided that in the case of facsimile or email, it shall be deemed to have been delivered on the working day
following the date of its delivery.
28.14 Language
All notices required to be given by one Party to the other Party and all other
communications, Documentation and proceedings which are in any way
relevant to this Agreement shall be in writing and in English language.
28.15 Counterparts
This Agreement may be executed in two counterparts, each of which, when
executed and delivered, shall constitute an original of this Agreement.
28.16 Confidentiality

The Parties shall treat the details of the Agreement as private and
confidential, except to the extent necessary to carry out obligations under it
or to comply with applicable Laws. The Contractor shall not publish, permit
to be published, or disclose any particulars of the Construction Works in any
trade or technical paper or elsewhere without the previous agreement of the
Authority.
28.17 Copyright and Intellectual Property Rights
28.17.1 As between the Parties, the Contractor shall retain the copyright and other
intellectual property rights in the Contractor's Documents and other design
documents made by (or on behalf of) the Contractor. The Contractor shall be
deemed (by signing the Agreement) to give to the Authority a nonterminable transferable non-exclusive royalty-free licence to copy, use and
communicate the Contractor's Documents, including making and using
modifications of them. This licence shall:
(a)
apply throughout the actual or intended working life (whichever is longer) of

the relevant parts of the Construction Works,
(b)
entitle any person in proper possession of the relevant part of the

Construction Works to copy, use and communicate the Contractor's
Documents for the purposes of completing, operating, maintaining, altering,
adjusting, repairing and demolishing the Construction Works, and
(c)
in the case of Contractor's Documents which are in the form of computer

programs and other software, permit their use on any computer on the Site
and other places as envisaged by the Agreement, including replacements of
any computers supplied by the Contractor:
28.17.2 The Contractor's Documents and other design documents made by (or on
behalf of) the Contractor shall not, without the Contractor's consent, be used,
copied or communicated to a third party by (or on behalf of) the Authority
for purposes other than those permitted under this Sub-Clause 28.17.
28.17.3 As between the Parties, the Authority shall retain the copyright and other
intellectual property rights in the Agreement and other documents made by
(or on behalf of) the Authority. The Contractor may, at his cost, copy, use,
and obtain communication of these documents for the purposes of the
Agreement. They shall not, without the Authority 's consent, be copied, used
or communicated to a third party by the Contractor, except as necessary for
the purposes of the Contract.

ARTICLE 29
DEFINITIONS
29.1.1 Definitions
In this Agreement, the following words and expressions shall, unless
repugnant to the context or meaning thereof, have the meaning hereinafter
respectively assigned to them:
Accounting Year means the financial year commencing from the first day
of April of any calendar year and ending on the thirty-first day of March of
the next calendar year;
Agreement means this Agreement, its Recitals, the Schedules hereto and
any amendments thereto made in accordance with the provisions contained
in this Agreement;
Applicable Laws means all laws, brought into force and effect by GOI or
the State Government including rules, regulations and notifications made
thereunder, and judgements, decrees, injunctions, writs and orders of any
court of record, applicable to this Agreement and the exercise, performance
and discharge of the respective rights and obligations of the Parties
hereunder, as may be in force and effect during the subsistence of this
Agreement;
Applicable Permits means all clearances, licences, permits,
authorisations, no objection certificates, consents, approvals and exemptions
required to be obtained or maintained under Applicable Laws in connection
with the construction, operation and maintenance of the Project Highway
during the subsistence of this Agreement;
Appointed Date means the date on whichthe Agreement is signed by both
the Parties;
Arbitration Act means the Arbitration and Conciliation Act, 1996 and
shall include modifications to or any re-enactment thereof, as in force from
time to time;
Authority shall have the meaning attributed thereto in the array of Parties
hereinabove as set forth in the Recitals;
Authoritys Default shall have the meaning set forth in Clause 24.2;

Authority Representative means such person or persons as may be
authorised in writing by the Authority to act on its behalf under this
Agreement and shall include any person or persons having authority to
exercise any rights or perform and fulfil any obligations of the Authority
Bank means a bank incorporated in India and having a minimum net
worth of Rs. 1,000 crore (Rupees one thousand crore) or any other bank
acceptable to the Authority;
Bank Rate means the rate of interest specified by the Reserve Bank of
India from time to time in pursuance of section 49 of the Reserve Bank of
India Act, 1934 or any replacement of such Bank Rate for the time being in
effect;
Base Date means the date 28 days prior to the latest date for submission of
the Bid;
Bid means the documents in their entirety comprised in the bid submitted
by the [selected bidder/Consortium] in response to the Request for Proposals
in accordance with the provisions thereof;
Certificate of Performance means the certificate issued to the Contractor
by the Engineer on completion of all the Maintenance obligations of the
Contractor, in accordance with Clause 12.5;
Change in Law means the occurrence of any of the following after the
Base Date:
(a)
the enactment of any new Indian law;
(b)
the repeal, modification or re-enactment of any existing
Indian law;
(c)
the commencement of any Indian law which has not entered
into effect until the date of Bid;
(d)
a change in the interpretation or application of any Indian law
by a judgement of a court of record which has become final,
conclusive and binding, as compared to such interpretation or
application by a court of record prior to the date of Bid; or
(e)
any change in the rates of any of the Taxes or royalties on
Materials that have a direct effect on the Project;
Change of Scope shall have the meaning set forth in Article 13;
Change of Scope Notice shall the meaning set forth in Sub-clause 13.2.1;
Change of Scope Order shall have the meaning set forth in Sub-clause
13.2.5;

Completion Certificate shall have the meaning set forth in Clause 12.2;
{Consortium shall have the meaning set forth in Recital (C);}
Contract means the legal, binding rights and obligations of the Parties
arising from the Agreement between the Parties;
Contract Price means the total of the agreed amount stated in the
Schedule J separately for the (i) Design and Construction of the Project
Highway, and (ii) the Maintenance of the Project including the remedying of
any defects therein in accordance with the Agreement;
Contractor shall have the meaning attributed thereto in the array of
Parties hereinabove as set forth in the Recitals;
Contractor Default shall have the meaning set forth in Clause 24.1;
Construction Period shall have the meaning set forth in Clause 10.3;
Contractor's Representative means the person, who acts on behalf of the
Contractor, appointed from time to time by the Contractor under Sub-clause
10.1.1 or 14.1.1, as the case may be;
Construction Works means all works and things necessary to complete
the Project Highway in accordance with this Agreement, and it does not
include Maintenance of the Project Highway;
Cure Period means the period specified in this Agreement for curing any
breach or default of any provision of this Agreement by the Party responsible
for such breach or default and shall:
(a)
commence from the date on which a notice is delivered by
one Party to the other Party asking the latter to cure the breach or
default specified in such notice;
(b)
not relieve any Party from liability to pay Damages or
compensation under the provisions of this Agreement; and
(c)
not in any way be extended by any period of Suspension
under this Agreement; provided that if the cure of any breach by the
Contractor requires any reasonable action by the Contractor that must
be approved by the Authority or the Engineer hereunder, the
applicable Cure Period shall be extended by the period taken by the
Authority or the Engineer to accord their approval;
Damages shall have the meaning set forth in paragraph (w) of Sub-clause
1.2.1;
Defect is any part of the Construction Works and Maintenance which is
not in accordance with the Agreement;
Defect Liability Period shall have the meaning set forth in Article 18;

Design means the planning, surveys and investigations, and preparation of
design, calculations and drawings for the Project Highway done in
accordance with Clause 10.1;
Design Director shall have the meaning set forth in Sub-Clause 10.1.4;
Design Quality Manager shall have the meaning set forth in Sub-Clause
10.1.6;
Dispute shall have the meaning set forth in Sub-clause 29.1.1;
Dispute Resolution Procedure means the procedure for resolution of
Disputes set forth in Article 29;
Drawings means all of the drawings, calculations and documents
pertaining to the Project Highway as set forth in Schedule-L, and shall
include as built drawings of the Project Highway;
Document or Documentation means documentation in printed or
written form, or in tapes, discs, drawings, computer programmes, writings,
reports, photographs, films, cassettes, or expressed in any other written,
electronic, audio or visual form;
Emergency means a condition or situation that is likely to endanger the
security of the individuals on or about the Project Highway, including Users
thereof, or which poses an immediate threat of material damage to any of the
Project Assets;
Encumbrances means, in relation to the Project Highway, any
encumbrances such as mortgage, charge, pledge, lien, hypothecation,
security interest, assignment, privilege or priority of any kind having the
effect of security or other such obligations, and shall include any designation
of loss payees or beneficiaries or any similar arrangement under any
insurance policy pertaining to the Project Highway, where applicable herein
but excluding utilities referred to in Clause 9.1;
Engineer shall have the meaning set forth in Clause 19.1;
EPC means engineering, procurement and construction of the Project;
Force Majeure or Force Majeure Event shall have the meaning
ascribed to it in Clause 22.1;
GOI or Government means the Government of India;
Good Industry Practice means the practices, methods, techniques,
designs, standards, skills, diligence, efficiency, reliability and prudence
which are generally and reasonably expected from a reasonably skilled and
experienced contractor engaged in the same type of undertaking as envisaged
under this Agreement and which would be expected to result in the
performance of its obligations by the Contractor in accordance with this
Agreement, Applicable Laws and Applicable Permits in reliable, safe,

economical and efficient manner;
Government Instrumentality means any department, division or subdivision of the Government or the State Government and includes any
commission, board, authority, agency or municipal and other local authority
or statutory body including Panchayat under the control of the Government
or the State Government, as the case may be, and having jurisdiction over all
or any part of the Project Highway or the performance of all or any of the
services or obligations of the Contractor under or pursuant to this
Agreement;
IRC means the Indian Roads Congress;
Indemnified Party means the Party entitled to the benefit of an indemnity
pursuant to Article 26;
Indemnifying Party means the Party obligated to indemnify the other
Party pursuant to Article 26;
Indirect Political Event shall have the meaning set forth in Clause 22.3;
Insurance Cover means the aggregate of the maximum sums insured
under the insurances taken out by the Contractor pursuant to Article 21, and
includes all insurances required to be taken out by the Contractor under
Clauses 21.1, 21.9 and 21.10 but not actually taken, and when used in the
context of any act or event, it shall mean the aggregate of the maximum
sums insured and payable or deemed to be insured and payable in relation to
such act or event;
Intellectual Property means all patents, trade marks, service marks,
logos, get-up, trade names, internet domain names, rights in designs, blue
prints, programmes and manuals, drawings, copyright (including rights in
computer software), database rights, semi-conductor, topography rights,
utility models, rights in know-how and other intellectual property rights, in
each case whether registered or unregistered and including applications for
registration, and all rights or forms of protection having equivalent or similar
effect anywhere in the world;
Interim Payment Certificate or IPC means the interim payment
certificate issued by the Engineer for payment to the Contractor in respect of
Contractors claims for payment raised in accordance with the provisions of
the Agreement;
LOA or Letter of Acceptance means the letter of acceptance referred
to in Recital (E);
Maintenance means the maintenance of the Project Highway during the

Maintenance Period in accordance with the Maintenance Requirements;
Maintenance Manual shall have the meaning ascribed to it in Clause

14.3;
Maintenance Programme shall have the meaning set forth in Clause
14.4;
Maintenance Requirements shall have the meaning set forth in Clause
14.2;
Maintenance Period starts from the date of issue of Completion
Certificate and ends five year after that;
Materials are all the supplies, including consumables, used by the
Contractor for incorporation in the Construction Works or for the
maintenance of the Project Highway;
"Monthly Statement" shall have the meaning set forth in Clause 20.4 ;
Parties means the parties to this Agreement collectively and Party shall
mean any of the parties to this Agreement individually;
Performance Security shall have the meaning set forth in Clause 7.1;
Plant means the apparatus, machinery and vehicles intended to form or
forming part of the Construction Works;
Political Event shall have the meaning set forth in Clause 22.4;
Programme shall have the meaning set forth in Sub-clause 10.1.3;
Project means the construction and maintenance of the Project Highway
in accordance with the provisions of this Agreement, and includes all works,
services and equipment relating to or in respect of the Scope of the Project;
Project Assets means all physical and other assets relating to (a) tangible
assets such as civil works and equipment including foundations,
embankments, pavements, road surface, interchanges, bridges, culverts, road
over-bridges, drainage works, traffic signals, sign boards, kilometre-stones,
[toll plaza[s]], electrical systems, communication systems, rest areas, relief
centres, maintenance depots and administrative offices; and (b) Project
Facilities situated on the Site;
Project Completion Date means the date on which the last Completion
Certificate is issued under the provisions of Article 12;
Project Completion Schedule means the progressive Project Milestones
set forth in Schedule K for completion of the Project Highway on or before
the Scheduled [Four-Laning] Completion Date;
Project Facilities means all the amenities and facilities situated on the
Site, as described in Schedule-C;
Project Highway means the Site set forth in Recital B and its subsequent

design, construction and maintenance in accordance with this Agreement;
Project Milestones means the project milestones set forth in Schedule K;
Proof Check Consultant has the meaning set forth in Sub-clause 10.1.7;
Quality Assurance Plan or QAP shall have the meaning set forth in
Clause 11.2;
Re., Rs. or Rupees or Indian Rupees means the lawful currency
of the Republic of India;
Request for Proposals or RFP shall have the meaning set forth in
Recital D;
Request for Qualification or RFQ shall have the meaning set forth in
Recital C;
Right of Way means the constructive possession of the Site free from
encroachments and encumbrances, together with all way leaves, easements,
unrestricted access and other rights of way, howsoever described, necessary
for construction and maintenance of the Project Highway in accordance with
this Agreement;
Safety Consultant shall have the meaning set forth in Sub-clause 15.1.2;
Safety Requirements shall have the meaning set forth in Sub-clause
15.1.1;
Scope of the Project shall have the meaning set forth in Clause 2.1;
Site shall have the meaning set forth in Clause 8.1;
Specifications and Standards means the specifications and standards
relating to the quality, quantity, capacity and other requirements for the
Project Highway, as set forth in Schedule-D, and any modifications thereof,
or additions thereto, as included in the design and engineering for the Project
Highway submitted by the Contractor to, and expressly approved by, the
Authority;
Start Date means the date 28 (twenty-eight) days after the date of signing
of this Agreement and shall be deemed to be the date of commencement of
the Construction Period;
Start Date of Maintenance is the date for starting the Maintenance of the
Project Highway. It starts from the date of issue of Completion Certificate;
State means the State of ***** and State Government means the
government of that State;
Subcontractor means any person or persons to whom a part of the
Construction Works or the Maintenance Works has been subcontracted and

the permitted legal successors in title to such person, but not an assignee to
such person;
Suspension shall have the meaning set forth in Article 23;
Taking over Certificate shall have the meaning set forth in Clause 12.4;
Taxes means any Indian taxes including excise duties, customs duties,
value added tax, sales tax, local taxes, cess and any impost or surcharge of
like nature (whether Central, State or local) on the goods, Material,
equipment and services incorporated in and forming part of the Project
Highway charged, levied or imposed by any Government Instrumentality,
but excluding any interest, penalties and other sums in relation thereto
imposed on any account whatsoever. For the avoidance of doubt, Taxes shall
not include taxes on corporate income;
Termination means the expiry or termination of this Agreement;
Termination Notice means the communication issued in accordance with
this Agreement by one Party to the other Party terminating this Agreement;
Termination Payment means the amount payable by the Authority to the
Contractor upon Termination in accordance with Article 24;
User means a person who travels or intends to travel on the Project
Highway or any part thereof in/on any vehicle; and
WPI means the Wholesale Price Index for various commodities as
published by the Ministry of Commerce and Industry, GOI and shall include
any index which substitutes the WPI, and any reference to WPI shall, unless
the context otherwise requires, be construed as a reference to the WPI
published for the period ending with the preceding month.
IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED AND
DELIVERED THIS AGREEMENT AS OF THE DAY, MONTH AND
YEAR FIRST ABOVE WRITTEN.
SIGNED, SEALED AND
SIGNED, SEALED AND
DELIVERED
DELIVERED
For and on behalf of
THE NATIONAL HIGHWAY

AUTHORITY OF INDIA [***] by:
CONTRACTOR by:
(Signature)
(Signature)
(Name)
(Name)
(Designation)
(Designation)
In the presence of: 1.
2.
Schedules

SCHEDULE A
(See Clauses 2.1 and 8.1)
SITE OF THE PROJECT

1
The Site
1.1
Site of the Project Highway shall include the land, buildings, structures and
road works as described in Annex-I of this Schedule-A.
1.2
The dates of handing over the Right of Way to the Contractor are specified in
Annex-II of this Schedule-A.
1.3
An inventory of the Site including the land, buildings, structures, road works,
trees and any other immovable property on, or attached to, the Site shall be
prepared jointly by the Authority Representative and the Contractor, and
such inventory shall form part of the memorandum referred to in Sub-clause
8.3.1 of the Agreement.
1.4
The Authority shall acquire and provide the additional land required for [Toll
Plazas, Traffic Aid Posts, Medical Aid Posts and vehicle rescue posts or for]
construction of works specified in the Change of Scope Order issued under
Sub-clause 13.2.5 of this Agreement. Upon acquisition, such land shall form
part of the Site and vest in the Authority.
1.5
The status of the environment clearances obtained or awaited is given in

Annex III.

Annex - I
(Schedule-A)
Site
[Note: Through suitable drawings and description in words, the land, buildings,
structures and road works comprising the Site shall be specified briefly but
precisely in this Annex-I.]
1. Site
The Site of the Project Highway comprises the section of [National] Highway **
commencing from Km *** to Km *** i.e. the *** - *** section in the State
of ***. The land, carriageway and structures comprising the Site are
described below.
2. Land
The Site of the Project Highway comprises the land described below:
Chainage (km)
S. No.
ROW (m )
From
Remarks
To
3. Carriageway
The present carriageway of the Project Highway is a [two-lane] with paved
shoulders in its entire length].
4. Major Bridges
The Site includes the following Major Bridges:
S.No
5.
Chainage
(km)
Type
Structure
of
No. of Spans with span length

(m)
Road Over Bridges (ROB)/ Road Under Bridge (RUB)
The Site includes the following ROB/RUB:
Width
Chainage
(km)
S.No.
6.
Type of Structure
No. of Spans with

span length (m)
Width (m)
Grade Separators
The Site includes the following Grade Separators:
S.No
Chainage
(km)
7.
Minor Bridges
Type
Structure
of No. of Spans with

span length (m)
Width (m)
The Site includes the following Minor Bridges:
S. No.
Chainage
(km)
Type of Structure
No. of Spans with

Width (m)
span length (m)
Underpasses
The Site includes the following underpasses:
S. No.
Chainage
(km)
Type of Structure
9 Total number of culverts

The Site has the following culverts.
No. of Spans with

Width (m)
span length (m)
Chainage
(km)
S. No.
Type of Culvert
Spans length (m)
10 Bus bays
The details of existing bus bays are:
S. No.
Chainage
(km)
Length
11 Truck Lay byes

The details of truck lay byes are noted below:
S. No.
Chainage
(km)
12 Details of any other structures (tunnels etc.)

Other structures on the site are:
[***]
Length
Width (m)

Annex II
(Schedule A)
Dates of Handing over Possession of Right of Way

The dates on which the Authority shall hanging over possession of Right of
Way to different parts of the Site to the Contractor are:
Sl. No
from km to km
Length
Width
(m)
Date of
Handing
Over
(i) Full Right of Way

(full width)
(a) Stretch
(b) Stretch
(c) Stretch
(ii) Part Right of Way
(Part width)
(a) Stretch
(b) Stretch
(c) Stretch
(iii) Balance Right of
Way (width)
a)
Stretch
b)
Stretch
c)
Stretch

Annex - III
(Schedule-A)
Environment Clearances
The following environment clearances have been obtained:
[***]
The expected dates of receiving following environment clearances are:
[***]

SCHEDULE - B
(See Clause 2.1)
DEVELOPMENT OF THE PROJECT HIGHWAY

1

Development of the Project Highway shall include construction of the
Project Highway as described in this Schedule-B and in Schedule-C.
Construction
2.1
The construction shall include the Project Highway as described in Annex-I

of this Schedule-B and Schedule-C.
2.2
The construction shall be completed by the Contractor in conformity with the

Specifications and Standards set forth in Annex-I of Schedule-D.

Annex - I
(Schedule-B)
Description of Project Highway

1
Width of Carriageway
1.1
The paved carriageway shall be [17.5 metres wide excluding the median] in
accordance with the typical cross section drawings attached in a separate
folder.
Provided that in the following urban stretches, the width of carriageway shall
be:
S.No. Name of Township
Location (chainage)
Width
[Provide details here]

2
Project Facilities
Project facilities shall be constructed in conformity with provisions of
Schedule-C.

The Project Highway shall be designed and constructed in conformity with
the Specifications and Standards specified in Annex-I of Schedule-D.

SCHEDULE C
(See Clause 2.1)
PROJECT FACILITIES
1
Project Facilities
The Contractor shall construct the Project Facilities in accordance with the
provisions of this Agreement. Such Project Facilities shall include:
(a)
toll plaza[s];
(b)
roadside furniture;
(c)
street lighting;
(d)
pedestrian facilities;
(e)
landscaping and tree plantation;
(f )
rest areas;
(g)
truck lay-bys;
(h)
bus-bays and bus shelters;
(i)
cattle crossings;
[(j)
development of site for wayside amenities;]
[(k)
traffic aid posts;]
[(l)
medical aid posts;]
[(m)
vehicle rescue posts;]
[(n)
telecom system;] and
[(o)
highway traffic management system.]
Description of Project Facilities

Each of the Project Facilities is briefly described below:
[***]

SCHEDULE D
(See Clause 2.1)
SPECIFICATIONS AND STANDARDS

1.
Construction
The Contractor shall comply with the Specifications and Standards set forth
in Annex-I of this Schedule-D for construction of the Project Highway.
2.
Design Standards
The Project Highway including Project Facilities shall conform to design
requirements set out in the following documents:
[Manual of Specifications and Standards for Four Laning of Highways
published by the Planning Commission, Government of India; and
Manual of Specifications and Standards for Two Laning of Highways
published by the Planning Commission, Government of India.]

Annex - I
(Schedule-D)
Specifications and Standards for Construction

1

All Material, works and construction operations shall conform to the
MOSRTH Specifications for Road and Bridge and the relevant IRC
publications. Where the specification for a work is not given, Good Industry
Practice shall be adopted to the satisfaction of the Engineer.
[Deviations from the Specifications and Standards

Notwithstanding anything to the contrary contained in the Paragraph 1
above, the following Specifications and Standards shall apply to the Project
Highway, and for purposes of this Agreement, aforesaid Specifications and
Standards shall be deemed to be amended to the extent set forth below:]
[Note 1: Deviations from the aforesaid Specifications and Standards shall be
listed out here. Such deviations shall be specified only if they are considered
essential in view of project-specific requirements.]

SCHEDULE - E
(See Clauses 2.1 and 14.2)
MAINTENANCE REQUIREMENTS
1
1.1
The Contractor shall, at all times maintain the Project Highway in

accordance with the provisions of the Agreement, Applicable Laws and
Applicable Permits. In particular, the Contractor shall, at all times during the
Maintenance Period, conform to the maintenance requirements set forth in
this Schedule-E.
1.2
The Contractor shall repair or rectify any Defect or deficiency set forth in
Paragraph 2 of this Schedule-E within the time limit specified therein and
any failure in this behalf shall constitute non-fulfillment of the Maintenance
obligations by the Contractor. Upon occurrence of any breach hereunder, the
Authority shall be entitled to effect reduction in monthly lump sum payment
as set forth in Clause 14.7 of the Agreement, without prejudice to the rights
of the Authority under the Agreement, including Termination thereof.
1.3
All materials, works and construction operations shall conform to the

MOSRTH Specifications for Road and Bridge Works, and the relevant IRC
publications. Where the specifications for a work are not given, Good
Industry Practice shall be adopted to the satisfaction of the Engineer
Repair/rectification of defects and deficiencies

The obligations of the Contractor in respect of Maintenance Requirements
shall include repair and rectification of the Defects and deficiencies specified
in Annex - I of this Schedule - E within the time limit set forth therein.
Other defects and deficiencies

In respect of any Defect or deficiency not specified in Annex - I of this
Schedule-E, the Engineer may, in conformity with Good Industry Practice,
specify the permissible limit of deviation or deterioration with reference to
the Specifications and Standards, and any deviation or deterioration beyond
the permissible limit shall be repaired or rectified by the Contractor within
the time limit specified by the Engineer.
Extension of time limit

Notwithstanding anything to the contrary specified in this Schedule E, if the
nature and extent of any Defect or deficiency justifies more time for its
repair or rectification than the time specified herein, the Contractor shall be
entitled to additional time in conformity with Good Industry Practice. Such
additional time shall be determined by the Engineer and conveyed to the
Contractor and the Authority with reasons thereof.
Emergency repairs/restoration

5.1
Notwithstanding anything to the contrary contained in this Schedule-E, if

any Defect, deficiency or deterioration in the Project Highway poses a
hazard to safety or risk of damage to property, the Contractor shall promptly
take all reasonable measures for eliminating or minimizing such danger.
5.2
In case of any damages occurring due to extraordinary rains/floods in the

areas notified as flood affected areas by the Government, the Contractor may
make a formal request to the Engineer to carry out flood damage repairs (the
FDR) to remedy those damages. The request will be accompanied by a
report giving details of damages, photographs, etc. The request must be made
promptly. In case of emergency, the Contractor must inform the Engineer at
once and the report may follow. The Engineer will examine the report and as
required issue a Change of Scope Order.
5.3
In case the nature of the FDR work is similar to any activity covered under
maintenance, the payment for that activity under monthly lump sum payment
will not be admissible for those sections during the months in which FDR
works are carried out.
Daily Inspection by the Contractor

The Contractor shall, through its engineer, undertake a daily visual
inspection of the Project Highway and maintain a record thereof in a register
to be kept in such form and manner as the Engineer may specify. Such
record shall be kept in safe custody of the Contractor and shall be open to
inspection by the Authority and the Engineer at any time during office hours.
7.
Pre-monsoon Inspection
The Contractor shall carry out a detailed pre-monsoon inspection of all
bridges, culverts and drainage system before [1st June] every year in
accordance with the guidelines contained in IRC: SP35. Report of this
inspection together with details of proposed maintenance works as required
on the basis of this inspection shall be sent to the Engineer before the [10th
June] every year. The Contractor shall complete the required repairs before
the onset of the monsoon and send to the Engineer a compliance report. Post
monsoon inspection shall be done by the [30th September] and the
inspection report together with details of any damages observed and
proposed action to remedy the same shall be sent to the Engineer.

Annex - I
(Schedule-E)
Repair/Rectification of Defects and Deficiencies
The Contractor shall repair and rectify the Defects and deficiencies specified in this
Annex-I of Schedule-Ewithin the time limit set forth herein.6
Nature of defect or deficiency
Time
limit
repair/rectification
for
ROADS
(a)
Carriageway and paved shoulders
(i)
Breach or blockade
(ii)
Roughness value exceeding 2000 90 days

mm in a stretch of 1 km (as
measured by a standardised
Calibrated Bump Integrator
(iii)
Pot holes
Temporary restoration of
traffic within 24 hours;
permanent
restoration
within 15 days
48 hours
No potholes are allowed

(iv)
Cracking in more than 5% of road 15 days

surface in a stretch of 200 m
length
(v)
Rutting exceeding 10 mm in more 30 days

than two percent of road surface
in a stretch of I km (measured
with 3 m straight edge)
Time
limit
for
MoSRTH may, in consultation with IRC, by order modify the values and periods specified herein,
but such modification shall take effect only if it is included in the respective bidding documents.
(vi)
Bleeding/skidding-
7 days
(vii)
Ravelling/Stripping of bitumen 15 days

surface exceeding 10 sq m
(viii)
Damage to pavement
exceeding 75 mm
(ix)
Removal of debris, dead animals
(b)
Hard/earth shoulders, side slopes,

drains and culverts
(i)
Variation by more than 1 % in the 15 days

prescribed slope of camber/cross
fall (shall not be less than the
camber on the main carriageway)
(ii)
Edge drop at shoulders exceeding 7 days

40 mm
(iii)
Variation by more than 15% in the 30 days

prescribed side (embankment)
slopes
(iv)
Rain cuts/gullies in slope
(v)
Damage to or silting of culverts 7 days

and side drains during and
immediately preceding the rainy
season
(vi)
Desilting of drains in urban/semi- hours

urban areas
edges 15 days
6 hours
7 days
Time
limit
(vii)
7
days
(Restore
immediately if causing
Railing, parapets, crash barriers
for

safety hazard)
(c)
Road side furniture including road

sign and pavement marking
(i)
Damage to shape or position poor 48 hours

visibility or loss of retroreflectivity
(ii)
Painting of KM Stone, railing, Once every year

parapets, crash barriers
(d)
Road lighting
(i)
Any major failure of the system
24 hours
(ii)
Faults and minor failures
8 hours
(e)
Trees and plantation
(i)
Obstruction in a minimum head- 24 hours

room of 5 m above carriageway or
obstruction in visibility of road
signs
(ii)
Removal of fallen trees from 4 hours

carriageway
(iii)
Deterioration in health of trees and Timely watering

bushes
treatment
(iv)
Replacement of trees and bushes
(v)
and
90 days
Time
limit
Removal of vegetation affecting 15 days

sight line and road structures
for
(f)
Rest area
(i)
Cleaning of toilets
(ii)
Defects in electrical, water and 24 hours

sanitary installations
(g)
Other
(i)
Damage or deterioration in 15 days

Approach
Roads,
(pedestrian
facilities. truck lay-bys. bus-bays.
bus- shelters, cattle crossings,
Traffic Aid Posts, Medical Aid
Posts and other works)
(ii)
Attendance at accidents
Project Facilities
Approach roads
Every 4 hours
and
Round the clock patrolling

Inform police and other
agencies immediately
Assistance for first-aid
and transport of accident
victim to hospital
Arrangement for
movement of traffic
safe
Time
limit
for
Bridges
(a)
Superstructure
(i)
Cracks
Temporary measures
within 48 hours
Permanent measures
within 45 days
(ii)
Spalling, scaling
15 days
(b)
Foundations
(i)
Scouring and/or cavitation
(c)
Piers, abutments, return walls and

wing wall
(i)
Cracks and damages including 30 days

settlement and tilting
(d)
Bearings (metallic) of bridges
(i)
Deformation
15 days
15 days
Greasing
of
metallic
bearings once in a year
(e)
Joints
(i)
Loosening and malfunctioning of 15 days

joints
(f)
Other items
(i)
Deforming of pads in elastomeric 7 days

bearings
Time
limit
for
(ii)
Gathering of dirt in bearings and 3 days

joints; or clogging of spouts, weep
holes and vent-holes
(iii)
Damage or deterioration in kerbs, 3 days

parapets, handrails and crash
(immediately within 24

barriers
hours if posing danger of

safety)
(iv)
Rain-cuts or erosion of banks of the 15 days

side slopes of approaches
(v)
Damage to wearing coat
(vi)
Damage or deterioration in 30 days

approach slabs, pitching, apron,
toes, floor or guide bunds
(vii)
Growth of vegetation affecting the 15 days

structure or obstructing the
waterway
15 days

SCHEDULE F
(See Clause 3.1.5(a))
APPLICABLE PERMITS
1
Applicable Permits
The Contractor shall obtain, as required under the Applicable Laws, the
following Applicable Permits:
(a)
Permission of the State Government for extraction of boulders from

quarry;
(b)
Permission of Village Panchayat and Pollution Control Board for

installation of crushers;
(c)
Licence for use of explosives;
(d)
Permission of the State Government for drawing water from

river/reservoir;
(e)
Licence from inspector of factories or other competent Authority for

setting up Batching Plant;
(f)
Clearance of Pollution Control Board for setting up Batching Plant;
(g)
Clearance of Village Panchayats and Pollution Control Board for

Asphalt Plant;
(h)
Permission of Village Panchayat and State Government for borrow

earth; and
(i)
Any other permits or clearances required under Applicable Laws.

SCHEDULE G
(See Clause 3.1.5 (g) and 15.1.1)
SAFETY REQUIREMENTS AND WELFARE PROVISIONS FOR

LABOUR
1
Guiding principles of Safety Requirements
1.1
Safety Requirements aim at reduction in injuries, loss of life and damage to

property resulting from accidents on the Project Highway, irrespective of the
person(s) at fault.
1.2
Users of the Project Highway include motorised and non-motorised vehicles

as well as pedestrians and animals involved in, or associated with accidents.
Vulnerable Road Users (VRU) include pedestrians as well as riders of
motorised two-wheelers, bicycles and other vehicles which do not provide
adequate occupant protection.
1.3
Safety Requirements apply to all phases of construction and maintenance

with emphasis on identification of factors associated with accidents,
consideration of the same, and implementation of appropriate remedial
measures.
1.4
Safety Requirements include measures associated with traffic management

and regulation such as road signs, pavement marking, traffic control devices,
roadside furniture, highway design elements, enforcement and emergency
response.
Obligations of the Contractor for Safety Requirements
2.1
The Contractor shall abide by the following insofar as they relate to safety of
all persons entitled to be on the Site:
(a)
Applicable Laws and Applicable Permits;
(b)
Manual for Safety in Road Design, issued by MOSRTH;
(c)
relevant Standards/Guidelines of IRC relating to safety, road geometrics,

bridges, culverts, road signs, pavement marking and roadside furniture;
(d)
using reasonable efforts to keep the Site and Construction Works clear of
unnecessary obstruction so as to avoid danger to the persons on the Site;
(e)
providing fencing, lighting, guarding and watching of the Works during

construction and maintenance of the Works;
(f)
providing any temporary works (including diversions, roadways, footways,

signs, guards and fences) which may be necessary, because of the execution
or maintenance of the Works, for the use and protection of the public and of
owners and occupiers of adjacent land and structures;

(g)
(h)
Good Industry Practice.
Appointment of Safety Auditor

For carrying out safety audit of the Project Highway under and in accordance
with this Schedule-G, the Authority shall appoint from time to time, one or
more qualified firms or organisations as its safety auditor (the Safety
Auditor). The Safety Auditor shall employ a team comprising, without
limitation, one road safety expert and one traffic planner to undertake safety
audit of the Project Highway.
Safety measures during Design Period
4.1
No later than 90 (ninety) days from the date of this Agreement, the Authority
shall appoint a Safety Consultant for carrying out safety audit at the design
stage of the Project. The Safety Consultant shall collect data on all fatal
crashes and other road accidents which occurred on the Project Highway in
the preceding two years by obtaining copies of the relevant First Information
Reports (FIRs) from the police stations having jurisdiction. The information
contained in such FIRs shall be summarised in the form prescribed by
IRC/MOSRTH for this purpose and the data shall be analysed for the type of
victims killed or injured, impacting vehicles, location of accidents and other
relevant factors.
4.2
The Contractor shall provide to the Safety Consultant, in four copies, the
relevant drawings containing the design details that have a bearing on safety
of Users (the Safety Drawings). Such design details shall include
horizontal and vertical alignments; sightlines, layouts of intersections,
interchanges, road cross-section, bridges and culverts, side drains, provision
for parked vehicles, slow moving vehicles (tractors, bullock carts, bicycles)
and pedestrians, bus bays, truck lay-bys, and other incidental or
consequential information. The Safety Consultant shall review the design
details and forward three copies of the Safety Drawings with its
recommendations, if any, to the Engineer who shall record its comments, if
any, and forward one copy each to the Authority and the Contractor.
4.3
The accident data and the design details shall be compiled, analysed and
used by the Safety Consultant for evolving a package of recommendations
consisting of safety related measures for the Project Highway. The safety
audit shall be completed in a period of three months and a report thereof (the
Safety Report) shall be submitted to the Authority, in five copies. One
copy each of the Safety Report shall be forwarded by the Authority to the
Contractor and the Engineer forthwith.
4.4
The Contractor shall endeavour to incorporate the recommendations of the

Safety Report in the design of the Project Highway, as may reasonably be
required in accordance with Applicable Laws, Applicable Permits, Manuals
and Guidelines of MOSRTH and IRC, Specifications and Standards, and
Good Industry Practice. If the Contractor does not agree with any or all of

such recommendations, it shall state the reasons thereof and convey them to
the Authority forthwith. In the event that any or all of the works and services
recommended in the Safety Report fall beyond the scope of Schedule-B,
Schedule-C or Schedule-D, the Contractor shall make a report thereon and
seek the instructions of the Authority for funding such works in accordance
with the provisions of Article 13.
4.5
Without prejudice to the provisions of Paragraph 4.4, the Contractor and the
Engineer shall, within 15 (fifteen) days of receiving the Safety Report, send
their respective comments thereon to the Authority, and no later than 15
(fifteen) days of receiving such comments, the Authority shall review the
same along with the Safety Report and by notice direct the Contractor to
carry out any or all of the recommendations contained therein with such
modifications as the Authority may specify; provided that any works or
services required to be undertaken hereunder shall be governed by the
provisions of Article 13.
5.
Safety measures during Construction Period
5.1
A Safety Auditor shall be appointed by the Authority, no later than 4 (four)

months prior to the expected Project Completion Date, for carrying out a
safety audit of the completed Construction Works.
5.2
The Safety Auditor shall collect and analyse the accident data for the
preceding two years in the manner specified in Paragraph 4.1 of this
Schedule-G. It shall study the Safety Report and deficiencies therein as
referred to in Paragraph 4 of this Schedule G and inspect the Project
Highway to assess the adequacy of safety measures. The Safety Consultant
shall complete the safety audit within a period of 4 (four) months and submit
a Safety Report recommending a package of additional road safety measures,
if any, that are considered essential for reducing accident hazards on the
Project Highway. Such recommendations shall be processed, mutatis
mutandis, and acted upon in the manner set forth in Paragraphs 4.3, 4.4 and
4.5 of this Schedule-G.
5.3
The Contractor shall make adequate arrangements during the Construction

Period for the safety of workers and road Users in accordance with the
guidelines of IRC for safety in construction zones, and notify the Authority
and the Engineer about such arrangements.
Safety Audit
6.1
Once in every Accounting Year, a safety audit shall be carried out by the
Safety Auditor to be appointed by the Authority. It shall review and analyse
the annual report and accident data of the preceding year, and undertake an
inspection of the Project Highway. The Safety Auditor shall complete the
safety audit within a period of 1 (one) month and submit a safety audit report
(the Safety Audit Report) recommending specific improvements, if any,
required to be made to the road, bridges, culverts, markings, signs, road
furniture and Project Facilities, including cattle crossings and pedestrian
crossings. Such recommendations shall be processed, mutatis mutandis, and

acted upon in the manner set forth in Paragraphs 4.3, 4.4 and 4.5 of this
Schedule-G.
7
Costs and expenses
7.1
Costs and expenses incurred in connection with the Safety Requirements set
forth herein, including the provisions of Paragraph 2 of this Schedule, shall
be met in accordance with Article 15, and in particular, the remuneration of
the Safety Consultant, and costs incidental thereto, shall be met by the
Contractor.
7.2
The expenditure on safety audit shall be met by the Authority.
8.
Safety & Welfare Provisions for labour to be employed by the

Contractor
All necessary personal safety equipment as considered adequate by the
Engineer shall be available for use of persons employed on the Site and
maintained in a condition suitable for immediate use; and the Contractor
shall take adequate steps to ensure proper use of such equipment by those
concerned. Detailed provisions are listed in Annex I,
9.
Payments to labour
The Contractor shall keep on the Site the records, as required under the
Applicable Laws, of engagement of labour, payment of wages, and any other
monetary benefits.

Annex I
(Schedule G)
Safety & Welfare Provisions for labour
1.
Safety Provisions
(a)
The Contractor shall comply with all the precautions as required for the
safety of the workmen. All workmen at site shall be provided with safety
helmets and yellow/orange jackets. Workmen required on site during night
hours shall be provided with fluorescent yellow jackets with reflective lopes.
(b)
Workers employed on mixing asphaltic materials, cement, lime mortars,

concrete etc. shall be provided with protective footwear, protective goggles.
(c)
Those engaged in handling any material, which is injurious to the eyes, shall
be provided with protective goggles.
(d)
Those engaged in welding works shall be provided with welder's protective

eye-shield.
(e)
Stone breakers shall be provided with protective goggles and protective

clothing and seated at sufficiently safe intervals.
(f)
Suitable scaffolds shall be provided for workmen for all work that cannot
safely be done from the ground, or from solid construction except for such
short period work as can be done safely from ladders. When a ladder is used,
an extra labourer shall be engaged for holding the ladder and if the ladder is
used for carrying materials as well, suitable foot-holds and hand-holds shall
be provided on the ladder, which shall be given an inclination not steeper
than 1/4 to 1.
(g)
Scaffolding or staging more than 3.25 metres above the ground or floor,
swung or suspended from an overhead support or erected with stationary
support, shall have a guard rail properly attached, bolted, braced and
otherwise secured at least 1 metre high above the floor or platform of such
scaffolding or staging and extending along the entire length of the outside
and ends thereof with only such openings as may be necessary for the
delivery of materials. Such scaffolding or staging shall be so fastened as to
prevent it from swaying from the support or structure.
(h)
Working platforms, gangways, and stairways shall be so constructed that

they do not sag unduly or unequally, and if the height of any platform or
gangway or stairway is more than 3.25 metres above ground level or floor
level, it shall have closely spaced boards, have adequate width and be
suitably provided with guard rails as described in (g) above.
(i)
Every opening in the floor of a structure or in a working platform shall be

provided with suitable means to prevent fall of persons or materials by
providing suitable fencing or railing with a minimum height of one metre.

(j)
Safe means of access and egress shall be provided to all working platforms
and other working places. Every ladder shall be securely fixed. No portable
single ladder shall be over 9 metres in length. The width between side rails in
a rung ladder shall in no case be less than 30 cm for ladders up to and
including 3 metres in length. For longer ladders the width shall be increased
at least 6 mm for each additional 30 cm of length. Spacing of steps shall be
uniform and shall not exceed 30 cm.
(k)
Adequate precautions shall be taken to prevent danger from electrical

equipment. No materials on any of the sites shall be so stacked or placed as
to cause danger or inconvenience to any person or the public. The Contractor
shall provide all necessary fencing and lights to protect the public from
accidents and shall be bound to bear the expenses of defending every suit,
action or other proceedings at law that may be brought by any person for
injury sustained owing to neglect of the above precautions and to pay any
damages and costs which may be awarded in any such suit, action or
proceedings to any such person or which may with the consent of the
Contractor be paid to compromise any claim by any such person.
(l)
Excavation and Trenching: All trenches, 1.5 metres or more in depth, shall at
all times be supplied with at least one ladder for each 20 metres in length or
fraction thereof. Ladders shall be extended from the bottom of the trench to
at least 1 metre above the surface of the ground. The sides of a trench, which
is 1.5 metres or more in depth shall be stepped back to provide a suitable
slope, or be securely held by timber bracing so as to avoid the danger of side
collapse. Excavated material shall not be placed within 1.5 metres of the
edge of any trench or half the depth of the trench, whichever is more.
Excavation shall be made from the top to the bottom. Under no
circumstances shall undermining or undercutting be done.
(m)
When workers are employed in sewers and manholes, which are in use, the
Contractor shall ensure that manhole covers are open and manholes are
ventilated at least for an hour before workers are allowed to go into them.
Manholes so open shall be cordoned off with suitable railing and provide
warning signals or boards to prevent accidents to the public.
(n)
Demolition: Before any demolition work is commenced and also during the
process of the work:
(i)
All roads and open areas adjacent to the work site shall either be
closed or suitably protected.
(ii)
No electric cable or apparatus, which is liable to be a source of

danger other than a cable or apparatus used by operators, shall remain
electrically charged.
(iii)
All practical steps shall be taken to prevent danger to persons

employed by the Authority from risk of fire or explosion, or flooding.
No floor, roof or other part of a building shall be so overloaded with
debris or materials as to render it unsafe.

(o)
When work is performed near any place where there is risk of drowning all
necessary equipment shall be provided and kept ready for use and all
necessary steps taken for prompt first aid treatment of all injuries likely to be
sustained during the course of the work.
(p)
Use of hoisting machines and tackle including their attachments, anchorage

and supports shall conform to the following:
(i)
These shall be of good mechanical construction, sound material and

adequate strength and free from patent defects and shall be kept in
good working order, be regularly inspected and properly maintained.
(ii)
Every rope used in hoisting or lowering materials or as a means of

suspension shall be of durable quality and adequate strength, and free
from defects.
(iii)
For every hoisting machine and every chain hook, shackle, swivel
and pulley block used in hoisting, lowering or as means of
suspension, safe working load shall be ascertained by adequate
means. Every hoisting machine and all gear referred to above shall be
plainly marked with safe working load. In case of a hoisting machine
or a variable safe working load, each safe working load and
conditions under which it is applicable shall be clearly indicated. No
part of any machine or any gear referred to in the paragraph above
shall be loaded beyond safe working load except for the purpose of
testing
(q)
Motors, gearing, transmission, electric wiring and other dangerous parts of

hoisting appliances shall be provided with efficient safeguards; hoisting
appliances shall be provided with such means as will reduce the risk of
accident during descent of load to the minimum. Adequate precautions shall
be taken to reduce to the minimum risk of any part of a suspended load
becoming accidentally displaced. When workers are employed on electrical
installations which are already energised, insulating mats, working apparel
such as gloves, sleeves and boots, as may be necessary, shall be provided.
Workers shall not wear any rings, watches and carry keys or other material
which are good conductors of electricity.
(r)
All scaffolds, ladders and other safety devices mentioned or described herein
shall be maintained in a safe condition and no scaffold, ladder or equipment
shall be altered or removed while it is in use. Adequate washing facilities
shall be provided at or near places of work.
(s)
These safety provisions shall be brought to the notice of all concerned by

displaying on a notice board at a prominent place at the work location.
Persons responsible for ensuring compliance with the Safety Code shall be
named therein by the Contractor.
(t)
To ensure effective enforcement of the rules and regulations relating to

safety precautions, arrangements made by the Contractor shall be open to
inspection by the Engineer or his Representative.

(u)
Notwithstanding anything contained in condition (a) to (u) above, the

Contractor shall remain liable to comply with the provisions of all acts, rules,
regulations and bylaws for the time being in force in India and applicable in
this matter.
The Contractor shall be responsible for observance, by his sub-contractors,
of the foregoing provisions.
2.
Labour Welfare Provisions:
(a)
First Aid:
At every workplace, there shall be maintained in a readily accessible place
first aid appliances including an adequate supply of sterilised dressings and
sterilised cotton wool as prescribed in the Factory Rules of the State in which
the work is carried on. The appliances shall be kept in good order and, in
large work places, they shall be placed under the charge of a responsible
person who shall be readily available during working hours.
(b)
Accommodation for Labour:

The Contractor shall during the progress of the work provide, erect and
maintain necessary temporary living accommodation and ancillary facilities
for labour at his own expense to standards and scales approved by the
Engineer.
(v)
Drinking water:
In every workplace, there shall be provided and maintained at suitable places
easily accessible to labour, a sufficient supply of cold water fit for drinking.
Where drinking water is obtained from an intermittent public water supply
each workplace shall be provided with storage tanks where drinking water
shall be stored.
Every water supply storage shall be at a distance of not less than 15 metres
from any latrine, drain or other source of pollution. Where water has to be
drawn from an existing well, which is within such proximity of any latrine,
drain or any other source of pollution, the well shall be properly chlorinated
before water is drawn from it for drinking. All such wells shall be entirely
closed in and be provided with a trap door, which shall be dust proof and
waterproof.
A reliable pump shall be fitted to each covered well. The trap door shall be
kept locked and opened only for cleaning or inspection, which shall be done
at least once a month.
(d)
Washing and bathing places:

Adequate washing and bathing places shall be provided separately for men
and women. Such places shall be kept in clean and drained condition.

(e)
Scale of accommodation in latrines and urinals:

There shall be provided within the precincts of every workplace, latrines and
urinals in an accessible place, and the accommodation, separately for each
for these, shall not be less than at the following scale:
No. of Seats:
(a)
Where number of persons does not exceed 2

50
(b)
Where number of persons exceed 50 but 3

does not exceed 100
(c)
For additional persons per 100 or part 3

thereof
In particular cases, the Engineer shall have the power to increase the
requirement, wherever necessary.
(f)
Latrines and urinals:

Except in workplaces provided with water-flushed latrines connected with a
water borne sewage system, all latrines shall be provided with dry-earth
system (receptacles) which shall be cleaned at least four times daily and at
least twice during working hours and kept in a strictly sanitary condition.
Receptacles shall be tarred inside and outside at least once a year.
If women are employed, separate latrines and urinals, screened from those
for men and marked in the vernacular in conspicuous letters "For women
only", shall be provided. Those for men shall be similarly marked "For men
only". A poster showing the figure of a man and a woman shall also be
exhibited at the entrance to latrines for each sex. There shall be adequate
supply of water, close to latrines and urinals.
(g)
Construction of latrines:
Inside walls shall be constructed of masonry or other non-absorbent material
and shall be cement- washed inside and outside at least once a year. The
dates of cement washing shall be noted in a register maintained for the
purpose and kept available for inspection. Latrines shall have at least a
thatched roof.
(h)
Disposal of excreta:
Unless otherwise arranged for by the local sanitary authority, arrangement
for proper disposal of excreta by incineration at the workplace shall be made

by means of a suitable incinerator approved by the local medical health and
municipal or cantonment authorities. Alternatively, excreta may be disposed
of by putting a layer of night soils at the bottom of a pucca tank prepared for
the purpose and covering it with a 15 cm layer of waste or refuse and then
covering it with a layer of earth for a fortnight (when it will turn into
manure).
The Contractor shall, at his own expense, carry out all instructions issued to
him by the Engineer to effect proper disposal of soil and other conservancy
work in respect of Contractors work-purpose or employees on the site. The
Contractor shall be responsible for payment of any charges, which may be
levied by municipal or cantonment authority for execution of such work on
his behalf.
(i)
Provisions of shelters during rest:

At every workplace, there shall be provided, free of cost, four suitable sheds,
two for meals and two others for rest, separately for use of men and women
labour. The height of each shelter shall not be less than 3 metres from floor
level to lowest part of roof. Sheds shall be kept clean and the space provided
shall be on the basis of at least 0.5 sq.m. per head.
(j)
Crches:
At a place where women are ordinarily employed, there shall be provided at
least one hut for use of children under the age of 6 years belonging to such
women. Huts shall not be constructed to a standard lower than that of
thatched roof, mud floor and wall with wooden planks spread over mud floor
and covered with matting.
Huts shall be provided with suitable and sufficient openings, for light and
ventilation. There shall be adequate provision of sweepers to keep the places
clean. There shall be a maidservant in attendance. Sanitary utensils shall be
provided to the satisfaction of local medical, health a municipal or
cantonment authorities. Use of huts shall be restricted to children, their
attendants and mothers of children.
(k)
Canteen:
A cooked food canteen on a moderate scale shall be provided for the benefit
of workers wherever it is considered necessary.
(l)
Structures
Planning, siting and erection of the above mentioned structures shall be
approved by the Engineer or his Representative and the whole of such
temporary accommodation shall at all times during the progress of the Works
be kept tidy and in a clean and sanitary condition to the satisfaction of the
Engineer or his Representative and at the Contractor's expense. The
Contractor shall conform generally to sanitary requirements of local medical,
health and municipal or cantonment authorities and at all times adopt such

precautions as may be necessary to prevent soil pollution of the Site.
On completion of the Works, the whole of such temporary structures shall be
cleared away, all rubbish burnt, excreta or other disposal pits or trenches
filled in and effectively sealed off and the whole of the site left clean and
tidy, at the Contractor's expense, to the entire satisfaction of the Engineer.
(m)
Anti-malarial precautions:
The Contractor shall, at his own expense, conform to all anti malarial
instructions given to him by the Engineer, including filling up any borrow
pits which may have been dug by him.
(n)
Awareness and education of HIV/AIDS

The contractor shall provide/carryout HIV/AIDS awareness and training
programme `to its labour and management, at least twice per year during the
construction period.
(o)
Child labour prohibition

The contractor shall not employ Child Labour for any works or in any
manner under the Contract at any time. In the event that the Contractor uses
child labour, the Authority shall terminate the Contract.
(p)
Amendments:
The Authority may, from time to time, add to, or amend these Rules and
issue such directions as it may be considered necessary for the proper
implementation of these Rules or for the purpose of removing any difficulty,
which may arise in the administration thereof.

SCHEDULE H
(See Clause 7.1)
PERFORMANCE SECURITY
[The Chairman,
National Highways Authority of India
New Delhi]
WHEREAS:
(A)
.. (the Contractor) and the .(, (the Authority)

have entered into a Agreement dated .. (the Agreement)
whereby the Authority has agreed to the Contractor undertaking the
construction of the ***** section of [National] Highway No. **] on
Engineering, Procurement, Construction and Maintenance (EPC) basis,
subject to and in accordance with the provisions of the Agreement.
(B)
The Agreement requires the Contractor to furnish a Performance Security in

installments to the Authority and the [first] installment in a sum of Rs. *****
cr. (Rupees ***** crore) (the Guarantee Amount) as security for due and
faithful performance of its obligations, under and in accordance with the
Agreement, during the Construction Period (as defined in the Agreement).
(C)
We, .. through our Branch at . (the

Bank) have agreed to furnish this Bank Guarantee by way of Performance
Security.
NOW, THEREFORE, the Bank hereby, unconditionally and irrevocably, guarantees

and affirms as follows:
1.
The Bank hereby unconditionally and irrevocably guarantees the due and
faithful performance of the Contractors obligations during the Construction
and Maintenance Period, under and in accordance with the Agreement, and
agrees and undertakes to pay to the Authority, upon its mere first written
demand, and without any demur, reservation, recourse, contest or protest,
and without any reference to the Contractor, such sum or sums upto an
aggregate sum of the Guarantee Amount as the Authority shall claim,
without the Authority being required to prove or to show grounds or reasons
for its demand and/or for the sum specified therein.
2.
A letter from the Authority, under the hand of an Officer not below the rank
of [General Manager in the National Highways Authority of India], that the
Contractor has committed default in the due and faithful performance of all
or any of its obligations under and in accordance with the Agreement shall
be conclusive, final and binding on the Bank. The Bank further agrees that
the Authority shall be the sole judge as to whether the Contractor is in
default in due and faithful performance of its obligations during the
Construction Period under the Agreement and its decision that the Contractor

is in default shall be final, and binding on the Bank, notwithstanding any
differences between the Authority and the Contractor, or any dispute
between them pending before any court, tribunal, arbitrators or any other
Authority or body, or by the discharge of the Contractor for any reason
whatsoever.
3.
In order to give effect to this Guarantee, the Authority shall be entitled to act
as if the Bank were the principal debtor and any change in the constitution of
the Contractor and/or the Bank, whether by their absorption with any other
body or corporation or otherwise, shall not in any way or manner affect the
liability or obligation of the Bank under this Guarantee.
4.
It shall not be necessary, and the Bank hereby waives any necessity, for the
Authority to proceed against the Contractor before presenting to the Bank its
demand under this Guarantee.
5.
The Authority shall have the liberty, without affecting in any manner the
liability of the Bank under this Guarantee, to vary at any time, the terms and
conditions of the Agreement or to extend the time or period for the
compliance with, fulfillment and/ or performance of all or any of the
obligations of the Contractor contained in the Agreement or to postpone for
any time, and from time to time, any of the rights and powers exercisable by
the Authority against the Contractor, and either to enforce or forbear from
enforcing any of the terms and conditions contained in the Agreement and/or
the securities available to the Authority, and the Bank shall not be released
from its liability and obligation under these presents by any exercise by the
Authority of the liberty with reference to the matters aforesaid or by reason
of time being given to the Contractor or any other forbearance, indulgence,
act or omission on the part of the Authority or of any other matter or thing
whatsoever which under any law relating to sureties and guarantors would
but for this provision have the effect of releasing the Bank from its liability
and obligation under this Guarantee and the Bank hereby waives all of its
rights under any such law.
6.
This Guarantee is in addition to and not in substitution of any other

guarantee or security now or which may hereafter be held by the Authority in
respect of or relating to the Agreement or for the fulfillment, compliance
and/or performance of all or any of the obligations of the Contractor under
the Agreement.
7.
Notwithstanding anything contained hereinbefore, the liability of the Bank

under this Guarantee is restricted to the Guarantee Amount and this
Guarantee will remain in force for the period specified in paragraph 8 below
and unless a demand or claim in writing is made by the Authority on the
Bank under this Guarantee, no later than 6 (six) months from the date of
expiry of this Guarantee, all rights of the Authority under this Guarantee
shall be forfeited and the Bank shall be relieved from its liabilities hereunder.
8.
The Performance Security shall cease to be in force and effect [till ninety
days after the end of the Defect Liability Period as set forth in clause 7.1 of
the Agreement for the cost of roads and other works/ till five years after the

end of the Defect Liability Period as set forth in clause 7.1 of the Agreement
for the cost of major bridges and structures] .
9.
The Bank undertakes not to revoke this Guarantee during its currency, except
with the previous express consent of the Authority in writing, and declares
and warrants that it has the power to issue this Guarantee and the
undersigned has full powers to do so on behalf of the Bank.
10.
Any notice by way of request, demand or otherwise hereunder may be sent

by post addressed to the Bank at its above referred Branch, which shall be
deemed to have been duly authorised to receive such notice and to effect
payment thereof forthwith, and if sent by post it shall be deemed to have
been given at the time when it ought to have been delivered in due course of
post and in proving such notice, when given by post, it shall be sufficient to
prove that the envelope containing the notice was posted and a certificate
signed by an officer of the Authority that the envelope was so posted shall be
conclusive.
11.
This Guarantee shall come into force with immediate effect and shall remain
in force and effect for up to the end ***** month in the year **** or until it
is released earlier by the Authority pursuant to the provisions of the
Agreement.
Signed and sealed this . day of .., 20 at ..

SIGNED, SEALED AND DELIVERED
For and on behalf of the BANK by:
(Signature)
(Name)
(Designation)
(Code Number)
(Address)
NOTES:
(i)
The bank guarantee should contain the name, designation and code number
of the officer(s) signing the guarantee.
The address, telephone number and other details of the Head Office of the Bank as
well as of issuing Branch should be mentioned on the covering letter of
issuing Branch.

SCHEDULE - I
(See Sub-clause 20.1.3)
CONTRACT PRICE WEIGHTAGES

1.1
The Contract Price stated in the LOA is Rs. ******
1.2
Weightages in the Contract Price of the Design, Construction and

Maintenance of the Project Highway is:
Item
Weightage in Stage / Component

Percentage
percentage to
weightage for
the
Contract
the
stage
/
Price for the
component
Project
Highway
1
2
3
4
Design Works [3]
Completion of:
Stage 1
[**]
Stage 2
[**]
Stage 3
[**]
And so on
[**]
Road Works
[*****]
(1) Earth Work
[**]
(2) Granular Work
(3) Bituminous or Cement
[**]
Concrete Work
(4) Culverts and minor
bridges
[**]
Bridge Works [*****]
and Structures
(1) Foundation
(2) Sub-structure
(3) Super-structure
[**]
[**]
[**]
Other Works
[*****]
Maintenance
[10]
In equated monthly installments spread over

the time for completion of Project Highway
1st Year [**], 2nd Year [**], 3rd Year [**], 4th
Year [**] and 5th Year [**]

SCHEDULE J
(See Clause 9.2.1)
SHIFTING OF UTILITIES AND OBSTRUCTIONS

[List the details of each utility/obstruction indicating location, ownership, the
proposed new location, and the date of obtaining clearance from the owner]

SCHEDULE K
(See Sub-clause 10.3.2)
PROJECT COMPLETION SCHEDULE

1

During Construction Period, the Contractor shall comply with the
requirements set forth in this Schedule K for each of the Project Milestones
and the scheduled construction date (the Project Completion Schedule).
Within 15 (fifteen) days of the date of each Project Milestone, the Contractor
shall notify the Authority of such compliance along with necessary
particulars thereof.
Project Milestone-I
2.1
Project Milestone-I shall occur on the date falling on the [180th (one hundred
and eightieth)] day from the Start Date (the Project Milestone-I).
2.2
The physical targets to be achieved under this milestone are:

[***]
Project Milestone-II
3.1
Project Milestone-II shall occur on the date falling on the [365th (three
hundred and sixty fifth)] day from the Start Date (the Project MilestoneII).
3.2

[***]
Project Milestone-III
4.1
Project Milestone-III shall occur on the date falling on the [550th (five
hundred and fiftieth)] day from the Start Date (the Project Milestone-III).
4.2

***
Scheduled Completion Date
5.1
The Scheduled Completion Date shall occur on the [650th (six hundred and
fiftieth)] day from the Start Date.
5.2
On or before the Scheduled Completion Date, the Contractor shall have

completed construction in accordance with this Agreement.
Extension of period

Upon extension of any or all of the aforesaid Project Milestones or the
Scheduled Completion Date, as the case may be, under and in accordance
with the provisions of this Agreement, the Project Completion Schedule shall
be deemed to have been amended accordingly.

SCHEDULE L
(See Clause 10.2)
DRAWINGS
1
Drawings
In compliance of the obligations set forth in Clause 10.2 of this Agreement,
the Contractor shall furnish to the Engineer, free of cost, all Drawings listed
in Annex-I of this Schedule L.
Additional drawings
If the Engineer determines that for discharging its duties and functions under
this Agreement, it requires any drawings other than those listed in Annex-I, it
may by notice require the Contractor to prepare and furnish such drawings
forthwith. Upon receiving a requisition to this effect, the Contractor shall
promptly prepare and furnish such drawings to the Engineer, as if such
drawings formed part of Annex-I of this Schedule L.

Annex - I
(Schedule-L
List of Drawings
[Note: The Authority shall describe in this Annex-I, all the Drawings that the
Contractor is required to furnish under Clause 10.2.

SCHEDULE M
(See Clause 12.1.2)
TESTS
1
Schedule for Tests
1.1
The Contractor shall, no later than 30 (thirty) days prior to the likely
completion of construction, notify the Engineer and the Authority of its
intent to subject the Project Highway to Tests, and no later than 7 (seven)
days prior to the actual date of Tests, furnish to the Engineer and the
Authority detailed inventory and particulars of all works and equipment
forming part of Construction Works.
1.2
The Contractor shall notify the Engineer of its readiness to subject the
Project Highway to Tests at any time after 7 (seven) days from the date of
such notice, and upon receipt of such notice, the Engineer shall, in
consultation with the Contractor, determine the date and time for each Test
and notify the same to the Authority who may designate its representative to
witness the Tests. The Engineer shall thereupon conduct the Tests itself or
cause any of the Tests to be conducted in accordance with Article 12 and this
Schedule M.
Tests
2.1
Visual and physical Test: The Engineer shall conduct a visual and physical
check of construction to determine that all works and equipment forming
part thereof conform to the provisions of this Agreement.
2.2
Riding quality Test: Riding quality of each lane of the carriageway shall be
checked with the help of a calibrated bump integrator and the maximum
permissible roughness for purposes of this Test shall be [1,800 (one thousand
and eight hundred)] mm for each kilometre.
2.3
Other Tests: The Engineer may require the Contractor to carry out or cause
to be carried additional Tests, in accordance with Good Industry Practice, for
determining the compliance of the Project Highway with Specifications and
Standards.
2.4
Environmental audit: The Engineer shall carry out a check to determine

conformity of the Project Highway with the environmental requirements set
forth in Applicable Laws and Applicable Permits.
2.5
Safety review: Safety audit of the Project Highway shall have been
undertaken by the Safety Consultant as set forth in Schedule-G, and on the
basis of such audit, the Engineer shall determine conformity of the Project
Highway with the provisions of this Agreement.
Agency for conducting Tests

All Tests set forth in this Schedule M shall be conducted by the Engineer or

such other agency or person as it may specify in consultation with the
Authority.
4
Upon successful completion of Tests, the Engineer shall issue the
Completion Certificate in accordance with the provisions of Article 12.

SCHEDULE N
(See Clause 12.2 )
COMPLETION CERTIFICATE
1
I, . (Name of the Engineer), acting as Engineer, under

and in accordance with the Agreement dated (the Agreement),
for construction of the ****section (km ** to km **) of [National] Highway
No. *** (the Project Highway) on Engineering, Procurement,
Construction, and Maintenance (EPC) basis, through .
(Name of Contractor), hereby certify that the Tests in accordance with
Article 12 and Schedule M of the Agreement have been successfully
undertaken to determine compliance of the Project Highway with the
provisions of the Agreement, and I am satisfied that the Project Highway can
be safely and reliably placed in service of the Users thereof.
It is certified that, in terms of the aforesaid Agreement, all works forming

part of Project Highway have been completed, and the Project Highway is
hereby declared fit for entry into operation on this the day of
20..
SIGNED, SEALED AND DELIVERED

the ENGINEER by:
(Signature)
(Name)
(Designation)
(Address)

SCHEDULE O
(See Clauses 14.7.1 and 20.6.2)
PAYMENT REDUCTION FOR NON-COMPLIANCE

1.
Payment reduction
Requirements
for
non-compliance
1.1
Monthly lump sum payments for maintenance shall be reduced in the case of
non-compliance with the Maintenance Requirements set forth in Schedule E.
1.2
Any deduction made on account of non-compliance with the Maintenance

Requirements shall not be paid even after the compliance subsequently. The
deductions shall continue to be made every month until compliance is done.
1.3
The Engineer shall calculate the amount of payment reduction on the basis of
weightage in percentage assigned to non-conforming items as given in
paragraph 2.
2.
Percentage reductions in lump sum payments
2.1
The following percentages shall govern the payment reduction:

Item/Defect/Deficiency
with
the
Percentage
(a)
Carriageway/Pavement
(i)
Potholes Repair
15%
(ii)
Crack Sealing
5%
(iii)
Repairs of Edges, Rutting
5%
(iv)
Other surface Defects
5%
(b)
Road, Embankment, Cuttings,

Shoulders
(i)
Edge drop, Inadequate crossfall,

undulations, settlement, portholes,
ponding, obstructions
7.5%
Maintenance
(ii)
Deficient slopes, raincuts,

disturbed pitching, vegetation
growth, pruning of trees
(c)
Bridges and Culverts

Desilting, cleaning. vegetation
growth, damaged pitching,
flooring, parapets, wearing course,
footpaths, any damage to
foundations
10%
Item/Defect/Deficiency
Percentage
(ii)
Any Defects in structures,

bearings and sub-structures
7.5%
(iii)
Painting, repairs/replacement
kerbs, railings, parapets,
guideposts/crash barriers
5%
(i)
(d)
Roadside Drains
(i)
Cleaning and repair of drains
5%
Road Furniture
(e)
(f)
7.5%
(i)
Cleaning, repair, replacement of

road signs, delineators, road
markings
7.5%
(ii)
Painting, lettering, replacement of

5th km Stones, km Stones, 200 m
Stones
5%
Miscellaneous Items
2.2
(i)
Removal of dead animals, broken

down/accidented vehicles, fallen
trees, road blockades, deficiency
in patrolling
5%
(ii)
Any other Defects in accordance

with paragraph 1.
5%
(g)
Defects in other project facilities
5%
The amount to be deducted from monthly lump-sum payment for non

compliance of particular item shall be calculated as under:
R=P/IOO x M x L1/L
Where. P = Percentage of particular item/Defect/deficiency for deduction
M = Monthly lump-sum payment in accordance with the Bid
L1 = Non-complying length
L = Total length of the road,
R = Reduction (the amount to be deducted for non compliance for a particular
item/Defect/deficiency
The total amount of reduction shall be arrived at by summation of reductions for
such items/Defect/deficiency of non compliance.
For any Defect in a km length, the non-conforming length shall be taken as one
kilometer.

SCHEDULE P
(See Clause 18.6.1)
INDEMNITY BOND
INDEMNITY BOND
This Indemnity Bond is made at on this .day of [month], [Year].

By [name of the Contractor], a Company incorporated under the provisions of
Companies Act, 1956 having its registered office at [address] through its authorised
representative ., appointed in the meeting of Board of Directors, held
on , hereinafter called the Executant
IN FAVOUR OF
THE NATIONAL HIGHWAYS AUTHORITY OF INDIA, established under the
National Highways Authority of India Act 1988 having its principal offices at G-5 &
6, Sector 10, Dwarka, New Delhi-110075 hereinafter called the Authority.
The expression Executants and Authority shall mean and include their permitted
successors and assigns in accordance with the Agreement.
WHEREAS the Executant has entered into an agreement with the Authority to
[augment the existing road from km ** to km ** (approximately *** km) on the ***
section of National Highway No.** (hereinafter called the NH -**) in ***** by
Four-Laning and subsequent Six-Laning thereof] on Engineering, Procurement,
Construction and Maintenance basis (hereinafter called the Agreement) on [..] day
of [month], [Year];
AND WHEREAS the Executant has undertaken the construction of Major Bridges
and Structures as listed out in Schedule B annexed to the Agreement, and has given
a warranty towards the performance of such Major Bridges and Structures with
respect to the Defects noted on account of Design, Materials incorporated and/or
workmanship etc for the period of ten years from the date of issue of Completion
Certificate.
NOW THIS DEED WITNESSES AS UNDER:
1.
The Executant will indemnify, defend, save and hold harmless the Authority
and its officers, servants, agents, Government Instrumentalities and
Government owned and/or controlled entities/enterprises, (the Authority
Indemnified Persons) against any and all suits, proceedings, actions,
demands and third party claims for any loss, damage, cost and expense of
whatever kind and nature, arising out of any non-performance / damage /
defect of the Major Bridge or any part thereof constructed by the Executant.

2.
The Executant agrees that it shall at all times during the continuance of the
Agreement, not revoke this Indemnity Bond without the consent in writing of
the Authority.
3.
That all the successors and assigns of the Executant are bound with the terms
and conditions of this deed of indemnity.
IN WITNESS WHEREOF this Indemnity Bond is made in the presence of the

following witnesses.
PLACE:
DATE:
EXECUTANT
WITNESSES:
1.
2.

SCHEDULE Q
(See Clause 19.1.1)
SELECTION OF ENGINEER
1
1.1
The provisions of Part II of the Standard Bidding Documents for

Consultancy Assignments: Time Based (Volume V) issued by the Ministry
of Finance, GOI in July, 1997 or any substitute thereof shall apply, mutatis
mutandis, for invitation of bids and evaluation thereof save as otherwise
provided herein.
1.2
The Authority shall invite expressions of interest from consulting

engineering firms or bodies corporate to undertake and perform the duties
and functions set forth in Article 19 and thereupon shortlist 6-10 (six to ten)
qualified firms in accordance with pre-determined.
1.3
The Authority shall invite the aforesaid firms shortlised to submit their
respective technical and financial offers, each in a separate sealed cover. All
the technical bids so received shall be opened and pursuant to the evaluation
thereof, the Authority Contractor shall select the eligible firms on the basis
of their technical scores of [sixty] or more. The financial bids in respect of
the firms so selected shall be opened and the order of priority as among these
firms shall be determined on the basis of a weighted evaluation where
technical and financial scores shall be assigned respective weights of 80:20.
[2
Appointment of government entity as Engineer

Notwithstanding anything to the contrary contained in this Schedule, the
Authority may in its discretion appoint a government-owned entity as the
Engineer; provided that such entity shall be a body corporate having as one
of its primary function the provision of consulting, advisory and supervisory
services for engineering projects; provided further that a government-owned
entity which is owned or controlled by the Authority and/or MoSRTH shall
not be eligible for appointment as Engineer.]

SCHEDULE R
(See Clause 19.2.2)
OFFICERS OF THE AUTHORITY

1. Officers of the Authority
The following officers of the Authority have been authorised to grant
approval to the Engineer.
Serial No.
Nature of approval
Designation of the officer

of the Authority

SCHEDULE S
(See Clauses 20.4.1, and 20.8.1)
FORMS FOR PAYMENTS TO THE CONTRACTOR

1.

The monthly statement for Construction Works shall state:
(a)
the estimated amount for Design for the relevant stage in accordance with
Sub-clause 20.3.1;
(b)
the estimated amount for road works, bridges and structures and Other
Works executed in accordance with Sub-clause 20.3.1;
(c)
the total of (a) and (b) above;
(d)
the amount after deducting from (c) above the amount certified for payment
up to the previous month;
(e)
the value of any Change of Scope executed up to the end of the month in
question valued at the rates stated in the Change of Scope Order issued under
Sub-clause 13.2.5 less the amount certified for payment up to the previous
month, detailed for each Change of Scope Order;
(f)
amounts reflecting adjustments in price under Sub-clauses 20.10, 20.14 and

20.17;
(g)
any amount to be deducted as repayment of the Advance under the

provisions of Sub-clause 20.2 (Advance Payment); and
(h)
any amount to be deducted for all taxes in accordance with Sub-clause 20.14.
2. Monthly Statement for Maintenance of the Project Highway

1.
The monthly statement for Construction Works shall state:

(a) The monthly payment admissible in accordance with the Agreement
(b) The deductions for maintenance work not done
(c) Net payment for maintenance due
(d) Details of work done for Change of Scope Order (Order wise)
(e) Details of payments received in respect of each Change of Scope
Order (Order wise)
(f) `Net payment due for each Change of Scope Order.
(g) Total of (c) and (f)

3. Contractors Claim for Damages for delay in providing the Right of Way
The Authority will prescribe the form.
[***]

SCHEDULE T
(See Clause 21.1)
INSURANCE
1.
Insurance of Works and Contractor's Equipment during Construction

Period
1.1
Contractor shall effect and maintain at his own cost, from the Start Date till
the date of issue of the last Taking Over Certificate, the following insurances
during the Construction Period:
(i)
insurance of Construction Works, Plant and Materials and an
additional sum of [15] [fifteen] per cent of such replacement cost to
cover any additional costs of and incidental to the rectification of loss
or damage including professional fees and the cost of demolishing
and removing any part of the Construction Works and of removing
debris of whatsoever nature; and
(ii)
insurance for the Contractor's Equipment and Documents brought
onto the Site by the Contractor, for a sum sufficient to provide for
their replacement at the Site.
(iii)
The insurance under paragraph 1.1 (i) and (ii) above shall be in the
joint names of the Contractor and the Authority and shall cover the
Authority and the Contractor against all loss or damage from
whatsoever cause arising, other than as provided in paragraph 5
below.
2.
Insurance for Contractor's Defect Liability Period
2.1
Thirty days before the issue of the each Completion Certificate by the
Authority for the Project Highway, the Contractor shall insure for twenty
percent for the cost of the Construction Works completed to cover for its
liability:
(a)
during the Defects Liability Period for loss or damage arising from a
cause occurring prior to the commencement of the Defects Liability
Period, and
(b)
for loss or damages occasioned by the Contractor in the course of any

operations carried out by him for the purpose of complying with its
obligations under Sub-clause 3.1.4, and Article 18 (Defects Liability).
2.2
The insurance under paragraph 2.1 shall be in the joint names of the
Contractor and the Authority and shall cover the Authority and the
Contractor for the entire Defect Liability Period.
Insurance during the Maintenance Period
The Contract shall provide, in the joint names of the Contractor and the Authority,
insurance cover from the date of the issue of the Completion Certificate to the end of

the Maintenance Period
for the following events:
(a)
Loss of or damage to the Project Highway and Materials in the
amounts and deductibles stated below
Amount on Insurance
Deductible amount
[Rs.****]
[NIL]
(b)
4.
4.2
Loss of or damage to Contractors Equipment ;;
Insurance against Injury to Persons and Damage to Property

The Contractor shall insure against each Party's liability for any loss,
damage, death or bodily injury which may occur to any physical property
(except things insured under Paragraphs 1, 2, and 3 of this Schedule or to any
person (except persons insured under Sub-Clause 21.9), which may arise out
of the Contractor's performance of the Agreement and occurring before the
issue of the Performance Certificate. This insurance shall be for a limit per
occurrence of not less than the amount stated below with no limit on the
number of occurrences.
The limit of insurance amount shall be not less than: Rs. [*****]
The insurance shall be extended to cover liability for all loss and damage to
the Authority's property arising out of the Contractors performance of the
Agreement excluding:
(a)
the Authority's right to have the construction works executed on,
over, under, in or through any land, and to occupy this land for the
Construction Works; and
(b)
damage which is an unavoidable result of the Contractor's obligations
to execute the Construction Works.
5.
Insurance for Indirect Political Event

Minimum amount of insurance for Indirect Political Events is: [Rs. **
(***)].

SCHEDULE U
(See clause 27.1.6)
DISPUTES REVIEW BOARDS RULES AND PROCEDURES
1.
Except for providing the services required hereunder, the Board Members
shall not give any advice to either Party or to the Engineer concerning
conduct of the Construction Works. The Board Members:
(a)
shall have no financial interest in any Party to the Agreement, or the
Engineer, or a financial interest in the Agreement, except for payment for
services on the Board;
(b)
shall have had no previous employment by, or financial ties to, any
Party to the Agreement, or the Engineer, except for fee-based consulting
services on other projects, and/or be Retired Government officers (not
connected in whole or part with the project), all of which must be disclosed
in writing to both parties prior to appointment to the Board;
(c)
shall have disclosed in writing to both parties prior to appointment to
the Board any and all recent or close professional or personal relationships
with any director, officer, or employee of any Party to the Agreement, or the
Engineer, and any and all prior involvement in the project to which the
Agreement relates;
(d)
shall not, while a Board Member, be employed whether as a
consultant or otherwise by either Party to the Agreement, or the Engineer,
except as a Board Member, without the prior consent of the parties and the
other Board Members;
(e)
shall not, while a Board Member, engage in discussion or make any
agreement with any Party to the Agreement, or with the Engineer, regarding
employment whether as a consultant or otherwise either after the Agreement
is completed or after service as a Board Member is completed;
(f)
shall be and remain impartial and independent of the parties and shall
disclose in writing to the Authority, the Contractor, the Engineer, and one
another any fact or circumstance which might be such as to cause either the
Authority or the Contractor to question the continued existence of the
impartiality and independence required of Board Members; and
(g)
2.
shall be fluent in the language of the Agreement.
Except for its participation in the Boards activities as provided in the

Agreement and in this Agreement none of the Authority, the Contractor, and
or the Engineer shall solicit advice or consultation from the Board or the
Board Members on matters dealing with the conduct of the Construction
Works.

3.
The Contractor shall:

(a)
Furnish to each Board Member one copy of all documents which the
Board may request including Agreement Documents, progress reports,
change of scope orders, and other documents pertinent to the performance of
the Contract.
(b)
In cooperation with the Authority, coordinate the Site visits of the
Board, including conference facilities, and secretarial and copying services.
4.
The Board shall begin its activities following the signing of a Board
Members Declaration of Acceptance by all three Board Members, and it
shall terminate these activities as set forth below:
(a)
The Board shall terminate its regular activities when either (i) the
Defects Liability Period referred to in Article 21 or, if there are more than
one, the Defects Liability Period expiring last) has expired, or (ii) the
Authority has terminated the contract in accordance with Article 24, and
when, in either case, the Board has communicated to the parties and the
Engineer its recommendations on all disputes previously referred to it.
(b)
Once the Board has terminated its regular activities as provided by
the previous paragraph, the Board shall remain available to process any
dispute referred to it by either Party. In case of such a referral, Board
Members shall receive payments as provided in paragraphs 7(a) (ii), (iii) and
(iv).
5.
Board Members shall not assign or subcontract any of their work under these
Rules and Procedures.
6.
The Board Members are independent and not employees or agents of either
the Authority or the Contractor.
7.
Payments to the Board Members for their services shall be governed by the
following provisions:
(a)
Each Board Member shall receive payments as follows:
(i)
A retainer fee per calendar month equivalent to three times
the daily fee established from time to time for arbitrators under the
Administrative and Financial Regulations of the International Centre for
Settlement of Investment Disputes (the ICSID Arbitrators Daily Fee), or
such other retainer as the Authority and Contractor may agree in writing.
This retainer shall be considered as payment in full for:
(A)
Being available, on 7 days notice, for all hearings, Site
Visits, and other meetings of the Board.
(B)
Being conversant with all project developments and
maintaining relevant files.
(C)
All office and overhead expenses such as secretarial services,

photocopying and office supplies (but not including telephone calls, faxes
and telexes) incurred in connection with the duties as a Board Member.
(D)
All services performed hereunder except those performed
during the days referred to in paragraph (ii) below.
(ii)
A daily fee equivalent to the ICSID Arbitrators Daily Fee, or such
other daily fee as the Authority and Contractor may agree in writing. This
daily fee shall only be payable in respect of the following days, and shall be
considered as payment in full for:
(A)
Each day up to a maximum of two days of travel time in each
direction for the journey between the Board Members home and the Site or
other location of a Board meeting.
(B)
Each day on Site or other locations of a Board meeting.
(iii)
Expenses. In addition to the above, all reasonable and necessary
travel expenses (including less than first class air fare, subsistence, and other
direct travel expenses) as well as the cost of telephone calls, faxes and
telexes incurred in connection with the duties as Board Member shall be
reimbursed against invoices. Receipts for all expenses in excess of
Rs.1000/- (Rupees One Thousand only) shall be provided.
(iv)
Reimbursement of any taxes that may be levied in the country of the
Site on payments made to the Board Member (other than a national or
permanent resident of the country of the Site) in accordance with this
paragraph 7.
(b)
Escalation. The retainer and fees shall remain fixed for the period of each
Board Members term.
(c)
Phasing out of monthly retainer fee. Beginning with the next month after the
Taking-Over Certificate referred to in Clause 12.7 (or, if there are more than
one, the one issued last) has been issued, the Board Members shall receive
only one-third of the monthly retainer fee. Beginning with the next month
after the Board has terminated its regular activities in accordance with
paragraph 4(a) above, the Board members shall no longer receive any
monthly retainer fee.
(d)
Payments to the Board Members shall be shared equally by the Authority

and the Contractor. The Contractor shall pay Members invoices within 30
calendar days after receipt of such invoices and shall invoice the Authority
(through the monthly statements to be submitted in accordance with Article
20 of the Agreement) for one-half of the amounts of such invoices. The
Authority shall pay such Contractors invoices within the time period
specified in the Agreement for other payments to the Contractor by the
Authority.
(e)
Failure of either the Authority or the Contractor to make payment in

accordance with this Agreement shall constitute an event of default under the

Agreement, entitling the non-defaulting Party to take the measures set forth
in Article 24.
(f)
Notwithstanding such event of default, and without waiver of rights there

from, in the event that either the Authority or the Contractor fails to make
payment in accordance with these Rules and Procedures, the other Party may
pay whatever amount may be required to finance the operation of the Board.
The Party making such payments, in addition to all other rights arising from
such default, shall be entitled to reimbursement of all sums paid in excess of
one-half of the amount required to maintain operation of the Board, plus all
costs of obtaining such sums.
8.
Board Site Visits:

(a)
The Board shall visit the Site and meet with representatives of the
Authority and the Contractor and the Engineer at regular intervals, at times
of critical construction events, at the written request of either Party, and in
any case not less than 3 times in any period of 12 months. The timing of Site
visits shall be as agreed among the Authority, the Contractor and the Board,
but failing agreement shall be fixed by the Board.
(b)
Site visits shall include an informal discussion of the status of the
construction of the Project Highway, an inspection of the Project Highway,
and the review of any Requests for Recommendation made in accordance
with paragraph 10 below. Site visits shall be attended by personnel from the
Authority, the Contractor and the Engineer.
(c)
At the conclusion of each Site visit, the Board shall prepare a report
covering its activities during the visit and shall send copies to the parties and
to the Engineer.
9.
Procedure for Dispute Referral to the Board:

If either Party objects to any action or inaction of the other Party or the
Engineer, the objecting Party may file a written Notice of Dispute to the
other Party with a copy to the Engineer stating that it is given in accordance
with Article27 and stating clearly and in detail the basis of the dispute.
The Party receiving the Notice of Dispute shall consider it and respond in
writing within 14 days after receipt.
This response shall be final and conclusive on the subject, unless a written
appeal to the response is filed with the responding Party within 7 days after
receiving the response. Both parties are encouraged to pursue the matter
further to attempt to settle the dispute.
When it appears that the dispute cannot be resolved without the assistance of
the Board, or if the Party receiving the Notice of Dispute fails to provide a
written response within 14 days after receipt of such Notice, either Party may
refer the dispute to the Board by written Request for Recommendation to the
Board. The Request shall be addressed to the Chairman of the Board, with

copies to the other Board Members, the other Party, and the Engineer, and it
shall state that it is made in accordance with Article 27.
The Request for Recommendation shall state clearly and in full detail the
specific issues of the dispute to be considered by the Board.
When a dispute is referred to the Board, and the Board is satisfied that the
dispute requires the Boards assistance, the Board shall decide when to
conduct a hearing on the dispute. The Board may request that written
documentation and arguments from both parties be submitted to each Board
Member before the hearing begins. The parties shall submit insofar as
possible agreed statements of the relevant facts.
During the hearing, the Contractor, the Authority, and the Engineer shall
each have ample opportunity to be heard and to offer evidence. The Boards
recommendations for resolution of the dispute shall be given in writing to the
Authority, the Contractor and the Engineer as soon as possible, and in any
event not more than 56 days or any mutually extended period between the
Authority and the Contractor.
10.
Conduct of Hearings:
(a)
Normally hearings shall be conducted at the Site, but any location
that would be more convenient and still provide all required facilities and
access to necessary documentation may be utilized by the Board. Private
sessions of the Board may be held at any cost effective location convenient
to the Board.
(b)
The Authority, the Engineer and the Contractor shall be given the
opportunity to have representatives at all hearings.
(c)
During the hearings, no Board Member shall express any opinion
concerning the merit of the respective arguments of the parties.
(d)
After the hearings are concluded, the Board shall meet privately to
formulate its recommendations. All Board deliberations shall be conducted
in private, with all Members individual views kept strictly confidential. The
Boards recommendations, together with an explanation of its reasoning shall
be submitted in writing to both parties and to the Engineer. The
recommendations shall be based on the pertinent Agreement provisions,
applicable laws and regulations, and the facts and circumstances involved in
the dispute.
(e)
The Board shall make every effort to reach a unanimous
recommendation. If this proves impossible, the majority shall decide, and the
dissenting Member may prepare a written minority report for submission to
both parties and to the Engineer.
11.
In all procedural matters, including the furnishing of written documents and

arguments relating to disputes, Site visits, and conduct of hearings, the Board
shall have full and final authority. If a unanimous decision on any such

matter proves impossible, the majority shall prevail.
12.
After having been selected and, where necessary, approved, each Board
Member shall sign two copies of the following declaration and make one
copy available each to the Authority and to the Contractor.
BOARD MEMBERS DECLARATION OF ACCEPTANCE

___________________________
WHEREAS
(a)
a agreement (the Agreement) for the ________________ project [fill in the

name of project] has been signed on __________________ [fill in date]
between____________ [name of Authority] (the Authority) and
_______________ [name of Contractor] (the Contractor).;
(b)
Clause 27.1 of the Agreement and Schedule U to the Agreement provide for
the establishment and operation of a Disputes Review Board (the Board);
(c)
the undersigned has been selected (and where required, approved) to serve as
a Board Member on said Board;
NOW THEREFORE, the undersigned Board Member hereby declares as follows:

1.
I accept the selection as a Board Member and agree to serve on the Board
and to be bound by the provisions of Article 27 of the Agreement.
2.
With respect to paragraph 1 of said Schedule U, I declare

(a)
that I have no financial interest of the kind referred to in
subparagraph (a);
(b)
that I have had no previous employment nor financial ties of the kind
referred to in subparagraph (b); and
(c)
that I have made to both parties any disclosures that may be required
by Sub-paragraphs (b) and (c).
BOARD MEMBER
_______________________________________________
_____________________ [insert name of Board Member]

Date : _________________________________________
The End

Model EPC Agreement

Uploaded by

Copyright:

Available Formats

Model EPC Agreement

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Model EPC Agreement

Uploaded by

Copyright:

Available Formats

Revised draft for discussion

National Council of Applied Economic Research

Revised draft for discussion

Definitions and Interpretation

Scope of the Project

Scope of the Project

Obligations of the Contractor

Obligations of the Contractor

Obligations of the Authority

Obligations of the Authority

Representations and Warranties

Representations and Warranties of the Contractor

Revised draft for discussion

Utilities, Obstructions and Trees

Existing utilities and roads

Design and Construction of the Project Highway

Obligations prior to commencement of Construction Works

Quality Assurance, Monitoring and Supervision

Quality of Materials and Workmanship

Revised draft for discussion

Maintenance obligations of the Contractor

Supervision and Monitoring of during Maintenance Period

Inspection by the Contractor

Traffic regulation by the Contractor

Revised draft for discussion

Insurance during Agreement Period

Revised draft for discussion

Evidence of Insurance Cover

Suspension of Construction Work for Contractors failure

Termination for Contractor Default

Assignment and Charges

Restrictions on assignment and charges

Revised draft for discussion

Liability and Indemnity

Dispute Review Board

Governing law and jurisdiction

Site of the Project

Development of the Project Highway

Revised draft for discussion

Development of the Project Highway

Specifications and Standards

Safety and Welfare Provisions for Labour

Guiding principles of Safety Requirements

Contract Price Weightages

Shifting of Utilities and Obstructions

Project Completion Schedule

Project Completion Schedule

Revised draft for discussion

Schedule for Tests

Payment Reductions for Non-compliance

Payment reduction for non-compliance with the Maintenance Requirements

Officers of the Authority

Forms for payments to the Contractor

Monthly Statement for Construction Works

Insurance of Works and Contractor's Equipment during Construction Period

Disputes Review Boards Rules and Procedures

Revised draft for discussion

Revised draft for discussion

Revised draft for discussion

THIS AGREEMENT1 is entered into on this the .. day of , 20..