draft

Contract Document
for
EPC Contracts for CPWD
Furnished to NITI Aayog
through MoUD

November 2016

OMs dt. 05.09.2016 issued by Niti Aayog on Initiatives on the measures for revival of the Construction Sector
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With reference to the your above cited OM, please find enclosed herewith a draft
contract document for EPC contracts for perusal and onward submission to NITI Aayog.

The O.M. dated 05.10.2016 of NITI Aayog suggests adoption of the FIDIC document for
EPC contracts. The following FIDIC suite of contracts is available at their website page
fidic.org/sites/default/files/FIDIC_Suite_of_Contracts_0.pdf:

Sl FIDIC Document Suitability Recommended on the FIDIC page

1 GREEN BOOK : Short form of Contract Recommended for Engineering and Building work of
small (less than USD 0.5 million) capital value. Employer
provides the design.
2 RED BOOK : Conditions of Contract for Where the Design is carried out by the Employer
Building and Engineering works
designed by the Employer
3 YELLOW BOOK: Conditions of Contract Form Electrical and Mechanical Plant, and for building
for Plant and Design-Build works, designed by the Contractor
4 ORANGE BOOK: Conditions of where Contractor carries total liability for design
Contract for Design-Build and Turnkey
5 SILVER BOOK: Conditions of Contract suitable for use … where a Contractor is to take on full
for EPC/ Turnkey Projects responsibility for the design and execution of a project;
where construction is only one part of wider
complicated commercial venture …
6 DBO Contract: Conditions of Contract where long-term operation commitment is combined
for Design, Build and Operate Projects with the design-build obligation …
 All the FIDIC documents which are prescribed for EPC mode (i.e. SILVER Book or DBO-
Contract, or even ORANGE or YELLOW books) require that “Contractor takes full responsibility
for the design and execution”; it may also involve “wider complicated commercial venture…”
for both of which although CPWD has the basic capability, it has no mandate at present. The
mandate of the CPWD, laid out in the codes approved by MoUD, is to be responsible, inter-alia,
for the design and execution (copies of paras 28 and 64 of the D-code CPWD enclosed).
Therefore, in order to implement the directions to adopt EPC contract mode in respect
of CPWD, it is required that the mandate of the CPWD defined in the Departmental Code(D-
Code) be suitably modified so that for works undertaken by CPWD in the EPC mode, the
Contractor takes the full responsibility for the design and execution. A draft amendment to
CPWD Departmental Code is accordingly enclosed herewith. Further, for such works, where
there is profit-loss possibility, CPWD, or an entity under it, shall be enabled under the codes to
play a commercial role when the need arises.

This issues with the approval of DG, CPWD.

layXu%& (1) Draft EPC document

(2) Draft Amendment to CPWD D-Code.

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 INDEX

Article Title
Article 1 DEFINITIONS, INTERPRETATION AND GENERAL
PROVISIONS
Article 2 SCOPE OF PROJECT
Article 3 OBLIGATIONS OF CONTRACTOR
Article 4 OBLIGATIONS OF EMPLOYER
Article 5 ENGINEER
Article 6 INTEGRITY PACT
Article 7 REPRESENTATIONS AND WARRANTIES
Article 8 DISCLAIMER
Article 9 PERFORMANCE SECURITY
Article 10 CONSTRUCTION SITE
Article 11 UTILITIES AND TREES
Article 12 DESIGN AND CONSTRUCTION
Article 13 TIME MANAGEMENT
Article 14 CONTRACT PRICE AND PAYMENTS
Article 15 VARIATIONS
Article 16 COMPLETION AND TAKING OVER CERTIFICATE
Article 17 DEFECTS LIABILITY
Article 18 QUALITY ASSURANCE, MONITORING AND SUPERVISION
Article 19 REDUCTION IN SCOPE OF WORK
Article 20 TERMINATION
Article 21 FORCE MAJEURE
Article 22 INSURANCE
Article 23 DISPUTE RESOLUTION
Article 24 SUSPENSION OF WORK
Article 25 LIABILITY AND INDEMINITY
Article 26 STAFF AND LABOUR
Article 27 MAINTENANCE
Article 28 SERVICE OF NOTICES
 ARTICLE 1

DEFINITIONS AND INTERPRETATION

1.1 Definitions

In the contract (as hereinafter defined) the following words and expressions, unless
the context otherwise requires, shall 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.

1.1.1 Documents

1.1.1.1 “Appendix to Form of Tender” means the completed pages entitled

‘Appendix or Form of tender’, which are appended to and form part of the
Tender.

1.1.1.2 “Bill of Quantities” means a document containing various items of

payment and contains schedule of Payment also.

1.1.1.3 “Construction and/or Manufacture Documents” means all drawings,

calculations, computer software (programs), samples, patterns, models,
operation and maintenance manuals, and other manuals and information
of a similar nature, to be submitted by the Contractor.

1.1.1.4 “Contract” means the Contract Contract, the Letter of Acceptance, the
letter of tender, General Conditions of Contract, Special Conditions of
Contract, the Employer’s Requirements, the Tender, the Notice Inviting
Tender, Instructions To Tenderers, the Contractor’s Proposal, the
Schedules, and such further documents which are listed in the Letter of
Acceptance or Contract Contract (if completed).

1.1.1.5 “Contract Contract” means the contract contract between Employer and
the Contractor. It shall also include all subsequent modifications/
amendments as may be necessary to record the Contract as a result of
the communications or negotiation proceedings between the parties.

The costs of stamp duties and similar charges imposed by law shall be
borne by the Contractor.

1.1.1.6 “Contractor’s Proposal” means the proposal submitted by the

Contractor with the Tender, as modified and accepted by the Employer
and included in the Contract. Such documents may include the
Contractor’s preliminary design.
1.1.1.7 “Contractor’s Document” means the calculations, computer programme
and other softwares, drawings, manuals and other documents of a
technical nature (if any) supplied by the Contractor under the Contract.

1.1.1.8 “Design Data” means all specifications, plans, drawings, details, graphs,
sketches, models, levels, setting-out dimensions, calculations duly
checked by the Contractor and other documents relating to the design of
the Works prepared or to be prepared by or on behalf of the Contractor.

1.1.1.9 “Drawings” means the Employer’s Drawings and the Drawings submitted
by the Contractor and any modification of such drawings as any, from time
to time, be furnished or for which the Engineer has issued a Notice of No
Objection.

1.1.1.10 “Employer’s Requirements” means the description of the scope,

standard, design criteria, specifications, drawings, programme of work,
indigenisation programme (where applicable) as included in the Contract,
and any alterations and modifications thereto in accordance with the
Contract.

1.1.1.11 “Interim Payment Schedule” means the schedule included for each Cost
Centre in the Pricing Document and accepted by the Employer to be used
for interim payments in relation to achievement of milestones under that
Cost Centre, as the same may be revised from time to time in accordance
with Article 14.

1.1.1.12 “Letter of Acceptance” means the formal acceptance of the tender/bid

by the Employer.

1.1.1.13 “Notice to Proceed” means the notice issued by the Engineer to the
Contractor communicating the date on which the Works are to be
commenced.

1.1.1.14 “Letter of Tender” means the document entitled letter of tender, which
was completed by the Contractor and includes the signed offer to the
Employer for the Works.

1.1.1.15 “Safety, Health and Environmental (SHE) Manual” means the

Employer’s manual containing the requirements and conditions to be met
during the execution of the Works by the Contractor.

1.1.1.16 “Schedules” means the information and data submitted with the Tender,
as included in the Contract.

1.1.1.17 “Tender/Bid” means the documents in their entirety comprised in

Tender/Bid submitted by the bidder (selected bidder/Consortium) in
 response to the Request for Proposal in accordance with the provisions
thereof.

1.1.1.18 “Schedule of Milestones” means the schedule included in each Cost

Centre in the Pricing Document, describing the Milestones and stipulating
dates by which the Milestones are to be achieved under that Cost Centre
in order to maintain interim payments by the Employer to the Contractor in
accordance with the Interim Payment Schedule for that Cost Centre, as
the same may be revised from time to time in accordance with the
Contract.

1.1.1.19 “Schedule of Payment” means the schedule for payment in various

stages on part of the works as defined in the contract.

1.1.1.20 “Special Conditions of Contract” means any special conditions of

contract issued by the Employer prior to submission of the Tender or
negotiated and agreed in writing by the Employer and the Contractor prior
to acceptance of the Tender.

1.1.1.21 “Works Programme” means the programme showing the sequence,

method and timing of survey & investigations, design, issue of No
Objection Notices, execution, manufacture, delivery to site, erection,
installation, testing, commissioning of the Works (including Integrated
Testing and Commissioning), indigenisation (where applicable) and related
activities in the form and content prescribed by the Employer’s
Requirements, or any amended or varied version thereof, as submitted by
the Contractor and for which the Engineer has issued a Notice of No
Objection.

1.1.2 Parties and Persons

1.1.2.1 “Party” means the Employer or the Contractor as the context requires

1.1.2.2 “Tenderer or Bidder” means the Person or Firm or Company or

Consortium submitting a bid/Tender.

1.1.2.3 “Contractor” means the Person/Firm/Company/Consortium whose

Tender has been accepted by the Employer and the legal successors in
title to such person, but not (except with the consent of the Employer) any
assignee of such person.

1.1.2.4 “Contractor’s Representative” shall mean a person named by the

Contractor in the Contract or appointed from time to time by the Contractor
under Sub-clause 3.6 to act on behalf of Contractor.
1.1.2.5 "Designated Contractors/other contractor" means any of the following
whose activities or the works they are engaged to carry out, affect or are
affected by the Works, in any way or at any time:

(a) contractors, design consultants and utility authorities engaged on the

Project from time to time by the Employer;

(b) sub-contractors of any tier of the contractors under (a) above; provided
that the definition shall exclude the Contractor and his sub-contractors of
any tier in relation to the Works.

1.1.2.6 “Designer” means the Contractor, or part of the group forming the
contractor, person, firm or company or group of companies, or any
replacement, carrying out the Design of Works or part thereof.

1.1.2.7 “Employer” means ................................................................, its legal

successors and assignees.

1.1.2.8 “Engineer” means any person nominated or appointed from time to time
by the Employer to act as the Engineer for the purposes of the Contract
and notified as such in writing to the Contractor.

1.1.2.9 “Engineer’s Representative” means any Assistant of the Engineer

appointed/designated from time to time by the Engineer under Sub-clause
5.5.

1.1.2.10 “Sub-contractor” means any person named in the Contract as a sub-

contractor, manufacturer or supplier for a part of the Works or any person
to whom a part of the Works has been sub-contracted with the consent of
the Employer and the legal successors in title to such person, but not any
assignee of such person.

1.1.3 Dates, Times and Periods

1.1.3.1 “Commencement Date” means the date on which the Contractor shall
commence the Works on the written instructions of the Engineer contained
in the Notice to Proceed.

1.1.3.2 “Contract Period” means the period from the Commencement Date to
the end of Defects Liability Period including Integrated Testing and
Commissioning and as certified by the Engineer under Clause 18.18 (or as
extended under Sub-Clause 17.9 and 17.10).
1.1.3.3 “Day” means a calendar day, “Week” means 7 calendar days, “Month”
means a calendar month as per Gregorian calendar and “Year” means
365 days.

1.1.3.4 “Effective Date” means the date on which the Contract comes into force
and effect.

1.1.3.5 “Gazetted Holiday” means every holiday which is observed by

Government (or Name of Organization may be indicated) as a gazetted
holiday as well as a weekly holiday.

1.1.3.6 “General Holiday” means Sunday.

1.1.3.7 "Business day" shall be construed as a reference to a day (other than a

Sunday) on which banks in [Delhi or other place as specified] are generally
open for business

1.1.3.8 “Key Date” means a date identified as such in the Contract.

1.1.3.9 “Milestone” means the completion of a part of the Works or the

occurrence of an event identified as such in the Schedule of Milestones.

1.1.3.10 “Milestone Date” means the date prescribed in the Schedule of Milestone
by which a Milestone is to be achieved.

1.1.3.11 “Stage” means level of progress of the works identified as such and more
particularly described in the Employer’s Requirements for which a Key
Date for the achievement thereof is stipulated in the Contract.

1.1.3.12 “Time for Completion” means the time for completing the Works or a
section or a part thereof (as the case may be), and passing the Tests on
Completion, including Integrated Testing and Commissioning, as stated in
the contract, calculated from the Commencement Date.

1.1.4 Tests and Completion

1.1.4.1 “Factory Tests” means the tests required to be carried out in the factory
premises on components, equipment, subsystem, system, etc. during
and/or after manufacture in the factory.

1.1.4.2 “Integrated Testing” in the contracts where applicable means the

programme of tests performed by the Contractor at the direction of the
 Engineer following satisfactory completion of Contractor’s tests on his
equipment, sub-systems or system to verify and confirm the compatibility
and compliant performance of his equipment/ sub-system/ system with the
equipment/ sub-system/ system provided by others.

1.1.4.3 “Milestone Certificate” means the certificate to be issued by the

Engineer in relation to the achievement or otherwise of Milestones.

1.1.4.4 “Performance Certificate” means the certificate issued by the Engineer

under Sub-Clause 17.7.

1.1.4.5 “Taking Over Certificate” means a certificate issued under Clause 16.3
and 16.4.

1.1.4.6 “Tests on Completion” means the tests specified in the Contract and
designated as such, including Integrated Testing where applicable and
any other such tests as may be agreed by the Engineer and the
Contractor, or instructed as a Variation, which are to be carried out before
the Works, or any Section are taken over by the Employer.

1.1.5 Money and Payments

1.1.5.1 “Contract Price” means the sum stated in the Letter of Acceptance as
payable to the Contractor, subject to such additions thereto or deductions
therefrom as may be made under the provisions of the Contract.

1.1.5.2 “Cost” means all expenditure properly incurred (or to be incurred) by the
Contractor, whether on or off the Site.

1.1.5.3 “Cost Centre Amount” means the amount apportioned to a Cost Centre
as set out in the Pricing Document, as the same may be revised from
time to time in accordance with the Contract.

1.1.5.4 “Final Payment Certificate” means the payment certificate issued by the
Engineer under Sub-Clause 14.13.

1.1.5.5 “Final Payment Statement” means the agreed statement defined in Sub-
Clause 14.12.

1.1.5.6 “Foreign Currency” means a freely convertible international trading

currency in which part or whole of the Contract Price is payable, but not
the Local Currency.
1.1.5.7 “Interim Payment Certificate (IPC)” means any payment certificate
issued by the Engineer under Sub-Clause 14.5, other than the Final
Payment Certificate.

1.1.5.8 “Local Currency” means Indian Rupees.

1.1.5.9 “Interest” wherever applicable shall means simple interest at the Base
Rate announced by State Bank of India as on last date of previous
calendar month.

1.1.6 Other Definitions

1.1.6.1 “Approval or Approved” means Approval in writing including subsequent

written confirmation of previous verbal approval.

1.1.6.2 “Contractor’s Equipment” means all machinery, apparatus, appliances,

other things of whatsoever nature required for purpose of the Contract,
including without limitation, Contractor’s Plant and Equipment, or Materials
to or from the Site, but does not include Plant, or Materials intended to
form or forming part of the Permanent Works.

1.1.6.3 “Cost Centre” means a group of activities and/ or items of work/part of

the work identified as such in the Pricing Document.

1.1.6.4 “Materials” means things of all kinds (other than Plant) to be provided
and incorporated in the Permanent Works by the Contractor, including the
supply-only items (if any), which are to be supplied by the Contractor as
specified in the Contract.

1.1.6.5 “Plant” means the machinery, equipment, and apparatus and the likes,
intended to form or forming part of the Permanent Works, including the
supply-only items (if any), which are to be supplied by the Contractor as
specified in the Contract.

1.1.6.6 “Section” means a part of the Works specifically designated in the

Appendix to Form of Tender as a Section (if any).

1.1.6.7 “Site” means the places provided by the Employer where the Works are
to be executed and to which Plant, Goods / Machinery and Materials are to
be delivered and any other place as may be specifically designated in the
Contract as forming part of the Site. Site includes Depot, where
Goods/Plant/Machinery will be delivered, tested and commissioned as
provided in the Contract.
 1.1.6.8 “Scheduled Bank” means a bank included in the second schedule to the
Reserve Bank of India Act, 1934, or modifications thereto.

1.1.6.9 “Specification” means the Specification referred to in the contract and

any modification thereof or addition thereto, as may from time to time be
furnished or approved in writing by the Engineer.

1.1.6.10 “Test” means such Tests as are prescribed in the Specifications or by the
Engineer or Engineer’s Representative, whether performed by the
Contractor or by the Engineer or his Representative or any agency acting
under the direction of the Engineer.

1.1.6.11 “Variation” means any alteration and/ or modification to the Employer’s

Requirements, which is instructed by the Engineer or approved as a
variation by the Engineer, in accordance with Article 15.

1.1.6.12 “Works” means the work including survey, investigation, design, both
permanent and temporary, or services to be carried out, designed,
constructed, manufactured, fabricated, delivered to Site, erected, installed,
completed, tested, commissioned, (including Integrated Testing and
Commissioning) and remedying of any defects, and/ or supplied in
accordance with the Contract and include Plant, Goods and Materials and
their accessories and other necessary items/activities to complete the
project/work.

1.1.6.13 “Permanent Works” means the permanent works to be designed and

executed in accordance with the Contract.

1.1.6.14 “Temporary Works” means all temporary works of every kind (other than
Contractor’s Equipment) required for the execution and completion of the
Works, and the remedying of any defects.

1.1.6.15 “Project/Work” means as defined under Article 2.

1.2 Laws and Language

In this contract unless the context otherwise require, following shall be applicable:

1.2.1 Laws

(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
re-enacted.

(c) terms and expressions not herein defined shall have the meanings
assigned to them in the “Indian General Clauses Act, 1897” or the Indian
Contract Act or the Indian Sale of Goods Act or any other applicable
Indian Law, as the case may be.

(d) “Jurisdiction of Courts” Where recourse to a court is made by either

party in respect of any matter under the contract, the court at District Head
Quarter of work place or the court at District Head Quarter of place of
delivery of supply, as the case may be, shall have the exclusive jurisdiction
to try all disputes between the parties.

1.2.2 Language

(a) “Language” of the contract shall be English and in case of bilingual

contract, English version shall prevail over other language.

(b) 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;

(c) the table of contents, headings or sub-headings in this Contract are

for convenience of reference only and shall not be used in, and shall
not affect, the construction or interpretation of this Contract;

(d) 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;

(e) words indicating one gender include all genders;

(f) words indicating the singular also include the plural and words indicating
the plural also include the singular and

(g) “written” or “ in writing” means hand-written, type written, printed or

electronically made and resulting in a permanent record.

1.3 Interpretation
1.3.1 In this Contract, unless the context otherwise requires,

(a) 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;
(b) any reference to any period of time shall mean a reference to that
according to Indian Standard Time (IST);

(c) 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 Contract;

(d) 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
Contract is a gazetted/general holiday, then the period shall run until the
end of the next working day;

(e) "lakh/lac" means a hundred thousand (100,000) and "crore" means ten
million (10,000,000);

(f) "indebtedness" shall 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;

(g) 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;

(h) save and except as otherwise provided in this Contract, any reference, at
any time, to any contract, deed, instrument, licence or document of any
description shall be construed as reference to that contract, deed,
instrument, licence or other document as amended varied, supplemented,
modified or suspended at the time of such reference; provided that this
Clause shall not operate so as to increase liabilities or obligations of the
Employer hereunder or pursuant hereto in any manner whatsoever;

(i) any contract, consent, approval, authorisation, notice, communication,

information or report required under or pursuant to this Contract from or by
any Party or the Employer's 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 Employer's Engineer, as the case may be, in this behalf and
not otherwise;

(j) the Schedules and Recitals to this Contract form an integral part of this
Contract and will be in full force and effect as though they were expressly
set out in the body of this Contract;

(k) references to Recitals, Articles, Clauses, Sub-clauses or Schedules in this

Contract shall mean references to Recitals, Articles, Clauses, Sub-clauses
and Schedules of or to this Contract, and references to a Paragraph shall,
subject to any contrary indication, be construed as a reference to a
Paragraph of this Contract or of the Schedule in which such reference
appears;

(l) the damages payable by either Party to the other of them, as set forth
in this Contract, whether on per diem basis or otherwise, are
mutually agreed genuine pre-estimated loss and without any proof of
actual damage likely to be suffered and incurred by the Party entitled
to receive the same and are not by way of penalty (the "Damages");
and

1.3.2 Unless expressly provided otherwise in this Contract, any Documentation

required to be provided or furnished by the Contractor to the
Employer/Engineer shall be provided free of cost and in three copies, and
if the Employer/Engineer is required to return any such Documentation
with its comments and/or approval, it shall be entitled to retain two copies
thereof.

1.3.3 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.

1.4 Measurements and arithmetic conventions

Unless and otherwise specified in Specifications/Standards as applicable and BIS

Codes/Specifications, 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.

1.5 Priority of contracts and errors/discrepancies

The Contract or Contract Agreement (if any) and documents forming part of or
referred to in the Contract are to be taken as mutually explanatory and, unless
otherwise expressly provided elsewhere in the Contract, the priority of the Contract
 and other documents and contracts forming part hereof or referred to herein shall, in
the event of any conflict between them, be in the following order of precedence:

a) The contract or contract agreement as applicable

b) The letter of acceptance

c) pre and post bid proceeds

d) the Outline Design Specifications (Design Criteria) and Outline Construction

Specifications, any other specification as applicable and BIS Specifications

e) drawings- between the written description on the Drawings and the

Specifications and Standards, the latter shall prevail and between the
dimension scaled from the Drawing and its specific written dimension, the
latter shall prevail;

f) the Special Conditions of the Contract

g) the General Conditions of Contract

h) between two or more Clauses of this Contract, the provisions of a specific

Clause relevant to the issue under consideration shall prevail over those in
other Clauses;

i) between any value written in numerals and that in words, the latter shall
prevail.

1.6 Employer’s use of Contractor’s Documents

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 Contract) to give to the Employer a
non-terminable 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 Works,

(b) entitle any person in proper possession of the relevant part of the Works to
copy, use and communicate the Contractor's Documents for the purposes of
 completing, operating, maintaining, altering, adjusting, repairing and
demolishing the 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 Contract, including replacements of
any computers supplied by the Contractor.

1.7 Contractor’s use of Employer’s Document

As between the Parties, the Employer shall retain the copyright and other
intellectual property rights in the Employer's Requirements and other documents
made by (or on behalf of) the Employer. The Contractor may, at his cost, copy, use,
and obtain communication of these documents for the purposes of the Contract.

They shall not, without the Employer's consent, be copied, used or communicated
to a third party by the Contractor, except as necessary for the purposes of the
Contract.

1.8 Compliance with Statutes, Regulations and Laws

The Contractor shall familiarise themselves and conform in all aspects with:

(a) the provision of any enactment in India as applicable from time to time

(b) the regulations or bye-laws of any local body and utilities.

(c) the Contractor shall be bound to give all notices required by statute,
regulations or by-laws, as aforesaid and to pay all fees and bills payable in
respect thereof. The Contractor will arrange necessary clearances and
approvals before the Work is taken up.

Ignorance of Rules, Regulations and Bylaws shall not constitute a basis for any
claim at any stage of work.

The Contractor shall indemnify the Employer against all penalties and liabilities of
every kind of breach of any such enactment, laws, regulations, bye-laws or rules

1.9 Joint and several liability:

If the Contractor (under applicable laws) is a joint venture, Consortium or other

incorporated grouping of two or more persons:

a) these persons shall be deemed to be jointly and severally liable to the

Authority for the performance of the Contract; and
b) the Contractor shall not alter its composition or legal status without the prior
consent of the Authority.
c) these persons shall notify the Employer of their leader who shall have
authority to bind the contractor and each of the persons.
 ARTICLE 2

THE PROJECT AND ITS SCOPE

2.1 Scope of the Project

2.1.1 Name of the Project/Work: …………………………………………………………..

Under this Agreement the scope of the Project/Work (the "Scope of the
Project/Work") shall mean and include:

(a) construction of the Project/Work on the Site set forth in Schedule A 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 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 Obligations of the Contractor

3.1.1 The Works as completed by the Contractor shall be wholly in accordance with the
Contract and fit for the purposes for which they are intended, as defined in the
Contract. The Works shall include any work which is necessary to satisfy the
Employer's Requirements, the Contractor's Proposal and Schedules, or is implied
by the Contract, or arises from any obligation of the Contractor, and all works not
mentioned in the Contract but which may be inferred to be necessary for stability, or
completion, or the safe, reliable and efficient operation of the Works.

Subject to and on the terms and conditions of this Contract, the Contractor shall
undertake survey, investigation, design, manufacture, execute, install, complete,
test (including Integrated Testing wherever required) and commission, the Works,
including providing Construction and maintenance of the Project/Work and/or
Manufacture Documents, within the Time for Completion and shall remedy any
defects within the Contract Period. The Contractor shall provide all
superintendence, labour, Plant, Materials, Contractor’s Equipment, Temporary
Works and all other things, whether of a temporary or permanent nature, required in
and for such design, works and remedying of defects.

Before commencing design, if in the scope of the contract, the Contractor shall
satisfy himself regarding the Employer's Requirements (including design criteria and
calculations, if any) and the items of reference mentioned in Sub-Clause 3.13.

The Contractor shall give notice to the Engineer of any error, fault or other defect in
the Employer's Requirements or such items of reference. After receipt of such
notice, the Engineer shall determine whether Artical 15 shall be applied, and shall
notify the Contractor accordingly.

The Contractor shall take full responsibility for the adequacy, stability and safety of
all Site operations, of all methods of construction, manufacture, and of all the
Works, irrespective of any approval or consent by the Engineer. The Contractor
shall be deemed to have satisfied himself before submitting his tender as to the
correctness and sufficiency of his Tender to cover all his risks, liabilities and
obligations set out in or implied by the Contract and all matters and things
necessary for the proper design, manufacture, execution, installation, completion,
testing, Integrated Testing whichever is in the scope of the contract, commissioning
of the Works and remedying of the Defects.

By entering into the contract, the Contractor acknowledges responsibility for

ascertaining and securing at his own cost:

(a) conditions bearing upon the proper transportation, disposal, handling and
storage of materials (including but not limited to hazardous toxic substances
and excavated materials);
 (b) availability of electricity, water and gas;

(c) availability of skilled manpower;

(d) the character of equipment and facilities needed preliminary to and during the
manufacture, installation, execution, testing, Integrated Testing, and
commissioning of the Works and remedying of any defects;

(e) the protection of the environment and adjacent structures which will be
necessary preliminary to and during the manufacture, installation, execution,
testing, Integrated Testing, and commissioning of the Works and remedying
of any defects;

(f) the location of and the authorisation required for and the means of diversion
of any services and facilities required for the purposes of the Works.

The Contractor shall whenever required by the Engineer, submit details of the
arrangement and methods which the Contractor proposed to adopt for the execution
of the Works. No alteration to these arrangements or methods shall be made
without the approval of the Engineer.

3.1.2 The Contractor shall remedy any and all loss or damage to the Project or the
Materials or Plant to be incorporated in the Project during Contract Period at the
Contractor's cost if such loss or damage is attributable to the Contractor's acts or
omissions.

3.1.3 Submission of Performance Guaranttee

Contractor shall have to submit Earnest Money Deposit in the form of Bank
Guaranttee (Schedule-G, Annexure-I) at the time of submission of bid which shall
be returned back to contractor if his bid is not found lowest or his bid is accepted.
After acceptance of the bid, contractor has to submit Performance Guaranttee as
per provisions of Article 9.

3.1.4 The Contractor shall, at its own cost and expense, in addition to and not in
derogation of its obligations elsewhere set out in this Contract:

(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, licences and approvals 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, contracts and
permissions for materials, methods, processes and systems used or
incorporated into the project;
 (c) keep, on the Site, a copy of this Contract, publications named in this Contract,
the Drawings, Documents relating to the Project, and Change of Scope Orders
and other communications given under this Contract. The Engineer and its
authorised personnel shall have the right of access to all these documents at
all reasonable times; and .

3.2 Obligations relating to sub-contracts, and any other contracts

3.2.1 The Contractor shall not sub-contract or sublet any Works costing more than
percentage of total value of contract amount as specified in Special Conditions of
Contract (SCC) and rest of the work shall be carried out the Works directly under its
own supervision and through its own personnel. Provided, however, that the
Contractor may enter into contracts or sub-contracts for the supply of Materials,
Plant, equipment and labour for undertaking such Works. For the avoidance of
doubt, the Parties agree that all obligations and liabilities under this Contract shall at
all times remain with the Contractor.

3.2.2 For any sub-contract which exceeding the percentage of contract amount as
specified in Special Conditions of Contract (SCC), the Contractor shall
communicate the name and particulars, including the relevant experience of the
Sub-contractor, to the Employer forthwith. The Employer shall examine the
particulars of the Sub-contractor and convey its objections, if any, within a period of
14 (fourteen) days from the date of receiving the communication from the
Contractor. In the event the Employer decides that the Sub-contractor should not be
engaged, it may ask the Contractor forthwith not to proceed with the sub-contract
and the Contractor shall comply therewith. Correctness and genuiness of the
documents of the sub contractor shall be responsibility of the contractor. In case
contractor does not receive any No Objection Certificate (NOC) or any objection
from Engineer within 21 days of submission of documents of sub contractor, he may
proceed further assuming NOC has been issued.

3.2.3 The Contractor shall be responsible for observance by all Sub-contractors of all the
provisions of the Contract. It is expressly agreed that the Contractor shall, at all
times, shall be responsible for the acts or defaults of any Sub-contractor, his
representatives or employees, as fully as if they were the acts or defaults of the
Contractor, his representatives or employees and nothing contained in contract
shall constitute a waiver of the Contractor’s obligations under this contract. The
Contractor shall provide to the Engineer of all the Sub Contracts including terms,
conditions and pricing. The Contractor shall endeavour to resolve all matters and
payments amicable and speedily with the sub-contractors.

3.2.4 The contractor shall ensure that their sub contractors, material/equipment suppliers,
consultants and other agencies deployed by them in connection with execution of
the contract do not make any claim or raise any dispute before Employer. For this,
necessary provision is to be made in the contract between contractor and their sub
contractors/consultants/other agencies. Similarly the contract should also
 incorporate the provision of dispute resolution. An undertaking in the following
format shall be submitted by contractor in respect of each such agency:-

“Name of work …………………………………………………………...............

In connection with above work, M/s…………………………, Contractor has/is

engaging M/s………………………………, as sub contractor(or consultant or
material/equipment supplier or service provider). For this, the terms and conditions
of contract include necessary provisions for resolution of dispute if any arising
between contractor and sub contractor.

It is confirmed by the sub contractor that any claim/dispute arising out of the above
work shall be resolved in terms of contract and shall not be raised before Employer
and also shall not make any claim against Employer before any forum/court.

Signature of Contractor

3.3 Assignment of Contractor’s and sub-contractor’s Obligations

The Contractor shall not assign a right or benefit under the Contract without first
obtaining Employer’s prior written consent, otherwise than by:

a. a charge in favour of the Contractor’s bankers of any money due or to

become due under the Contract, or

b. Assignment to the Contractor’s insurers (in cases where the insurers have
discharged the Contractor’s loss or liability) of the Contractor’s right to obtain
relief against any other party liable.

If a Subcontractor’s obligations extend beyond the expiry date of Defects Liability

Period then the Contractor shall assign the benefits of such obligations to the
Employer.

In the event that a sub-contractor of any tier provides to the Contractor or any other
sub-contractor a warranty in respect of Plant, Materials or services supplied in
connection with the Works, or undertakes a continuing obligation of any nature
whatsoever in relation to such Plant, Materials or services (including without
limitation an obligation to maintain stocks of spare parts) extending for a period
exceeding that of the Defects Liability Period or where there is more than one
Defects Liability Period exceeding that of the latest Defects Liability Period, and if
the Engineer so directs in writing within 21 days of the expiry of the Defects Liability
Period or the latest Defects Liability Period (as the case may be), the Contractor
shall immediately assign or obtain the assignment of the benefit of such warranty or
obligation to the Employer or at the direction of the Employer, to any third party
referred to in Sub-Clause 4.2

3.4 Compensation of Breach

 Any breach of Sub-clauses 3.2 to 3.3 and any breach of Integrity Pact under Artical
6 shall entitle the Employer to terminate the contract under Clause 20.1 of these
conditions and also render the Contractor liable for loss or damage arising due to
such cancellation.

3.5 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 sub.
contractors 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 Contract,
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 Contract.

3.6 Contractor's personnel

3.6.1 The Contractor shall ensure that the personnel engaged by it in the performance of
its obligations under this Contract are at all times appropriately qualified, skilled and
experienced in their respective functions.

3.6.2 Unless the Contractor's Representative is named in the Contract, the Contractor
shall, within 14 days of Notice to Proceed, submit to the Engineer for consent the
name and particulars of the person the Contractor proposes to appoint. The
Contractor shall not revoke the appointment of the Contractor's Representative
without the prior information to the Engineer. The Contractor’s Representative so
nominated shall have full authority to act on behalf of the Contractor. The
Contractor's Representative shall give his whole time to directing the preparation of
the Construction and/or Manufacture Documents and the execution of the Works.
The Contractor's Representative shall receive (on behalf of the Contractor) all
notices, instructions, consents, no objection certificate approvals, certificates,
determinations and other communications under the Contract. Whenever the
Contractor's Representative is to be absent from the Site, a suitable replacement
person shall be appointed, with prior consent of Engineer.

Failure on part of the Contractor to comply with these provisions shall constitute a
breach of Contract leading to action under Clause 20.1.

The Contractor's Representative may delegate any of his powers, functions and
authorities to any competent person, and may at any time revoke any such
delegation. Any such delegation or revocation shall be in writing and shall not take
effect until the Engineer has given prior consent thereto. The Contractor’s
Representative and such persons shall be fluent in the language of day to day
communication and the Contractor shall be bound by and fully liable for the acts or
 omissions of the Contractor’s Representatives or any of his employees and/or
delegates, agents or nominees.

3.6.3 The Engineer may direct the Contractor to remove any member of the Contractor's
personnel. Provided that any such direction issued by the Engineer shall specify the
reasons for the removal of such person.

3.6.4 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 10 (ten)
days of any such direction being issued in pursuance of Clause 3.6.3 The
Contractor shall further ensure that such persons have no further connection with
the Works or Maintenance under this Contract. The Contractor shall then appoint
(or cause to be appointed) a replacement.

3.7 Facilities for and Co-ordination with others

The Contractor shall not impede and shall afford all necessary facilities, access
and/or services to the Employer, Engineer, Designated Contractors, utility
undertakings, personal of public Employer, other relevant authorities and other
contractors (whether employed by the Employer or not) who are carrying out on, or
in the vicinity of, the Site, works not included in the Contract but forming part of the
Project:

a. The Contractor shall take all reasonable steps to ensure that the Works are co-
ordinated and integrated with the design, manufacture, installation execution and
testing of such other works and shall in particular (but without limitation):

(i) comply with any direction which the Engineer may give for the integration
of the design of the Works with the design of any other part of the Project;

(ii) consult, liaise and co-operate with those responsible for carrying out such
other works, including where necessary, in the preparation of the
respective designs, the preparation of co-ordinated programmes, method
statements, co-ordination drawings and specifications together with
arrangements of service priorities and zoning;

(iii) participate in Integrated Testing and Commissioning of the system with

Designated Contractors and demonstrate to the satisfaction of the
Engineer that the Works have been designed and constructed in a
manner compatible with the works of Designated Contractors.

b. The Contractor shall undertake design co-ordination with other contractors who
are carrying out works forming part of the Project as described in the Employer's
Requirements. At the end of each such co-ordination period, the Contractor and
the other contractor with whose works the interface period refers shall jointly
state in writing that their design co-ordination activities are complete and that
 their respective designs are integrated and can be finalised without interference
with each other's designs or the designs with which their designs have already
been integrated. A copy of this joint written statement shall be provided to the
Engineer within 7 days of the end of the said design co-ordination period.
Unless and until copies of all relevant and necessary design co-ordination
statements have been submitted to the Engineer, the Engineer shall be entitled
to suspend any review or further review of the Contractor's or the other
contractor's design submissions. Such suspension shall not be grounds for the
Contractor to claim nor shall be entitled to receive an extension of time or
additional payments.

c. The Contractor shall provide within the Site, staging, storage and unloading
areas for the use of Designated Contractors, if any, who are undertaking other
works related with the project. Separate locations shall be provided for each
such contractor. The exact size and location of these staging, storage and
unloading areas, and the commencement date shall be co-ordinated and agreed
during the design interface period with each Designated Contractor.

d. Any other contract which depends for its execution on the Contract or upon
which the Contract is dependent for its own execution shall be identified by the
Engineer as a "Designated Contract". The Contractor shall provide attendance
on Designated Contractors in accordance with the Employer's Requirements
and as instructed by the Engineer. The identity of the contractor for a
Designated Contract may not be known before the execution of the Contract but
this shall not be a ground for the Contractor to object to the subsequent
appointment of a Designated Contractor.

e. The Contractor shall in accordance with the requirements of the Engineer co-
ordinate his own Works with that of Designated Contractors through Co-
ordinated Installation Programme (CIP) stated in the Employer's Requirements,
or as the Engineer may require, and shall afford the Designated Contractors all
reasonable opportunities for carrying out their works.

f. The Contractor shall afford all reasonable opportunities, for carrying out their
work, to other contractors employed by the Employer and their workmen
respectively and the workmen of the Employer who may be engaged on or near
the Site of any work, ancillary to the Works, but, not included in the Contract and
shall not cause them inconvenience.

g. It shall be the responsibility of the Contractor to ensure that the full extent of the
Works under the Contract and the works to be carried out by Designated
Contractors within the Works or, in, on, under, through and over the Site are co-
ordinated and integrated in their design, manufacture, installation and
construction. Such responsibility shall neither be mitigated nor in any other way
affected by virtue of similar responsibilities being placed on other contractors.
 h. The Contractor shall be deemed to have made adequate allowance in the
Contract Price and in the Works Programme in respect of these obligations.

i. If any act or omission of the Contractor whether directly or indirectly results in

the delay in the execution of the works of a Designated Contractor, the
Contractor, in addition to his liability in respect of damages, if they become due,
shall pay to the Employer, or the Engineer may deduct from Interim Payment
Certificates such amount as the Engineer shall have certified in respect of
additional payments or costs to the Designated Contractor in respect of such
delay.

3.8 Publicity

The Contractor shall not publish or otherwise circulate alone or in conjunction with
any other person, any articles, photographs or other materials relating to the
Contract, the Site, the Works, the Project or any part thereof, nor impart to the
Press, or any radio or television network any information relating thereto, nor allow
any representative of the media access to the Site, Contractor's Works Areas, or
off-Site place of manufacture, or storage except with the permission, in writing, of
the Employer. The Contractor shall ensure that his sub-contractors of any tier shall
be bound by a like obligation and shall, if so required by the Employer, enforce the
same at his own expense. The provisions of this Sub-Clause shall not exempt the
Contractor from complying with any statutory provision in regard to the taking and
publication of photographs.

3.9 Contractor's care of the Works

The Contractor shall bear full risk in and take full responsibility for the care of the
Works and Materials, goods and equipment for incorporation therein from the
Commencement Date until the Completion 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 Employer.

The Contractor shall throughout the execution of the Works including the carrying
out of any testing, commissioning (including Integrated Testing and
Commissioning), or remedying of any defect:

a. take full responsibility for the adequacy, stability, safety and security of the
Works, Plant, Goods, Contractor's Equipment, Temporary Works, operations on
Site and methods of manufacture, installation, construction and transportation;

b. have full regard for the safety of all persons on or in the vicinity of the Site
(including without limitation persons to whom access to the Site has been
allowed by the Contractor), comply with all relevant safety regulations, including
provision of safety gear, and insofar as the Contractor is in occupation or
otherwise is using areas of the Site, keep the Site and the Works (so far as the
same are not completed and occupied by the Employer) in an orderly state
 appropriate to the avoidance of injury to all persons and shall keep the
Employer indemnified against all injuries to such persons.

c. provide and maintain all lights, guards, fences and warning signs and watchmen
when and where necessary or required by the Engineer or by laws or by any
relevant Employer for the protection of the Works and for the safety and
convenience of the public and all persons on or in the vicinity of the Site; and

d. where any work would otherwise be carried out in darkness, ensure that all
parts of the Site where work is being carried out are so lighted as to ensure the
safety of all persons on or in the vicinity of the Site and of such work.

Contractor is required to take note of all the necessary provisions in Employer’s

Safety, Health and Environment Manual (SHE Manual) and the Contractor’s price
shall be inclusive of all the necessary costs to meet the prescribed safety standards.
In the case, the Contractor fails in the above, the Employer may provide the
necessary arrangements and recover the costs from the Contractor.

3.10 Electricity, water and other services

The Contractor shall be responsible for procuring of all power, water and other
services that it may require at his own cost and expense.

3.11 Unforeseeable Physical Conditions

In this clause ‘Unforeseeable Physical Conditions’ means natural physical

conditions, which the contractor encounters at site while executing the works
excluding climatic conditions.

If, during the execution of works, the contractor encounters physical conditions,
which, in his opinion, could not have been reasonably forseen by an experienced
contractor, the contractor shall forthwith give written notice thereof to the Engineer
and if, in the opinion of the Engineer, such conditions could not have been
reasonably forseen by an experienced contractor, then the Engineer shall certify
and the Empoyer shall pay reasonable additional cost and/or time to which the
contractorshall have been put by reason of such conditions in the following cases:

(a) for complying with any instruction which the Engineer may issue to the
contractor in connection therewith, and

(b) for any proper and reasonble measures approved by the Engineer which the
contractor may take in the absence of specific instructions from the Engineer,
as a result of such conditions or obstructions being encountered.

3.12 Sufficiency of accepted contract amount

The Contractor shall be deemed to have satisfied himself as to the correctness and
sufficiency of the Contract Price having foreseen all difficulties. Unless otherwise
stated in the Contract, the Contract Price shall cover all his obligations under the
Contract and all things necessary for the proper design, execution and completion
 of the Works, testing and commissioning (including Integrated Testing and
Commissioning) and remedying of any defects.

3.13 Setting Out

3.13.1 Accurate Setting Out

The Contractor shall be responsible for:

(a) the accurate setting out of the Works in relation to the original points, lines and
levels of reference given by the Engineer in writing;

(b) the correctness of position, levels, dimensions and alignments of all parts of
the Works;

(c) the provisions of all necessary instruments, equipment, apparatus and labour
in connection with the foregoing responsibilities; and

(d) Carefully protecting and preserving all bench marks, sight rails, pegs and other
things used in setting out the Works.

The checking of any setting-out or of any line or level by the Engineer shall not in
any way relieve the Contractor of his responsibility for the accuracy or correctness
thereof and the Contractor shall carefully protect and preserve all bench-marks,
sight-rails, pegs and other things used in setting out the Works.

3.13.2 Errors in Setting Out

If at any time during the execution of the Work, an error appears in the positions,
levels, dimensions or alignment of any part of the Works, the Contractor on being
required to do so by the Engineer shall, at Contractor’s cost, rectify such error to the
satisfaction of the Engineer.

3.14 Site Data

i. The Employer shall have made available to the Contractor with the Tender
documents such relevant data in Employer’s possession on hydrological and
sub-surface conditions. The accuracy or reliability of the data/studies/reports and
of any other information supplied at any time by the Employer or Engineer is not
warranted with respect to the viability of his design and execution of Works and
the Contractor shall be responsible for interpreting all such data. The Contractor
shall conduct further investigations considered necessary by him at his own cost
and any error, discrepancies if found in Employer’s data at any stage will not
constitute ground for any claim for extra time and costs.

ii. The Contractor shall be deemed to have obtained all necessary information as to
risks, contingencies and other circumstances which may influence or affect the
Tender or Works.
 iii. The Contractor shall also be deemed to have inspected and examined the Site,
its surroundings, the above data and other available information with respect to
the viability of his design and execution of Works and to have satisfied himself
before submitting the Tender, as to all the relevant matters including without
limitation:

(a) the form and nature of the Site, type of soil including the sub-surface
conditions;
(b) the hydrological and climatic conditions;
(c) the extent and nature of the work, Plant, and Materials necessary for the
execution and completion of the Works and the remedying of any defects;
(d) the applicable laws, procedures and labour practices
(e) The Contractor’s requirement for access, accommodation, facilities,
personnel, power, transport and other services.
(f) the risk of injury or damage to property adjacent to the Site and to the
occupiers of such property or any other risk.

3.15 Access Route

The Contractor shall be deemed to have satisfied himself as to the suitability and
availability of the access routes he chooses to use. The Contractor shall (as
between the parties) be responsible for the maintenance of access routes. The
Contractor shall provide at his cost signs or directions, which he may consider
necessary or as instructed by Engineer for the guidance of his staff, labour and
others. The Contractor shall obtain any permission concessions and related
easement right that may be required from the relevant authorities for the use of
such routes, signs and directions.

The Employer will not be responsible for any claims which may arise from the use
or otherwise of any access route. The Employer does not guarantee the suitability
or availability of any particular access route, and will not entertain any claim for any
non-suitability or non-availability for continuous use during construction of any such
route.

3.16 Rights of Way and Facilities

The Employer will acquire and provide land for Permanent Works and right of way
(within Employer’s land) for access thereto over routes established by the
Contractor. The Contractor shall bear all cost and charges for special or temporary
rights of way which he may require including those for access to the Site. The
Contractor shall also obtain, at his risk and cost, any additional facility outside the
Site which he may require for the purpose of the Works. The Employer reserves the
right to make use of these service roads/rights of way for itself or for other
Contractors working in the area, as and when necessary without any payment to the
Contractor.

3.17 Programmes
 Within 28 (twenty eight) days of the Commencement Date, the Contractor shall
submit to the Employer and the Employer's Engineer a programme (the
"Programme") for the Works, developed using neiworking techniques giving the
following details:

Part I: Contractor's organisation for the Project, the general methods and
arrangements for design and construction, environmental management
plan, Quality Assurance Plan including design quality plan, traffic
management and safety plan covering safety of users and workers during
construction, Contractor's key personnel and equipment:

Part II: Programme for completion of all major stages and Project Milestones of
the Works as specified in Proiect Completion Schedule set forth in
Schedule-I. The Programme in required format such as M S Project or
other software as specified in the bid document shall include:

(a) the order in which the Contractor intends to carry out the Works,
including the anticipated timing of each stage of design and major
stages of Works;

(b) the periods for reviews under Clause 12.2;

(c) the sequence and timing of inspections and tests specified in this
Contract.

The Contractor shall submit a revised programme whenever the previous

programme is inconsistent with the actual progress or with the
Contractor's obligations.

Part III: Monthly cash flow forecast.

Consent by the Engineer to Programmes shall not relieve the Contractor of any of
his responsibilities or obligations under the Contract. If the Programmes indicate
that a Key Date has not, or will not be met, it shall not, by itself entitle the Contractor
to an extension of time in relation to such Key Date.

3.18 Progress Reports

The Contractor shall submit to the Engineer by the end of each calendar month his
Monthly Progress Report which shall, amongst other things, highlight actual or
potential departures from the Works Programmes and/or the Design Submission
Programme and state the measures which the Contractor proposes to take in order
to make good or reduce any delay.

If requested by the Engineer, the Contractor shall submit to the Engineer, at weekly
intervals, a written report as to the progress of off-Site manufacture of Plant, Rolling
Stock and Materials.
 The Contractor shall also submit to the Engineer such other reports as may
reasonably be required by him or any relevant Employer or public body.

3.19 Contractor’s Equipments

3.19.1 All Contractor’s Equipment and Temporary Works provided by the Contractor shall,
when brought on to the site, be deemed to be exclusively intended for execution of
the Works and not be removed without the consent in writing of the Engineer. Such
consent shall not be unreasonably withheld or delayed.

3.19.2 Upon completion of the Works the Contractor shall remove from the Site all the said
Constructional Plant and his unused materials.

3.19.3 The Employer shall not, at any time, be liable for the loss or damage to any of the
Constructional Plant, Temporary Works or materials save as mentioned in Clause
25.1

3.19.4 In respect of any Constructional Plant which the Contractor shall have imported for
the purpose of the Works, the Employer may assist the Contractor, where required,
in procuring any necessary Government consent for re-export of the same after the
completion of the Works.

3.19.5 The Employer may assist (but is not obligated to) the Contractor, where required, in
obtaining clearance through the Customs of Constructional Plant, materials and
other things required for the Works.

3.20 Protection of the Environment

The Contractor shall take all reasonable steps to protect the environment (both on
and off the Site) and to avoid injury, damage and nuisance to people and property
resulting from pollution, noise and other results of his operations. The Contractor
shall ensure that air emissions, surface discharges and effluent from the Site during
the Contract Period shall not exceed the values indicated in the Employer's
Requirements, and shall not exceed the values prescribed by law. The Contractor
shall conform to the Employer’s Requirements and shall indemnify the Employer
against any liability or damages or claims arising out of his operations. The
Contractor shall be responsible and liable for any stoppage, closure or suspension
of the works due to any contravention of statutory requirements relating to the
protection of the environment and shall indemnify and keep indemnified the
Employer in this regard.

The Contractor's Site Environmental Plan shall be developed for his and Employer’s
Safety, Health and Environmental Manual (SHE Manual), as per the Employer's
Requirements and Special Conditions of Contract. Nothing extra shall be payable to
the Contractor on this account and his Tender price shall be inclusive of expenditure
required to be incurred for working as per SHE Manual.
3.21 Tools, Plants and Equipments Supplied by the Employer

Except for any specific item mentioned in the Special Conditions of Contract or in
Employer’s Requirements, the Contractor shall provide all tools, plants and
equipment for the Works. In respect of such exceptional tools, plants or equipment
committed to be provided by the Employer under terms and conditions specified in
the Special Conditions of Contract, the Contractor shall take all reasonable care and
shall be responsible for all damages or loss caused by him, his representatives,
sub-contractors or his workmen or others while they are in his charge.

On completion of the Works, the Contractor shall hand over the unused balance of
the tools, plants and equipments to the Employer in good order and repair, fair wear
and tear expected, and shall be responsible for any failure to account for the same
or any damage done thereto.

The decision of the Engineer as to the amount recoverable from the Contractor on
this account shall be final and binding.

3.22 Employer’s Materials & Excavated Materials

(i) Except for items mentioned in the Special Conditions of Contract, the
Contractor shall provide all materials for the Works. Material if any, to be
provided by Employer will be done only in a phased manner as per pre-
approved program and at terms and conditions for issue, upkeep, usage,
return and recovery of such Materials as specified in Special Conditions of
Contract.

(ii) Unless otherwise specified, the Contractor shall not sell or remove, except for
the purpose of this Contract, sand, stone, clay, ballast, earth, rock or other
materials obtained from the work Site and these shall be the property of the
Employer and will be disposed off only in the manner instructed by him.

3.23 Sheds, Stores & Yards

It shall be the responsibility of the Contractor to provide at his own expense the
required sheds, store houses, and yards for both Permanent and Temporary Works
and provide free access to the Engineer and the Engineer’s Representative who will
have right of inspection including that of instructing the Contractor to remove a
particular material from the stores and not to use the same on the Works.

3.24 Temporary Works

All temporary works necessary for the proper execution of the works shall be
provided and maintained by the Contractor at his cost and subject to the consent of
the Engineer shall be removed by Contractor at his own expense when they are no
longer required and in such manner as the Engineer shall direct. In case the
Contractor fails to remove the temporary works on completion the Engineer is
authorized to get the same removed and recover the cost there of from the
Contractor.
3.25 Access for Engineer

The Contractor shall allow the Engineer or the Engineer’s Representative or any
other person authorised by him, at all times access to the Site, and to any place
where work in connection with the Contract is being carried out or is intended to be
carried out and to any place where materials or plant are being manufactured,
fabricated and/or assembled for the Works. The Contractor shall ensure that sub
contracts if any shall contain provisions entitling the Engineer or any person
authorised by him to have such access.

3.26 Access Road and Way Leaves

Providing access roads/ way leaves to the site will be Contractor’s responsibility.

3.27 Site Clearance

During the execution of the Works, the Contractor shall keep the Site free from all
unnecessary obstruction, and shall store or dispose of any Contractor’s Equipment
or surplus materials. The Contractor shall clear away and remove from the Site any
wreckage, rubbish or Temporary Works no longer required.

On completion of the works, the Contractor shall clear away and remove from site
all Constructional Plant, surplus material and Temporary Works. He should leave
the whole of the site and Works in a clean, tidy and workman like condition to the
satisfaction of the Engineer.
On completion of Work the Contractor shall also clear away the labour camps,
hutments and other related installations and restore the land to its original condition
to the satisfaction of the Engineer within 42 (forty two) days of the physical
completion of Work. The cost on account of delay in return of land and
reinstatement of original condition within the stipulated time as determined by
Engineer will be recovered from the Contractor’s dues.
No final payment in settlement of the accounts for Works shall be made or held to
be due to the Contractor, till, in addition to any other condition necessary for such
final payment, site clearance and clearances of labour camps etc shall have been
effected by him. Such clearance may be made by the Engineer through any other
agency at the expense of the Contractor in the event of the Contractor’s failure to
comply with this provision within 7 days after receiving notice to that effect from the
Engineer. All expenses on such removal / clearance shall be debitable to the
Contractor as loans due from the Contractor to the Employer, and the Employer
shall be competent to recover the same from Contractor’s on-account or final bills,
or from Performance Security amount or from any other amount payable to the
Contractor in any other Contract.
3.28 Security of the Site

The Contractor shall be wholly responsible for security of site and Works. Unless
otherwise stated in Special Conditions of Contract.
 a. The Contractor shall be responsible for keeping unauthorised persons off the
Site; and
b. Authorized persons shall be limited to the Employees of the Contractor,
Subcontractor or persons authorized by the Engineer.

3.29 Contractor’s Operations on Site

The Contractor shall confine his operations to the Site, and to any additional area
which may be provided to the Contractor and agreed by the Engineer as working
areas. The Contractor shall take all necessary precautions to keep his personnel
and equipment within the Site and such additional areas, and to keep and prohibit
them from encroaching on adjacent land.

3.30 Disclosure of Relationship

If the Contractor or any partner of the Contractor or Director of the Contractor’s

company is closely related to any of the Officers of the Employer or the Engineer, or
alternatively, if any close relative of an officer of the Employer or the Engineer has
financial interest / stake in the Contractor’s firm, the same shall be disclosed by the
Contractor at the time of filing his tender. Any failure to disclose the interest
involved, shall entitle the Employer to terminate the Contract, without payment of
any compensation to the Contractor. The Contractor shall note that he is prohibited
from developing such interest during the Contract period.

3.31 Use of Explosives

Explosives if required on the Work shall be used by Contractor only with prior
approval of the Engineer and in the manner and to the extent permitted by him. The
Contractor shall be responsible for safe upkeep of such explosives in a special
magazine as per the law on explosives as well as for taking all the precautions in
the usage of the explosives with proper license and at Contractor’s cost, sole risk
and responsibility. The Contractor shall hold the Employer harmless and indemnify
for the above.

3.32 Mobilization of Resources:

Contractor shall not mobilize his resources in terms of materials, machinery, tools &
plants, facilities required to implement the project and shall not pay any advances to
any party unless he receives notice to proceed from Employer/Engineer. Contractor
shall himself be responsible for such cost incurred without receipt of notice to
proceed and no such claim of contractor shall be entertained by the Employer.
 ARTICLE 4

OBLIGATIONS OF THE EMPLOYER

4.1 Obligations of the Employer

4.1.1 The Employer 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 Employer shall be responsible for the correctness of the Scope of the Project,
Project Facilities, Specifications and Standards and the criteria for testing of the
completed Works:

4.1.3 The Employer shall provide to the Contractor:

(a) the site/area of works free of enchoachment and encumbrances will be made
available to the contractor in one go or in phased manner and shall pay
contractor as specified in the contract.

(b) right of access to, and/or possession of the Site for the completion of Works.
Such right and possession may not be exclusive to the Contractor. The
Contractor will draw/modify the schedule for completion of Works according to
progressive possession/right of such sites.

If the Contractor suffers delay from failure on the part of the Employer to grant
right of access to, or possession of the Site, the Contractor shall give notice to
the Engineer-in-Charge in a period of 28 days of such occurrence. After
receipt of such notice the Engineer shall proceed to determine any extension
of time to which the Contractor is entitled and shall notify the Contractor
accordingly.

(c) approved General Arrangement Drawings (GAD), Lay Out Plans, Architectural
Drawings and any other document as required to be supplied on or before the
commencement date; and

(d) all Applicable Permits relating to environmental protection and conservation of

the Site as set forth in Clause 4.3 and other clearances/approvals as set forth
in clause 4.4.

4.1.4 Delay in providing the Site, General Arrangement Drawings, Lay Out Plans,
Architectural Drawings and Applicable Permits, as the case may be, in accordance
with the provisions of Clause 4.1.3 shall entitle the Contractor to claim damages in
accordance with the provisions of Clause 10.3 of this Agreement and Time
Extension in accordance with the provisions of Clause 13.4 of this Agreement.

4.1.5 The Employer agrees to provide following 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, but rendering of such
assistance by the Employer shall not be interpreted as a pretext by the Contractor
as condoning of any delay or non-performance of any of the Contractors
 obligations. The following-up of all such applications shall be the responsibility of
the contractor;

(a) upon written request from the Contractor, and subject to the Contractor
complying with Applicable Laws, provide reasonable support 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, inclduing water and electricity at rates and on temrs no less favourable
to the Contractor than those generally availbale to commercial customers
receiving substaintially equivalent services;

(c) procure that no barriers are erected or placed on or about the Project by any
Government Instrumentally 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 provisions of this Agreement,

(f) upon written request from the Contractor and subject to the provisions of
Clause 3.5, 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 the obligations under this Agreement and the
agreements with the Subcontractors;

4.2 Assignment by the Employer

The Employer shall be fully entitled without consent of the contractor, to assign the
benefits of the part thereof and any interest therein or there under to any third party.

4.3 Environmental Clearances

The environmental clearances required for construction of the Project shall be

procured by the Employer no later than 30 (thirty) days from the Commencement
Date. In the event of any delay beyond such 30 (thirty) days, the Contractor shall be
entitled to Time Extension for the period of such delay and shall also be entitled to
Damages calculated in accordance with the formula specified in Clause 10.3 of this
Agreement, but subject to a ceiling of 3% (three per cent) of the Contract Price. For
the avoidance of doubt, the present status of environmental clearances is specified
in Schedule-A.

4.4 Permits/Clearances/Approvals
 The list of permits, clearances and approvals to be obtained by the Employer are to
be indicated in Schedule F under this clause.

4.5 Payments to contractor:

The Employer shall ensure timely due payments to contractor as per provisions of
Article 14.
 ARTICAL 5

ENGINEER

5.1 Appointment of Engineer

The Employer shall notify the Contractor in writing of the appointment and identity of
the Engineer and may, in its discretion, replace the Engineer at any time, but only
after appointment of another Engineer.

5.2 Duties and Authorities of Engineer

5.2.1 The Engineer shall perform the duties and exercise the authority as specified in the
contract and may exercise the authority necessarily to be implied from the Contract.

The Engineer shall have no authority to determine followings without obtaining prior
written approval of the Employer:

a. to amend the contract;

b. to terminate the contract;
c. any Time Extension;
d. any additional cost (except escalation payable to contractor under terms and
conditions of the contract) to be paid by the Employer to the Contractor;
e. to relieve contractor of any of his duties, obligations & responsibilities under the
contract;
f. any provision as specified in Special Condition of the Contract;
g. any other matter which is not specified in (a) to (f) above and which creates an
obligation or liability on employer for a sum not exceeding Rs...... lac. (Amount
to be decided by respective employer/department)

5.2.2 No decision or communication of the Engineer shall be effective or valid unless it is

conveyed in writing. If any oral instructions are given in the interest of work, the
same is to be confirmed in writing within 7 days.

5.2.3 The Engineer may exercise the authority specified in, or necessarily to be implied
from the Contract. If the Engineer is required to obtain any other specific approval of
the Employer before exercising such authority, such requirements shall be as stated
in Special Conditions of Contract. Any requisite approval shall be deemed to have
been given by the Employer for any such authority exercised by the Engineer.

5.3 Engineer’s Authority to Delegate

i. The Engineer, by order in writing may, from time to time assign and delegate
authority to Engineer’s representatives/assistants and may also revoke such
assignments and delegations. The delegation shall be applicable only after
same has been notified in writing to the Contractor.
 ii. Each Assistant to whom duties have been assigned or authority has been
delegated, shall be authorized to issue instructions to the Contractor to the
extent defined by the delegation. Any determination, approval, check,
certificate, consent, examination, inspection, instruction, notice, proposal,
request, test or similar act by assistance shall have the same effect as though
the act had been an act of the Engineer. However:

(a) Any failure to disapprove any Plant, Goods , Material, design and
workmanship shall not prejudice the right of the Engineer to reject such
Plant, Goods , Material, design and workmanship;

(b) if the Contractor questions any determination or instruction of an assistant

of the Engineer, the Contractor may refer the matter to the Engineer within
three days of such decision having been given, who shall confirm, reverse
or vary such determination or instruction.

5.4 Engineer’s Instructions

The Contractor shall comply with instructions given by the Engineer in accordance
with the Contract.

The Contractor shall give reasonable notice to the Engineer of any instruction,
which he considers necessary for the execution of the Works, to enable the
Engineer to issue the instruction so that progress of the Works is not delayed. The
Engineer shall not, however, be bound to issue any instruction which, in his opinion,
is not necessary.

No act or omission by the Engineer or the assistants to the Engineer in the

performance of any of the Engineer’s duties or the exercise of any of the Engineer’s
powers under the Contract shall, in any way, operate to relieve the Contractor of
any of the duties, responsibilities, obligations or liabilities imposed upon the
Contractor by any of the provisions of the Contract.

5.5 Determination

5.5.1 The Engineer shall consult with each Party in an endeavour to reach agreement
wherever this 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 this Agreement having due regard to all relevant
circumstances. The Engineer shall give notice to both the Parties of each
agreement or determination, with supporting particulars.

5.5.2 Each Party shall give effect to each agreement or determination made by the
Engineer in accordance with the provisions of this Agreement. Provided, however,
that if any Party disputes any instruction, decision, or direction of the Engineer, the
Dispute shall be resolved in accordance with the provisions of Article 23.
 ARTICAL 6

INTEGRITY PACT

6.1 The Integrity Pact/Agreement is an integral part of tender/bid document.

6.2 Obligations on Employer

The Employer is committed to follow the principle of transparency, equity and

competitiveness in public procurement.

6.3 Obligations on Bidder/Contractor

To accept and comply with the Integrity Agreement in letter and spirit and further
agree that execution of the said Integrity Agreement shall be separate and distinct
from the main contract, which will come into existence when tender/bid is finally
accepted by Employer. Duration of the Integrity Agreement shall be in the line with
sub-section 6.4.6 of the Integrity Agreement.

Bidder/Contractor acknowledge that in the event of breach of the Integrity

Agreement Employer shall have unqualified, absolute and unfettered right to take
action under sub-section 6.4.3.

6.4 Preamble

WHEREAS the Employer has floated the Tender (herein after referred to as
“Tender/Bid”) and intends to award contract under laid down organizational
procedure, herein after referred to as the “Contract”.

AND WHEREAS the Employer values full compliance with all relevant laws of the
land, rules, regulations, economic use of resources and of fairness/transparency in
its relation with its Bidder(s) and Contractor(s).

AND WHEREAS to meet the purpose aforesaid both the parties have agreed to
comply this Integrity Agreement (hereinafter referred to as “Integrity Pact” or
“Pact”), the terms and conditions of which shall also be read as integral part and
parcel of the Tender/Bid documents and Contract between the parties.

NOW, THEREFORE, in consideration of mutual covenants contained in this Pact,

the parties hereby agree as follows and this Pact witnesses as under:

6.4.1 Commitment of the Employer

1) The Employer commits itself to take all measures necessary to prevent

corruption and to observe the following principles:

(a) No employee of the Employer, personally or through any of his/her family

members, will in connection with the Tender, or the execution of the
Contract, demand, take a promise for or accept, for self or third person,
any material or immaterial benefit which the person is not legally entitled
to.
 (b) The Employer will, during the Tender process, treat all Bidder(s) with
equity and reason. The Employer will, in particular, before and during the
Tender process, provide to all Bidder(s) the same information and will not
provide to any Bidder(s) confidential / additional information through
which the Bidder(s) could obtain an advantage in relation to the Tender
process or the Contract execution.

(c) The Employer shall endeavour to exclude from the Tender process any
person, whose conduct in the past has been of biased nature.

2) If the Employer obtains information on the conduct of any of its employees

which is a criminal offence under the Indian Penal code (IPC)/Prevention of
Corruption Act, 1988 (PC Act) or is in violation of the principles herein
mentioned or if there be a substantive suspicion in this regard, the Employer
will remedial actions as per departmental/conduct rules.

6.4.2 Commitment of the Bidder(s)/Contractor(s)

1) It is required that each Bidder/Contractor (including their respective officers,

employees and sub-contractors) adhere to the highest ethical standards, and
report to the Government / Department all suspected acts of fraud or
corruption or Coercion or Collusion of which it has knowledge or becomes
aware, during the tendering process and throughout the negotiation or award of
a contract.

2) The Bidder(s)/Contractor(s) commit himself to take all measures necessary to

prevent corruption. He commits himself to observe the following principles
during his participation in the Tender process and during the Contract
execution:

a) The Bidder(s)/Contractor(s) will not, directly or through any other person or

firm, offer, promise or give to any employee of the Employer involved in the
Tender process or execution of the Contract or to any third person any
material or other benefit which he/she is not legally entitled to, in order to
obtain in exchange any advantage of any kind whatsoever during the
Tender process or during the execution of the Contract.

b) The Bidder(s)/Contractor(s) will not enter with other Bidder(s) into any
undisclosed agreement or understanding, whether formal or informal. This
applies in particular to prices, specifications, certifications, subsidiary
contracts, submission or non-submission of bids or any other actions to
restrict competitiveness or to cartelize in the bidding process.

c) The Bidder(s)/Contractor(s) will not commit any offence under the relevant
IPC/PC Act. Further the Bidder(s)/Contract(s) will not use improperly, (for
the purpose of competition or personal gain), or pass on to others, any
information or documents provided by the Employer as part of the business
 relationship, regarding plans, technical proposals and business details,
including information contained or transmitted electronically.

d) The Bidder(s)/Contractor(s) of foreign origin shall disclose the names and

addresses of agents/representatives in India, if any. Similarly
Bidder(s)/Contractor(s) of Indian Nationality shall disclose names and
addresses of foreign agents/representatives, if any. Either the Indian agent
on behalf of the foreign principal or the foreign principal directly could bid in
a tender but not both. Further, in cases where an agent participate in a
tender on behalf of one manufacturer, he shall not be allowed to quote on
behalf of another manufacturer along with the first manufacturer in a
subsequent/parallel tender for the same item.

e) The Bidder(s)/Contractor(s) will, when presenting his bid, disclose any and
all payments he has made, is committed to or intends to make to agents,
brokers or any other intermediaries in connection with the award of the
Contract.

3) The Bidder(s)/Contractor(s) will not instigate third persons to commit offences

outlined above or be an accessory to such offences.

4) The Bidder(s)/Contractor(s) will not, directly or through any other person or firm
indulge in fraudulent practice means a wilful misrepresentation or omission
of facts or submission of fake/forged documents in order to induce public
official to act in reliance thereof, with the purpose of obtaining unjust
advantage by or causing damage to justified interest of others and/or to
influence the procurement process to the detriment of the Government
interests.

5) The Bidder(s)/Contractor(s) will not, directly or through any other person or firm
use Coercive Practices (means the act of obtaining something, compelling an
action or influencing a decision through intimidation, threat or the use of force
directly or indirectly, where potential or actual injury may befall upon a person,
his/ her reputation or property to influence their participation in the tendering
process).

6.4.3 Consequences of Breach

Without prejudice to any rights that may be available to the Employer under law or
the Contract or its established policies and laid down procedures, the Employer
shall have the following rights in case of breach of this Integrity Pact by the
Bidder(s)/Contractor(s) and the Bidder/ Contractor accepts and undertakes to
respect and uphold the Employer absolute right:

1) If the Bidder(s)/Contractor(s), either before award or during execution of

Contract has committed a transgression through a violation of 6.4.2 above or
in any other form, such as to put his reliability or credibility in question, the
Employer after giving proper opportunity to the bidder shall have powers to
 disqualify the Bidder(s)/Contractor(s) from the Tender process or terminate the
Contract, if already executed or exclude the Bidder/Contractor from future
contract award processes. The imposition and duration of the exclusion will be
determined by the severity of transgression and determined by the Employer.
Such exclusion may be for ever or for a limited period as decided by the
Employer.

2) Forfeiture of Bid Security/Performance Security: If the Employer has

disqualified the Bidder(s) from the Tender process prior to the award of the
Contract or terminated the Contract or has accrued the right to terminate the
Contract according to 6.4.2(1), the Employer apart from exercising any legal
rights that may have accrued to the Employer, may in its considered opinion
forfeit the entire amount of Earnest Money Deposit, Performance Security of
the Bidder/Contractor as the case may be.

3) Criminal Liability: If it comes to knowledge of the Employer of conduct of a

Bidder or Contractor, or of an employee or a representative or an associate of
a Bidder or Contractor which constitutes corruption within the meaning of IPC
Act, or if the Employer has substantive suspicion in this regard, the Employer
will inform the same to law enforcing agencies for further investigation.

6.4.4 Previous Transgression

1) The Bidder declares that no previous transgressions occurred in the last 5

years with any other Company in any country confirming to the anticorruption
approach or with Central Government or State Government or any other
Central/State Public Sector Enterprises in India that could justify his exclusion
from the Tender process.

2) If the Bidder makes incorrect statement on this subject, he can be disqualified

from the Tender process or action can be taken for banning of business
dealings/ holiday listing of the Bidder/Contractor as deemed fit by the
Employer.

3) If the Bidder/Contractor can prove that he has resorted / recouped the damage
caused by him and has installed a suitable corruption prevention system, the
Employer may, at its own discretion, revoke the exclusion prematurely.

6.4.5 Equal Treatment of all Bidders/Contractors/Subcontractors

1) The Bidder(s)/Contractor(s) undertake(s) to demand from all subcontractors a

commitment in conformity with this Integrity Pact. The Bidder/Contractor shall
be responsible for any violation(s) of the principles laid down in this
agreement/Pact by any of its Sub-contractors/sub-vendors.

2) The Employer will enter into Pacts on identical terms as this one with all
Bidders and Contractors.
 3) The Employer will disqualify Bidders violate its provisions of Integrity
Agreement at any stage of the Tender process, from the Tender process.

6.4.6 Duration of the Pact

This Pact shall come into force at the submission of bid and expires for the
Contractor 12 months after the completion of work under the contract or till the
continuation of defect liability period, whichever is more and for all other bidders, till
the Contract has been awarded.

If any claim is made/lodged during the time, the same shall be binding and continue
to be valid despite the lapse of this Pacts as specified above, unless it is
discharged/determined by the Employer.

6.4.7 Other Provisions

1) Changes and supplements need to be made in writing. Side agreements have

not been made.

2) If the Contractor is a partnership or a consortium, this Pact must be signed by

all the partners or by one or more partner holding power of attorney signed by
all partners and consortium members. In case of a Company, the Pact must be
signed by a representative duly authorized by Board resolution.

3) Should one or several provisions of this Pact turn out to be invalid; the
remainder of this Pact remains valid. In this case, the parties will strive to come
to an agreement to their original intensions.

4) It is agreed term and condition that any dispute or difference arising between
the parties with regard to the terms of this Integrity Agreement / Pact, any
action taken by the Employer in accordance with this Integrity Agreement/
Pact or interpretation thereof shall not be subject to arbitration.

6.4.8 Legal and Prior Rights

All rights and remedies of the parties hereto shall be in addition to all the other legal
rights and remedies belonging to such parties under the Contract and/or law and
the same shall be deemed to be cumulative and not alternative to such legal rights
and remedies aforesaid. For the sake of brevity, both the Parties agree that this
Integrity Pact will have precedence over the Tender/Contact documents with regard
any of the provisions covered under this Integrity Pact.
 ARTICAL 7

REPRESENTATIONS AND WARRANTIES

7.1 Representations and warranties of the Contractor

The Contractor represents and warrants to the Employer that:

(a) it is duly organised and validly existing under the laws of India, and has full
power and Employer 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 Employer, the outcome of which may
result in the breach of this Agreement or which individually or in the aggregate
may result in any material i.npairment 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;
(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 Employer 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 Employer in connection therewith;

(l) all information provided by the {selected bidder/ Consortium Members} 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 this Agreement shall create any contractual relationship
or obligation between any Contractor's designers / design consultants / Sub-
contractors /agents and the Employer.

(n) Guarantees and Warranties:

Within 30 days of the date of Letter of Acceptance of the Tender, the

Contractor shall submit to the Employer:

(i) An Undertaking in the approved format from a parent company, the

identity of which shall have been submitted in writing to the Employer
prior to acceptance of the Tender and against which the Employer shall
have raised no objection.

(ii) A written Guarantee in the approved format from a parent company, the
identity of which shall have been submitted in writing to the Employer
prior to acceptance of the Tender and against which the Employer shall
have raised no objection.
(iii) A warrantee in the approved format from the Contractor.

In the event that the Contractor shall comprise two or more members, joint
venture or consortium each such respective member or corporation
responsible for execution of items/equipments not manufactured by them,
shall submit a parent company (manufacturer of item/equipment) Undertaking
and Guarantee.

Notwithstanding any other provision of the Contract:

 (i) submission by the Contractor of the requisite Performance security,
parent company Undertakings and written Guarantees shall be
condition precedent to the Contractor's entitlement to any payment,
under the Contract; and

(ii) failure by the Contractor to provide a Performance security or parent

company Undertakings or parent company Guarantees shall entitle the
Employer either to suspend the Works or to terminate the Contract
forthwith by notice in writing to that effect, notwithstanding that the
Contractor may have been permitted to proceed with the Works, and
the Contractor shall not be entitled to any compensation whatsoever as
a consequence of such suspension or termination.

7.2 Representations and warranties of the Employer

The Employer 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;

(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 Employer's 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.

7.3 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.
 ARTICAL 8

DISCLAIMER

8.1 Disclaimer

8.1.1 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
volume & restrictions, suitability and availability of access routes to the Site and all
information provided by the Employer 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 4.1.2 and Clause 7.3, the Employer 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 Employer in this regard.

8.1.2 The Contractor acknowledges and hereby accepts to have satisfied itself as to the
correctness and sufficiency of the Contract Price.

8.1.3 The Contractor acknowledges and hereby accepts the risk of inadequacy, mistake
or error in or relating to any of the matters set forth in Clause 8.1.1 above and
hereby acknowledges and agrees that the Employer shall not be liable for the same
in any manner whatsoever to the Contractor, or any person claiming through or
under any of them. .

8.1.4 The Parties agree that any mistake or error in or relating to any of the matters set
forth in Clause 8.1.1 above shall not vitiate this Agreement, or render it voidable.

8.1.5 In the event that either Party becomes aware of any mistake or error relating to any
of the matters set forth in Clause 8.1.1 above, that Party shall immediately notify the
other Party, specifying the mistake or error.

8.1.6 Except as otherwise provided in this Agreement, all risks relating to the Project shall
be borne by the Contractor; and the Employer shall not be liable in any manner for
such risks or the consequences thereof.
 ARTICAL 9

PERFORMANCE SECURITY

9.1 Performance Security (PS)

9.1.1 The Contractor shall, for the performance of its obligations hereunder during the
Construction Period and the Defects Liability Period, provide to the Employer,
within 15 (Fifteen) (This period may be decided by Employer depending upon value
of contract and may be varied vary up to 30 days) days of the date of this
Agreement, an irrevocable, and unconditional Bank Guarantee (BG) or an amount
equal to 10 (Ten) percent of the Contract Price from a branch in India of a
scheduled foreign bank or from a scheduled commercial bank in India in the form
set forth in Schedule-G, Annexure-II (the "Performance Security"). The
performance security shall be in the types and proportions of currencies in which
the contract has been acceprted.

The Performance Security shall be valid until the expiry of 180 (one hundred and
ninety) days after expiry of the Defect Liability Period including extended period, if
any. In case the time for completion gets enlarged, the contractor shall get the
validity of Performance Security extended to cover such enlarged time for
completion of the work and defect liability period.

9.1.2 The Parties expressly agree that in the event of failure of the Contractor to provide
the Performance Security in accordance with the provisions of Clause 9.1.1 and
within the time specified therein, the EPC Agreement shall be deemed to be null
and void abinitio. The Contractor agrees and confirms that its failure to provide the
Performance Security hereunder shall entitle the Employer to forfeit the Bid
Security.

9.2 Appropriation of Performance Security

9.2.1 Upon occurrence of a Contractor's Default, the Employer shall, without

prejudice to its other rights and remedies hereunder or in law, are entitled to
encash and appropriate the relevant amounts from the Performance Security.

9.2.2 Upon-such encashment and appropriation from the Performance Security,

the Contractor shall, within 30 (thirty) days thereof, replenish to original value
in case of partial appropriation and in case of appropriation of the entire
Performance Security provide a fresh Performance Security of full original
value.

9.3 Termination of contract in case of non-compliance of clause 9.2.2:

Failing of the contracor to submit Performance Security as under clause 9.2.2, the
Employer shall be entitled to terminate the contract in accordance with Article 20.1.

9.4 Release of Performance Security

 The Performance Security shall be refunded to the contractor:

(i) After expiry of 120 days of completion of the entire work or on issue of
Taking over Certificate by the Engineer, in accordance with Sub-Clause 16.4
and 16.6, whichever is later, one half of the Performance Security shall be
refunded to the Contractor, This shall not relieve the Contractor from his
obligations and liabilities, to make good the default that may be detected
during the Defects Liability Period:

(ii) The balance amount shall become due and shall be paid to the Contractor on
signing of the Performance Certificate after the expiry of the final Defects
Liability Period as per Clause 17.7 or issue of Certificate of Final Payment
whichever is later.

However in event of delay of more than 90 days to issue Certificate of Final

Payment by the Engineer after signing of Performance Certificate, the
Employer may refund the Performance Security to contractor after deducting
the dues ,if any, as informed by the Engineer.

9.5 Forfeiture on Termination of Contract

In the event of the contract being terminated under the provisions of the contract,
the Performance Security shall stand forfeitted in full and shall be absolutely at the
disposal of the Employer.
 ARTICAL 10

CONSTRUCTION SITE

10.1 The Construction Site of the Project shall comprise the site described in
Schedule-A and includes the Right of Way for Road and Rail Projects (herein
referred the "Site") and shall be provided by the Employer to the Contractor.
The Employer shall be responsible for:

(a) acquiring and providing physical possession of the Site by the Employer,
free from all encroachments and encumbrances, and free access thereto for
the execution of this Agreement; and

(b) obtaining environment clearance for the Project.

10.2 Procurement of the Site

10.2.1 After the signing of the Agreement, the Employer Representative and the
Contractor shall, within 7 (seven) days of the Notice to Proceed given by
Engineer, 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 specify in reasonable detail those parts of the Site to which
vacant Site 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 Site to the Contractor during the Construction Period under and in
accordance with the provisions of this Agreement and for no other purpose
whatsoever.

Same procedure is to be followed at each time of handing over the Site in parts.

10.2.2 The Employer shall make best efforts to provide the Site to the Contractor unless
revised Schedule A is agreed mutually in respect of all land included as per
schedule A, 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 10.3.

10.2.3 Notwithstanding anything to the contrary contained in Clause 10.2, the Employer
may specify the parts of the Site which shall be provided to the Contractor on the
dates specified in Schedule-A. Such parts shall also be included in the Appendix
prepared in pursuance of Clause 10.2.

10.3 Damages for delay in handing over the Site

In the event the Site or any part of the Site is not provided by the Employer on or
before the date(s) specified in Clause 10.2 because of:

i) any reason other than Force Majeure

 ii) breach of this Agreement by the Contractor

iii) delay in obtaining environment clearance by the Employer

The contractor shall be entitled for price adjustment under cluase 14.7 in addition
to Time Extension equal to the period for which Works could not be commenced
or continued, as the case may be, on account of failure to provide the Site
provided that:

(a) if any delays involve time overlaps, the overlaps shall not be additive; and

(b) such Time Extension shall be restricted only to the Works which are affected
by the delay in providing the Site.

10.4 Termination of Contract by either party

Provided further that if any Work(s) cannot be undertaken because either of

delay in handing over of the Site or the requisite clearances or approvals have
not been given within 1/8 (one eighth) time of completion or three months
whichever is higher, unless the Parties agree to the contrary, either party may
terminate the contract for affected component of contract, as the case may be.

In such eventuality of full termination of contract the Performance Guarantee of

the contractor shall be refunded and Employer shall pay an amount equal to 2%
of the value of affected component of work.

It is agreed term of the contract that contractor shall not be entitled for any other
cost and damages in case of termination of contract under this clause 10.4.

10.5 Site to be free from Encumbrances

Subject to the provisions of Clause 10.2, the Site shall be made available by the
Employer to the Contractor pursuant hereto free from all Encumbrances and
occupations and without the Contractor being required to make any payment to
the Employer on account of any costs, compensation, expenses and charges for
the acquisition and use of such Site for the duration of the Project Completion
Schedule. For the avoidance of doubt, it is agreed that the existing rights of way,
easements, privileges, liberties and appurtenances to the Site shall not be
deemed to be Encumbrances. It is further agreed that the Contractor accepts and
undertakes to bear any and all risks arising out of the inadequacy or physical
condition of the Site.

10.6 Protection of Site from encroachments

On and after signing the memorandum and/or subsequent memorandum referred

to in Clause 10.2.1, and until the issue of the Completion Certificate, the
Contractor shall maintain a round-the-clock vigil over the Site and shall ensure
and procure that no encroachment thereon takes place. 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 Agreement to place
or create any Encumbrance or security threat 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
Employer and undertake its removal at its cost and expenses.

10.7 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 and the performance of its obligations under this
Agreement.

10.8 Access to the Employer and Employer's Engineer

10.8.1 The Site given to the Contractor hereunder shall always be subject to the right of
access of the Employer and the Employer's Engineer and their employees and
agents for inspection, viewing and exercise of their rights and performance of
their obligations under this Agreement.

10.8.2 The Contractor shall ensure, subject to all relevant safety procedures, that the
Employer has un-restricted access to the Site during any emergency situation, as
decided by the Employer's Engineer.

10.9 Geological and archaeological finds

It is expressly agreed that mining, geological or archaeological rights do not form

part of this Agreement with the Contractor for the 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
Employer 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 Employer
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
Employer. It is also agreed that the Employer shall procure that the instructions
hereunder are issued by the concerned Government Instrumentality within a
reasonable period.
 ARTICAL 11

UTILITIES AND TREES

11.1 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, level
crossings, structures, or utilities on, under or above the Site are enabled by it to
keep them 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.

11.2 Shifting of obstructing utilities

The Contractor shall, in accordance with Applicable Laws and with assistance of
the Employer, cause shifting of any utility (including electric lines, water pipes and
telephone cables) to an appropriate location or alignment, if and only if such utility
or obstruction causes or shall cause a Material Adverse Effect on the construction,
operation or maintenance of the Project. The cost involved in shifting of utilities,
including charges to be paid to authority who owns the utility, shall be borne by the
Employer.

In the event of any delay, the contractor shall be entitled for price adjustment
under cluase 14.7 in addition to Time Extension equal to the period for which
Works could not be commenced or continued, as the case may be, on account of
shifting utilities provided that:

(a) if any delays involve time overlaps, the overlaps shall not be additive; and

(b) such Time Extension shall be restricted only to the Works which are affected
by the delay in providing the Site.

11.2.2 In the event of any delay in shifting of a utility by the entity owning such utility, the
Contractor shall be excused for failure to perform any of its obligations hereunder
if such failure is a direct consequence of delay on the part of the entity owning
such utility.

11.3 New utilities

11.3.1 The Contractor shall allow, subject to such conditions as the Employer may
specify, access to, and use of the Site for laying telephone lines, water pipes,
electric cables or other public utilities. Where such access or use causes any
financial loss to the Contractor, it may require the user of the Site to pay
compensation or damages as per Applicable Laws. For the avoidance of doubt, it
is agreed that use of the Site under this Clause 11.3 shall not in any manner
relieve the Contractor of its obligation to construct and maintain the Project in
accordance with this Agreement and any damage caused by such use shall be
restored forthwith at the cost of the Employer.
11.3.2 The Employer may, by notice, require the Contractor to connect any adjoining road
to the Project site, and the connecting portion thereof falling within the Site shall be
constructed by the Contractor at the Employer's cost in accordance with Article 12.

11.3.3 The Employer may by notice require the Contractor to connect, through a paved
road any other public facility or amenity to the Project, whereupon the connecting
portion thereof that falls within or outside the Site shall be constructed by the
Contractor on payment of the cost. The cost to be paid by the Employer to the
Contractor shall be determined by the Employer's Engineer.

11.3.4 In the event the construction of any Works is affected by a new utility or works
undertaken in accordance with this Clause 11.3, the Contractor shall be entitled to
a reasonable Time Extension as determined by the Employer's Engineer.

11.4 Felling of trees

The Employer shall assist the Contractor in obtaining the Applicable Permits for
felling of trees to be identified by the Employer for this purpose if and only if such
trees cause a Material Adverse Effect on the construction or maintenance of the
Project. The cost of such felling shall be borne by the Employer and in the event of
any delay in felling thereof for reasons beyond the control of the Contractor, he
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. The Parties hereto
agree that the felled trees shall be deemed to be owned by the Employer and shall
be disposed in such manner and subject to such conditions as the Employer may
in its sole discretion deem appropriate.
 ARTICAL 12

DESIGN AND CONSTRUCTION

12.1 Obligations prior to commencement of Works

12.1.1 Within 21 (twenty one) days of the Commencement Date, the Contractor shall:

(a) appoint its representative (the "Contractor’s Representative") duly authorised

to deal with the Employer/Engineer in respect of all matters under or arising out
of or relating to this Agreement;

(b) appoint a design director (the "Design Director") who will head the Contractor's
design units and shall be responsible for surveys, investigations, collection of
data, and preparation of preliminary and detailed designs;

(c) undertake and perform all such acts, deeds and things as may be necessary or
required before commencement of Works under and in accordance with this
Agreement, the Applicable Laws and Applicable Permits; and

(d) make its own arrangements for procurement of materials needed for the Project
under and in accordance with the Applicable Laws and Applicable Permits.

12.1.2 The Employer shall notify the engineer (the "Employer's Engineer"), in accordance
with the provisions of Article 5, as its representative for the Project within 14 (foureen)
days of the issue of letter of acceptance. The Employer shall notify to the Contractor
the name, Designation and address of the Engineer.

12.1.3 Project completion Schedule is set out under Schedule-I. 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 restrictions, especially in built up
areas, the alternative design criteria for such reaches may be worked out for review
of the Engineer.

The Contractor holds himself, and his designers as having the experience and
capability necessary for the design. The Contractor undertakes that the designers
shall be available to attend discussions with the Engineer at all reasonable times
during the Contract Period.

At the time of submission of bid, contractor shall provide details of Design Consultant
confirming with eligiblity crriteria set out in Annexure-1 of Schedule-I. The Design
Consultant shall be approved by Employer at the time of pre-qualifiction of contractor
subject to verification of information provided by the contractor. In case the Design
Consultant not found eligible, contractor shall be provided opportunity to furnish
name of another Design Consultant.

The designer shall be the same entity as proposed by the Contractor at the time of
pre-qualification, unless otherwise approved by the Employer. The Contractor shall
furnish Designer’s Warranty in the format approved by the Employer.
12.1.4 Proof Consultant

Unless and otherwise specified in the contract, the Contractor shall appoint a proof
check consultant (the “Proof Consultant”) out of approved names of consultants as
per Annexure-2 of Schedule-I after obtaining the consent of the Employer. The
Contractor shall also obtain the consent of the Employer for two key personnel of the
Proof Consultant who shall have adequate experience and qualifications in the
related feild of project. The Employer shall, within 14 (fourteen) days of receiving a
proposal from the Contractor hereunder, convey its decision, with reasons, to the
Contractor, and if no such decision is conveyed within the said period, the Contractor
may proceed with engaging of the Proof Consultant out of panel listed in Annexure-2
of Schedule-I.

12.1.5 Responsibilities of the Proof Consultant:

(i) To proof check the detailed calculations, drawings and designs, which have been
approved and signed by the Design Director in accordance with the provisions of
this Clause 12.1.6 and

(ii) To evolve a systems approach with the Design Director so as to minimise the
time required for final designs and construction drawings.

12.1.6 The Contractor shall submit the designs and drawings, duly certified by the Proof
Consultant, to the Engineer for review. Provided, however, that the Engineer may
require additional drawings for its review in accordance with Good Industry Practice.

The programme for submission of the design shall be finalised in consultation with
the Employer's Engineer.

12.2 Design and Drawings

12.2.1 Contractor’s Warranty of Design

a. The Contractor shall be fully responsible, for the suitability, adequacy, integrity,
durability and practicality of the Contractor’s proposal.

b. The Contractor warrants that the Works have been or will be designed,
manufactured, installed and otherwise constructed and to the highest standards
available using proven up-to-date good practice. 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.

c. The Contractor warrants that the Contractor’s Proposals meet the requirements
and is fit for the purpose thereof. Where there is any inadequacy, insufficiency,
impracticality or unsuitability in or of the Requirements or any part thereof, the
Contractor’s Proposal shall take into account, address or rectify such
inadequacy, insufficiency, impracticality or unsuitability at Contractor’s own cost.
d. The Contractor warrants that the Works will, when completed, comply with
enactments and regulations relevant to the Works.

e. The Contractor warrants that the design of the Works and the manufacture of
plant have taken or will have taken full account of the effects of the intended
manufacturing and installation methods, Temporary Works and Contractor’s
Equipment.

f. The Contractor shall also provide a guarantee from the Designer for the design
for suitability, adequacy, and practicality of design for Employer’s Requirements.

g. The Contractor shall indemnify the Employer against any damage, expense,
liability, loss or claim, which the Employer might incur, sustain or be subject to
arising from any breach of the Contractor’s design responsibility and/or warranty
set out in this Clause.

h. The Contractor further specifies and is deemed to have checked and accepted
full responsibility ‘for the Contractor’ s Proposal and warrants absolutely that the
same meets the Employer’s Requirements:

i. Notwithstanding that such design may be or have been prepared, developed

or issued by the Employer, any of Contractor’s consultants, his sub
contractors and/or his qualified personnel/persons or cause to be prepared,
developed or issued by others.

ii. Notwithstanding any warranties, guaranties and/or indemnities that may be or

may have been submitted by any other person.

iii. Notwithstanding that the same have been accepted by the Engineer

The Contractor shall be fully responsible for the Plants, Materials, goods,
workmanship, preparing, developing and coordinating all design Works to enable that
part of the Works to be constructed and/or to be fully operational in accordance with
the Contract’s requirements.

Apart from the Contractor, the above warranty shall also be applicable for his
designer. This warranty shall be a part of his sub contract with the designer and
should be made available at the time of signing of the Agreement.

No claim for additional payment or extension of time shall be entertained and/or 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 Employer
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 12.

12.2.2 In respect of the Contractor's obligations with respect to the design and Drawings of
the Project as set forth in Schedule-J, the following shall apply:

(a) The contractor shall within 48 (forty eight) [This time limit may vary
depending up on complexity of the project but should be decided by
Employer in bid document] days of commencement days furnish design and
architectural/stuctural drawings to Engineer and in such sequence as is
consistent with the Project Completion Schedule, three copies each of all
Drawings, to the Employer's Engineer for review;

(b) within 42 (forty two) 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 period of 28 (twenty eight) and may begin or continue Works
at its own discretion and risk;

(c) 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 within 21 days of receipt of communication fro
Engineer. The Engineer shall give its observations, if any, within 14 (fourteen)
days of receipt of the revised Drawings; and

(d) the Contractor shall be responsible for delays in submitting the Drawing as
set forth in Schedule-J caused by reason of delays in surveys and field
investigations, and shall not be entitled to seek any relief in that regard from
the Employer.

12.2.3 The Contractor's time and cost impacts of revisions arising from review by the
Engineer of designs caused by the Contractor's non-compliance with the
requirements of this Agreement shall be borne by the Contractor, unless there is a
Change in the Scope of the Works.

12.2.4 The Works shall be executed in accordance with the design reviewed by the
Engineer in accordance with the provisions of this Clause 12.2, and shall not
thereafter be amended or altered without the prior written approval of the Employer. If
a Party becomes aware of an error or defect of a technical nature in the design that
Party shall promptly give notice to the other Party of such error or defect.

12.3 Construction of the Project

The Contractor shall construct the Project as specified in Schedule-B and Schedule-
C, and in conformity with the Specifications & Standards, safety & Environmental
Regulations and other standards defined by applicable laws as set forth in Schedule-
 D. The Contractor shall be responsible for the correct positioning of all parts of the
Works, and shall rectify any error in the positions, levels, dimensions or alignment of
the Works. Contractor agrees and undertakes that the construction shall be
completed within the Project Completion Schedule and any extension of time granted
according to the provisions of this Agreement.

12.4 Samples

Contractor shall submit at his own cost the samples of materials for testing as per
requirement laid out in the Minimum Quality Assurance Programme forming part of
bid document. Testing charges including packing and forwarding charges shall be
born by the Employer but if the samples fail in testing, the tresting charges shall be
born by contractor.

12.5 As-Built Drawings and Documents

Prior to issue of any taking over certificate, the Contractor shall furnish to the
Employer and the Engineer a complete set of as-built Drawings, in 6 (six) hard copies
and in micro film form or in such other medium as may be acceptable to the
Employer, reflecting the Project as actually designed, engineered and constructed,
including an as-built survey illustrating the layout of the Project and setback lines, if
any, of the buildings and structures forming part of Project Facilities. The work shall
not be considered to be completed for the purpose of taking over under sub-clause
16.6 until such documents have been submitted to the Engineer.

12.6 Operation and Maintenance Manual

No later than 56 (fifty six) days prior to the Project Completion Date; the Contractor
shall, in consultation with the Engineer, evolve a maintenance manual (the
"Maintenance Manual") for the regular and preventive maintenance of the Project in
conformity with the Specifications and Standards, safety requirements and Good
Industry Practice, and shall provide 5 (five) copies thereof to the Employer's
Engineer. The Engineer shall review the Maintenance Manual within 14 (fourteen)
days and communicate its comments to the Contractor for necessary modifications, if
any.

12.7 Intellectual Property Rights and Royalties

12.7.1 Insofar as the patent, copyright or other intellectual property rights in any Plant,
Design Data, plans, calculations, drawings, documents, Materials, know-how and
information relating to the Works shall be vested in the Contractor, the Contractor
shall grant to the Employer, his successors and assignees a royalty-free, non-
exclusive and irrevocable licence (carrying the right to grant sub-licences) to use and
reproduce any of the works, designs or inventions incorporated and referred to in
such Plant, documents or Materials and any such know-how and information for all
purposes relating to the Works (including without limitation the design, manufacture,
installation, reconstruction, Testing, commissioning, completion, reinstatement,
extension, repair and operation of the Works).
12.7.2 If any patent, registered design or software is developed by the Contractor
specifically for the Works, the title thereto shall vest in the Employer and the
Contractor shall grant to the Employer a non-exclusive irrevocable and royalty-free
licence (carrying the right to grant sub-license) to use, repair, copy, modify, enhance,
adapt and translate in any form such Software for his own use.

12.7.3 If the Contractor uses proprietary software for the purpose of storing or utilising
records the Contractor shall obtain at his own expense the grant of a licence or sub-
licence to use such software in favour of the Employer and shall pay such licence fee
or other payment as the grantor of such licence may require provided that the use of
such software under the licence may be restricted to use relating to the design,
construction, reconstruction, manufacture, completion, reinstatement, extension,
repair and operation of the Works or any part thereof.

12.7.4 The Contractor's permission referred to above shall be given, inter alia, to enable the
Employer to disclose (under conditions of confidentiality satisfactory to the
Contractor) programmes and documentation for a third party to undertake the
performance of services for the Employer in respect of such programmes and
documentation.

12.7.5 Any software is developed under the Contract or used by the Contractor for the
purposes of storing or utilising records over which the Contractor or a third party
holds title or other rights, the Contractor shall permit or obtain for the Employer (as
the case may require) the right to use and apply that Software free of additional
charge (together with any modifications, improvements and developments thereof)
for the purpose of the design, manufacture, installation, reconstruction, testing,
commissioning, completion, reinstatement, extension, repair, modification or
operation of the Works, or any part thereof, or for the purpose of any Dispute.

The Employer reserves the right to use other Software on or in connection with the
Works.

12.7.6 The Contractor shall pay all traffic surcharges and other royalties, licence fees, rent
and other payments or compensation, if any, for getting stone, sand, gravel, clay or
other materials, machine, process, systems, work methods, or Contractor’s
Equipment required for the Works.

12.8 Traffic regulation and safety measures by the Contractor

12.8.1 The Contractor shall take all the required measures and make arrangements for the
safety of Users during the construction of the Project or a Section thereof in
accordance with the provisions of Specifications as applicable.

It shall provide, erect and maintain all such barricades, signs, markings, flags, and
lights as may be required by Good Industry Practice for the safety of the traffic
passing through the Section under construction or maintenance.
12.8.2 All works shall be carried out in a manner creating least interference to traffic passing
through the Project Site 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
shall be constructed by the Contractor at its own cost. The Contractor shall take prior
approval of the Engineer for any proposed arrangement for traffic regulation during
Construction and Maintenance, which approval shall be granted promptly and
reasonably.
 ARTICAL 13
TIME MANAGEMENT

13.1 Commencement of Works

The Contractor shall commence the Works on the date specified in the Letter of
Acceptance or if no date is specified in the Letter of Acceptance, on the date
specified in an instruction in writing to that effect from the Engineer (Notice to
Proceed). Thereafter the Contractor shall proceed with due diligence, without
delay, and in accordance with the programme or any revised or modified
programme of the Works. Time will be the essence of Contract and time for
Completion shall run from the date the Contractor is to commence the Works
under this Clause.

The Contractor shall not commence the construction, manufacture or installation of

the Works or of any part of the Works unless and until the Engineer has endorsed
the relevant Working Drawings in accordance with the Employer's Requirements.

13.2 Time for Completion

Project completion Schedule including setting out date of completion in part works,
if any, is defined under Schedule I.

Time is the essence of Contract and will remain so at all times during the
pendency of the Contract including the extended period of Contract. The
Contractor shall complete works as per completion schedule and ensure defect
free completion and have passed the tests on the completion, including integrated
testing where ever in the scope of work and commissioning of the whole of the
Works and/or parts thereof before the same is taken over by the Employer.

13.3 Mile Stones

The time allowed for execution of the Works and Mile Stones shall be as specified
in the Schedule I. In case, the contractor does not achieve a particular milestone
mentioned in schedule I, or the re-scheduled milestone(s) by the Employer, the
amount shown against that milestone shall be retained and will be adjusted
against the Liquidated Damages at the final grant of Extension of Time after
completion of work.

The total amount to be retained against all the mile stones shall not exceed 5% of
the Contract Value.

On failure to achieve a milestone, retaining of this amount from payments due to

the contractor shall be automatic without any notice to the contractor. However, if
the contractor catches up with the progress of work on the subsequent
milestone(s), the entire retained amount shall be released. In case the contractor
 fails to make up for the delay in subsequent milestone(s), amount mentioned
against each milestone missed subsequently also shall be retained. However, no
interest, whatsoever, shall be payable on such amount retained by the Employer.

13.4 Extension of Time

13.4.1 Without prejudice to any other provision of this Agreement for and in respect of
extension of time, the Contractor shall be entitled to extension of time in the
Project Completion Schedule (the "Time Extension") to the extent that completion
of any Project Milestone is or will be delayed by any of the following, namely:

(a) Delay in handing over site and obtaining Applicable Permits or approval by
the Employer, as the case may be;

(b) Change of Scope (unless modifications in the Scheduled Completion Date

has been agreed under Article 15);

(c) Occurance of a Force Majeure Event referred to in Article 21;

(d) Any delay, impediment or prevention caused by or attributable to the

Employer, the Employer's personnel or the Employer's other contractors on
the Site;

(e) Instruction of the Engineer to suspend the Works and the Contractor not
being in default as to reasons of suspension.

(f) Acts or omissions of other Designated Contractors in executing work not

forming part of this Contract and on whose performance, the performance of
the Contractor necessarily depends.

(g) Any act of prevention or Breach of Contract by the Employer and not
mentioned in this Clause.

(h) Any order of Court restraining the performance of the Contract in full or in any
part thereof.

(i) Any other event or occurrence which, according to the Employer is not due to
the Contractor’s failure or fault, and is beyond his control without Employer
being responsible for the same.

(j) Any other cause or delay which entitles contractor for time extension in
accordance with provisions of the contract.

However, the Contractor shall not be entitled to any extension of time where the
instructions or acts of the Employer or the Engineer are necessitated by or
intended to cure any default of or breach of Contract by the Contractor or where
any delay is due to:

(a) The failure of sub-contractor, to commence or to carry out work in due time,
 (b) Non-availability, or shortage of Contractor’s equipment, labour, utility
services, Plant and Materials,

(c) Inclement weather conditions, and

(d) The Contractor not fulfilling his obligations under clause 3.7.

13.4.2 If the contractor considers himself to be entitled to an extension of time for

completion,the Contractor shall, no later than 28 (twenty eight) days from the
occurrence of such an event or circumstance specified in clause 13.4.1, inform the
Employer's Engineer by notice in writing, with a copy to the Employer, stating in
reasonable detail the event or circumstances giving rise to the claim for Time
Extension. Provided that the period of 28 (twenty eight) 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:

Provided further that notwithstanding anything to the contrary contained in this

Agreement, Time Extension shall be due and applicable only for the Works which
are affected by the aforesaid events or circumstances and shall not in any manner
affect the Project Completion Schedule for and in respect of the Works which are
not affected hereunder.

13.4.3 In the event of the failure of the Contractor to submit to the Employer's Engineer
the notice in accordance with the provisions of Clause 13.4.2 within the time
specified therein, the Contractor shall not be entitled to any Time Extension and
his claim shall deem to be waived and extinguished for any such claims in future.
For the avoidance of doubt, in the event of failure of the Contractor as mentioned
above, the Employer shall be discharged from all liability in connection with the
claim.

13.4.4 The Employer's Engineer shall, on the receipt of claim notice in accordance with
the provisions of Clause 13.4.2, examine the claim expeditiously within the time
frame specified herein. In the event the Employer's Engineer requires any
clarifications to examine the claim, the Employer's Engineer shall seek the same
within 28 (twenty eight) from the date of receiving the notice. The Contractor shall,
on the receipt of the communication of the Employer's Engineer requesting for
clarification, furnish the same to the Employer's Engineer within 14 (fourteen) days
thereof. The Employer's Engineer shall, within a period of 14 (fourteen) days from
the date of receipt of such clarifications, forward in writing to the Employer its
determination of Time Extension. In the event of the failure of the Employer's
Engineeer to notify the Contractor the aforesaid Time Extension within a period of
91 (ninety one) days from the date of the receipt of the Contractor's notice for Time
Extension or from the date of reciept of the clarification from the contractor,
whichever is later, the Employer shall be deemed to have granted the Time
Extension as specified in the contractor’s notice hereunder.
 Recovery of Damages under this Clause shall be without prejudice to the rights of
the Employer under this Agreement and the right to termination under Clause
20.1.

Provided that when determining each extension of time under this Clause 13.4.4,
the Employer's Engineer shall review previous determinations and may increase,
but shall not decrease, the total Time Extension.

13.4.5 If the event or circumstance giving rise to the notice has a continuing effect:

(a) a fully detailed claim shall be considered as interim;

(b) the Contractor shall, no later than 14 (fourteen) 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 Employer's Engineer may reasonably require; and

(c) the Contractor shall send a final claim within 28 (twenty eight) days after the
end of the effects resulting from the event or circumstance.

(c) The Employer's Engineer shall examine the final claim in accordance with the
provisions of Clause 13.4.4.

13.5 Extension of time for completion for other reasons

The Contractor shall not be entitled to an extension of time by reason of any delay
to any activity in the carrying out of the Works unless in the opinion of the
Engineer such delay results in or may be expected to result in a delay to
completion of the Works, or achievement of any Stage by the relevant Key Date.
Whether or not the Contractor fails to achieve any Milestone by reason of any
delay shall not by itself be material to the Contractor's entitlement to an extension
of time.

Any extension to a Key Date shall not by itself entitle the Contractor to an
extension to any other Key Date.

13.6 Extension of time for delays due to Contractor’s fault

If the delay in the completion of the whole Works or a portion of the Works for
which an earlier completion period is stipulated, is due to the Contractor’s failure or
fault, and the Engineer is of the view that the remaining Works or the portions of
Works cannot be completed by the Contractor in a reasonable and acceptable
short time, then, the Employer may allow the extension to Contractor or further
extension of time at its discretion indicating detailed completion plan how the
remaining work is to be completed with clear mention of their intension to impose
liquidated damages, for delay in completion, as he may decide after completion of
work/section(s).

13.7 Liquidated Damages for Delay

Time is the essence of the Contract. In the event of failure on part of contractor to
achieve timely completion of the project, including any extension of time
granted under Clause 13.4, he shall, without prejudice to any other right or
remedy available under the law to the Employer on account of such breach, pay
as agreed liquidated damages to the Employer in a sum calculated in terms of
percentage of the contract value. Both the Parties expressly agree that total
amount of liquidated damages shall not exceed 5% (five percent) of contract
value.

In the event of failure to achieve completion date of the project or completion date
of Section(s)/Part Work as set forth in Schedule I, including any extension of time
granted under Clause 13.4, maximum amount of liquidated damages to be paid by
the contractor shall be limited to 5% (five percent) of contract value or cost of such
respective section/part of the work as the case may be.
the damages payable by the contractor, whether on per diem basis or otherwise,
are mutually agreed genuine pre-estimated loss and without any proof of actual
damage likely to be suffered and incurred by the Employer and Employer is
entitled to receive the same and are not by way of penalty.

The Employer may, without prejudice to any other method of recovery, deduct the
amount of such damages from any sum due, or to become due to the Contractor
or the amount retained under clause 13.3 for non achievement of the Mile Stones
or from performance security.

The payment or deduction of such damages shall not relieve the Contractor from
his obligations to complete the Works, or from any other of his duties, obligations
or responsibilities under the Contract.

The Contractor shall use and continue to use his best endeavours to avoid or
reduce further delay to the Works, or any relevant Stages.

At any time after the Employer has become entitled to liquidated damages, the
Engineer may give notice to the Contractor under Clause 20.1, requiring the
Contractor to complete the Works within a specified reasonable time. Such action
shall not prejudice the Employer's entitlements to recovery of liquidated damages
under this Clause and to terminate contract under Clause 20.1. For avoidance of
doubt, Employer is entitled for liquidated damages in addition to forfeit the
performance security in case of termination of contract under clause 20.1.

The Employer shall notify the Contractor of their intension to impose liquidated
damages in pursuance with the provisions of this Clause 13.7 within 56 days of
issue of taking over certificate for the entire project or the section(s) as the case
may be. Provided that no deduction on account of liquidated damages shall be
effected by the Employer without notifying the Contractor of its intension to impose
the liquidated damages, and taking into consideration the representation, if any,
made by the Contractor within 28 (twenty eight) days of such notice. The Employer
 shall convey to contractor the liquidated damages imposed up on him not later
than 84 days after reciept of representation from contractor.

It is agreed term of the contract that the decision of the Employer as to the
liquidated damages payable by the Contractor under this Clause shall be final and
binding and outside the scope of arbitration.

13.8 Rate of Progress

If for any reason which does not entitle the Contractor to an extension of time, the
rate of progress of the Works is at any time, in the opinion of the Engineer, too
slow to ensure timely completion of the Works or achievement of any Stage by the
relevant Key Date the Engineer may so notify the Contractor in writing. The
Contractor shall thereupon take such steps as are necessary, or in default of
taking such steps, shall take such steps as the Engineer may reasonably instruct
in writing, to expedite progress so as to complete the Works or any Section in time
or achieve any Stage by the relevant Key Date. The Contractor shall not be
entitled to any additional payment for taking such steps.

If any steps taken by the Contractor in meeting his obligations under this Clause
cause the Employer to incur additional costs, such costs shall be recoverable from
the Contractor by the Employer, and shall be deducted by the Employer from any
sum due, or to become due, to the Contractor.

If, in the opinion of the Engineer, the steps taken by the contractor to expedite the
progress are not adequate, the Engineer may take recourse as per Clause 20.2 of
this GCC.

13.9 Incomplete Works

In the event the Contractor fails to complete the Works in accordance with the
Project Completion Schedule, including any extension of time granted under
Clause 13.4, the Contractor shall endeavour to complete the balance work
expeditiously.
 ARTICAL 14

CONTRACT PRICE AND PAYMENTS

14.1 The Contract Price – Inclusions and Exclusions

14.1.1 i) Unless otherwise stated in the Special Conditions of Contract the Contract
Price, subject any to any adjustment thereto in accordance with the Contract
shall be all inclusive (including all Taxes Duties and fees, Cess, Royalties
and ESI/EPF/Insurance contributions of contractor’s staff and insurance of
project etc. as applicable on the last due date of submission of bid.

ii) Nothing extra shall be payable over the quoted rates, notwithstanding any
provision to the contrary in any law for the time being in force, save and
except what is specifically provided in General or Special Conditions of
Contract.

Note: Applicability of service tax or any other specific type of tax may be
addressed in bid document.

14.1.2 Reimbursement of levy/taxes/Cess if levied after receipt of tenders

(i) Nothing in this 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 this Agreement.

However, if any further new tax or levy or cess is imposed by Statute/Act,

after last due date of submission of bid and the contractor thereupon
necessarily and properly pays such taxes/levies/cess, the contractor shall be
reimbursed the amount so paid, provided such payments, if any, is not, in the
opinion of the Employer (whose decision shall be final and binding on the
contractor) attributable to delay in completion of work on part of the
contractor.

(ii) The contractor shall keep necessary books of accounts and other documents
for the purpose of this condition as may be necessary and shall allow
inspection of the same by a duly authorized representative of the Employer
or Engineer and shall also furnish such other information/document as the
Employer/Engineer may require from time to time.

(iii) If any tax on contract price applicable on the last due date of submission of
bid is abolished then it’s negative impact shall be passed to the Employer by
the contractor and contract price shall be reduced accordingly.

(iv) The contractor shall, within a period of 28 (twenty eight) days of the
imposition of any such new tax/ levy/ cess or abolition of tax give a written
notice thereof to the Engineer that the same is given pursuant to this
condition, together with all necessary information relating thereto.

14.1.3 Variation in Rate of Taxes/Duties/Cess

 The Contract Price shall not be adjusted and contractor shall have no Claim on
account of any increase in cost and Employer shall have no claim on account of
decrease in cost resulting from any variation in rate of taxes, duties, Cess, levies
applicable on individual commodities or applicable on contract price (unless
specified in the agreement) as applicable on the last due date of submission of
bid to the completion date including the date of the extended period of Contract.

14.1.4 Maintaining Records and Availing Exemptions

i) In the event of exemption of custom duties, excise duties, CST/VAT or any

other cess/levy being granted by the Government in respect of the Works,
the benefit of the same shall be passed on to Employer. The Contractor shall
therefore maintain meticulous records of all the taxes and duties paid and
provide the same as and when required by the Employer, so that the
Employer is able to avail the reimbursement for which Employer may issue a
procedure order separately. Alternatively, the Employer may direct the
Contractor to get the reimbursements based on exemption certificates /
government’s order and it shall be obligatory on part of the Contractor to get
the reimbursements from the statutory authorities and pass on the benefit to
Employer.

ii) In case of Contractor’s failure in availing the exemptions as stipulated above,

the recovery of equivalent amount will be made from Contractor’s dues.

Adjustment in contract price on account of inflation shall be done only if a “Price

Variation Formula” is given in the contract, otherwise it will be a fixed price
contract.

14.2 Advances

14.2.1 Mobilization Advance

Mobilization advance not exceeding 10% of the original contract value may be
given, if requested by the contractor in writing. No advance shall be given after
40% (or any other percentage as specified in the bid document) of the
original contract amount has been paid.

Such advance shall be in two instalments (or more number of instalments as

specified in the bid document). The first instalment of such advance shall
be released by the Engineer to the contractor on a request made by the
contractor to the Engineer in this behalf. The second instalment shall be released
by the Engineer only after the contractor furnishes a proof of the satisfactory
utilization of the first instalment to the entire satisfaction of the Engineer.

Before any instalment of advance is released, the contractor shall execute a

Bank guarantee Bond (Annexure-III, Schedule-G) from scheduled Bank for the
110% amount of advance & initially valid till date of completion of the work. This
shall be kept renewed from time to time to cover the balance amount and likely
period of complete recovery, together with interest.
 The amount of Bank Guarantee will in types and proportion of currencies in which
the bid has been accepted.

Contractor may submit one or multiple Bank Guarantees which shall be released
and returned to contractor as and when recovery of the advance is affected. At
any point of time the amount of Bank Guarantees shall not be less than 110%
amount of the advance outstanding.

Provided always that provision of Clause 14.2.1 shall be applicable only

when so provided in the contract.

14.2.2 Plant, Machinery and Shuttering Advance

The amount of advance shall be restricted to 5% percent of the original contract

value. No such advance shall be paid on any plant, equipment & machinery and
shuttering material and of a value less than Rs. 1000000/-. (The limit of
Rs.1000000 may vary depending upon cost of work and to be specified by
Employer in bid document).

No advance shall be given after 40% (or any other percentage as specified in
the bid document) of the original contract amount has been paid.

An advance for plant, equipment & machinery and shuttering material required
for execution of the work by the contractor and brought to site by the Contractor
may be given if requested by the contractor in writing within one month of
bringing such plant, equipment & machinery and shuttering material to site. In
case of purchase of new plant, equipment & machinery and shuttering material
specifically purchased for the work, advance may be paid against submission
firm purchase order and invoice received.

The advance will only be given if the plant/machinery has been purchased for this
contract and not for those which are already in the books of the contractor. The
plant and machinery shall be valued by the Engineer as follows:

a. New Items: 80% of purchase price

b. Used items in working order: 80% of the depreciated value as
assessed by the Engineer

This advance shall further be subject to the condition that such plant and
equipment are:

(a) Considered by the Engineer to be necessary for the works and will add to
the expeditious execution of work and improve the quality of work;

(b) In working order and are maintained in working order and;

(c) Hypothecated to the Employer as specified by the Engineer before the

payment of advance is released.

The contractor shall not be permitted to remove from the site such hypothecated
 plant and equipment without the prior written permission of the Engineer. The
contractor shall be responsible for maintaining such plant and equipment in good
working order during the entire period of hypothecation failing which such
advance shall be entirely recovered in lump sum.

For this purpose, steel scaffolding, steel shuttering and steel form work shall be
treated as plant and equipment.

The contractor shall insure the Plant and Machinery for which mobilization
advance is sought and given, for a sum sufficient to provide for their replacement
at site. Any amounts not recovered from the insurer will be borne by the
contractor.

14.2.3 Interest and Recovery

The mobilization advance under 14.2.1 and plant and machinery advance and
14.2.2 above shall bear simple interest at Base Rate of State Bank of India as
prevailing on last date of the previous calendar month of making payment of first
instalment plus 2% and shall be calculated from the date of payment to the date
of recovery, both days inclusive, on the outstanding amount of advance.
Recovery of such sums advanced shall be made by the deduction from the
contractors bills commencing after first 10% (ten per cent) of the gross value of
the work is executed and paid, on pro-rata percentage basis to the gross value of
the work billed beyond 10% (ten per cent) in such a way that the entire advance
is recovered by the time 80% (eighty per cent) of the gross value of the contract
is executed and paid, together with interest due on the entire outstanding amount
up to the date of recovery of the instalment.

The contractor shall always have the option to have the recoveries
commenced and / or completed earlier, and / or to have recoveries affected
in instalments of higher amount and also to repay part or whole of the
advance by direct payment rather than through on-account Bills.

14.2.4 Advance to be used only for this Work

The advances shall be used by the Contractor strictly for the purpose of the
Contract, and for the purpose for which they are paid. Under no circumstances,
shall the advances be diverted for other purposes. Any such diversion shall be
construed as a breach of the Contract and the Contractor shall be asked to return
the advance at once and pay 18% (eighteen per cent) interest per annum till the
advance is recovered back from him. The Contractor shall return the advance
and pay the interest in one go without demur.

Employer retains the right for any other remedy prescribed for breach of Contract
in this regard.

The Contractor, if required by the Engineer shall provide the details of utilisation
of Mobilization advance.
14.2.5 Advance against Materials brought at Site

The contractor, on request and executing an Indemnity Bond in the form to be

specified by the Engineer, shall be entitled to be paid during the progress of the
execution of the work up to 80% of the assessed value of any materials which
are in the opinion of the Engineer non-perishable, non-fragile and non-
combustible and are in accordance with the contract and which have been
brought on the site in connection therewith and are adequately stored
and/or protected against damage by weather or other causes. No advance
shall be admissible against the materials not incorporated in the works at
the time of acceptance of bid.

The total of such advance payment on account of construction materials at a time

shall be limited to 3% (three per cent) of original contract value or likely average
consumption of such materials for three months, whichever is less and at any
time the total outstanding provisional payment against material at site shall not
exceed 4% (four per cent) of the original contract value. The valuation of the
average consumption of such main construction materials shall be approved by
the Engineer, whose decision shall be final.

Advance shall also be admissible on other items of perishable nature, fragile and
combustible nature with the approval of Engineer provided the contractor
provides a comprehensive insurance cover for the full cost of such materials. No
advance shall be paid on high risk material such ordinary glass, vitreous
chinaware sanitary items, sand, petrol, diesel etc. and any other item as decided
by Engineer.

No advance shall be paid against materials brought at site without prior approval
of Engineer.

Items where Secured Advance shall be admissible without insurance, with

comprehensive insurance and high risk items for which no Secured Advance
shall be paid are listed in Annexure-V of Schedule G.

14.2.6 Recovery of Advance against materials

(i) When materials on account of which an advance has been made under
14.2.5 are incorporated in the work, the amount of such advance shall
be recovered/deducted from the next payment made under any of the
clause or clauses of this contract.

(ii) Amount of Advance against each material shall be recovered within 3

months from date of payment. In case recovery could not be made due to
any reason within the control of contractor, interest will be charged as per
Clause 14.2.3.

14.3 Procedure for estimating the payment for the Works

14.3.1 The Employer shall make interim payments to the Contractor as certified by the
Employer's Engineer on completion of a stage, as specified and valued in
accordance with the proportion of the Contract Price assigned to each item and
its stage in Schedule-H.

14.3.2 The Contractor shall base its claim for interim payment for the stages completed
till the end of the month for which the payment is claimed, valued in accordance
with Clause 14.3.1, supported with necessary particulars and documents in
accordance with this Agreement:

14.3.3 The proportion assigned to an item will apply only to the Contract Price stated in
this Agreement. It shall not apply to any additions or reductions to the Contract
Price arising from the issue of any Change of Scope Order. A Change of Scope
Order shall specify the stages of interim payments for the works covered by such
order.

14.4 Stage Payment Statement for Works

14.4.1 The Contractor shall submit a statement (the "Stage Payment Statement"), in 3
copies, by the 7th (seventh) day of the month to the Employer's Engineer in the
form set forth in Annexure-I of Schedule-H, showing the amount calculated in
accordance with Clause 14.3 to which the Contractor considers himself entitled
for completed stage(s) of the Works. The Stage Payment Statement shall be
accompanied with the progress reports and any other supporting documents.

14.5 Stage Payment for Works

14.5.1 No amount will be certified or paid until the Employer has received, and
approved, the Performance security and the parent Company Undertakings and
Guarantees wherever applicable in accordance with Clause 7.1 and insurance in
accordance with Article 22.

14.5.2 Within 7 (seven) days of receipt of the Stage Payment Statement from the
Contractor pursuant to Clause 14.4, the Engineer shall broadly determine the
amount due to the Contractor and recommend the release of 90 (ninety) percent
of the amount so determined as part payment against the Stage Payment
Statement, pending issue of the Interim Payment Certificate (the "IPC") by the
Engineer. In case of discrepency or for want of correction in the bill submitted by
contractor is returned back to the contractor, then time of 7 days will be
considered from submission of bill after attending observations of the Engineer.
Within 7 (seven) days of the receipt of recommendation of the Engineer, the
Employer shall make payment to the contractor either by cheque or through
electronic payment directly to the Contractor's bank account as agreed between
the parties.

14.5.3 Within 14 (fourteen) days of the receipt of the Stage Payment Statement referred
to in Clause 14.4 , the Engineer shall determine and shall deliver to the Employer
and the Contractor an IPC certifying the amount due and payable to the
 Contractor, after adjusting the payments already released to the Contractor
against the said statement.

14.5.4 In cases where there is a difference of opinion as to the value of any stage, the
Engineer's view shall prevail.

14.5.5 The Engineer may withhold from payment:

(a) the estimated value of work or obligation that the Contractor has failed to
perform in accordance with this Agreement and the Engineer had notified
the Contractor; and

(b) the estimated cost of rectification of work done being not in accordance with
this Agreement.

14.5.6 Balance payment against IPC shall be made to contractor by the Employer within
28 (twenty eight) days of submission of Stage Payment Statement to the
Engineer.

14.5.6 Payment by the Employer shall not be deemed to indicate the Employer’s
acceptance, approval, consent or satisfaction with the work done.

14.6 Damages in case of delay in stage payment

14.6.1 The Contractor may claim damages under clause 14.6.2 if stage payment is
delayed by the Employer beyond the period specified under clause 14.5.

14.6.2 In the event of the failure of the Employer to make payment to the Contractor
within the time period stated in this Clause 14.5, the Employer shall be liable to
pay to the Contractor simple interest at the Base Rate of State Bank of India plus
2% on all sums remaining unpaid from the date on which the same should have
been paid, calculated in accordance with the provisions of Clause 14.5.

14.7 Price Adjustment for Works

14.7.1 The amounts payable to the Contractor for the Works shall be adjusted in
accordance with the provisions of this Clause 14.7.

14.7.2 Subject to the provisions of Clause 14.7.3, the amounts payable to the Contractor
for Works, shall be adjusted in the IPC issued by the Authority's Engineer for the
increase or decrease in the index cost of inputs to the Works, by the addition or
subtraction of the amounts determined by the formulae prescribed in Clause
14.7.4.

14.7.3 To 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 this
Agreement, the costs and prices payable under this Agreement shall be deemed
to include the amounts required to cover the contingency of such other increase
or decrease of costs and prices.
14.7.4 The Contract Price shall be adjusted for increase or decrease in rates and price
of labour, cement, steel reinfocement bars, strucrural steel, bitumen, fuel and
lubricants, and other material inputs in accordance with the principles,
procedures and formulae specified below (Employer may include any other item
depending up on nature and type of work provided cost of such item should be
more than 5% of estimated cost of work and its percentage should be
predetermined in the bid document):

(a) Price adjustment shall be applied on completion of the specified stage of

the respective item of work in accordance with Schedule-H;

(b) Adjustment for each item of work/stage shall be made separately.

(c) Price adjustment for changes in cost shall be paid in accordance with the
following formulae:

Cost of work on which Price Adjustment is payable;

W1 = Gross Value of work done in one quarter;

W2 = Full assesses value of advance paid in the quarter against materials

brought at site;

W3 = Full assesses value of advance recovered in the quarter against

materials brought at site;

W = Cost of work on which price adjustment is payable/recoverable

W = W1 + (W2 – W3)

V = 0.85 W [VL(Ll-Lo)/Lo + VM(MI-Mo)/Mo]

VL and VM are the predetermined percentages of labour and each type of

material.

Ll : Average of Minimum wage in rupees of an unskilled adult male

mazdoor alone, as notified by Ministry of Labour of respective State
Government/UT as applicable for the quarter to which the IPC
relates.

Lo : Minimum daily wage in rupees of an unskilled adult male mazdoor

alone, as notified by Ministry of Labour of respective State
Government/UT as on the last stipulated date of submission of bid.

MI : The average of WPI for the commodity in subject for the quarter to
which IPC relates.

Mo : The WPI for the commodity in subject as on the last stipulated date
of submission of bid.

14.8 Price Adjustment for Maintenance Works

 Lump sum payment for Maintenance shall be adjusted every quarter 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 quarterly lump sum payment

P = Quaterly lump sum payment due to the Contractor duly adjusted for
any payment reduction for non compliance of the Maintenance
obligations

W° = The wholesale price index (all commodities) for the month of

completion of work.

W¹ = The average wholesale price index (all commodities) for the quarter
under consideration for determining the price adjustment.

14.9 Restriction on Price Adjustment

Price adjustment shall be due and payable only in respect of the Works which are
constructed in accordance with the original scope of Project.

14.10 Payments agianst IPC to be regarded as advances

All such interim payments shall be regarded as payment by way of advances

against final payment only and shall not preclude the requiring of bad, unsound
and imperfect or unskilled work to be rejected, removed, taken away and
reconstructed or re-erected. Any certificate given by the Engineer relating to the
work done or materials delivered forming part of such payment, may be modified
or corrected by any subsequent such certificate(s) or by the final payment
certificate and shall not by itself be conclusive evidence that any work or
materials to which it relates is/are in accordance with the contract and
specifications. Any such interim payment, or any part thereof shall not in any
respect conclude, determine or affect in any way powers of the Engineer under
the contract or any of such payments be treated as final settlement and
adjustment of accounts or in any way vary or affect the contract.

14.11 Employer’s Claim

If the Employer considers itself to be entitled to any payment from the Contractor
under any Clause of this Agreement, it shall give notice and particulars to the
Contractor 14 (fourteen) days before making the recovery from any amount due
to the Contractor, and shall take into consideration the representation, if any,
made by the Contractor in this behalf, before making such recovery.

14.12 Final Payment Statement

14.12.1 Within 56 (fifty six) days after receiving of the Completion Certificates and upon
completion of all incomplete and outstanding works specified therein pursuant to
Clause 16.2, the Contractor shall submit to the Engineer for consideration six
 copies of a Final Payment Statement (the "Final Payment Statement") for
Works, with supporting documents showing in detail, in the form prescribed by
the Engineer:

(a) the summary of Contractor's Stage Payment bills for Works as submitted in
accordance with Clause 14.4;

(b) the amounts received from the Employer against each bill; and

(c) any further sums which the Contractor considers due to it from the
Employer.

If the Engineer disagrees with or cannot verify any part of the Final Payment
Statement, the Contractor shall submit such further information as the Engineer
may reasonably require. The Engineer shall deliver to the Employer:

(a) an IPC for those parts of the Final Payment Statement which are not in
dispute, along with a list of disputed items which shall then be settled in
accordance with the provisions of Article 23; or

(b) a Final Payment Certificate if there are no disputed items.

14.13 Final Payment Certificate

14.13.1 Within 91 (ninety one) days after receipt of the Final Payment Statement for
Works under Clause 14.12, and the written discharge under Clause 14.13, and
there being no disputed items of claim, the Engineer shall deliver to the
Employer, 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 this
Agreement or otherwise; and

(b) after giving credit to the Employer for all amounts previously paid by the
Employer and for all sums to which the Employer is entitled, the balance, if
any, due from the Employer to the Contractor or from the Contractor to the
Employer as the case may be.

14.13.2 The Employer shall pay to the Contractor the amount which is finally due, less all
amounts previously paid by the Employer and any deductions for the amounts
the Employer considers itself to be entitled in accordance with this Agreement,
and shall provide the particulars thereof to the Contractor.

14.13.3 payment against Final Payment Certificate shall be made no later than 56 (fifty
six) days from the date of issue of the Final Payment Statement for Works.

14.14 Damages in case of delay in final payment

In the event of the failure of the Employer to make payment to the Contractor
within the time period stated in this Clause 14.13.3, the Employer shall be liable
to pay to the Contractor simple interest at the rate of Primary Landing Rate of
 State Bank of India plus 2% on sum due to be paid under final payment
certificate.

14.15 Calculation of Payment in Foreign Currency

All payments made by the Employer pursuant to the terms of the Contract shall
be in the currency or currencies specified in the Contract. Wherever any sum in a
foreign currency has to be converted into Indian Rupees for any purpose, the
exchange rate to be employed for such conversion shall be the selling rate of
exchange at the close of business of the State Bank of India 28 days before the
latest date of submission of bids.

14.16 Payment by Cheque and E-Payment

All payments to the Contractor will be made by cheque or “E-Payment” as agreed

between both the parties.

14.17 Tax Deduction at Source

Tax deductions will be made at source as per statutory requirement from every
payment made to the contractor at rates notified from time to time.

14.18 Production of Records

(i) The Contractor shall, whenever required by the Engineer, produce or cause
to be produced for examination by the Engineer, any quotation, invoice,
cost or other account books, vouchers, receipts, letters, memoranda or any
copy of or extract from any such documents and also furnish information
and returns, as may be required, relating to the execution of this Contract or
relevant for verifying or ascertaining the cost of execution of this Contract or
ascertaining the Materials supplied by the Contractor are in accordance with
the Specifications laid down in the Contract. The Engineer’s decision on
the question of relevancy of any documents, information or returns shall be
final and binding on the parties.

(ii) If any part or item of the work is allowed to be carried out by a sub-
Contractor, assignee or any subsidiary or allied firm, the Engineer shall
have power to secure the books of such sub-Contractor, assignee or any
subsidiary or allied firm through the Contractor, and shall have power to
examine and inspect the same. The above obligations are without
prejudice to the obligations of the Contractor under any statute, rules or
order.

14.19 Withholding and Lien for Sums Claimed

(i) The Employer shall have lien over all or any moneys that may become due
and payable to the Contractor under the Contract, and / or over the deposit
 of Performance Security or other amount or amounts made under the
Contract and which may become payable to the Contractor.

(iii) And further, unless the Contractor pays and clears immediately on demand
any claim of the Employer, the Employer shall at all times be entitled to
deduct the amount of the said claim from the moneys, securities and / or
deposits which may have become or will become payable to the Contractor
under these presents, or under any other Contract or transaction
whatsoever between the Employer and the Contractor even if the matter
stands referred to Arbitration. The Contractor shall have no claim for any
interest or damage whatsoever in respect of any amounts withheld or
treated as withheld under the lien referred to above and duly notified as
such to the Contractor.

14.20 Post Payment Audit

It is an agreed term of the Contract, that the Employer reserves to himself the
right to carry out a post payment audit and / or technical examination of the
Works, Interim payments and the Final payment including all supporting
vouchers, abstracts, etc., and to make a claim on the Contractor for the refund of
any excess amount paid to him, if as a result of such examination, any over-
payment to him is discovered to have been made in respect of any work done or
alleged to have been done by the Contractor, under the Contract. If any under-
payment is discovered, the same shall be paid by the Employer to the Contractor.
Such payments or recoveries, however, shall not carry any interest.
14.21 Recovery of Money due to the Employer

All damages (without limitation including liquidated damages), costs, charges,

expenses, debts, or sums for which the Contractor is liable to the Employer under
any provision of the Contract may be deducted by the Employer from monies due
to the Contractor under the Contract (without limitation including liquidated
damages) and the Employer shall have the power to recover any balance not so
deducted from monies due to the Contractor under any other contract between
the Employer and the Contractor.

When the Contractor has assigned to a third party the right to receive monies
due, or, to become due, under the Contract to the Contractor or charged such
monies in favour of a third party, the Employer's right to deduct damages (without
limitation including liquidated damages), costs, charges, expenses, debts or
sums for which the Contractor is liable to the Employer from monies due to the
Contractor under the Contract shall be limited to the right expressed above.
14.22 Bonus for Early Completion

In the event that the Work completion date occurs prior to the Scheduled
Completion Date, the Contractor shall be entitled to receive a payment of bonus
equivalent to 1 (one) percent of the Contract Price for each period of 30 (thirty)
days or part thereof by which the Work Completion Date precedes the Scheduled
Completion Date, but subject to a maximum of 5% (five per cent) of the Contract
Price. Provided, however, that the payment of bonus, if any, shall be made only
after the issue of the Completion Certificate. For the avoidance of the doubt, the
Parties agree that for the purpose of determining the bonus payable hereunder,
the Scheduled Completion Date shall be adjusted to take account of an
applicable Time Extension, if any, granted for the entire Work, and the Contract
Price shall always be deemed to be the amount specified at the time of
acceptance of bid, excluding any revision thereof for any reason.

Provided always that provision of Clause 14.22 shall be applicable only

when so provided in the contract.
 ARTICAL 15

VARIATIONS

15.1 Right to Vary

All Variations shall be recorded in a written instruction from the Engineer either
as a Contractor's Variation or as an Employer's Variation, and shall not be
implemented by the Contractor without such an instruction in writing from the
Engineer. No Variation shall in any way vitiate or invalidate the Contract. The
Contractor shall not make any alteration and/or modification of the Works, unless
and until the Engineer instructs or gives consent to a Variation.

If the Construction and/or Manufacture Documents or Works are not in

accordance with the Contract or because of any default of the contractor, the
rectification shall not constitute a Variation.

15.2 Variation/Change of Scope

Variation/Change of Scope shall mean:

(a) Change in specifications of any item of Works;

(b) Omission of any work from the Scope of the Project except under Article 19;
provided that the Employer shall not omit any work under this clause in
order to get it executed by any other contractor; and / or

(c) Any additional work, Plant, Materials or services which are not included in
the original Scope of the Project, including any associated Tests on
completion of construction.

(d) Works/items/plants that are taken up in lieu of works/items/plants as set out

in the original scope of work

15.3 Contractors Variations

15.3.1 Variation Proposals

If the Contractor determines at any time that a Variation/Change of Scope will, if

adopted, (i) accelerate completion, (ii) reduce the cost to the Employer of
executing, maintaining or operating the Project, (iii) improve the efficiency or
value to the Employer of the completed Project, or (iv) otherwise be of benefit to
the Employer, he shall prepare a proposal with relevent details at his cost. Such
variation proposal shall not impair the essential character, functions or
characteristics or the Work, including service life, economy of operation, ease of
maintenance, desired appearance, or design and safety standards.

The Contractor shall provide his variation proposal in a time limit prescribed by
the Engineer. The Engineer/Employer shall, within 28 (twenty eight) days of
receipt of such proposal, either accept such Variation/ Change of Scope with
modifications, if any, or inform the Contractor in writing of its reasons for not
 accepting such Change of Scope. If by any reason the time limit specified by the
Engineer is exceeded, the proposal may not be considered.

The decision of the Engineer in this regard shall be final and binding.

15.3.2 Contents of Variation

If the Employer requires or accepts it, and if the Contractor wants to proceed with
the proposal, the Contractor must provide (at no cost to the Employer) a detailed
report prepared by a consultant acceptable to the Employer and which shall
include:

a. General description of the original Contract requirements for the Works and
the proposed changes

b. Detail of all the proposed modifications to the drawings and specifications

c. Detail of all Work and goods affected by the value engineering proposal

d. Detailed estimate of the construction cost based on the original Contract

requirements and based on the proposed changes

e. Any resultant time extensions or reductions for the Contract

f. Statement to the extent of minimum saving expected. The Contractor’s cost

of preparing the variation proposal shall be excluded in determining the
estimated net savings in construction costs.

15.3.3 Employer’s Review

The Employer may in his sole discretion, accept or reject the contractor’s
variation or any part thereof and determine the estimated net saving in the
construction cost. The Employer shall not be liable for delays or damages to the
Contractor due to any failure of the Employer to accept or act upon any such
variation proposal submitted pursuant to this Clause.

Once, the Employer or the Engineer rejects the contractor’s variation during
proposition due to any reason, it shall not be pursued by Contractor in any other
form.

15.3.4 Amendments – Employer Issuance

If the variation proposal is acceptable to the Employer/Engineer in whole or in

parts, it will accept by execution of an amendment. Such amendment shall
identify all the changes in the specifications, Contract Period etc. and shall
 specify net savings on construction costs which shall be adjusted in the contract
value by the Employer.

15.3.5 Contractor’s Acceptance and Payment

The Contractor shall either accept or reject any proposed amendment executed
by the Engineer pursuant to this section within 7 (seven) days of its receipt date
from the Employer. If the Contractor does not reject the same in the period
stipulated above, the amendments shall be deemed to be accepted by the
Contractor and shall become a variation to the Contract. The Contractor’s
acceptance shall be unconditional and the contract value / price shall be adjusted
by the amount of saving due to the variation.

15.4 Employer’s Variations

If the Engineer requests a proposal, prior to instructing a Variation which may be

for additional work or alteration in the work on deletion / reduction in the scope of
work, the Contractor shall submit at his own cost within 14 (fourteen) days or
such period as the Engineer may allow of the receipt of such request of the
Engineer:
a. a description of the proposed design and/or work to be performed and a
programme for its execution,

b. the Contractor's proposal for any necessary modifications to the

programme according to Sub-Clause 3.17, and
c. the Contractor's proposal for adjustment to the Contract Price, Time for
Completion and/or modifications to the Contract.

15.5 Variation Procedure

The Engineer shall, as soon as practicable after receipt of proposals under sub-
clauses 15.3 and / or 15.4, respond with approval, rejection or comments.

If the Engineer instructs or approves a Variation, he shall proceed in accordance

with Sub-Clause 5.5 to agree or determine adjustments to the Contract Price,
Time for Completion and Schedule of Payments.

After receipt of proposal, it will be the prerogative of the Employer, whether to

instruct and proceed ahead with the variation or drop the proposal in part or full.
In that case, no cost of preparing and submitting the proposal will be payable to
Contractor. In case, the design part of variation has been completed on
submission of same to the Engineer, the Employer decides to abandon the
variation; only cost for design to the extent of work done will be paid to the
Contractor.

15.6 Cost due to Variation

15.6.1 Additional Work not covered in the Original Scope of Project/Omission of
Work

Variation to be paid shall be derived on following basis:

(A) Rate of works/items available in Standard Schedule of Rates applicable in the

contract shall be derived on the basis of rates available in the Standard Schedule
of Rates and shall be adjusted with cost index notified twice a year on Ist January
and on Ist July.

(B) Rate of works/items not available in Standard Schedule of Rates:

Rates of such works/items shall be worked out as below:

(i) Cost of Materials at current market price, as actually utilised in the final
finished Permanent Works, including a reasonable percentage for wastage
and transportation.

(ii) Cost of labour shall be derived on the basis of Standard Analysis of Rates
of CPWD or MORTH Standard Data Book or …………….. (Standard
Analysis of Rates to be followed should be indicated) at rates under
Payment of Minimum Wages Act or market rate (whichever is higher) for
the area of work for each category of worker.

(iii) In case any item not included in Standard Analysis of Rates of CPWD or
MORTH Standard Data Book or any other Standard Analysis of Rates as
specified under para (iii) above or Standard Analysis of Rates of State
PWD, the Engineer shall determine the rate in accordance with Good
Engineering and Industry Practice.

(iv) Hire charges for Plant & Machinery, scaffolding, shuttering, forms, etc.,
required to be used at the site of the work. The tools used by the various
trades shall not be counted as Plant & Machinery for this purpose.

(v) Contractor’s profit and over heads shall be added @ 20% on Standard
Analysis of Rates of CPWD or the Standard Analysis as applicable on
items (i), (ii), (iii) (iv) and (v) above.

In case of highway projects Contractor’s profit and over heads shall be

added as per MORTH Standard Data Book.

VAT on Work Contract/ Work Contract Tax, Service Tax or any other tax
and Labour Welfare Cess etc. applicable on contract value as a whole
shall also be added.

Contractor’s profit and overheads shall be added @ 10% on cost of

Materials supplied to the Contractor by Employer at fixed price or
estimated cost of materials supplied at free of cost.
 (vi) The Contractor shall give a notice to the Engineer, of at least 14 (fourteen)
days before the need for their execution arises. Contractor shall submit his
rate with supporting analysis.

(vii) The rate of such items submitted by Contractor shall be finalized by

Engineer within 56 (fifty six) days. If no communication is received from
Engineer after 56 (fifty six) days of submission of rate by contractor, the
rate submitted by contractor shall become final.

(C) Cost of enabling works if any (unless provided for separately) worked out on the
above basis but with less stringent quality shall be added to rate worked out
under (A) and (B) above. Specifications minus salvage value of serviceable
material released after completion of work and cost of material released as scrap.

15.6.2 Change of existing Items/Specifications of Contract

Market Rate of existing Item of Contract and Market Rate of Substituted item
shall be worked out as per 15.6.1 and difference of cost shall be adjusted in
Contract Price either as additional cost or reduction in cost as the case may be.

15.6.3 Action in case of disagreement on Cost of Variation

The rate for the varied item shall be negotiated between the Engineer and the
Contractor and mutually agreed rates arrived at before actual execution of the
variation.

In the event of disagreement in respect of items 15.6.1 and 15.6.2 above, the
Engineer shall fix such rates of price as are, in his opinion appropriate and shall
notify the Contractor accordingly, with a copy to the Employer. Until such time as
rates or prices are agreed or fixed, the Engineer shall determine provisional rates
or prices to enable on account payments to the Contractor.

However, if the Engineer or the Employer so directs, the Contractor shall be

bound to carry out any such variation and the disagreement or the difference
regarding rates to be paid for the same shall be settled in the manner laid down
under the conditions for the settlement of dispute under Article 23.

15.7 Power of the Employer to undertake works

In the event the Parties are unable to agree to the proposed Change of Scope
Orders in accordance with the Clause 15.6, the Employer may award such works
or services to any person on the basis of open competitive bidding from amongst
bidders who are pre-qualified for undertaking the additional work; 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 Employer, and thereupon securing the award of such works or services. 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.

[Example: If lowest bid for such works is received at Rs.100, the Contractor shall
be eligible to match the lowest bid if he has quoted rate up to Rs.110 but shall be
paid for Rs.98.(Rs.100 – 2%)]

It is also agreed that the Contractor shall provide assistance and cooperation to
the person who undertakes the works or services hereunder, but shall not be
responsible for rectification of any defects and or maintenance of works carried
out by other agencies.

The Employer shall transfer 75 % (seventy five percent) of the amount so

received to the first ranked bidder whose bid have been matched by the
Contractor.

15.8 Payment in applicable currencies

If the Contract provides for payment of the Contract Price in more than one
currency, and an adjustment is agreed or fixed as stated above, the amount
payable in each of the applicable currencies shall be specified when the
adjustment is agreed or fixed. In specifying the amount in each currency, the
Contractor and the Engineer (or, failing agreement, the Engineer) shall take
account of the actual or expected currency proportions of the Cost of the varied
work, without being bound by the proportions of various currencies specified for
payment of the Contract Price.
 ARTICAL 16

COMPLETION AND TAKING OVER CERTIFICATE

16.1 Tests on Completion

16.1.1 The Contractor may apply by notice to the Engineer for a Taking-Over-Certificate
not earlier than 14 (fourteen) days before the works or section (as the case may
be) will, in the Contractor’s opinion, be complete and ready for taking over. The
Engineer shall, within 28 (twenty eight) days after the receipt of the Contractor’s
application shall conduct a complete joint survey of the works including carrying
out any tests as prescribed in Schedule-K of the contract. If it is not possible to
carry out all tests within 28 (twenty eight) days, then Engineer shall draw a
programme in consultation with contractor.

16.1.2 The Engineer shall observe, monitor and review the results of the Tests to
determine compliance of the Project 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 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 Contractor
shall provide the Engineer and the Employer with a certified report of the results
of all such Tests. 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 Employer’s requirements, for determining
the compliance of the Project or Section thereof with the Specifications and
Standards.

16.1.3 If the Engineer determines that the Project or any part thereof does not conform
to the provisions of this Agreement and cannot be safely and reliably placed in
operation, it shall forthwith make a report in this behalf and send copies thereof to
the Employer and the Contractor and withhold issue of comletion certificate and
taking over until the defects or deficiencies are rectified by the Contractor and
Tests are successful in accordance with this Article 16.

16.2 Rescheduling of Tests

If the Engineer certifies to the Employer and the Contractor that he 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.

16.3 Employer’s Taking Over

16.3.1 Work shall not be taken over by Engineer/Employer unless complete work or
section(s) as applicable are completed in all respect and all defects pointed out
by Engineer are attended by the contractor to the satisfaction of Engineer and
 site is cleared of all matrerials, plants and machinary not required after
completion of work, all rubish, labour huts & all other temprary structures
constructed by contractor for his use are removed from constrcution site.

16.3.2 The Works shall be taken over by the Employer when they have been completed
in accordance with the Contract, have passed the Tests on Completion, including
Integrated Testing and Commissioning where ever applicable as per the contract,
and a Taking Over Certificate in the form set forth in Schedule-L shall be issued.
If the Works are divided into Sections, the Contractor shall be entitled to apply for
a Taking Over Certificate for each Section. The Engineer will:

(a) issue the Taking Over Certificate to the Contractor, stating the date on which
the Works or Section were completed, including the Tests on Completion and
Integrated Testing and Commissioning where ever applicable as per the
contract: or

(b) reject the application, giving his reasons and specifying the work required to
be done by the Contractor to enable the Taking Over Certificate to be issued.
The Contractor shall then complete such work before issuing a further notice
under this Sub-Clause.

16.4 Taking over of parts of the works

The Engineer may, at the sole discretion of the Employer issue a Taking Over
Certificate for any part of the Permanent Works by following the procedure
stipulated in Clause 16.3.2 above if;

(a) the Employer uses that part of the Works for revenue service before the
Taking Over Certificate is issued for the entire work.

(b) the balance part is not completed not due to the fault of the contractor and
contractual date of completion for the completed part is over.

Engineer shall prepare a list of outstanding works and defects and shall notify to
the contractor.

16.5 Completion of remaining Works

All items in the remaining works shall be completed by the Contractor in

accordance with the provisions of this Agreement. For any delay in their
completion other than for the reasons solely attributable to the Employer or due
to Force Majeure, the Employer shall be entitled to recover Damages from the
Contractor in accordance with the provisions of this Agreement.
 ARTICAL 17

DEFECTS LIABILITY

17.1 Defects Liability Period

17.1.1 The Contractor shall be responsible for all the Defects and deficiencies arising
out of the contract, in the Project or any Section thereof, as the case may be.

17.1.2 The period for which the Contractor shall be liable for any defects (the "Defects
Liability Period") in the Works shall be 2 (two) years commencing from the date
of issue of taking over Certificate or issue of part taking over certificate as the
case may be.

Provided that, if any part of the Works or sub-systems or component of that part
has been replaced, renewed or repaired except minor repair, the “Defects
Liability Period” in respect of that part or sub-system or components of that part
shall start from the date such replacement, renewal or repair has been completed
to the satisfaction of the Engineer.

[Note: The time period of 2 years may be modified by Employer ar per

requirement]

17.2 Remedying Defects

17.2.1 The Contractor shall repair or reconstruct or replace and rectify all defects and
deficiencies observed by the Engineer during the Defects Liability Period within a
period of 14 (fourteen) days (or any other time period as specified in the bid
document) from the date of notice issued by the Engineer in this behalf, or
within such reasonable period as may be determined by the Engineer
accordance with circumstances and Good Industry Practice.

17.2.2 Emergency Defect Rectification

If any defect or damage is one requiring immediate attention from safety,

environmental or operational/functional view point, the Engineer has the powers
to proceed with rectification in any manner suitable and deduct such sums from
the Contract Price.

17.2.3 Contractor to Search Cause

17.2.3.1 The Engineer may instruct the Contractor to examine the cause of any Defect, or
faults in the Project or part thereof before the expiry of the Defects Liability
Period.

17.2.3.2 In the event any Defect or fault identified under Clause 17.2.3.1 is attributable to
the Contractor, the Contractor shall rectify such Defect or fault within the period
specified by the Employer's Engineer, and shall bear the cost of the examination
and rectification of such Defect or faults.

17.3 Cost of Remedying Defects

17.3.1 Any repair or rectification undertaken in accordance with the provisions of Clause
17.2 above, including additional testing, shall be carried out by the Contractor at
its own cost, if the necessity for such works is due to:

(a) the design of the works;

(b) Plant, Materials or workmanship not being in accordance with this

Agreement and the Specifications and Standards;

(c) improper maintenance of the Project by the Contractor if maintenance is

also part of agreement; and/ or

(d) failure by the Contractor to comply with any other obligation under this
Agreement.

17.3.2 In the event such Defect or fault is not attributable to the Contractor, the
Engineer shall, after due consultation with the Employer and the Contractor,
determine the costs incurred by the Contractor on such examination and
rectification and notify the same to the Contractor, with a copy to the Employer,
and the Contractor shall be entitled to payment of such costs by the Employer.

17.4 Contractor's Failure to Rectify Defects

In the event that the Contractor fails to remedy any defect or damage or
deficiency within the period specified in Clause 17.2.1 after notice, the Employer
may at his sole discretion:

17.4.1 to get the same repaired, rectified or remedied at the Contractor's risk and cost
so as to make the Project conform to the Specifications and Standards and the
provisions of this Agreement. All costs consequent thereon shall, be determined
by the Employer's Engineer.

The cost so determined and an amount equal to 20 % (twenty per cent) of the
cost as Damages shall be recoverable by the Employer from the Contractor and
may be deducted by the Employer from any payments due to the Contractor
under this agreement or any other agreement.

17.4.2 require the Engineer to determine and certify a reasonable reduction in the
Contract Price; or

17.4.3 if the defect or damage is such that the Employer has been deprived of
substantially the whole of the benefit of the Works or parts of the Works,
terminate the Contract in respect of such parts of the Works as cannot be put to
the intended use, the Employer shall then be entitled to recover all sums paid for
such parts of the Works together with the cost of dismantling the same, clearing
the Site and returning Plant, Machines, Rolling Stock and Materials to the
Contractor and Article 20 shall not apply.

17.5 Removal of Defective Work

 If the defect or damage is such that it cannot be remedied expeditiously on the
Site and if the Employer gives consent, the Contractor may, remove from the Site
for the purposes of repair any part of the Works, which is defective or damaged.
This consent may require the Contractor to increase the amount of Performance
Security by the full replacement cost of these items or to provide other
appropriate security acceptable to the Employer.

17.6 Further Tests

If the remedying of any defect or damage is such that it may affect the
performance of the Works, the Engineer may require that tests on Completion,
including Integrated Testing, be repeated to the extent necessary. The
requirement shall be made by notice within 28 (twenty eight) days after the defect
or damage is remedied. Such tests shall be carried out in accordance with
Clause18.18.

17.7 Performance Certificate

The Contract shall not be considered to be completed until the Performance

Certificate has been signed by the Engineer and delivered to the Contractor at
the end of ‘Defect Liability Period’, stating the date on which the Contractor
completed his obligations related to completion of works and rectification of
defects during Defect Liability Period to the Engineer's satisfaction. Only the
Performance Certificate shall be deemed to constitute approval of the Works.

17.8 Unfulfilled Obligations

After the Performance Certificate has been issued, the Contractor and the
Employer shall remain liable for the fulfilment of any obligation, which remains
unperformed at that lime. For the purposes of determining the nature and extent
of any such obligation, the Contract shall be deemed to remain in force.

17.9 Extension of Defects Liability Period

The Defects Liability Period shall be deemed to be extended till the identified
Defects under Clause 17.2 have been remedied.

17.10 Extension of Contract Period

The Contract Period shall be extended by a period, after the Works are taken
over, during which the Works or any Section or item of Plant, goods supplied,
cannot be used, for the purposes for which they are intended, by reason of a
defect or damage on part of contractor.
 ARTICAL 18

QUALITY ASSURANCE, MONITORING AND SUPERVISION

18.1 Quality of Materials and Workmanship

The Contractor shall ensure that the Construction, Plants, Goods & Materials
and workmanship are in accordance with the requirements specified in this
Agreement, Specifications and Standards and Good Industry Practice.

Sources of Materials being supplied shall be intimated to the Engineer and are
subject to his approval. Materials that are not specified in the Contract
document shall conform to the relevant Indian Standards or in their absence
conform to any International Standard approved by the Engineer.

18.2 Employer’s Minimum Quality Assurance Programme

Minimum Quality Assurance Programme (MQAP) prepared by Employer shall

form part of bid document where methodology of construction in brief, materials,
Goods & Plants, applicable Specifications & Standards, minimum numbers of
samples to be tested and type of tests to be performed during execution and
after completion shall be specified.

The equipments to be provided in field lab to be set up at work site and the tests
to be performed in field lab and tests to be performed in outside laboratories
shall form shall be specified in MQAP.

The contractor shall develop detailed Quality Assurance Plan on the basis of
Minimum MQAP in consultation with Engineer.

18.3 Quality Assurance System

18.3.1 The Contractor shall establish a quality asurance mechanism to ensure

compliance with the provisions of this Agreement (the "Quality Assurance Plan"
Or "QAP").

18.3.2 The Contractor shall, within 28 (twenty eight) days of the Commencement Date,
submit to the Engineer its Quality Assurance Plan which shall include the
following:

(a) organisation, duties and responsibilities, procedures, inspections and

documentation;

(b) quality assurance mechanism including sampling and testing of Materials,

test & frequencies, standards, acceptance criteria, testing facilities,
reporting, recording and interpretation of test results, approvals, check list
for site activities, and proforma for testing and calibration in accordance
with the laid Specifications & Standards and Good Industry Practice; and

(c) internal quality audit system.

 The Engineer shall convey its comments to the Contractor within a period of 21
(twenty-one) days stating the modifications, if any, required, and the Contractor
shall incorporate those in the QAP to the extent required for conforming with the
provisions of this Clause 18.3.

18.3.3 The Contractor shall procure all documents, apparatus and instruments, fuel,
consumables, water, electricity, labour, Materials, samples, and qualified
personnel as are necessary for examining and testing the Project Assets and
workmanship in accordance with the Quality Assurance Plan at his cost.

18.4 Methodology

The Contractor shall, at least 14 (fourteen) days prior to the commencement of

the construction, submit to the Engineer for review the methodology proposed
to be adopted for executing the Works, giving details of equipment to be
deployed, traffic management and measures for ensuring safety. The Engineer
shall complete the review and convey its comments to the Contractor within a
period of 14 (fourteen) days from the date of receipt of the proposed
methodology from the Contractor.

18.5 Inspection and Technical Audit by the Employer

The Employer or any representative authorised by the Employer in this behalf

may inspect and review the progress and quality of the construction of Project
and issue appropriate directions to the Engineer for taking remedial action in the
event the Works are not in accordance with the provisions of this Agreement.

18.6 External Technical Audit

At any time during construction, the Employer may appoint an external technical
auditor to conduct an audit of the quality of the Works. The findings of the audit,
to the extent accepted by the Employer, shall be notified to the Contractor and
the Engineer for taking remedial action in accordance with this Agreement. The
Contractor shall provide all assistance as may be required by the auditor in the
conduct of its audit hereunder. Notwithstanding anything contained in this
Clause 18.6, the external technical audit shall not affect any obligations of the
Contractor or the Engineer under this Agreement.

18.7 Inspection by Chief Technical Examinor/ Audit by CAG

Work may be inspected by Chief Technical Examinor under Central Vigilance

Commission, Govt. of India/ Audit team under Comptroller and Accountant
Genera of India. Contractor shall provide all assistence and full access to site to
carry out inspection and perform tests at site, to provide samples for testing in
outside laboratories and to show site records and their records as asked for by
the inspecting teams. Findings of such inspection shall be notified to contractor
and contractor shall be bound to take remedial measures to the satisfaction of
Engineer.

18.8 Inspection of Construction Records

 The Employer shall have the right to inspect the records of the Contractor
relating to the Works.

18.9 Monthly Progress Reports (MPR)

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

18.10 Inspection

18.10.1 The Employer's Engineer and its authorised representative 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 for use in the works; and

(b) during production, manufacture and construction at the site and at the
place of production, be entitled to examine, inspect, measure and test the
materials and workmanship, and to check the progress of manufacture of
materials.

18.10.2 The Contractor shall give the Engineer and its authorised agents access,
facilities and safety equipment for carrying out their obligations under this
Agreement.

18.10.3 The Engineer shall submit a monthly inspection report (the "Inspection Report")
to the Employer and the Contractor bringing out the results of inspections and
the remedial action taken by the Contractor in respect of Defects or
deficiencies. For the avoidance of doubt, such inspection or submission of
Inspection Report by the Engineer shall not relieve or absolve the Contractor of
its obligations and liabilities under this Agreement in any manner whatsoever.

Monthly Inspection Reports shall include photographs taken before and after
rectifications of defects/deficiencies and statement about methodology adopted
to rectify the defects/deficiencies.

18.11 Cost of Samples and Testing

(a) Samples for testing, as per approved Quality Assurance Plan, shall be
provided by contractor at his cost. The Engineer may require additional
samples for testing at Employer’s cost.

(b) Cost of assistance, labour, electricity, fuel, stores, appratus and

instruments,consumables and tests performed at site shall be borne by
contractor.

(c) Cost of packing and forwarding and testing charges for the tests those can
not be performed at site and to be performed in outside laboratories shall
 be borne by the Employer. However, if, the sample fails in testing, testing
charges shall be borne by the contractor.

18.12 Tests

18.12.1 This sub clause shall apply to all tests specified in the Contract, other than the
Tests after Completion.

The Contractor shall provide all documents and other information necessary for
all types of testing and such assistance, labour, materials, electricity, fuel,
stores, apparatus and instruments as are necessary to carry out such tests
efficiently.

The Contractor shall agree, with the Engineer, the time and place for the testing
of any Plant, goods, Materials and other parts of the Works as specified in the
Contract. The employer/Engineer may instruct the contractor for any
additional test, at employer’s cost.

The Engineer shall give the Contractor not less than 24 hours' notice of his
intention to attend the tests.

If the Engineer does not attend at the time and place agreed, or if the
Contractor and the Engineer agree that the Engineer shall not attend, the
Contractor may proceed with the tests, unless the Engineer instructs the
Contractor otherwise. Such tests shall be deemed to have been made in the
Engineer's presence.

The Contractor shall promptly forward to the Engineer duly certified reports of
the tests. If the Engineer has not attended the tests, he shall accept the
readings as accurate. When the specified tests have been passed, the Engineer
shall endorse the Contractor's test certificate, or issue a certificate to him, to
that effect.

No such testing shall relieve the Contractor from any obligation or responsibility.

18.12.2 In the event that results of any tests conducted under this Clause 18.13
establish any Defects or Deficiencies in the 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 Works into
compliance with the Specifications and Standards, and the procedure shall be
repeated until such 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.

18.12.3 All tests to be performed outside the field lab shall only be carried out in
laboratories approved by NABL unless specifically approved by the
Engineer.
18.13 Examination of Work before Covering up

In respect of the work which the 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 or testing without
unreasonable delay, or promptly give notice to the Contractor that the Engineer
does not require to do so. Provided, however, that if any work is of a continuous
nature where it is not possible or prudent to keep it uncovered or incomplete,
the Contractor shall notify the schedule of carrying out such work to give
sufficient opportunity to the Employer's Engineer to conduct its inspection,
measurement or test while the work is continuing. Provided further that in the
event the Contractor receives no response from the Engineer within a period of
3 (three) days from the date on which the Contractor's notice hereunder is
delivered to the Engineer, the Contractor shall be entitled to assume that the
Engineer would not undertake the said inspection.

18.14 Rejection

(a) 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 shall 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 this Agreement.

(b) If the Engineer requires the Plant, Materials, design or "workmanship to be

retested, the tests shall be repeated under the same terms and conditions
as applicable in each case. If the rejection and retesting cause the
Employer to incur any additional costs, such cost shall be recoverable by
the Employer from the Contractor; and may be deducted by the Employer
from any monies due to be paid to the Contractor.

18.15 Remedial Work

18.15.1 Notwithstanding any previous test or certification, the Engineer may instruct the
Contractor to:

(a) remove from the Site and replace any Plant or Godds 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,
whether because of an accident, unforeseeable event or otherwise.
18.15.2 If the Contractor fails to comply with the instructions issued by the Engineer
under Clause 18.16.1 or fails to correct a Defect within the time specified in the
Engineer's notice or as mutually agreed, the Engineer may assess the cost of
having the Defect repaired and have the said repair work carried out by another
agency. The cost so incurred by the Engineer for the repair work shall be
recoverable from the Contractor and shall be deducted by the Employer from
any payment due to be paid to the Contractor.

18.16 Acceptance of Work at Lower Price

In case after execution of the Work or the part of Work or

goods/materials/plants supplied by contractor is not fully consistent with the
Employer’s Requirements and there is no way to replace/rectify the same, in
that case, the same (provided it has no implication on utility, life & safety and
operation) may be accepted only at a Contractor’s deemed variation at lower
negotiated price.

The decision of the Engineer in this regard shall be final and binding on the
Contractor. It is agreed term of the contract that any dispute with regard to
reduction in cost as decided by the Engineer shall not be referred to arbitration.

18.17 Tests after Completion

18.17.1 Contractor’s Obligations

The Contractor shall carry out the Tests on Completion at his own cost in
accordance with the Contract after providing the documents in accordance with
provisions of the agreement The Contractor shall give, to the Engineer, 14
(fourteen) days' notice of the date after which the Contractor will be ready to
carry out the Tests on Completion. Unless otherwise agreed, such Tests shall
be carried out within 28 (twenty eight) days after this date, on such day or days
as the Engineer shall instruct. If it is not possible to carry out all tests within 28
(twenty eight) days, then Engineer shall draw a programme in consultation with
contractor.

Unless otherwise stated in Special Conditions of Contract, the Tests on

Completion shall be carried out in the following sequence;

(a) pre-commissioning test, which shall include appropriate instructions and

(“dry” or “cold”) functional tests to demonstrate that each item of the Plant,
goods and Work can safely undertake the next stage;

(b) commissioning Test shall include the specified operational tests to

demonstrate that Works or Sections can be operated safely and as
specified under all available operating condition;

(c) trial operation which shall demonstrate that the Works or Section perform
reliably and in accordance with the Contract
 The Contractor at his cost shall arrange all tools, equipments, gadgets, facilities
or as deemed necessary by the Engineer for such tests, In considering the
results of the tests on completion, the Engineer shall make allowances for the
effect of any use of the Works by the Employer on the performance or other
characteristics of the Works. As soon as the Works, or a Section, have passed
the tests on completion described in sub-paragraphs (a), (b) or (c), the
Contractor shall provide the Engineer and the Employer with a certified report of
the results of all such Tests.

18.17.2 Delayed Tests

If the Engineer opines that Tests on Completion are being unduly delayed by
the Contractor, the Engineer may by notice require the Contractor to carry out
such Tests within 14 (fourteen) days after the receipt of the notice. The
Contractor shall carry out such Tests on such day or days as the Contractor
may fix and of which he shall give notice to the Engineer.

If the Contractor fails to carry out the Tests on Completion within 14 (fourteen)
days, the Engineer may proceed with such Tests at the risk and cost of the
Contractor. The Tests on Completion then shall be deemed to have been
carried out in the presence of the Contractor and the results of such Tests shall
be accepted as accurate.

18.17.3 Retesting

If the works, or a part thereof, or a Section, fail to pass the tests on Completion,
Sub-Clause 18.15 “Rejection” shall apply, and the Engineer or the employer
may require such failed tests, and the tests on completion on any related work,
to be repeated under the same terms and conditions at the cost of contractor.

18.17.4 Failure to pass Tests on Completion

If the Works, or a part thereof, or a Section, fail to pass the Tests on Completion
repeated under Sub-Clause 18.18.3, the Engineer shall be entitled to:

(a) order further repetition of tests on completion under Sub-Clause 18.18.3;

(b) reject the Works, or a part thereof, or a Section (as the case may be), in
which event the Employer shall have the same remedies against the
Contractor as are provided under Clause 20; or

(c) issue a Taking Over Certificate, if the Employer so requires. The Contract
Price shall then be reduced by such amount as determined by the
Engineer and as shall be appropriate to cover the reduced value to the
Employer as a result of this failure. The Contractor shall then proceed in
accordance with his other obligations under the contract.

It is agreed term of the contract that any dispute with regard to reduction
in cost as decided by the Engineer shall not be referred to arbitration.
18.18 Integrated Testing and System Commissioning

18.18.1 Integrated Testing

Tests on Completion shall also include Integrated Testing where applicable as

per the contract conditions. The Contractor shall, following satisfactory
completion of tests on his works, equipment, sub-systems or system, perform,
at the direction of the Engineer, programme of tests to verify and confirm the
compatibility and complete performance of his works, equipment, sub-systems
or system with the works, equipment, sub-systems or system provided by
others.

18.18.2 Compilation of Test Results

The results of the Integrated Testing and Commissioning shall be compiled and
evaluated by the Engineer and the Contractor.

18.18.3 Retesting

If the Works, or a part thereof, or a Section, fail to pass the Integrated Testing
and Commissioning, the Engineer shall require such failed Tests, to be
repeated under the same terms and conditions. If such failure and retesting
result from a default of the Contractor and cause the Employer to incur
additional costs, the same shall be recoverable from the Contractor by the
Employer, and may be deducted by the Employer from any payments due, or to
become due, to the Contractor.

18.18.4 Failure to Pass Tests

If the Works, or a part thereof, or a Section, fail to pass Integrated Testing and
Commissioning and the Contractor in consequence proposes to make any
adjustment or modification to the Works or a part thereof, or a section, the
Engineer may, with the approval of the Employer, instruct the Contractor to
carry out such adjustment or modification, at his own cost and to satisfy the
requirements of Integrated Testing and Commissioning within such time as the
Employer / Engineer may deem to be reasonable.

18.18.5 Statutory Requirements

The Contractor along with others shall carry out all statutory tests and trials,
under the supervision of the Engineer, necessary for obtaining sanction of the
competent authority.

18.19 Cost of Employer’s Attendance including Travel

The Employer shall bear the costs of attendance including travel by the
Employer or his Representative for the purposes of Sub-Clauses 18.10 and
18.13 above. The cost of attendance including travel by the Employer,
Engineer or his Representative for the purpose of Sub-clause 18.15 shall be
borne by the Contractor.
18.20 Quality Assurance Records and Documents

The Contractor shall hand over to the Employer's Engineer a copy of all its
quality assurance records and documents before the Taking Over Certificate is
issued pursuant to Clause 16.3.

18.21 Video Recording

During the Construction Period, the Contractor shall provide to the Employer 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 Works in that quarter. The video recording shall be
provided to the Employer no later than 14 (fourteen) days after the close of
each quarter after the Key Date.
 ARTICLE 19

REDUCTION IN SCOPE OF WORK

19.1 Termination for Employer's convenience

Notwithstanding any provisions of the contract, the Employer may terminate this
Agreement for convenience. The termination shall take effect 28 (twenty eight)
days from the date of service of notice as per provisions of Article 28.

19.2 Reduction in Scope of Works

19.2.1 Notwithstanding anything to the contrary contained in this Agreement, the

Employer may at any time reduce scope of works or withdraw any Works
forming part of this Agreement, subject to such Works not exceeding an
aggregate value equal to 10 (ten) per cent of the Original Contract Price and
contractor shall have no claim of account of any damage or loss of profit.
Original contract price shall continue to remain unchanged.

19.2.2 In the event of such withdrawal or reduction in scope of works exceeding 10%
of original contract price, the Contract Price shall be reduced by an amount
equal to the value of the Works withdrawn or because of reduction in scope of
works. Contractor may submit revised performance security of an amount equal
to 10% of reduced value of contract. After submission of fresh Performance
Secutity, the original Performance Secutity shall be refunded.

19.2.3 Employer shall pay to the contractor an amount equal to 7.5 (seven and half)
percent of the cost of the Works and Maintenance withdrawn or because of
reduction in scope of works provided such reduction in scope exceeds
aggregate value equal to 10% of original contract price, as the case may be, but
subject to a maximum amount equivalent to 5% (five per cent) of the Contract
Price.

19.3 Payments to Contractor in case of Termination of contract for Employer's

convenience

19.3.1 Termination of contract for Employer's convenience

(a) Employer shall pay to the Contractor, by way of Termination Payment, an

amount equal to:

(i) any sums due and payable under Clause 20.5

(ii) the reasonable cost, as determined by the Engineer, of the Plant and
Materials procured by the Contractor and transferred to the Employer
for use in Construction or Maintenance as per clause 20.1.3, only if
such Plant and Materials are in conformity with the Standards and
Specifications;
 (iii) the reasonable cost of temporary works, as determined by the
Engineer; and

(iv) 7.5 (seven and half) percent of the cost of the Works and Maintenance
that remained uncompleted, as the case may be, but subject to a
maximum amount equivalent to 5% (five per cent) of the Contract
Price; and

(b) return the Performance Security to the Contractor within a period of 28

(twenty eight) days after receiving the claim from the Contractor under
Clause 23.6.3.
 ARTICAL 20

TERMINATION

20.1 Termination for Contractor Default

20.1.1 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 28 (twenty) 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 Employer or due to Force Majeure. The defaults referred to herein shall
include:

(a) the Contractor fails to provide, extend or replenish, as the case may be,
the Performance Security in accordance with this Agreement;

(b) subsequent to the replenishment or furnishing of fresh Performance

Security in accordance with Clause 9.2 within 21 (twenty one ) days.

(c) failure to adhere to the agreed programme of work by 28 (twenty eight)

days, or fails to complete the Works or parts of the Works within the
stipulated or extended period of completion, or is unlikely to complete the
whole Work or part thereof within time because of poor record of progress;

(d) the Contractor abandons or repudiates or otherwise plainly demostrate the

intension not to continue with performance of his obligations under the
contract the construction or maintenance (wherever maintenance is part
of contract) of the Work without the prior written consent of the Employer;

(e) the Contractor fails to proceed with the Works in accordance with the
provisions of Clause 12.1 or stops Works and/or the Maintenance for 28
(twenty eight) days without reflecting the same in the current programme
and such stoppage has not been authorised by the Employer's Engineer;

(f) the Works/Project Completion Date does not occur within the period
specified in Schedule I for the Scheduled Completion Date, or any
extension thereof;

(g) persistently disregards instructions of the Engineer or contravenes any

provisions of the Contract;

(h) fails to take steps to employ competent and/or additional staff and labour;

(i) fails to afford the Engineer or his representative proper facilities for
inspecting the Works or any part thereof;

(j) the Contractor fails to rectify any defect, the non rectification of which shall
have a Material Adverse Effect on the Works, within the time specified in
this Agreement or as directed by the Engineer;
(k) fails to remove materials from the Site, or pull down and replace work,
after receiving notice from the Engineer to the effect that the said materials
or Works have been condemned or rejected;

(l) the Contractor subcontracts the Works or any part thereof in violation of
this Agreement or assigns any part of the Works or the Maintenance
without the prior approval of the Employer;

(m) the Contractor creates any Encumbrance in breach of this Agreement;

(n) a change in composition or legal status of the Consortium has occurred in

breach of the provisions of Clause 1.8;

(o) an execution by court of law levied on any of the assets of the Contractor
has caused a Material Adverse Effect;

(p) 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 Project;

(q) 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 Employer, a Material
Adverse Effect;

(r) 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;.

(s) breach of Integrity Pact (Artical 6) on part of the Contractor at any time;

(t) the Contractor submits to the Employer any statement, notice or other
document, in written or electronic form, which has a material effect on the
 Employer's rights, obligations or interests and which is false in material
particulars;

(u) the Contractor has failed to fulfil any obligation, for which failure
Termination has been specified in this Agreement; or

(v) 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
Project or on the Employer.

20.1.2 Without prejudice to any other rights or remedies which the Employer may have
under this Agreement, upon occurrence of a Contractor Default, the Employer
shall be entitled to terminate this Agreement by issuing a Termination Notice to
the Contractor; provided that before issuing the Termination Notice, the
Employer shall by a notice inform the Contractor of its intention to issue such
Termination Notice and grant 14 (fourteen) days to the Contractor to make a
representation, and may after the expiry of such 14 (fourteen) days, whether or
not it is in receipt of such representation, issue the Termination Notice.

20.1.3 After termination of this Agreement for Contractor Default, the Employer may
complete the Works and/or arrange for any other entities to do so independently
without risk and cost of the failed contractor.

In case of exisgencies Employer may decides to take over possession of certain

materials, tools, plants, machinary and equipments, in or upon the works/ site
thereof belonging to contractor. The employer shall either pay hire charges for
use of such tools, plants, machinary and equipments or shall pay cost of such
materials, tools, plants, machinary and equipments at prevailing market rates to
the contractor.

The Employer and these entities may then use any Materials, Plant and
equipment taken over, Contractor's documents and other design documents
made by or on behalf of the Contractor.

20.1.4 In the event of termination, the failed contractor shall be debarred from
participating in the tender for executing the balance work. If the failed contractor
is a JV or a partnership firm or company, then every member/partner of such JV
or partnership firm or every Director of the failed company shall be debarred
from participating in the tender for the balance work either in his/her individual
capacity or as a partner of any other JV/partnership firm.

Any company having any of the member/partner/director of the failed contractor

as Director in the company shall also be debarred from participating in the
tender for the balance work.

20.2 Part Termination

In case of 20.1.1(c), the Engineer at its sole discretion may terminate only part
of the contract by taking out some part of the total scope of work and may
complete or arrange for any other entity to do so through the process of
 open/limited/single tender or by calling quotations, to do so at the risk and cost
of the contractor. Contractor shall continue to proceed with remaining work.
Contractor shall be paid original contract price including variations and cost of
work executed at his risk and cost shall be recovered from interim payments
simultaneously.

The liability of contractor on account of loss or damages suffered by Employer

because of part termination of contract shall be limited to amount of
Performance Security.

20.3 Termination for Employer Default

20.3.1 In the event that any of the defaults specified below shall have occurred, and
the Employer 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
Employer shall be deemed to be in default of this Agreement (the "Employer
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 Employer has failed to make any payment to the Contractor within the
period specified in this Agreement;

(b) the Employer has failed to provide, within a period of 1/8 (one eighth) time
of completion from the Commencement Date, the environmental
clearances required for commencement of the Works;

(c) the Employer 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 Employer's Engineer fails to issue the relevant Interim Payment
Certificate within 56 (fifty six) days after receiving a statement and
supporting documents. In case of discrepency or for want of correction in
the bill submitted by contractor is returned back to the contractor, then
time of 56 (fifty six) days will be considered from submission of bill after
attending observations of the Engineer.

20.3.2 Without prejudice to any other right or remedy which the Contractor may have
under this Agreement, upon occurrence of an Employer Default, the Contractor
shall be entitled to terminate this Agreement by issuing a Termination Notice to
the Employer; provided that before issuing the Termination Notice, the
Contractor shall by a notice inform the Employer of its intention to issue the
Termination Notice and grant 14 (fourteen) days to the Employer to make a
representation, and may after the expiry of such 14 (fourteen) days, whether or
not it is in receipt of such representation, issue the Termination Notice.

20.4 Termination due to suspension of work

20.4.1 At any time during the period of Suspension under this Article 24, the Contractor
may by notice require the Employer to revoke the Suspension and issue a
Termination Notice. The Employer shall, within 14 (fourteen) days of receipt of
such notice, terminate this Agreement under and in accordance with Article 20.

24.4.2 Notwithstanding anything to the contrary contained in this Agreement, in the

event that Suspension is not revoked within 180 (one hundred and eighty) days
from the date of Suspension hereunder or within the extended period, if any, set
forth in Clause 24.1, the Agreement shall, upon expiry of the aforesaid period,
be deemed to have been terminated by mutual agreement of the Parties and all
the provisions of this Agreement shall apply, mutatis mutandis, to such
Termination as if a Termination Notice had been issued by the Employer upon
occurrence of a Contractor Default.

20.5 Requirements after Termination

Upon Termination of this Agreement in accordance with the terms of this Article
20, the Contractor shall comply with and conform to the following:

(a) cease all further work, except for such work as may be necessary and
instructed by the Engineer for the purpose of making safe or protecting
those parts of the Works already executed, and any Work required to
leave the Site in a clean and safe condition,

(b) hand over to the Employer all Plant and Materials for which contractor has
received payment;

(c) hand over all relevant records, reports, Intellectual Property and other
licences pertaining to the Works, Maintenance, other design documents
and ‘as built' Drawings for which the Completion Certificate has been
issued;

(d) transfer and/or deliver all Applicable Permits to the extent permissible
under Applicable Laws; and

(e) vacate the Site within 14 (fourteen) days or within time frame as allowed
by the Engineer.

20.6 Valuation of Works

20.6.1 Within a period of 48 (forty-eight) days after Termination under Clause 20.1 or
20.3 or 28.1, as the case may be, has taken effect, the Engineer shall proceed
in accordance with Clause 5.5 to determine as follows the sum of the value of
Works and Maintenance, if any, and any other sums due to the Contractor for
work executed in accordance with this Agreement:

(a) value of the completed stage of the Works, less payments already made;

(b) reasonable value of the partially completed stages of works;

 (c) value of materials, tools, plant, machinary and equipments taken over;

(d) value of the Maintenance done for completed months, less payments
already made;

(e) less recoveries due in terms of the Agreement; and

(f) less taxes due to be deducted at source in accordance with law.

20.6.2 The determination of Valuation at Termination under this Clause 20.5 shall be
communicated to the Employer, with a copy to the Contractor, within a period of
48 (forty eight) days from the date of coming into effect of the notice of
Termination.

20.7 Termination Payment

20.7.1 Upon Termination on account of Contractor's Default under Clause 20.1, the
Employer shall:

(i) withhold further payments to the Contractor until the costs of design,
manufacture, execution, materials, tools, plant, machinary and equipments
taken over, completion and remedying of any defects, damages for delayin
completion (if any), and all other costs incurred by the Employer, have
been established and until the actions in accordance with this Clause
20.6.1 are completed;

(ii) encash and appropriate the whole of the amounts of Performance Security
as agreed pre-determined compensation to the Employer for any losses,
delays and cost of completing the remaining Works and Maintenance;

(iii) encash and appropriate the bank guarantee for recovery of outstanding
Advances, if any;

(iv) take possession of the Plant and Materials at the Site; and

(v) pay to the Contractor, a sum equivalent to the valuation determined under
Clause 20.5 after adjusting any other sums payable or recoverable, as the
case may be, in accordance with the provisions of this Agreement.

20.7.2 Upon Termination on account of an Employer Default under Clause 20.3, the
Employer shall:

(a) pay to the Contractor, by way of Termination Payment, an amount equal

to:

(i) any sums due and payable under Clause 20.5

(ii) the reasonable cost, as determined by the Engineer, of the Plant and
Materials procured by the Contractor and transferred to the Employer
for use in Construction or Maintenance as per clause 20.1.3, only if
 such Plant and Materials are in conformity with the Standards and
Specifications;

(iii) the reasonable cost of temporary works, as determined by the

Engineer; and

(iv) 7.5 (seven and half) percent of the cost of the Works and Maintenance
that are not completed, as the case may be, but subject to a maximum
amount equivalent to 5% (five per cent) of the Contract Price; and

(b) return the Performance Security to the Contractor within a period of 28

(twenty eight) days after receiving the claim from the Contractor under
Clause 23.6.3

23.7.3 Termination Payment shall become due and payable to the Contractor within 90
(ninety) days of a demand being made by the Contractor to the Employer with
the necessary particulars, and in the event of any delay, the Employer shall pay
interest at the interest at the at the Base Rate announced by State Bank of India
plus 2% (two per cent) on the amount of Termination Payment remaining
unpaid. For the avoidance of doubt, it is expressly agreed that Termination
Payment shall constitute full discharge by the Employer of its payment
obligations in respect thereof hereunder.

20.7.4 The Contractor expressly agrees that Termination Payment under this Article 20
shall constitute a full and final settlement of all claims of the Contractor on
account of Termination of this Agreement and that it shall not have any further
right or claim under any law, treaty, convention, contract or otherwise.

20.8 Termination of contract in the event of death of contractor

Without prejudice to any of the rights or remedies under this contract, if the
contractor being Sole Proprietor dies, the Employer shall have the option of
terminating the contract without compensation to the contractor. In such event
the Employer shall pay termination payment to the legal heir/successor equal to
an amount of:

(i) any sums due and payable under Clause 20.5

(ii) the reasonable cost, as determined by the Engineer, of the Plant and
Materials procured by the Contractor and transferred to the Employer for
use in Construction or Maintenance as per clause 20.1.3, only if such
Plant and Materials are in conformity with the Standards and
Specifications;

(iii) the reasonable cost of temporary works, as determined by the Engineer;

and

(iv) return the Performance Security within a period of 28 (twenty eight) days
after receiving the claim.
20.9 Return of Employer’s Materials, Tools, Plants and Equipments

In case termination of the Contract under whatsoever circumstances, any

remaining tools, plants, equipments and surplus materials of Employer with
contractor will be returned to the Employer in good condition at Employer’s
depot at Contractor’s cost. In case of the failure of the contractor to do so, the
Employer will be entitled to recover their cost from the contractor from the
amount becoming due to the contractor or from any other money due in any
other contracts. The decision of the Engineer of the amount to be recovered will
be final decision and full credit at rates initially charged to the contractor shall be
allowed for such materials. Similarly the Employer shall be entitled to recover
the cost of the unreturned material, plant equipment and tools from the
contractor where such material have been supplied free of cost and plant,
equipment and tools free of cost or on lease basis to the contractor as
stipulated in the Conditions of Contract.

20.10 Other rights and obligations of the Parties Upon Termination for any reason
whatsoever

(a) the Employer shall be deemed to have taken possession and control of
the Project forthwith; and

(b) the Employer shall be entitled to restrain the Contractor and any person
claiming through or under the Agreement from entering upon the Site or
any part of the Project except for taking possession of materials, stores,
implements, construction plants and equipment of the Contractor.

20.11 Survival of rights

20.11.1 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.

20.11.2 All obligations surviving Termination shall only survive for a period of 3 (three)
years following the date of such Termination.
 ARTICAL 21

FORCE MAJEURE

21.1 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 21.2, 21.3 and
21.4 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.

21.2 Non-Political Event

A Non-Political Event shall mean one or more of the following acts or events:

(a) act of God, epidemic, extremely unusual 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, Sub-
contractors or their respective employees/representatives, or attributable
to any act or omission of any of them) interrupting supplies and services to
the Works for a continuous period of 24 (twenty-four) hours and an
aggregate period exceeding 14 (fourteen) days in an Accounting Year,
and not being an Indirect Political Event set forth in Clause 21.3;

(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 Employer 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 Employer;

(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) any event or circumstances of a nature analogous to any of the foregoing.

21.3 Indirect Political Event

An Indirect Political Event shall mean one or more of the following acts or
events:

(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 14
(fourteen) days in an Accounting Year;

(c) any civil commotion, boycott or political agitation which prevents

construction of the Project by the Contractor for an aggregate period
exceeding 14 (fourteen) 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 Employer 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.

21.4 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 this agreement;

(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
Contractor's or any Sub-contractor's 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;

(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 Employer by or on behalf of such
Contractor; or
 (e) any event or circumstance of a nature analogous to any of the foregoing.

21.5 Duty to report Force Majeure Event

21.5.1 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 21 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 Party's 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 Party's claim.

21.5.2 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 14 (fourteen) 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.

21.5.3 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 Clause 21.5.1,
and such other information as the other Party may reasonably request the
Affected Party to provide

21.6 Effect of Force Majeure Event on the Agreement

21.6.1 Upon the occurrence of any Force Majeure after the Commencement Date, the
costs incurred and attributable to such event and directly relating to this
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, one half of such excess amount shall be reimbursed by the
Employer to the Contractor for the Force Majeure events. However in case
 claim received against insurance is more than the amount paid to him by
Employer then contracor shall return the amount paid by employer and
rest shall be retained by contractor; and

(c) upon occurrence of a Political Event, all Force Majeure costs attributable
to such Political Event shall be reimbursed by the Employer 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 and in case of doubt, whether a particular
occurance should be considered an ‘Event’ as defined under this clause, the
decision of the Engineer shall be final and binding.

21.6.2 Save and except as expressly provided in this Article 21, 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.

21.6.3 Upon the occurrence of any Force Majeure Event after the Commencement
Date or during the Construction Period, the Project Completion Schedule shall
be extended by a period equal in length to the duration of the Force Majeure
Event.

21.7 Termination Notice for Force Majeure Event

If a Force Majeure Event subsists for a period of 6 months , 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 21, 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 14 (fourteen) days time to make a representation, and may
after the expiry of such 14 (fourteen) days period, whether or not it is in receipt
of such representation, in its sole discretion issue the Termination Notice.

21.8 Termination Payment for Force Majeure Event

21.8.1 In the event of this Agreement being terminated under Clause 21.7 on account
of a Non-Political Event, the Termination Payment shall be an amount equal to
the sum payable under Clause 20.6.

The Contractor shall be paid fully for the work done under the agreement, but
not for any defective work which has been damaged or destroyed before its
measurement.
 Provided that in the event Termination occurs during the Maintenance Period,
the Engineer shall only determine the value of Works associated with
Maintenance.

21.8.2 If Termination is on account of an Indirect Political Event, the Termination

Payment shall include:

(a) any sums due and payable under Clause 20.6; and

(b) the reasonable cost, as determined by the Engineer, fair and reasonable
cost of the Plant/equipment and Materials as assessed by Engineer which
procured by the Contractor and transferred to the Employer for use in
Construction or Maintenance, only if such Plant and Materials are in
conformity with the Standards and Specifications;

Provided that in the event Termination occurs during the Maintenance Period,
the Employer's Engineer shall only determine the value of Works associated
with Maintenance.

21.8.3 If Termination is on account of a Political Event, the Employer shall make a

Termination Payment to the Contractor in an amount that would be payable
under Clause 20.7.2 as if it were an Employer Default.

21.9 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.

21.10 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.
 ARTICAL 22

INSURANCE

22.1 Insurance for Works and Maintenance

22.1.1 The Contractor shall effect and maintain at its own cost the insurances specified
in Schedule-M and as per the requirements under the Applicable Laws.

22.1.2 No payment shall be made to contractor unless evidence of compliance of

provisions under this Article 22 related to insurance is submitted to the Engineer
and observations of the Engineer, if any, are also complied with.

22.1.3 The Engineer will not issue Final Payment Certificate until the Contractor has
produced evidence that coverage of the professional indemnity insurance has
been provided for the aforesaid period.

22.1.4 Subject to the exceptions specified in Clause 22.1.6 below, the Contractor shall,
save and except as provided for in this Agreement, fully indemnify, hold
harmless and defend the Employer 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 Works);

that may arise out of or in consequence of the execution and completion of the
Works and the remedying of any Defects therein.

22.1.5 Notwithstanding anything stated above in Clause 22.1.4, the Employer 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
Employer;

(b) the right of the Employer to execute the 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 Works, or the remedying of any Defects therein, in
accordance with this 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 Employer, its 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 Employer 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 Employer, its servants or agents or other
contractors not associated with the Contractor in such injury or damage.

22.1.6 Without prejudice to the obligations of the Parties as specified under Clauses
22.1.4 and 22.1.5, the Contractor shall maintain or effect such third party
insurances (including for Employer's property) as required under the Applicable
Laws.

22.2 Notice to the Employer

Not later than 14 (fourteen) days after the Commencement Date, the Contractor
shall by notice furnish to the Employer, in reasonable detail, information in
respect of the insurances that it proposes to effect and maintain in accordance
with this Article 22. Within 14 (fourteen) days of receipt of such notice, the
Employer 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.

22.3 Evidence of Insurance Cover

22.3.1 All insurances obtained by the Contractor in accordance with this Article 22
shall be maintained with insurers on terms consistent with Good Industry
Practice. Within 14 (fourteen) days of the Commencement Date, the Contractor
shall furnish to the Employer notarised true copies of the certificate(s) of
insurance, copies of insurance policies and premium 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 42 (forty two) days
after notice of such proposed cancellation, modification or non-renewal has
been delivered by the Contractor to the Employer. The Contractor shall act in
accordance with the directions of the Employer. Provided that the Contractor
shall produce to the Employer the insurance policies in force and the receipts
for payment of the current premiums.

22.3.2 The Contractor shall ensure the adequacy of the insurances at all times in
accordance with the provisions of this Agreement.

22.4 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 Employer shall have the option to either keep
in force any such insurances, and pay such premium 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.

22.5 Waiver of subrogation

All insurance policies in respect of the insurance obtained by the Contractor

pursuant to this Article 22 shall include a waiver of any and all rights of
 subrogation or recover), of the insurers thereunder against, inter alia, the
Employer, 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.

22.6 Contractor's waiver

The Contractor hereby further releases, assigns and waives any and all rights of
subrogation or recovery against, inter alia, the Employer 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.

22.7 Cross liabilities

Any such insurance maintained or effected in pursuance of this Article 22 shall

include a cross liability clause such that the insurance shall apply to the
Contractor and to the Employer as separate insured.

20.8 Accident or injury to workmen

Notwithstanding anything stated in this Agreement, it is hereby expressly

agreed between the Parties that the Employer 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 Sub-contractor, save and except
as for the death or injury resulting from any act, omission or default of the
Employer, its agents or servants. The Contractor shall indemnify and keep
indemnified the Employer 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 Employer
shall be liable.

22.9 Insurance against accident to workmen

The Contractor shall effect and maintain during the Agreement such insurances
as may be required to insure the Contractors personnel/any persons employed
by it on the Project from and against any liability incurred in pursuance of this
Clause 22.9. Provided that for the purposes of this Clause 22.9, the Contractors
personnel/any person employed by the Contractor shall include the Sub-
contractor and its personnel. It is further provided that, in respect of any persons
employed by any Sub-contractor, the Contractor's obligations to insure as
aforesaid under this Clause 22.9 shall be satisfied if the Sub-contractor shall
 have insured against the liability in respect of such persons in such manner that
the Employer is indemnified under the policy. The Contractor shall require such
Sub-contractor to produce to the Employer, when required, such policy of
insurance and the receipt for the payment of the current premium within 14
(fourteen) days of such demand being made by the Employer.

22.10 Responsibility for amounts not recovered

The Employer 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 22 or cannot be
recovered from the insurers.

22.11 Application of insurance proceeds

The proceeds from all insurance claims, except for life and injury, shall be
applied for any necessary. repair, reconstruction, reinstatement, replacement,
improvement, delivery or installation of the Project and the provisions of this
Agreement in respect of construction of works shall apply mutatis mutandis to
the works undertaken out of the proceeds of insurance.

22.12 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 this Agreement.
 ARTICAL 23

DISPUTE RESOLUTION

23.1 No legalaction Till DisputeSettlement Procedure is Exhausted

Any and all Disputes shall be settled in accordance with the provisions of
Clause 23. No action at law concerning or arising out of any Dispute shall be
commenced unless and until all applicable Dispute resolution procedures set
out in Clause 23 shall have been finally exhausted in relation to that Dispute or
any Dispute out of which that Dispute shall have arisen with which it may be or
may have been connected.

23.2 Procedure forClaims

If the Contractor intends to claim any additional payment under any clause of
these Conditions or otherwise, the Contractor shall give notice to the Engineer
as soon as possible.

The Contractor shall keep such contemporary records as may be necessary to

substantiate any claim, either on the Site or at any other location acceptable to
the Engineer. Without admitting the Employer’s liability, the Engineer shall, on
receipt of such notice, inspect such records and may instruct the Contractor to
keep further contemporary records. The Contractor shall permit the Engineer to
inspect all such records, and shall (if instructed) submit copies to the Engineer.

Within 28 days of such notice, or such other time as may be agreed by the
Engineer, the Contractor shall send to the Engineer an account, giving detailed
particulars of the amount and basis of the claim. Where the event giving rise to
the claim has a continuing effect, such amount shall be considered as interim.
The Contractor shall then, at such intervals as the Engineer may reasonably
require, send further interim accounts giving the accumulated amount of the
claim and any further particulars. Where interim accounts are sent to the
Engineer, the Contractor shall send a final account within 28 days of the end of
the effects resulting from the event.

The Engineer will examine the claim and may call additinal information from
contractor. The Engineer shall communicate his decision on claim(s) of the
contractor within 28 days of reciept of last clarification called by the Engineer. If
contractor is not satisfied with the decision of the Engineer, he may invoke
arbitration clause.

23.3 Payments for Claim

The Contractor shall be entitled to have included in any Interim Payment

Certificate such amount for any claim as the Engineer considers due, after
taking approval from the Employer. If the particulars supplied are insufficient to
 substantiate the whole of the claim, the Contractor shall be entitled to payment
for such part of the claim as has been substantiated.

23.4 Notice of Dispute

For the purpose of Sub-Clause 23.5 and 23.6, a Dispute shall be deemed to
arise when one party serves on the other party a notice in writing (hereinafter
called a "Notice of Dispute") stating the nature of the Dispute.

23.5 Arbitration (If total claims are up to Rs.100 million or any other limit as
decided by Employer)

All such disputes whatsoever arising between the parties, arising out of the
Contract or the breach thereof shall be referred to Arbitration in accordance with
the following provisions:

(a) All disputes of either party(excluding claims beyond the scope of arbitration
as per agreed terms of contract) shall be referred to a sole Arbitrator
appointed by the Employer.The Arbitrator shall be appointed within a
period of 30 days from the date of receipt of written notice/ demand of
appointment of Arbitrator from either party.

(b) The arbitration proceedings shall be conducted strictly in accordance with

“The Arbitration and Conciliation Act -1996” (as amended from time to
time).The language of proceedings, that of documents and communication
shall be English.

(c) The Employer at the time of making appointment of the Arbitrator, shall also
supply the information with regard to the qualifications of the said Arbitrator
with his professional experience, phone nos. and address to the contractor.

(d) The sole arbitrator (not below the level of Joint Secretary to Govt. of India)
shall be qualified graduate engineer adequately experienced in relevant
type of project involved. The arbitrator may also be serving officer of the
department.

23.6 Arbitration(If total claims are more than Rs.100 million or any other limit
as decided by Employer)

All such disputes whatsoever arising between the parties, arising out of the
Contract or the breach thereof shall be referred to Arbitration in accordance with
the following provisions:

23.6.1 Such arbitration shall be held in accordance with the “The Arbitration and
Conciliation Act -1996” (as amended from time to time). The language of
arbitration proceedings shall be English.
23.6.2 The arbitral tribunal shall consist of three arbitrators. Appointment of Arbitrators
and Chairman of the Arbitral Tribunal shall be made in accordance with
provisions of 23.7.2 and 23.7.3.

23.6.3 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.

23.7 Arbitral Tribunal

23.7.1 Within 30 days of receipt of Notice of Dispute of either party, the Employer shall
initiate the proceeding to constitute the Arbitral Tribunal.

23.7.2 The Employer shall provide a panel of fivemembers which may include
serving/retired engineers of the department/organizationnot below the level of
Joint Secretary to Govt. of India reasonably qualified and experienced in the
type of construction involved and with the interpretation of contractual
documents. Within 30 days of reciept of panel, the Contractor and Engineer
shall have to choose one member each from the panel of five.The two members
so chosen will choose the third member(need not be from the panel of five
members) who shall serve Chairman of the Tribunal.

23.7.3 In the event of any disagreement between the two members or the Parties, on
the appointment of the third memberwithin a period of 21 (twenty-one) days
from the date of the selection of the last member on the Tribunal,the
appointment shall be made by the Executive Committee of the Indian Roads
Congress (IRC) for road works or by Executive Committee of Indian Building
Congress (IBC) for other typer of worksor by the authority as specified in the
contract. Provided that, any member appointed hereunder shall be reasonably
qualified and experienced engineer (higher than level of Joint Secretary to Govt.
of India) in the type of construction involved in the Project and sufficiently
experienced with the interpretation of contractual documents.

23.7.4 The third member of the Tribunal appointed in accordance with the provisions of
this Clause 23.7.3 shall serve as the chairman of the Tribunal.

23.7.5 All the members shall sign the Tribunal member's declaration of acceptance in
pursuance of the rules and procedures of the Tribunal as provided for in
Schedule-N.The Tribunal shall be established and become functional when
each of the three members has signed the declaration of acceptance.

23.7.6 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
23.7.2 and 23.7.3 for the appointment of member and the chairman. Any
replacement shall be made within a period of 30 (thirty) days after the event
giving rise to the vacancy on the Tribunal.
23.7.7 In the event any member is unable to perform its obligations in accordance with
this Clause 23.7 for any reason other than those mentioned in Clause 23.7.6,
the other members on the Tribunal shall promptly inform the Parties in writing of
such failure. The Parties shall, no later than 30 (thirty) days from the receipt of
such information, replace such member in accordance with the procedure set
out in Clause 23.7.2 and 23.7.3. For the avoidance of doubt, any replacement in
accordance with this Clause 23.7 shall be complete when the new member
signs the Tribunal member's declaration of acceptance.

23.7.8 Notwithstanding anything to the contrary stated above, the Tribunal 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 Tribunal shall not conduct any hearing or issue a
recommendation until the replacement is completed.

23.8 Cost of Arbitration

The cost of arbitration shall be borne equally by the respective parties. The
cost shall, inter alia, include the fees of the Arbitrator(s) as per rates fixed by the
Employer from time to time in accordance with provisions of Rules of Arbitration
of the International Center for Alternate Dispute Resolution, New Delhi.

23.9 Suspension of Work on Account of Arbitration

The reference to Conciliation / Arbitration shall proceed not withstanding that

the Works shall not then be or be alleged to be complete, provided always that
the obligations of the Employer, Engineer and the Contractor shall not be
altered by reasons of arbitration being conducted during the progress of the
Works. Neither party shall be entitled to suspend the work or part of the work to
which the dispute relates on account of arbitration and payments to the
Contractor shall continue to be made in terms of the Contract.
 ARTICLE 24

SUSPENSION OF WORK

24.1 Suspension upon Contractor Default

Upon occurrence of a Contractor Default, the Employer shall be entitled, without

prejudice to its other rights and remedies under this Agreement including its
rights of Termination hereunder, to (i) suspend all rights of the Contractor under
this Agreement including the Contractor's right to construct and maintain the
Project pursuant hereto, and (ii) exercise such rights itself and perform the
obligations hereunder or authorise any other person to exercise or perform the
same on its behalf during such suspension (the "Suspension"). Suspension
hereunder shall be effective forthwith upon issue of notice by the Employer to
the Contractor and may extend up to a period not exceeding 180 (one hundred
and eighty) days from the date of issue of such notice.

24.2 Employer to act on behalf of Contractor

During the period of Suspension hereunder, all rights and liabilities vested in the
Contractor in accordance with the provisions of this Agreement shall continue to
vest therein and all things done or actions taken, including expenditure incurred
by the Employer for discharging the obligations of the Contractor under and in
accordance with this Agreement shall be deemed to have been done or taken
for and on behalf of the Contractor and the Contractor undertakes to indemnify
the Employer for all costs incurred during such period. The Contractor hereby
licences and sub-licences respectively, the Employer or any other person
authorised by it under Clause 24.1 to use during Suspension, all Intellectual
Property belonging to or licenced to the Contractor with respect to the Project
Highway and its design, engineering, construction, operation and maintenance,
and which is used or created by the Contractor in performing its obligations
under the Agreement.

24.3 Revocation of Suspension

24.3.1 In the event that the Employer shall have rectified or removed the cause of
Suspension within a period not exceeding 90 (ninety) days from the date of
Suspension, it shall revoke the Suspension forthwith and restore all rights of the
Contractor under this Agreement. For the avoidance of doubt, the Parties
expressly agree that the Employer may, in its discretion, revoke the Suspension
at any time, whether or not the cause of Suspension has been rectified or
removed hereunder.

24.3.2 Upon the Contractor having cured the Contractor Default within a period not
exceeding 90 (ninety) days from the date of Suspension, the Employer shall
revoke the Suspension forthwith and restore all rights of the Contractor under
this Agreement.

24.5 Suspension of Work by Engineer

 The Engineer may at any time instruct the Contractor to suspend progress of part
or all of the Works. During suspension, the Contractor shall protect, store and
secure such part or whole of the Works against any deterioration, loss or
damage.

24.6 Consequences of Suspension

The Contractor shall not be entitled to extra cost (if any), incurred by him, during
the period of suspension of work, if such suspension is:

a. provided for in the Contract, or

b. necessary for proper execution of Woks or by reasons of weather condition

or

c. by some default on the part of the Contractor, or

d. necessary for the safety of Works or any part thereof or

e. necessary for the safety of adjoining public or other property or safety of the
public or workmen or those who have to be at the site or

f. to ensure safety and to avoid disruption of traffic and utilities, as also to

permit fast repairs and restoration of any damaged utilities.

If suspension is ordered by the Engineer for reasons other than those mentioned
above then the Contractor’s entitlement shall be as per the table below:

Suspension Extension Compensation for Remarks

Period of Time the suspension
period
Upto 7 days NO NO Engineer may, at his sole
discretion, give extension of
time in exceptional
circumstances
Above 7 but YES NO Extension of time as considered
up to 28 proper by Engineer
days
Above 28 YES Compensation Extension of time and
but up to 91 per day = 0.075 * compensation shall be decided
days C * 1/N by Engineer
Where:
C = Contract
price
N = completion
period in
days
 Above 91 NO Contractor may ask for closure
days As per Clause of the Contract, or deletion from
If 20.7.2 the Contract of that part of
Contractor Works which has been
asks for fore suspended
closure

24.7 Resumption of Work

After receipt of permission or of an instruction to proceed, the Contractor shall,

after notice to the Engineer, and together with the Engineer, examine the Works,
Plant/Machinery, goods and Materials affected by the suspension. The
Contractor shall make good any deterioration or defect in or loss of the Works,
Plant, Rolling Stock and Materials, which has occurred during the suspension.
 ARTICLE 25

LIABILITY AND INDEMINITY

25.1 General indemnity

25.1.1 The Contractor will indemnify, defend, save and hold harmless the Employer
and its officers, servants, agents, Government Instrumentalities and
Government owned and/or controlled entities/enterprises, (the "Employer
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 Employer Indemnified Persons.

25.2 Indemnity by the Contractor

25.2.1 Without limiting the generality of Clause 25.1, the Contractor shall fully
indemnify, hold harmless and defend the Employer and the Employer
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 Contractor's 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.

25.2.2 Without limiting the generality of the provisions of this Article 25, the
Contractor shall fully indemnify, hold harmless and defend the Employer
Indemnified Persons from and against any and all suits, proceedings,
actions, claims, demands, liabilities and damages which the Employer
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 Contractor's Sub-
contractors in performing the Contractor's 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, or any part thereof or comprised therein, is held to constitute an
infringement and its use is permanently enjoined, the Contractor shall
promptly make every reasonable effort to secure for the Employer a licence,
at no cost to the Employer, 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.

25.3 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
25 (the "Indemnified Party") it shall notify the other Party (the
"Indemnifying Party") within 14 (fourteen) 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.

25.4 Defence of claims

25.4.1 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 25, 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.

25.4.2 If the Indemnifying Party has exercised its rights under Clause 25.3, 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).

25.4.3 If the Indemnifying Party exercises its rights under Clause 25.3, 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 Clause 25.4.3 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.

25.5 No consequential claims

 Notwithstanding anything to the contrary contained in this Article 25, 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.

25.6 Survival on Termination

The provisions of this Article 25 shall survive Termination.

 ARTICLE 26
STAFF AND LABOUR

26.1 Engagement of Staff and Labour

The Contractor shall make his own arrangements for the engagement of staff and
labour at his own cost.

26.2 Rates of Wages and conditions of Labour

26.2.1 Full compliance of statutory requirements apart, the Contractor shall pay rates of
wages and observe conditions of labour not less favourable than those
established for the trade or the industry where the work is carried out.

The Contractor shall make himself aware of all labour regulations and their
impact on the cost and build up the same in the Contract Price. During the
Contract Period, unless and otherwise provided in the contract, no extra amount
in this regard shall be payable to the Contractor, for whatsoever reason.

26.2.2 Labour provided by the Contractor, either directly or through sub-contractors, for
the exclusive use of the Employer or the Engineer, shall, for the purpose of this
Sub-Clause, be deemed to be employed by the Contractor.

26.2.3 In the event of default being made in the payment of any money in respect of
wages of any person employed by the Contractor or any of its sub-contractors of
any tier in and for carrying out of this Contract and if a claim therefore is filed in
the office of the Labour Authorities and proof thereof is furnished to the
satisfaction of the Labour Authorities, the Employer may, failing payment of the
said money by the Contractor, make payment of such claim on behalf of the
Contractor to the said Labour Authorities and any sums so paid shall be
recoverable by the Employer from the Contractor.

26.3 EPF/ESI contributions

It shall be responsibility of contractor to pay EPF/ESI contributions as required

under prevailing laws. Contractor shall bear all such cost and deemed to be
included in contract price.

26.4 Persons in the service/retired of Employer/Engineer

a) The Contractor shall not recruit or attempt to recruit staff and labour from
amongst the Employer and the Engineer’s personnel.

b) The Contractor either at the tendering stage or during construction stage

will not employ any retired employee of Employer or Engineer of the
Employer in any capacity unless such employee has completed at least one
year post retirement period or has obtained the no-objection certificate from
 Employer for being employed with the Contractor. It will be responsibility of
the Contractor to collect the Employer’s no objection certification from such
retired employee and submit the same back to the Employer.

In case of non-compliance of above, in addition to any or several of the courses,

referred in Clause 20.1 being adopted by the Employer the Contractor on
Termination of the Contract for the aforesaid reasons will have no claim
whatsoever against the Employer except for actual value of the Work executed till
the time of Termination.

26.5 Labour Laws

(a) In dealing with labour and employees, the Contractor and his Sub-
Contractors (including piece rate and petty Contractors) shall comply fully
with all laws and statutory regulations pertaining to engagement, payment
and upkeep of the labour in India.

(b) The Contractor shall have a Labour Welfare Organisation which shall be
responsible for labour welfare and compliance with prevalent labour laws,
statutes and guidelines. In this context the Contractor is also required to
familiarize himself with Labour Welfare Rules of respective Employer as
specified in Special Conditions of Contract or elsewhere in the contract and
comply with the same.

(c) The Contractor shall prepare and submit compliance reports of adherence
to labour laws as and when desired by the Engineer.

26.6 Working Hours

The Contractor, if required, shall carry out work during night hours or in shifts,
unless specifically provided otherwise in the Contract. No increase in rates or
extra payments shall be admissible for night work.

The Contractor shall provide adequate lighting and safety arrangements.

26.7 Facilities for Staff and Labour

26.7.1 The Contractor shall provide and maintain at his own expanse, all necessary
accommodation and welfare facilities as per prevailing labour & welfare laws for
his (and his Sub-contractor’s) staff and labour. This includes good practices like
provision of temporary crèche (Bal Mandir) where 50 or more women are
employed at a time, labour huts, temporary latrines & urinals, clean water for
drinking, bathing and washing. All accommodation shall be maintained in a clean
and sanitary condition, by the Contractor at his cost.
26.7.2 The Engineer shall have power to give notice in writing to the contractor requiring
to provide above said facilities and the amenities and other facilities and the
amenities prescribed under labour laws be provided to the work-people within a
reasonable time to be specified in the notice. If the contractor shall fail within the
period specified in the notice to comply the directions, the Engineer shall have
the power to provide the facilities and amenities hereinbefore mentioned at the
cost of the contractor

26.8 Health and Safety

Precaution shall be taken by the Contractor to ensure the health and safety of his
staff and labour. The Contractor shall, in collaboration with and to the
requirements of the local health authorities, ensure that medical staff, first aid
facilities, sick bay and ambulance service are available at the accommodation
and on the Site at all times, and that suitable arrangements are made for all
necessary welfare and hygiene requirements and for the prevention of
epidemics. The Contractor shall maintain records and make reports concerning
health, safety and welfare of persons, and damage to property, as per the
Engineer’s requirement and will ensure complete compliance with relevant
clauses of Employer’s Health, Safety and Environment Manual (SHE Manual).

The Contractor's Site Safety Plan shall be developed from his Outline Safety
Plan as per Employer's Requirements and SHE Manual of the Employer.

The Contractor shall appoint a member of his staff at the Site to be responsible
for maintaining the safety, and protection against accidents, of personnel on the
Site. This person shall be qualified for his work and shall have the authority to
issue instructions and take protective measures to prevent accidents.

26.9 Contractor’s Superintendence:

The Contractor shall provide all necessary superintendence during the design
and execution of the Works, and as long thereafter as the Engineer may consider
necessary for the proper fulfilling of the Contractor's obligations under the
Contract. Such superintendence shall be provided by sufficient persons having
adequate knowledge of the operations to be carried out (including the methods
and techniques required, the hazards likely to be encountered and methods of
preventing accidents) for the satisfactory and safe execution of the Works.

26.10 Provision of Efficient and Competent Staff:

The Contractor shall employ (or cause to be employed) only persons who are
careful and appropriately qualified, skilled and experienced in their respective
trades or occupations. The Engineer may require the Contractor to remove (or
cause to be removed) any person employed on the Site or Works, including the
Contractor's Representative, who in the opinion of the Engineer:
a. persists in any misconduct,
 b. is incompetent or negligent in the performance of his duties,
c. fails to conform with any provisions of the Contract, or
d. persists in any conduct which is prejudicial to safety, health, or the protection
of the environment.

26.11 Preservation of Peace and Orderly Conduct:

a. The contractor shall be responsible for preservation of peace and orderly

conduct at the site and its neighbourhood by contractor’s employees,
representatives, petty contractors, sub-contractors etc. In case, deployment
of special Police Force becomes necessary at or near site, during the tenure
of works, the expenses for the same shall be borne by the contractor.

b. The contractor shall at all the times take all reasonable precautions which will
include that no labour or employee is permitted to work at site in an
intoxicated condition or under influence of drugs, to prevent any unlawful,
riotous or disorderly conduct by or amongst his staff and labour, and to
preserve peace and protection of persons and property in neighbourhood of
the works against such conduct.

26.12 Labour to be Contractor’s Employee:

If, the Contractor directly or through petty contractors or Sub-Contractors

supplies any labour to be used wholly or partly under the direct orders and
control of the Engineer or the Employer, whether in connection with any work
being executed by the Contractor or otherwise for the purposes of the Employer,
such labour shall, for the purpose of this clause, be deemed to be persons
employed by the Contractor.

26.13 Reports of Accidents to Labour:

The Contractor shall be responsible for safety of all employees, employed by him
on Works, directly or through petty contractors or Sub-Contractors, and shall
report accidents to any of them, however, and wherever occurring on Works, to
the Engineer or the Engineer’s Representative, and shall make every
arrangement to render all possible assistance and to provide prompt and proper
medical attention. The compensation for affected Workers or their relatives shall
be paid by the Contractor in such cases with utmost expeditious in accordance
with the Workmen’s Compensation Act.

26.14 Claim on account of violation of Labour Laws:

The Contractor shall be solely accountable for violation of any labour law by it, its
petty contractors or Sub Contractors and will pay any such claim/damage to the
authorities forthwith on demand. If any moneys shall, as a result of any
instructions, directions or decisions from the Authorities or claim or application
made under any of the labour laws or regulations, be directed to be paid by the
Employer, such moneys shall be deemed to be moneys payable to the Employer
by the Contractor and he will pay the same to the Employer forthwith on demand,
without demur and without asking for any reasons/explanations from the
Employer. On failure of the Contractor to repay the Employer any moneys paid or
to be paid by it as aforesaid within seven days after the same shall have been
demanded, the Employer shall be entitled to recover the amount from any
moneys due or accruing to the Contractor under this or any other Contract with
the Employer.
 ARTICLE 27

MAINTENANCE

27.1 Maintenance obligations of the Contractor

27.1.1 The Contractor shall maintain the Project for a period of 2 (two) years
commencing from the date of the Taking Over Certificate (the "Maintenance
Period"). For the performance of the Maintenance obligations for 2 (two) years,
the Contractor shall be paid a total amount equal to 1.5% (one and one-half per
cent) of the Contract Price per annum for the first year, and 2% (two per cent) of
the Contract Price per annum for the second year.

Note:

(i) Peiod of maintenance may vary as per requirement and to be decided

by Employer.

(ii) The period of maintenance may include or exclude defect liability

period as decided by Employer and it should be defined in bid
document.

(iii) Percentage amount to be paid during defect liability period and

maintenance period may vary as decided by Employer.

27.1.2 During the Maintenance Period, the Employer shall provide to the Contractor
acess to the Site for Maintenance,in accordance with this Agreement. The
obligations of the Contractor hereunder shall include:

(a) permitting safe, smooth and uninterrupted use of the Project;

(b) undertaking routine maintenance including prompt repairs of various items as

defined by employer in Schedule E;

(c) undertaking repairs to structures;

(d) informing the Employer of any unauthorised use of the Project; and

(e) informing the Employer of any encroachments on the Project/construction

site;

27.1.3 The Contractor shall be responsible for maintenance of the project as per the
scope of maintenance specified in Schedule-E in accordance with Good Industry
Practice and to the entire satisfaction of the Employer’s Engineer.

27.1.4 The Contractor shall remove promptly from the Project all surplus construction
machinery and Materials, waste materials (including hazardous materials and
waste water), rubbish and other debris (including, without limitation, accident
debris) and keep the Project in a clean, tidy and orderly condition, and in
conformity with the Applicable Laws, Applicable Permits and Good Industry
Practice.
27.2 Maintenance Requirements

The Contractor shall ensure and procure that at all times during the Maintenance
Period, the Project conforms to the maintenance requirements set forth in
Schedule-E (the "Maintenance Requirements").

27.3 Maintenance Programme

27.3. Contractor shall prepare a monthly maintenance programme (the Maintenance

Programme") in consultation with the Employer's Engineer and submit the same
to the Employer's Engineer not later than 10 (ten) 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 Employer's
Engineer shall be undertaken. The Maintenance Programme shall contain the
following:

(a) The condition of the various works/items in the format prescribed by the
Employer's Engineer;

(b) the proposed maintenance works; and

(c) deployment of resources for maintenance works.

27.4 Safety and accidents

The Contractor shall ensure safe conditions for the Users, and in the event of
unsafe conditions, 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.

27.5 Supervision and Monitoring during Maintenance

27.5.1 Inspection by the Contractor

(i) The Employer's Engineer shall undertake regular inspections to evaluate

continuously the compliance with the Maintenance Requirements.

(ii) The contractor shall submit to Employer’s Engineer a Monthly Maintenance

Statement in three copies by 7th day of each month in a format decided by
Employer’s Engineer for the maintenance of the ptoject during previous
month.

(iii) The Contractor shall carry out a detailed pre-monsoon inspection of all works
in accordance with Maintenance Manual and relevant BIS/IRC code. Report
of this inspection together with details of proposed maintenance works as
required shall be conveyed to the Employer's Engineer forthwith. The
Contractor shall complete the proposed maintenance works before the onset
of the monsoon and send a compliance report to the Employer's Engineer.
Post monsoon inspection shall be undertaken by the Contractor and the
inspection report together with details of any damages observed and
 proposed action to remedy the same shall be conveyed to the Employer's
Engineer forthwith.

27.5.2 Inspections by Engineer

(i) The Employer's Engineer may inspect the Project at any time, but at least
once every month, to ensure compliance with the Maintenance
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, and the Maintenance Programme, and send a copy
thereof to the Employer and the Contractor within 10 (ten) days of such
inspection.

(ii) After the Contractor submits to the Employer's Engineer the Monthly
Maintenance Statement for of the Project pursuant to Clause 27.5.1(ii), the
Employer's Engineer shall carry out an inspection within 7 (seven) days to
certify the amount payable to the Contractor. The Employer's Engineer shall
inform the Contractor of its intention to carry out the inspection at least 3
(three) days in advance of such inspection. The Contractor shall assist the
Employer's Engineer in verifying compliance with the Maintenance
Requirements.

(iii) For each case of non-compliance of Maintenance Requirements as specified

in the inspection report of the Employer's Engineer, the Employer's Engineer
shall calculate the amount of reduction in payment.

27.5.3 Exclusion

Cost incurred on defect and deficiency rectification of works covered under defect
liability period under claus 17.1 shall be borne by contractor and shall not be
covered under maintenance obligations.

27.6 Reduction of payment for non-performance of Maintenance obligations

27.6.1 In the event that the Contractor fails to repair or rectify any Defect or deficiency
set forth in Annexure-I of Schedule-E within the period specified therein, it shall
be deemed as failure of performance of Maintenance obligations by the
Contractor. The Employer’s Engineer may reduce the cost of element of
maintenance not carried out by contractor accepting non performance of the
contractor and the Employer shall be entitled to effect reduction for such
expenditure against cost of work component not executed by the contractor from
monthly lump sum payment for maintenance due to the contractor, without
prejudice to the rights of the Employer under this Agreement, including
Termination thereof.

27.6.2 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 Employer's Engineer and conveyed to
the Contractor and the Employer with reasons thereof.

27.6.3 Any reduction made on account of non-compliance will not be paid subsequently
even after establishing the compliance thereof. Such deductions will continue to
be made every month until the compliance is procured.

27.7 Employer's right to take remedial measures .

In the event the Contractor does not maintain and/or repair the Project 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 time specified in Schedule E or a notice in this
behalf from the Employer or the Employer's Engineer, as the case may be, the
Employer shall, without prejudice to its rights under this Agreement including
Termination thereof, be entitled to undertake such remedial measures at the 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 Employer as Damages.

27.8 Restoration of loss or damage to Project

Save and except as otherwise expressly provided in this Agreement, in the event
that the Project or any part thereof suffers any loss or damage during the
Maintenance from any cause attributable to the Contractor, 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.

27.9 Tests

For determining that the Project conforms to the Maintenance Requirements, the
Employer's 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 Employer's Engineer and furnish
the results of such tests forthwith to the Employer's Engineer.

27.10 Reports of unusual occurrence

The Contractor shall, during the Maintenance Period, prior to the close of each
day, send to the Employer and the Employer's Engineer, by facsimile or e-mail, a
report stating accidents and unusual occurrences within three days such as.

(i) accident, death or severe injury to any person;

(ii) damaged or dislodged fixed equipment;

(iii) damage due to flooding/eartquake/roits/any natural disaster; and

(iv) any other unusual occurrence.

27.11 Payment for Maintenance of the Project

27.11.1 Within 7 (seven) days of receipt of the Monthly Maintenance Statement from the
Contractor, the Employer's Engineer shall verify the Contractor's monthly
statement and certify the amount to be paid to the Contractor taking into account:

(a) Compliance with the Maintenance Requirements; and

(b) Reduction for non-compliance with the Maintenance Requirement in

accordance with Clause 27.6 and Clause 27.7.

The Employer's Engineer shall deliver to the Employer an IPC approving or

amending the monthly statement to reflect the amount due to the Contractor in
accordance with this Agreement.

27.11.2 Maintenance shall be measured in units as decided under Annexure-II of

Schedule E, however, that payment thereof shall be made in fixed monthly
amounts (Total amount payable every year divided by 12) in accordance with this
Agreement. If the Maintenance Requirements set forth in Schedule-E are not
met, reduction in payments shall be made in accordance with the provisions of
Clause 27.6 and Clause 27.7. The reductions for noncompliance with the
Maintenance Requirements shall be applied on the basis of monthly inspections
by the Emplyor's Engineer.

27.11.3 The deduction made on account of non-compliance with the Maintenance

Requirements shall not be subsequently considered for payment after the
compliance is achieved by repair or rectification.

27.11.4 The Employer shall pay to the Contractor amount due every month. The payment
shall be made within 14 days of submission of monthly maintenance statement
by the contractor. In the event of the failure of the Employer to make payment to
the Contractor within the specified time, the Employer shall be liable to pay to the
Contractor simple interest at the rate of Primary Landing Rate of State Bank of
India plus 2% on all sums remaining unpaid from the date on which the same
should have been paid.
 ARTICLE 28

SERVICE OF NOTICE

28.1 Any Notice or document or order to be given by one Party to other Party shall
be deemed to be served:

28.1.1 By the Employer/ Engineer:

(i) Delivering it by hand to the Contractor or contractor’s person as

designatedby notice to Employer; or

(ii) Leaving it at, or sending by e-mail at mail ID last known or by sending it

by registered post/ speed post to, the address of the place of residence
or business of the Contractor last known;

(iii) On a body corporate by leaving it at, or sending by e-mail at mail ID last

known or sending it by registered post/ speed post to, the registered
office of the corporate.

28.1.2 By the Contractor

(i) Delivering it by hand to the Employer/ Engineeror other person of

Employer as designated by notice to Contractor; or

(ii) Leaving it at, or sending by e-mail at mail ID last known or by

sending it by registered post/ speed post to, the address of the place
of residence or business of the Contractor last known;

28.1.3 Provided that in the case of e-mail, it shall be deemed to have been delivered
on the working day following the date of its delivery.

28.2 When the procedure as laid down under clause 29.1 is followed, service shall
be deemed to be affected by properly addressing, preparing and posting the
document, notice or order as the case may be.