NC02 RFPVol 2 CA

MAHARASHTRA STATE ROAD DEVELOPMENT CORPORATION LTD.
(Government of Maharashtra Undertaking)
Construction of Nagpur – Chandrapur Access Controlled Super

Communication Expressway in the State of Maharashtra on EPC Mode
REQUEST FOR PROPOSAL (RFP)
PACKAGE NC-02 from km 33+300 Lonhar Tq. Samudrapur Dist. Wardha to

km 63+150 Borgaon Deshmukh Tq. Warora Dist. Chandrapur (Length-
29.850 km)
VOLUME – II
CONTRACT AGREEMENT
FEBRUARY – 2024
Maharashtra State Road Development Corporation Ltd.

Opp. Bandra Reclamation Bus Depot, Near Lilavati Hospital, KC Marg, Bandra (West),
Mumbai - 400050
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Communication Expressway in the State of Maharashtra on EPC Mode -
Contract
Package NC-02 from km 33+300 Lonhar Tq. Samudrapur Dist. Wardha to
Agreement
29.850 km)
Part I Preliminary
Contractor Page 1 MSRDC

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ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

THIS AGREEMENT is entered into on this the ………. Day of ………, 20….
BETWEEN
Maharashtra State Road Development Corporation Ltd. (MSRDC Ltd.) , Mumbai , a

Government of Maharashtra undertaking (The “MSRDC”), having its office at
Maharashtra State Road Development Corporation Ltd. ,Opp. Bandra Reclamation
Bus Depot, Near Lilavati Hospital, K.C. Marg, Bandra (West) Mumbai-400050
represented by Vice Chairman & Managing Director and having its registered office at
Nepean Sea Road, Priyadarshini Park, Mumbai - 400036 (Hereinafter referred to as the
“Authority” which expression shall, unless repugnant to the context or meaning
thereof, include its administrators, successors and assigns) of One Part;
AND
{------------,} means the selected Contractor having its registered office at ……………,
(hereinafter referred to as the “Contractor” which expression shall, unless repugnant to
the context or meaning thereof, include its successors and permitted assigns) of the
Other Part.
WHEREAS:
(A) The Government of Maharashtra has entrusted to the Authority the development,
maintenance and management of “Construction of Nagpur-Chandrapur Access
Controlled Super Communication Expressway in the State of Maharashtra on EPC
Mode for Package NC-02 from km 33+300 Lonhar Tq. Samudrapur Dist. Wardha to km
63+150 Borgaon Deshmukh Tq. Warora Dist. Chandrapur (Length- 29.850 km)”.
(B) The Authority had resolved to construct the “Construction of Nagpur-Chandrapur

Access Controlled Super Communication Expressway in the State of Maharashtra on
EPC Mode for Package NC-02 from km 33+300 Lonhar Tq. Samudrapur Dist. Wardha
to km 63+150 Borgaon Deshmukh Tq. Warora Dist. Chandrapur (Length- 29.850 km)”
in accordance with the terms and conditions to be set forth in an agreement to be
entered into.

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(C) The Authority had accordingly invited proposals by its [Request for Qualification No. :
Tender Id: 2023_MSRDC_892850_1 dated 11.04.2023] (the “Request for Qualification”
or “RFQ”) for short listing of contractors for implementation of project on EPC Mode
Package NC-02 from km 33+300 Lonhar Tq. Samudrapur Dist. Wardha to km 63+150
Borgaon Deshmukh Tq. Warora Dist. Chandrapur (Length- 29.850 km) had shortlisted
certain Contractors including, inter alia, the selected contractor.
(D) The Authority had prescribed the technical and commercial terms and conditions, and
invited bids (the “Request for Proposals” or “RFP”) from the contractors shortlisted
pursuant to the RFQ for undertaking the Project.
(E) After evaluation of the bids received, the Authority had accepted the bid of the
selected contractor and issued its Letter of Acceptance No. .......................
dated ………….. (Hereinafter called the “LOA”) to the selected contractor for
rehabilitation and augmentation of the above section of “Construction of Nagpur-
Chandrapur Access Controlled Super Communication Expressway in the State of
Maharashtra on EPC Mode for Package NC-02 from km 33+300 Lonhar Tq.
Samudrapur Dist. Wardha to km 63+150 Borgaon Deshmukh Tq. Warora Dist.
Chandrapur (Length- 29.850 km)” at the contract price specified hereinafter,
requiring the selected contractor to inter alia:
(i) deliver to the Authority a legal opinion from the legal counsel of the selected contractor
with respect to the authority of the selected contractor to enter into this Agreement
and the enforceability of the provisions thereof, within 10 (ten) days of the date of
issue of LOA; and
(ii) Execute this Agreement within 15 (fifteen) days of the date of issue of LOA.
(F) The Contractor has fulfilled the requirements specified in Recital (E) above;
NOW THEREFORE in consideration of the foregoing and the respective covenants and
agreements set forth in this Agreement, the sufficiency and adequacy of which is
hereby acknowledged, the Authority hereby covenants to pay the Contractor, in
consideration of the obligations specified herein, the Contract Price or such other sum
as may become payable under the provisions of the Agreement at the times and in the
manner specified by the Agreement and intending to be legally bound hereby, the

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Parties agree as follows:
The following documents attached hereto shall be deemed to form an integral part of
this Contract:
(a) Volume-I:
The Agreement;
Corrigendum to the Agreement; Addendum, if any, to RFP; Letter comprising the
financial Bid;
Letter of Acceptance; Power of Attorney;
Legal opinion;
Any other document to be specified
(b) Volume-II: Technical Bid

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ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions
The words and expressions beginning with capital letters and defined in this
Agreement shall, unless the context otherwise requires, have the meaning ascribed
thereto herein, and the words and expressions defined in the Schedules and used
therein shall have the meaning ascribed thereto in the Schedules.
1.2 Interpretation
1.2.1 In this Agreement, unless the context otherwise requires,
(a) References to any legislation or any provision thereof shall include

amendment or re-enactment or consolidation of such legislation or any
provision thereof so far as such amendment or re-enactment or consolidation
applies or is capable of applying to any transaction entered into hereunder;
(b) References to laws of India or Indian law or regulation having the force of law
shall include the laws, acts, ordinances, rules, regulations, bye laws or
notifications which have the force of law in the territory of India and as from
time to time may be amended, modified, supplemented, extended or re-
enacted;
(c) References to a “person” and words denoting a natural person shall be construed
as a reference to any individual, firm, company, corporation, society, trust,
government, state or agency of a state or any association or partnership
(whether or not having separate legal personality) of two or more of the above
and shall include successors and assigns;
(d) The table of contents, headings or sub-headings in this Agreement are for
convenience of reference only and shall not be used in, and shall not affect, the
construction or interpretation of this Agreement;
(e) The words “include” and “including” are to be construed without limitation and
shall be deemed to be followed by “without limitation” or “but not limited to”

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whether or not they are followed by such phrases;
(f) References to “construction” or “building” include, unless the context otherwise

requires, survey and investigation, design, developing, engineering, procurement,
supply of plant, materials, equipment, labour, delivery, transportation, installation,
processing, fabrication, testing, and commissioning of the Project Expressway,
including maintenance during the Construction Period, removing of defects, if any,
and other activities incidental to the construction and “construct” or “build” shall
be construed accordingly;
(g) References to “development” include, unless the context otherwise requires,

construction, renovation, refurbishing, augmentation, up- gradation and other
activities incidental thereto during the Construction Period, and “develop” shall
be construed accordingly;
(h) Any reference to any period of time shall mean a reference to that
according to Indian standard time;
(i) Any reference to day shall mean a reference to a calendar day;
(j) References to a “business day” shall be construed as a reference to a day (other

than a Sunday) on which banks in Mumbai are generally open for business;
(k) Any reference to month shall mean a reference to a calendar month as per the
Gregorian calendar;
(l) References to any date, period or Project Milestone shall mean and include such
date, period or Project Milestone as may be extended pursuant to this
Agreement;
(m) Any reference to any period commencing “from” a specified day or date and
“till” or “until” a specified day or date shall include both such days or dates;
provided that if the last day of any period computed under this Agreement is not a
business day, then the period shall run until the end of the next business day;
(n) The words importing singular shall include plural and vice versa;
(o) References to any gender shall include the other and the neutral gender;

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(p) “Lakh” means a hundred thousand (100,000) and “crore” means ten million
(10,000,000);
(q) “Indebtedness” shall be construed so as to include any obligation (whether

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

organization” 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, reorganization, dissolution, arrangement, protection or relief of
debtors;
(s) Save and except as otherwise provided in this Agreement, any reference, at any
time, to any agreement, deed, instrument, license or document of any description
shall be construed as reference to that agreement, deed, instrument, license
or other document as amended, varied, supplemented, modified or suspended at
the time of such reference; provided that this Clause shall not operate so as to
increase liabilities or obligations of the Authority hereunder or pursuant hereto in
any manner whatsoever;
(t) Any agreement, consent, approval, authorization, notice, communication,

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

Agreement shall, except where the context otherwise requires, mean
references to Recitals, Articles, Clauses, Sub-clauses and Schedules of or to

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this Agreement, and references to a Paragraph shall, subject to any contrary

indication, be construed as a reference to a Paragraph of this Agreement or of the
Schedule in which such reference appears;
(w) The damages payable by either Party to the other of them, as set forth in this
Agreement, whether on per diem basis or otherwise, are mutually agreed genuine
pre-estimated loss and damage likely to be suffered and incurred by the Party
entitled to receive the same and are not by way of penalty or liquidated damages
(the “Damages”); and
(x) Time shall be of the essence in the performance of the Parties’ respective
obligations. If any time period specified herein is extended for the reasons
specified in the Agreement, such extended time shall also be of the essence.
1.2.2 Unless expressly provided otherwise in this Agreement, any Documentation required
to be provided or furnished by the Contractor to the Authority shall be provided
free of cost and in three copies, and if the Authority is required to return any such
Documentation with its comments and/or approval, it shall be entitled to retain
two copies thereof.
1.2.3 The rule of construction, if any, that a contract should be interpreted against the
parties responsible for the drafting and preparation thereof, shall not apply.
1.2.4 Any word or expression used in this Agreement shall, unless otherwise defined or
construed in this Agreement, bear its ordinary English meaning and, for these
purposes, the General Clauses Act, 1897 shall not apply.
1.3 Measurements and arithmetic conventions
All measurements and calculations shall be in the metric system and calculations
done to 2 (two) decimal places, with the third digit of 5 (five) or above being
rounded up and below 5 (five) being rounded down.
1.4 Priority of agreements and errors/discrepancies

1.4.1 This Agreement, and all other agreements and documents forming part of or referred

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to in this Agreement are to be taken as mutually explanatory and, unless otherwise

expressly provided elsewhere in this Agreement, the priority of this Agreement and
other documents and agreements forming part hereof or referred to herein shall, in
the event of any conflict between them, be in the following order:
(a) This Agreement; and
(b) All other agreements and documents forming part hereof or referred to herein;
i.e., this Agreement at (a) above shall prevail over the agreements and
documents at (b).
1.4.2 Subject to the provisions of Clause 1.4.1, in case of ambiguities or discrepancies

within this Agreement, the following shall apply:
(a) Between two or more Clauses of this Agreement, the provisions of a specific
Clause relevant to the issue under consideration shall prevail over those in other
Clauses;
(b) Between the Clauses of this Agreement and the Schedules, the Clauses shall
prevail and between Schedules and Annexes, the Schedules shall prevail;
(c) Between any two Schedules, the Schedule relevant to the issue shall prevail;
(d) Between the written description on the Drawings and the Specifications and
Standards, the latter shall prevail;
(e) Between the dimension scaled from the Drawing and its specific written
dimension, the latter shall prevail; and
(f) Between any value written in numerals and that in words, the latter shall prevail.
1.5 Joint and several liability
(i) If the Contractor has formed a Joint Venture of two or more persons for
implementing the Project: Joint Venture bidding is not allowed for implementing
the project. Any reference to the Joint Venture will not have any inferences under
the contract.
(a) these persons shall, without prejudice to the provisions of this Agreement or
any other agreement, be deemed to be jointly and severally liable to the
Authority for the performance of the Agreement; and
(b) the Contractor shall ensure that no change in the composition of the Joint
Venture is effected without the prior consent of the Authority.

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(ii) Without prejudice to the joint and several liability of all the members of the Joint
Venture, the Lead Member shall represent all the members of the Joint Venture and
shall always be liable and responsible for discharging the functions and obligations
of the Contractor. The Contractor shall ensure that each member of the Joint
Venture shall be bound by any decision, communication, notice, action or inaction
of the Lead Member on any matter related to this Agreement and the Authority
shall be entitled to rely upon any such action, decision or communication of the
Lead Member. The Authority shall have the right to release payments solely to the
Lead Member and shall not in any manner be responsible or be held liable for the
inter se allocation of payments among members of the Joint venture.

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Part II
Scope of Project

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ARTICLE 2
SCOPE OF THE PROJECT
2.1 Scope of the Project
Under this Agreement, the scope of the Project (the “Scope of the Project”) shall
mean and include:
(a) Construction of the Project expressway 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 expressway 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.

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ARTICLE 3
OBLIGATIONS OF THE CONTRACTOR
3.1 Obligations of the Contractor
3.1.1 Subject to and on the terms and conditions of this Agreement the Contractor shall
undertake the survey, investigation, design, engineering, procurement,
construction, and maintenance of the Project expressway and observe, fulfill,
comply with and perform all its obligations set out in this Agreement or arising
hereunder. Special attention shall be paid to the aesthetics of all the Structures
as per the relevant provisions of IRC codes.
3.1.2 The Contractor shall comply with all Applicable Laws and Applicable Permits
(including renewals as required) in the performance of its obligations under this
Agreement.
3.1.3 Subject to the provisions of Clauses 3.1.1 and 3.1.2, the Contractor shall
discharge its obligations in accordance with Good Industry Practice and as a
reasonable and prudent person.
3.1.4 The Contractor shall remedy any and all loss, defects or damage to the Project
expressway from the Appointed Date until the end of the construction Period at
the Contractor’s cost, save and except to the extent that any such loss, defect
or damage shall have arisen from any willful default or neglect of the Authority.
3.1.5 The Contractor shall remedy any and all loss, defect or damage to the Project
expressway during the Defects Liability Period at the Contractor’s cost to the
extent that such loss, defect or damage shall have arisen out of the reasons
specified in Clause 17.3.
3.1.6 The Contractor shall remedy any and all loss or damage to the Project
expressway during the Maintenance Period at the Contractor’s cost, including
those stated in Clause 14.1.2, save and except to the extent that any such loss or
damage shall have arisen on account of any willful default or neglect of the
Authority or on account of a Force Majeure Event.

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3.1.7 The Contractor shall, at its own cost and expense, in addition to and not in
derogation of its obligations elsewhere set out in this Agreement:
(a) Make, or cause to be made, necessary applications to the relevant

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

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

relations among the personnel employed by it or its Sub-Contractors in
connection with the performance of its obligations under this Agreement;
(d) Ensure and procure that its Sub-Contractors comply with all Applicable
Permits and Applicable Laws in the performance by them of any of the
Contractor’s obligations under this Agreement;
(e) Not do or omit to do any act, deed or thing which may in any manner
violative of any of the provisions of this Agreement;
(f) support, cooperate with and facilitate the Authority in the implementation
and operation of the Project in accordance with the provisions of this
Agreement;
(g) ensure that the Contractor and its Sub-Contractors comply with the safety
and welfare measures for labour in accordance with the Applicable Laws and
Good Industry Practice;
(h) Keep, on the Site, a copy of this Agreement, publications named in this
Agreement, the Drawings, Documents relating to the Project, and Change of
Scope Orders and other communications given under this Agreement. The

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Authority’s Engineer and its authorized personnel shall have the right of
access to all these documents at all reasonable times;
(i) cooperate with other Contractors employed by the Authority and personnel of
any public authority; and
(j) Not interfere unnecessarily or improperly with the convenience of the

public, or the access to and use and occupation of all roads and footpaths,
irrespective of whether they are public or in the possession of the Authority
or of others.
3.1.8 The Contractor shall undertake all necessary superintendence to plan, arrange,
direct, manage, inspect and test the Works. The Contractor shall provide all
necessary superintendence of the Works for the proper fulfilling of the
Contractor's obligations under the Agreement. Such superintendence shall be
given by competent person 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.
3.1.9 The Contractor shall obtain and maintain a project related bank account
operational at site where all transactions related to the payment of work will be
done. The Contractor shall submit a monthly account statement and a detailed
report on utilization of funds transferred to this project related bank account to
Authority’s Engineer. Notwithstanding anything contrary to this agreement, the
authority, in the interest and to ensure timely completion of the work, reserves
the right to audit such bank accounts to ensure that there is no diversion of funds
from this project specific account to any other project being implemented by the
Contractor.
3.1.10 The Contractor shall provide the documents of the Contractor specified in the
Agreement, and all Contractors' personnel; Goods, consumables and other things
and services, whether of a temporary or permanent nature, required in and for
the execution, completion of Works and remedying defects.
3.1.11 The Contractor shall perform the Works in conformity with the Project
requirements and other requirements and standards prescribed under or pursuant

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to the Agreement.
3.1.12 The Contractor shall carry out such work incidental and contingent to the original
Scope of the Project to comply with Good Industry Practices.
3.1.13 The Contractor shall maintain required staff and necessary Contractor’s
equipment and materials within the reach of the Site during the Defects Liability
Period so that any defects arising are promptly attended.
3.1.14 The Contractor shall ensure monthly submission for item wise executed
quantities of works in the format of Measurement Books as approved by
Authority’s Engineer. List of items will be certified by Authority’s Engineer for
purpose of recording.
3.2 Obligations relating to sub-contracts and any other agreements
3.2.1 The Contractor, whether Joint Venture or sole, shall not sub-contract any Works
in more than 49% (forty-nine per cent) of the Contract Price of total length of
the Project Expressway and shall carry out Works directly under its own
supervision and through its own personnel and equipment in at least 51% (fifty-
one per cent) of the Contract Price of total length of the Project Expressway.
Further, in case the Contractor is a Joint Venture, then the Lead Member shall
carry out Works directly through its own resources (men, material and machines
etc.) in at least 51% (fifty-one per cent) of total length of the Project expressway.
Provided, however, that in respect of the Works carried out directly by the
Contractor, it may enter into contracts for the supply and installation of
Materials, Plant, equipment, road furniture, safety devices and labour, as the
case may be, for such Works. For the avoidance of doubt, the Parties agree
that the Contractor may sub-divide the aforesaid length of 51% (fifty-one per
cent) in no more than 5 (five) sections of the Project expressway. The
Parties further agree that all obligations and liabilities under this Agreement for
the entire Project Expressway shall at all times remain with the Contractor.
3.2.2. In the event any sub-contract for Works, or the aggregate of such sub-
contracts with any Sub- Contractor, exceeds 10% (ten percent) of the Contract
Price, the Contractor shall communicate the name and particulars, including the
relevant experience of the sub- Contractor, to the Authority prior to entering into

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any such sub-contract. The Authority shall examine the particulars of the sub-
Contractor from the national security and public interest perspective and may
require the Contractor, no later than 15 (fifteen) business days from the date
of receiving the communication from the Contractor, not to proceed with the
sub-contract, and the Contractor shall comply therewith.
3.2.3 In the event any sub-contract referred to in Clause 3.2.2 relates to a sub-
Contractor who has, over the preceding 3 (three) years,
(i) In case of Expressway Work, the subcontractor shall have undertaken at

least one work of a highway having four lane divided carriageway with paved
shoulders of similar nature with a contract value exceeding 50% (fifty per cent)
of the updated value of the sub-contract to be awarded hereunder and received
payments in respect thereof for an amount equal to at least such 50% (fifty per
cent). The Authority may, no later than 15 (fifteen) business days from the date
of receiving the communication from the Contractor, require the Contractor not
to proceed with such sub-contract, and the Contractor shall comply therewith
without delay or demur.
(iii) In case of Plantation Work, the Contractor shall appoint subcontractor from
the existing contractor of landscaping and plantation work of Samruddhi
Mahamarg OR Empaneled subcontractor for plantation/ transplantation/
landscaping work approved by the Chief Engineer and Regional Officer, Mumbai
and Goa NHAI vide no. NHAI/RO/MUM/Plantation/2023-24/944, dated on
22.09.2023 in category B. List of empaneled agencies is enclosed as Annexure I,
provided that similar work with a contract value exceeding 50% (fifty per cent)
of the updated value of the sub-contract to be awarded hereunder and received
payments in respect thereof for an amount equal to at least such 50% (fifty per
cent). The Authority may, no later than 15 (fifteen) business days from the date
of receiving the communication from the Contractor, require the Contractor not
to proceed with such sub-contract, and the Contractor shall comply therewith
without delay or demur.
3.2.4 It is expressly agreed that the Contractor shall, at all times, be responsible and

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liable for all its obligations under this Agreement notwithstanding anything
contained in the agreements with its Sub- Contractors or any other agreement
that may be entered into by the Contractor, and no default under any such
agreement shall excuse the Contractor from its obligations or liability under this
Agreement. However, in case of non-compliance of the Contractor towards his
obligations for payments to the approved Sub-contractor(s), which is likely to
affect the progress of works, the authority reserves the right to intervene and
direct the Contractor to release such outstanding payments to approved Sub-
contractor(s) out of the payments due for the completed Works in the interest of
work.
3.3 Employment of foreign nationals

The Contractor acknowledges, agrees and undertakes that employment of
foreign personnel by the Contractor and/or its Sub-Contractors and their 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 rest with the
Contractor. Notwithstanding anything to the contrary contained in this
Agreement, refusal of or inability to obtain any such permits and approvals by the
Contractor or any of its Sub-Contractors or their sub-Contractors shall not
constitute Force Majeure Event, and shall not in any manner excuse the
Contractor from the performance and discharge of its obligations and
liabilities under this Agreement, and the Contractor’s liabilities hereunder shall
remain unaffected by such failure, refusal or inability.
3.4 Contractor’s personnel
3.4.1 The Contractor shall ensure that the personnel engaged by it or by its Sub-
Contractors in the performance of its obligations under this Agreement are at all
times appropriately and adequately qualified, skilled and experienced in their
respective functions in conformity with Good Industry Practice. The Contractor
will try to hire at least 10% (ten percent) trained workmen as per the National
Skills Qualifications Framework. If necessary, the requisite workmen may be got
trained by the Contractor at his cost through authorized training centers of

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Directorate General of Training (DGT). The Contractor will organize training at

project site/sites for the trainees as and when required as per the training
schedule finalized in consultation with the training centers and the Authority.
The trainees are to be paid a stipend by the Contractor (subject to maximum
limit of Rs. 15,000/- per person) on the basis of minimum wages to compensate
for loss of income during the training period.
3.4.2 The Authority’s Engineer may, for reasons to be specified in writing, direct the
Contractor to remove any member of the Contractor’s or Sub-Contractor’s
personnel. Provided that any such direction issued by the Authority’s Engineer
shall specify the reasons for the removal of such person.
3.4.3 The Contractor shall on receiving such a direction from the Authority’s
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 3.4.2. The Contractor shall further ensure that such persons
have no further connection with the Works or Maintenance under this Agreement.
The Contractor shall then appoint (or cause to be appointed) a replacement.
3.5 Advertisement on Project expressway

The Project expressway or any part thereof shall not be used in any manner to
advertise any commercial product or services.
3.6 Contractor’s care of the Works

The Contractor shall bear full risk in and take full responsibility for the care of
the Works, and of the Materials, goods and equipment for incorporation therein,
from the Appointed Date until the date of Completion Certificate, save and
except to the extent that any such loss or damage shall have arisen from any
willful default or gross neglect of the Authority.
3.7 Electricity, water and other services
The Contractor shall be responsible for procuring and maintaining of all

electricity, water supply and other services as may be required, including without

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limitation, adequate power, water and other services at his own cost during
construction and maintenance period.
3.8 Unforeseeable difficulties
Except as otherwise stated in the Agreement:

(a) the Contractor accepts complete responsibility for having foreseen all
difficulties and costs of successfully completing the Works;
(b) the Contract Price shall not be adjusted to take account of any unforeseen
difficulties or costs; and
(c) The Scheduled Completion Date shall not be adjusted to take account of any
unforeseen difficulties or costs.
3.9 Environment Management Plan
3.9.1 The Contractor shall prepare the Environmental Management Plan within 15 days
of receipt of Environmental Clearance from MoEF&CC, in consultation with
Authority’s Engineer and shall incorporate suggestions, if any, provided by the
Authority’s Engineer. The Environmental Management Plan shall form part of the
Programme to be submitted by the Contractor as per Clause 10.1.3.
3.9.2 The Contractor shall comply with the conditions stipulated in the forest clearance
granted by MoEF&CC and the environment clearance granted by MoEF&CC or
SEIAA, as the case may be.
3.9.3 The Contractor shall take all necessary corrective or preventive measures to
minimize the pollution and avoid environmental damage including
air/noise/water pollution during the construction and Maintenance Period as set
out in the Environmental Management Plan and shall comply with the Applicable
Permits and all applicable national, State and local environmental laws and
regulations.
3.9.4 The Contractor shall allocate the budget required to ensure that the measures
required for protecting the environment as per the terms of this Agreement are
carried out and shall be required to submit a quarterly/semi-annual report on the

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measures taken in this regard to the Authority.
3.10 Co-ordination of the Works
3.10.1 The Contractor acknowledges that in addition to the Agreement, it is also aware
of terms of the other Project contracts and other agreements the Authority has
negotiated and entered into for performance of its obligations under the
Agreement (copies of other contracts and other agreements are made available to
the Contractor from time to time) and that the Contractor is fully aware of the
consequences to the Authority which would or are likely to result from a breach
by the Contractor of its obligations under the Agreement. In the event the actions
of the Contractor result in the breach by the Authority of any or all of the other
Project contracts and such breach imposes any liability on the Authority, the
Contractor shall: (a) undertake all steps as may be possible to mitigate or
neutralize the liability that has arisen, and (b) indemnify the Authority against
any such liability and compensate the Authority to that extent.
3.10.2 The Contractor shall be responsible for the co-ordination and proper provision of
the Works, including co-ordination of other Contractors or Sub-contractors for the
project. The Contractor shall co-operate with the Authority in the co- ordination
of the Works with the works under the other Project contracts. The Contractor
shall provide all reasonable support for carrying out their work to:
a) any other contractors employed by the Authority;
b) the workmen of the Authority;
c) the workmen of any Governmental Instrumentality who may be employed in
the execution of work on or near the Site; and
d) such other persons as is required in the opinion of the Authority for
successful completion of the Project.
3.11 Environmental Measures
The Contractor agrees to conduct its activities in connection with the Agreement
in such a manner so as to comply with the environmental requirements which
includes, inter alia, all the conditions required to be satisfied under the
environmental clearances and applicable law and assumes full responsibility for

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measures which are required to be taken to ensure such compliance.
3.12 Site Data
The Contractor shall be deemed to have inspected and examined the Site and its
surroundings and to have satisfied himself before entering into the Agreement in all
material respects including but not limited to:
a) the form and nature of the Site (including, inter-alia, the surface and
subsurface conditions and geo-technical factors);
b) the hydrological and climatic conditions;
c) the extent and nature of the works already completed and Materials
necessary for the execution and completion of the Works and the remedying
of any defects that includes already executed part also.
d) the suitability and the adequacy of the Site for the execution of the Works;
e) the means of access to the Site and the accommodation the Contractor may
require;
f) arranging permits as required as per [.] of the Agreement.
g) the requirements of operation and maintenance; and
h) all other factors and circumstances affecting the Contractor's rights and
obligations under the Agreement, the Contract Price and Time for
Completion.
3.13 Sufficiency of Contract Price
The Contractor shall have satisfied itself as to the correctness and sufficiency of
the Contract Price. The Contract Price shall cover all its obligations under the
Agreement, in addition to all risks the Contractor has agreed to undertake under
the Agreement, including those associated with the performance of its obligations
under the Agreement and all things necessary for the provision of the Works in a
manner satisfactory to the Authority and in accordance with this Agreement.
3.14 Clearance of the Site
During the provision of the Works, and as a pre-condition to the issue of the Taking -
Over Certificate, the Contractor shall clear away and remove from the Site, all
Contractor's equipment, surplus material, wastage, debris, rubbish and temporary
Works, and shall keep the Site free from all unnecessary obstructions, and shall not
store or dispose of any Contractor's equipment or surplus materials on the Site. The

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Contractor shall promptly clear away and remove from the Site any wastage,
debris, rubbish or temporary Works no longer required and leave the Site and the
Works in a clean and safe condition to the sole satisfaction of the Authority.
3.15 Provision of Facilities to the Authority
The EPC Contractor shall provide the following facilities to MSRDC throughout the
contract period. The facilities shall be used by the MSRDC discretion.
Sr.
Particulars Quantity Salary / Month Location
No.
Upto 30,000/- plus
Marathi Typist As per discretion
1 1 Nos allowances Plus 5% increment
with Computer of MSRDC
per annum
Upto 20,000/- /- plus
As per discretion
2 Peon 1 Nos allowances Plus 5% increment
of MSRDC
per annum
Project Office With Furniture and Internet
3 500 M2 Project site
for MSRDC staff connectivity
Note: If above facilities are not provided by the contractor, recovery @ the
rate of 1.5 times the rate mentioned in the table shall be made for the
period of non-availability of such facility.

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ARTICLE 4
OBLIGATIONS OF THE AUTHORITY
4.1 Obligations of the Authority
4.1.1 The Authority shall, at its own cost and expense, undertake, comply with and
perform all its obligations set out in this Agreement or arising hereunder.
4.1.2 The Authority shall be responsible for the correctness of the Scope of the
Project, Project Facilities, Specifications and Standards and the criteria for
testing of the completed Works.
4.1.3 The Authority shall, upon submission of the Performance Security as per the RFP by
the Contractor, shall provide the right of way to the Contractor: in respect of all
land included in the Annex I of Schedule A by the date specified in Annex II of
Schedule-A for those parts of the Site referred to therein to the Contractor.
(a) Not less than 90% (ninety per cent) of the required Right of Way of the
Construction Zone of total length of the Project expressway shall be
provided on the date of Appointment, which shall be in contiguous stretches
of length not less than 1 (one) kilometer and balance 10% (ten Percent of
the required Right of Way of the construction Zone of total length of the
Project expressway shall be provided within a period of 365 (three hundred
sixty-five) days from the date of appointment.
(b) Project expressway approval of the general arrangement drawings (the
“GAD”) from railway authorities to enable the Contractor to construct road
over- bridges/ under-bridges at level crossings on the Project expressway in
accordance with the Specifications and Standards, and subject to the terms
and conditions specified in such approval, within a period of 60 (sixty) days
from the Appointed Date. Contractor shall bear all charges for approval of
detailed design & drawing and supervision charges as applicable to the
railway authorities for and in respect of the road over-bridges/under
bridges; and
(c) All environmental clearances as required are under Clause 4.3.

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4.1.4 Delay in providing the Right of Way or approval of GAD by railway authorities, as
the case may be, in accordance with the provisions of Clause 4.1.3 shall not
entitle the Contractor to damages in a sum calculated in accordance with the
provisions of Clause 8.3 of this Agreement. Contractor shall entitle for Time
Extension in accordance with the provisions of Clause 10.5 of this
Agreement. For the avoidance of doubt, the Parties agree that the Damages for
delay in approval of GAD by the railway authorities for a particular road over-
bridge/under- bridge shall not be deemed to be equal to the Damages payable
under the provisions of Clause 8.3 for delay in providing Right of Way for a
length of 1 (one) kilometer for each such road over-bridge/under- bridge. No
damages shall be payable in case delay in providing the Right of Way or approval
of GAD by railway authorities.
4.1.5 Notwithstanding anything to the contrary contained in this Agreement, the

Parties expressly agree that the aggregate Damages payable under Clauses
4.1.4, 8.3 and 9.2 shall not exceed 0.5% (point five per cent) of the Contract
Price. For the avoidance of doubt, the Damages payable by the Authority under
the aforesaid Clauses shall not be additive if they arise concurrently from more
than one cause but relate to the same part of the Project expressway.
Both the parties agree that payment of these Damages shall be full and final
settlement of all claims of the Contractor and such compensation shall be the
sole remedy against delays of the Authority and both parties further agree that
the payment of Damages shall be final cure for the Contractor against delays of
the Authority, without recourse to any other payments.
4.1.6 The Authority agrees to provide support to the Contractor and undertakes to
observe, comply with and perform, subject to and in accordance with the
provisions of this Agreement and the Applicable Laws, the following:
(a) upon written request from the Contractor, and subject to the Contractor
complying with Applicable Laws, provide reasonable support to the
Contractor in procuring Applicable Permits required from any Government
Instrumentality for implementation of the Project.
(b) upon written request from the Contractor, provide reasonable assistance to

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the Contractor in obtaining access to all necessary infrastructure facilities

and utilities, including water and electricity at rates and on terms no less
favorable than those generally available to commercial customers receiving
substantially equivalent services.
(c) procure that no barriers that would have a material adverse effect on the
works are erected or placed on or about the Project expressway by any
Government Instrumentality or persons claiming through or under it, except
for reasons of Emergency, national security, law and order or collection of
inter-state taxes.
(d) not do or omit to do any act, deed or thing which may in any manner be
violative of any of the provisions of this Agreement;
(e) support, cooperate with and facilitate the Contractor in the implementation
of the Project in accordance with the provisions of this Agreement; and
(f) upon written request from the Contractor and subject to the provisions
of Clause 3.3, provide reasonable assistance to the Contractor and any
expatriate personnel of the Contractor or its Sub-Contractors to obtain
applicable visas and requisite work permits for the purposes of discharge by
the Contractor or its Sub-Contractors of their obligations under this
Agreement and the agreements with the Sub-Contractors.
4.2 Deleted
4.3 Environmental Clearances

The Authority represents and warrants that the environmental clearances
required for construction of the Project shall be procured by the Authority
prior to the date of issue of LOA. For the avoidance of doubt, the present status
of environmental clearances is specified in Schedule-A.
4.4 Deemed Termination upon delay

Without prejudice to the provisions of Clauses 8.3, and subject to the provisions
of Clause 7.3, the Parties expressly agree that in the event the Appointed Date
does not occur, for any reason whatsoever, within 90 days of signing of the
Agreement and submission of the full Performance Security by the Contractor, the
Agreement shall be deemed to have been terminated. The Authority shall pay

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damages to the Contractor equivalent to 1% of the Contract Price. All other

rights, privileges, claims and entitlements of the Contractor under or arising out
of this Agreement shall be deemed to have been waived by, and to have ceased.
The Contractor shall hand over all information in relation to the Expressway,
including but not limited to any data, designs, drawings, structures, information,
plans, etc. prepared by them for the Expressway, to the Authority.

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ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1 Representations and warranties of the Contractor
i) The Contractor represents and warrants to the Authority that:
(a) it is duly organized and validly existing under the laws of India, and has
full power and authority to execute and perform its obligations under this
Agreement and to carry out the transactions contemplated hereby;
(b) it has taken all necessary corporate and/or other actions under Applicable
Laws to authorize 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
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, Request for Qualification and Request
for Proposals with its Common set of deviations and clarifications or
otherwise 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, or result in the breach of, or 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

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which it or any of its properties or assets is bound or affected;
(g) there are no actions, suits, proceedings, or investigations pending or, to its
knowledge, threatened against it at law or in equity before any court or
before any other judicial, quasi-judicial or other authority, the outcome
of which may result in the breach of this Agreement or which individually or
in the aggregate may result in any material impairment of its ability to
perform any of its obligations under this Agreement;
(h) it has no knowledge of any violation or default with respect to any order,
writ, injunction or decree of any court or any legally binding order of any
Government Instrumentality which may result in any material adverse effect
on its ability to perform its obligations under this Agreement and no fact or
circumstance exists which may give rise to such proceedings that would
adversely affect the performance of its obligations under this Agreement;
(i) it has complied with Applicable Laws in all material respects and has not
been subject to any fines, penalties, injunctive relief or any other civil or
criminal liabilities which in the aggregate have or may have a material
adverse effect on its ability to perform its obligations under this Agreement;
(j) no representation or warranty by it contained herein or in any other

document furnished by it to the Authority or to any Government
Instrumentality in relation to Applicable Permits contains or will contain any
untrue or misleading statement of material fact or omits or will omit to
state a material fact necessary to make such representation or warranty
not misleading;
(k) no sums, in cash or kind, have been paid or will be paid, by it or on its
behalf, to any person by way of fees, commission or otherwise for securing
the contract or entering into this Agreement or for influencing or attempting
to influence any officer or employee of the Authority in connection
therewith;

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(l) all information provided by the {selected Contractor/ members of the

Consortium} 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 the Authority and any Sub- Contractors, designers,
consultants or agents of the Contractor.
(n) it is adequately financed has the requisite knowledge, expertise, technical

know-how, experience, resources, infrastructure, licenses, patents, copy
rights, for designing, supplying/ procuring the goods and materials, and for
providing the installation and construction services required for completing
the construction of the Project Facilities; and
ii) it represents the Authority that:
(a) it owns or has the right to use all “Intellectual Property” necessary to
perform the contractual obligations and to carry on the Works without
conflict with the right of others;
(b) All intellectual property rights necessary to perform the contractual

obligations and to carry on the Works are in full force and effect and are
vested in, and beneficially owned by the Contractor, and are free from
encumbrances.
(c) None of the intellectual property rights is being used, claimed, or posed
or attacked by any other person, nor does the use of such intellectual
property rights or any part of them infringe the intellectual property
rights owned or enjoyed by any third party.
(d) None of the intellectual property rights owned or used by the Contractor
is the subject of any claim, opposition, attack, assertion or other
arrangement of whatsoever nature which does or may impinge upon their
use, validity, enforceability or ownership by the Parties, and there are no
grounds or other circumstances which may give rise to the same.

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(e) No licenses or registered user or other rights have been granted or agreed
to be granted to any third party in respect of such intellectual property
rights.
(f) No act has been done or has been omitted to be done to entitle any
authority or person to cancel, forfeit or modify any intellectual property
rights.
(g) The Contractor shall notify the Authority of any adverse use of the
intellectual property rights or confusingly or deceptively similar to the
intellectual property rights.
(h) The Contractor shall recognize the Authority’s ownership and title to the
intellectual property rights and shall not at any time, either directly or
indirectly, put to issue the validity or ownership of the intellectual
property rights and it will not do any act or thing, either directly or
indirectly, which in anyway impairs the validity and ownership of the
intellectual property rights.
(i) The Contractor shall, promptly execute, acknowledge and deliver all
documents which are requested by Authority to record with appropriate
governmental agencies and authorities the fact that the Authority has the
right to the use of the said intellectual property rights.
(j) The Contractor shall not, for any reason, object to, or interfere in any
way with the ownership, registration or use of the intellectual property
rights by the Authority (or its licensee or assigns) for any purpose
whatsoever.
iii) The Contractor is fully aware that the Agreement is inter linked with the
other project contracts and the non-performance or deficient performance or
default by the Contractor and/or any of the Contractor’s personnel or
Subcontractors under one among the said contracts will have bearing on
the other contracts and the evaluation of the Contractor’s performance
under the Agreement and the Project itself.
iv) If at any time during the Defects Liability Period any item of the Works or

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Project Facilities or any part thereof, do not conform to the Authority

requirements and Specifications and Standards, on being so notified by the
Authority, the Contractor shall promptly rectify/remedy such
nonconformity to the satisfaction of the Authority solely at the Contractor's
expense; failing which the Authority may reject or revoke Taking-Over
Certificate, and the Authority may proceed to correct the Contractor's
nonconforming Work by the most expeditious means available, the costs of
which shall be to the Contractor's account; or the Authority may retain the
non-conforming Work and an equitable adjustment reducing the total
Contract Price to reflect the diminished value of such non-conforming Work
will be made by written amendment.
v) In addition to the other warranties, the Contractor represents and warrants

as follows:
(a) The Contractor has (or, if the technology does not currently exist, will have
granted at the time of passing to The Employer) in and to the technology
used in the equipment, materials, goods, Works, Contractor's documents,
Drawings and Manuals (“Technology")
i. all right, title and interest free of any lien, claim or restriction; and
ii. right to grant to the Authority the right to use the Technology for the
purpose of this contract, free of any lien, claim or restriction and on
the terms of license as required.
(b) The Contractor has granted (or, if the technology does not currently exist,
will grant at the time of passing to the Authority the property and title in
and to the equipment, materials, goods, Works, spares, Contractor's
documents, Drawings and Manuals in which it is used) to the Authority the
right to use the Technology, free of any lien, claim or restriction.
vi) In addition to the other Warranties, the Contractor represents and warrants
as follows:
a. No Technology contains any worm (i.e., a program that travels from one
computer to another computer but does not attach itself to the operating
system of the computer it enters), virus (i.e., a program that travels from

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one computer to another computer that attaches itself to the operating

system it enters) or self-destruct capability.
b. The Technology will not abnormally end or provide invalid or incorrect

results as a result of date-dependent data.
c. The Technology can accurately recognize, manage, accommodate, and

manipulate date-dependent data, including single and multi-century
formulas and leap years.
(vii) No criminal proceedings instituted against any of the Key personnel or Directors
of the Contractor.
(vii) Till date the services of the Contractor have not been terminated by any person
for any breach or non-performance or negligence by the Contractor.
5.2 Representations and warranties of the Authority
The Authority represents and warrants to the Contractor that:
(a) it has full power and authority to execute, deliver and perform its
obligations under this Agreement and to carry out the transactions
contemplated herein and that it has taken all actions necessary to execute
this Agreement, exercise its rights and perform its obligations, under this
Agreement;
(b) it has taken all necessary actions under the Applicable Laws to authorised 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,

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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 Authority’s ability to perform its obligations under this
Agreement;
(f) it has complied with Applicable Laws in all material respects;
(g) it has good and valid right to the Site and has the power and authority to
grant the Right of Way in respect thereof to the Contractor; and
(h) it has procured Right of Way and environment clearances such that the
Contractor can commence construction forthwith on 90% (ninety per cent)
of the total length of the Project expressway.
5.3 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.

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ARTICLE 6
DISCLAIMER
6.1 Disclaimer
6.1.1 The Contractor acknowledges that prior to the execution of this Agreement, the
Contractor has, after a complete and careful examination, made an independent
evaluation of the Request for Proposal, Scope of the Project, Specifications and
Standards of design, construction and maintenance, Site, local conditions, services
to be shifted, physical qualities of ground, subsoil and geology, traffic volumes,
diversions, suitability and availability of access routes to the Site and all
information provided by the Authority or obtained, procured or gathered
otherwise, and has determined to its satisfaction the accuracy or otherwise
thereof and the nature and extent of difficulties, risks and hazards as are likely
to arise or may be faced by it in the course of performance of its obligations
hereunder. Save as provided in Clause 4.1.2 and Clause 5.2, the Authority makes
no representation whatsoever, express, implicit or otherwise, regarding the
accuracy, adequacy, correctness, reliability and/or completeness of any
assessment, assumptions, statement or information provided by it and the
Contractor confirms that it shall have no claim whatsoever against the Authority
in this regard.
6.1.2 The Contractor acknowledges and hereby accepts to have satisfied itself as to the
correctness and sufficiency of the Contract Price.
6.1.3 The Contractor acknowledges and hereby accepts the risk of inadequacy,
mistake or error in or relating to any of the matters set forth in Clause 6.1.1
above and hereby acknowledges and agrees that the Authority shall not be liable
for the same in any manner whatsoever to the Contractor, or any person
claiming through or under any of them and shall not lead to any adjustment of
Contract Price or Scheduled Completion Date.
6.1.4 The Parties agree that any mistake or error in or relating to any of the matters set
forth in Clause 6.1.1 above shall not vitiate this Agreement, or render it

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voidable.
6.1.5 In the event that either Party becomes aware of any mistake or error relating to
any of the matters set forth in Clause 6.1.1 above, that Party shall immediately
notify the other Party, specifying the mistake or error.
6.1.6 Except as otherwise provided in this Agreement, all risks relating to the
Project shall be borne by the Contractor; and the Authority shall not be liable in
any manner for such risks or the consequences thereof.

Construction of Nagpur – Chandrapur Access Controlled Super Volume-II:
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Package NC-02 from km 33+300 Lonhar Tq. Samudrapur Dist. Wardha to Agreement
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Part III
Construction and Maintenance

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ARTICLE 7
PERFORMANCE SECURITY
7.1 Performance Security
7.1.1 The Contractor shall, for the performance of its obligations hereunder during the
Construction Period, provide to the Authority, within 20 (twenty) days of the date
of this Agreement, an irrevocable and unconditional guarantee from a
Nationalized Bank in the form set forth in Schedule-G (the “Performance
Security”) for an amount equal to 5% (five percent) of the Contract Price. The
Performance Security shall be valid until 90 (ninety) days after the expiry of the
Maintenance Period or the Defects Liability Period whichever is later, under this
Agreement or till such dates defect are rectified. In all such cases, the
performance security shall be valid and shall be extended suitably if needed.
Until such time the Performance Security is provided by the Contractor pursuant
hereto and the same comes into effect, the Bid Security shall remain in force and
effect, and upon such provision of the Performance Security, the Authority shall
release the Bid Security to the Contractor.
The Contractor shall along with the Performance Security provide to the Authority
an irrevocable and unconditional guarantee from a Nationalized Bank for a
sum equivalent to Rs. (5% of Contract Price) in the form set forth in Schedule-G
(the "Additional Performance Security"), to be modified, mutatis mutandis, for
this purpose as security to the Authority if the Bid Price offered by the Contractor
is lower by more than 10% with respect to the Estimated Project Cost. Additional
Performance Security shall be calculated as under:
(i) If the bid price offered by the Bidder is between 10% Lower to 20% lower than
the Project Cost, then such bid shall be considered as unbalanced Bid. In such
cases the Bidder shall be liable to submit the Additional Performance Security
in addition to the performance security as mentioned above. This additional
Performance Security shall be calculated as equal to 10% of the amount of
difference in (a) Project Cost (as mentioned in RFP) minus 10% of the Project
Cost and (b) the Bid Price offered by the preferred Bidder.
(ii) If the bid price offered by the Bidder is 20% below or lower than the Project
Cost, then such bid shall be considered as unbalanced Bid. In such cases the

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Bidder shall be liable to submit the Additional Performance Security in

addition to the performance security as mentioned above. This additional
Performance Security shall be calculated as equal to 20% of the amount of
difference in (a) Project Cost (as mentioned in RFP) minus 10% of the Project
Cost and (b) the Bid Price offered by the preferred Bidder.
(iii) The Additional Performance Security shall be valid until 28 (twenty-eight)

days after the issue of Completion Certificate under Article 12 of this
Agreement.
(iv) The Additional Performance Security shall not be treated as part of

Performance Security.
7.1.2 Notwithstanding anything to the contrary contained in this Agreement, the

Parties agree that in the event of failure of the Contractor to provide the
Performance Security in accordance with the provisions of Clause 7.1.1 and
within the time specified therein or such extended period as may be provided by
the Authority, in accordance with the provisions of Clause 7.1.3, the Authority
may encash the Bid Security and appropriate the proceeds thereof as Damages,
and thereupon all rights, privileges, claims and entitlements of the Contractor
under or arising out of this Agreement shall be deemed to have been waived
by, and to have ceased with the concurrence of the Contractor, and this
Agreement shall be deemed to have been terminated by mutual agreement of
the Parties.
7.1.3 In the event the Contractor fails to provide the Performance Security within 20
(twenty) days of this Agreement, it may seek extension of time for a period not
exceeding 30 (Thirty) days on payment of Damages for such extended period in a
sum calculated at the rate of 0.01% (zero point zero one per cent) of the Contract
Price for each day until the Performance Security is provided. For the avoidance
of doubt the agreement shall be deemed to be terminated on expiry of an
additional 30 days’ time period and Bid security shall be encashed by the
Authority.
7.2 Extension of Performance Security and Additional Performance Security
The Contractor may initially provide the Performance Security for a period of 2
(two) years; provided that it shall procure the extension of the validity of the

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Performance Security, as necessary, at least 2 (two) months prior to the date of

expiry thereof. Upon the Contractor providing an extended Performance Security,
the previous Performance Security shall be deemed to be released and the
Authority shall return the same to the Contractor within a period of 7 (seven)
business days from the date of submission of the extended Performance Security.
7.3 Appropriation of Performance Security

7.3.1 Upon occurrence of a Contractor’s Default, the Authority shall, without
prejudice to its other rights and remedies hereunder or in law, be entitled to
encash and appropriate the relevant amounts from the Performance Security as
Damages for such Contractor’s Default.
7.3.2 Upon such encashment and appropriation from the Performance Security, the
Contractor shall, within 30 (thirty) days thereof, replenish, in case of partial
appropriation, to its original level the Performance Security, and in case of
appropriation of the entire Performance Security provide a fresh Performance
Security, as the case may be, and the Contractor shall, within the time so
granted, replenish or furnish fresh Performance Security as aforesaid failing
which the Authority shall be entitled to terminate the Agreement in accordance
with Article 23. Upon replenishment or furnishing of a fresh Performance
Security, as the case may be, as aforesaid, the Contractor shall be entitled to an
additional Cure Period of 30 (thirty) days for remedying the Contractor’s Default,
and in the event of the Contractor not curing its default within such Cure Period,
the Authority shall be entitled to encash and appropriate such Performance
Security as Damages, and to terminate this Agreement in accordance with
Article 23.
7.3.3 The Additional Performance Security shall be encashed, in case the Contractor
cannot achieve the Milestones –II/III/IV within the prescribed period as per this
Agreement dueto the fault of the Contractor.
7.4 Release of Performance Security
7.4.1 The Authority shall return the Performance Security to the Contractor within 90
(ninety) days of the expiry of the Maintenance Period or the Defects Liability
Period whichever is later, under this Agreement or till such dates defect are

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rectified. In all such cases, the performance security shall be valid and shall be
extended suitably if needed. Notwithstanding the aforesaid, the Parties agree that
the Authority shall not be obliged to release the Performance Security until all
Defects identified during the Defects Liability Period have been rectified.
7.4.2 The Authority shall return the Additional Performance Security to the
Contractor within 28 (twenty-eight) days from the date of issue of Completion
Certificate under Article 12 of this Agreement.
7.5 Retention Money

7.5.1 From every payment for Works due to the Contractor in accordance with the
provisions of Clause 19.5, the Authority shall deduct 6% (six per cent) thereof as
guarantee money for performance of the obligations of the Contractor during the
Construction Period (the “Retention Money”) subject to the condition that the
maximum amount of Retention Money shall not exceed 5% (five per cent) of the
Contract Price.
7.5.2 Upon occurrence of a Contractors Default, the Authority shall, without prejudice
to its other rights and remedies hereunder or in law, be entitled to appropriate
the relevant amounts from the Retention Money as Damages for such
Contractors Default.
7.5.3 The Contractor may, upon furnishing an irrevocable and unconditional bank
guarantee substantially in the form provided at Annex-II of Schedule-G, require
the Authority to refund the Retention Money deducted by the Authority under
the provisions of Clause 7.5.1. Provided that the refund hereunder shall be
made in tranches of not less than 1% (one per cent) of the Contract Price.
7.5.4 Within 15 (fifteen) days of the date of issue of the Completion Certificate, the
Authority shall discharge the bank guarantees furnished by the Contractor under
the provisions of Clause 7.5.3 and refund the balance of Retention Money
remaining with the Authority after adjusting the amounts appropriated under the
provisions of Clause 7.5.2 and the amounts refunded under the provisions of
Clause 7.5.3.
7.5.5 The Parties agree that in the event of Termination of this Agreement, the
Retention Money and the bank guarantees specified in this Clause 7.5 shall be
treated as if they are Performance Security and shall be reckoned as such for the
purposes of Termination Payment under Clause 23.6.

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ARTICLE 8
RIGHT OF WAY
8.1 The Site
The site of the Project expressway (the “Site”) shall comprise the site described
in Schedule-A in respect of which the Right of Way shall be provided by the
Authority to the Contractor. The Authority shall be responsible for:
(a) acquiring and providing Right of Way on the Site in accordance with the
alignment finalized by the Authority, free from all encroachments and
encumbrances, and free access thereto for the execution of this
Agreement; and
(b) obtaining licenses and permits for environment clearance for the Project
expressway.
8.2 Procurement of the Site
8.2.1 The Authority’s Representative, the Contractor and Authority’s Engineer shall,
within 30 (thirty) days of the date of this Agreement, inspect the Site and
prepare a detailed 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. (hereinafter
referred to as the “Handover Memorandum”). Subject to the provisions of Clause
8.2.3, such memorandum shall have appended thereto an appendix (the
“Appendix”) specifying in reasonable detail those parts of the Site to which
vacant access and Right of Way has not been given to the Contractor along with
details of hindrances in the Construction Zone. For sake of clarity the Handover
Memorandum shall clearly specify the parts of Site where work can be executed.
Signing of the Handover memorandum, in three counterparts (each of which shall
constitute an original), by the authorized representatives of the Authority,
Contractor and Authority’s Engineer shall be deemed to constitute valid evidence
of giving the Right of Way to the Contractor for discharging its obligations under
and in accordance with the provisions of this Agreement and for no other purpose
whatsoever.
8.2.2 Whenever the Authority is ready to hand over any part or parts of the Site

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included in the Appendix, it shall inform the Contractor, by notice, the

proposed date and time of such handover. The Authority Representative and the
Contractor shall, on the date so notified, inspect the specified parts of the Site,
and prepare a memorandum containing an inventory of the vacant and
unencumbered land, buildings, structures, road works, trees and any other
immovable property on or attached to the Site so handed over. Signing of the
memorandum, in three (3) counterparts (each of which shall constitute an
original), by the authorised representatives of the Parties shall be deemed to
constitute valid evidence of giving the relevant Right of Way to the Contractor.
If the contractor fails to join for site inspection or disputes the parts of the site
available for work, the Authority’s Engineer shall decide the parts of the site
where work can be executed and notify to both the parties within 3 days of the
proposed date of inspection. The parties agree that such notification of the
Authority’s Engineer as mentioned hereinabove shall be final and binding on the
parties.
8.2.3 The Authority shall provide the Right of Way to the Contractor in respect of all
land included in the Appendix by the date specified in Schedule-A for those parts
of the Site referred to therein, or no later than 365 (Three Sixty five) days of the
Appointed Date for those parts of the Site which have not been specified in
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 not pay to the
Contractor any Damages in a sum calculated in accordance with Clause 8.3. The
Contractor agrees that it shall not be entitled to claim any other damages on
account of any such delay by the Authority except extension of time limit.
8.2.4 Notwithstanding anything to the contrary contained in this Clause 8.2, the
Authority shall specify the parts of the Site, if any, for which Right of Way 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 8.2.1. For
the avoidance of doubt, the Parties expressly agree that the Appendix shall in no
event contain sections of the Project Expressway the cumulative length of
which exceeds 10% (ten per cent) of the total length of the Project Expressway.
8.3 Damages for delay in handing over the Site - Deleted

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8.4 Site to be free from Encumbrances
Subject to the provisions of Clause 8.2, the Site shall be made available by
the Authority to the Contractor pursuant hereto free from all Encumbrances and
occupations and without the Contractor being required to make any payment
to the Authority on account of any costs, compensation, expenses and charges
for the acquisition and use of such Site for the duration of the 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, unless
otherwise specified in this Agreement, the Contractor accepts and undertakes
to bear any and all risks arising out of the inadequacy or physical condition of
the Site.
8.5 Protection of Site from encroachments
On and after signing the memorandum and/or subsequent memorandum referred

to in Clause 8.2.1, 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 takes place theron. 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 Authority and undertake its removal at its own cost and expenses.
8.6 Special/temporary Right of Way
The Contractor shall bear all costs and charges for any special or temporary right of
way required by it in connection with access to the Site. The Contractor shall
obtain at its cost such facilities on or outside the Site as may be required by it
for the purposes of the Project expressway and the performance of its
obligations under this Agreement.

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8.7 Access to the Authority and the Authority’s Engineer
8.7.1 The Right of Way given to the Contractor hereunder shall always be subject to
the right of access of the Authority and the Authority’s Engineer and their
employees and agents for inspection, viewing and exercise of their rights and
performance of their obligations under this Agreement.
8.7.2 The Contractor shall ensure, subject to all relevant safety procedures, that the
Authority has un-restricted access to the Site during any emergency situation, as
decided by the Authority’s Engineer.
8.8 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 Authority or the concerned Government Instrumentality. The
Contractor shall take all reasonable precautions to prevent its workmen or any
other person from removing or damaging such interest or property and shall
inform the Authority forthwith of the discovery thereof and comply with such
instructions as the concerned Government Instrumentality may reasonably give
for the removal of such property. For the avoidance of doubt, it is agreed that
any reasonable expenses incurred by the Contractor hereunder shall be
reimbursed by the Authority. It is also agreed that the Authority shall
procure that the instructions hereunder are issued by the concerned
Government Instrumentality within a reasonable period.

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ARTICLE 9
UTILITIES AND TREES
9.1 Existing utilities and roads
Notwithstanding anything to the contrary contained herein, it shall be the

responsibility of the Contractor to 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.
9.2 Shifting of obstructing utilities
The Contractor shall, in accordance with Applicable Laws and with assistance of
the Authority, undertake the work of shifting of any utility (including electric
lines, water pipes, gas pipe lines and telephone cables or any other public
utilities) to an appropriate location or alignment, if such utility or obstruction
adversely affects the execution of Works or Maintenance of the Project
expressway in accordance with this Agreement.
The work of shifting of Utilities can be taken up by the Contractor any time after
signing of the Agreement.
The cost of relocation/raising/lowering of the utilities including supervision

charges to be paid to the Utility Owning Agency as mentioned under Schedule B
are included in the EPC Cost. The work shall be executed and certified by the
Utility Owning Agency and Authority’s Engineer. The dismantled/or scrap material
shall be handed over to the Utility Owning Agency at its own cost.
The utilities not covered under Schedule B, the actual cost, including supervision
charges to be paid to the Utility Owning Agency; of relocation/raising/lowering of
such utilities, as approved and communicated by the Utility Owning Agency, shall
be paid by the Contractor, and reimbursed by the Authority to the Contractor.
No time extension or compensation for the delay shall be granted on account of
relocations/raising/lowering of such utilities.
9.3 New utilities & Facilities

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9.3.1 The Contractor shall allow, subject to the permission from the Authority and such
conditions as the Authority may specify, access to, and use of the Site for laying
telephone lines, water pipes, electric lines/ 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 9.3
shall not in any manner relieve the Contractor of its obligation to construct
and maintain the Project Expressway in accordance with this Agreement and any
damage caused by such use shall be restored forthwith at the cost of the
Authority.
9.3.2 The Authority may, by notice, require the Contractor to connect any adjoining
road to the Project expressway, and the connecting portion thereof falling
within the Site shall be constructed by the Contractor at the Authority’s cost in
accordance with Article 10 for other than roads mentioned under Schedule B.
9.3.3 The Authority may by notice require the Contractor to connect, through a
paved road, any adjoining service station, hotel, motel or any other public facility
or amenity to the Project expressway other than mentioned under Schedule B,
whereupon the connecting portion thereof that falls within the Site shall be
constructed by the Contractor on payment of the cost. The cost to be paid by the
Authority to the Contractor shall be determined on the basis of rates for items
under variation schedule under Article 13 by the Authority’s Engineer. For the
avoidance of doubt, in the event such road is to be constructed for the benefit of
any entity, the Authority may require such entity to make an advance deposit
with the Contractor or the Authority, as the case may be, of an amount equal to
the estimated cost as determined by the Authority’s Engineer and such advance
shall be adjusted against the cost of construction as determined by the Authority’s
Engineer hereunder.
9.3.4 In the event the construction of any Works is affected by a new utility or works
undertaken in accordance with this Clause 9.3, the Contractor shall be entitled to
a reasonable Time Extension as determined by the Authority’s Engineer.
9.4 Felling of trees

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The Contractor shall transplant the trees within ROW at his own cost to the
maximum possible extent and maintain the same during the maintenance period.
Trees which cannot be transplanted, the Authority shall assist the Contractor in
obtaining the Applicable Permits for felling of such trees in non-forest area to be
identified by the Authority for this purpose if and only if such trees cause a
Material Adverse Effect on the construction or maintenance of the Project
Expressway at contractor’s own cost. The Parties hereto agree that the felled
trees shall be deemed to be owned by the Contractor and shall be disposed
off by the contractor in such a manner as deemed appropriate by the concerned
authority and subject to Law of Land and rules and regulations of concerned
authority. For the avoidance of doubt, the Parties agree that if any felling of trees
hereunder is in a forest area, the Applicable Permit thereof shall be procured by
the Contractor within the time specified in the Agreement.
9.5 Dismantling of structures
The Contractor shall own, at its own cost; dismantle the structures in the acquired
lands including those on patta lands, abadi lands, assigned lands, etc. the
compensation for which, was paid by the Authority to the landowners and the
lands were handed over to the Contractor as per Schedule B-I. The Contractor shall
own, at its own cost, dispose of the dismantled material in its sole discretion as
deemed appropriate, while complying with all environmental guidelines and
regulations and clear the Site for undertaking construction.
9.6 Development Period
The Contractor may commence pre-construction activities like utility shifting,

boundary wall construction or any other activity assigned to the Contractor by the
Authority to enable construction of the Project expressway immediately after
signing of the Agreement, to the extent that such work is ready for execution. The
Parties agree that these works may be taken up and completed to the extent
feasible by the Contractor, before declaration of the Appointed Date, but no claim
against the Authority for delay shall survive during this period and that the
undertaking of these works by the Contractor shall not count towards the
Scheduled Construction Period of the project which starts counting only from the
Appointed Date. No construction activity of the Project expressway shall be
undertaken during the development period.

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ARTICLE 10
DESIGN AND CONSTRUCTION OF THE PROJECT EXPRESSWAY
10.1 Obligations prior to commencement of Works
10.1.1 Within 20 (twenty) days of the Appointed Date, the Contractor shall:
(a) appoint its representative, duly authorized to deal with the Authority 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 unit 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 quarrying of materials needed for the
Project Expressway under and in accordance with the Applicable Laws and
Applicable Permits.
10.1.2 The Authority shall, within 30 (thirty) days of the date of this Agreement, appoint
an engineer (the “Authority’s Engineer”) before the Appointed Date to
discharge the functions and duties specified in this Agreement, and shall notify
to the Contractor the name, address and the date of appointment of the
Authority’s Engineer forthwith.
10.1.3 Within 30 (thirty) days of the Appointed Date, the Contractor shall submit to the
Authority and the Authority’s Engineer a programme (the “Programme”) for the
Works, developed using networking techniques for review and consent of the
Engineer, giving the following details:
Part I Contractor’s organization 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, (including use of ‘ROBOTS’ for diversion and control of

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traffic), Contractor’s key personnel and equipment.
Part II Programme for completion of all stages of construction given in Schedule-

H and Project Milestones of the Works as specified in Project Completion
Schedule set forth in Schedule-J. The Programme shall include:
(a) the order in which the Contractor intends to carry out the Works,
including the anticipated timing of design and stages of Works;
(b) the periods for reviews under Clause 10.2;
(c) the sequence and timing of inspections and tests specified in this
Agreement.
(d) the particulars for the pre-construction reviews and for any other
submissions, approvals and consents specified in the Agreement.
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.
10.1.4 The Contractor shall compute, on the basis of the Drawings prepared in
accordance with Clause 10.2.4, and provide to the Authority’s Engineer, the
length, area and numbers, as the case may be, in respect of the various items of
work specified in Schedule-H and comprising the Scope of the Project. The
Parties expressly agree that these details shall form the basis for estimating the
interim payments for the Works in accordance with the provisions of Clause 19.3.
For the avoidance of doubt, the sum of payments to be computed in respect of
all the items of work shall not exceed the Contract Price, as may be adjusted
in accordance with the provisions of this Agreement.
10.1.5 The Contractor shall appoint a safety consultant (the “Safety Consultant”) to
carry out safety audit at the design stage of the Project Expressway in accordance
with the Applicable Laws and Good Industry Practice. The Safety Consultant shall
be appointed after proposing to the Authority a panel of three names of qualified
and experienced firms from whom the Authority may choose one to be the
Safety Consultant. Provided, however, that if the panel is not acceptable to the

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Authority and the reasons for the same are furnished to the Contractor, the
Contactor shall propose to the Authority a revised panel of three names from
the firms empaneled as safety consultants by the /Ministry of Road Transport and
Expressways for obtaining the consent of the Authority. The Contractor shall also
Highways obtain the consent of the Authority for the key personnel of the Safety
Consultant who shall have adequate experience and qualifications in safety audit
of the expressway projects. The Authority shall, within 15 (fifteen) 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 Safety Consultant.
10.1.6 The safety audit pursuant to Clause 10.1.5 shall be carried out by the Safety
Consultant in respect of all such design details that have a bearing on safety of
Users as well as pedestrians and animals involved in or associated with
accidents. The recommendations of the Safety Consultant shall be incorporated
in the design of the Project expressway and the Contractor shall forward to the
Authority’s Engineer a certificate to this effect together with the
recommendations of the Safety Consultant. In the event that any works required
by the Safety Consultant shall fall beyond the scope of Schedule-B, Schedule-C or
Schedule-D, the Contractor shall make a report thereon and seek the instructions
of the Authority for Change in Scope. For the avoidance of doubt, the Safety
Consultant to be engaged by the Contractor shall be independent of the design
and implementation team of the Contractor.
10.2 Design and Drawings
10.2.1 Design and Drawings shall be developed in conformity with the Specifications and
Standards set forth in Schedule-D. In the event, the Contractor requires any
relaxation in design standards due to restricted Right of Way in any section, the
alternative design criteria for such section shall be provided for review and
approval of the of the Authority’s Engineer.
10.2.2 The Contractor shall appoint a proof check consultant (the “Proof Consultant”)
after proposing to the Authority a panel of three names of qualified and
experienced firms from whom the Authority may choose one to be the Proof
Consultant. Provided, however, that if the panel is not acceptable to the Authority
and the reasons for the same are furnished to the Contractor, the Contactor

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shall propose to the Authority a revised panel of three names from the firms
empaneled as proof consultants by the /Ministry of Road Transport and Highways
for obtaining the consent of the Authority. The Contractor shall also obtain the
consent of the Authority for two key personnel of the Proof Consultant who shall
have adequate experience and qualifications in highways and bridges
respectively. The Authority shall, within 15 (fifteen) 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.
10.2.3 The Proof Consultant shall:
(a) evolve a systems approach with the Design Director so as to minimize the time
required for final designs and construction drawings; and
(b) proof check the detailed calculations, drawings and designs, which have been
approved by the Design Director.
10.2.4 In respect of the Contractor’s obligations with respect to the design and
Drawings of the Project expressway a s set forth in Schedule-I, the following
shall apply:
(a) The Contractor shall prepare and submit, with reasonable promptness and in
such sequence as is consistent with the Project Completion Schedule,
three copies each of the design and Drawings, duly certified by the Proof
Consultant, to the Authority’s Engineer for its approval. Provided, however,
that in respect of Major Bridges and Structures, the Authority’s Engineer
may require additional drawings for its approval in accordance with Good
Industry Practice.
(b) by submitting the Drawings for review and approval to the Authority’s
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) within 15 (fifteen) days of the receipt of the Drawings, the Authority’s
Engineer shall review the same and convey its approval/observations to the

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Contractor with particular reference to their conformity or otherwise with the

Scope of the Project and the Specifications and Standards.
(d) if the aforesaid observations of the Authority’s 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
in conformity with the provisions of this Agreement and resubmitted to the
Authority’s Engineer for review and approval. The Authority’s Engineer shall
give its observations, if any, within 10 (ten) days of receipt of the revised
Drawings. In the event the Contractor fails to revise and resubmit such
Drawings to the Authority’s Engineer for review/approval as aforesaid, the
Authority’s Engineer may withhold the payment for the affected works in
accordance with the provisions of Clause 19.5.4. If the Contractor disputes
any decision, direction or determination of the Authority’s Engineer
hereunder, the Dispute shall be referred to the Chief Engineer, who will take
appropriate decision in the matter. The decision of the Chief Engineer shall be
final and binding resolved in accordance with the Dispute Resolution
Procedure;
(e) no review/approval and/or observation of the Authority’s Engineer and/or

its failure to review/approval 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 Authority’s Engineer or the
Authority be liable for the same in any manner; and if errors, omissions,
ambiguities, inconsistencies, inadequacies or other Defects are found in the
Drawings, they and the construction works shall be corrected at the
Contractor’s cost, notwithstanding any review under this Article 10;
(f) the Contractor shall be responsible for delays in submitting the Drawing as
set forth in Schedule-I caused by reason of delays in surveys and field
investigations, and shall not be entitled to seek any relief in that regard from
the Authority; and
(g) the Contractor warrants that its designers, including any third parties
engaged by it, shall have the required experience and capability in
accordance with Good Industry Practice and it shall indemnify the Authority
against any damage, expense, liability, loss or claim, which the Authority

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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 shall ensure that all the designs and drawings shall be
approved from the Authority’s Engineer within 90 days (ninety) from the
Appointed Date.
10.2.5 Any cost or delay in construction arising from review/approval by the

Authority’s Engineer shall be borne by the Contractor.
10.2.6 Works shall be executed in accordance with the Drawings provided by the
Contractor in accordance with the provisions of this Clause 10.2 and the
observations of the Authority’s Engineer thereon as communicated pursuant to
the provisions of sub-clause (c) & (d) of Clause 10.2.4. Such Drawings shall not be
amended or altered without prior written notice to the Authority’s Engineer. If a
Party becomes aware of an error or defect of a technical nature in the design
or Drawings, that Party shall promptly give notice to the other Party of such
error or defect.
10.2.7 Within 90 (ninety) days of the Project Completion Date, the Contractor shall
furnish to the Authority and the Authority’s Engineer a complete set of as- built
Drawings, in 2 (two) hard copies and in micro film form and in soft copy or in
such other medium as may be acceptable to the Authority, reflecting the Project
Expressway as actually designed, engineered and constructed, including an as-built
survey illustrating the layout of the Project expressway and setback lines, if
any, of the buildings and structures forming part of Project Facilities. Contractor
shall also submit masonry register in such a manner as acceptable to Authority.
10.3 Construction of the Project expressway
10.3.1 The Contractor shall construct the Project expressway as specified in

Schedule- B and Schedule-C, and in conformity with the Specifications and
Standards set forth in Schedule-D including operational & functional
requirements. 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. The 910th (nine hundred and ten) day
from the Appointed Date shall be the scheduled completion date (the

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“Scheduled Completion Date”) and the Contractor agrees and undertakes that
the construction shall be completed on or before the Scheduled Completion
Date, including any extension thereof.
10.3.2 The Contractor shall construct the Project expressway in accordance with the
Project Completion Schedule set forth in Schedule-J. In the event that the
Contractor fails to achieve any Project Milestone or the Scheduled Completion
Date within a period of 30 (thirty) days from the date set forth in Schedule-J,
unless such failure has occurred due to Force Majeure or for reasons solely
attributable to the Authority, it shall pay Damages to the Authority of a sum
calculated at the rate of 0.05% (zero point zero five percent) of the Contract
Price for delay of each day reckoned from the date specified in Schedule –J and
until such Project Milestone is achieved or the Project expressway is completed;
provided that if the period for any or all Project Milestones or the Scheduled
Completion Date is extended in accordance with the provisions of this
Agreement, the dates set forth in Schedule-J shall be deemed to be modified
accordingly and the provisions of this Agreement shall apply as if Schedule-J has
been amended as above; provided further that in the event Project expressway is
completed within or before the Scheduled Completion Date including any Time
Extension, applicable for that work or section, the Damages paid under this
Clause 10.3.2 shall be refunded by the Authority to the Contractor, but without
any interest thereon.
For the avoidance of doubt, it is agreed that recovery of Damages under this
Clause 10.3.2 shall be without prejudice to the rights of the Authority under
this Agreement including the right of Termination thereof. The Parties further
agree that Time Extension hereunder shall only be reckoned for and in respect of
the affected works as specified in Clause 10.5.2.
10.3.3 The Authority shall notify the Contractor of its decision to impose Damages in
pursuance with the provisions of this Clause 10.3. Provided that no deduction on
account of Damages shall be effected by the Authority without notifying the
Contractor of its decision to impose the Damages, and taking into consideration
the representation, if any, made by the Contractor within 20 (twenty) days of
such notice. The Parties expressly agree that the total amount of Damages under
Clause 10.3.2 shall not exceed 10% (ten percent) of the Contract Price. If damages

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exceed 10% (Ten percent) of the contract price, the Contractor shall be deemed to be in
default of this agreement having no cure and the Authority shall be entitled to
terminate this Agreement by issuing a Termination Notice in accordance with the
provisions of Clause 23.1 (ii).
10.3.4 In the event that the Contractor fails to achieve the Project Completion within a
period of 90 (ninety) days from the Schedule Completion Date set forth in
Schedule-J, unless such failure has occurred due to Force Majeure or for reasons
solely attributable to the Authority, the contractor shall be deemed to be
ineligible for bidding any future projects of the Authority, both as the sole party or
as one of the parties of Joint Venture/ Consortium during the period from
Scheduled Completion Date to issuance of Completion Certificate. This restriction
is applicable if the contract value of the delayed project is not less than Rs. 300
Crore.
10.4 Maintenance of existing roads used by the contractor for approaching the site,
ROW and any diversion road used by Contractor for carrying quarry material
through heavy vehicle shall be maintained in good motorable condition by the
contractor till completion of work.
10.4 Maintenance during Construction Period
(i) During the Construction Period, the Contractor shall maintain, at its cost, the
existing lane(s) of the Project expressway so that the traffic worthiness and
safety thereof are at no time materially inferior as compared to their condition on
Appointed Date, and shall undertake the necessary repair and maintenance works
for this purpose; provided that the Contractor may, at its cost, interrupt and
divert the flow of traffic if such interruption and diversion is necessary for the
efficient progress of Works and conforms to Good Industry Practice; provided
further that such interruption and diversion shall be undertaken by the Contractor
only with the prior written approval of the Authority’s Engineer which approval
shall not be unreasonably withheld. For the avoidance of doubt, it is agreed that
the Contractor shall at all times be responsible for ensuring safe operation of the
Project expressway. It is further agreed that in the event the Project includes
construction of a bypass or tunnel and realignment of the existing carriageway,
the Contractor shall maintain the existing highway in such sections until the new
Works are open to traffic. Also maintenance of existing roads used by the

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contractor for approaching the site, ROW and any road used by contractor for
carrying quarry material through heavy vehicle shall be maintained in good
motorable condition by the contractor till completion of work.
(ii) Notwithstanding anything to the contrary contained in this Agreement, in the event
of default by the Contractor in discharging the obligations specified in Clause 10.4
(i) above, the Authority shall get these maintenance works completed in the
manner recommended by the Authority’s Engineer to avoid public inconvenience at
the risk and cost of the Contractor in order to keep the road in traffic worthy
condition.
10.5 Extension of time for completion
10.5.1 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 providing the Right of Way, Construction Zone, environmental

clearances or approval of railway authorities, specified in Clause 4.1.4;
(b) occurrence of a Force Majeure Event;
(c) any delay, impediment or prevention caused by or attributable to the

Authority, or the Authority’s other Contractor on the Site; and
(d) any other cause or delay which entitles the Contractor to Time Extension
in accordance with the provisions of this Agreement.
10.5.2 The Contractor shall, no later than 15 (fifteen) business days from the occurrence
of an event or circumstance specified in Clause 10.5.1, inform the Authority’s
Engineer by notice in writing, with a copy to the Authority, stating in
reasonable detail with supporting particulars, the event or circumstances giving
rise to the claim for Time Extension in accordance with the provisions of this
Agreement. Provided that the period of 15 (fifteen) business 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.

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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.
10.5.3 On the failure of the Contractor to issue to the Authority’s Engineer a notice
in accordance with the provisions of Clause 10.5.2 within the time specified
therein, the Contractor shall not be entitled to any Time Extension and shall
forfeit its right for any such claims in future. For the avoidance of doubt, in the
event of failure of the Contractor to issue notice as specified in this clause 10.5.3,
the Authority shall be discharged from all liability in connection with the claim.
10.5.4 The Authority’s Engineer shall, on receipt of the claim in accordance with the
provisions of Clause 10.5.2, examine the claim expeditiously within the time
frame specified herein. In the event the Authority’s Engineer requires any
clarifications to examine the claim, the Authority’s Engineer shall seek the same
within 15 (fifteen) days from the date of receiving the claim. The Contractor
shall, on receipt of the communication of the Authority’s Engineer requesting for
clarification, furnish the same to the Authority’s Engineer within 10 (ten) days
thereof. The Authority’s Engineer shall, within a period of 30 (thirty) days from
the date of receipt of such clarifications, forward in writing to the Contractor its
determination of Time Extension.
Provided that when determining each extension of time under this Clause 10.5,
the Authority’s Engineer shall review previous determinations and may increase,
but shall not decrease, the total Time Extension.
10.5.5 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 10 (ten) days after the close of each
month, send further interim claims specifying the accumulated delay, the
extension of time claimed, and such further particulars as the Authority’s
Engineer may reasonably require; and
(c) the Contractor shall send a final claim within 30 (thirty) days after the

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effect of the event or the circumstance ceases.
Upon receipt of the claim hereunder, the Authority’s Engineer shall examine the
same in accordance with the provisions of Clause 10.5.4 within a period of 60
(sixty) days of the receipt thereof.
10.6 Incomplete Works
In the event the Contractor fails to complete the Works in accordance with the
Project Completion Schedule, including any Time Extension granted under this
Agreement, the Contractor shall endeavor to complete the balance work
expeditiously and shall pay Damages to the Authority in accordance with the
provisions of Clause 10.3.2 for delay of each day until the Works are completed in
accordance with the provisions of this Agreement. Recovery of Damages under
this Clause shall be without prejudice to the rights of the Authority under this
Agreement including the right to termination under Clause 23.1.
10.7 Maintenance Manual
No later than 60 (sixty) days prior to the Project Completion Date, the
Contractor shall, in consultation with the Authority’s Engineer, evolve a
maintenance manual (the “Maintenance Manual”) for the regular and preventive
maintenance of the Project expressway in conformity with the Specifications and
Standards, safety requirements and Good Industry Practice, and shall provide 5
(five) copies thereof to the Authority’s Engineer. The Authority’s Engineer shall
review the Maintenance Manual within 15 (fifteen) days of its receipt and
communicate its comments to the Contractor for necessary modifications in
consultation with Authority, if any.
The Maintenance Manual should also include:
a) General features of work
b) General Design Philosophy
c) Typicality of design & Construction (unusual nature).
d) Areas needing specific attention.

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e) Periodicity of Inspection & Maintenance.
f) Reports including videos, photographs of each activity.
g) Follow-up actions
10.8 As-Built Records
The Contractor shall prepare, and keep up-to-date, a complete set of as built
records of the execution of the Works, showing the exact as built locations, sizes
and details on the Works as executed with cross references to all relevant
specifications and data sheets. These records shall be kept on the Site and shall be
used exclusively for the purpose of this Sub-Clause 10.8. The Contractor shall
provide 2 (two) copies of as built records to the Authority prior to the
commencement of the Tests on Completion.
10.9 Contractor's Use of Authority’s Documents
Intellectual property in the Authority’s requirements and Specifications and

Standards and all other documents and materials issued by the Authority or the
Authority’s Representative to the Contractor shall (as between the parties) remain
the property of the Authority. The Contractor may, at its cost, copy, use and
communicate any such documents for the purposes of the Contract. They shall
not, without the consent of the Authority, be used, copied or communicated to a
third party by the Contractor, except as necessary for the purposes of the Works
under the Agreement.

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ARTICLE 11
QUALITY ASSURANCE, MONITORING AND SUPERVISION
11.1 Quality of Materials and workmanship
The Contractor shall ensure that the Construction, Materials and workmanship are
in accordance with the requirements specified in this Agreement, Specifications
and Standards and Good Industry Practice.
11.2 Quality control system
11.2.1 The Contractor shall establish a quality control mechanism to ensure

compliance with the provisions of this Agreement (the “Quality Assurance
Plan” or “QAP”).
11.2.2 The Contractor shall, within 30 (thirty) days of the Appointed Date, submit to the
Authority’s Engineer its Quality Assurance Plan which shall include the
following:
(a) Organization, duties and responsibilities, procedures, inspections and

documentation;
(b) Quality control 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
Specifications for Road and Bridge Works issued by MORTH, relevant IRC
specifications, NHAI’s Quality Assurance Manual, 2006 and Good Industry
Practice; and
(c) Internal quality audit system.
The Authority’s Engineer shall convey its comments to the Contractor within a
period of 21 (twenty-one) days of receipt of the QAP 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
11.2.

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11.2.3 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.
11.2.4 The cost of testing of Construction, Materials and workmanship under this
Article 11 shall be borne by the Contractor.
11.3 Methodology
The Contractor shall, at least 15 (fifteen) days prior to the commencement of

the construction, submit to the Authority’s 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 Authority’s Engineer shall complete the review and convey its comments
to the Contractor within a period of 10 (ten) days from the date of receipt of the
proposed methodology from the Contractor.
11.4 Inspection and technical audit by the Authority
The Authority or any representative authorized by the Authority in this behalf

may inspect and review the progress and quality of the construction of Project
Expressway and issue appropriate directions to the Authority’s Engineer and the
Contractor for taking remedial action in the event the Works are not in
accordance with the provisions of this Agreement.
11.5 External technical audit
At any time during construction, the Authority may appoint an external

technical auditor to conduct an audit of the quality of the Works. The Auditor in
the presence of the representatives of the Contractor and the Authority’s
Engineer shall carry out the tests and/ or collect samples for testing in the
laboratory. The timing, the testing equipment and the sample size of this audit
shall be as decided by the Authority. The findings of the audit, to the extent
accepted by the Authority, shall be notified to the Contractor and the Authority’s
Engineer for taking remedial action in accordance with this Agreement.
After completion of the remedial measures by the Contractor, the Auditor shall

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undertake a closure audit and this process will continue till the remedial
measures have brought the works into compliance with the Specifications and
Standards. 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 11.5, the external technical audit shall not affect any
obligations of the Contractor or the Authority’s Engineer under this
Agreement.
11.6 Inspection of construction records
The Authority shall have the right to inspect the records of the Contractor
relating to the Works.
11.7 Monthly progress reports
During the Construction Period, the Contractor shall, no later than 10 (ten) days
after the close of each month, furnish to the Authority and the Authority’s
Engineer a monthly report on progress of the Works and shall promptly give
such other relevant information as may be required by the Authority’s
Engineer.
The Contractor agrees that reporting under this Clause 11.7 shall continue until
the date of the completion of the Works. Each report shall include:
a) an executive summary;
b) charts showing the status of Contractor's documents, construction and

manufacturing and environmental works;
c) details of work subcontracted and the performance of Sub-contractors;
d) for the construction of each main part of the Works, the extent of progress
(both quantity and percentage of the whole), the actual or expected dates
of commencement, anticipated completion date of the activity, Contractor's
inspections and tests;
e) records of manpower and Contractor's equipment on the Site;
f) LiDAR or Drone images of the monthly or as per the instruction of authority

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physical progress of the project expressway or other critical events shall be

maintained and submitted to the Authority
g) copies for that month of quality assurance documents, test results and
certificates;
h) safety statistics, accident data collection including details of any hazardous

incidents and activities relating to environmental aspects and public
relations;
i) comparisons of actual and planned progress, with details of any aspects

which may jeopardise the completion in accordance with the Agreement,
and the measures being (or to be) adopted to overcome such aspects;
j) details of any unresolved disputes or claims, in relation to the Project;
k) details of any revision to the cash flow estimate, together with a copy of the
revised cash flow estimate;
l) status of various Applicable Permits and compliance of conditions therein;
m) details of various royalty payment and insurances required to be taken by

the Contractor; and
n) such other reports as may be required by the Authority for enabling the
Authority to comply with its obligations under the other Project contracts.
o) details of defects by the Authority;
p) change in emission of any sewage or effluent of any nature whatsoever,

whether qualitatively or quantitatively;
q) any Material Adverse Effect;
r) declaration towards compliance with Applicable Laws including but not

limited to environmental and labour legislations;
s) declaration specifying compliance with all Manuals provided to the

Contractor; and

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t) any change in the flow of traffic in the existing Project expressway .
11.8 Inspection
11.8.1 The Authority’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.
11.8.2 The Contractor shall give the Authority’s Engineer and its authorised agents
access, facilities and safety equipment for carrying out their obligations under
this Agreement.
11.8.3 The Authority’s Engineer shall submit a monthly inspection report (the
“Inspection Report”) to the Authority and the Contractor bringing out the
results of inspections and the remedial action taken by the Contractor in
respect of Defects or deficiencies. For the avoidance of doubt, such inspection
or submission of Inspection Report by the Authority’s Engineer shall not relieve or
absolve the Contractor of its obligations and liabilities under this Agreement in
any manner whatsoever.
11.9 Samples
The Contractor shall submit the following samples of Materials and relevant
information to the Authority’s Engineer for pre-construction review:
(a) manufacturer's test reports and standard samples of manufactured Materials;

and
(b) Samples of such other Materials as the Authority’s Engineer may require.

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11.10 Tests
11.10.1 For determining that the Works conform to the Specifications and Standards,
the Authority’s Engineer shall require the Contractor to carry out or cause to be
carried out tests, at such time and frequency and in such manner as
specified in this Agreement, codal provisions, and in accordance with Good
Industry Practice for quality assurance. The test checks by the Authority’s
Engineer shall comprise at least 50% (fifty) percent of the quantity or number of
tests prescribed for each category or type of test for quality control by the
Contractor.
11.10.2 In the event that results of any tests conducted under this Clause 11.10 establish
any Defects or deficiencies in the Works, the Contractor shall carry out remedial
measures and furnish a report to the Authority’s Engineer in this behalf. The
Authority’s 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.
11.11 Examination of work before covering up
In respect of the work which the Authority’s 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
Authority’s Engineer whenever any such work is ready and before it is covered
up. The Authority’s Engineer shall then either carry out the examination,
inspection or testing without unreasonable delay, or promptly give notice to the
Contractor that the Authority’s 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, not being less
than 3 (three) business days’ notice, to the Authority’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 Authority’s
Engineer within a period of 3 (three) business days from the date on which the

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Contractor’s notice hereunder is delivered to the Authority’s Engineer, the

Contractor shall be entitled to assume that the Authority’s Engineer would not
undertake the said inspection.
11.12 Rejection
If, as a result of an examination, inspection, measurement or testing, any Plant,

Materials, design or workmanship is found to be defective or otherwise not in
accordance with the provisions of this Agreement, the Authority’s 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.
If the Authority’s 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 Authority to
incur any additional costs, such cost shall be recoverable by the Authority from
the Contractor; and may be deducted by the Authority from any monies due to
be paid to the Contractor.
11.13 Remedial work
11.13.1 Notwithstanding any previous test or certification, the Authority’s Engineer may
instruct the Contractor to:
(a) remove from the Site and replace any Plant or Materials which are not in
accordance with the provisions of this Agreement;
(b) remove and re-execute any 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
Expressway, whether because of an accident, unforeseeable event or
otherwise; provided that in case of any work required on account of a
Force Majeure Event, the provisions of Clause 21.6 shall apply.
11.13.2 If the Contractor fails to comply with the instructions issued by the Authority’s

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Engineer under Clause 11.13.1, within the time specified in the Authority’s
Engineer’s notice or as mutually agreed, the Authority’s Engineer may advise the
Authority to have the work executed by another agency. The cost so incurred
by the Authority for undertaking such work shall, without prejudice to the
rights of the Authority to recover Damages in accordance with the provisions of
this Agreement, be recoverable from the Contractor and may be deducted by
the Authority from any monies due to be paid to the Contractor.
11.14 Delays during construction
Without prejudice to the provisions of Clause 10.3.2, in the event the Contractor
does not achieve any of the Project Milestones or the Authority’s Engineer shall
have reasonably determined that the rate of progress of Works is such that
Completion of the Project Expressway is not likely to be achieved by the end of
the Scheduled Completion Date, it shall notify the same to the Contractor, and
the Contractor shall, within 15 (fifteen) days of such notice, by a communication
inform the Authority’s Engineer in reasonable detail about the steps it proposes
to take to expedite progress and the period within which it shall achieve the
Project Completion Date.
11.15 Quality control records and Documents
The Contractor shall hand over a copy of all its quality control records and
documents to the Authority’s Engineer before the Completion Certificate is
issued pursuant to Clause 12.2. The Contractor shall submit Road Signage Plans to
the Authority Engineer for approval at least 6 (six) months prior to expected
completion of Project expressway.
11.16 Video recording
During the Construction Period, the Contractor shall provide to the Authority for
every calendar quarter, a Drone video recording along with images, 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 Authority no later than 15 (fifteen) days
after the close of each quarter after the Appointed Date.
The contractor must engage a competent agency for conducting Aerial survey,

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Monitoring of all allotted packages for entire construction period which aims to
have obtain level data, quantity calculations, digital construction monitoring to
track the progress of expressway construction site. This monitoring will utilize a
combination of GIS and Aerial technology for reporting. Final useful digital data
should be used to visualize on a compatible dashboard which should be accessible
to MSRDC.
The scope is mentioned below:
1. Conduct an Aerial survey of all packages for creation of Base Map before
construction to make a reference layer.
2. Conduct an Aerial survey of all packages monthly during construction to take

levels, quantity calculations, to track the progress of the expressway.
3. Process the captured raw data into multi-format output as per MSRDC
Guidelines.
4. Provide cloud-based application dashboard with various analytics features

like change detection of progress, layer classification etc. as per MSRDC
guidelines to visualize output data.
5. Dashboard must be customizable for addition/removal of features as per

requirement of MSRDC.
11.17 Suspension of unsafe Construction Works
11.17.1 Upon recommendation of the Authority’s Engineer to this effect, the Authority
may by notice require the Contractor to suspend forthwith the whole or any
part of the Works if, in the reasonable opinion of the Authority’s Engineer, such
work threatens the safety of the Users and pedestrians.
11.17.2 The Contractor shall, pursuant to the notice under Clause 11.17.1, suspend the
Works or any part thereof for such time and in such manner as may be specified
by the Authority and thereupon carry out remedial measures to secure the
safety of suspended works, the Users and pedestrians. The Contractor may by
notice require the Authority’s Engineer to inspect such remedial measures
forthwith and make a report to the Authority recommending whether or not
the suspension hereunder may be revoked. Upon receiving the recommendations

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of the Authority’s Engineer, the Authority shall either revoke such suspension or
instruct the Contractor to carry out such other and further remedial measures
as may be necessary in the reasonable opinion of the Authority, and the
procedure set forth in this Clause 11.17 shall be repeated until the suspension
hereunder is revoked.
11.17.3 Subject to the provisions of Clause 21.6, all reasonable costs incurred for
maintaining and protecting the Works or part thereof during the period of
suspension (the “Preservation Costs”), shall be borne by the Contractor;
provided that if the suspension has occurred as a result of any breach of this
Agreement by the Authority, the Preservation Costs shall be borne by the
Authority.
11.17.4 If suspension of Works is for reasons not attributable to the Contractor, the
Authority’s Engineer shall determine any Time Extension to which the
Contractor is reasonably entitled.
11.18 Staff and Labour
i) Engagement of Staff and Labour
a) The Contractor shall make its own arrangements for the engagement of all
personnel and labour, local or otherwise, and for their payment, housing,
feeding and transport.
b) The Contractor has verified/ shall verify the identity and address of all its
employees and officials related to the Works by collecting necessary
documentary proof.
c) The Contractor shall seek a self-declaration from its employees that they have
not been convicted of any criminal offence by any court and if any criminal
proceedings/charge-sheets have been pending/filed against them. The
Contractor shall not employ persons with criminal track record on the project.
In cases where it comes to notice later that the employee concerned has
concealed any such fact in his self-declaration or commits a criminal offence
during the course of his employment, the Contractor shall remove such person
from the project.

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d) Deleted.
e) The employees and personnel of the Contractor shall work under the
supervision, control and direction of the Contractor and the Contractor shall
be solely responsible for all negotiations with its employees and personnel
relating to their salaries and benefits and shall be responsible for assessments
and monitoring of performance and for all disciplinary matters. All employees
/ personnel, executives engaged by the Contractor shall be in sole
employment of the Contractor and the Contractor shall be solely responsible
for their salaries, wages, statutory payments, etc and under no circumstances
the personnel shall be deemed to be the employees of the Authority. Under
no circumstances the Authority shall be liable for any payment or claim or
compensation of any nature to the employees and personnel of the
Contractor.
ii) Returns of Labour
a) The Contractor shall deliver to the Authority a detailed return in such form
and at such intervals as the Authority may prescribe, showing the details
including names, payment details and terms of appointment of the several
classes of labour employed by the Contractor from time to time for the
Works. The Contractor shall, in its returns certify that all the dues of the
workers or labour have been fully paid.
b) The Authority is entitled to witness labour payments made or to be made by

the Contractor. If the Contractor defaults in its obligations for making any
payments under the labour laws, the Employer may make the relevant
payments. Any sum equal to any amount paid by the Employer under this
Clause shall be immediately due as a debt from the Contractor to the
Employer and until payment/ set off shall carry interest at 18% per annum.
For this purpose, it is agreed between the parties that debt due aforesaid
shall be set off immediately out of the running account bills/ final bill of the
Contractor under this Agreement.

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iii) Persons in the Service of Others
The Contractor shall not recruit, or attempt to recruit from among

persons in the service of the Authority;
iv) Labour Laws
a) The Contractor shall obtain all relevant labour registrations and comply with
all relevant labour laws applying to its employees and shall duly pay them and
afford to them all their legal rights.
b) The Contractor shall make all deductions of tax at source and all contributions
to the Payment of Gratuity, Provident Fund (including Employees’
contribution) and Employees’ State Insurance Scheme as may be required by
Applicable Laws and deposit the aforesaid contributed amount with the
appropriate authority/(s).
c) The Contractor shall require all personnel engaged in the Works to obey all
Applicable Laws and regulations. The Contractor shall permit Authority to
witness labour payments for the Contractors direct labour, or the
Subcontractors labour. The Contractor shall ensure that all its Subcontractors
strictly comply with all labour laws.
d) Documentary evidence confirming compliance with Sub-Clause 11.18.4, as

may be required from time to time, shall be provided to the Employer’s
Representative.
e) The Employer shall not be liable for any delay/default of the Contractor in
compliance of the labour laws.
v) Facilities for Staff and Labour
The Contractor shall provide and maintain all necessary accommodation and
welfare facilities for personnel engaged for the Works. The Contractor shall
not permit any personnel engaged for the Works to maintain any temporary or
permanent living quarters within the structures forming part of the Works.
vi) Health and Safety

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All necessary precautions shall be taken by the Contractor to ensure the

health and safety of staff and labour engaged for the Works. The Contractor
shall, in collaboration with and to the requirements of the local health
authorities, ensure that para-medical staff, first aid facilities, ambulance
service are available 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 appoint a safety officer to be
responsible for the safety of personnel on the Site. This safety officer shall be
qualified for his work and shall have the authority to issue instructions
concerning safety and take protective measures to prevent accidents. The
Contractor shall maintain records and make reports concerning health, safety
and welfare of personnel, and damage to property, in such manner as the
Authority may reasonably require.
vii) Contractor's Personnel
The Contractor shall employ only personnel who are appropriately qualified,
skilled and experienced in their respective trades or occupations. The
Authority may require the Contractor to remove any personnel engaged for
the Works, who in the opinion of the Authority:
a) has engaged in any misconduct;
b) is incompetent or negligent in the performance of his duties;
c) fails to conform with any provisions of the Contract;
d) engages in any conduct which is prejudicial to safety, health, or the

protection of the environment; or
e) makes errors in the discharge of his functions.
If appropriate and required by the Employer, the Contractor shall then

appoint (or cause to be appointed) a suitable replacement person.
viii) Disorderly Conduct

The Contractor shall at all times take all reasonable precautions to prevent
any unlawful, riotous or disorderly conduct by or amongst its personnel, and
to preserve peace and protection of people and property in the neighborhood
of the Work.

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ARTICLE 12
COMPLETION CERTIFICATE
12.1 Tests on completion
12.1.1 At least 30 (thirty) days prior to the likely completion of the Project expressway,
or a Section thereof, the Contractor shall notify the Authority’s Engineer of its
intent to subject the Project expressway or a Section thereof, to Tests. The
date and time of each of the Tests shall be determined by the Authority’s
Engineer in consultation with the Contractor, and notified to the Authority who
may designate its representative to witness the Tests. The Contractor shall
either conduct the Tests as directed by the Authority’s Engineer or provide such
assistance as the Authority’s Engineer may reasonably require for conducting
the Tests. In the event of the Contractor and the Authority’s Engineer failing
to mutually agree on the dates for conducting the Tests, the Contractor shall
fix the dates by giving not less than 10 (ten) day’s notice to the Authority’s
Engineer.
12.1.2 All Tests shall be conducted in accordance with Schedule-K. The Authority’s
Engineer shall either conduct or observe, monitor and review the Tests
conducted by the Contractor, as the case may be, and review the results of
the Tests to determine compliance of the Project expressway or a Section
thereof, with Specifications and Standards and if it is reasonably anticipated or
determined by the Authority’s Engineer during the course of any Test that the
performance of the Project expressway 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 Defect or
deficiencies. Upon completion of each Test, the Authority’s Engineer shall
provide to the Contractor and the Authority copies of all Test data including
detailed Test results. For the avoidance of doubt, it is expressly agreed that
the Authority’s Engineer may require the Contractor to carry out or cause to be
carried out additional Tests, in accordance with Good Industry Practice, for
determining the compliance of the Project Expressway or Section thereof with
the Specifications and Standards.
12.2 Provisional Certificate

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12.2.1 Subject to the provisions of Clause 12.2.5, upon completion of all Works
forming part of the Project Expressway, save and except the Works for which
Time Extension has been granted under Clause 10.5, the Authority’s Engineer
shall, at the request of the Contractor, issue a provisional certificate of
completion substantially in the form set forth in Schedule-L (the “Provisional
Certificate”) if the Tests for and in respect of the completed Works are
successful. The Provisional Certificate shall have appended thereto a list of
outstanding items of work (the “Punch List”) that need to be completed in
accordance with the provisions of this Agreement. The Contractor undertakes
to complete the minor outstanding items of works in respect of those Sections of
the Project Expressway for which the Provisional Certificate has been issued,
within a period of 30 (thirty) days of the date of Provisional Certificate, and
those parts of the Works in respect of which Time Extension has been granted,
within the extended period thereof. For the avoidance of doubt, the Parties
agree that the Punch List shall include all Works for which Time Extension has
been granted and shall also include any minor outstanding items of work forming
part of the completed Sections if such works do not materially affect the
use of the completed Sections for their intended purpose. The Parties further
agree that Provisional Certificate shall not be issued if the completed Works
cannot be safely and reliably placed in service of the Users thereof.
12.2.2 Upon issue of Provisional Certificate, the provisions of Articles 14 and 17 shall
apply to the completed parts of the Project Expressway and the property and
ownership of all such completed Works shall vest in the Authority.
12.2.3 If the Authority’s Engineer determines that the Project Expressway or any
completed 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 Authority and the
Contractor and withhold issuance of the Provisional Certificate until the
Defects or deficiencies are rectified by the Contractor and Tests are
successful in accordance with this Article 12.
12.2.4 Withstanding anything to the contrary contained in Clause 12.2.3, the

Authority may, at any time after receiving a report from the Authority’s
Engineer under that Clause, direct the Authority’s Engineer to issue a Provisional

29.850 km)
Certificate under Clause 12.2.1 and such direction shall be complied forthwith.
12.2.5 No Provisional Certificate shall be issued under the provisions of this Clause 12.2
until the Contractor has submitted valid claims for payment of at least 80%
(eighty per cent) of the amount arrived at after reducing the lump sum price
specified in Clause 19.1.1 by the amount attributable to works which have
been withdrawn under the provisions of Clause
12.2.6 For the avoidance of doubt and by way of illustration, the Parties agree that if
the Contract Price specified in Clause 19.1.1 is Rs. 105 cr. (Rs. one hundred
and five crore) and the works withdrawn under Clause 8.3.3 have a value of Rs.
5 cr. (Rs. five crore), a Provisional Certificate shall not be issued until valid
claims for payment of an amount of Rs. 80 cr. (Rs. eighty crore) have been
submitted by the Contractor in accordance with the provisions of this
Agreement. It is further agreed that all price adjustments made in pursuance of
Clause 19.10 shall not be reckoned for computation of the claims for
payments referred to in this Clause 12.2.5. Authority reserve right to open any
section of project expressway which can establish connectivity and can be made
operational in large public interest on completion of stretch as per standards and
specification to entire satisfaction of authority by issuing part provisional
certificate.
12.3 Completion of remaining Works
All items in the Punch List 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 Authority or due to Force
Majeure, the Authority shall be entitled to recover Damages from the
Contractor in accordance with the provisions of Clause 10.3.2 of this Agreement.
12.4 Completion Certificate
12.4.1 Upon completion of all Works, including the items specified in the Punch List,
forming part of the Project expressway and the Authority’s Engineer determining
the Tests to be successful, and after the receipt of notarized true copies of the
certificate(s) of insurance, copies of insurance policies and premium payment
receipts in respect of the insurance defined in Article 20 and Schedule P of this

29.850 km)
Agreement, it shall, at the request of the Contractor forthwith issue to the

Contractor and the Authority a certificate substantially in the form set forth
in Schedule-L (the “Completion Certificate”).
12.4.2 Upon receiving the Completion Certificate, the Contractor shall remove its
equipment, materials, debris and temporary works from the Site within a period
of 30 (thirty) days thereof, failing which the Authority may remove or cause to be
removed, such equipment, materials, debris and temporary works and recover
from the Contractor an amount equal to 120% (one hundred and twenty per cent)
of the actual cost of removal incurred by the Authority.
12.4.3 Without prejudice to the obligations of the Contractor specified in Articles 14

and 17, the property and ownership of all the completed Works forming part
of the Project Expressway shall vest in the Authority.
12.5 Rescheduling of Tests
If the Authority’s Engineer certifies to the Authority and the Contractor that it is
unable to issue the Completion Certificate or Provisional Certificate, as the case
may be, 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.

29.850 km)
ARTICLE 13
CHANGE OF SCOPE
13.1 Change of Scope
13.1.1 The Authority may, notwithstanding anything to the contrary contained in this
Agreement, require the Contractor to make modifications/alterations to the
Works (“Change of Scope”) within a period of six months counted from the
Appointed Date. Upon the Authority making its intention known to the Contractor
for the specific Change of Scope, be it positive or negative, the Contractor to
submit a proposal for the said Change of Scope involving additional cost or
reduction in cost. Any such Change of Scope shall be made and valued in
accordance with the provisions of this Article 13.
13.1.2 Provided that any such Change of Scope, excluding major structures (e.g. Major
Bridge/ ROB/ RUB/ Flyover/ elevated road of more than 50 m length) may be
required and agreed to be executed between the parties beyond the period of six
months of the Appointed Date but before expiry of 50% of the original Scheduled
Construction Period of the Project expressway , subject to the condition that it
shall not entail any claims (e.g. Extension of Time/ Prolongation related claims),
against the Authority.
13.1.3 Change of Scope shall mean the following:
(a) change in specifications of any item of Works;
(b) omission of any work from the Scope of the Project except under Clause
8.3.3; provided that, subject to Clause 13.5, the Authority shall not
omit any work under this Clause in order to get it executed by any other
authority; and / or
(c) any additional work, Plant, Materials or services which are not included in
the Scope of the Project, including any associated Tests on completion of
construction.
(d) The span, skew angle, length and type of all structures specified in
Schedule B are based on the approximate assessment of the Authority. The
actual span, skew angle, length and type of all structures as required based

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on detailed investigations shall be finalized as per the Standards and

Specifications by the Contractor. Any variations in the span, skew angle,
length and type of structures specified in this Schedule-B shall not
constitute a Change of Scope. However, the minimum length of structure
shall be kept as given in Schedule-B.
13.2 Procedure for Change of Scope
13.2.1 In the event of the Authority determining that a Change of Scope is necessary,
it may direct the Authority’s Engineer to issue to the Contractor a notice
specifying in reasonable detail the works and services contemplated there under
(the “Change of Scope Notice”). The Contractor shall submit a detailed proposal
as per Clause 13.2.3 within 15 days from the receipt of Change of Scope Notice.
13.2.2 If the Contractor determines, not later than 90 days from the Appointed Date,
that a Change of Scope to the Works is required, it shall prepare a proposal with
relevant details as per Clause 13.2.3 at its own cost and shall submit to the
Authority to consider such Change of Scope (the “Change of Scope Request”).
13.2.3 Upon receipt of a Change of Scope Notice, the Contractor shall, with due
diligence, provide to the Authority and the Authority’s Engineer such information
as is necessary, together with detailed proposal in support of:
(a) the impact, if any, which the Change of Scope is likely to have on the
Project Completion Schedule if the works or services are required to be
carried out during the Construction Period; and
(b) the options for implementing the proposed Change of Scope and the effect,
if any, each such option would have on the costs and time thereof,
including the following details:
(i) break-down of the quantities, unit rates mentioned under Schedule of Rates
for Change of Scope cited in Clause 13.6 of this Article and cost for different
items of work, and
(ii) proposed design for the Change of Scope;
(iii) proposed modifications, if any, to the Project Completion Schedule of the
Project Expressway.
For the avoidance of doubt, the Parties expressly agree that, subject to the
provisions of Clause 13.4.2, the Contract Price shall be increased or decreased,

29.850 km)
as the case may be, on account of Change of Scope.
13.2.4 The parties agree that costs and time for implementation of the proposed Change
of Scope shall be determined as per the following principles:
(a) For works which are not included under Schedule of Rates for Change of
Scope as per clause 13.6; Current Schedule of Rates (SOR) of concerned
circle of State’s Public Works Department shall be applicable for
determination of costs. In case of non-availability of Schedule, the
available Schedule of Rates shall be applied by updating the same based
on WPI.
(b) For works which are not included under Schedule of Rates for Change of
Scope & not included in Schedule of Rates (SOR) of concerned circle of
State’s Public Works Department; being executed, as mentioned in sub-
para (a) of Clause 13.2.4 above, the cost of same shall be derived on the
basis of MORTH Standard Data Book and Authority’s Engineer shall
determine the prevailing market rates and discount the same considering
WPI to achieve the prevailing rate at the Base Date and for any item in
respect of which MORTH Standard Data Book does not provide the
requisite details, the Authority’s Engineer shall determine the rate in
accordance with Good Industry Practice.
For the avoidance of doubt, in case the cost as determined by the

Contractor and the Authority reveals a difference of more than 10% (ten
per cent), the cost as determined by the Authority shall be considered as
final and binding on the Contractor.
(c) The design charges shall be considered only for new works or items (i.e.,
the Works or items not similar to the works or items in the original scope)
@ 1% (one per cent) of cost of such new works or items.
(d) The costs of existing works or items, which are being changed/ omitted
shall also be valued as per above procedure and only net cost shall be
considered.
(e) The reasonable time for completion of works to be taken under Change of
Scope shall be determined by the Authority’s Engineer on the basis of Good

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Industry Practice and if such time exceeds the Scheduled Completion Date,
the issue of Completion Certificate shall not be affected or delayed on
account of construction of Change of Scope items/ works remaining
incomplete on the date of Tests.
13.2.5 Upon consideration of the detailed proposal submitted by the Contractor under
the Clause 13.2.3, the Authority, within 15 (fifteen) days of receipt of such
proposal, may in its sole discretion either accept such Change of Scope with
modifications, if any, and initiate proceedings thereof in accordance with this
Article 13 or reject the proposal and inform the Contractor of its decision and
shall issue an order (the “Change of Scope Order”) requiring the Contractor to
proceed with the performance thereof.
For the avoidance of doubt, the Parties agree that the Contractor shall not
undertake any Change of Scope without the express consent of the Authority,
save and except any works necessary for meeting any Emergency, that too with
verbal approval of Authority which shall be confirmed in writing in next 3 (three)
days. In the event that the Parties are unable to agree, the Authority may:
(a) issue a Change of Scope Order requiring the Contractor to proceed with
the performance thereof at the rates and conditions approved by the
Authority till the matter is resolved in accordance with Article 26; or
(b) proceed in accordance with Clause 13.5.
13.2.6 The provisions of this Agreement, insofar as they relate to Works and Tests, shall
apply mutatis mutandis to the works undertaken by the Contractor under this
Article 13.
13.3 Payment for Change of Scope
Payment for Change of Scope shall be made in accordance with the payment
schedule specified in the Change of Scope Order.
13.4 Restrictions on Change of Scope
13.4.1 No Change of Scope shall be executed unless the Authority has issued the
Change of Scope Order save and except any Works necessary for meeting any

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Emergency.
13.4.2 Unless the Parties mutually agree to the contrary for fulfilling the operational
requirements of the project expressway, the total value of Change of Scope
Orders shall not exceed 10 (ten) per cent of the Contract Price.
13.4.3 Notwithstanding anything to the contrary in this Article 13, if any change is
necessitated because of any default of the Contractor in the performance of its
obligations under this Agreement shall not be deemed to be Change of Scope
and shall not result in any adjustment of the Contract Price or the Project
Completion Schedule.
13.5 Power of the Authority to undertake works
13.5.1 In the event the Parties are unable to agree to the proposed Change of Scope
Orders in accordance with Clause 13.2, the Authority may, after giving notice to
the Contractor and considering its reply thereto, award such works or services to
any person on the basis of open competitive bidding from amongst Contractors
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 Authority, and thereupon securing the Contractor whose bid shall have been
matched by the Contractor. It is also agreed that the Contractor shall provide
assistance and cooperation to the person or agency who undertakes the works or
services hereunder. The Contractor shall not be responsible for rectification of
any Defects, but the Contractor shall carry out maintenance of such works after
completion of Defects Liability Period of work by other person or agency during
the remaining period of this agreement without any extra payment.
For the avoidance of doubt, it is agreed that the Contractor shall be entitled to
exercise such option only if it has participated in the bidding process and its bid
does not exceed the first ranked bid by more than 10% (ten percent) thereof. It is
also agreed that the Contractor shall provide assistance and cooperation to the
person who undertakes the works or services hereunder but shall not be
responsible for rectification of any Defects and/ or maintenance of works carried
out by other agencies.

29.850 km)
13.5.2 The works undertaken in accordance with this Clause 13.5 shall conform to the
Specifications and Standards and shall be carried out in a manner that minimizes
the disruption in the operation of the Project Expressway. The provisions of this
Agreement, insofar as they relate to Works and Tests, shall apply mutatis
mutandis to the works carried out under this Clause 13.5.
13.6 Schedule of Rates for Change of Scope
Sr.No. Material Description Unit Rates (Rs.)

Excavation in all type of strata for
1 Cum 119.00
roadway & structures
2 Excavation using Blasting Cum 250.00
3 Excavation using Chiseling Cum 1,419.00
4 M10 Cum 5,593.00
5 M15 Cum 5,976.00
6 M20 Cum 6,060.00
7 M25 Cum 6,241.00
8 M30 Cum 6,401.00
9 M35 Cum 6,529.00
10 M40 Cum 12,335.00
11 M45 Cum 12,875.00
12 M50 Cum 13,415.00
13 Dowel Bar - TMT FE 500 - 32 mm Dia Nos 538.00
14 Tie bar - TMT FE 500 - 12 mm Dia Nos 306.00
15 Reinforcement - TMT FE 500 MT 88,341.00
16 WMM Cum 2,045.00
17 GSB Cum 1,804.00
18 Materials obtained from cutting Cum 225.00
19 Materials obtained from borrow area Cum 358.00
20 Bitumen Layers Cum
21 Bituminous Concrete (VG40) Cum 11,159.00
Bituminous Concrete with Polymer
22 Cum 11,259.00
Modified Bitumen (PMB)
Bituminous Concrete with Crumbed Rubber
23 Cum 11,209.00
Modified Bitumen (CRMB)
24 Tack coat between BC & DBM Sqm 18.00
25 Dense Bituminous Macadam (VG40) Cum 9,664.00
26 Tack coat Between DBM & WMM Sqm 13.00
27 Prime Coat Sqm 33.00
28 Surface Dressing Sqm 80.00
29 PQC - M40 Cum 7,529.00

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Sr.No. Material Description Unit Rates (Rs.)

30 DLC - M 10 Mpa Cum 3,659.00
31 Building Works Sqm 18,000.00
32 Thrie Beam Metal Crash Barrier RMT 6,520.00
per
33 Road Painting 160.00
Litre
34 Overhead Signs Sqm 10,323.00
35 Mandatory signs No 5,396.00
36 Cautionary signs No 6,331.00
37 Informatory signs Sqm 13,230.00
38 Informatory signs Sqm 15,926.00
39 Cat eyes No 532.00
40 Pile drilling - M35 RCC - 1200 mm diameter Rmt 17,681.00
41 Pile lining - 6 mm thick permanent liner MT 1,04,593.00
42 Precast Compound Wall Rmt 8,500.00
43 Chain Link Fencing Rmt 2,539.00
44 Sound Barrier Sqm 906.41
45 Anti-Glare barrier Rmt 2,255.00
Note: No price variation or updation on the Whole Sale Price Index (WPI) applicable on the
above rates.

29.850 km)
ARTICLE 14
MAINTENANCE
14.1 Maintenance obligations of the Contractor
14.1.1 The Contractor shall maintain the Project Expressway for a period of 5 (five)/10
(ten year) corresponding to the Defects Liability Period commencing from the date
of the Completion Certificate (the “Maintenance Period”). For the performance
of its Maintenance obligations, the Contractor shall be paid
(a) For flexible pavement with 5 years Maintenance Period including structures:
no maintenance charges shall be paid for the first year; 0.25%of the Contract
Price each for the second, third and fourth year; and 0.50% of the accepted
Bid Price for the fifth year.
(b) For rigid pavement with 10 years Maintenance Period including structures:
0.125% of the accepted Bid Price each for the first, second and third year,
0.25% of the accepted Bid Price each for fourth, fifth, sixth and seventh year,
and 0.375% of the accepted Bid Price each for eighth, ninth and tenth year.
(c) For flexible perpetual pavement with 10 years maintenance period including
structures: no maintenance charges shall be paid for the first year; 0.25% of
the accepted Bid Price each for the second, third and fourth year; 0.375% of
the accepted Bid Price each for the subsequent years till laying of the
renewal layer or end of maintenance period, whichever is earlier. The
requirement for the renewal layer shall be worked out based on the survey
and investigation of the existing pavement and the cost of such renewal
works shall be made separately to the Contractor based on the principles
defined under clause 13.2. After laying of the renewal layer, the Contractor
shall be paid @ 0.25% of the accepted Bid Price each for the remaining years
till the end of maintenance period.
(d) For stand-alone Bridge/ Tunnel works: the contractor shall be paid @ 0.125%
of the accepted Bid Price each for the first five years and @ 0.25% of the
accepted Bid Price each for the remaining period of five years.
Above amount for the performance of Contractors’ Maintenance obligations shall

be, inclusive of all taxes. The amount payable for maintenance shall be adjusted

29.850 km)
to reflect any increase or decrease arising out of variation in WPI to be

determined in accordance with the provisions of Clause 19.12. It is further agreed
that the Contract Price hereunder shall be reckoned with reference to the
amount specified in Clause 19.1 (i), which shall be adjusted to the extent of
Change of Scope and the works withdrawn under the provisions of Clause 8.3 (iii),
but shall not include any price adjustments in pursuance of Clause 19.10.
14.1.2 During the Maintenance Period, the Authority shall provide to the Contractor access
to the Site for Maintenance in accordance with this Agreement. The obligations
of the Contractor hereunder shall include:
(a) permitting safe, smooth and uninterrupted flow of traffic on the Project
Expressway;
(b) undertaking routine maintenance including prompt repairs of potholes,

cracks, joints, drains, embankments, structures, pavement markings,
lighting, road signs and other traffic control devices; For the avoidance of
doubt, the electricity charges for operation of electrical infrastructure installed
along the project length and water charges if any shall be borne by the
Contractor;
(c) undertaking repairs to structures;
(d) informing the Authority of any unauthorized use of the Project Expressway;
(e) informing the Authority of any encroachments on the Project Expressway;

and
(f) operation and maintenance of all communication, patrolling, and

administrative systems necessary for the efficient maintenance of the Project
Expressway in accordance with the provisions of this Agreement.
14.1.3 In respect of any Defect or deficiency not specified in Schedule-E, the Contractor
shall, at its own cost, undertake repair or rectification in accordance with Good
Industry Practice, save and except to the extent that such Defect or deficiency
shall have arisen on account of any default or neglect of the Authority or a
Force Majeure Event.

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14.1.4 The Contractor shall remove promptly from the Project Expressway any waste
materials (including hazardous materials and waste water), rubbish and other
debris (including, without limitation, accident debris) and keep the Project
expressway in a clean, tidy and orderly condition, and in conformity with the
Applicable Laws, Applicable Permits and Good Industry Practice.
14.2 Maintenance Requirements
The Contractor shall ensure and procure that at all times during the Maintenance
Period, the Project Expressway conforms to the maintenance requirements set
forth in Schedule-E (the “Maintenance Requirements”).
14.3 Maintenance Programme
14.3.1 The Contractor shall prepare a monthly maintenance programme (the Maintenance
Programme”) in consultation with the Authority’s Engineer and submit the same to
the Authority’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 Authority’s Engineer shall be
undertaken. The Maintenance Programme shall contain the following:
(a) The condition of the road in the format prescribed by the Authority’s
Engineer;
(b) the proposed maintenance works; and
(c) Deployment of resources for maintenance works.
14.4 Safety, vehicle breakdowns and accidents
14.4.1 The Contractor shall ensure safe conditions for the Users, and in the event of
unsafe conditions, lane closures, diversions, vehicle breakdowns and accidents, it
shall follow the relevant operating procedures for removal of obstruction and
debris without delay. Such procedures shall conform to the provisions of this
Agreement, Applicable Laws, Applicable Permits and Good Industry Practice.
14.4.2 The Contractor shall maintain and operate a round-the-clock vehicle rescue post
with three mobile cranes in combination of as one mobile crane shall have the
capacity to lift a truck with a Gross Vehicle Weight of 30,000 (thirty thousand)

29.850 km)
kilograms and rest two mobile cranes shall have the capacity to lift cars/vans with
a Gross Vehicle Weight of 15,000 (fifteen thousand) kilograms respectively; and
such post shall be located at location mentioned in Schedule C. The Contractor
shall promptly remove any damaged vehicles and debris from the Project
expressway to enable safe movement of traffic and shall report all accidents to the
police forthwith.
14.5 Lane closure
14.5.1 The Contractor shall not close any lane of the Project expressway for undertaking
maintenance works except with the prior written approval of the Authority’s
Engineer. Such approval shall be sought by the Contractor through a written
request to be made at least 10 (ten) days before the proposed closure of lane and
shall be accompanied by particulars thereof. Within 5 (five) business days of
receiving such request, the Authority’s Engineer shall grant permission with such
modifications as it may deem necessary and a copy of such permission shall be
sent to the Authority.
14.5.2 Upon receiving the permission pursuant to Clause 14.5.1, the Contractor shall
be entitled to close the designated lane for the period specified therein, and
for all lane closures extending a continuous period of 48 (forty-eight) hours, the
Contractor shall in the event of any delay in re-opening such lane, for every
stretch of 250 (two hundred and fifty) meters, or part thereof, pay Damages to the
Authority calculated at the rate of 0.1% (zero point one per cent) of the monthly
maintenance payment for each day of delay until the lane has been re-opened for
traffic. In the event of any delay in re-opening such lanes or in the event of
emergency decommissioning and closure to traffic of the whole or any part of the
Project expressway due to failure of the Contractor, the Contractor shall pay
damages to the Authority at double the above rate, without prejudice the rights of
the Authority under this Agreement including Termination thereof.
14.6 Reduction of payment for non-performance of Maintenance obligations
14.6.1 In the event that the Contractor fails to repair or rectify any Defect or deficiency
set forth in Schedule-E within the period specified therein, it shall be deemed as
failure of performance of Maintenance obligations by the Contractor and the
Authority shall be entitled to effect reduction in monthly lump sum payment

29.850 km)
for maintenance in accordance with Clause 19.7 and Schedule-M, without

prejudice to the rights of the Authority under this Agreement, including
Termination thereof.
14.6.2 If the nature and extent of any Defect 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 Authority’s Engineer and conveyed to
the Contractor and the Authority with reasons thereof.
14.7 Authority’s right to take remedial measures
In the event the Contractor does not maintain and/or repair the Project
expressway or any part thereof in conformity with the Maintenance Requirements,
the Maintenance Manual or the Maintenance Programme, as the case may be, and
fails to commence remedial works within 15 (fifteen) days of receipt of the
Maintenance Inspection Report under Clause 15.2 or a notice in this behalf from the
Authority or the Authority’s Engineer, as the case may be, the Authority shall,
without prejudice to its rights under this Agreement including Termination thereof,
be entitled to undertake such remedial measures at the cost of the Contractor, and
to recover its cost from the Contractor. In addition to recovery of the aforesaid
cost, a sum equal to 20% (twenty per cent) of such cost shall be paid by the
Contractor to the Authority as Damages.
14.8 Restoration of loss or damage to Project Expressway
Save and except as otherwise expressly provided in this Agreement, in the event
that the Project Expressway 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 Expressway conforms to the provisions of this Agreement.
14.9 Overriding powers of the Authority
14.9.1 If in the reasonable opinion of the Authority, the Contractor is in material breach
of its obligations under this Agreement and, in particular, the Maintenance
Requirements, and such breach is causing or likely to cause material hardship or
danger to the Users and pedestrians, the Authority may, without prejudice to any

29.850 km)
of its rights under this Agreement including Termination thereof, by notice

require the Contractor to take reasonable measures immediately for rectifying or
removing such hardship or danger, as the case may be.
14.9.2 In the event that the Contractor, upon notice under Clause 14.9.1, fails to
rectify or remove any hardship or danger within a reasonable period, the Authority
may exercise overriding powers under this Clause 14.9.2 and take over the
performance of any or all the obligations of the Contractor to the extent deemed
necessary by it for rectifying or removing such hardship or danger; provided that
the exercise of such overriding powers by the Authority shall be of no greater
scope and of no longer duration than is reasonably required hereunder;
provided further that any costs and expenses incurred by the Authority in
discharge of its obligations hereunder shall be recovered by the Authority from
the Contractor, and the Authority shall be entitled to deduct any such costs
and expenses incurred from the payments due to the Contractor under Clause
19.7 for the performance of its Maintenance obligations.
14.9.3 In the event of a national emergency, civil commotion or any other
circumstances specified in Clause 21.3, the Authority may take over the
performance of any or all the obligations of the Contractor to the extent deemed
necessary by it, and exercise such control over the Project expressway or give such
directions to the Contractor as may be deemed necessary; provided that the
exercise of such overriding powers by the Authority shall be of no greater scope
and of no longer duration than is reasonably required in the circumstances which
caused the exercise of such overriding power by the Authority. For the avoidance
of doubt, it is agreed that the consequences of such action shall be dealt in
accordance with the provisions of Article 21. It is also agreed that the Contractor
shall comply with such instructions as the Authority may issue in pursuance of the
provisions of this Clause 14.9.3, and shall provide assistance and cooperation to the
Authority, on a best effort basis, for performance of its obligations hereunder.
14.10 Taking over Certificate

The Maintenance Requirements set forth in Schedule-E having been duly carried
out, Maintenance Period as set forth in Clause 14.1.1 having been expired and
Authority’s Engineer determining the Tests on Completion of Maintenance to be
successful in accordance with Schedule-Q, the Authority will issue Taking Over
Certificate to the Contractor substantially in the format set forth in Schedule-R.

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ARTICLE 15
SUPERVISION AND MONITORING DURING MAINTENANCE
15.1 Inspection by the Contractor
15.1.1 The Authority’s Engineer shall undertake regular inspections to evaluate

continuously the compliance with the Maintenance Requirements.
15.1.2 The Contractor shall carry out a detailed pre-monsoon inspection of all bridges,
culverts and drainage system in accordance with the guidelines contained in IRC:
SP:35. Report of this inspection together with details of proposed maintenance
works as required shall be conveyed to the Authority’s Engineer forthwith. The
Contractor shall complete the proposed maintenance works before the onset of
the monsoon and send a compliance report to the Authority’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 Authority’s Engineer forthwith.
15.2 Inspection and payments
15.2.1 The Authority’s Engineer may inspect the Project Expressway 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 Authority and
the Contractor within 10 (ten) days of such inspection.
15.2.2 After the Contractor submits to the Authority’s Engineer the Monthly Maintenance
Statement for the Project expressway pursuant to Clause 19.6, the Authority’s
Engineer shall carry out an inspection within 10 (ten) days to certify the amount
payable to the Contractor. The Authority’s Engineer shall inform the Contractor of
its intention to carry out the inspection at least 3 (three) business days in advance
of such inspection. The Contractor shall assist the Authority’s Engineer in verifying
compliance with the Maintenance Requirements.
15.2.3 For each case of non-compliance of Maintenance Requirements as specified in the

inspection report of the Authority’s Engineer, the Authority’s Engineer shall

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calculate the amount of reduction in payment in accordance with the formula

specified in Schedule-M.
15.2.4 Any deduction 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.
15.3 Tests
For determining that the Project Expressway conforms to the Maintenance

Requirements, the Authority’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 Authority’s Engineer and
furnish the results of such tests forthwith to the Authority’s Engineer.
At any time during Maintenance Period, the Authority may appoint an external
technical auditor to conduct an audit of the quality of the Works. The Auditor in the
presence of the representatives of the Contractor and the Authority’s Engineer shall
carry out the Tests and/ or collect samples for testing in the laboratory. The timing,
the testing equipment and the sample size of this audit shall be as decided by the
Authority. The findings of the audit, to the extent accepted by the Authority, shall
be notified to the Contractor and the Authority’s Engineer for taking remedial
measures. After completion of the remedial measures by the Contractor, the auditor
shall undertake a closure audit and this process will continue till the remedial
measures have brought the maintenance works into compliance with the
Specifications and Standards. 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 15.3, the external technical audit shall not affect
any obligations of the Contractor or the Authority’s Engineer under this Agreement.
15.4 Reports of unusual occurrence
The Contractor shall, during the Maintenance Period, prior to the close of each
day, send to the Authority and the Authority’s Engineer, by facsimile or e-mail, a
report stating accidents and unusual occurrences on the Project Expressway
relating to the safety and security of the Users and Project Expressway. A monthly
summary of such reports shall also be sent within 3 (three) business days of the

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closing of month. For the purposes of this Clause 15.4, accidents and unusual
occurrences on the Project expressway shall include:
(a) accident, death or severe injury to any person;
(b) damages or dislodged fixed equipment;
(c) flooding of Project Expressway;
(d) any other unusual occurrence.

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ARTICLE 16
TRAFFIC REGULATION
16.1 Traffic regulation by the Contractor
16.1.1 The Contractor shall take all the required measures and make arrangements for the
safety of Users during the construction and maintenance of the Project Expressway
or a Section thereof in accordance with the provisions of MORTH Specifications. 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.
16.1.2 All works shall be carried out in a manner creating least interference to traffic
passing through the Project expressway or a Section thereof. In sections where
construction or maintenance works on the carriageway are taken up, the Contractor
shall ensure that proper and safe 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. ‘ROBOTS’ may be used for diversion and control of
traffic during Construction. The Contractor shall take prior approval of the
Authority’s Engineer for any proposed arrangement for traffic regulation during
Construction and Maintenance, which approval shall not be unreasonably withheld.

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ARTICLE 17
DEFECTS LIABILITY
17.1 Defects Liability Period (DLP)
17.1.1 The Contractor shall be responsible for all the Defects and deficiencies,
including usual wear and tear in the Project expressway or any Section thereof, till
the expiry of a period of commencing from the date of Completion Certificate (the
“Defects Liability Period”) as specified below:
(a) 5 (five) years from the date of completion in case of a road being constructed
with flexible pavement;
(b) 10 (ten) years from the date of completion in case of road being constructed
with rigid pavement;
(c) 10 (ten) years from the date of completion in case of road being constructed
with flexible pavement using perpetual design;
(d) 10 (ten) years from the date of completion in case of all stand-alone structures,
e.g., Major Bridges/ flyover, viaduct, ROB, VUP, VOP etc;
(e) 10 (ten) years from the date of completion for the stretches where new
technology/ material has been/ is proposed to be used.
(f) 3 (three) years from the date of completion for stretches requiring renewal of
Bituminous Concrete (BC) layer through either using hot-in-place recycling of
the entire BC layer or providing a fresh layer of BC with 40mm thickness.
(g) 3 (three) years from the date of completion for stretches requiring
improvement to riding quality, in cases other than those mentioned in para (f)
above, through laying a layer of BM/DBM and BC.
The Defects Liability Period shall commence from the date of the Completion
Certificate. For the avoidance of doubt, any repairs or restoration because of usual
wear or tear in the Project Expressway or any Section thereof shall form a part of
the Maintenance obligations of the Contractor as specified in Article 14.

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17.2 Remedying Defects
Save and except as provided in Clause 14.1.2, the Contractor shall repair or rectify
all Defects and deficiencies observed by the Authority’s Engineer during the Defects
Liability Period within a period of 15 (fifteen) days from the date of notice issued
by the Authority or Authority’s Engineer in this behalf, or within such reasonable
period as may be determined by the Authority or Authority’s Engineer at the
request of the Contractor, in accordance with Good Industry Practice.
The damage due to natural/environmental conditions to the various components of

the work shall be repaired/reinstated by the Contractor with no additional costs to
the Authority. However, the damages due to the accident caused by third party (all
such repairs shall be carried out by the Contractor as per time line in
Schedule-E) shall be payable as a change of scope during the Defects Liability
Period.
However, the security of the project expressway & facilities and road furniture
shall be the responsibility of Contractor throughout the Defects Liability Period with
no additional cost to the authority”.
The contractor shall procure, deploy, operate & maintain the Mechanized Road
Sweeping Machines of standard make as directed by the Authority for Cleaner &
Safer Roads during the construction & Defects Liability Period at his own cost. Upon
completion of Defects Liability Period, the contractor shall handover the
Mechanized Road Sweeping Machines which are operational & in good working
conditions to be operatable in future to the Authority without cost to authority.
The contractor shall procure, deploy, operate & maintain the Bridge Inspection
Unit/Machine (BIM) of standard make as directed by the authority at his own cost
for checking the health of the bridges & long structures such as flyovers/viaducts &
Road Over Bridges (ROB) during construction & Defects Liability Period. Upon
completion of Defects Liability Period, the contractor shall handover the BIM which
is operational & in good working conditions to be operatable in future to the
Authority.
The contractor shall procure, deploy, operate & maintain the

equipment/Vehicles/Devices of standard make (the list of
equipment/vehicles/devices is listed in Schedule B & C) as directed by the

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authority at his own cost for ensuring the project expressway is operated at the
high level of services from safety, operation & maintenance perspectives during
construction & defects Liability Period. Upon completion of Defects Liability Period,
the contractor shall handover such Equipment/Vehicles/Devices which are
operational & in good working conditions to be operatable in future to the
Authority.
17.3 Cost of remedying Defects
Any repair or rectification undertaken in accordance with the provisions of Clause

17.2, including any additional testing, shall be carried out by the Contractor at its
own risk and cost, to the extent that such rectification or repair is attributable to:
(a) the design of the Project;
(b) Plant, Materials or workmanship not being in accordance with this

Agreement and the Specifications and Standards;
(c) improper maintenance during construction of the Project expressway by the

Contractor; and/ or
(d) Failure by the Contractor to comply with any other obligation under this
Agreement.
17.4 Contractor’s failure to rectify Defects
If the Contractor fails to repair or rectify such Defect or deficiency within the
period specified in Clause 17.2, the Authority shall be entitled to get the same
repaired, rectified or remedied at the Contractor’s cost so as to make the Project
Expressway conform to the Specifications and Standards and the provisions of this
Agreement. All costs consequent thereon shall, after due consultation with the
Authority and the Contractor, be determined by the Authority’s Engineer. The cost
so determined and an amount equal to twenty percent of the cost as Damages shall
be recoverable by the Authority from the Contractor and may be deducted by the
Authority from any payment due to the Contractor.
17.5 Contractor to search cause
17.5.1 The Authority’s Engineer may instruct the Contractor to examine the cause of

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any Defect in the Works or part thereof before the expiry of the Defects Liability
Period.
17.5.2 In the event any Defect identified under Clause 17.5.1 is attributable to the
Contractor, the Contractor shall rectify such Defect within the period specified by
the Authority’s Engineer, and shall bear the cost of the examination and
rectification of such Defect.
17.6. 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 or rectified.

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ARTICLE 18
AUTHORITY’S ENGINEER
18.1 Appointment of the Authority’s Engineer
18.1.1 The Authority shall appoint a firm of consulting engineers or a Project Monitoring
Committee (PMC) substantially in accordance with the selection criteria set forth
in Schedule-N, to be the engineer under this Agreement (the “Authority’s
Engineer”). In unavoidable circumstances, Authority may appoint an officer to act
as Authority’s Engineer until appointment of a Consulting Engineering firm/
Supervision Consultant/ PMC.
18.1.2 The officer in-charge of the Authority is responsible for the overall supervision and
monitoring of the execution of project as the representative of the owner of the
project. The Authority's Engineer is appointed to assist the Authority for carrying
out the functions as detailed under clause 18.2. As such, an officer of the Authority
is vested with all such powers and responsibilities as are enjoined upon the
Authority's Engineer and is fully competent to issue any instructions for proper
monitoring and supervision of the project, either by himself or through the
Authority's Engineer. Instructions issued by the concerned officer of the Authority
shall have the same effect as that of the Authority's Engineer in terms of this
Agreement. Wherever such concerned officer issues any instructions or notice to
the Contractor, he shall endorse a copy thereof to the Authority's Engineer.
18.1.3 The Authority’s Engineer should be appointed within 30 days from the date of this
Agreement or before declaration of Appointed Date, whichever is earlier. The
Authority shall notify the appointment or replacement of the Authority’s Engineer
to the Contractor.
18.1.4 The staff of the Authority’s Engineer shall include suitably qualified engineers and
other professionals who are competent to assist the Authority’s Engineer to carry
out its duties.
18.2 Duties and authority of the Authority’s Engineer
18.2.1 The Authority’s Engineer shall perform the duties and exercise the authority in
accordance with the provisions of this Agreement, and substantially in accordance

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with the terms of reference (“Terms of Reference” or “TOR”) set forth in Annex 1
of Schedule N, but subject to obtaining prior written approval of the Authority
before determining:
(a) any Time Extension;
(b) any additional cost to be paid by the Authority to the Contractor;
(c) the Termination Payment; or
(d) issuance of Completion Certificate; or
(e) Any other matter which is not specified in (a), (b). (c) or (d) above and
which creates an obligation or financial liability on either Party.
18.2.2 No decision or communication of the Authority’s Engineer shall be effective or

valid unless it is accompanied by an attested true copy of the approval of the
Authority for and in respect of any matter specified in Clause 18.2.1.
18.2.3 The Authority’s Engineer shall submit regular periodic reports, at least once every
month, to the Authority in respect of its duties and functions under this Agreement.
Such reports shall be submitted by the Authority’s Engineer within 10 (ten) days of
the beginning of every month. For the avoidance of doubt, the Authority’s
Engineer shall include in its report, compliance of the recommendations of the
Safety Consultant.
18.3 Delegation by the Authority’s Engineer
18.3.1 The Authority’s Engineer may, by order in writing, delegate any of his duties and
responsibilities to suitably qualified and experienced personnel who are
accountable to Authority’s Engineer, or may revoke any such delegation, under
intimation to the Authority and the Contractor. Provided, however, that the
Authority’s Engineer shall be responsible and liable for all actions and omissions
of such personnel.
18.3.2 Any failure of the Authority’s Engineer to disapprove any work, Plant or Materials
shall not constitute approval, and shall therefore not prejudice the right of the
Authority to reject the work, Plant or Materials, which is not in accordance with
the provisions of this Agreement and the Specifications and Standards.

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18.3.3 Notwithstanding anything stated in Clause 18.3.1 above, the Authority’s Engineer
shall not delegate the authority to refer any matter for the Authority’s prior
approval wherever required in accordance with the provisions of Clause 18.2.
18.4 Instructions of the Authority’s Engineer
18.4.1 The Authority’s Engineer may issue instructions for remedying any Defect(s) to the
Contractor. The Contractor shall take such instructions from the Authority’s
Engineer, or from an assistant to whom appropriate authority has been delegated
under Clause 18.3.
18.4.2 The instructions issued by the Authority’s Engineer shall be in writing.
However, if the Authority’s Engineer issues any oral instructions to the Contractor,
it shall confirm in writing the oral instructions in writing within 2 (two) working
days of issuing them.
18.4.3 In case the Contractor does not receive the confirmation of the oral
instructions within the time specified in Clause 18.4.2, the Contractor shall seek
the written confirmation of the oral instructions from the Authority’s Engineer. The
Contractor shall obtain acknowledgement from the Authority’s Engineer of the
communication seeking written confirmation. In case of failure of the Authority’s
Engineer or its delegated assistant to reply to the Contractor within 2 (two) days of
the receipt of the communication from the Contractor, the Contractor may not
carry out the instructions.
18.4.4 In case of any dispute on any of the instructions issued by the delegated assistant,
the Contractor may refer the dispute to the Authority’s Engineer, who shall then
confirm, reverse or vary the instructions within 3 (three) business days of the
dispute being referred.
18.5 Determination by the Authority’s Engineer
18.5.1 The Authority’s Engineer shall consult with each Party in an endeavor to reach
agreement wherever this Agreement provides for the determination of any matter
by the Authority’s Engineer. If such agreement is not achieved, the Authority’s
Engineer shall make a fair determination in accordance with this Agreement having
due regard to all relevant circumstances. The Authority’s Engineer shall give notice

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to both the Parties of each agreement or determination, with supporting

particulars.
18.5.2 Each Party shall give effect to each agreement or determination made by the
Authority’s Engineer in accordance with the provisions of this Agreement.
Provided, however, that if any Party disputes any instruction, decision, direction or
determination of the Authority’s Engineer, the Dispute shall be resolved in
accordance with the dispute Resolution Procedure.
18.6 Remuneration of the Authority’s Engineer
The remuneration, cost and expenses of the Authority’s Engineer shall be paid by
the Authority.
18.7 Termination of the Authority’s Engineer
18.7.1 The Authority may, in its discretion, replace the Authority’s Engineer at any time.
However, the Authority shall ensure that alternative arrangements for appointment
of another Authority’s Engineer in accordance with Clause 18.1. or designation of
its own officer as the Authority Engineer for the intervening period are made
simultaneously.
18.7.2 If the Contractor has reasons to believe that the Authority’s Engineer is not
discharging its duties and functions in accordance with the provisions of this
Agreement, it may make a written representation to the Authority and seek
termination of the appointment of the Authority’s Engineer. Upon receipt of such
representation, the Authority shall hold a tripartite meeting with the Contractor
and Authority’s Engineer and make best efforts for an amicable resolution of the
representation. In the event that the appointment of the Authority’s Engineer is
terminated hereunder, the Authority shall appoint forthwith another Authority’s
Engineer in accordance with Clause 18.1.and 18.7.1.

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Part IV
Financial Covenants

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ARTICLE 19
PAYMENTS
19.1 Contract Price
19.1.1 The Authority shall make payments to the Contractor for the Works on the basis of
the lump sum price accepted by the Authority in consideration of the obligations
specified in this Agreement for an amount of Rs INR. … … … … (Rs.INR … … … … …
… … …) (the “Contract Price”), which shall be subject to adjustments in
accordance with the provisions of this Agreement. For the avoidance of doubt, the
Parties expressly agree that the Contract Price shall include the cost of
Maintenance which shall be paid separately in accordance with the provisions of
Clause 19.7 and Schedule-H. The Parties further agree that save and except as
provided in this Agreement, the Contract Price shall be valid and effective until
issue of Completion Certificate.
19.1.2 The Contract Price includes all duties, taxes royalty, cess, charges excluding of
GST and fees that may be levied in accordance with the laws and regulations in
force as on the Base Date on the Contractor’s equipment, Plant, Materials and
supplies acquired for the purpose of this Agreement and on the services performed
under this Agreement. 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. If the royalty charges are
exempted in such case royalty charges & incidental DM charges shall be deducted
from the payment due to the contractor as per actual consumption of material on
project expressway.
19.1.3 The Contract Price shall not be adjusted for any change in costs stated in Clause
19.1.2 above, except as stated in Clauses 19.10 and 19.17.
19.1.4 The Contract Price shall not be adjusted to take account of any unforeseen
difficulties or costs, unless otherwise provided for in this Agreement.
19.1.5 Unless otherwise stated in this Agreement, the Contract Price covers all the
Contractor’s obligations for the Works under this Agreement and all things
necessary for the Construction and the remedying of any Defects in the
Project expressway.

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19.1.6 All payments under this Agreement shall be made in Indian Rupees.
19.2 Advance Payment
19.2.1 The Authority shall make an interest-bearing advance payment (the “Advance
Payment”) @ SBI MCLR + 3% annual compounding rate equal in amount to 10%
(ten percent) of the Contract Price, exclusively for mobilisation expenses. The
Advance Payment for mobilisation expenses shall be made in two installments
each equal to 5% (ﬁve percent) of the Contract Price. The second 5% (five
percent) mobilisation advance would be released after submission of utilization
certificate by the Contractor for the first 5% (five percent) advance already
released earlier.
In addition to above, the Authority shall make an additional interest-bearing

advance payment against newly purchased key construction equipment required
for the works as per agreed construction programme and brought to the site, if so
requested by the Contractor subject to the same terms and conditions specified
for Advance Payment for mobilisation expenses in this Agreement. The maximum
of such advance shall be 5% (five percent) of the Contract Price against Bank
Guarantee. This advance shall be further subject to the condition that (i) such
new equipment are considered by the Authority’s Engineer to be necessary for
the works and (ii) these new equipment should be procured in the name of
Contractor and is verified by Authority’s Engineer to have been brought to site.
The Advance Payment for mobilization expenses and for acquisition of key new
construction equipment would be deemed as interest bearing advance at the
applicable interest rate @ SBI MCLR + 3% per annum to be compounded annually
on a reducing balance basis. The interest would be recovered along with the
recovery of mobilization Advance Payment in equal installments as per provision
laid down for the mobilization advance recovery.
19.2.2 The Contractor may apply to the Authority for the first installment of the
Advance Payment at any time after the Appointed Date, along with an
irrevocable and unconditional guarantee from a Bank for an amount
equivalent to 110% (one hundred and ten per cent) of such installment,
substantially in the form provided at Annex-III of Schedule-G, to remain effective
till the complete and full repayment thereof.

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19.2.3 Deleted.
19.2.4 At any time, after 60 (sixty) days from the Appointed Date, the Contractor may
apply to the Authority for the second installment of the Advance Payment along
with an irrevocable and unconditional guarantee from a Bank for an amount
equivalent to 110% (one hundred and ten per cent) of such installment,
substantially in the form provided at Annex-III of Schedule-G, to remain effective
till the complete and full repayment thereof.
19.2.5 The Advance Payment shall be paid by the Authority to the Contractor within
15 (fifteen) days of the receipt of its respective requests in accordance with the
provisions of this Clause 19.2.
19.2.6 The advance payment shall be repaid through percentage deductions from the
stage payments determined by the Authority’s Engineer in accordance with Sub-
Clause 19.5, as follows:
(a) deductions shall commence in the next first Stage Payment Statement
following that in which the total of all certified stage payments (excluding
the advance payment and deductions and repayments of retention) exceeds
20% (twenty percent) of the Contract Price; and
(b) Deductions shall be made at the rate of 15% (fifteen percent) of each
Stage Payment Statement until such time as the advance payment has
been repaid; provided that the advance payment shall be completely repaid
prior to the time when 80% (80 percent) of the Contract Price has been
certified for payment;
(c) if total certified stage payments (excluding the Advance Payment and
deductions and repayments of retention) does not exceed 20% (twenty
percent) of the Contract Price within 50% of the Scheduled Construction
Period] from the Appointed Date then the Advance Payment including
interest at the rate of 12% shall be recovered by encashment of the Bank
Guarantee for the Advance Payment.
19.2.7 If the Advance Payment has not been fully repaid prior to Termination under
Clause 21.7 or Article 23, as the case may be, the whole of the balance then
outstanding shall immediately become due and payable by the Contractor to the

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Authority. Without prejudice to the provisions of Clause 19.2.7, in the event of

Termination for Contractor Default, the Advance Payment shall be deemed to carry
interest rate @ SBI MCLR + 3% per annum to be compounded annually from the date
of Advance Payment to the date of recovery by encashment of the Bank Guarantee
for the Advance Payment. For the avoidance of doubt, the aforesaid interest shall be
payable on each instalment of the Advance Payment, regardless of whether the
instalment or any part thereof has been repaid to the Authority prior to Termination.
19.3 Procedure for estimating the payment for the Works
19.3.1 The Authority shall make interim payments to the Contractor as certified by the
Authority’s Engineer on completion of a stage, in a length, number or area as
specified, and valued in accordance with the proportion of the Contract Price
assigned to each item and its stage in Schedule-H.
19.3.2 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 19.3.1, supported with necessary particulars and
documents in accordance with this Agreement.
19.3.3 Any reduction in the Contract Price arising out of Change of Scope or the works
withdrawn under Clause 8.3 shall not affect the amounts payable for the items or
stage payments thereof which are not affected by such Change of Scope or
withdrawal. For avoidance of doubt and by way of illustration, the Parties agree
that if the amount assigned to Major Bridges is reduced from Rs. 100 crores to
Rs. 80 crores owing to Change of Scope or withdrawal of work, the reduction in
payment shall be restricted to relevant payments for Major Bridges only and the
payment due in respect of all other stage payments under the item Major Bridges
shall not be affected in any manner. The Parties further agree that the
adjustments arising out of the aforesaid modifications shall be carried out in a
manner that the impact of such modifications is restricted to the said Change of
Scope or withdrawal, as the case may be, and does not alter the payments due
for and in respect of items or stage payments which do not form part of such
Change of Scope or withdrawal.

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19.4 Stage Payment Statement for Works
The Contractor shall submit a statement (the “Stage Payment Statement”), in 3

copies, by the 7th (seventh) day of the month to the Authority’s Engineer in the
form set forth in Schedule-O, showing the amount calculated in accordance with
Clause 19.3 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. The Contractor shall not
submit any claim for payment of incomplete stages of work.
19.5 Stage Payment for Works
19.5.1 Within 10 (ten) days of receipt of the Stage Payment Statement from the
Contractor pursuant to Clause 19.4, the Authority’s 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 by the
Authority’s Engineer. Within 10 (ten) days of the receipt of recommendation of
the Authority’s Engineer, the Authority shall make electronic payment directly
to the Contractor’s bank account.
19.5.2 Within 15 (fifteen) days of the receipt of the Stage Payment Statement referred to
in Clause 19.4, the Authority’s Engineer shall determine and shall deliver to the
Authority 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. For the avoidance of doubt, the Parties agree that
the IPC shall specify all the amounts that have been deducted from the Stage
Payment Statement and the reasons therefor.
19.5.3 In cases where there is a difference of opinion as to the value of any stage,
the Authority’s Engineer’s view shall prevail and interim payments shall be made
to the Contractor on this basis; provided that the foregoing shall be without
prejudice to the Contractor’s right to raise a Dispute.
19.5.4 The Authority’s Engineer may, for reasons to be recorded, withhold from
payment:
(a) the estimated value of work or obligation that the Contractor has failed

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to perform in accordance with this Agreement and the Authority’s Engineer

had notified the Contractor; and
(b) The estimated cost of rectification of work done being not in

accordance with this Agreement.
19.5.5 Payment by the Authority shall not be deemed to indicate the Authority's
acceptance, approval, consent or satisfaction with the work done.
19.6 Monthly Maintenance Statement of the Project expressway
19.6.1 The Contractor shall submit to the Authority’s Engineer a monthly

maintenance statement (“Monthly Maintenance Statement”) in 3 (three) copies
by the 7th (seventh) day of each month in the format set forth in Schedule-O for
the Maintenance of the Project expressway during the previous month.
19.6.2 The monthly lump sum amount payable for Maintenance shall be 1/12th (one-
twelfth) of the annual cost of Maintenance as specified in Clause 14.1.1.
19.7 Payment for Maintenance of the Project Expressway
19.7.1 Within 15 (fifteen) days of receipt of the Monthly Maintenance Statement from
the Contractor pursuant to Clause 19.6, the Authority’s Engineer shall verify the
Contractor’s monthly maintenance 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 19.7.2. The Authority’s Engineer shall deliver to the
Authority an IPC approving or amending the monthly maintenance statement
to reflect the amount due to the Contractor in accordance with this
Agreement.
19.7.2 Maintenance shall be measured in units of one kilometer each; provided, however,
that payment thereof shall be made in fixed monthly amounts 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
Schedule-M. The reductions for non- compliance with the Maintenance

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Requirements shall be applied on the basis of monthly inspections by the

Authority’s Engineer.
19.7.3 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.
19.7.4 The Authority shall pay to the Contractor every quarter any amount due
under any IPC under this Clause 19.7. The payment shall be made no later than
30 (thirty) days from the date of submission of the last IPC for the relevant
quarter.
19.8 Payment of Damages
19.8.1 The Contractor may claim Damages due and payable to it in accordance with the
provisions of this Agreement.
19.8.2 The Authority’s Engineer shall issue the IPC within 15 (fifteen) days of the receipt
of the claim under Clause 19.8.1, after making adjustments in accordance with
the provisions of this Agreement. The Authority shall pay to the Contractor the
amount due under any IPC within a period of 30 (thirty) days from the date of the
submission of the claim under this Clause 19.8. In the event of the failure of the
Authority to make payment to the Contractor within the specified time, the
Authority shall be liable to pay to the Contractor interest thereon and the
provisions of Clause 19.9 shall apply mutatis mutandis thereto.
19.9 Time of payment and interest
19.9.1 The Authority shall pay to the Contractor any amount due under any payment
certificate issued by the Authority’s Engineer in accordance with the provisions
of this Article 19, or in accordance with any other clause of this Agreement as
follows:
(a) payment shall be made no later than 30 (thirty) days from the date of submission
of the Stage Payment Statement by the Contractor to the Authority’s Engineer for
certification in accordance with the provisions of Clause 19.4 for an IPC; provided
that, in the event the IPC is not issued by the Authority’s Engineer within the
aforesaid period of 30 (thirty) days, the Authority shall pay the amount shown

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in the Contractor’s Stage Payment Statement and any discrepancy therein shall
be added to, or deducted from, the next payment certificate issued to the
Contractor; and
(b) payment shall be made no later than 30 (thirty) days from the date of submission
of the Final Payment Certificate for Works along with the discharge submitted to
the Authority’s Engineer in accordance with the provisions of Clause 19.15 for
certification.
19.9.2 In the event of the failure of the Authority to make payment to the Contractor
within the time period stated in this Clause 19.9, the Authority shall be liable to
pay to the Contractor simple interest rate @ 9%, on all sums remaining unpaid
from the date on which the same should have been paid, calculated in accordance
with the provisions of sub- Clause 19.9.1(a) and (b) and till the date of actual
payment.
19.10 Price adjustment for the Works
19.10.1 The amounts payable to the Contractor for Works shall be adjusted in
accordance with the provisions of this Clause 19.10.
19.10.2 Subject to the provisions of Clause 19.10.3, 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 for the Works,
by the addition or subtraction of the amounts determined by the formulae
prescribed in Clause 19.10.4.
19.10.3 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.
19.10.4 The Contract Price shall be adjusted for increase or decrease in rates and
price of labour, cement, steel, Plant, machinery and spares, bitumen, fuel and
lubricants, and other material inputs in accordance with the principles,
procedures and formulae specified below:

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(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) The following expressions and meanings are assigned to the value of the work
done:
RW = Value of work done for the completion of a stage under the

following items of Schedule-H excluding Royalty amounts:
(i) Road works; and
(ii) Other works
BR = Value of work done for the completion of a stage under the items
Major Bridges and Structures (Schedule-H) excluding Royalty amounts
(d) Price adjustment for changes in cost shall be paid in accordance with the
following formulae:
A) Price adjustment for Civil construction work
(i) VRW= 0.85 RW x [PL x (LI – LO)/LO + PA x (AI – AO)/AO + PF x (FI –FO)/FO
+ PB x (BI – BO)/BO + PM x (MI – MO)/MO + PC x (CI – CO)/CO+ PS x (SI –
SO)/SO]
(ii) VBR = 0.85 BR x [PL x (LI – LO)/LO + PA x (AI – AO)/AO + PF x (FI –FO)/FO
+ PM x (MI – MO)/MO+ PC x (CI – CO)/CO + PS x (SI– SO)/SO]
Where
VRW = Increase or decrease in the cost of road works/other works during

the period under consideration due to changes in the rates for relevant
components as stated in sub- paragraph (e)
VBR = Increase or decrease in the cost of Major Bridges and

Structures during the period under consideration due to changes in the
rates for relevant components as stated in sub-paragraph (e)

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PB, PC, PL, PM, and PS are the percentages of bitumen, cement, labour,
other materials, and steel/components (including strands and cables)
respectively for the relevant item as stated in sub-paragraph (e)
PA is the percentage of Plant, machinery and spares component for the

relevant item as stated in sub-paragraph (e).
PF is the percentage of fuel and lubricants for the relevant items as

stated in sub-paragraph (e).
AO= The wholesale price index as published by the Ministry of

Commerce & Industry, Government of India hereinafter
called “WPI”) for “Manufacture of machinery for mining, quarrying
and construction machinery for the month of the Base Date.
AI = The WPI for construction machinery for the month three

months prior to the month to which the IPC relates.
BO = The official retail price of bitumen at the nearest refinery at

Mumbai on the Base Date.
BI = The official retail price of bitumen at nearest refinery at

Mumbai, on the first day of the month three months prior to
the month to which the IPC relates.
CO = The WPI for Ordinary Portland cement for the month of the Base
Date.
CI = The WPI for Ordinary Portland cement for the month three
months prior to the month to which the IPC relates.
FO = The official retail price of high-speed diesel (HSD) oil at the

existing consumer pumps of Indian Oil Corporation (“IOC”)/
HPCL/ BPCL in Nagpur on the Base Date.
FI = The official retail price of HSD at the existing consumer

pumps of IOC /HPCL/ BPCL in Nagpur on the first day of the
month three months prior to the month to which the IPC
relates.

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LO = The consumer price index for industrial workers for the [circle
in Nagpur published by Labour Bureau, Ministry of Labour,
Government of Maharashtra, (hereinafter called “CPI”) for
the month of the Base Date.
LI = The CPI for the month three months prior to the month to
which the IPC relates.
MO = The WPI for all commodities for the month of the Base Date.
MI = The WPI for all commodities for the month three months
prior to the month to which the IPC relates.
SO = The WPI for mild steel (re-bars) for the month of the Base Date of
Sail steel yard at Nagpur
SI = The WPI for steel (re-bars) for the month three months prior to the
month to which the IPC relates Sail steel yard at Nagpur.
(e) The following percentages shall govern the price adjustment of the contract
Price:
Item
Road Works
Earthwork, Culverts, Major
Granular Cement minor Bridges
Bitumin
Component work, and Concrete bridges and
ous
Other Pavement and other Structures
work
works structures
Labour (PL) [20%] [20%] [20%] [15%] [15%]
Cement (PC) [5%] Nil [20%] [15%] [15%]
Steel (PS) Nil Nil Nil [15%] [20%]
Bitumen (PB) Nil [15%] Nil Nil Nil
Fuel and
[10%] [10%] [10%] [10%] [10%]
lubricants (PF)
Other
[50%] [40%] [35%] [30%] [25%]
Materials (PM)
Plant,
machinery and [15%] [15%] [15%] [15%] [15%]
spares. (PA)

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Total 100% 100% 100% 100% 100%
(f) In case an IPC relates to a month which is within 3 (three) months from
the Base Date, no price adjustment shall be applicable.
(g) Price adjustment for changes in cost shall be paid in accordance with the
following formulae:
B) Plantation and landscaping work

The Contract Price shall be adjusted for increase or decrease in rates and price
of labour, cement, steel, Plant, machinery and spares, bitumen, fuel and
lubricants, and other material inputs in accordance with the principles,
procedures and formulae specified below:
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. The following expressions and meanings are assigned to the value
of the work done:
RW= Value of work done for the completion of a stage under
Schedule-H
d) Price adjustment for changes in cost shall be paid in accordance
with the following formula: VRW= 0.85 RW x [PL x (LI – LO)/LO + PF
x (FI –FO)/FO + PM x (MI –MO)/MO ]
Where,
VRW = Increase or decrease in the cost of Plantation works/other
works during the period under consideration due to changes in the
rates for relevant components as stated in sub-paragraph (e)
PM, is the percentages of materials, for the relevant item as stated
in subparagraph PF is the percentage of fuel and lubricants for the
relevant items as stated in sub-paragraph (e).
FO = The official retail price of high-speed diesel (HSD) oil at the
existing consumer pumps of Indian Oil Corporation (“IOC”) in the
Nagpur on the Base Date.
FI = The official retail price of HSD at the existing consumer pumps

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of IOC in the Nagpur on the first day of the month three months
prior to the month to which the IPC relates.
LO = The consumer price index for industrial workers for the [circle
in the Nagpur published by Labour Bureau, Ministry of Labour,
Government of India, (hereinafter called “CPI”) for the month of
the Base Date.
LI = The CPI for the month three months prior to the month to
which the IPC relates.
MO = The WPI for all commodities for the month of the Base Date.
MI = The WPI for all commodities for the month three months prior
to the month to which the IPC relates.
E. The following percentages shall govern the price adjustment of
the contract Price:
19.11 Restrictions on price adjustment
Price adjustment shall be due and payable only in respect of the stages of Works
for which the Stage Payment Statement has been submitted by the Contractor no
later than 30 (thirty) days from the date of the applicable Project Milestone or the
Scheduled Completion Date, as the case may be, including any Time Extension
granted therefor in accordance with the provisions of this Agreement excluding the
payment towards the Royalties. For the avoidance of doubt, in the event of

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submission of any Stage Payment Statement after the period specified herein, price
adjustment shall be applicable until the date of the respective Project Milestone or
the Scheduled Completion Date, as the case may be.
19.12 Deleted
19.13 Final Payment Statement
19.13.1Within 60 (sixty) days after receiving the Completion Certificate under Clause
12.4, the Contractor shall submit to the Authority’s 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
Authority’s Engineer:
(a) the summary of Contractor’s Stage Payment claims for Works as submitted in
accordance with Clause 19.4;
(b) the amounts received from the Authority against each claim; and
(c) Any further sums which the Contractor considers due to it from the
Authority.
If the Authority’s Engineer disagrees with or cannot verify any part of the
Final Payment Statement, the Contractor shall submit such further
information as the Authority’s Engineer may reasonably require. The
Authority’s Engineer shall deliver to the Authority:
(i) 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 26; or
(ii) A Final Payment Certificate in accordance with Clause 19.15 if there are no
disputed items.
19.13.2 If the Authority’s Engineer does not prescribe the form referred to in Clause
19.13.1 within 15 (fifteen) days from the date of issue of the Completion
Certificate, the Contractor shall submit the statement in such form as it deems
fit.

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19.14 Discharge
Upon submission of the Final Payment Statement for Works under Clause 19.13, the
Contractor shall give to the Authority, with a copy to the Authority’s Engineer, a
written discharge confirming that the total of the Final Payment Statement
represents full and final settlement of all monies due to the Contractor in respect
of this Agreement for all the Works arising out of this Agreement, except for any
monies due to either Party on account of any Defect. Provided that such discharge
shall become effective only after the payment due has been made in accordance
with the Final Payment Certificate issued pursuant to Clause 19.15.
19.15 Final Payment Certificate
19.15.1 Within 30 (thirty) days after receipt of the Final Payment Statement for Works
under Clause 19.13, and the written discharge under Clause 19.14, and there being
no disputed items of claim, the Authority’s Engineer shall deliver to the
Authority, with a copy to the Contractor, a final payment certificate (the “Final
Payment Certificate”) stating the amount which, in the opinion of the Authority’s
Engineer, is finally due under this Agreement or otherwise. For the avoidance of
doubt, before issuing the Final Payment Certificate, the Authority’s Engineer shall
ascertain from the Authority all amounts previously paid by the Authority and
for all sums to which the Authority is entitled, the balance, if any, due from
the Authority to the Contractor or from the Contractor to the Authority, as the
case may be.
19.15.2 The Authority shall, in accordance with the provisions of Clause 19.9, pay to the
Contractor the amount which is stated as being finally due in the Final Payment
Certificate.
19.16 Final payment statement for Maintenance
19.16.1 Within 30 (thirty) days after completion of the Maintenance Period, the
Contractor shall submit to the Authority’s Engineer six copies of the final payment
statement for Maintenance of the Project Expressway, with supporting documents
showing the details set forth below in the form prescribed by the Authority’s
Engineer:
(a) the total amount claimed in accordance with the monthly statement for

29.850 km)
Maintenance of Project Expressway; clause 19.7.1 and
(b) the amount paid in accordance with the Interim Payment Certificates; and
(c) Any sums which the Contractor considers to be due to it, with supporting
documents.
19.16.2 The Authority’s Engineer shall certify final payment within 30 (thirty) days of the
receipt of the final payment statement of Maintenance under Clause 19.16.1,
segregating the items of amount payable from the items of amount disallowed.
The Authority shall make payment on the basis of the final payment authorized by
the Authority’s Engineer within a period of 30 (thirty) days of the receipt of the
Final Payment Statement from the Authority’s Engineer.
19.16.3 If the Authority’s Engineer does not prescribe the form within 15 (fifteen) days of
the date of issue of the Completion Certificate, the Contractor shall submit the
statement in such form as it deems fit.
19.17 Change in law
19.17.1 If as a result of Change in Law, the Contractor suffers any additional costs in the
execution of the Works or in relation to the performance of its other obligations
under this Agreement, the Contractor shall, within 15 (fifteen) days from the date
it becomes reasonably aware of such addition in cost, notify the Authority with a copy
to the Authority’s Engineer of such additional cost due to Change in Law.
19.17.2 If as a result of Change in Law, the Contractor benefits from any reduction in costs
for the execution of this Agreement or in accordance with the provisions of this
Agreement, either Party shall, within 15 (fifteen) days from the date it becomes
reasonably aware of such reduction in cost, notify the other Party with a copy to
the Authority’s Engineer of such reduction in cost due to Change in Law.
19.17.3 The Authority’s Engineer shall, within 15 (fifteen) days from the date of receipt of
the notice from the Contractor or the Authority, determine any addition or
reduction to the Contract Price, as the case may be, due to the Change in Law.
19.18 Correction of Interim Payment Certificates
The Authority’s Engineer may by an Interim Payment Certificate make any

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correction or modification in any previous Interim Payment Certificate issued by

the Authority’s Engineer.
19.19 Authority’s claims
If the Authority 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 20 (twenty) 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.
19.20 Bonus for early completion
In the event that the Project Completion Date occurs prior to the Scheduled
Completion Date, the Contractor shall be entitled to receive a payment of bonus
equivalent to 0.03% (zero point zero three per cent) of the Contract Price for each
day by which the Project Completion Date precedes the Scheduled Completion
Date, but subject to a maximum of 3% (three 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
Contract Price shall always be deemed to be the amount specified in Clause 19.1.1,
and shall exclude any revision thereof for any reason. The Parties also agree that
bonus shall be payable only if each work for which Extension of Time has been
granted is completed within respective Extended Time.

29.850 km)
ARTICLE 20
INSURANCE
20.1 Insurance for Works and Maintenance
20.1.1 The Contractor shall effect and maintain at its own cost the insurances specified
in Schedule-P and as per the requirements under the Applicable Laws.
20.1.2 Subject to the provisions of Clause 21.6, the Authority and the Contractor shall, in
accordance with its obligations as provided for in this Agreement, be liable to
bear the cost of any loss or damage that does not fall within the scope of this
Article 20 or cannot be recovered from the insurers.
20.1.3 Subject to the exceptions specified in Clause 20.1.4 below, the Contractor
shall, save and except as provided for in this Agreement, fully indemnify, hold
harmless and defend the Authority from and against any and all losses, damages,
costs, charges and/or claims with respect to:
(a) the death of or injury to any person; or
(b) the loss of or damage to any property (other than the Works);
That may arise out of or in consequence of any breach by the Contractor of this
Agreement during the execution of the Works or the remedying of any Defects
therein.
20.1.4 Notwithstanding anything stated above in Clause 20.1.3, the Authority shall fully
indemnify the Contractor from and against any and all losses, damages, costs,
charges, proceedings and/or claims arising out of or with respect to
(a) the use or occupation of land or any part thereof by the Authority;
(b) the right of the Authority 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

29.850 km)
resulting from any act or neglect of the Authority, 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 Authority shall be liable to indemnify the
Contractor from and against any and all losses, damages, costs, charges,
proceedings and/or claims to the extent as may be proportionately determined to
be the liability of the Authority, its servants or agents or other Contractors not
associated with the Contractor in such injury or damage.
20.1.5 Without prejudice to the obligations of the Parties as specified under Clauses
20.1.3 and 20.1.4, the Contractor shall maintain or effect such third-party
insurances as may be required under the Applicable Laws.
20.1.6 The Contractor shall provide to the Authority, within 30 days of the Appointed
Date, evidence of professional liability insurance maintained by its Design Director
and/or consultants to cover the risk of professional negligence in the design of
Works. The professional liability coverage shall be for a sum of not less than [3%
(three per cent)] of the Contract Price and shall be maintained until the end of
the Defects Liability Period.
20.2 Notice to the Authority
No later than 15 (fifteen) days after the date of this Agreement, the Contractor
shall by notice furnish to the Authority, in reasonable detail, information in
respect of the insurances that it proposes to effect and maintain in accordance
with this Article 20. Within 15 (fifteen) days of receipt of such notice, the
Authority may require the Contractor to effect and maintain such other insurances
as may be necessary pursuant hereto, and in the event of any difference or
disagreement relating to any such insurance, the Dispute Resolution Procedure
shall apply.
20.3 Evidence of Insurance Cover
20.3.1 All insurances obtained by the Contractor in accordance with this Article 20 shall
be maintained with insurers on terms consistent with Good Industry Practice.
Within 10 (ten) days from the Appointed Date, the Contractor shall furnish to the
Authority notarised true copies of the certificate(s) of insurance, copies of

29.850 km)
insurance policies and premia payment receipts in respect of such insurance, and
no such insurance shall be cancelled, modified, or allowed to expire or lapse
until the expiration of at least 45 (forty-five) days after notice of such proposed
cancellation, modification or non-renewal has been delivered by the Contractor to
the Authority. The Contractor shall act in accordance with the directions of the
Authority. Provided that the Contractor shall produce to the Authority the
insurance policies in force and the receipts for payment of the current premia.
20.3.2 The Contractor shall ensure the adequacy of the insurances at all times in
accordance with the provisions of this Agreement.
20.4 Remedy for failure to insurance
If the Contractor shall fail to effect and keep in force all insurances for which it is
responsible pursuant hereto, the Authority shall have the option to either keep in
force any such insurances, and pay such premia and recover the costs thereof
from the Contractor, or in the event of computation of a Termination Payment,
treat an amount equal to the Insurance Cover as deemed to have been received by
the Contractor.
20.5 Waiver of subrogation
All insurance policies in respect of the insurance obtained by the Contractor

pursuant to this Article 20 shall include a waiver of any and all rights of
subrogation or recovery of the insurers thereunder against, inter alia, the
Authority, and its assigns, successors, undertakings and their subsidiaries,
Affiliates, employees, insurers and underwriters, and of any right of the
insurers to any set-off or counterclaim or any other deduction, whether by
attachment or otherwise, in respect of any liability of any such person insured
under any such policy or in any way connected with any loss, liability or
obligation covered by such policies of insurance.
20.6 Contractors’ waiver
The Contractor hereby further releases, assigns and waives any and all rights of
subrogation or recovery against, inter alia, the Authority and its assigns,
undertakings and their subsidiaries, Affiliates, employees, successors, insurers
and underwriters, which the Contractor may otherwise have or acquire in or from

29.850 km)
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.
20.7 Cross liabilities
Any such insurance maintained or effected in pursuance of this Article 20 shall

include a cross liability clause such that the insurance shall apply to the
Contractor and to the Authority as separately insured.
20.8 Accident or injury to workmen
Notwithstanding anything stated in this Agreement, it is hereby expressly

agreed between the Parties that the Authority shall not be liable for or in
respect of any damages or compensation payable to any workman or other
person in the employment of the Contractor or Sub- Contractor, save and except
as for death or injury resulting from any act, omission or willful default of the
Authority, its agents or servants. The Contractor shall indemnify and keep
indemnified the Authority from and against all such claims, proceedings, damages,
costs, charges, and expenses whatsoever in respect of the above save and except
for those acts, omissions or willful defaults for which the Authority shall be liable.
20.9 Insurance against accident to workmen
The Contractor shall effect and maintain during the Agreement such insurances as
may be required to insure the Contractor’s personnel and any other persons
employed by it on the Project expressway from and against any liability incurred
in pursuance of this Article 20. Provided that for the purposes of this Clause 20.9,
the Contractor’s 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 20.9 shall be discharged if the Sub- Contractor shall
have insured against any liability in respect of such persons in such manner that
the Authority is indemnified under the policy. The Contractor shall require such
Sub- Contractor to produce before the Authority, when required, such policy of
insurance and the receipt for payment of the current premium within 10 (ten)

29.850 km)
days of such demand being made by the Authority.
20.10 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 expressway 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.
20.11 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.
20.12 General Requirements of Insurance Policies
The Contractor must:
a) immediately deposit copies of the policies or certificates of any insurance

which it is required to effect under the Contract, together with receipts for the
premiums;
b) effect all insurances for which the Contractor is responsible with an insurer
approved by the Authority;
c) make no material changes to the terms of any insurance without the

Authority’s approval;
d) in all respects comply with any conditions stipulated in the insurance policies
which the Contractor is required to effect under the Agreement or which the
Authority has effected in relation to the Facility and notified to the Contractor;
and shall provide all assistance to the Authority in the application for, and
finalization of, such comprehensive insurance package;
e) regardless of the extent of settlement of claims by the underwriters or the

time taken for settlement of claims, the Contractor shall make good any loss,

29.850 km)
or damage at its own cost promptly;
f) provide all assistance to the Authority in the application for, and finalization
of, such comprehensive insurance package;
g) pay the Contractor's share of the insurance premiums for insurance premiums
allocated under such comprehensive insurance package policy to the insurances
directly to the insurance provider promptly on demand. In case the Contractor
fails to make such payment in time, the Authority may elect to pay the
Contractor's share and adjust it against amounts payable to the Contractor
under this Agreement;
h) in the case of occurrence of any event leading to an insurance claim, promptly

follow the procedures specified by the insurance provider, and provide full
cooperation and access to the insurance provider or its representative, to settle
the claim expeditiously;
i) require all the Sub-Contractors providing equipment and materials or services

to the Contractor or the Authority to obtain, maintain and keep in force during
the time in which they are involved in the performance of the Works hereunder
insurance coverage consistent with the Contractor's insurance obligations
hereunder and the Contractor shall also be responsible for fulfillment of this
requirement; and
j) the required insurance coverage and the Contractor's obligations-referred to

shall in no way affect or limit the Contractor's liability with respect to its
performance of the Works. Nothing in this Section shall limit or relieve the
Contractor of its liabilities and obligations under this Agreement.

29.850 km)
Part V
Force Majeure and Termination

29.850 km)
ARTICLE 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 adverse weather conditions, lightning,

earthquake, landslide, cyclone, flood, volcanic eruption, chemical or
radioactive contamination or ionizing 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
Project expressway for a continuous period of 24 (twenty-four) hours and an
aggregate period exceeding 10 (ten) 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, but only to the extent caused by
another Non-Political Event;
(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

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(i) failure of the Contractor, to comply with any Applicable Law or Applicable
Permit, or (ii) on account of breach of any Applicable Law or Applicable
Permit or of any contract, or (iii) enforcement of this Agreement, or (iv)
exercise of any of its rights under this Agreement by the Authority;
(e) the discovery of geological conditions, toxic contamination or archaeological

remains on the Site that could not reasonably have been expected to be
discovered through a site inspection; or
(f) 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 10
(ten) days in an Accounting Year;
(c) any civil commotion, boycott or political agitation which prevents

construction of the Project expressway by the Contractor, for an aggregate
period exceeding 10 (ten) days in an Accounting Year;
(d) any failure or delay of a Sub- Contractor, to the extent caused by any
Indirect Political Event;
(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

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in accordance with the provisions of Clause 19.17;
(b) compulsory acquisition in national interest or expropriation of any Project

Assets or rights of the Contractor, o r of the Sub- Contractors,
(c) unlawful or unauthorized or without jurisdiction revocation of, or refusal

to renew or grant without valid cause, any clearance, license, permit,
authorization, 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,
license, authorization, no objection certificate, exemption, consent, approval
or permit;
(d) any failure or delay of a Sub- Contractor but only to the extent caused by
another Political Event; or
(e) Any event or circumstances 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.

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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 10 (ten) 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 Appointed 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 Authority to the Contractor for
the Force Majeure events; and
(c) upon occurrence of a Political Event, all Force Majeure costs attributable to
such Political Event shall be reimbursed by the Authority to the Contractor.
(d) 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.

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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 during the Construction Period,
the Project Completion Schedule for and in respect of the affected Works shall
be extended on a day-to-day basis for such period as performance of the
Contractor’s obligations is affected on account of the Force Majeure Event or its
subsisting effects.
21.7 Termination Notice for Force Majeure Event
21.7.1 If a Force Majeure Event subsists for a period of 60 (sixty) days or more
within a continuous period of 120 (one hundred and twenty) days, either Party
may in its discretion terminate this Agreement by issuing a Termination Notice to
the other Party without being liable in any manner whatsoever, save as
provided in this Article 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 15 (fifteen) days’ time to make a
representation, and may after the expiry of such 15 (fifteen) days period, whether
or not it is in receipt of such representation, in its sole discretion issue the
Termination Notice.
21.8 Termination Payment for Force Majeure Event
21.8.1 In the event of this Agreement being terminated on account of a Non- Political
Event, the Termination Payment shall be an amount equal to the sum payable
under Clause 23.5. Provided that in the event Termination occurs during the
Maintenance Period, the Authority’s 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:

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(a) any sums due and payable under Clause 23.5; and
(b) the reasonable cost, as determined by the Authority’s Engineer, of the Plant
and Materials procured by the Contractor. and transferred to the Authority
for use in Construction or Maintenance, only if such Plant and Materials are
in conformity with the Specifications and Standards; Provided that in the
event Termination occurs during the Maintenance Period, the Authority’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 Authority shall make a

Termination Payment to the Contractor in an amount that would be payable under
Clause 23.6.2 as if it were an Authority 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

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

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ARTICLE 22
SUSPENSION OF CONTRACTOR’S RIGHTS

22.1 Suspension upon Contractor Default
Upon occurrence of a Contractor Default, the Authority shall be entitled, without

prejudice to its other rights and remedies under this Agreement including its rights of
Termination hereunder, to (i) suspend carrying out of the Works or Maintenance or any
part thereof, and (ii) carry out such Works or Maintenance itself or authorize any other
person to exercise or perform the same on its behalf during such suspension (the
“Suspension”) at the risk and cost of the Contractor. Suspension hereunder shall be
effective forthwith upon issue of notice by the Authority to the Contractor and may
extend up to a period not exceeding 90 (ninety) days from the date of issue of such
notice.
22.2 Authority 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 Authority 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
Authority for all costs incurred during such period. The Contractor hereby licenses
and sub-licenses respectively, the Authority or any other person authorised by it
under Clause 22.1 to use during Suspension, all Intellectual Property belonging to or
licensed to the Contractor with respect to the Project expressway and its design,
engineering, construction and maintenance, and which is used or created by the
Contractor in performing its obligations under the Agreement.
22.3 Revocation of Suspension
22.3.1 In the event that the Authority shall have rectified or removed the cause of
Suspension within a period not exceeding 60 (sixty) 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 Authority may, in its discretion, revoke the Suspension at any time,

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whether or not the cause of Suspension has been rectified or removed hereunder.
22.3.2 Upon the Contractor having cured the Contractor Default within a period not
exceeding 60 (sixty) days from the date of Suspension, the Authority shall revoke
the Suspension forthwith and restore all rights of the Contractor under this
Agreement.
22.4 Termination
22.4.1 At any time during the period of Suspension under this Article 22, the
Contractor may by notice require the Authority to revoke the Suspension and issue a
Termination Notice. The Authority shall, within 15 (fifteen) days of receipt of such
notice, terminate this Agreement under and in accordance with Article 23.
22.4.2 Notwithstanding anything to the contrary contained in this Agreement, in the event
that Suspension is not revoked within 90 (ninety) days from the date of Suspension
hereunder, 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 Authority upon occurrence of a
Contractor Default.
22.5 Withdrawal of part of the Work:
If the progress of any particular portion of the work during the construction or
maintenance period is unsatisfactory, the Employer shall, notwithstanding the
general progress of the work in accordance with the construction program or
milestones as specified in this contract agreement be entitled to withdraw such
part of work and execute it by any other prequalified bidder at the risk and cost of
the contractor after giving the Contractor 10 days’ notice in writing. If any extra
cost is involved in appointing of new contractor to get the part of the Work done,
same shall be recovered from the contractor. The Contractor will have no claim for
compensation for any loss sustained by him owing to such action.

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ARTICLE 23
TERMINATION
23.1 Termination for Contractor Default
23.1.1 Save as otherwise provided in this Agreement, in the event that any of the
defaults specified below shall have occurred, and the Contractor fails to cure the
default within the Cure Period set forth below, or where no Cure Period is
specified, then within a Cure Period of 60 (sixty) days, the Contractor shall be
deemed to be in default of this Agreement (the “Contractor Default”), unless
the default has occurred solely as a result of any breach of this Agreement by the
Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) the Contractor fails to provide, extend or replenish, as the case may be, the
Performance Security in accordance with this Agreement;
(b) After the replenishment or furnishing of fresh Performance Security in

accordance with Clause 7.3, the Contractor fails to cure, within a Cure
Period of 30 (thirty) days, the Contractor Default for which the whole or part
of the Performance Security was appropriated;
(c) the Contractor does not achieve the latest outstanding Project Milestone due
in accordance with the provisions of Schedule-J, subject to any Time
Extension, and continues to be in default for 45 (forty- f i v e ) days;
(d) the Contractor abandons or manifests intention to abandon the construction

or Maintenance of the Project Expressway without the prior written consent
of the Authority;
(e) the Contractor fails to proceed with the Works in accordance with the
provisions of Clause 10.1 or stops Works and/or the Maintenance for 30
(thirty) days without reflecting the same in the current programme and such
stoppage has not been authorised by the Authority’s Engineer;
(f) the Project Completion Date does not occur within the period specified in
Schedule-J for the Scheduled Completion Date, or any extension thereof;
(g) the Contractor fails to rectify any Defect, the non- rectification of which

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shall have a Material Adverse Effect on the Project, within the time specified
in this Agreement or as directed by the Authority’s Engineer;
(h) 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 Authority;
(i) the Contractor creates any Encumbrance in breach of this Agreement;
(j) an execution levied on any of the assets of the Contractor has caused a
Material Adverse Effect;
(k) 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;
(l) the Contractor has been, or is in the process of being liquidated, dissolved,
wound-up, amalgamated or reconstituted in a manner that would cause, in
the reasonable opinion of the Authority, a Material Adverse Effect;
(m) a resolution for winding up or insolvency 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 or interim resolution
professional, as the case may be, 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 has the capability and

experience necessary for the performance of its obligations under this
Agreement; and
(ii) the amalgamated or reconstructed entity has the financial standing to

perform its obligations under this Agreement and has a credit worthiness

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at least as good as that of the Contractor as at the Appointed Date;
(n) any representation or warranty of the Contractor herein contained which

is, as of the date hereof, found to be materially false or the Contractor is at
any time hereafter found to be in breach or non-compliance thereof;
(o) the Contractor submits to the Authority any statement, notice or other
document, in written or electronic form, which has a material effect on the
Authority’s rights, obligations or interests and which is false in material
particulars;
(p) the Contractor has failed to fulfil any obligation, for which failure
Termination has been specified in this Agreement; or
(q) 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 Authority.
(r) gives or offers to give (directly or indirectly) to any person any bribe, gift,
gratuity, commission or other thing of value, as an inducement or reward:
i. for doing or forbearing to do any action in relation to the Contract, or
ii. for showing or forbearing to show favor or disfavor to any person in

relation to the Contract, or if any of the Contractor’s personnel, agents
or subcontractors gives or offers to give (directly or indirectly) to any
person any such inducement or reward as is described in this sub-
paragraph. However, lawful inducements and rewards to Contractor’s
Personnel shall not entitle termination.
23.1.2 Without prejudice to any other rights or remedies which the Authority may have
under this Agreement, upon occurrence of a Contractor Default, the Authority
shall be entitled to terminate this Agreement by issuing a Termination Notice to
the Contractor; provided that before issuing the Termination Notice, the Authority
shall by a notice inform the Contractor of its intention to issue such Termination
Notice and grant 15 (fifteen) days to the Contractor to make a representation, and
may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of
such representation, issue the Termination Notice.

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23.1.3 The following shall apply in respect of cure of any of the defaults and/ or breaches
of the Agreement:
(a) The Cure Period shall commence from the date of the notice by the Authority
to the Contractor asking the latter to cure the breach or default specified in
such notice;
(b) The Cure Period provided in the Agreement shall not relieve the Contractor
from liability for Damages caused by its breach or default;
(c) The Cure Period shall not in any way be extended by any period of suspension
under the Agreement;
(d) If the cure of any breach by the Contractor requires any reasonable action by
the Contractor that must be approved by the Authority hereunder the
applicable Cure Period (and any liability of the Contractor for damages
incurred) shall be extended by the period taken by the Authority to accord its
required approval.
23.1.4 After termination of this Agreement for Contractor Default, the Authority may
complete the Works and/or arrange for any other entities to do so. The Authority
and these entities may then use any Materials, Plant and equipment, Contractor’s
documents and other design documents made by or on behalf of the Contractor.
23.2 Termination for Authority Default
23.2.1 In the event that any of the defaults specified below shall have occurred, and the
Authority fails to cure such default within a Cure Period of 90 (ninety) days or
such longer period as has been expressly provided in this Agreement, the Authority
shall be deemed to be in default of this Agreement (the “Authority Default”)
unless the default has occurred as a result of any breach of this Agreement by
the Contractor or due to Force Majeure. The defaults referred to herein shall
include:
(a) the Authority commits a material default in complying with any of the
provisions of this Agreement and such default has a Material Adverse Effect
on the Contractor;

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(b) the Authority has failed to make payment of any amount due and
payable to the Contractor within the period specified in this Agreement;
(c) the Authority has failed to provide, within a period of 180 (one hundred
and eighty) days from the Appointed Date, the environmental clearances
required for construction of the Project expressway;
(d) the Authority repudiates this Agreement or otherwise takes any action that
amounts to or manifests an irrevocable intention not to be bound by this
Agreement; or
(e) the Authority’s Engineer fails to issue the relevant Interim Payment
Certificate within 60 (sixty) days after receiving a statement and supporting
documents.
(f) the whole work is suspended by Authority beyond 120 (one hundred twenty)
days for any reason which is not attributed to the Contractor.
23.2.2 Without prejudice to any other right or remedy which the Contractor may have
under this Agreement, upon occurrence of an Authority Default, the Contractor
shall be entitled to terminate this Agreement by issuing a Termination Notice to
the Authority; provided that before issuing the Termination Notice, the Contractor
shall by a notice inform the Authority of its intention to issue the Termination
Notice and grant 15 (fifteen) days to the Authority to make a representation, and
may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of
such representation, issue the Termination Notice.
If on the consideration of the Authority’s representation or otherwise, the

Contractor does not issue the Termination Notice on such 15th day and prefers to
continue with the project, it is deemed that the cause of action of the Termination
Notice has been condoned by the Contractor and he would be deemed to have
waived any claim and forfeits any right to any other remedy on that count or in
relation to such action or omission.
23.3 Termination for Authority’s convenience
Notwithstanding anything stated hereinabove, the Authority may terminate this

Agreement for convenience. The termination shall take effect 30 (thirty) days from

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the date of notice provided to the Contractor.
23.4 Requirements after Termination
Upon Termination of this Agreement in accordance with the terms of this Article
23, the Contractor shall comply with and conform to the following:
(a) Deliver to the Authority all Plant and Materials which shall have become
the property of the Authority under this Article 23;
(b) deliver all relevant records, reports, Intellectual Property and other licenses
pertaining to the Works, Maintenance, other design documents and in case of
Termination occurring after the Provisional Certificate has been issued, the “as
built‟ Drawings for the Works;
(c) transfer and/or deliver all Applicable Permits to the extent permissible under
Applicable Laws; and
(d) Vacate the Site within 15 (fifteen) days.
23.5 Valuation of Unpaid Works
23.5.1 Within a period of 45 (forty-five) days after Termination under Clause 23.1, 23.2
or 23.3, as the case may be, has taken effect, the Authority’s Engineer shall
proceed in accordance with Clause 18.5 to determine as follows the valuation of
unpaid Works (the “Valuation of Unpaid Works”):
(a) value of the completed stage of the Works, less payments already made;
(b) reasonable value of the partially completed stages of works as on the date of
Termination, only if such works conform with the Specifications and
Standards; and
(c) value of Maintenance, if any, for completed months, less payments already
made, and shall adjust from the sum thereof (i) any other amounts
payable or recoverable, as the case may be, in accordance with the
provisions of this Agreement; and (ii) all taxes due to be deducted at source.
23.5.2 The Valuation of Unpaid Works shall be communicated to the Authority, with

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a copy to the Contractor, within a period of 30 (thirty) days from the date of
Termination.
23.6 Termination Payment
23.6.1 Upon Termination on account of Contractor’s Default under Clause 23.1, the
Authority shall:
(a) Encash and appropriate the Performance Security, Additional Performance

Security if any and Retention Money, or in the event the Contractor has
failed to replenish or extend the Performance Security and Additional
Performance Security if any, claim the amount stipulated in Clause 7.1.1, as
agreed pre-determined compensation to the Authority for any losses, delays
and cost of completing the Works and Maintenance, if any;
(b) encash and appropriate the bank guarantee, if any, for and in respect of the
outstanding Advance Payment and interest thereon; and
(c) pay to the Contractor, by way of Termination Payment, an amount

equivalent to the Valuation of Unpaid Works after adjusting any other sums
payable or recoverable, as the case may be, in accordance with the
provisions of this Agreement.
23.6.2 Upon Termination on account of an Authority Default under Clause 23.2 or for
Authority’s convenience under Clause 23.3, the Authority shall:
(a) return the Performance Security, Additional Performance Security and

Retention Money forthwith;
(b) encash and appropriate the bank guarantee, if any, for and in respect of the
outstanding Advance Payment; and
(c) pay to the Contractor, by way of Termination Payment, an amount equal

to:
(i) Valuation of Unpaid Works;
(ii) the reasonable cost, as determined by the Authority’s Engineer, of the

Plant and Materials procured by the Contractor and transferred to the

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Authority for its use, only if such Plant and Materials are in conformity
with the Specifications and Standards;
(iii) the reasonable cost of temporary works, as determined by the Authority’s

Engineer; and
(iv) 10% (ten per cent) of the cost of the Works and Maintenance that are not
commenced or not completed,
and shall adjust from the sum thereof (i) any other amounts payable or
recoverable, as the case may be, in accordance with the provisions of this
Agreement, and (ii) all taxes due to be deducted at source.
23.6.3 Termination Payment shall become due and payable to the Contractor from the
date of acceptance of award by the both the parties within 30 (thirty) days of a
demand being made by the Contractor to the Authority with the necessary
particulars, and in the event of any delay, the Authority shall pay simple interest
rate @ 9% per annum, on the amount of Termination Payment remaining unpaid;
provided that such delay shall not exceed 90 (ninety) days. For the avoidance of
doubt, it is expressly agreed that Termination Payment shall constitute full
discharge by the Authority of its payment obligations in respect thereof
hereunder.
23.6.4 The Contractor expressly agrees that Termination Payment under this Article 23
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.
23.7 Other rights and obligations of the Parties
Upon Termination for any reason whatsoever
(a) property and ownership in all Materials, Plant and Works and the Project
expressway shall, as between the Contractor and the Authority, vest in the
Authority in whole; provided that the foregoing shall be without prejudice
to Clause 23.6
(b) risk of loss or damage to any Materials, Plant or Works and the care and

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custody thereof shall pass from the Contractor to the Authority; and
(c) the Authority 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, which
have not been vested in the Authority in accordance with the provisions of
this Agreement.
23.8 Survival of rights
Notwithstanding anything to the contrary contained in this Agreement any

Termination pursuant to the provisions of this Agreement shall be without
prejudice to the accrued rights of either Party including its right to claim and
recover money damages, insurance proceeds, security deposits, and other rights
and remedies, which it may have in law or Agreement. All rights and obligations of
either Party under this Agreement, including Termination Payments, shall survive
the Termination to the extent such survival is necessary for giving effect to such
rights and obligations.
23.9 Foreclosure with mutual consent
i) Without prejudice to any provision of this Agreement, the Authority and Contractor
may foreclose this Agreement by mutual consent in circumstances which does not
constitute either party’s default without any liability or consequential future
liability for either party.
ii) Should a Party intend to foreclose this Agreement by mutual consent, the intending
Party shall issue a notice to the other Party and upon issuance of such notice, the
other Party may within 15 days from receipt of such notice either agree to such
foreclosure or raise objection(s) to the same by intimating either of the two
possible positions to the intending Party in writing.
iii) In either case of the other Party agreeing to the proposed foreclosure or otherwise,
the Parties may negotiate the proposed foreclosure and sign a Supplementary
Agreement for foreclosure to the main Contract Agreement within 30 (thirty) days
of the date agreeing by both Parties. Foreclosure shall not come into effect unless

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and otherwise Supplementary Agreement is signed.
iv) Any attempt or endeavor for foreclosure by mutual agreement shall be without
prejudice to the rights and obligations of the Parties herein and the factum of such
an attempt or exercise shall not stop either of the Parties from discharging their
contractual obligations under this Agreement.
v) For the avoidance of doubt, it is clarified that such foreclosure will be without
prejudice to the Contractor and shall not affect the Contractor in any way if it
wishes to bid in future projects of the Authority.

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Part VI
Other Provisions

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ARTICLE 24
ASSIGNMENT AND CHARGES
24.1 Restrictions on assignment and charges
This Agreement shall not be assigned by the Contractor to any person, save and
except with the prior consent in writing of the Authority, which consent the
Authority shall be entitled to decline without assigning any reason.
24.2 Hypothecation of Materials or Plant
Notwithstanding the provisions of Clause 24.1, the Contractor may pledge or

hypothecate to its lenders, any Materials or Plant prior to their incorporation in the
Works. Further, the Contractor may, by written notice to the Authority, assign its
right to receive payments under this Agreement either absolutely or by way of
charge, to any person providing financing to the Contractor in connection with the
performance of the Contractor’s obligations under this Agreement. The Contractor
acknowledges that any such assignment by the Contractor shall not relieve the
Contractor from any obligations, duty or responsibility under this Agreement.

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ARTICLE 25
LIABILITY AND INDEMNITY

25.1 General indemnity
The Contractor will indemnify, defend, save and hold harmless the Authority and
its officers, servants, agents, Government Instrumentalities and Government owned
and/or controlled entities/enterprises, (the “Authority Indemnified Persons”)
against any and all suits, proceedings, actions, demands and third party claims for
any loss, damage, cost and expense of whatever kind and nature, whether arising
out of any breach by the Contractor of any of its obligations under this Agreement
or from any negligence under the Agreement, including any errors or deficiencies in
the design documents, or tort or on any other ground whatsoever, except to the
extent that any such suits, proceedings, actions, demands and claims have arisen
due to any negligent act or omission, or breach or default of this Agreement
on the part of the Authority Indemnified Persons.
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 Authority and the Authority Indemnified
Persons from and against any and all loss and/or damages arising out of or with
respect to:
(a) failure of the Contractor to comply with Applicable Laws and Applicable
Permits;
(b) payment of taxes required to be made by the Contractor in respect of the

income or other taxes of the Sub- Contractors, suppliers and
representatives; or
(c) non-payment of amounts due as a result of Materials 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 Authority Indemnified Persons
from and against any and all suits, proceedings, actions, claims, demands,

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liabilities and damages which the Authority Indemnified Persons may hereafter
suffer, or pay by reason of any demands, claims, suits or proceedings arising out of
claims of infringement of any domestic or foreign patent rights, copyrights or
other intellectual property, proprietary or confidentiality rights with respect to
any materials, information, design or process used by the Contractor or by the
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 expressway,
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 Authority a license, at no cost to the Authority,
authorizing continued use of the infringing work. If the Contractor is unable to
secure such license 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 15 (fifteen) days of receipt of the claim or demand and shall not
settle or pay the claim without the prior approval of the Indemnifying Party, which
approval shall not be unreasonably withheld or delayed. 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 Defense 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

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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 defense 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
defense. 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 defense 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 defense of

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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 defenses 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.

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ARTICLE 26
DISPUTE RESOLUTION
26.1 Dispute Resolution
26.1.1 Any dispute, difference or controversy of whatever nature howsoever arising

under or out of or in relation to this Agreement (including its interpretation)
between the Parties, and so notified in writing by either Party to the other Party
(the “Dispute”) shall, in the first instance, be attempted to be resolved amicably in
accordance with the conciliation procedure set forth in Clause 26.2.
26.1.2 The Parties agree to use their best efforts for resolving all Disputes arising under or
in respect of this Agreement promptly, equitably and in good faith, and further
agree to provide each other with reasonable access during normal business hours to
all non- privileged records, information and data pertaining to any Dispute.
26.2 Conciliation
In the event of any Dispute between the Parties, either Party may call upon the
Authority’s Engineer, or such other person as the Parties may mutually agree upon
(the “Conciliator”) to mediate and assist the Parties in arriving at an amicable
settlement thereof. Failing mediation by the Conciliator or without the
intervention of the Conciliator, either Party may require such Dispute to be
referred to the Vice Chairman and Managing Director of Maharashtra State Road
Development Corporation Ltd. (MSRDC) and the Chairman of the Board of Directors
of the Contractor for amicable settlement, and upon such reference, the said
persons shall meet no later than 7 (seven) business days from the date of reference
to discuss and attempt to amicably resolve the Dispute. If such meeting does not
take place within the 30 (thirty) business day period or the Dispute is not amicably
settled within 30 (thirty) days of the meeting or the Dispute is not resolved as
evidenced by the signing of written terms of settlement within 30 (thirty) days of
the notice in writing referred to in Clause 26.1.1 or such longer period as may be
mutually agreed by the Parties, either Party may refer the Dispute to
arbitration in accordance with the provisions of Clause 26.3 but before resorting to
such arbitration, the parties agree to explore conciliation by the Conciliation
Committees of Independent Experts set up by the Authority in accordance with the
procedure decided by the panel of such experts and notified by the Authority on its

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website including its subsequent amendments. In the event of the conciliation

proceedings being successful, the parties to the dispute would sign the written
settlement agreement and the conciliators would authenticate the same. Such
settlement agreement would then be binding on the parties in terms of Section 73
of the Arbitration Act. In case of failure of the conciliation process even at the level
of the Conciliation Committee, either party may refer the Dispute to arbitration in
accordance with the provisions of Clause 26.3.
26.3 Arbitration
26.3.1 Any Dispute which remains unresolved between the parties through the mechanisms
available/ prescribed in the Agreement, irrespective of any claim value, which has
not been agreed upon/ reached settlement by the parties, will be referred to the
Arbitral Tribunal as per the Arbitration and Conciliation Act.
(i) The Dispute shall be finally settled by arbitration in accordance with the
Arbitration & Conciliation Act, 1996, or any statutory amendment thereof. The
Arbitral tribunal shall consist of 3 Arbitrators, one each to be appointed by
MSRDC and the Contractor. The third Arbitrator shall be chosen by the two
Arbitrators so appointed by the Parties and shall act as Presiding Arbitrator. In
case of failure of the two Arbitrators, appointed by the parties to reach upon
a consensus within a period of 30 days from the appointment of the Arbitrator
appointed subsequently, the Presiding Arbitrator shall be appointed by the
Vice Chairman and Managing Director of Maharashtra State Road Development
Corporation Ltd (MSRDC).
(ii) Neither party shall be limited in the proceedings before such Tribunal to the
evidence or arguments before the other party I Authority Engineer.
(iii) Arbitration may be commenced during or after the Contract Period, provided
that the obligations of MSRDC and the Contractor shall not be altered by
reason of the arbitration being conducted during the Contract Period.
(iv) If one of the parties fails to appoint its Arbitrator in pursuance of Sub-Clause
(i) above, within 30 days after receipt of the notice of the appointment of
its Arbitrator by the other party, then the Vice Chairman & Managing Director,
of the MSRDC, shall appoint the Arbitrator. A certified copy of the order of

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the Vice Chairman & Managing Director, of MSRDC making such an

appointment shall be furnished to each of the parties.
(v) Arbitration proceedings shall be held at Mumbai, India, and the language of
the Arbitration Proceedings and that of all documents and communications
between the parties shall be English.
(vi) The expenses incurred by each party in connection with the preparation,
presentation, etc., of its proceedings shall be borne by each party itself.
(vii) The fees and expenses payable to the Arbitrators shall be decided by the Vice
Chairman & Managing Director of MSRDC.
26.3.2 Deleted.
26.3.3 The arbitrators shall make a reasoned award (the “Award”). Any Award made in
any arbitration held pursuant to this Article 26 shall be final and binding on the
Parties as from the date it is made, and the Contractor and the Authority agree and
undertake to carry out such Award without delay subject to provisions of The
Arbitration and Conciliation (Amendment) Act, 2021.
26.3.4 The Contractor and the Authority agree that an Award may be enforced against the
Contractor and/or the Authority, as the case may be, and their respective assets
wherever situated.
26.3.5 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.
Further, the parties unconditionally acknowledge and agree that notwithstanding
any dispute between them, each Party shall proceed with the performance of its
respective obligations, pending resolution of Dispute in accordance with this
Article.
26.3.6 In the event the Party against whom the Award has been granted challenges the
Award for any reason in a court of law, it shall make an interim payment to the
other Party for an amount equal to 75% (seventy-five per cent) of the Award,
pending final settlement of the Dispute. The aforesaid amount shall be paid
forthwith upon furnishing an irrevocable Bank Guarantee for a sum equal to 120 %

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(one hundred and twenty per cent) of the aforesaid amount. Upon final settlement
of the Dispute, the aforesaid interim payment shall be adjusted and any balance
amount due to be paid or returned, as the case may be, shall be paid or returned
with interest calculated at the rate of 10% (ten per cent) per annum from the
date of interim payment to the date of final settlement of such balance.
26.4 Adjudication by Regulatory Authority, Tribunal or Commission
In the event of constitution of a statutory regulatory authority, tribunal or

commission, as the case may be, with powers to adjudicate upon disputes
between the Contractor and the Authority, all Disputes arising after such
constitution shall, instead of reference to arbitration under Clause 26.3, be
adjudicated upon by such regulatory authority, tribunal or commission in
accordance with the Applicable Law and all references to Dispute Resolution
Procedure shall be construed accordingly. For the avoidance of doubt, the
Parties hereto agree that the adjudication hereunder shall not be final and
binding until an appeal against such adjudication has been decided by an
appellate tribunal or court of competent jurisdiction, as the case may be, or no
such appeal has been preferred within the time specified in the Applicable Law.

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ARTICLE 27
MISCELLANEOUS
27.1 Governing law and jurisdiction
This Agreement shall be construed and interpreted in accordance with and

governed by the laws of India, and the courts at Mumbai shall have exclusive
jurisdiction over matters arising out of or relating to this Agreement.
27.2 Waiver of immunity
Each Party unconditionally and irrevocably:
(a) agrees that the execution, delivery and performance by it of this Agreement
constitute commercial acts done and performed for commercial purpose;
(b) agrees that, should any proceedings be brought against it or its assets,
property or revenues in any jurisdiction in relation to this Agreement or any
transaction contemplated by this Agreement, no immunity (whether by
reason of sovereignty or otherwise) from such proceedings shall be claimed
by or on behalf of the Party with respect to its assets;
(c) waives any right of immunity which it or its assets, property or revenues now
has, may acquire in the future or which may be attributed to it in any
jurisdiction; and
(d) consents generally in respect of the enforcement of any judgement or

award against it in any such proceedings to the giving of any relief or the
issue of any process in any jurisdiction in connection with such proceedings
(including the making, enforcement or execution against it or in respect of
any assets, property or revenues whatsoever irrespective of their use or
intended use of any order or judgement that may be made or given in
connection therewith).
27.3 Delayed payments
The Parties hereto agree that payments due from one Party to the other Party
under the provisions of this Agreement shall be made within the period set forth
therein, and if no such period is specified, within 30 (thirty) days of receiving a

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demand along with the necessary particulars as per the terms of the contract. In
the event of delay beyond such period, the defaulting Party shall pay simple
interest rate @ 9% per annum.
27.4 Waiver
27.4.1 Waiver, including partial or conditional waiver, by either Party of any default by
the other Party in the observance and performance of any provision of or
obligations under this Agreement: -
(a) shall not operate or be construed as a waiver of any other or subsequent

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

authorized representative of the Party; and
(c) shall not affect the validity or enforceability of this Agreement in any
manner.
27.4.2 Neither the failure by either Party to insist on any occasion upon the performance
of the terms, conditions and provisions of this Agreement or any obligation
thereunder nor time or other indulgence granted by a Party to the other Party shall
be treated or deemed as waiver of such breach or acceptance of any variation or
the relinquishment of any such right hereunder.
27.5 Liability for review of Documents and Drawings
Except to the extent expressly provided in this Agreement:
(a) no review, comment or approval by the Authority or the Authority’s Engineer

of any Document or Drawing submitted by the Contractor nor any observation
or inspection of the construction, or maintenance of the Project expressway
nor the failure to review, approve, comment, observe or inspect hereunder
shall relieve or absolve the Contractor from its obligations, duties and
liabilities under this Agreement, the Applicable Laws and Applicable
Permits; and

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(b) the Authority shall not be liable to the Contractor by reason of any review,
comment, approval, observation or inspection referred to in Sub-clause (a)
above.
27.6 Exclusion of implied warranties etc.
This Agreement expressly excludes any warranty, condition or other

undertaking implied at law or by custom or otherwise arising out of any other
agreement between the Parties or any representation by either Party not
contained in a binding legal agreement executed by both Parties.
27.7 Survival
27.7.1 Termination shall:
(a) not relieve the Contractor or the Authority, as the case may be, of any
obligations hereunder which expressly or by implication survive Termination
hereof; and
(b) except as otherwise provided in any provision of this Agreement expressly

limiting the liability of either Party, not relieve either Party of any obligations
or liabilities for loss or damage to the other Party arising out of, or caused by,
acts or omissions of such Party prior to the effectiveness of such Termination
or arising out of such Termination.
27.7.2 All Obligations surviving Termination shall only survive for a period of 3 (three)
years following the date of such Termination.
27.8 Entire Agreement
This Agreement and the Schedules together constitute a complete and exclusive
statement of the terms of the agreement between the Parties on the subject
hereof, and no amendment or modification hereto shall be valid and effective
unless such modification or amendment is agreed to in writing by the Parties
and duly executed by persons especially empowered in this behalf by the
respective Parties. All prior written or oral understandings, offers or other
communications of every kind pertaining to this Agreement are abrogated and
withdrawn. For the avoidance of doubt, the Parties hereto agree that any

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obligations of the Contractor arising from the Request for Qualification or

Request for Proposals, as the case may be, shall be deemed to form part of this
Agreement and treated as such.
27.9 Severability
If for any reason whatever, any provision of this Agreement is or becomes

invalid, illegal or unenforceable or is declared by any court of competent
jurisdiction or any other instrumentality to be invalid, illegal or unenforceable,
the validity, legality or enforceability of the remaining provisions shall not be
affected in any manner, and the Parties will negotiate in good faith with a view to
agreeing to one or more provisions which may be substituted for such invalid,
unenforceable or illegal provisions, as nearly as is practicable to such invalid,
illegal or unenforceable provision. Failure to agree upon any such provisions shall
not be subject to the Dispute Resolution Procedure set forth under this Agreement
or otherwise.
27.10 No partnership
This Agreement shall not be interpreted or construed to create an association,

joint venture or partnership between the Parties, or to impose any partnership
obligation or liability upon either Party, and neither Party shall have any
right, power or authority to enter into any agreement or undertaking for, or act
on behalf of, or to act as or be an agent or representative of, or to
otherwise bind, the other Party.
27.11 Third parties
This Agreement is intended solely for the benefit of the Parties, and their
respective successors and permitted assigns, and nothing in this Agreement shall
be construed to create any duty to, standard of care with reference to, or any
liability to, any person not a Party to this Agreement.
27.12 Successors and assigns

This Agreement shall be binding upon, and inure to the benefit of the Parties and
their respective successors and permitted assigns.

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27.13 Notices
Any notice or other communication to be given by any Party to the other

Party under or in connection with the matters contemplated by this Agreement
shall be in writing and shall:
(a) in the case of the Contractor, be given by facsimile or e-mail and by letter
delivered by hand to the address given and marked for attention of the
person set out below or to such other person as the Contractor may from
time to time designate by notice to the Authority; provided that notices or
other communications to be given to an address outside Mumbai may, if they
are subsequently confirmed by sending a copy thereof by registered
acknowledgement due, air mail or by courier, be sent by facsimile or e-mail
to the person as the Contractor may from time to time designate by notice to
the Authority;
(b) in the case of the Authority, be given by facsimile or e-mail and by letter
delivered by hand and be addressed to the Vice Chairman & Managing
Director of MSRDC with a copy delivered to the Authority Representative
or such other person as the Authority may from time to time designate by
notice to the Contractor; provided that if the Contractor does not have an
office in Mumbai it may send such notice by facsimile or e- mail and by
registered acknowledgement due, air mail or by courier; and
(c) any notice or communication by a Party to the other Party, given in

accordance herewith, shall be deemed to have been delivered when in the
normal course of post it ought to have been delivered and in all other cases,
it shall be deemed to have been delivered on the actual date and time of
delivery; provided that in the case of facsimile or e- mail, it shall be deemed
to have been delivered on the working day following the date of its delivery.
27.14 Language
All notices required to be given by one Party to the other Party and all other
communications, Documentation and proceedings which are in any way relevant to
this Agreement shall be in writing and in English language.

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27.15 Counterparts
This Agreement may be executed in two counterparts, each of which, when

executed and delivered, shall constitute an original of this Agreement.
27.16 Confidentiality
The Parties shall treat the details of this Agreement as private and
confidential, except to the extent necessary to carry out obligations under it or
to comply with Applicable Laws. The Contractor shall not publish, permit to be
published, or disclose any particulars of the Works in any trade or technical
paper or elsewhere without the previous agreement of the Authority.
27.17 Copyright and Intellectual Property rights
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 this Agreement) to give to the Authority a non- terminable
transferable non-exclusive royalty-free license to copy, use and communicate the
Contractor’s Documents, including making and using modifications of them. This
license 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
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 this Agreement, including
replacements of any computers supplied by the Contractor:
27.17.2 The Contractor’s Documents and other design documents made by (or on behalf
of) the Contractor shall not, without the Contractor’s consent, be used, copied or

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communicated to a third party by (or on behalf of) the Authority for purposes
other than those permitted under this Clause 27.17.
27.17.3 As between the Parties, the Authority shall retain the copyright and other
intellectual property rights in this Agreement and other documents made by (or on
behalf of) the Authority. The Contractor may, at its cost, copy, use, and obtain
communication of these documents for the purposes of this Agreement. They shall
not, without the Authority's consent, be copied, used or communicated to a third
party by the Contractor, except as necessary for the purposes of the contract.
27.18 Limitation of Liability
Neither Party shall be liable to the other Party for loss of use of any Works, loss of
profit, loss of any contract or for any indirect or consequential loss or damage
which may be suffered by the other Party in connection with this Agreement,
save and except as provided under Articles 23 and 25.
27.18.1 The total liability of one Party to the other Party under and in accordance with
the provisions of this Agreement, save and except as provided in Articles 23 and
25, shall not exceed the Contract Price. For the avoidance of doubt, this Clause
shall not limit the liability in any case of fraud, deliberate default or reckless
misconduct by the defaulting Party.
27.19 Care and Supply of Documents
(i) Each of the Contractor’s documents shall be in the custody and care of the
Contractor, unless and until taken over by the Authority. Unless otherwise
stated in the Agreement, the Contractor shall supply to the Authority 2 (two)
copies of the each of the Contractor’s documents.
(ii) The Contractor shall keep, on the Site, a copy of the Agreement, publication
named in the Authority’s requirements, the Contractor’s documents, and
variations and other communications given under the Agreement. The
Authority’s personnel shall have the right of access to all these documents at
all reasonable times.
(iii) If a Party becomes aware of an error or defect of a technical nature in a

document which was prepared for use in executing the Works, the Party

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shall promptly give notice to the other party of such error or defect.
27.20 Authority’s Use of Contractor’s Documents.
i) 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.
ii) The Contractor hereby gives to the Authority a non-terminable transferable

nonexclusive royalty-free license to copy, use and communicate the
Contractor’s Documents, including making and using modifications of them.
This license 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 Contractor, including replacements of
any computers supplied by the Contractor.
iii) The Contractor’s Documents and other design documents made by or on

behalf of the Contractor shall not, without the Contractor’s consent, be used,
copied or communicated to a third party by (or on behalf of) the Authority for
purposes other than those permitted under this Sub-Clause.
27.21 Contractor’s Use of Authority’s Documents
As between the Parties, the Authority shall retain the copyright and other
intellectual property rights in the Authority’s requirements and other Documents
made by (or on behalf of) the Authority. The Contractor may, at its cost copy,
use, and obtain communication of these documents for the purpose of the
Agreement. They shall not without the Authority’s consent, be copied, used or

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communicating to a third party by the Contractor, except as necessary for the

purposes of the Agreement.
27.22 Access to the Site by Others
The Contractor shall, at all times, afford access to the Site to the authorized
representatives of the Authority, the Authority’s Engineer and anyone else
authorized by the Authority to access the site and to the persons duly authorized
by any Governmental Agency having jurisdiction over the Project, including those
concerned with safety, security or environmental protection to inspect the Project
expressway and to investigate any matter within their authority and upon
reasonable notice, the Contractor shall provide to such persons reasonable
assistance necessary to carry out their respective duties and functions with
minimum disruption to the construction, operation and maintenance of the
Project expressway consistent with the purpose for which such persons have
gained such access to the Site.
27.23 Term
This Agreement shall come into force and effect from the date first hereinabove
written and shall remain in force and effect till the Termination Date i.e. the
Parties perform all their respective obligations or is terminated by any of the
Parties for the reasons and in the manner provided for in the Agreement.
27.24 Amendments
The Agreement may not be supplemented, amended, modified or changed except

by an instrument in writing signed by the Contractor and the Authority and
expressed to be a supplement, modification or change to the Agreement.
27.25 Representation and Bribes
The Contractor represents and warrants to the Authority that:
a) No representation or warranty by the Contractor contained herein or in any other

document furnished by it to the Authority, or to any Governmental Instrumentality
in relation to Applicable Permits contains or will contain any untrue statement of
material fact or omits or will omit to state a material fact necessary to make such

29.850 km)
representation or warranty not misleading; and
b) It warrants that no sums, in cash or kind, have been paid or will be paid by or on
behalf of the Contractor, to any person by way of fees, commission or otherwise for
securing or entering into the Contractor or for influencing or attempting to
influence any officer or employee of the Authority or GOI in connection therewith.
27.26 No Agency
The Agreement does not constitute either Party as the agent, partner or legal
representative of the other for any purposes whatsoever, and neither Party shall
have any express or implied right or authority to assume or to create any
obligation or responsibility on behalf of or in the name of the other Party.
27.27 Stamp Duty & Registration
Stamp Duty & Registration Charges shall be borne by the contractor. The
registration shall be executed within fifteen days from the signing of the
agreement.
27.28 Insurance
No payment shall be admissible unless the insurance is compiled as per Article 20.

29.850 km)
ARTICLE 28
DEFINITIONS
28.1 Definitions
In this Agreement, the following words and expressions shall, unless repugnant
to the context or meaning thereof, have the meaning hereinafter respectively
assigned to them:
“Accounting Year” means the financial year commencing from the first day of
April of any calendar year and ending on the thirty- first day of March of the next
calendar year;
“Advance Payment” shall have the meaning set forth in Clause 19.2;
“Affected Party”shall have the meaning set forth in Clause 21.1;
“Affiliate” means, in relation to either Party {and/or Members}, a person who

controls, is controlled by, or is under the common control with such Party {or
Member} (as used in this definition, the expression “control” means, with respect
to a person which is a company or corporation, the ownership, directly or
indirectly, of more than 50% (fifty per cent) of the voting shares of such person,
and with respect to a person which is not a company or corporation, the power
to direct the management and policies of such person, whether by operation of law
or by contract or otherwise);
“Agreement” means this Agreement, its Recitals, the Schedules hereto and any
amendments thereto or supplementary agreement made in accordance with the
provisions contained in this Agreement;
“Applicable Laws” means all laws, brought into force and effect by GOI or the
State Government including rules, regulations and notifications made thereunder,
and judgements, decrees, injunctions, writs and orders of any court of record,
applicable to this Agreement and the exercise, performance and discharge of the
respective rights and obligations of the Parties hereunder, as may be in force and
effect during the subsistence of this Agreement;
“Applicable Permits” means all clearances, licenses, permits, authorisations, no

29.850 km)
objection certificates, consents, approvals and exemptions required to be obtained

or maintained under Applicable Laws in connection with the construction,
operation and maintenance of the Project expressway d u r i n g the subsistence of
this Agreement;
“Appointed Date” means the date declared by the Authority as the project
commencement date with the consent of the contractor, as per the process
prescribed in Article 4 and 8 of this Agreement;
“Arbitration Act” means the Arbitration and Conciliation Act, 1996, with all its
subsequent amendments;
“Authority” shall have the meaning attributed thereto in the array of Parties
hereinabove as set forth in the Recitals;
“Authority Default” shall have the meaning set forth in Clause 23.2;
“Authority’s Engineer” shall have the meaning set forth in Clause 18.1;
“Authority Representative” means such person or persons as may be authorized

in writing by the Authority to act on its behalf under this Agreement and shall
include any person or persons having authority to exercise any rights or perform
and fulfil any obligations of the Authority under this Agreement;
“Bank” means a nationalized bank incorporated in India and recognized by the

Reserve Bank of India
“Base Rate” means the floor rate of interest announced by the State Bank of India
for all its lending operations;
“Base Date” means the last date of that calendar month, which date precedes the
Bid Due Date by at least 28 (twenty-eight) days;
“Bid” means the documents in their entirety comprised in the bid submitted by
the [selected Contractor/Joint venture] in response to the Request for Proposals in
accordance with the provisions thereof;
“Bid Security” means the bid security provided by the Contractor to the Authority
in accordance with the Request for Proposal, and which is to remain in force

29.850 km)
until substituted by the Performance Security;
“Change in Law” means the occurrence of any of the following after the Base
Date:
(a) the enactment of any new Indian law;
(b) the repeal, modification or re-enactment of any existing Indian law;
(c) the commencement of any Indian law which has not come into effect until
the Base Date;
(d) a change in the interpretation or application of any Indian law by a judgement

of a court of record which has become final, conclusive and binding, as
compared to such interpretation or application by a court of record prior to
the Base Date; or
“Change of Scope” shall have the meaning set forth in Article 13;
“Change of Scope Notice” shall have the meaning set forth in Clause 13.2.1;
“Change of Scope Request” shall have the meaning set forth in Clause 13.2.2;
“Change of Scope Order” shall have the meaning set forth in Clause 13.2.5;
“CE” Chief Engineer of MSRDC of Package
“Completion Certificate” shall have the meaning set forth in Clause 12.4
“Construction” shall have the meaning set forth in Clause 1.2.1 (f);
“Construction Period” means the period commencing from the Appointed Date
and ending on the date of the Completion Certificate;
“Contract Price” means the amount specified in Clause 19.1.1;
“Contractor” shall have the meaning attributed thereto in the array of Parties
hereinaboveas set forth in the Recitals;
“Contractor Default” shall have the meaning set forth in Clause 23.1;

29.850 km)
“Cure Period” means the period specified in this Agreement for curing any breach
or default of any provision of this Agreement by the Party responsible for such
breach or default and shall:
(a) commence from the date on which a notice is delivered by one Party to
the other Party asking the latter to cure the breach or default specified in
such notice;
(b) not relieve any Party from liability to pay Damages or compensation under
the provisions of this Agreement; and
(c) not in any way be extended by any period of Suspension under this
Agreement; provided that if the cure of any breach default by the Contractor
requires any reasonable action by the Contractor that must be approved
by the Authority or the Authority’s Engineer hereunder, the applicable
Cure Period shall be extended by the period taken by the Authority or the
Authority’s Engineer to accord their approval;
“Damages” shall have the meaning set forth in paragraph (w) of Clause 1.2
“Defect” means any defect or deficiency in Construction of the Works or any

part thereof, which does not conform with the Specifications and Standards, and in
the case of Maintenance, means any defect or deficiency which is specified in
Schedule-E;
“Defects Liability Period” shall have the meaning set forth in Clause 17.1;
“Dispute” shall have the meaning set forth in Clause 26.1;
“Dispute Resolution Procedure” means the procedure for resolution of

Disputes set forth in Article 26;
“Drawings” means all of the drawings, calculations and documents pertaining to

the Project Expressway as set forth in Schedule-I, and shall include “as built‟
drawings of the Project expressway;
“Document” or “Documentation” means documentation in printed or written

form, or in tapes, discs, drawings, computer programmes, writings, reports,

29.850 km)
photographs, films, cassettes, or expressed in any other written, electronic,

audio or visual form;
“Emergency” means a condition or situation that is likely to endanger the safety

or security of the individuals on or about the Project expressway, including Users
thereof, or which poses an immediate threat of material damage to any of the
Project Assets;
“Encumbrances” means, in relation to the Project expressway, any
encumbrances such as mortgage, charge, pledge, lien, hypothecation, security
interest, assignment, privilege or priority of any kind having the effect of security
or other such obligations, and shall include any designation of loss payees or
beneficiaries or any similar arrangement under any insurance policy pertaining to
the Project Expressway, where applicable herein but excluding utilities referred to
in Clause 9.1;
“EPC” means engineering, procurement and construction;
“Final Payment Certificate” shall have the meaning set forth in Clause 19.15.
“Final Payment Statement” shall have the meaning set forth in Clause 19.13;
“Force Majeure” or “Force Majeure Event” shall have the meaning ascribed
to it in Clause 21.1;
“GAD” or “General Arrangement Drawings” shall have the meaning set forth in
Clause 4.1.3 (b);
“GOI” or “Government” means the Government of India;
“Good Industry Practice” means the practices, methods, techniques, designs,

standards, skills, diligence, efficiency, reliability and prudence which are generally
and reasonably expected from a reasonably skilled and experienced contractor
engaged in the same type of undertaking as envisaged under this Agreement and
which would be expected to result in the performance of its obligations by the
contractor in accordance with this Agreement, Applicable Laws and Applicable
Permits in reliable, safe, economical and efficient manner;
“Government Instrumentality” means any department, division or sub- division of

29.850 km)
the Government or the State Government and includes any commission, board,
authority, agency or municipal and other local authority or statutory body including
panchayat under the control of the Government or the State Government, as the
case may be, and having jurisdiction over all or any part of the Project
Expressway or the performance of all or any of the services or obligations of the
Contractor under or pursuant to this Agreement;
“Handover Memorandum” shall have the meaning set forth in Clause 8.2;
“IRC” means the Indian Roads Congress;
“Indemnified Party” means the Party entitled to the benefit of an indemnity

pursuant to Article 25;
“Indemnifying Party” means the Party obligated to indemnify the other Party
pursuant to Article 25;
“Indirect Political Event” shall have the meaning set forth in Clause 21.3;
“Insurance Cover” means the aggregate of the maximum sums insured under the
insurances taken out by the Contractor pursuant to Article 20, and includes all
insurances required to be taken out by the Contractor under Clauses 20.1 and 20.9
but not actually taken, and when used in the context of any act or event, it shall
mean the aggregate of the maximum sums insured and payable or deemed to be
insured and payable in relation to such act or event;
“Intellectual Property” means all patents, trademarks, service marks, logos, get-
up, trade names, internet domain names, rights in designs, blue prints,
programmes and manuals, drawings, copyright (including rights in computer
software), database rights, semi- conductor, topography rights, utility models,
rights in know-how and other intellectual property rights, in each case whether
registered or unregistered and including applications for registration, and all rights
or forms of protection having equivalent or similar effect anywhere in the world;
“Interim Payment Certificate” or “IPC” means the interim payment certificate

issued by the Authority’s Engineer for payment to the Contractor in respect of
Contractor’s claims for payment raised in accordance with the provisions of this
Agreement;

29.850 km)
“Lead Member” shall, in the case of a joint venture, mean the member of such
joint venture who shall have the authority to bind the contractor and each member
of the Joint venture; and shall be deemed to be the Contractor for the purposes of
this Agreement; the Lead Member shall itself undertake and perform at least 51%
(fifty-one per cent) of the total length of the Project expressway;
“LOA” or “Letter of Acceptance” means the letter of acceptance referred to in

Recital (E);
8
This definition may be omitted if the Contractor is not a Consortium
“Maintenance” means the maintenance of the Project expressway as set forth

in Article 14 for the period specified therein;
“Maintenance Inspection Report” shall have the meaning set forth in Clause
15.2.1;
“Maintenance Manual” shall have the meaning ascribed to it in Clause 10.7;

“Maintenance Programme” shall have the meaning set forth in Clause 14.3;
“Maintenance Period” shall have the meaning set forth in Clause 14.1.1;
“Maintenance Requirements” shall have the meaning set forth in Clause 14.2;
“Major Bridge” means a bridge having a total length of more than 60 (sixty)
metres between the inner faces of the dirt walls as specified in IRC:5;
“Manual” shall mean the Manual of Specifications and Standards for Expressway
(IRC: SP: 99 – 2023)
“Material Adverse Effect” means a material adverse effect of any act or event on
the ability of either Party to perform any of its obligations under and in accordance
with the provisions of this Agreement and which act or event causes a material
financial burden or loss to either Party;
“Materials” comprise of all the supplies used by the Contractor used in the Works
or for the maintenance of the Project expressway;
“Monthly Maintenance Statement shall have the meaning set forth in Clause 19.6;

29.850 km)
MORTH” means the Ministry of Road Transport and Highway or any substitute
thereof dealing with Highways ;
“MSRDC” means the Maharashtra State Road Development Corporation Ltd.
“Non-Political Event” shall have the meaning set forth in Clause 21.2;
“Parties” means the parties to this Agreement collectively and “Party” shall
mean any of the parties to this Agreement individually;
“Performance Security” and “Additional Performance Security” shall have the

meaning set forth in Clause 7.1;
“Plant” means the apparatus and machinery intended to form or forming part of
the works;
“Political Event” shall have the meaning set forth in Clause 21.4;
“Programme” shall have the meaning set forth in Clause 10.1.3;
“Project” means the construction and maintenance of the Project expressway in

accordance with provisions of this Agreement, and includes all works, services and
equipment relating to or in respect of the Scope of the Project.
“Project Assets” means all physical and other assets relating to (a) tangible assets
such as civil works and equipment including foundations, embankments, pavements,
road surface, interchanges, bridges, culverts, road over-bridges, drainage works,
traffic signals, sign boards, kilometre-stones, [toll plaza(s)], electrical systems,
communication systems, rest areas, relief centres, maintenance depots and
administrative offices; and (b) Project Facilities situated on the Site;
“Project Completion Date” means the date on which the Completion Certificate is
issued.
“Project Completion Schedule” means the progressive Project Milestones set

forth in Schedule-J for completion of the Project expressway on or before the
Scheduled Completion Date;
“Project Facilities” means all the amenities and facilities situated on the Site,

29.850 km)
as described in Schedule-C;
“Project Expressway” shall have the meaning set forth in Recital “B‟;
“Project Milestone” means the project milestone set forth in Schedule-J;
“Proof Consultant” shall have the meaning set forth in Clause 10.2.2;
“Provisional Certificate” shall have the meaning set forth in Clause 12.2;
“Punch List” shall have the meaning set forth in Clause 12.2.1;
“Quality Assurance Plan” or “QAP” shall have the meaning set forth in Clause
11.2;
“Re.”, “Rs.” or “Rupees” or “Indian Rupees” or “INR” means the lawful

currency of the Republic of India;
“Request for Proposals” or “RFP” shall have the meaning set forth in Recital “D”;
“Request for Qualification” or “RFQ” shall have the meaning set forth in Recital “C”;
“Retention Money” shall have the meaning set forth in Clause 7.5.1;
“Right of Way” means the constructive possession of the Site free from
encroachments and encumbrances, and refers to the total land required and
acquired for the project, both in its width and length, together with all way leaves,
easements, unrestricted access and other rights of way, howsoever described,
necessary for construction and maintenance of the Project expressway i n
accordance with this Agreement;
“Safety Consultant” shall have the meaning set forth in Clause 10.1
“Scheduled Completion Date” shall be the date set forth in Clause 10.3
“Scheduled Construction Period” means the period commencing from the

Appointed Date and ending on Scheduled Completion Date;
“Scope of the Project” shall have the meaning set forth in Clause 2.1;
“Section” means a part of the Project expressway ;

29.850 km)
“Site” shall have the meaning set forth in Clause 8.1;
“Specifications and Standards” means the specifications and standards relating to

the quality, quantity, capacity and other requirements for the Project
expressway, as set forth in Schedule-D, and any modifications thereof, or additions
thereto, as included in the design and engineering for the Project expressway
submitted by the Contractor to, and expressly approved by, the Authority;
"Stage Payment Statement" shall have the meaning set forth in Clause 19.4;
“Structures” means an elevated road or a flyover, as the case may be;
“Sub- contractor” means any person or persons to whom a part of the Works or
the Maintenance has been subcontracted by the Contractor and the permitted legal
successors in title to such person, but not an assignee to such person;
“Suspension” shall have the meaning set forth in Article 22;
“Taxes” means any Indian taxes including excise duties, customs duties, value
added tax, sales tax, local taxes, cess and any impost or surcharge of like nature
(whether Central, State or local), Except GST on the goods, Materials, equipment
and services incorporated in and forming part of the Project expressway charged,
levied or imposed by any Government Instrumentality, but excluding any
interest, penalties and other sums in relation thereto imposed on any account
whatsoever. For the avoidance of doubt, Taxes shall not include taxes on
corporate income;
“Termination” means the expiry or termination of this Agreement;
“Termination Notice” means the communication issued in accordance with this

Agreement by one Party to the other Party terminating this Agreement;
“Termination Payment” means the amount payable by either Party to the

other upon Termination in accordance with Article 23;
“Terms of Reference” or “TOR” shall have the meaning set forth in Clause 18.2
“Tests” means the tests set forth in Schedule-K to determine the completion of
Works in accordance with the provisions of this Agreement;

29.850 km)
“Time Extension” shall have the meaning set forth in Clause 10.5
“User” means a person who travels or intends to travel on the Project Expressway
or any part thereof in/on any vehicle;
“Valuation of Unpaid works” shall have the meaning set forth in Clause 23.5.1;
23.5
“Works” means all works including survey and investigation, design, engineering,
procurement, construction, Plant, Materials, maintenance, temporary works and
other things necessary to complete the Project expressway in accordance with this
Agreement; and
“WPI” means the wholesale price index for various commodities as published by
the Ministry of Commerce and Industry, GOI and shall include any index which
substitutes the WPI, and any reference to WPI shall, unless the context otherwise
requires, be construed as a reference to the WPI published for the period ending
with the preceding month.
IN WITNESS WHERE OF THE PARTIES HAVE EXECUTED AND DELIVERED THIS

AGREEMENT AS OF THE DAY, MONTH AND YEAR FIRST ABOVE WRITTEN.
SIGNED, SEALED AND DELIVERED
SIGNED, SEALED AND DELIVERED

For and on behalf of
For and on behalf of
THE CONTRACTOR by:
[MAHARASHTRA STATE ROAD
DEVELOPMENT CORPORATION
LTD.] by:
(Signature)
(Signature)
(Name)
(Designation) (Name)
(Designation)

29.850 km)
In the presence of:
1.
2.
{COUNTER SIGNED and accepted by:

Name and particulars of other members of the Consortium}

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MAHARASHTRA STATE ROAD DEVELOPMENT CORPORATION LTD.

(Government of Maharashtra Undertaking)

Construction of Nagpur – Chandrapur Access Controlled Super

REQUEST FOR PROPOSAL (RFP)

PACKAGE NC-02 from km 33+300 Lonhar Tq. Samudrapur Dist. Wardha to

Maharashtra State Road Development Corporation Ltd.

Contractor Page 1 MSRDC

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

Maharashtra State Road Development Corporation Ltd. (MSRDC Ltd.) , Mumbai , a

(B) The Authority had resolved to construct the “Construction of Nagpur-Chandrapur

Contractor Page 2 MSRDC

Contractor Page 3 MSRDC

Parties agree as follows:

(b) Volume-II: Technical Bid

Contractor Page 4 MSRDC

DEFINITIONS AND INTERPRETATION

1.2.1 In this Agreement, unless the context otherwise requires,

(a) References to any legislation or any provision thereof shall include

Contractor Page 5 MSRDC

whether or not they are followed by such phrases;

(f) References to “construction” or “building” include, unless the context otherwise

(g) References to “development” include, unless the context otherwise requires,

(j) References to a “business day” shall be construed as a reference to a day (other

Contractor Page 6 MSRDC

(q) “Indebtedness” shall be construed so as to include any obligation (whether

(r) References to the “winding-up”, “dissolution”, “insolvency”, or “re-

(t) Any agreement, consent, approval, authorization, notice, communication,

(v) References to Recitals, Articles, Clauses, Sub-clauses or Schedules in this

Contractor Page 7 MSRDC

this Agreement, and references to a Paragraph shall, subject to any contrary

1.3 Measurements and arithmetic conventions

1.4 Priority of agreements and errors/discrepancies

Contractor Page 8 MSRDC

to in this Agreement are to be taken as mutually explanatory and, unless otherwise

(a) This Agreement; and

1.4.2 Subject to the provisions of Clause 1.4.1, in case of ambiguities or discrepancies

1.5 Joint and several liability

Contractor Page 9 MSRDC

Contractor Page 10 MSRDC

Contractor Page 11 MSRDC

SCOPE OF THE PROJECT

2.1 Scope of the Project

(b) Maintenance of the Project expressway in accordance with the provisions of

(c) Performance and fulfilment of all other obligations of the Contractor in

Contractor Page 12 MSRDC

3.1 Obligations of the Contractor

Contractor Page 13 MSRDC

(a) Make, or cause to be made, necessary applications to the relevant

(b) Procure, as required, the appropriate proprietary rights, licenses, agreements

(c) Make reasonable efforts to maintain harmony and good industrial

Contractor Page 14 MSRDC

(j) Not interfere unnecessarily or improperly with the convenience of the

Contractor Page 15 MSRDC

3.2 Obligations relating to sub-contracts and any other agreements

Contractor Page 16 MSRDC

(i) In case of Expressway Work, the subcontractor shall have undertaken at

Contractor Page 17 MSRDC

3.3 Employment of foreign nationals

3.4 Contractor’s personnel