2-1 - EPC Document NH-167K-05-08-2022

Widening to two lane with paved shoulders from Km 0/000 to Km 79/300 of Kalwakurthy - Kollapur section of NH-167K
in the State of Telangana on Engineering, Procurement and Construction (EPC) Basis
Engineering Procurement and Construction (EPC)
Agreement
For
Widening to two lane with paved shoulders from Km

0/000 to Km 79/300 of Kalwakurthy - Kollapur section of
NH-167K in the State of Telangana on Engineering,
Procurement and Construction (EPC) Basis
BID DOCUMENT
VOLUME-II
Ministry of Road Transport & Highways

(MoRT&H)
August 2022
Table of Contents
Part I 1
Preliminary 1
1 Definitions and Interpretations 5
1.1 Definitions 5
1.2 Interpretation 13
1.3 Measurements and arithmetic conventions 16
1.4 Priority of agreements and errors/discrepancies 16
1.5 Joint and several liability 17
Part II 19
Scope of Project 19
2 Scope of the Project 21
2.1 Scope of the Project 21
3 Obligations of the Authority 23
3.1 Obligations of the Authority 23
3.2 Maintenance obligations prior to the Appointed Date 25
3.3 Environmental Clearances 25
3.4 Deemed Termination upon delay 25
4 Obligations of the Contractor 27
4.1 Obligations of the Contractor 27
4.2 Obligations relating to sub-contracts and any other agreements 29
4.3 Employment of foreign nationals 30
4.4 Contractor’s personnel 31
4.5 Advertisement on Project Highway 31
4.6 Contractor's care of the Works 31
4.7 Electricity, water and other services 31
4.8 Unforeseeable difficulties 32
4.9 Co-ordination of the Works 32
4.10 Environmental Measures 33
4.11 Site Data 33
4.12 Sufficiency of Contract Price 33
4.13 Clearance of the Site 33
5 Representations and Warranties 35
5.1 Representations and warranties of the Contractor 35
5.2 Representations and warranties of the Authority 39
5.3 Disclosure 39
6 Disclaimer 41
6.1 Disclaimer 41
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Part III 43
Construction and Maintenance 43
7 Performance Security 45
7.1 Performance Security 45
7.2 Extension of Performance Security and Additional Performance Security 46
7.3 Appropriation of Performance Security 46
7.4 Release of Performance Security 47
7.5 Retention Money 47
8 Right of Way 49
8.1 The Site 49
8.2 Procurement of the Site 49
8.3 Damages for delay in handing over the Site 51
8.4 Site to be free from Encumbrances 53
8.5 Protection of Site from encroachments 53
8.6 Special/ temporary Right of Way 53
8.7 Access to the Authority and the Authority’s Engineer 53
8.8 Geological and archaeological finds 54
9 Utilities and Trees 55
9.1 Existing utilities and roads 55
9.2 Shifting of obstructing utilities 55
9.3 New utilities 56
9.4 Felling of trees 56
9.5 Dismantling of structures 57
9.6 Development Period 57
10 Design and Construction of the Project Highway 59
10.1 Obligations prior to commencement of Works 59
10.2 Design and Drawings 61
10.3 Construction of the Project Highway 63
10.4 Maintenance during Construction Period 65
10.5 Extension of time for completion 65
10.6 Incomplete Works 67
10.7 Maintenance Manual 67
10.8 As-Built Records 68
10.9 Contractor's Use of Authority’s Documents 68
11 Quality Assurance, Monitoring and Supervision 69
11.1 Quality of Materials and workmanship 69
11.2 Quality control system 69
11.3 Methodology 70
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11.4 Inspection and technical audit by the Authority 70

11.5 External technical audit 70
11.6 Inspection of construction records 70
11.7 Monthly progress reports 71
11.8 Inspection 72
11.9 Samples 72
11.10 Tests 73
11.11 Examination of work before covering up 73
11.12 Rejection 73
11.13 Remedial work 74
11.14 Delays during construction 74
11.15 Quality control records and Documents 75
11.16 Video recording 75
11.17 Suspension of unsafe Construction Works 75
11.18 Staff and Labour 76
12 Completion Certificate 79
12.1 Tests on Completion 79
12.2 Completion Certificate 79
12.3 Rescheduling of Tests 80
13 Change of Scope 81
13.1 Change of Scope 81
13.2 Procedure for Change of Scope 81
13.3 Payment for Change of Scope 84
13.4 Restrictions on Change of Scope 84
13.5 Power of the Authority to undertake Works 84
14 Maintenance 85
14.1 Maintenance obligations of the Contractor 85
14.2 Maintenance Requirements 86
14.3 Maintenance Programme 87
14.4 Safety, vehicle breakdowns and accidents 87
14.5 Lane closure 87
14.6 Reduction of payment for non-performance of Maintenance obligations 88
14.7 Authority’s right to take remedial measures 88
14.8 Restoration of loss or damage to Project Highway 88
14.9 Overriding powers of the Authority 89
14.10 Taking over Certificate 89
15 Supervision and Monitoring during Maintenance 91
15.1 Inspection by the Contractor 91
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15.2 Inspection and payments 91

15.3 Tests 92
15.4 Reports of unusual occurrence 92
16 Traffic Regulation 93
16.1 Traffic regulation by the Contractor 93
17 Defects Liability 95
17.1 Defects Liability Period 95
17.2 Remedying Defects 95
17.3 Cost of remedying Defects 96
17.4 Contractor’s failure to rectify Defects 96
17.5 Extension of Defects Liability Period 96
18 Authority’s Engineer 97
18.1 Appointment of the Authority’s Engineer 97
18.2 Duties and authority of the Authority’s Engineer 97
18.3 Delegation by the Authority’s Engineer 98
18.4 Instructions of the Authority’s Engineer 98
18.5 Determination by the Authority’s Engineer 99
18.6 Remuneration of the Authority’s Engineer 99
18.7 Termination of the Authority’s Engineer 99
Part IV 101
Financial Covenants 101
19 Payments 103
19.1 Contract Price 103
19.2 Advance Payment 103
19.3 Procedure for estimating the payment for the Works 105
19.4 Stage Payment Statement for Works 106
19.5 Stage Payment for Works 106
19.6 Monthly Maintenance Statement of the Project Highway 107
19.7 Payment for Maintenance of the Project Highway 107
19.8 Payment of Damages 108
19.9 Time of payment and interest 108
19.10 Price adjustment for the Works 109
19.11 Restrictions on price adjustment 111
19.12 Price adjustment for Maintenance of Project Highway 111
19.13 Final Payment Statement 111
19.14 Discharge 113
19.15 Final Payment Certificate 113
19.16 Final payment statement for Maintenance 114
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19.17 Change in law 114

19.18 Correction of Interim Payment Certificates 114
19.19 Authority’s claims 115
19.20 Bonus for early completion 115
20 Insurance 117
20.1 Insurance for Works and Maintenance 117
20.2 Notice to the Authority 118
20.3 Evidence of Insurance Cover 118
20.4 Remedy for failure to insure 119
20.5 Waiver of subrogation 119
20.6 Contractor’s waiver 119
20.7 Cross liabilities 119
20.8 Accident or injury to workmen 119
20.9 Insurance against accident to workmen 120
20.10 Application of insurance proceeds 120
20.11 Compliance with policy conditions 120
20.12 General Requirements of Insurance Policies 120
Part V 132
Force Majeure and Termination 123
21 Force Majeure 125
21.1 Force Majeure 125
21.2 Non-Political Event 125
21.3 Indirect Political Event 126
21.4 Political Event 126
21.5 Duty to report Force Majeure Event 127
21.6 Effect of Force Majeure Event on the Agreement 127
21.7 Termination Notice for Force Majeure Event 128
21.8 Termination Payment for Force Majeure Event 128
21.9 Dispute resolution 129
21.10 Excuse from performance of obligations 129
22 Suspension of Contractor’s Rights 131
22.1 Suspension upon Contractor Default 131
22.2 Authority to act on behalf of Contractor 131
22.3 Revocation of Suspension 131
22.4 Termination 132
23 Termination 133
23.1 Termination for Contractor Default 133
23.2 Termination for Authority Default 136
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23.3 Termination for Authority’s convenience 137

23.4 Requirements after Termination 137
23.5 Valuation of Unpaid Works 137
23.6 Termination Payment 138
23.7 Other rights and obligations of the Parties 139
23.8 Survival of rights 139
23.9 Foreclosure with mutual consent 140
Part VI 141
Other Provisions 141
24 Assignment and Charges 143
24.1 Restrictions on assignment and charges 143
24.2 Hypothecation of Materials or Plant 143
25 Liability and Indemnity 145
25.1 General indemnity 145
25.2 Indemnity by the Contractor 145
25.3 Notice and contest of claims 146
25.4 Defence of claims 146
25.5 Survival on Termination 147
26 Dispute Resolution 149
26.1 Dispute Resolution 149
26.2 Conciliation 149
26.3 Arbitration 150
26.4 Adjudication by Regulatory Authority, Tribunal or Commission 150
27 Miscellaneous 153
27.1 Governing law and jurisdiction 153
27.2 Waiver of immunity 153
27.3 Delayed payments 153
27.4 Waiver 154
27.5 Liability for review of Documents and Drawings 154
27.6 Exclusion of implied warranties etc. 154
27.7 Survival 155
27.8 Entire Agreement 155
27.9 Severability 155
27.10 No partnership 155
27.11 Third parties 156
27.12 Successors and assigns 156
27.13 Notices 156
27.14 Language 157
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27.15 Counterparts 157

27.16 Confidentiality 157
27.17 Copyright and Intellectual Property rights 157
27.18 Limitation of Liability 158
27.19 Care and Supply of Documents 158
27.20 Authority’s Use of Contractor’s Documents. 158
27.21 Contractor’s Use of Authority’s Documents 159
27.22 Access to the Site by Others 159
27.23 Term 160
27.24 Amendments 160
27.25 Representation and Bribes 160
27.26 No Agency 160
Schedules 161
Schedule-A Site of the Project 163
Annex-I: Site 165
Annex-II: Dates for providing Right of Way of Construction Zone 181
Annex-III: Alignment Plans 185
Annex-IV: Environment Clearances 186
Schedule - B Development of the Project Highway 189
Annex-I: Description of Widening to 2 lane with paved shoulders 191
Schedule – B1 Utilities Shifting 239
Annex-I Utility Shifting 240
Annex-II Utility Shifting 241
Annex-III Utility Shifting Estimates (enclosed) 245
Annex-II Utility Shifting Plan (enclosed) 246
Schedule - C Project Facilities 247
Schedule - D Specifications and Standards 255
Annex-I: Specifications and Standards for Construction 257
Schedule - E Maintenance Requirements 259
Annex-I: Repair/rectification of Defects and deficiencies 261
Schedule - F Applicable Permits 287
Schedule – G 289
Annex-I: Form of Bank Guarantee 289
Annex-II: Form for Guarantee for Advance Payment 293
Schedule - H Contract Price Weightages 297
Schedule - I Drawings 319
Annex-I: List of Drawings 323
Schedule - J Project Completion Schedule 323
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Schedule - K Tests on Completion 325

Schedule - L Completion Certificate 327
Schedule - M Payment Reduction for Non-Compliance 329
Schedule - N Selection of Authority’s Engineer 331
Annex-I: Terms of Reference for Authority’s Engineer 333
Schedule - O Forms of Payment Statements 340
Schedule - P Insurance 343
Schedule-Q Tests on Completion of Maintenance Period 345
Schedule-R Taking Over Certificate 347
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Part I
Preliminary
1
2
Engineering, Procurement and Construction Agreement
THIS AGREEMENT is entered into on this the ……….. day of ………, 20…..
Between
The President of India through the Ministry of Road Transport & Highways,
Government of India represented by:
Director General (Road Development) & Special Secretary, Ministry of Road Transport &
Highways, Transport Bhawan, 1, Parliament Street, New Delhi 110001,(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
<insert name of party>, the selected bidder1 having its registered office at <insert
registered office address of the party>, (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 India] entrusted “Widening to two lane with paved

shoulders from Km 0/000 to Km 79/300 of Kalwakurthy - Kollapur
section of NH-167K in the State of Telangana on Engineering,
Procurement and Construction (EPC) Basis “to the Authority;
B. The Authority resolved to “Widening to two lane with paved shoulders

from Km 0/000 to Km 79/300 of Kalwakurthy - Kollapur section of NH-
167K in the State of Telangana on Engineering, Procurement and
Construction (EPC) Basis” in accordance with the terms and conditions to be
set forth in an agreement to be entered into.
C. The Authority accordingly invited the proposals (the “Request for Proposals” or
“RFP”) from the eligible bidders as per the technical and commercial terms and
conditions prescribed in the RFP for undertaking the Project.
1Refers to the single entity or the lead member of the joint venture, which is the selected bidder under the
RFP.
3
D. After evaluation of the bids received, the Authority accepted the bid of the selected
bidder and issued its Letter of Acceptance No. <insert details> dated <insert date>
(hereinafter called the “LOA”) to the selected bidder for [rehabilitation and
augmentation of the above section of [NH **] at the Contract Price specified
hereinafter, requiring the selected bidder to inter alia:
(i) to give his consent to enter into this Agreement and the enforceability of the
provisions thereof, within 10 (ten) days of the date of issue of LOA;
(ii) submit Performance Security and Additional Performance Security (if any)
as per RFP requirements, and
(iii) execute this Agreement within 30 (thirty) days of the date of issue of LOA.
E. The Contractor has fulfilled the requirements specified in Recital (D) above;
NOW, THEREFORE, in consideration of the foregoing and the respective covenants 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 Parties agree as follows:
4
Article 1
Definitions and Interpretations
1.1 Definitions
(i) 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.
(ii) 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 any supplementary agreement made in accordance with
the provisions contained in this Agreement;
“Applicable Laws” means all laws, brought into force and effect by the GOI or the
State Government including rules, regulations and notifications made thereunder,
and judgements, decrees, injunctions, writs and orders of any court of record,
applicable to this Agreement and the exercise, performance and discharge of the
respective rights and obligations of the Parties hereunder, as may be in force and
effect during the subsistence of this Agreement;
“Applicable Permits” means all clearances, licences, permits, authorisations, no

objection certificates, consents, approvals, and exemptions required to be obtained
or maintained under Applicable Laws in connection with the construction,
5
operation and maintenance of the Project Highway during 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 3 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 authorised in

writing by the Authority to act on its behalf under this Agreement and shall include
any person or persons having authority to exercise any rights or perform and fulfil
any obligations of the Authority under this Agreement;
“Bank” means a 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 the calendar month, which 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 bidder/ Joint venture] in response to the Request for Proposal 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 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; or
6
(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.
“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 (i);
“Change of Scope Request” shall have the meaning set forth in Clause 13.2 (ii);
“Change of Scope Order” shall have the meaning set forth in Clause 13.2 (iv);
“Completion Certificate” shall have the meaning set forth in Clause 12.2;
“Construction” shall have the meaning set forth in Clause 1.2 (f);
“Construction Period” means the period commencing from the Appointed Date and
ending on the date of the Completion Certificate;
“Construction Zone” shall have the meaning set forth in Clause 8.3 (i);
“Contract Price” means the amount specified in Clause 19.1 (i);
“Contractor” shall have the meaning attributed thereto in the array of Parties
hereinabove as set forth in the Recitals;
“Contractor Default” shall have the meaning set forth in Clause 23.1;
“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;
7
(d) “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 Highway as set forth in Schedule-I, and shall include ‘as built’ drawings of
the Project Highway;
“Document” or “Documentation” means documentation in printed or written form,

or in tapes, discs, drawings, computer programmes, writings, reports, photographs,
films, cassettes, or expressed in any other written, electronic, audio or visual form;
“Emergency” means a condition or situation that is likely to endanger the safety or

security of the individuals on or about the Project Highway, including Users thereof,
or which poses an immediate threat of material damage to any of the Project Assets;
“Encumbrances” means, in relation to the Project Highway, any encumbrances such

as mortgage, charge, pledge, lien, hypothecation, security interest, assignment,
privilege or priority of any kind having the effect of security or other such
obligations, and shall include any designation of loss to payees or beneficiaries or
any similar arrangement under any insurance policy pertaining to the Project
Highway, where applicable herein but excluding utilities referred to in Clause 9.1;
“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 3.1 (iii) (b);
“GOI” or “Government” means the Government of India;
8
“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

the Government or the State Government and includes any commission, board,
authority, agency or municipal and other local authority or statutory body including
panchayat under the control of the Government or the State Government, as the
case may be, and having jurisdiction over all or any part of the Project Highway or
the
performance of all or any of the services or obligations of the Contractor under or

pursuant to this Agreement;
“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
insurance 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;
9
“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;
“Joint Venture” means the group of entities which have come together for
implementation of this Project;
“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 Highway;
“LOA” or “Letter of Acceptance” means the letter of acceptance issued by the

Authority as referred to in Recital (D);
“Maintenance” means the maintenance of the Project Highway as set forth in Article
14 for the period specified therein;
“Maintenance Inspection Report” shall have the meaning set forth in Clause 15.2;
“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;
“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 Standards and Specifications for Project
Highways;
“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 Highway;
“Monthly Maintenance Statement shall have the meaning set forth in Clause 19.6;
“MORTH” means the Ministry of Road Transport and Highways or any substitute
thereof dealing with Highways;
10
“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 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 (iii);
“Project” means the construction and maintenance of the Project Highway in

accordance with the provisions of this Agreement, and includes all works, services
and equipment relating to or in respect of the Scope of the Project;
“Project Assets” means all physical and other assets relating to (a) tangible assets
such as civil works and equipment including foundations, embankments,
pavements,
road surface, interchanges, bridges, culverts, road over-bridges, drainage works,

traffic signals, sign boards, kilometre-stones, [toll plaza(s)], electrical systems,
communication systems, rest areas, relief centres, maintenance depots and
administrative offices; and (b) Project Facilities situated on the Site;
“Project Completion Date” means the date on which the Completion Certificate is
issued;
“Project Completion Schedule” means the progressive Project Milestones set forth
in Schedule-J for completion of the Project Highway on or before the Scheduled
Completion Date;
“Project Facilities” means all the amenities and facilities situated on the Site, as
described in Schedule-C;
“Project Highway” means the Site comprising the existing road {, proposed
bypasses and tunnels} forming part of [NH-** from km ** to km **] and all Project
Assets, and its subsequent development and augmentation in accordance with this
Agreement;
“Project Milestone” means the project milestone set forth in Schedule-J;
“Proof Consultant” shall have the meaning set forth in Clause 10.2;
11
“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 ‘C’;
“Retention Money” shall have the meaning set forth in Clause 7.5;
“Right of Way” means 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 Highway in 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 Highway;
“Site” shall have the meaning set forth in Clause 8.1;
“Specifications and Standards” means the specifications and standards relating to

the quality, quantity, capacity and other requirements for the Project Highway, as
set forth in Schedule-D, and any modifications thereof, or additions thereto, as
included in the design and engineering for the Project Highway submitted by the
Contractor to, and expressly approved by, the Authority;
"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;
“Taking Over Certificate” shall have the meaning set forth in Clause 14.10;
12
“Taxes” means any Indian taxes including GST, excise duties, customs duties, value
added tax, sales tax, local taxes, cess and any impost or surcharge of like nature
(whether Central, State or local) on the goods, Materials, equipment and services
incorporated in and forming part of the Project Highway charged, levied or imposed
by any Government Instrumentality, but excluding any interest, penalties and other
sums in relation thereto imposed on any account whatsoever. For the avoidance of
doubt, Taxes shall not include taxes on corporate income;
“Termination” means the expiry or termination of this Agreement;
“Termination Notice” means the communication issued in accordance with this

Agreement by one Party to the other Party terminating this Agreement;
“Termination Payment” means the amount payable by 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;
“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 Highway or
any part thereof in/on any vehicle;
“Valuation of Unpaid works” shall have the meaning set forth in Clause 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 Highway 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.
1.2 Interpretation
(i) 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
13
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” 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 Highway, 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 Delhi are generally open for
business;
14
(k) any reference to month shall mean a reference to a calendar month as per
the Gregorian calendar;
(l) references to any date, period or Project Milestone shall mean and include
such date, period or Project Milestone as may be extended pursuant to this
Agreement;
(m) any reference to any period commencing “from” a specified day or date and
“till” or “until” a specified day or date shall include both such days or dates;
provided that if the last day of any period computed under this Agreement
is not a business day, then the period shall run until the end of the next
business day;
(n) the words importing singular shall include plural and vice versa;
(o) references to any gender shall include the other and the neutral gender;
(p) “lakh” means a hundred thousand (100,000) and “crore” means ten million
(10,000,000);
(q) “indebtedness” shall be construed so as to include any obligation (whether

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

“reorganisation” of a company or corporation shall be construed so as to
include any equivalent or analogous proceedings under the law of the
jurisdiction in which such company or corporation is incorporated or any
jurisdiction in which such company or corporation carries on business
including the seeking of liquidation, winding-up, reorganisation, dissolution,
arrangement, protection or relief of debtors;
(s) save and except as otherwise provided in this Agreement, any reference, at
any time, to any agreement, deed, instrument, licence or document of any
description shall be construed as reference to that agreement, deed,
instrument, licence or other document as amended, varied, supplemented,
modified or suspended at the time of such reference; provided that this
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, authorisation, 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 authorised representative of such Party or the
Authority’s Engineer, as the case may be, in this behalf and not otherwise;
15
(u) the Schedules and Recitals to this Agreement form an integral part of this
Agreement and will be in full force and effect as though they were expressly
set out in the body of this Agreement;
(v) references to Recitals, Articles, Clauses, Sub-clauses or Schedules in this

Agreement shall, except where the context otherwise requires, mean
references to Recitals, Articles, Clauses, Sub-clauses and Schedules of or to
this Agreement, and references to a Paragraph shall, subject to any contrary
indication, be construed as a reference to a Paragraph of this Agreement or
of the Schedule in which such reference appears;
(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.
(ii) 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.
(iii) 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.
(iv) 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
(i) This Agreement, and all other agreements and documents forming part of or
referred to in this Agreement are to be taken as mutually explanatory and, unless
otherwise expressly provided elsewhere in this Agreement, the priority of this
16
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).
(ii) Subject to the provisions of Clause 1.4 (i), 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:
(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 affected without the prior consent of the Authority.
(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
17
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.6
6 This Clause 1.5 may be omitted if the Contractor is not a Joint venture. Even if the Contractor is a
Joint venture, the Authority may, at its discretion, delete this provision.
18
Part II
Scope of Project
19
20
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 Highway 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 Highway in accordance with the provisions of

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

accordance with the provisions of this Agreement and matters incidental
thereto or necessary for the performance of any or all of the obligations of
the Contractor under this Agreement.
21
22
Article 3
Obligations of the Authority
3.1 Obligations of the Authority
(i) 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.
(ii) 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.
(iii) The Authority shall, upon submission of the Performance Security as per the RFP by
the Contractor, shall provide to the Contractor:
(a) No less than 90% (ninety per cent) of the required Right of Way of the
Construction Zone of total length of the Project Highway within a period of
30 (thirty) days from the date of this Agreement, which shall be in
contiguous stretches of length not less than 5 (five) kilometre.
(b) 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 Highway 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, and reimbursement of all the costs and expenses paid by
the Contractor to the railway authorities for and in respect of the road over-
bridges/ under bridges; and7
(c) all environmental clearances as required under Clause 4.3.8
(iv) 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 3.1 (iii) shall entitle
the Contractor to Damages in a sum calculated in accordance with the provisions of
Clause 8.3 of this Agreement and 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 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 2 (two) kilometre for each such road over-bridge/ under-bridge.
7 Clause (b) may be omitted if the Project does not include a road over-bridge/under-bridge.
8 Clause 3.1 (iii) (c) may be suitably modified in the event that all the environmental
clearances for the Project Highway have been received or are not required. It should be
23
clearly stated that all the environmental clearances for the Project Highway have been
received; or such environmental clearances for the Project Highway are not required.
(v) Notwithstanding anything to the contrary contained in this Agreement, the Parties
expressly agree that the aggregate Damages payable under Clauses 3.1 (iv), 8.3 and
9.5 shall not exceed 1% (one 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 Highway.
Both the parties agree that payment of such 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 the final cure for the Contractor against delays of the
Authority, without recourse to any other payments.
(vi) 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
the Contractor in obtaining access to all necessary infrastructure facilities
and utilities, including water and electricity at rates and on terms no less
favourable 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 Highway by any
Government Instrumentality or persons claiming through or under it,
except for reasons of Emergency, national security, law and order or
collection of inter-state taxes;
(d) not do or omit to do any act, deed or thing which may in any manner violate
any 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 4.3, provide reasonable assistance to the Contractor and any
expatriate personnel of the Contractor or its Sub-contractors to obtain the
applicable visas and the requisite work permits for the purposes of
24
discharge by the Contractor or its Sub-contractors of their obligations under

this Agreement and the agreements with the Sub-contractors.
3.2 Maintenance obligations prior to the Appointed Date
The Authority shall, prior to the Appointed Date, maintain the Project Highway, at
its own cost and expense, so that its traffic worthiness and safety are at no time
materially inferior as compared to its condition 10 (ten) days prior to the last date
for submission of the Bid, and in the event of any material deterioration or damage
other than normal wear and tear, undertake repair thereof. For the avoidance of
doubt, the Authority shall undertake only routine maintenance prior to the
Appointed Date, and it shall undertake special repairs only in the event of excessive
deterioration or damage caused due to unforeseen events such as floods or
earthquake.
3.3 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.9
3.4 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 damages to the
Contractor equivalent to 1% of the Contract Price (3% in case of standalone bridge
projects). 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
Highway, including but not limited to any data, designs, drawings, structures,
information, plans, etc. prepared by them for the Highway, to the Authority.
9 Clause 3.3 may be suitably modified in the event that all the environmental clearances for
the Project Highway have been received or are not required. It should be clearly stated that all the
environmental clearances for the Project Highway have been received; or such environmental
clearances for the Project Highway are not required.
25
26
Article 4
Obligations of the Contractor
4.1 Obligations of the Contractor
(i) 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 Highway and observe, fulfil, comply
with and perform all its obligations set out in this Agreement or arising hereunder.
(ii) The Contractor shall comply with all Applicable Laws and Applicable Permits
(including renewals as required) in the performance of its obligations under this
Agreement.
(iii) Subject to the provisions of Clauses 4.1 (i) and 4.1 (ii), the Contractor shall
discharge its obligations in accordance with Good Industry Practice and as a
reasonable and prudent person.
(iv) The Contractor shall remedy any and all loss, defects, or damage to the Project
Highway 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 wilful default or neglect of the Authority.
(v) The Contractor shall remedy any and all loss, defect or damage to the Project
Highway 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.
(vi) The Contractor shall remedy any and all loss or damage to the Project Highway
during the Maintenance Period at the Contractor’s cost, including those stated in
Clause 14.1 (ii), save and except to the extent that any such loss or damage shall
have arisen on account of any wilful default or neglect of the Authority or on
account of a Force Majeure Event.
(vii) 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;
27
(b) procure, as required, the appropriate proprietary rights, licences,

agreements and permissions for Materials, methods, processes and systems
used or incorporated into the Project Highway;
(c) make reasonable efforts to maintain harmony and good industrial relations
among the personnel employed by it or its Sub-contractors in connection
with the performance of its obligations under this Agreement;
(d) ensure and procure that its Sub-contractors comply with all Applicable
Permits and Applicable Laws in the performance by them of any of the
Contractor’s obligations under this Agreement;
(e) not do or omit to do any act, deed or thing which may in any manner violate
any 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 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
Authority’s Engineer and its authorised 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.
(viii) 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.
28
(ix) 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.
(x) 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.
(xi) The Contractor shall perform the Works in conformity with the Project
requirements and other requirements and standards prescribed under or pursuant
to the Agreement.
(xii) The Contractor shall carry out such work incidental and contingent to the original
Scope of the Project to comply with Good Industry Practices.
(xiii) 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.
4.2 Obligations relating to sub-contracts and any other agreements
(i) 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 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. 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 Highway. 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 Highway. The Parties further agree that all obligations and liabilities under
this Agreement for the entire project Highway shall at all times remain with the
Contractor.
29
(ii) In the event any sub-contract for Works, or the aggregate of such sub-contracts
with any Sub-contractor, exceeds 5% (five 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 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.
(iii) In the event any sub-contract referred to in Clause 4.2 (ii) relates to a Sub-
contractor who has, over the preceding 3 (three) years, not undertaken at least one
work of a similar nature with a contract value exceeding 40% (forty per cent) of the
value of the sub-contract to be awarded hereunder, and received payments in
respect thereof for an amount equal to at least such 40% (forty 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.
(iv) It is expressly agreed that the Contractor shall, at all times, be responsible and liable
for all its obligations under this Agreement notwithstanding anything contained in
the agreements with its Sub-contractors or any other agreement that may be
entered into by the Contractor, and no default under any such agreement shall
excuse the Contractor from its obligations or liability 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.
4.3 Employment of foreign nationals
The Contractor acknowledges, agrees and undertakes that employment of foreign

personnel by the Contractor and/or its Sub-contractors and their subcontractors
shall be subject to grant of requisite regulatory permits and approvals including
employment/ residential visas and work permits, if any required, and the
obligation to apply for and obtain the same shall always 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 a Force Majeure Event,
and shall not in any manner excuse the Contractor from the performance and
discharge it of its obligations and liabilities under this Agreement, and the
30
Contractor’s liabilities hereunder shall remain unaffected by such failure, refusal or

inability.
4.4 Contractor’s personnel
(i) 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 centres of the 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 centres. The trainees shall be paid stipend by the
Contractor (subject to a maximum of Rs. 15,000/- per person) on the basis of
minimum wages to compensate for loss of income during the training period.
(ii) 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.
(iii) 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 4.4
(ii). 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.
4.5 Advertisement on Project Highway
The Project Highway or any part thereof shall not be used in any manner to
advertise any commercial product or services.
4.6 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 wilful default or
gross neglect of the Authority.
31
4.7 Electricity, water and other services - The Contractor shall be responsible for
procuring of all utilities as may be required, including without limitation, adequate
power, water and other services.
4.8 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.
4.9 Co-ordination of the Works
(i) 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.
(ii) 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.
32
4.10 Environmental Measures
(i) 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
measures which are required to be taken to ensure such compliance.
4.11 Site Data
(i) 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 sub-
surface 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.
4.12 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.
4.13 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, wreckage, rubbish and temporary Works,
33
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
Contractor shall promptly clear away and remove from the Site any wreckage,
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.
4.14 Obligations relating to Local Content
The Contractor [Class-I Local Supplier/ Class-II Local Supplier/ Non-Local Supplier]
undertakes to ensure minimum local content in the project Highway of at least
[50% / 20%] duly complying with provisions of Department for the promotion of
the industry and Internal Trade, Ministry of Commerce and Industry, Government
of India order No. P-45021/2/2017-PP (BE-II) dated September 16, 2020, as
amended or modified till bid due date and the provisions under Rule 144(xi) of
GFR, 2017.
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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 organised and validly existing under the laws of India, and has full
power and authority to execute and perform its obligations under this
Agreement and to carry out the transactions contemplated hereby;
(b) it has taken all necessary corporate and/or other actions under Applicable
Laws to authorise the execution and delivery of this Agreement and to
validly exercise its rights and perform its obligations under this Agreement;
(c) this Agreement constitutes its legal, valid and binding obligation,
enforceable against it in accordance with the terms hereof, and its
obligations under this Agreement will be legally valid, binding and
enforceable 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 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
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;
35
(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;
(l) 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;
(m) 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
36
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.
(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
37
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 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
one computer to another computer that attaches itself to the operating
system it enters) or self-destruct capability.
38
(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 employees or Directors of the
Contractor.
(viii) Till date the services of the Contractor has 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 authorise the
execution, delivery and performance of this Agreement;
(c) it has the financial standing and capacity to perform its obligations under
this Agreement;
(d) this Agreement constitutes a legal, valid and binding obligation enforceable
against it in accordance with the terms hereof;
(e) it has no knowledge of any violation or default with respect to any order,
writ, injunction or any decree of any court or any legally binding order of
any Government Instrumentality which may result in any material adverse
effect on the 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 Highway.
39
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.
40
Article 6
Disclaimer
6.1 Disclaimer
(i) 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, physical
qualities of ground, subsoil and geology, traffic volumes, suitability and availability
of access routes to the Site and all information provided by the Authority or
obtained, procured or gathered otherwise, and has determined to its satisfaction
the accuracy or otherwise thereof and the nature and extent of difficulties, risks and
hazards as are likely to arise or may be faced by it in the course of performance of
its obligations hereunder. Save as provided in Clause 3.1 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.
(ii) The Contractor acknowledges and hereby accepts to have satisfied itself as to the
correctness and sufficiency of the Contract Price.
(iii) 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 (i) 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.
(iv) The Parties agree that any mistake or error in or relating to any of the matters set
forth in Clause 6.1 (i) above shall not vitiate this Agreement or render it voidable.
(v) 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 (i) above, that Party shall immediately notify
the other Party, specifying the mistake or error.
(vi) 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.
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42
Part III
Construction and Maintenance
43
44
Article 7
Performance Security
7.1 Performance Security
(i) (A) Within 30 (thirty) days of receipt of Letter of Acceptance, the selected
Bidder shall furnish to the Authority an irrevocable and unconditional guarantee
from a Bank in the form set forth in Annex-I of Schedule-G (the “Performance
Security”) for an amount equal to 3% (three percent) of its Bid Price. In case of bids
mentioned below, the Selected Bidder, along with the Performance Security, shall
also furnish to the Authority an irrevocable and unconditional guarantee from a
Bank in the same form given at Annex-I of Schedule-G. towards an Additional
Performance Security (the “Additional Performance Security”) for an amount
calculated as under:
(a) lf the Bid price offered by the selected bidder is lower than 20% of the
estimated project cost/cost put to tender, the additional performance
security shall be calculated @ 20% of the difference in the (i) Estimated
Project Cost (as mentioned in RFP)-20% of the Estimated Project Cost and
(ii) the Bid Price offered by the selected Bidder .
(b) Maximum limit of additional performance security shall be limited to 3% of

the Bid price offered by the selected bidder
(c) This Additional Performance Security shall be treated as part of the

Performance Security.
(B) The Performance Security shall be valid until 60(sixty) days after the
Defects Liability Period. The Additional Performance Security shall be valid until 28
(twenty eight) days after Project Completion Date.
(ii) The Selected Bidder has the option to provide 50% of the Performance Security and
50% of the Additional Performance Security, if any, within 30 (thirty) days of
receipt of Letter of Acceptance, in any case before signing of the Contract
Agreement and the remaining Performance Security and Additional Performance
Security, if any, shall be submitted within 30 days of signing of this agreement.
(iii) In the event the Selected Bidder fails to provide the remaining Performance
Security and Additional Performance Security, if any, as prescribed herein, it may
seek extension of time for a further period upto 60 days by paying the Damages
upfront along with the request letter seeking the extension. The Damages shall be
the sum calculated at the rate of 0.01% (zero point zero one per cent) of the Bid
Price offered by the Selected Bidder for each day until the Performance Security
and Additional Performance Security, if any, is provided in full as prescribed herein.
45
The damages at full rate as given above shall be applicable even if a part of the
Performance Security and the Additional Performance Security is provided.
(iv) For avoidance of any doubt, in case of failure of submission of Performance Security
and Additional Performance Security, if any, within the additional 60 days time
period, the award shall be deemed to be cancelled/ withdrawn and the Bid Security
shall be encashed, and the proceeds thereof appropriated by the Authority.
Thereupon all rights, privileges, claims and entitlements of the Contractor under or
arising out of the Award shall be deemed to have been waived by, and to have
ceased with the concurrence of the Contractor, and the Award shall be deemed to
have been withdrawn 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
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
(i) 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.
(ii) 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 been titled 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.
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7.4. Release of Performance Security
(i) The Authority shall return the Performance Security to the Contractor within 60
(sixty) days of the expiry of the Maintenance Period or the Defects Liability Period,
whichever is later, under this Agreement. 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.
(ii) 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.
(iii) The Authority shall be liable to pay interest @ 9% (nine per cent) per annum for
any delay in the return of Performance Security and Additional Performance
Security, if any, beyond the period prescribed above for the period of delay.
7.5. Retention Money1
(i) From every payment for Works due to the Contractor in accordance with the
provisions of Clause 19.5, the Authority shall deduct 6% (six percent) 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 exceed5% (five per cent) of the
Contract Price.
(ii) 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 appropriate the
relevant amounts from the Retention Money as Damages for such Contractor’s
Default.
(iii) Within15(fifteen)days of the date of issue of the Completion Certificate, the

Authority shall refund the balance of Retention Money remaining with the
Authority after adjusting the amounts appropriated under the provisions of
Clause7.5(ii).
(iv) The Parties agree that in the event of Termination of this Agreement, the Retention
Money specified in this Clause 7.5shall be treated as if they are Performance
Security and shall be reckoned as such for the purposes of Termination Payment
under Clause 23.6.
1The Authority may, in its discretion, omit Clause 7.5 and in lieu thereof increase the
Performance Security under Clause 7.1 from 7.5% (seven point five per cent) to 10% (ten
per cent).
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48
Article 8
Right of Way
8.1 The Site
The site of the Project Highway (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 finalised by the Authority, free from all encroachments and
encumbrances, and free access thereto for the execution of this Agreement;
and
(b) obtaining licences and permits for environment clearance for the Project
Highway.
8.2 Procurement of the Site
(i) The Authority Representative, the Contractor and Authority’s Engineer shall, within
10 (ten) 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
otherimmovable property on or attached to the Site (hereinafter referred to as the
“Handover Memorandum”). Subject to the provisions of Clause 8.2 (iii), the
Handover 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 a 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.
(ii) Whenever the Authority is ready to hand over any part or parts of the Site included
in the Appendix, it shall inform the Contractor, by notice, of the proposed date and
time such of hand over. 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
49
attached to the Site so handed over. The 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 a 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.
(iii) 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, and in the event of delay for any reason other than Force
Majeure or breach of this Agreement by the Contractor, it shall pay to the
Contractor, Damages in a sum calculated in accordance with Clause 8.3. The
Contractor agrees that it shall not be entitled to claim any other damages on
account of any such delay by the Authority.
(iv) 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 (i).
(v) The Authority further acknowledges and agrees that prior to the Appointed Date, it
shall have procured issuance of the statutory notification under Applicable Laws for
vesting of all the land comprising the Project in the Authority and has taken
possession of area for Construction Zone for at least 90% (ninety per cent) of the
total length of the Project Highway. The Parties also acknowledge and agree that
the conditions specified in this Clause 8.2 (iii) shall not be modified or waived by
either Party.
(vi) For the avoidance of doubt, the Parties expressly agree that the Appendix shall in
no event contain sections of the Project Highway the cumulative length of which
exceeds 10% (ten percent) of the total length of the Project Highway.
(vii) Pursuant to signing of Handover Memorandum under clause 8.2 (i), Contractor
shall submit to the Authority’s Engineer, a monthly land possession report till
expiry of 180 (one hundred and eighty) days from Appointed Date, in respect of
those parts of the site to which vacant access and right of way was not given to the
contractor and included in Appendix to the memorandum signed under clause 8.2
(i), duly specifying the part of the site, if any, for which the right of way is yet to be
handed over.
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8.3 Damages for delay in handing over the Site
(i) In the event the Right of Way to any part of the Site is not provided by the Authority
on or before the date(s) specified in Clause 8.2 for any reason other than Force
Majeure or breach of this Agreement by the Contractor, the Authority shall pay
Damages to the Contractor a sum calculated in accordance with the following
formula for and in respect of those parts of the Site to which the Right of Way has
not been provided:
Amount of Damages in Rs. per day per metre = 0.05 × 𝐶 × 1⁄𝐿 × 1⁄𝑁
Where,
C = the Contract Price;
L = length of the Project Highway in metres; and
N = Completion period in days (Appointed Date to Scheduled Completion Date)
In the event that any Damages are due and payable to the Contractor under the
provisions of this Clause 8.3 (i) for delay in providing the Right of Way, the
Contractor shall, subject to the provisions of Clause 10.5, be entitled to Time
Extension equal to the period for which the Damages have become due and payable
under this Clause 8.3 (i), save and except that:
(a) if any delays involve time overlaps, the overlaps shall not be additive; and
(b) such Time Extension shall be restricted only to the Works which are
affected by the delay in providing the Right of Way.
For the avoidance of doubt, the Parties expressly agree that the Damages specified
hereunder and the Time Extension specified in Clause 10.5 shall be restricted only
to failure of the Authority to provide the Right of Way for and in respect of the
“Construction Zone” which shall comprise the following components:
▪ Main in carriageway
▪ Median (for 4 lane carriageway or more)
▪ Paved and earthen shoulders
▪ Area for Structures including ROBs/RUBs.
▪ Safety measures including Roadside Drains and Furniture.
▪ A parallel working space for accommodating slopes/retaining structures etc.
(ii) Notwithstanding anything to the contrary contained in this Agreement, the

Contractor expressly agrees that Works on all parts of the Site for which Right of
51
Way of Construction Zone is granted on the Appointed Date, or with respect to the
parts of the Site provided in Schedule-A, no later than the date(s) specified therein,
as the case may be, shall be completed before the Scheduled Completion Date and
shall not qualify for any Time Extension under the provisions of Clause 8.3 (iii).
(iii) (a) Notwithstanding anything to the contrary contained in this Agreement, unless
covered under the deemed de-scoping in terms of sub-clause 8.3 (iii) (b), the
Authority may at any time withdraw any Works forming part of this Agreement,
subject to such Works not exceeding an aggregate value, such value to be
determined in accordance with Schedule-H, equal to 10 (ten) percent of the
Contract Price.
(b) Provided that if any Works cannot be undertaken within the municipal
limits of a town or within any area falling in a reserved forest or wildlife sanctuary
or the stretches where vacant access and Right of Way could not be handed over, as
the case may be, because the requisite clearances or approvals or affected land
parcels for commencing construction of Works therein have not been given within
180 (one hundred and eighty) days of the Appointed date, the affected Works shall
be deemed to be withdrawn under the provisions of this Clause 8.3.3. Such Works
shall not be computed for the purposes of the aforesaid ceiling of 10% (ten per
cent) hereunder.
(c) Provided further that in case such stretches (as mentioned in Sub-Clause (b)
above) can be handed over to the Contractor before the expiry of the original
Scheduled Construction Period of the Project Highway, and the Contractor agrees to
take up the work, the same may be allowed to be executed by him with
corresponding Extension of Time, subject to the condition that the Contractor shall
not be entitled to raise any claims on account of prolongation costs in this behalf.
(iv) In the event of withdrawal of Works under Clause 8.3 (iii) (a), the Contract Price
shall be reduced by an amount equal to the percent of the value of the works
withdrawn as mentioned in the Table below and the Contractor shall not be entitled
to any other compensation or Damages for the withdrawal of Works
Value of the works Percentage of value of works to be

withdrawn reduced from Contract Price
Upto Rs. 100 Crore 90%
Rs. 90 Crore plus 95% of the amount
More than Rs. 100 Crore
greater than Rs. 100 Crore
Provided that If any Works are withdrawn after commencement of the Construction
of such works, the Authority shall pay to the Contractor 110% (one hundred and
ten per cent) of the fair value of the work done, as assessed by the Authority
Engineer.
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The parties expressly agree that the value of the Works withdrawn shall be
determined from the details available in Schedule-H. In the event that it is
impossible to determine the value from Schedule-H, then the value shall be
determined in accordance with the provisions of Clause 13.2 (iii).
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 because 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, 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 thereon. 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 Highway and the performance of its obligations under this
Agreement.
8.7 Access to the Authority and the Authority’s Engineer
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(i) 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.
(ii) 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.
54
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, subject to Applicable Laws and with assistance of the
Authority, undertake shifting of any utility (including electric lines, water pipes and
telephone cables), to an appropriate location or alignment, if such utility or
obstruction adversely affected the execution of works or maintenance of the project
Highway in accordance with this Agreement, as per the scope given in Schedule B
and in accordance with applicable standards and specifications of concerned utility
owning entity. The cost of shifting of such utilities indicated in Schedule B is
payable to the Contractor as per Schedule H. Cost of shifting utilities not included in
the Schedule B, if any, shall be treated as Change of Scope. The Authority will
provide assistance to the Contractor for obtaining the estimates for shifting of such
utilities from the entity owning such electric lines, water pipes or telephone cables,
as the case may be. The Contractor shall execute such utility shifting works under
the supervision of utility owning agency and Authority Engineer (AE) in accordance
with the provision of agreement. The supervision charges only shall be paid by the
Authority to the Utility Owning Entity. In the event of any delay in shifting thereof,
the Contractor shall be responsible for failure to perform any of its obligations here
under if such failure is not as a direct consequence of delay on the part of the entity
owning such electric lines, water pipes or telephone cables, as the case may be.
The dismantled material/scrap of existing Utility to be shifted dismantled shall

belong to the Contractor who would be free to dispose-off the dismantled materials
as deemed fit by them.
The work of shifting of utilities can be taken up by the Contractor any time after
signing of the Agreement.
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9.3 New utilities
(i) 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, electricity 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 Highway in accordance with this Agreement and any damage caused by
such use shall be restored forthwith at the cost of the Authority.
(ii) The Authority may, by notice, require the Contractor to connect any adjoining road
to the Project Highway, and the connecting portion thereof falling within the Site
shall be constructed by the Contractor at the Authority’s cost in accordance with
Article 10.
(iii) The Authority may by notice require the Contractor to connect, through a paved
road, any adjoining service station, hotel, motel or any other public facility or
amenity to the Project Highway, whereupon the connecting portion thereof that
falls within the Site shall be constructed by the Contractor on payment of the cost.
The cost to be paid by the Authority to the Contractor shall be determined by the
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.
(iv) In the event 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
The Authority shall assist the Contractor in obtaining the Applicable Permits for
felling of 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 Highway. The Contractor shall fell these trees as per the
Permits obtained. The cost of such felling shall be borne by the Authority and in the
event of any delay in felling thereof for reasons beyond the control of the
Contractor; it shall be excused for failure to perform any of its obligations
hereunder if such failure is a direct consequence of delay in the felling of trees. The
Parties hereto agree that the felled trees shall be deemed to be owned by the
56
Authority and shall be disposed in such manner and subject to such conditions as
the Authority may in its sole discretion deem appropriate. 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 Authority within the time
specified in the Agreement.
9.5 Dismantling of structures
The Contractor shall 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 land owners and the lands were handed
over to the Contractor as per Schedule B-I. The Contractor shall, 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. In the event of any delay in dismantling of
structures thereof for reasons beyond the control of the Contractor, the Contractor
shall be entitled to Damages in a sum calculated in accordance with the formula
specified in Clause 8.3 (i) for the period of delay, and to the Time Extension in
accordance with Clause 10.5 for and in respect of the part(s) of the Works affected
by such delay; provided that if the delays involve any time overlaps, the overlaps
shall not be additive.
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 Highway 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 Highway shall be undertaken during the
development period.
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58
Article 10
Design and Construction of the Project Highway
10.1 Obligations prior to commencement of Works
(i) Within 20 (twenty) days of the Appointed Date, the Contractor shall:
(a) appoint its representative, duly authorised 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 Highway under and in accordance with the Applicable Laws and
Applicable Permits.
(ii) The Authority shall, 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.
(iii) 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:
(a) Part I: Contractor’s organisation for the Project, the general methods and
arrangements for design and construction, environmental management
plan, Quality Assurance Plan including design quality plan, traffic
management and safety plan covering safety of users and workers during
construction (including use of ‘ROBOTS’ for diversion and control of traffic),
Contractor’s key personnel and equipment.
(b) 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:
i. the order in which the Contractor intends to carry out the Works,
including the anticipated timing of design and stages of Works;
59
ii. the periods for reviews under Clause 10.2;
iii. the sequence and timing of inspections and tests specified in this
Agreement; and
iv. 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.
(c) Part III: Monthly cash flow forecast.
(iv) The Contractor shall compute, on the basis of the Drawings prepared in accordance
with Clause 10.2 (iv), 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.
(v) The Contractor shall appoint a safety consultant (the “Safety Consultant”) to carry
out a safety audit at the design stage of the Project Highway 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 (3) names of qualified
and experienced firms from which the Authority may choose one (1) to be the
Safety 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
Contractor shall propose to the Authority a revised panel of three (3) names from
the firms empanelled as safety 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 the key personnel of the Safety Consultant
who shall have adequate experience and qualifications in safety audit of the
highway 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.
(vi) The safety audit pursuant to Clause 10.1 (v) 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
60
of the Project Highway 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
(i) 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 Authority’s Engineer.
(ii) The Contractor shall appoint a proof check consultant (the “Proof Consultant”) after
proposing to the Authority a panel of three (3) names of qualified and experienced
firms from whom the Authority may choose one (1) 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 Contractor shall propose
to the Authority a revised panel of three (3) names from the firms empanelled 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 (2) 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.
(iii) The Proof Consultant shall:
(a) evolve a systems approach with the Design Director so as to minimise 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.
(iv) In respect of the Contractor’s obligations with respect to the design and Drawings
of the Project Highway as 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,
61
three (3) 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 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
Contractor with particular reference to their conformity or otherwise with
the Scope of the Project and the Specifications and Standards. Provided,
however that in case of a major bridge or structure, the aforesaid period of
15 (fifteen) days may be extended up to 30 (thirty) days;
(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 (iv). If the Contractor disputes any decision, direction or determination
of the Authority’s Engineer hereunder, the Dispute shall be 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 approval 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
62
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
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.
(v) Any cost or delay in construction arising from review/approval by the Authority’s
Engineer shall be borne by the Contractor.
(vi) 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 approval of
the Authority’s Engineer thereon as communicated pursuant to the provisions of
sub-Clause (c) & (d) of Clause 10.2 (iv). 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.
(vii) 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 or in such other medium as may be
acceptable to the Authority, reflecting the Project Highway as actually designed,
engineered and constructed, including an as-built survey illustrating the layout of
the Project Highway and setback lines, if any, of the buildings and structures
forming part of Project Facilities.
10.3 Construction of the Project Highway
(i) The Contractor shall construct the Project Highway as specified in Schedule- B and
Schedule-C, and in conformity with the Specifications and Standards set forth in
Schedule-D. The Contractor shall be responsible for the correct positioning of all
parts of the Works, and shall rectify any error in the positions, levels, dimensions or
alignment of the Works. The [730th (Seven Hundred and Thirtieth) day] from
the Appointed Date shall be the scheduled completion date (the “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.
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(ii) The Contractor shall construct the Project Highway 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 Highway 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 the
Project Highway 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 (ii) shall be refunded by the Authority to the Contractor, but
without any interest thereon.
The Parties agree that for determining achievement or delays in completion of the
Project Milestones or the Project on the due date, the works affected due to delay in
providing the site for which time extension has been granted beyond the Scheduled
Completion Date will be excluded. For example on the due date to achieve the
Project Milestone-I (i.e., Stage Payments of 10% (ten percent) of Contract Price on
180th (one hundred and eighty) day from the Appointed Date), if 5% (five percent)
of the project length corresponding to the Project Milestone-I is not handed over or
lately handed over resulting in the extension of completion of this 5% (five percent)
length beyond Scheduled Completion Date, Stage Payment of 10% X 0.95 = 9.5%
only is to be achieved by 180th (one hundred and eighty) day.
For the avoidance of doubt, it is agreed that recovery of Damages under this Clause
10.3 (ii) 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 (ii).
(iii) 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 (ii) shall not exceed 10% (ten percent) of the Contract Price. If the damages
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
64
terminate this Agreement by issuing a Termination Notice in accordance with the

provisions of Clause 23.1 (ii).
(iv) 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 during Construction Period
(i) During the Construction Period, the Contractor shall maintain, at its cost, the
existing lane(s) of the Project Highway so that the traffic worthiness and safety
thereof are at no time materially inferior as compared to their condition 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 Highway.
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.
(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
(i) 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 of Construction Zone, environmental

clearances or approval of railway authorities, specified in Clause 3.1 (iv);
65
(b) Change of Scope (unless an adjustment to the Scheduled Completion Date

has been agreed under Article 13);
(c) occurrence of a Force Majeure Event;
(d) any delay, impediment or prevention caused by or attributable to the

Authority, the Authority's personnel or the Authority's other contractors on
the Site; and
(e) any other cause or delay which entitles the Contractor to Time Extension in
accordance with the provisions of this Agreement.
(ii) The Contractor shall, no later than 15 (fifteen) business days from the occurrence of
an event or circumstance specified in Clause 10.5 (i), 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.
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.
(iii) On the failure of the Contractor to issue to the Authority’s Engineer a notice in
accordance with the provisions of Clause 10.5 (ii) 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 (iii), the Authority
shall be discharged from all liability in connection with the claim.
(iv) The Authority’s Engineer shall, on receipt of the claim in accordance with the
provisions of Clause 10.5 (ii), 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.
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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.
(v) 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
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 (iv) within a period of 30
(thirty) 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 endeavour to complete the balance work
expeditiously and shall pay Damages to the Authority in accordance with the
provisions of Clause 10.3 (ii) 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 Highway 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, if any.
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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
(i) The Contractor shall establish a quality control mechanism to ensure compliance
with the provisions of this Agreement (the “Quality Assurance Plan” or “QAP”).
(ii) 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) organisation, 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 and Good Industry Practice; and
(c) internal quality audit system.
The Authority’s Engineer shall convey its approval 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.
(iii) 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.
(iv) The cost of testing of Construction, Materials and workmanship under this Article
11 shall be borne by the Contractor.
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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 and consent 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 consent 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 authorised by the Authority in this behalf may
inspect and review the progress and quality of the construction of Project Highway
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
(i) 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.
(ii) 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 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.
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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) copies for that month of quality assurance documents, test results and
certificates;
(g) safety statistics, accident data collection including details of any hazardous
incidents and activities relating to environmental aspects and public
relations;
(h) 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;
(i) details of any unresolved disputes or claims, in relation to the Project;
(j) details of any revision to the cash flow estimate, together with a copy of the
revised cash flow estimate;
(k) status of various Applicable Permits and compliance of conditions therein;

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

whether qualitatively or quantitatively;
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(p) any Material Adverse Effect;
(q) declaration towards compliance with Applicable Laws including but not
limited to environmental and labour legislations;
(r) declaration specifying compliance with all Manuals provided to the

Contractor; and
(s) any change in the flow of traffic in the existing Project Highway.
11.8 Inspection
(i) 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.
(ii) 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.
(iii) 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
(i) 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, 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.
(ii) 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 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
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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
(i) 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
Highway, 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.
(ii) If the Contractor fails to comply with the instructions issued by the Authority’s
Engineer under Clause 11.13 (i), 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 (ii), 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 Highway 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
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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 Highway.
11.16 Video recording
During the Construction Period, the Contractor shall provide to the Authority for
every calendar quarter, a video recording, which will be compiled into a 3 (three)-
hour compact disc or digital video disc, as the case may be, covering the status and
progress of 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.
11.17 Suspension of unsafe Construction Works
(i) 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.
(ii) The Contractor shall, pursuant to the notice under Clause 11.17 (i), 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
maybe revoked. Upon receiving the recommendations 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.
(iii) 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.
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(iv) 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
(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
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classes of labour employed by the Contractor from time to time for the
Works. The Contractor shall, in its returns certify that all 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
Sub-Sub-Clause 9.2 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 the running account bills of the
Contractor under this Agreement.
(iii) Persons in the Service of Others
The Contractor shall not recruit, or attempt to recruit from amongst 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 12.4, 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
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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
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 neighbourhood of the
Works.
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Article 12
Completion Certificate
12.1 Tests on Completion
(i) At least 30 (thirty) days prior to the likely completion of the Project Highway, or a
Section thereof, the Contractor shall notify the Authority’s Engineer of its intent to
subject the Project Highway or a Section thereof, to Tests. The date and time of each
of the Tests shall be determined by the 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) days’ notice
to the Authority’s Engineer.
(ii) 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 Highway 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 Highway or Section or any part thereof, does not meet the Specifications
and Standards, it shall have the right to suspend or delay such Test and require the
Contractor to remedy and rectify the 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 Highway
or Section thereof with the Specifications and Standards.
12.2 Completion Certificate
(i) Upon completion of all Works forming part of the Project Highway, 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 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”).
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(ii) 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.
(iii) 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 Highway shall vest in the Authority.
12.3 Rescheduling of Tests
If the Authority’s Engineer certifies to the Authority and the Contractor that it is
unable to issue the Completion 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.
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Article 13
Change of Scope
13.1 Change of Scope
(i) 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 shall submit his
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.
(ii) 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 Highway, subject to the condition that it shall not
entail any claims (e.g. Extension of Time/ Prolongation related claims), against the
Authority.
(iii) The 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
(iii); 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.
13.2 Procedure for Change of Scope
(i) 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 thereunder (the “Change of
Scope Notice”). The Contractor shall submit a detailed proposal as per Clause 13.2
(iii) within 15 days from the receipt of Change of Scope Notice.
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(ii) 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 (iii) at its own cost and shall submit to the Authority to
consider such Change of Scope (the “Change of Scope Request”).
(iii) 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-up of the quantities, unit rates 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 Highway.
For the avoidance of doubt, the Parties expressly agree that, subject to the
provisions of Clause 13.4 (ii), the Contract Price shall be increased or
decreased, as the case may be, on account of any such Change of Scope.
(iv) The parties agree that costs and time for implementation of the proposed Change of
Scope shall be determined as per the following:
(a) For works where Schedule of Rates (SOR) of concerned circle of State’s
Public Works Department are applicable at the Base Date are available, the
same shall be applicable for determination of costs. In case of non-
availability of Schedule of Rates at the Base Date, the available Schedule of
Rates shall be applied by updating the same based on WPI. In case the
Contract Price is lower/ higher than the Estimated Project Cost as per RFP,
then the SOR rates shall be reduced/ increased in the same proportion
accordingly.
(b) For item of Works not included in Schedule of Rates as mentioned in sub-
para(a) of Clause 13.2 (iv) above, the cost of same shall be derived on the
basis of MORTH Standard Data Book and the 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
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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
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.
(v) Upon consideration of the detailed proposal submitted by the Contractor under the
Clause 13.2 (iii), 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.
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(vi) 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
(i) 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 Emergency.
(ii) The total value of all Change of Scope Orders shall not exceed 10% (ten per cent) of
the Contract Price.
(iii) 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, the same 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
(i) 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 or agency on the basis of open competitive bidding. 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 Defect Liability Period of work by
other person or agency during the remaining period of this agreement without any
extra payment.
(ii) 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 minimises
the disruption in operation of the Project Highway. 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.
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Article 14
Maintenance
14.1 Maintenance obligations of the Contractor
(i) The Contractor shall maintain the Project Highway for a period of 5 years
Corresponding to the Defects Liability Period or up to the date of appointed day
declared by the Authority for the main work i.e., four laning of the reach whichever
is earlier, 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; 0.50%of
the Contract Price each for the second, third and fourth year; and 1% of the
Contract Price for the fifth year
(b) For rigid pavement with 10 years Maintenance Period including structures:
0.25% of the Contract Price each for the first, second and third year, 0.5% of
the Contract Price each for fourth, fifth, sixth and seventh year, and 0.75%
of the Contract Price each for eighth, ninth and tenth year- DELETED
(c) For flexible perpetual pavement with 10 years maintenance period

including structures: no maintenance charges shall be paid for the first year;
0.5% of the Contract Price each for the second, third and fourth year; 0.75%
of the Contract 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(iii). After laying of the renewal layer, the Contractor shall
be paid @ 0.5% of the original Contract Price each for the remaining years
till the end of maintenance period- DELETED
(d) For stand-alone Bridge/ Tunnel works: the contractor shall be paid @
0.25% of the Contract Price each for the first five years and @ 0.50% of the
Contract Price each for the remaining period of five years.- DELETED
Above amount for the performance of Contractors’ Maintenance obligations shall

be, inclusive of all taxes. The amount payable for maintenance shall be adjusted 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
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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.
(ii) 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
Highway;
(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, except the infrastructure being used by
the Contractor for its own use, shall be borne by the Authority;
(c) undertaking repairs to structures;
(d) informing the Authority of any unauthorised use of the Project Highway;
(e) informing the Authority of any encroachments on the Project Highway; and
(f) operation and maintenance of all communication, patrolling, and

administrative systems necessary for the efficient maintenance of the
Project Highway in accordance with the provisions of this Agreement.
(iii) 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 wilful default or neglect of the Authority or a Force
Majeure Event.
(iv) The Contractor shall remove promptly from the Project Highway any waste
materials (including hazardous materials and waste water), rubbish and other
debris (including, without limitation, accident debris) and keep the Project
Highway in a clean, tidy and orderly condition, and in conformity with the
Applicable Laws, Applicable Permits and Good Industry Practice.
14.2 Maintenance Requirements
The Contractor shall ensure and procure that at all times during the Maintenance
Period, the Project Highway conforms to the maintenance requirements set forth in
Schedule-E (the “Maintenance Requirements”).
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14.3 Maintenance Programme
(i) 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
(i) 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.
(ii) The Contractor shall maintain and operate a round-the-clock vehicle rescue post
with 1 (one) mobile crane having the capacity to lift a truck with a Gross Vehicle
Weight of 30,000 (thirty thousand) kilograms; and such post shall be located at
[****]. The Contractor shall promptly remove any damaged vehicles and debris
from the Project Highway to enable safe movement of traffic and shall report all
accidents to the police forthwith.
14.5 Lane closure
(i) The Contractor shall not close any lane of the Project Highway 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.
(ii) Upon receiving the permission pursuant to Clause 14.5 (i), 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
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shall, in the event of any delay in re-opening such lane, for every stretch of 250 (two
hundred and fifty) metres, 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 Highway 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
(i) 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 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.
(ii) 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 Highway or
any part thereof in conformity with the Maintenance Requirements, the
Maintenance Manual or the Maintenance Programme, as the case may be, and fails
to commence remedial works within 15 (fifteen) days of receipt of the Maintenance
Inspection Report 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 Highway
Save and except as otherwise expressly provided in this Agreement, in the event
that the Project Highway or any part thereof suffers any loss or damage during the
Maintenance from any cause attributable to the Contractor, the Contractor shall, at
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its cost and expense, rectify and remedy such loss or damage forthwith so that the
Project Highway conforms to the provisions of this Agreement.
14.9 Overriding powers of the Authority
(i) 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 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.
(ii) In the event that the Contractor, upon notice under Clause 14.9 (i), fails to rectify or
remove any hardship or danger within a reasonable period, the Authority may
exercise overriding powers under this Clause 14.9 (ii) 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.
(iii) 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 Highway 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 (iii),
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 (i) having been expired and
Authority’s Engineer determining the Tests on Completion of Maintenance to be
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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
(i) The Authority’s Engineer shall undertake regular inspections to evaluate

continuously the compliance with the Maintenance Requirements.
(ii) 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:
SP35. 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
(i) The Authority’s Engineer may inspect the Project Highway 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.
(ii) After the Contractor submits to the Authority’s Engineer the Monthly Maintenance
Statement for the Project Highway 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.
(iii) 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
calculate the amount of reduction in payment in accordance with the formula
specified in Schedule-M.
(iv) 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.
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15.3 Tests
For determining that the Project Highway 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’ 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 Highway relating to the
safety and security of the Users and Project Highway. A monthly summary of such
reports shall also be sent within 3 (three) business days of the closing of month. For
the purposes of this Clause 15.4, accidents and unusual occurrences on the Project
Highway shall include:
(a) accident, death or severe injury to any person;
(b) damaged or dislodged fixed equipment;
(c) flooding of Project Highway; and
(d) any other unusual occurrence.
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Article 16
Traffic Regulation
16.1 Traffic regulation by the Contractor
(i) The Contractor shall take all the required measures and make arrangements for the
safety of Users during the Construction and Maintenance of the Project Highway 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.
(ii) All works shall be carried out in a manner creating least interference to traffic
passing through the Project Highway or a Section thereof. In sections where
construction or maintenance Works on the carriageway are taken up, the
Contractor shall ensure that proper passage is provided for the traffic. Where it is
not possible or safe to allow traffic on part width of the carriageway, a temporary
diversion of proper specifications shall be constructed by the Contractor at its own
cost. ‘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
(i) The Contractor shall be responsible for all the Defects and deficiencies, except usual
wear and tear in the Project Highway 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;- DELETED
(c) 10 (ten) years from the date of completion in case of road being constructed
with flexible pavement using perpetual design;-DELETED
(d) 10 (ten) years from the date of completion in case of all stand-alone
structures, e.g. Major Bridges/ and Tunnels;- DELETED
(e) 10 (ten) years from the date of completion for the stretches where new
technology/ material has been/ is proposed to be used.- DELETED
(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.- DELETED
The Defects Liability Period shall commence from the date of the Completion
Certificate. For the avoidance of any doubt, any repairs or restoration because of
usual wear or tear in the Project Highway or any Section thereof shall form a part of
the Maintenance obligations of the Contractor as specified in Article 14.
17.2 Remedying Defects
Save and except as provided in Clause 14.1 (iii), the Contractor shall repair or
rectify all Defects and deficiencies observed by the Authority or 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.
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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 Highway 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 to make the Project Highway conform
to the Specifications and Standards and the provisions of this Agreement. All costs
consequent thereon shall, after due consultation with the Authority and the
Contractor, be determined by the Authority’s Engineer. The cost so determined and
an amount equal to 20% (twenty percent) of the cost as Damages shall be
recoverable by the Authority from the Contractor and may be deducted by the
Authority from any monies due to the Contractor.
17.5 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
(i) 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.
(ii) The officer in-charge of the Authority (e.g. PD/ RO/ CGM/ Member in the case of
NHAI; RO/CE/ADG in the case of MoRTH projects executed through the State PWDs;
and PD/ED/Director in the case of NHIDCL) 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.
(iii) The Authority’s Engineer should be appointed within 10 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.
(iv) 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
(i) The Authority’s Engineer shall perform the duties and exercise the authority in
accordance with the provisions of this Agreement and substantially in accordance
with the terms of reference (“Terms of Reference” or “TOR”) set forth in Annexure-I
of Schedule N, but subject to obtaining prior written approval of the Authority
before determining:
(a) any Time Extension;
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(b) any additional cost to be paid by the Authority to the Contractor;
(c) the Termination Payment;
(d) issuance of Completion Certificate; or
(e) any other matter which is not specified in (a), (b), (c) or (d) above and
which creates financial liability on either Party.
(ii) 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 (i).
(iii) 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
(i) 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.
(ii) 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.
(iii) Notwithstanding anything stated in Clause 18.3 (i) 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
(i) 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.
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(ii) 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 the oral instructions in writing within 2 (two) working days of issuing
them.
(iii) In case the Contractor does not receive the confirmation of the oral instructions
within the time specified in Clause 18.4 (ii), 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.
(iv) 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
(i) The Authority’s Engineer shall consult with each Party in an endeavour 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
to both the Parties of each agreement or determination, with supporting
particulars.
(ii) 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, costs and expenses of the Authority’s Engineer shall be paid by
the Authority.
18.7 Termination of the Authority’s Engineer
(i) The Authority may, in its discretion, replace the Authority’s Engineer at any time.
However, the Authority shall ensure that alternative arrangements for appointment
99
of another Authority's Engineer or designation of its own officer as the Authority

Engineer for the intervening period are made simultaneously.
(ii) 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 the 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’sEngineerinaccordancewithClause18.1and18.7(i).
100
Part IV
Financial Covenants
101
102
Article 19
Payments
19.1 Contract Price
(i) 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 INR … … … … (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 not include the cost of Maintenance, which shall
be paid separately in accordance with the provisions of Clause 19.7. 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.
(ii) The Contract Price includes all duties, taxes, royalty, cess, charges, 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.
The Contract Price also includes the cost of shifting of obstructing Utilities
(including all centages as applicable by the utility owning department except
supervision charges) as given in clause 9.2 and Schedule B.
(iii) The Contract Price shall not be adjusted for any change in costs stated in Clause
19.1 (ii) above, except as stated in Clauses 19.10 and 19.17.
(iv) The Contract Price shall not be adjusted to take account of any unforeseen
difficulties or costs, unless otherwise provided for in this Agreement.
(v) 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
Highway.
(vi) All payments under this Agreement shall be made in Indian Rupees.
19.2 Advance Payment
(i) The Authority shall make an interest-bearing advance payment (the “Advance
Payment”) @ “Bank Rate + 3%”, equal to 10 % (ten percent) of the Contract Price,
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exclusively for mobilisation expenses. The Advance Payment for mobilisation

expenses shall be made in two instalments each equal to 5% (five percent) of the
Contract Price. The second 5% (five percent) mobilization advance would be
released after submission of utilization certificate by the Contractor for the first 5%
(five per cent) advance already released earlier.
(ii) 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 per cent) of the Contract Price against Bank
Guarantee. This advance shall be further subject to the condition that:
(a) such new equipment are considered by the Authority’s Engineer to be

necessary for the works and
(b) 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 (@"Bank rate + 3%”), to be compounded annually on a
reducing balance basis. The interest would be recovered along with the recovery of
mobilization Advance Payment as per provision laid down for the mobilization
advance recovery.
(iii) The Contractor may apply to the Authority for the first instalment 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 instalment, substantially in the form provided at
Annex-III of Schedule-G, to remain effective till the complete and full repayment
thereof.
(iv) At any time, after 60 (sixty) days from the Appointed Date, the Contractor may
apply to the Authority for the second instalment 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 instalment, substantially in the
form provided at Annex-III of Schedule-G, to remain effective till the complete and
full repayment thereof.
The Contractor has the option of splitting the Bank Guarantee against Advance
Payment for mobilization expenses into parts, each not less than 2.75% (two point
seven five per cent) of the Contract Price. Each part of the guarantee shall remain
effective till full repayment of such part advance corresponding to this bank
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guarantee. Such part of Bank Guarantee shall be returned to the Contractor on

recovery under the Agreement of the full amount of such part guarantee within 30
(thirty) days of the said recovery.
(v) 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.
(vi) The Advance Payment shall be repaid through percentage deductions from the
stage payments determined by the Authority’s Engineer in accordance with Clause
19.5, as follows:
(a) deductions shall commence in the first Stage Payment Statement;
(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% (eighty percent) of the Schedule Construction Period
is over;
(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 shall be recovered by encashment of the Bank Guarantee for the
Advance Payment.
(vii) 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 Authority.
Without prejudice to the provisions of Clause 19.2 (vi), in the event of Termination
for Contractor Default, the Advance Payment shall be deemed to carry interest @
“Bank Rate+5%” per annum 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 the unrecovered
balance.
19.3 Procedure for estimating the payment for the Works
(i) 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.
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(ii) 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 (i), supported with necessary particulars and documents in accordance
with this Agreement.
(iii) 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 crore to Rs. 80
crore 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.
19.4 Stage Payment Statement for Works
The Contractor shall submit a statement (the “Stage Payment Statement”), in 3

(three) 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
(i) 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.
(ii) 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
106
specify all the amounts that have been deducted from the Stage Payment Statement
and the reasons therefor.
(iii) 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.
(iv) 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 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.
(v) 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 Highway
(i) 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 Highway during the previous month.
(ii) 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 (i).
19.7 Payment for Maintenance of the Project Highway
(i) 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 (ii).
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.
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(ii) Maintenance shall be measured in units of one kilometre 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
Requirements shall be applied on the basis of monthly inspections by the
Authority’s Engineer.
(iii) 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.
(iv) 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
(i) The Contractor may claim Damages due and payable to it in accordance with the
(ii) The Authority’s Engineer shall issue the IPC within 15 (fifteen) days of the receipt
of the claim under Clause 19.8 (i), 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
(i) 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 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
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(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.
(ii) 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 interest @ Bank Rate + 3% per annum, on all sums remaining
unpaid from the date on which the same should have been paid, calculated in
accordance with the provisions of sub-Clauses (a) and (b) of Clause 19.9 (i) and till
the date of actual payment.
19.10 Price adjustment for the Works
(i) The amounts payable to the Contractor for Works shall be adjusted in accordance
with the provisions of this Clause 19.10
(ii) Subject to the provisions of Clause 19.10 (iii), 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 (iv).
(iii) 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.
(iv) 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 the following
items of Schedule-H:
i. Road works; and
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ii. Other works
BR = Value of work done for the completion of a stage under the items Major
Bridges and Structures (Schedule-H)
(d) Price adjustment for changes in cost shall be paid in accordance with the
following formulae:
𝐿𝐼 −𝐿0 𝐴𝐼 −𝐴0 𝐹𝐼 −𝐹0

(i) 𝑉𝑅𝑊 = 0.85𝑅𝑊 × [𝑃𝐿 × 𝐿0
+ 𝑃𝐴 × 𝐴0
+ 𝑃𝐹 × 𝐹0
+
𝐵𝐼 −𝐵0 𝑀𝐼 −𝑀0 𝐶𝐼 −𝐶0 𝑆𝐼 −𝑆0
𝑃𝐵 × 𝐵0
+ 𝑃𝑀 × 𝑀0
+ 𝑃𝐶 × 𝐶0
+ 𝑃𝑆 × 𝑆0
]
𝐿𝐼 −𝐿0 𝐴 −𝐴 𝐹𝐼 −𝐹0
(ii) 𝑉𝐵𝑅 = 0.85𝐵𝑅 × [𝑃𝐿 × 𝐿0
+ 𝑃𝐴 × 𝐼𝐴 0 + 𝑃𝐹 × 𝐹0
+
0
𝑀𝐼 −𝑀0 𝐶𝐼 −𝐶0 𝑆𝐼 −𝑆0
𝑃𝑀 × 𝑀0
+ 𝑃𝐶 × 𝐶0
+ 𝑃𝑆 × 𝑆 ]
0
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).
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” 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

[Panipat] on the Base Date.
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BI = The official retail price of bitumen at nearest refinery at [Panipat],

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
FO = The official retail price of high-speed diesel (HSD) oil at the existing
consumer pumps of Indian Oil Corporation (“IOC”) in the State of
Telangana on the Base Date.
FI = The official retail price of HSD at the existing consumer pumps of

IOC in the State of [Haryana] 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 State of Uttar Pradesh], 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.
SO = The WPI for Mild Steel –Long Products for the month of the Base
Date.
SI = The WPI for Mild Steel –Long Products for the month three months
(e) The following percentages shall govern the price adjustment of the
Contract Price:
Item
Road Works
Earthwork,
Component Cement Culverts, minor Major Bridges
Granular work, Bituminous
Concrete bridges and and Structures
and Other work
Pavement other structures
works
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 lubricants [10%] [10%] [10%] [10%] [10%]
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Item
Road Works
Earthwork,
Component Cement Culverts, minor Major Bridges
Granular work, Bituminous
Concrete bridges and and Structures
and Other work
Pavement other structures
works
(PF)
Other Materials
(PM) [50%] [40%] [35%] [30%] [25%]
Plant, machinery
and spares (PA) [15%] [15%] [15%] [15%] [15%]
Total 100% 100% 100% 100% 100%
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. For the
avoidance of doubt, in the event of 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 Price adjustment for Maintenance of Project Highway
Lump sum payment for Maintenance shall be adjusted every quarter for changes in rates
and prices of various inputs in accordance with the formula given below:
𝑊𝐼 − 𝑊0
𝑉=𝑃×
𝑊0
Where
V= Increase or decrease in the quarterly lump sum payment
P= Quarterly lump sum payment due to the Contractor after adjusting any reduction in
payment for non-compliance of the Maintenance Requirements
W0= The wholesale price index (all commodities) for the month of the Base Date.
WI= The wholesale price index (all commodities) for the first day of the quarter under
consideration for determining the price adjustment.
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19.13 Final Payment Statement
(i) Within 60 (sixty) days after receiving the Completion Certificate under Clause 12.2, the
Contractor shall submit to the Authority’s Engineer for consideration 6 (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.
(ii) If the Authority’s Engineer does not prescribe the form referred to in Clause 19.13
(i) within 15 (fifteen) of the date of issue of the Completion Certificate, the
Contractor shall submit the statement in such form as it deems fit.
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.
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19.15 Final Payment Certificate
(i) 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.
(ii) 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
(i) Within 30 (thirty) days after completion of the Maintenance Period, the Contractor
shall submit to the Authority’s Engineer 6 (six) copies of the final payment
statement for Maintenance of the Project Highway, 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 clause 19.7 (i) and
(b) any sums which the Contractor considers to be due to it, with supporting
documents.
(ii) 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 (i),
segregating the items of amount payable from the items of amount disallowed. The
Authority shall make payment on the basis of the final payment authorised 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.
(iii) 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
(i) 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
114
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.
(ii) 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.
(iii) 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

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 5% (five per cent) of the Contract Price. Provided,
however, that the payment of bonus, if any, shall be made only after the issue of the
Completion Certificate. For the avoidance of the doubt, the Parties agree that for the
purpose of determining the bonus payable hereunder, the works shall always be
deemed to be as specified in this Contract Agreement but excluding the works
deemed to be deleted from the scope of work under clause 8.3 of this Contract
Agreement and the Contract Price shall always be deemed to be the amount
specified in Clause 19.1 (i) after excluding the Contract Price of the Works deemed
to be deleted from the Scope of Work under clause 8.3 of this Contract Agreement,
and shall exclude any revision thereof for any reason. The Parties also agree that
bonus shall be payable only if each work for which Time Extension has been
granted is completed within respective Extended Time.
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Article 20
Insurance
20.1 Insurance for Works and Maintenance
(i) 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.
(ii) 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.
(iii) Subject to the exceptions specified in Clause 20.1 (iv) 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.
(iv) Notwithstanding anything stated above in Clause 20.1 (iii), 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 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
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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.
(v) Without prejudice to the obligations of the Parties as specified under Clauses 20.1
(iii) and 20.1 (iv), the Contractor shall maintain or effect such third party
insurances as may be required under the Applicable Laws.
(vi) 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
(i) 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 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.
(ii) The Contractor shall ensure the adequacy of the insurances at all times in
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20.4 Remedy for failure to insure
If the Contractor shall fail to effect and keep in force all insurances for which it is
responsible pursuant hereto, the Authority shall have the option to either keep in
force any such insurances, and pay such premia and recover the costs thereof from
the Contractor, or in the event of computation of a Termination Payment, treat an
amount equal to the Insurance Cover as deemed to have been received by the
Contractor.
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 Contractor’s waiver
The Contractor hereby further releases, assigns and waives any and all rights of
subrogation or recovery against, inter alia, the Authority and its assigns,
undertakings and their subsidiaries, Affiliates, employees, successors, insurers and
underwriters, which the Contractor may otherwise have or acquire in or from or in
any way connected with any loss, liability or obligation covered by policies of
insurance maintained or required to be maintained by the Contractor pursuant to
this Agreement (other than third party liability insurance policies) or because of
deductible clauses in or inadequacy of limits of any such policies of insurance.
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 wilful default of the Authority, its agents
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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 wilful 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 Highway 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) 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 Highway 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;
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(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,
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.
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Part V
Force Majeure and Termination
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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 ionising radiation, fire or explosion (to the
extent of contamination or radiation or fire or explosion originating from a
source external to the Site);
(b) strikes or boycotts (other than those involving the Contractor, Sub-
contractors or their respective employees/ representatives, or attributable
to any act or omission of any of them) interrupting supplies and services to
the Project Highway 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 (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;
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(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 Highway 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
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 or of the Sub-Contractors;
(c) unlawful or unauthorised or without jurisdiction revocation of, or refusal to

renew or grant without valid cause, any clearance, licence, permit,
authorisation, no objection certificate, consent, approval or exemption
required by the Contractor or any of the Sub-contractors to perform their
respective obligations under this Agreement; provided that such delay,
modification, denial, refusal or revocation did not result from the
Contractor’s or any Sub-contractor’s inability or failure to comply with any
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condition relating to grant, maintenance or renewal of such clearance,

licence, authorisation, no objection certificate, exemption, consent, approval
or permit;
(d) any failure or delay of a 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
(i) 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.
(ii) 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.
(iii) 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 (i), 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
(i) 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:
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(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.
(ii) 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.
(iii) 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 for 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
(i) 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.
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21.8 Termination Payment for Force Majeure Event
(i) 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.
(ii) If Termination is on account of an Indirect Political Event, the Termination Payment

shall include:
(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.
(iii) 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 (ii) 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;
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(b) the Affected Party shall make all reasonable efforts to mitigate or limit
damage to the other Party arising out of or as a result of the existence or
occurrence of such Force Majeure Event and to cure the same with due
diligence; and
(c) when the Affected Party is able to resume performance of its obligations
under this Agreement, it shall give to the other Party notice to that effect
and shall promptly resume performance of its obligations hereunder.
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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 authorise
any other person to exercise or perform the same on its behalf during such
suspension (the “Suspension”). Suspension hereunder shall be effective forthwith
upon issue of notice by the 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 licences
and sub-licences 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 Highway 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
(i) 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,
whether or not the cause of Suspension has been rectified or removed hereunder.
(ii) 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.
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22.4 Termination
(i) 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.
(ii) 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.
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Article 23
Termination
23.1 Termination for Contractor Default
(i) 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 five) days;
(d) the Contractor abandons or manifests intention to abandon the

construction or Maintenance of the Project Highway 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 shall
have a Material Adverse Effect on the Project, within the time specified in
this Agreement or as directed by the Authority’s Engineer;
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(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 or insolvency 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 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 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;
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(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 favour or disfavour 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 (s). However, lawful
inducements and rewards to Contractor’s Personnel shall not entitle
termination.
(ii) 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.
(iii) 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
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incurred) shall be extended by the period taken by the Authority to accord

its required approval.
(iv) 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
(i) In the event that any of the defaults specified below shall have occurred, and the
Authority fails to cure such default within a Cure Period of 90 (ninety) days or
such longer period as has been expressly provided in this Agreement, the
Authority shall be deemed to be in default of this Agreement (the “Authority
Default”) unless the default has occurred as a result of any breach of this
Agreement by the Contractor or due to Force Majeure. The defaults referred to
herein shall include:
(a) the Authority commits a material default in complying with any of the
provisions of this Agreement and such default has a Material Adverse
Effect on the Contractor;
(b) the Authority has failed to make 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 Highway;
(d) the Authority becomes bankrupt or insolvent, goes into liquidation, has a
receiving or administration order made against him, compounds with its
creditors, or carries on business under a receiver, trustee or manager for
the benefit of its creditors, or if any act is done or event occurs which
(under Applicable Laws) has a similar effect;
(e) 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;
(f) the Authority’s Engineer fails to issue the relevant Interim Payment
Certificate within 60 (sixty) days after receiving a statement and
supporting documents; or
(g) the whole work is suspended by Authority beyond 120 (one hundred
twenty) days for any reason which is not attributed to the Contractor.
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(ii) 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 (fifteenth) 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 forfeited 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
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 all relevant records, reports, Intellectual Property and other licences
pertaining to the Works, Maintenance, other design documents;
(b) transfer and/or deliver all Applicable Permits to the extent permissible
under Applicable Laws; and
(c) vacate the Site within 15 (fifteen) days.
23.5 Valuation of Unpaid Works
(i) 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;
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(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.
(ii) The Valuation of Unpaid Works shall be communicated to the Authority, with a copy
to the Contractor, within a period of 30 (thirty) days from the date of Termination.
23.6 Termination Payment
(i) 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, 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
(ii) 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;
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ii. the reasonable cost of temporary works, as determined by the

Authority’s Engineer; and
iii. 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.
(iii) Termination Payment shall become due and payable to the Contractor 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 interest
at Bank Rate + 3% 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.
(iv) 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
Highway 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
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, which have not been vested in the Authority in
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
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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
and otherwise Supplementary Agreement is signed.
(iv) Any attempt or endeavour 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
141
142
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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144
Article 25
Liability and Indemnity
25.1 General indemnity
(i) 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
(i) 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 because 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.
(ii) 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, 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
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temporary restraint order or preliminary injunction is granted, the Contractor shall

make every reasonable effort, by giving a satisfactory bond or otherwise, to secure
the revocation or suspension of the injunction or restraint order. If, in any such suit,
action, claim or proceedings, the Project Highway, or any part thereof or comprised
therein, is held to constitute an infringement and its use is permanently enjoined,
the Contractor shall promptly make every reasonable effort to secure for the
Authority a licence, at no cost to the Authority, authorising continued use of the
infringing work. If the Contractor is unable to secure such licence within a
reasonable time, the Contractor shall, at its own expense, and without impairing the
Specifications and Standards, either replace the affected work, or part, or process
thereof with non-infringing work or part or process or modify the same so that it
becomes non-infringing.
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. If the Indemnifying Party wishes to
contest or dispute the claim or demand, it may conduct the proceedings in the name
of the Indemnified Party, subject to the Indemnified Party being secured against
any costs involved, to its reasonable satisfaction.
25.4 Defence of claims
(i) The Indemnified Party shall have the right, but not the obligation, to contest, defend
and litigate any claim, action, suit or proceeding by any third party alleged or
asserted against such Party in respect of, resulting from, related to or arising out of
any matter for which it is entitled to be indemnified hereunder, and reasonable
costs and expenses thereof shall be indemnified by the Indemnifying Party. If the
Indemnifying Party acknowledges in writing its obligation to indemnify the
Indemnified Party in respect of loss to the full extent provided by this Article 25, the
Indemnifying Party shall be entitled, at its option, to assume and control the
defence of such claim, action, suit or proceeding, liabilities, payments and
obligations at its expense and through the counsel of its choice; provided it gives
prompt notice of its intention to do so to the Indemnified Party and reimburses the
Indemnified Party for the reasonable cost and expenses incurred by the
Indemnified Party prior to the assumption by the Indemnifying Party of such
defence. The Indemnifying Party shall not be entitled to settle or compromise any
claim, demand, action, suit or proceeding without the prior written consent of the
Indemnified Party, unless the Indemnifying Party provides such security to the
Indemnified Party as shall be reasonably required by the Indemnified Party to
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secure the loss to be indemnified hereunder to the extent so compromised or

settled.
(ii) 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).
(iii) If the Indemnifying Party exercises its rights under Clause 25.3, the Indemnified
Party shall nevertheless have the right to employ its own counsel, and such counsel
may participate in such action, but the fees and expenses of such counsel shall be at
the expense of the Indemnified Party, when and as incurred, unless:
(a) the employment of counsel by such party has been authorised in writing by
the Indemnifying Party; or
(b) the Indemnified Party shall have reasonably concluded that there may be a
conflict of interest between the Indemnifying Party and the Indemnified
Party in the conduct of the defence of such action; or
(c) the Indemnifying Party shall not, in fact, have employed independent
counsel reasonably satisfactory to the Indemnified Party, to assume the
defence of such action and shall have been so notified by the Indemnified
Party; or
(d) the Indemnified Party shall have reasonably concluded and specifically
notified the Indemnifying Party either:
i. that there may be specific defences available to it which are different from
or additional to those available to the Indemnifying Party; or
ii. that such claim, action, suit or proceeding involves or could have a material
adverse effect upon it beyond the scope of this Agreement:
Provided that if Sub-clauses (b), (c) or (d) of this Clause 25.4 (iii) 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 Survival on Termination
The provisions of this Article 25 shall survive Termination.
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Article 26
Dispute Resolution
26.1 Dispute Resolution
(i) 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.
(ii) 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
Chairman of the Authority 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 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.
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26.3 Arbitration
(i) 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.
(ii) Deleted
(iii) The Arbitral Tribunal 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.
(iv) 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.
(v) 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.
(vi) 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 %
(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
150
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 [Delhi] 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
demand along with the necessary particulars. In the event of delay beyond such
period, the defaulting Party shall pay interest for the period of delay calculated at a
rate equal to Base Rate plus 2 (two) percent, calculated at quarterly rests, and
recovery thereof shall be without prejudice to the rights of the Parties under this
Agreement including Termination thereof.
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27.4 Waiver
(i) 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

authorised representative of the Party; and
(c) shall not affect the validity or enforceability of this Agreement in any
manner.
(ii) 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 Highway nor the failure to review, approve, comment, observe or
inspect hereunder shall relieve or absolve the Contractor from its
obligations, duties and liabilities under this Agreement, the Applicable
Laws and Applicable Permits; and
(b) the Authority shall not be liable to the Contractor by reason of any
review, comment, approval, observation or inspection referred to in Sub-
clause (a) above.
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.
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27.7 Survival
(i) 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.
(ii) 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 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
155
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.
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 [Delhi] may, if
they are subsequently confirmed by sending a copy thereof by registered
acknowledgement due, air mail or by courier, be sent by facsimile or e-
mail to the 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 [Chairman] of the Authority
with a copy delivered to the Authority Representative or such other
person as the Authority may from time to time designate by notice to the
Contractor; provided that if the Contractor does not have an office in
[Delhi] it may send such notice by facsimile or 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
156
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.
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
(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. The Contractor shall be
deemed (by signing this Agreement) to give to the Authority a non-terminable
transferable non-exclusive royalty-free licence to copy, use and communicate the
Contractor's documents, including making and using modifications of them. This
licence shall:
(a) apply throughout the actual or intended working life (whichever is longer)
of the relevant parts of the Works;
(b) entitle any person in proper possession of the relevant part of the Works to
copy, use and communicate the Contractor's documents for the purposes of
completing, operating, maintaining, altering, adjusting, repairing and
demolishing the Works; and
(c) in the case of Contractor's documents which are in the form of computer
programs and other software, permit their use on any computer on the Site
and other places as envisaged by this Agreement, including replacements of
any computers supplied by the Contractor.
157
(ii) 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 Clause 27.17.
(iii) 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
(i) 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.
(ii) 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 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.
158
(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 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
Highway 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 Highway
consistent with the purpose for which such persons have gained such access to the
Site.
159
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 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 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
160

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Widening to two lane with paved shoulders from Km 0/000 to Km 79/300 of Kalwakurthy - Kollapur section of NH-167K

in the State of Telangana on Engineering, Procurement and Construction (EPC) Basis

Engineering Procurement and Construction (EPC)

Widening to two lane with paved shoulders from Km

Ministry of Road Transport & Highways

11.4 Inspection and technical audit by the Authority 70

15.2 Inspection and payments 91

19.17 Change in law 114

23.3 Termination for Authority’s convenience 137

27.15 Counterparts 157

Schedule - K Tests on Completion 325

Engineering, Procurement and Construction Agreement

A. [The Government of India] entrusted “Widening to two lane with paved

B. The Authority resolved to “Widening to two lane with paved shoulders

Definitions and Interpretations

“Affiliate” means, in relation to either Party {and/or Members}, a person who

“Applicable Permits” means all clearances, licences, permits, authorisations, no

“Authority Representative” means such person or persons as may be authorised in

(a) the enactment of any new Indian law;

(b) the repeal, modification, or re-enactment of any existing Indian law;

(d) a change in the interpretation or application of any Indian law by a

“Contract Price” means the amount specified in Clause 19.1 (i);

“Dispute” shall have the meaning set forth in Clause 26.1;

“Document” or “Documentation” means documentation in printed or written form,

“Emergency” means a condition or situation that is likely to endanger the safety or

“Encumbrances” means, in relation to the Project Highway, any encumbrances such

“EPC” means engineering, procurement and construction;

“GOI” or “Government” means the Government of India;

“Good Industry Practice” means the practices, methods, techniques, designs,

“Government Instrumentality” means any department, division or sub- division of

performance of all or any of the services or obligations of the Contractor under or

“IRC” means the Indian Roads Congress;

“Indemnified Party” means the Party entitled to the benefit of an indemnity

“LOA” or “Letter of Acceptance” means the letter of acceptance issued by the

“Maintenance Manual” shall have the meaning ascribed to it in Clause 10.7;

“Performance Security” and “Additional Performance Security” shall have the

“Project” means the construction and maintenance of the Project Highway in

road surface, interchanges, bridges, culverts, road over-bridges, drainage works,

“Project Milestone” means the project milestone set forth in Schedule-J;

“Scheduled Construction Period” means the period commencing from the

“Section” means a part of the Project Highway;

“Site” shall have the meaning set forth in Clause 8.1;

“Specifications and Standards” means the specifications and standards relating to

“Structures” means an elevated road or a flyover, as the case may be;

“Suspension” shall have the meaning set forth in Article 22;

“Termination” means the expiry or termination of this Agreement;

“Termination Notice” means the communication issued in accordance with this

(i) In this Agreement, unless the context otherwise requires,

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

consolidation applies or is capable of applying to any transaction entered

(c) references to a “person” and words denoting a natural person shall be

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

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

(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

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

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

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

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