Ministry of Road Transport & Highways,

(Govt. of India)

“Widening and Up-gradation of existing carriageway into 2-lane with paved

shoulder configuration from Reshi to Rhenock from Ch. 96.254 to Ch. 101.554
along NH-717A in the State of Sikkim on EPC mode (2nd Call)”

Engineering Procurement and Construction (EPC)Agreement

NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT

CORPORATION LIMITED

1st floor, Tower-A, World Trade Centre, Nauroji Nagar, New Delhi – 110029

May, 2025
 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 15
1.4 Priority of agreements and errors/discrepancies 15
1.5 Joint and several liability 16

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 22

3.1 Obligations of the Authority 22
3.2 Maintenance obligations prior to the Appointed Date 24
3.3 Environmental Clearances 24
3.4 Deemed Termination upon delay 24

4 Obligations of the Contractor 25

4.1 Obligations of the Contractor 25
4.2 Obligations relating to sub-contracts and any other agreements 27
4.3 Employment of foreign nationals 28
4.4 Contractor’s personnel 28
4.5 Advertisement on Project Highway 29
4.6 Contractor's care of the Works 29
4.7 Electricity, water and other services 29
4.8 Unforeseeable difficulties 29
4.9 Co-ordination of the Works 29
4.10 Environmental Measures 30
4.11 Site Data 30
4.12 Sufficiency of Contract Price 31

i
 4.13 Clearance of the Site 31

5 Representations and Warranties 32

5.1 Representations and warranties of the Contractor 32
5.2 Representations and warranties of theAuthority 35
5.3 Disclosure 36

6 Disclaimer 37
6.1 Disclaimer 37

Part III 39

Construction and Maintenance 39

7 Performance Security 41
7.1 PerformanceSecurity 41
7.2 Extension of Performance Security and Additional Performance Security 42
7.3 Appropriation of PerformanceSecurity 42
7.4 Release of PerformanceSecurity 43
7.5 Retention Money 43

8 Right of Way 44
8.1 The Site 44
8.2 Procurement of the Site 44
8.3 Damages for delay in handing over the Site 45
8.4 Site to be free from Encumbrances 47
8.5 Protection of Site from encroachments 48
8.6 Special/ temporary Right of Way 48
8.7 Access to the Authority and the Authority’s Engineer 48
8.8 Geological and archaeological finds 48

9 Utilities and Trees 50

9.1 Existing utilities androads 50
9.2 Shifting of obstructing utilities 50
9.3 New utilities 50
9.4 Felling of trees 51
9.5 Dismantling ofstructures 51
9.6 DevelopmentPeriod 52

ii
10 Design and Construction of the Project Highway 53
10.1 Obligations prior to commencement ofWorks 53
10.2 Design and Drawings 55
10.3 Construction of the Project Highway 57
10.4 Maintenance during Construction Period 58
10.5 Extension of time forcompletion 59
10.6 IncompleteWorks 60
10.7 Maintenance Manual 61
10.8 As-BuiltRecords 61
10.9 Contractor's Use of Authority’sDocuments 61

11 Quality Assurance, Monitoring and Supervision 62

11.1 Quality of Materials andworkmanship 62
11.2 Quality control system 62
11.3 Methodology 62
11.4 Inspection and technical audit by the Authority 63
11.5 External technical audit 63
11.6 Inspection of construction records 63
11.7 Monthly progress reports 63
11.8 Inspection 64
11.9 Samples 65
11.10 Tests 65
11.11 Examination of work before coveringup 66
11.12 Rejection 66
11.13 Remedialwork 66
11.14 Delays during construction 67
11.15 Quality control records and Documents 67
11.16 Video recording 67
11.17 Suspension of unsafe Construction Works 67
11.18 Staff and Labour 68

12 Completion Certificate 72
12.1 Tests onCompletion 72
12.2 Completion Certificate 72
12.3 Rescheduling of Tests 73

iii
13 Change of Scope 74
13.1 Change of Scope 74
13.2 Procedure for Change of Scope 74
13.3 Payment for Change ofScope 76
13.4 Restrictions on Change ofScope 76
13.5 Power of the Authority to undertakeWorks 77

14 Maintenance 78
14.1 Maintenance obligations of theContractor 78
14.2 Maintenance Requirements 79
14.3 Maintenance Programme 79
14.4 Safety, vehicle breakdowns and accidents 80
14.5 Lane closure 80
14.6 Reduction of payment for non-performance of Maintenance obligations 80
14.7 Authority’s right to take remedial measures 81
14.8 Restoration of loss or damage to Project Highway 81
14.9 Overriding powers of the Authority 81
14.10 Taking over Certificate 82

15 Supervision and Monitoring during Maintenance 83

15.1 Inspection by theContractor 83
15.2 Inspection and payments 83
15.3 Tests 84
15.4 Reports of unusual occurrence 84

16 Traffic Regulation 85
16.1 Traffic regulation by the Contractor 85

17 Defects Liability 86
17.1 Defects LiabilityPeriod 86
17.2 Remedying Defects 86
17.3 Cost of remedying Defects 87
17.4 Contractor’s failure to rectify Defects 87
17.5 Extension of Defects Liability Period 87

iv
18 Authority’s Engineer 88
18.1 Appointment of the Authority’s Engineer 88
18.2 Duties and authority of the Authority’s Engineer 88
18.3 Delegation by the Authority’s Engineer 89
18.4 Instructions of the Authority’s Engineer 89
18.5 Determination by the Authority’s Engineer 90
18.6 Remuneration of the Authority’s Engineer 90
18.7 Termination of the Authority’s Engineer 90

Part IV 91

Financial Covenants 91

19 Payments 91
19.1 Contract Price 91
19.2 Advance Payment 91
19.3 Procedure for estimating the payment for the Works 93
19.4 Stage Payment Statement for Works 94
19.5 Stage Payment for Works 94
19.6 Monthly Maintenance Statement of the Project Highway 95
19.7 Payment for Maintenance of the Project Highway 95
19.8 Payment of Damages 95
19.9 Time of payment and interest 96
19.10 Price adjustment for the Works 96
19.11 Restrictions on price adjustment 99
19.12 Price adjustment for Maintenance of Project Highway 99
19.13 Final Payment Statement 100
19.14 Discharge 100
19.15 Final Payment Certificate 101
19.16 Final payment statement for Maintenance 101
19.17 Change in law 101
19.18 Correction of Interim Payment Certificates 102
19.19 Authority’s claims 102
19.20 Bonus for early completion 102

v
20 Insurance 103
20.1 Insurance for Works and Maintenance 103
20.2 Notice to the Authority 104
20.3 Evidence of Insurance Cover 104
20.4 Remedy for failure to insure 104
20.5 Waiver of subrogation 105
20.6 Contractor’s waiver 105
20.7 Cross liabilities 105
20.8 Accident or injury to workmen 105
20.9 Insurance against accident to workmen 105
20.10 Application of insurance proceeds 106
20.11 Compliance with policy conditions 106
20.12 General Requirements of Insurance Policies 106

Part V 109

Force Majeure and Termination 109

21 Force Majeure 111

21.1 Force Majeure 111
21.2 Non-Political Event 111
21.3 Indirect Political Event 111
21.4 Political Event 112
21.5 Duty to report Force Majeure Event 112
21.6 Effect of Force Majeure Event on the Agreement 113
21.7 Termination Notice for Force Majeure Event 114
21.8 Termination Payment for Force Majeure Event 114
21.9 Dispute resolution 115
21.10 Excuse from performance of obligations 115

22 Suspension of Contractor’s Rights 116

22.1 Suspension upon Contractor Default 116
22.2 Authority to act on behalf of Contractor 116
22.3 Revocation of Suspension 116
22.4 Termination 117

vi
23 Termination 118
23.1 Termination for Contractor Default 118
23.2 Termination for Authority Default 120
23.3 Termination for Authority’s convenience 121
23.4 Requirements after Termination 121
23.5 Valuation of Unpaid Works 122
23.6 Termination Payment 122
23.7 Other rights and obligations of the Parties 123
23.8 Survival of rights 124
23.9 Foreclosure with mutualconsent 124

Part VI 125

Other Provisions 125

24 Assignment and Charges 127

24.1 Restrictions on assignment and charges 127
24.2 Hypothecation of Materials or Plant 127

25 Liability and Indemnity 128

25.1 Generalindemnity 128
25.2 Indemnity by the Contractor 128
25.3 Notice and contest of claims 129
25.4 Defence of claims 129
25.5 Survival on Termination 130

26 Dispute Resolution 131

26.1 Dispute Resolution 131
26.2 Conciliation 131
26.3 Arbitration 131
26.4 Adjudication by Regulatory Authority, Tribunal or Commission 132

27 Miscellaneous 134
27.1 Governing law andjurisdiction 134
27.2 Waiver of immunity 134
27.3 Delayed payments 134

vii
 27.4 Waiver 135
27.5 Liability for review of Documents and Drawings 135
27.6 Exclusion of implied warranties etc. 135
27.7 Survival 135
27.8 Entire Agreement 136
27.9 Severability 136
27.10 No partnership 136
27.11 Third parties 136
27.12 Successors and assigns 137
27.13 Notices 137
27.14 Language 137
27.15 Counterparts 138
27.16 Confidentiality 138
27.17 Copyright and Intellectual Property rights 138
27.18 Limitation of Liability 139
27.19 Care and Supply of Documents 139
27.20 Authority’s Use of Contractor’s Documents. 139
27.21 Contractor’s Use of Authority’s Documents 140
27.22 Access to the Site by Others 140
27.23 Term 140
27.24 Amendments 140
27.25 Representation and Bribes 140
27.26 No Agency 141

Schedules Error! Bookmark not defined.

Schedule-A Error! Bookmark not defined.

Site of the Project Error! Bookmark not defined.

1 The Site Error! Bookmark not defined.

Annex-I : Site Error! Bookmark not defined.
Annex-II : Dates for providing Right of Way of Construction ZoneError! Bookmark not
defined.
Annex-III : Alignment Plans Error! Bookmark not defined.
Annex-IV : Environment Clearances Error! Bookmark not defined.

viii
Schedule - B Error! Bookmark not defined.

Development of the Project Highway Error! Bookmark not defined.

1. Development of the Project Highway Error! Bookmark not defined.

2. [Rehabilitation and augmentation] Error! Bookmark not defined.
3. Specifications and Standards Error! Bookmark not defined.
Annex-I : Description of [Two-Laning] Error! Bookmark not defined.

Schedule - C Error! Bookmark not defined.

Project Facilities Error! Bookmark not defined.

1. Project Facilities Error! Bookmark not defined.

2. Description of Project Facilities Error! Bookmark not defined.

Schedule - D Error! Bookmark not defined.

Specifications and Standards Error! Bookmark not defined.

1. Construction Error! Bookmark not defined.

2. Design Standards Error! Bookmark not defined.
Annex-I : Specifications and Standards for Construction Error! Bookmark not defined.

Schedule - E Error! Bookmark not defined.

Maintenance Requirements Error! Bookmark not defined.

1. Maintenance Requirements Error! Bookmark not defined.

2. Repair/rectification of Defects and deficiencies Error! Bookmark not defined.
3. Other Defects and deficiencies Error! Bookmark not defined.
4. Extension of time limit Error! Bookmark not defined.
5. Emergency repairs/restoration Error! Bookmark not defined.
6. Daily inspection by the Contractor Error! Bookmark not defined.
7. Pre-monsoon inspection / Post-monsoon inspectionError! Bookmark not
defined.
8. Repairs on account of natural calamities Error! Bookmark not defined.
Annex-I : Repair/rectification of Defects and deficiencies Error! Bookmark not defined.

Schedule - F Error! Bookmark not defined.

ix
ApplicablePermits Error! Bookmark not defined.

1. Applicable Permits Error! Bookmark not defined.

Schedule – G Error! Bookmark not defined.

Annex-I : Form of Bank Guarantee Error! Bookmark not defined.

Annex-II : Form for Guarantee for Advance Payment Error! Bookmark not defined.

Schedule - H Error! Bookmark not defined.

Contract Price Weightages Error! Bookmark not defined.

Schedule - I Error! Bookmark not defined.

Drawings Error! Bookmark not defined.

1. Drawings Error! Bookmark not defined.

2. Additional Drawings Error! Bookmark not defined.
Annex-I : List of Drawings Error! Bookmark not defined.

Schedule - J Error! Bookmark not defined.

Project Completion Schedule Error! Bookmark not defined.

1. Project Completion Schedule Error! Bookmark not defined.

2. Project Milestone-I Error! Bookmark not defined.
3. Project Milestone-II Error! Bookmark not defined.
4. Project Milestone-III Error! Bookmark not defined.
5. Scheduled Completion Date Error! Bookmark not defined.
6. Extension of time Error! Bookmark not defined.

Schedule - K Error! Bookmark not defined.

Tests on Completion Error! Bookmark not defined.

1. Schedule for Tests Error! Bookmark not defined.

2. Tests Error! Bookmark not defined.
3. Agency for conducting Tests Error! Bookmark not defined.
4. Completion Certificate Error! Bookmark not defined.

Schedule - L Error! Bookmark not defined.

Completion Certificate Error! Bookmark not defined.

x
Schedule - M Error! Bookmark not defined.

Payment Reduction for Non-Compliance Error! Bookmark not defined.

1. Payment reduction for non-compliance with the Maintenance Requirements

Error! Bookmark not defined.
2. Percentage reductions in lump sum payments on monthly basis Error!
Bookmark not defined.

Schedule - N Error! Bookmark not defined.

Selection of Authority’s Engineer Error! Bookmark not defined.

1. Selection of Authority’s Engineer Error! Bookmark not defined.

2. Terms of Reference Error! Bookmark not defined.
3. Appointment of Government entity as Authority’s EngineerError! Bookmark not
defined.
Annex-I : Terms of Reference for Authority’s Engineer Error! Bookmark not defined.

Schedule - O Error! Bookmark not defined.

Forms of Payment Statements Error! Bookmark not defined.

1. Stage Payment Statement for Works Error! Bookmark not defined.

2. Monthly Maintenance Payment Statement Error! Bookmark not defined.
3. Contractor’s claim for Damages Error! Bookmark not defined.

Schedule - P Error! Bookmark not defined.

Insurance Error! Bookmark not defined.

1. Insurance during Construction Period Error! Bookmark not defined.

2. Insurance for Contractor's Defects Liability Error! Bookmark not defined.
3. Insurance against injury to persons and damage to propertyError! Bookmark
not defined.
4. Insurance to be in joint names Error! Bookmark not defined.

Schedule-Q Error! Bookmark not defined.

Tests on Completion of Maintenance Period Error! Bookmark not defined.

1. Riding Quality test: Error! Bookmark not defined.

xi
 2. Visual and physical test: Error! Bookmark not defined.

Schedule-R Error! Bookmark not defined.

Taking Over Certificate Error! Bookmark not defined.

xii
 Part I

Preliminary

1
 Engineering, Procurement and Construction Agreement

THIS AGREEMENT is entered into on this the ……….. day of February 2024

Between

[The President of India through the National Highways & Infrastructure

Development Corporation Ltd.,Government of India represented byManaging
Director, 1st Floor, Tower-A, World Trade Centre, Nauroji Nagar - 110029(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

M/s. ……………………..,the selected bidder1having its registered office at

…………………………………………………….. (hereinafter referred to asthe “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 and Up-gradation of existing

carriageway into 2-lane with paved shoulder configuration from Reshi to
Rhenock from Ch. 96.254 to Ch. 101.554 along NH-717A in the State of
Sikkim on EPC mode” to the Authority;

B. The Authority resolved to “Widening and Up-gradation of existing

carriageway into 2-lane with paved shoulder configuration from Reshi to
Rhenock from Ch. 96.254 to Ch. 101.554 along NH-717A in the State of
Sikkim on EPC mode” 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.

D. After evaluation of the bids received, the Authority accepted the bid of the selected
bidder and issued its Letter of Acceptance No. ……………………………………………..
(hereinafter called the “LOA”) to the selected bidder for “Widening and Up-
gradation of existing carriageway into 2-lane with paved shoulder
configuration from Reshi to Rhenock from Ch. 96.254 to Ch. 101.554
along NH-717A in the State of Sikkim on EPC mode” at the Contract Price of
Rs. ………………………….. /- (Rupees ……………………………………….. only) which is excluding
GST, requiring the selected bidder to inter alia:

3
 (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 Securityi.e. Rs. …………………/- (Rupees …………………………
only) & Additional Performance Security i.e. ……………………… as per
RFPrequirements, 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

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
ofAprilofanycalendaryearandendingonthethirty-firstdayofMarchofthe next
calendaryear;

“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 containedin thisAgreement;

“Applicable Laws” means all laws, brought into force and effect by the GOI or the
State Government including rules, regulations and notifications made
thereunder,andjudgements,decrees,injunctions,writsandordersofanycourt 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 thisAgreement;

“ApplicablePermits”meansallclearances,licences,permits,authorisations, no
objection certificates, consents, approvals and exemptions required to be obtained or
maintained under Applicable Laws in connection with the construction, operation and
maintenance of the Project Highway during the subsistence of thisAgreement;

5
“AppointedDate”meansthe 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;

“ArbitrationAct”meanstheArbitrationandConciliationAct,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

authorisedinwritingbytheAuthoritytoactonitsbehalfunderthisAgreement
andshallincludeanypersonorpersonshavingauthoritytoexerciseanyrights or perform
and fulfil any obligations of the Authority under thisAgreement;

“Bank”meansabankincorporatedinIndiaand 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
bythe[selectedbidder/Jointventure]inresponsetotheRequestforProposal in
accordance with the provisionsthereof;

“Bid Security” means the bid security provided by the Contractor to the
AuthorityinaccordancewiththeRequestforProposal,andwhichistoremain in force until
substituted by the PerformanceSecurity;

“ChangeinLaw”meanstheoccurrenceofanyofthefollowingaftertheBase 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
(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;

6
“Change of Scope Notice” shall have the meaning set forth in Clause 13.2 (i);

“ChangeofScopeRequest”shallhavethemeaningsetforthinClause13.2 (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;

“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 orany 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 inSchedule-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;

7
“Dispute Resolution Procedure” means the procedure for resolution of Disputes set
forth in Article 26;

“Drawings”meansallofthedrawings,calculationsanddocumentspertaining to the
Project Highway as set forth in Schedule-I, and shall include ‘as built’ drawings of the
ProjectHighway;

“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

safetyorsecurityoftheindividualsonorabouttheProjectHighway,including Users
thereof, or which poses an immediate threat of material damage to any of the
ProjectAssets;

“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
payeesorbeneficiariesoranysimilararrangementunderanyinsurancepolicy pertaining
to the Project Highway, where applicable herein but excluding utilities referred to in
Clause9.1;

“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;

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

designs,standards,skills,diligence,efficiency,reliabilityandprudencewhich are
generally and reasonably expected from a reasonably skilled and experienced
contractor engaged in the same type of undertaking as envisaged
underthisAgreementandwhichwouldbeexpectedtoresultinthe 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

8
panchayat under the control of the Governmentor the State Government, as the case
may be, and having jurisdiction over all or
anypartoftheProjectHighwayortheperformanceofalloranyoftheservices or obligations
of the Contractor under or pursuant to thisAgreement;

“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 Article25;

“IndemnifyingParty”meansthePartyobligatedtoindemnifytheotherParty pursuant to
Article25;

“Indirect Political Event” shall have the meaning set forth in Clause 21.3;

“InsuranceCover”meanstheaggregateofthemaximumsumsinsuredunder
theinsurancetakenoutbytheContractorpursuanttoArticle20,andincludes 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 orevent;

“IntellectualProperty”meansallpatents,trademarks,servicemarks,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, rightsinknow-
howandotherintellectualpropertyrights,ineachcasewhether registered or
unregistered and including applications for registration, and all rights or forms of
protection having equivalent or similar effect anywhere in theworld;

“Interim Payment Certificate” or “IPC” means the interim payment

certificateissuedbytheAuthority’sEngineerforpaymenttotheContractorin respect of
Contractor’s claims for payment raised in accordance with the provisions of
thisAgreement;

“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
suchjointventurewhoshallhavetheauthoritytobindthecontractorandeach member of
the Joint venture; and shall be deemed to be the Contractor forthe 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);

9
“Maintenance” means the maintenance of the Project Highway as set forth in Article
14 for the period specified therein;

“MaintenanceInspectionReport”shallhavethemeaningsetforthinClause 15.2;

“MaintenanceManual”shallhavethemeaningascribedtoitinClause10.7;

“MaintenanceProgramme”shallhavethemeaningsetforthinClause14.3;

“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 underand 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;

“MonthlyMaintenanceStatementshallhavethemeaningsetforthinClause 19.6;

“MORTH” means the Ministry of Road Transport and Highways or any substitute
thereof dealing with Highways;

“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 Highwayin

accordance with the provisions of this Agreement, and includes all works, services
and equipment relating to or in respect of the Scope of theProject;

10
“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

setforthinSchedule-JforcompletionoftheProjectHighwayonorbeforethe Scheduled
CompletionDate;

“ProjectFacilities”meansalltheamenitiesandfacilitiessituatedontheSite, as described
inSchedule-C;

“Project Highway” means the Site comprising of “Widening and Up-gradation of

existing carriageway into 2-lane with paved shoulder configuration from
Reshi to Rhenock from Ch. 96.254 to Ch. 101.554 along NH-717A in the
State of Sikkim on EPC mode” 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;

“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;

11
“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

relatingtothequality,quantity,capacityandotherrequirementsfortheProject 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 theWorks 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;

“Taxes”meansanyIndiantaxesincludingGST,exciseduties,customsduties,
valueaddedtax,salestax,localtaxes,cessandanyimpostorsurchargeoflike nature
(whether Central, State or local) on the goods, Materials, equipment
andservicesincorporatedinandformingpartoftheProjectHighwaycharged, 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 corporateincome;

“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”meansapersonwhotravelsorintendstotravelontheProjectHighway or any part

thereof in/on anyvehicle;

12
 “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 ProjectHighway in accordance with this
Agreement; and

“WPI”meansthewholesalepriceindexforvariouscommoditiesaspublished 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 precedingmonth.

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 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;

13
(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;
(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;

14
 (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;
(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

15
 expressly provided elsewhere in this Agreement, the priority of this Agreement and
other documents and agreements forming part hereof or referred to herein shall, in
the event of any conflict between them, be in the following order:

(a) this Agreement; and

(b) all other agreements and documents forming part hereof or referred to
herein; i.e. this Agreement at (a) above shall prevail over the agreements and
documents at (b).

(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 effected 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 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

16
shall not in any manner be responsible or be held liable for the inter se allocation of
payments among members of the Joint venture.2

2This 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.

17
 Part II

Scope of Project

19
 Article 2

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
 Article 3

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
costsandexpensespaidbytheContractortotherailwayauthoritiesfor and in
respect of the road over-bridges/ under bridges;and3
(c) all environmental clearances as required under Clause4.3.4

(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.

3 Clause (b) may be omitted if the Project does not include a road over-bridge/under-bridge.
4 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 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.

22
(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 discharge by the
Contractor or its Sub-contractors of their obligations under this Agreement
and the agreements with the Sub-contractors.

23
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
priortothelastdateforsubmissionoftheBid,andintheeventofanymaterial deterioration
or damage other than normal wear and tear, undertake repair
[Link],theAuthorityshallundertakeonlyroutine
maintenancepriortotheAppointedDate,anditshallundertakespecialrepairs only in the
event of excessive deterioration or damage caused due to unforeseen events such as
floods orearthquake.

3.3 Environmental Clearances

The Authority represents and warrants that the environmental clearances

requiredforconstructionoftheProjectshallbeprocuredbytheAuthorityprior to the date
of issue of LOA. For the avoidance of doubt, the present status of environmental
clearances is specified inSchedule-A.5

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
AuthorityshallpaydamagestotheContractorequivalentto1%oftheContract 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
theAuthority.

5Clause3.3maybesuitablymodifiedintheeventthat alltheenvironmental clearancesfortheProject

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 notrequired.

24
 Article 4

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,
complywithandperformallitsobligationssetoutinthisAgreementorarising hereunder.

(ii) TheContractorshallcomplywithallApplicableLawsandApplicablePermits (including

renewals as required) in the performance of its obligations under thisAgreement.

(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
prudentperson.

(iv) TheContractorshallremedyanyandallloss,defects,ordamagetotheProject 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,
ordamageshallhavearisenfromanywilfuldefaultorneglectoftheAuthority.

(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 Clause17.3.

(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 MajeureEvent.

(vii) The Contractor shall, at its own cost and expense, in addition to and not in derogation
of its obligations elsewhere set out in thisAgreement:

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

Instrumentalities with such particulars and details asmay 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
ApplicableLaws;
(b) procure, as required, the appropriate proprietary rights, licences, agreements
and permissions for Materials, methods, processes and systems used or
incorporated into the ProjectHighway;
(c) make reasonable efforts to maintain harmony and goodindustrial relations
among the personnel employed byit or its Sub-contractors in connection with
the performance of its obligations under this Agreement;

25
 (d) ensureandprocurethatitsSub-contractorscomplywithallApplicable
PermitsandApplicableLawsintheperformancebythemofanyofthe Contractor’s
obligations under thisAgreement;
(e) not do or omit to do any act, deed or thing which may in any manner violate
any provisions of thisAgreement;
(f) support, cooperate with and facilitate the Authority in the implementation
and operation of the Project in accordance with the provisions of
thisAgreement;
(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 IndustryPractice;
(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 ofothers.

(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.

(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.

26
(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
throughitsownpersonnelandequipmentinatleast51%(fiftyonepercent) 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)[Link],however,thatinrespect
oftheWorkscarriedoutdirectlybytheContractor,itmayenterintocontracts 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
aforesaidlengthof51%(fiftyonepercent)innomorethan5(five)sections of the Project
Highway. The Parties further agree that all obligations and
liabilitiesunderthisAgreementfortheentireprojectHighwayshallatalltimes remain with
theContractor.

(ii) Intheeventanysub-contractforWorks,ortheaggregateofsuchsub-contracts with any

Sub-contractor, exceeds 5% (five percent) of the Contract Price, the
Contractorshallcommunicatethenameandparticulars,includingtherelevant 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
complytherewith.

(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 atleast 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 ordemur.

27
(iv) ItisexpresslyagreedthattheContractorshall,atalltimes,beresponsibleand 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 sub- contractors
shall be subject to grant of requisite regulatory permits and approvals including
employment/ residential visas and work permits, if any required, and the obligation
to apply for and obtain the same shall alwaysrest with the Contractor.
Notwithstanding anything to the contrary contained in
thisAgreement,refusaloforinabilitytoobtainanysuchpermitsandapprovals 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 Contractor’s liabilities hereunder shall remain unaffected by such failure,
refusal orinability.

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 workmenmaybe got trained by the Contractor at
his cost throughauthorizedtrainingcentresoftheDirectorate 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

28
 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,fromtheAppointedDateuntilthedateofCompletionCertificate,save and except
to the extent that any such loss or damage shall have arisen from any wilful default or
gross neglect of theAuthority.

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 theWorks;
(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 orcosts.

4.9 Co-ordination of the Works

(i) TheContractoracknowledgesthatinadditiontotheAgreement,itisalsoaware 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
totheContractorfromtimetotime)andthattheContractorisfullyawareofthe
consequencestotheAuthoritywhichwouldorarelikelytoresultfromabreach
[Link] 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

29
 has arisen, and (b) indemnify the Authority against any such liability and compensate
the Authority to thatextent.

(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 workto:

(a) any other contractors employed by theAuthority;

(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.

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
fullresponsibilityformeasureswhicharerequired to be taken toensuresuchcompliance.

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 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.

30
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,
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 the provisions of Department for Promotion of
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.

31
 Article 5

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
Agreementandtovalidlyexerciseitsrightsandperformitsobligations under
thisAgreement;
(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 termshereof;
(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
responsibilityhereunder;
(e) the information furnished in the Bid, Request for Qualification and Request for
Proposals or otherwise and as updated on or before the
dateofthisAgreementistrueandaccurateinallrespectsasonthedate of
thisAgreement;
(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
outcomeofwhichmayresultinthebreachofthisAgreementorwhich individually
or in the aggregate may result in any materialimpairment of its ability to
perform any of its obligations under thisAgreement;
(h) it has no knowledge of any violation or default with respect to any
order,writ,injunctionordecreeofanycourtoranylegallybinding order of any
Government Instrumentality which may result in any material adverse effect
on its ability to perform its obligations under
thisAgreementandnofactorcircumstanceexistswhichmaygiverise to such

32
 proceedings that would adversely affect the performance ofits obligations
under thisAgreement;
(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 thisAgreement;
(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
containanyuntrueormisleadingstatementofmaterialfactoromitsor
willomittostateamaterialfactnecessarytomakesuchrepresentation or warranty
notmisleading;
(k) no sums, in cash or kind, have been paid or will be paid, by it or onits behalf,
to any person by way of fees, commission or otherwise for
securingthecontractorenteringintothisAgreementorforinfluencing or
attempting to influence any officer or employee of the Authority in
connectiontherewith;
(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 theContractor;
(m) it is adequately financed has the requisite knowledge, expertise, technical
know-how, experience, resources, infrastructure, licenses,
patents,copyrights,fordesigning,supplying/procuringthegoodsand materials,
and for providing the installation and construction services required for
completing the construction of the Project Facilities;and

(ii) it represents the Authoritythat:

(a) it owns or has the right to use all “Intellectual Property” necessary to
perform the contractual obligations and to carry on theWorks without conflict
with the right of others;
(b) All intellectual property rights necessary to perform the contractual
obligations and to carry on the Works are in full force and effect and are
vested in, and beneficially owned by the Contractor, and are free from
encumbrances.
(c) Noneofthe intellectual property rights
isbeingused,claimed,orposedorattackedby any other person, nor does the use
of such intellectual property rights or any part of them infringe the
intellectual property rights owned orenjoyed 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 thesame.

33
 (e) No licenses or registered user or other rights have been granted
oragreedtobegrantedtoanythirdpartyinrespectofsuchintellectual 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 theintellectual
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 theintellectual property rights.
(i) TheContractorshall,promptlyexecute,acknowledgeanddeliver 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 saidintellectual property rights.
(j) TheContractorshallnot,foranyreason,objectto,orinterferein any way with the
ownership, registration or use of the intellectual property rights by the
Authority (or its licensee or assigns) for any purpose whatsoever.

(iii) The Contractor is fully aware that the Agreement is inter linked with the other Project
contracts and the non-performance or deficient performance or default by the
Contractor and/or any of the Contractor’s personnel or Subcontractors under one
among the said contracts will have bearing on the other contracts and the evaluation
of the Contractor’s performance under the Agreement and the Project itself. Also, if
the contractor is declared as non-performing as per type of deficiencies mentioned in
the MoRTH Circular no. RW/NH-33044/76/2021-S&R (P&B) dated 06.10.2021, then
debarment/penal action will be taken by the Authority.

(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:

34
 (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.
(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 theAuthority

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;

35
 (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.

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
therepresentationorwarrantythathasbeenfoundtobeuntrueorincorrectnor shall it
adversely affect or waive any obligation of either Party under this Agreement.

36
 Article 6

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.

37
 Part III

Construction and Maintenance

39
 Article 7

7 Performance Security

7.1 PerformanceSecurity

(i) (A) Within 30 (thirty) days of receipt of Letter of Acceptance, the selected Bidder
shall furnish to the Authority in the form of Insurance Surety Bond in the form set
forth in Annex III of Schedule-G, Account Payee Demand Draft, Banker’s Cheque or
irrevocable and unconditional e- Bank 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 in the form of
Insurance Surety Bond (in the same form given in Annex-III of Schedule-G), Account
Payee Demand Draft, Banker’s Cheque or irrevocable and unconditional e- Bank
Guarantee from a Bank In the same form given at Annex-I Schedule-G towards an
Additional Performance Security (the “Additional Performance Security”) for an
amount calculated as under:

(a) where the bid price is below 10% but not below 20% of the project
cost put to bid , t he ad di tiona l pe rfo rm anc e gu aran tee/s ec uri ty
pe rcen tage shall be incremented by 0.1% for every percentage of bid
price below 10% of the project cost put to bid starting at 11 % with the
additional bid performance guarantee being 0.1% and this additional
performance guarantee percentage shall be applied on the bid price;
(b) where the bid price is 20% or more below of the project cost put to
bid, the additional performance guarantee percentage shall be incremented
by 0.2% for every percentage of bid price below 20% of the project cost put
to bid in addition to 1% of the bid price and this additional performance
guarantee percentage shall be applied on the bid price;
(c) The additional performance guarantee percentage shall be rounded off
to the next Lower percentage based on whether the decimal point of the
percentage of bid price is below 0.5% or next higher percentage based on
whether the decimal point of the percentage of bid price is 0.5% or more.
(d) The 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 thePerformance 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 thisagreement.

41
(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. 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

SecurityandAdditionalPerformanceSecurity,ifany,withintheadditional60 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
waivedby,andtohaveceasedwiththeconcurrenceoftheContractor,andthe Award shall
be deemed to have been withdrawn by theAuthority

7.2 Extension of Performance Security and Additional Performance Security

The Contractor may initially provide the Performance Security for a periodof
2(two)years;providedthatitshallprocuretheextensionofthevalidityofthe 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 PerformanceSecurity.

7.3 Appropriation of PerformanceSecurity

(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’sDefault.

(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
whichtheAuthorityshallbeentitledtoterminatetheAgreementinaccordance 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

42
 entitled to encash and appropriate such Performance Security as Damages, and to
terminate this Agreement in accordance with Article23.

7.4 Release of PerformanceSecurity

(i) The Authority shall return the Performance Security to the Contractor within 60
(sixty) days of the expiry of the Maintenance Period or the DefectsLiabilityPeriod,
whichever is later,[Link], 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 beenrectified.

(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 Money6

(i) From every payment for Works due to the Contractor in accordance with the
provisionsofClause19.5,theAuthorityshalldeduct6%(sixpercent)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 ContractPrice.

(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’sDefault.

(iii) Within15(fifteen)daysofthedateofissueoftheCompletionCertificate,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 7.5 shall be treated as if they are Performance Security
and shall be reckoned as such for the purposes of Termination Payment under
Clause23.6.

6The 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).

43
 Article 8

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
ProjectHighway.

8.2 Procurement of the Site

(i) The Authority Representative, the Contractor and Authority’s Engineer shall,
within10(ten)daysofthedateofthisAgreement,inspecttheSiteandprepare a detailed
memorandum containing an inventory of the Site including the vacant and
unencumbered land, buildings, structures, road works, trees and any other
immovable property on or attached to the Site (hereinafter referred to as the
“Handover Memorandum”). Subject to the provisions of Clause 8.2 (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 wherework
[Link],inthreecounterparts (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
dischargingitsobligationsunderandinaccordancewiththeprovisionsofthis Agreement
and for no other purposewhatsoever.

(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 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.

44
 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
whereworkcanbeexecutedandnotifytoboththepartieswithin3daysofthe proposed date
of inspection. The parties agree that such notification of the Authority’s Engineer as
mentioned hereinabove shall be final and binding on theparties.

(iii) The Authority shall provide the Right of Way to the Contractor in respect of
alllandincludedintheAppendixbythedatespecifiedinSchedule-Aforthose 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
[Link] damages on
account of any such delay by theAuthority.

(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
[Link] 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
eitherParty.

(vi) Fortheavoidanceofdoubt,thePartiesexpresslyagreethattheAppendixshall in no event

contain sections of the Project Highway the cumulative length of which exceeds 10%
(ten percent) of the total length of the ProjectHighway.

(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,inrespectofthosepartsofthe site
to which vacant access and right of way was not given to the contractor
andincludedinAppendixtothememorandumsignedunderclause8.2 (i),duly specifying
the part of the site, if any, for which the right of way is yet to be handedover.

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 reasonother than Force
Majeure or breach of this Agreement by the Contractor, the
AuthorityshallpayDamagestotheContractorasumcalculatedinaccordance
withthefollowingformulaforandinrespectofthosepartsoftheSitetowhich the Right of
Way has not beenprovided:

Amount of Damages in Rs. per day per metre = 0.05 × 𝐶 × 1 𝐿 × 1 𝑁

45
 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)

IntheeventthatanyDamagesaredueandpayabletotheContractorunderthe 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
exceptthat:

(a) ifanydelaysinvolvetimeoverlaps,theoverlapsshallnotbeadditive;and
(b) such Time Extension shall be restricted only to the Works which are affected
by the delay in providing the Right ofWay.

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
restrictedonlytofailureoftheAuthoritytoprovidetheRightofWayforandin respect of the
“Construction Zone” which shall comprise the following components:

 Main incarriageway
 Median (for 4 lane carriageway ormore)
 Paved and earthen shoulders
 Area for Structures includingROBs/RUBs.
 Safety measures including Roadside Drains andFurniture.
 A parallel working space for accommodating slopes/retaining structuresetc.

(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 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

46
 may be, because the requisite clearances or approvals or affected land
parcelsforcommencingconstructionofWorksthereinhavenot 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 thisClause8.3.3. SuchWorksshall
notbecomputedforthepurposesoftheaforesaidceilingof10%(tenpercent) 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 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 withdrawn Percentage of value of works to be

reduced from Contract Price
Upto Rs. 100 Crore 90 %
More than Rs. 100 Crore Rs. 90 Crore plus 95 % of the amount
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.

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

SubjecttotheprovisionsofClause8.2,theSiteshallbemadeavailablebythe
AuthoritytotheContractorpursuantheretofreefromallEncumbrancesand occupations
and without the Contractor being required to make any payment
totheAuthoritybecauseofanycosts,compensation,expensesandchargesfor
theacquisitionanduseofsuchSiteforthedurationoftheProjectCompletion Schedule. For
the avoidance of doubt, it is agreed that the existing rights of
way,easements,privileges,libertiesandappurtenancestotheSiteshallnotbe deemed to
be Encumbrances. It is further agreed that, unless otherwise
specifiedinthisAgreement,theContractoracceptsandundertakestobearany and all risks
arising out of the inadequacy or physical condition of theSite.

47
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
occupationforthwithtotheAuthorityandundertakeitsremovalatitsowncost
andexpenses.

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
berequiredbyitforthepurposesoftheProjectHighwayandtheperformance of its
obligations under thisAgreement.

8.7 Access to the Authority and the Authority’s Engineer

(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 thisAgreement.

(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’sEngineer.

8.8 Geological and archaeological finds

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

partof this Agreement with the Contractor for the Works, andthe Contractor hereby
acknowledges that it shall not have any mining rights or interest in the underlying
minerals, fossils, antiquities, structures or other
remnantsorthingseitherofparticulargeologicalorarchaeologicalinterestand 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
Contractorshalltakeallreasonableprecautionstopreventitsworkmenorany other
person from removing or damaging such interest or property and shall inform the
Authority forthwith of the discovery thereof and comply withsuch instructions as the
concerned Government Instrumentality may reasonably give for the removal of such

48
property. For the avoidance of doubt, it isagreed 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 reasonableperiod.

49
 Article 9

9 Utilities and Trees

9.1 Existing utilities androads

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
satisfactoryuse,ifnecessary,byprovidingsuitabletemporarydiversionswith the
authority of the controlling body of that road, right of way orutility.

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 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 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 dismantles 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.

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
[Link], it is agreed
that use of the Site under this Clause 9.3 shall not in any manner relieve the

50
 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 theAuthority.

(ii) TheAuthoritymay,bynotice,requiretheContractortoconnectanyadjoining
roadtotheProjectHighway,andtheconnectingportionthereoffallingwithin the Site shall
be constructed by the Contractor at the Authority’s cost in accordance with Article10.

(iii) TheAuthoritymaybynoticerequiretheContractortoconnect,througha paved road, any

adjoining service station, hotel, motel or any other public facility or amenity to the
Project Highway, whereupon the connectingportion 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 Engineerhereunder.

(iv) IntheeventconstructionofanyWorksisaffectedbyanewutilityorworks
undertakeninaccordancewiththisClause9.3,theContractorshallbeentitled to a
reasonable Time Extension as determined by the Authority’sEngineer.

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
[Link] these trees
as per the Permits obtained. The cost of such felling shall beborne by the Authority
and in the event of any delay in felling thereof for reasons
beyondthecontroloftheContractor;itshallbeexcusedforfailuretoperform
anyofitsobligationshereunderifsuchfailureisadirectconsequenceofdelay in the felling
of trees. The Parties hereto agree that the felled trees shall be deemed to be owned by
the Authority and shall be disposed in such manner
andsubjecttosuchconditionsastheAuthoritymayinitssolediscretiondeem
[Link],thePartiesagreethatifanyfellingof trees
hereunder is in a forest area, the Applicable Permit thereof shall be procured by the
Authority within the time specified in theAgreement.

9.5 Dismantling ofstructures

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

51
 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 DevelopmentPeriod

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,beforedeclarationoftheAppointedDate,butnoclaimagainstthe 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 startscountingonlyfromtheAppointedDate. No construction activity of the
Project Highway shall be undertaken during the development period.

52
 Article 10

10 Design and Construction of the Project Highway

10.1 Obligations prior to commencement ofWorks

(i) Within 20 (twenty) days of the Appointed Date, the Contractor shall:

(a) appointitsrepresentative,dulyauthorisedtodealwiththeAuthorityin 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 detaileddesigns;
(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
ApplicablePermits.

(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 arrangementsfordesignandconstruction,environmentalmanagement 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 andequipment.
(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 ofWorks;
ii. the periods for reviews under Clause10.2;
iii. the sequence and timing of inspections and tests specified in this
Agreement;and

53
 iv. the particulars for the pre-construction reviews and for any other
submissions, approvals and consents specified in theAgreement.

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 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.

54
10.2 Design and Drawings

(i) DesignandDrawingsshallbedevelopedinconformitywiththeSpecifications 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’sEngineer.

(ii) The Contractor shall appoint a proof check consultant (the “Proof Consultant”) after
proposing to the Authority a panel of three (3) names of
qualifiedandexperiencedfirmsfromwhomtheAuthoritymaychooseone(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 Contractorhereunder,conveyitsdecision,withreasons,totheContractor,and if no
such decision is conveyed within the said period, the Contractor may proceed with
engaging of the ProofConsultant.

(iii) The Proof Consultantshall:

(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, 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

55
 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
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-

56
 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 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.

(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.

ThePartiesagreethatfordeterminingachievementordelaysincompletionof 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 onthe due date to achieve the Project

57
 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
theextensionofcompletionofthis5%(fivepercent)lengthbeyondScheduled
CompletionDate,StagePaymentof10%X0.95=9.5%onlyistobeachieved 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 Partiesfurther
agreethatTimeExtensionhereundershallonlybereckonedforandinrespect of the
affected Works as specified in Clause10.5 (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 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

58
 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 forcompletion

(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 Clause3.1 (iv);
(b) Change of Scope (unless an adjustment to the Scheduled Completion Date has
been agreed under Article13);
(c) occurrence of a Force MajeureEvent;
(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 thisAgreement.

(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,

59
 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.

ProvidedthatwhendeterminingeachextensionoftimeunderthisClause10.5, the
Authority’s Engineer shall review previous determinations and may increase, but
shall not decrease, the total TimeExtension.

(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 IncompleteWorks

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.

60
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
SpecificationsandStandards,safetyrequirementsandGoodIndustryPractice, and shall
provide 5 (five) copies thereof to the Authority’s Engineer. The
Authority’sEngineershallreviewtheMaintenanceManualwithin15(fifteen) days of its
receipt and communicate its comments to the Contractor for necessary modifications,
ifany.

10.8 As-BuiltRecords

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
[Link] 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 onCompletion.

10.9 Contractor's Use of Authority’sDocuments

Intellectual property in the Authority’s requirements and Specifications and

StandardsandallotherdocumentsandmaterialsissuedbytheAuthorityorthe 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 theAgreement.

61
 Article 11

11 Quality Assurance, Monitoring and Supervision

11.1 Quality of Materials andworkmanship

TheContractorshallensurethattheConstruction,Materialsandworkmanship are in
accordance with the requirements specified in this Agreement, Specifications and
Standards and Good IndustryPractice.

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, submitto 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 auditsystem.

The Authority’s Engineer shall convey its approval to the Contractor within a
periodof21(twenty-one)daysofreceiptoftheQAPstatingthemodifications, if any,
required, and the Contractor shall incorporate those in the QAP to the extent required
for conforming with the provisions of this Clause11.2.

(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.

11.3 Methodology

The Contractor shall, at least 15 (fifteen) days prior to the commencementof 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

62
 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 thisbehalf

mayinspectandreviewtheprogressandqualityoftheconstructionofProject 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
thisAgreement.

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. TheAuditor 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
[Link],thetestingequipmentandthesamplesizeofthisaudit 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’sEngineerfortakingremedialactioninaccordancewiththis 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.
NotwithstandinganythingcontainedinthisClause11.5,theexternaltechnical audit shall
not affect any obligations of the Contractor or the Authority’s Engineer under
thisAgreement.

11.6 Inspection of construction records

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

11.7 Monthly progress reports

During the Construction Period, the Contractor shall, no later than 10 (ten)
daysafterthecloseofeachmonth,furnishtotheAuthorityandtheAuthority’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.

TheContractoragreesthatreportingunderthisClause11.7shallcontinueuntil the date of

the completion of the Works. Each report shallinclude:

(a) an executivesummary;

63
 (b) charts showing the status of Contractor's documents, construction and
manufacturing and environmentalworks;
(c) details of work subcontracted and the performance ofSub-contractors;
(d) fortheconstructionofeachmainpartoftheWorks,theextentofprogress (both
quantity and percentage of the whole), the actual or expected dates of
commencement, anticipated completion date of the activity, Contractor's
inspections andtests;
(e) records of manpower and Contractor's equipment on theSite;
(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 publicrelations;
(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 suchaspects;
(i) details of any unresolved disputes or claims, in relation to theProject;
(j) details of any revision to the cash flow estimate, together with a copy of the
revised cash flowestimate;
(k) statusofvariousApplicablePermitsandcomplianceofconditionstherein;
(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
AuthoritytocomplywithitsobligationsundertheotherProjectcontracts.
(n) details of defects by theAuthority;
(o) change in emission of any sewage or effluent of any nature whatsoever,
whether qualitatively orquantitatively;
(p) any Material AdverseEffect;
(q) declaration towards compliance with Applicable Laws including but not
limited to environmental and labourlegislations;
(r) declaration specifying compliance with all Manuals provided to the
Contractor; and
(s) any change in the flow of traffic in the existing ProjectHighway.

11.8 Inspection

(i) The Authority’s Engineer and its authorised representative shall at all
reasonabletimes:

(a) havefullaccesstoallpartsoftheSiteandtoallplacesfromwhichnatural Materials

are being obtained for use in the Works;and

64
 (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 obligationsunder thisAgreement.

(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
[Link],suchinspection 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
mannerwhatsoever.

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 mayrequire.

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
becarriedouttests,atsuchtimeandfrequencyandinsuchmannerasspecified in this
Agreement, and in accordance with Good Industry Practice for quality management.
The Authority’s Engineer shall witness all the quality control tests carried out by the
contractor at its site laboratory/ main laboratory/ field/ plants. These include tests
for all materials, mixers, products etc. Authority’s Engineer shall also witness all tests
of finished products like bearing in the manufacturers’ laboratory as mandated in
respective standards. Authority’s Engineer will also conduct review of quality control
documents in respect of factory manufactured materials/ finished products, etc as per
IRC: SP: 112.

(ii) IntheeventthatresultsofanytestsconductedunderthisClause11.10establish any Defects

or deficiencies in the Works, the Contractor shall carry out remedial measures and
furnish a report to the Authority’s Engineer inthis 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
broughttheWorksintocompliancewiththeSpecificationsandStandards,and
theprocedureshallberepeateduntilsuchWorksconformtotheSpecifications and
Standards. For the avoidance of doubt, the cost of such tests andremedial measures in
pursuance thereof shall be solely borne by theContractor.

65
11.11 Examination of work before coveringup

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’sEngineerwheneveranysuchworkisreadyandbeforeitiscovered 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,
notbeinglessthan3(three)businessdays’notice,totheAuthority’sEngineer to conduct its
inspection, measurement or test while the work is continuing.
ProvidedfurtherthatintheeventtheContractorreceivesnoresponsefromthe 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
saidinspection.

11.12 Rejection

If,asaresultofanexamination,inspection,measurementortesting,anyPlant, Materials,
design or workmanship is found to be defective or otherwise notin accordance with
the provisions of this Agreement, the Authority’s Engineer shall reject the Plant,
Materials, design or workmanship by giving notice to the Contractor, with reasons.
The Contractor shall then promptly make good
theDefectandensurethattherejecteditemcomplieswiththerequirementsof
thisAgreement.

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
theAuthorityfromtheContractor;andmaybedeductedbytheAuthorityfrom any monies
due to be paid to theContractor.

11.13 Remedialwork

(i) Notwithstanding any previous test or certification, the Authority’s Engineer may
instruct the Contractorto:

(a) remove from the Site and replace any Plant or Materials which arenot in
accordance with the provisions of thisAgreement;
(b) remove and re-execute any work which is not in accordance with the
provisionsofthisAgreementandtheSpecificationandStandards;and

66
 (c) execute any work which is urgently required for the safety of the
ProjectHighway,whetherbecauseofanaccident,unforeseeableevent
orotherwise;providedthatincaseofanyworkrequiredonaccountof a Force
Majeure Event, the provisions of Clause 21.6 shallapply.

(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
issuchthatCompletionoftheProjectHighwayisnotlikelytobeachievedby the end of the
Scheduled Completion Date, it shall notify the same to the Contractor, and the
Contractor shall, within 15 (fifteen) days of such notice, by a communication inform
the Authority’s Engineer in reasonable detail about the steps it proposes to take to
expedite progress and the period within which it shall achieve the Project
CompletionDate.

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
providedtotheAuthoritynolaterthan15(fifteen)daysafterthecloseofeach quarter after
the AppointedDate.

11.17 Suspension of unsafe Construction Works

(i) UponrecommendationoftheAuthority’sEngineertothiseffect,theAuthority may by

notice require the Contractor to suspend forthwith the whole or any part of the

67
 Works if, in the reasonable opinion of the Authority’s Engineer, such work threatens
the safety of the Users andpedestrians.

(ii) TheContractorshall,pursuanttothenoticeunderClause11.17 (i),suspendthe Works or

any part thereof for such time and in such manner as may be specified by the
Authority and thereupon carry out remedial measures to secure the safety of
suspended works, the Users and pedestrians. The Contractor may by notice require
the Authority’s Engineer to inspect such remedial measures forthwith and make a
report to the Authority recommending whether or not the suspension hereunder may
be revoked. Upon receiving the recommendations of the Authority’s Engineer, the
Authority shall either revoke such suspension or instruct the Contractor to
carryoutsuchotherandfurtherremedialmeasuresasmaybenecessaryinthe 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.

(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
reasonablyentitled.

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 andtransport.
(b) The Contractor has verified/ shall verify the identity and address of allits
employees and officials related to the Works by collecting necessary
documentaryproof.
(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

68
 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
[Link]/personnel,executivesengagedbytheContractor shall be
in sole employment of the Contractor and the Contractor shallbe solely
responsible for their salaries, wages, statutory payments, etc and
undernocircumstancesthepersonnelshallbedeemedtobetheemployees
[Link]
anypaymentorclaimorcompensationofanynaturetotheemployeesand
personnel of theContractor.

(ii) Returns of Labour

(a) The Contractor shall deliver to the Authority a detailed return in such form
and at such intervals as the Authority may prescribe, showing the details
including names, payment details and terms of appointment of the several
classes of labour employed by the Contractor from time to time for the
[Link],initsreturnscertifythatallduesoftheworkers or
labour have been fullypaid.
(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 thisAgreement.

(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) TheContractorshallobtainallrelevantlabourregistrationsandcomplywith all

relevant labour laws applying to its employees, and shall duly pay them and
afford to them all their legalrights.
(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
appropriateauthority/(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

69
 witness labour payments for the Contractors direct labour, or the
[Link]
strictly comply with all labourlaws.
(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 labourlaws.

(v) Facilities for Staff and Labour

The Contractor shall provide and maintain all necessary accommodation and welfare
facilities for personnel engaged for the Works. The Contractor shall not permit any
personnel engaged for the Works to maintain any temporary or permanent living
quarters within the structures forming part of the Works.

(vi) Health And Safety

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
Contractorshallmaintainrecordsandmakereportsconcerninghealth,safety and welfare
of personnel, and damage to property, in such manner as the Authority may
reasonablyrequire.

(vii) Contractor's Personnel

TheContractorshallemployonlypersonnelwhoareappropriatelyqualified, 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
theAuthority:

(a) has engaged in anymisconduct;

(b) is incompetent or negligent in the performance of hisduties;
(c) fails to conform with any provisions of theContract;
(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 hisfunctions.

70
 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
anyunlawful,riotousordisorderlyconductbyoramongstitspersonnel,and
topreservepeaceandprotectionofpeopleandpropertyintheneighbourhood of
theWorks.

71
 Article 12

12 Completion Certificate

12.1 Tests onCompletion

(i) Atleast30(thirty)dayspriortothelikelycompletionoftheProjectHighway,
oraSectionthereof,theContractorshallnotifytheAuthority’sEngineerofits 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’sEngineer 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 ofthe 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
delaysuchTestandrequiretheContractortoremedyandrectifytheDefector deficiencies.
Upon completion of each Test, the Authority’s Engineer shall provide to the
Contractor and the Authority copies of all Test data including
[Link],itisexpresslyagreedthatthe 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 andStandards.

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”).

(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

72
 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

IftheAuthority’sEngineercertifiestotheAuthorityandtheContractorthatit is unable to
issue the Completion Certificate, as the
casemaybe,becauseofeventsorcircumstancesonaccountofwhichtheTests 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 reasonablypracticable.

73
 Article 13

13 Change of Scope

13.1 Change of Scope

(i) The Authority may, notwithstanding anything to the contrary contained inthis
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
Article13.

(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 thefollowing:

(a) change in specifications of any item ofWorks;

(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
notomitanyWorkunderthisClauseinordertogetitexecutedbyany other
authority; and /or
(c) any additional Work, Plant, Materials or services which are not
includedintheScopeoftheProject,includinganyassociatedTestson completion
ofconstruction.

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 Contractora 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.

(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”).

74
(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
followingdetails:
i. break-up of the quantities, unit rates and cost for different items of work;and
ii. proposed design for the Change ofScope;

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
provisionsofClause13.4 (ii),theContractPriceshallbeincreasedordecreased, as
the case may be, on account of any such Change ofScope.

(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
[Link]-availability of
Schedule of Rates at the Base Date, the available
ScheduleofRatesshallbeappliedbyupdatingthesamebasedonWPI. 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
proportionaccordingly.
(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 discountthe same considering WPI to achieve the
prevailing rate at the Base Date, and for any item in respect of which MORTH
Standard Data Book does not provide the requisite details, the Authority’s
Engineer shall determine the rate in accordance with Good Industry Practice.
For the avoidance of doubt, in case the cost as determined by the Contractor
and the Authority reveals a difference of more than 10% (ten per cent), the
cost as determined by the Authority shall be considered as final and binding
on the Contractor.
(c) The design charges shall be considered only for new works or items (i.e. the
Works or items not similar to the works or items in the original scope) @ 1%
(one per cent) of cost of such new works or items.

75
 (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 innext 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 Article26;
or
(b) proceed in accordance with Clause13.5.

(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 ofScope

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 ofScope

(i) No Change of Scope shall be executed unless the Authority has issued the
ChangeofScopeOrdersaveandexceptanyWorksnecessaryformeetingany Emergency.

(ii) The total value of all Change of Scope Orders shall not exceed 10% (ten per cent) of
the ContractPrice.

76
(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
obligationsunderthisAgreement, the same shall not bedeemedtobeChangeofScope,and
shall not result in any adjustment of the Contract Price or the Project
CompletionSchedule.

13.5 Power of the Authority to undertakeWorks

(i) In the event the Parties are unable to agree to the proposed Change of Scope
OrdersinaccordancewithClause13.2,theAuthoritymay,aftergivingnotice 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 extrapayment.

(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 Clause13.5.

77
 Article 14

14 Maintenance

14.1 Maintenance obligations of theContractor

(i) The Contractor shall maintain the Project Highway for a period of [05 (Five)] years,
corresponding to the Defects Liability Period, commencing from the date of the
Completion Certificate (the “Maintenance Period”). For the performance of its
Maintenance obligations, the Contractor shall bepaid:

(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 fifthyear
(b) For rigid pavement with 10 years Maintenance Period including structures:
0.25% of the Contract Price each for the first, second andthird 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 tenthyear.
(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 underclause
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.
(d) For stand-alone Bridge/ Tunnel works: the contractor shall bepaid @ 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.

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 theamountspecifiedinClause19.1
(i),whichshallbeadjustedtotheextentof Change of Scope and the works withdrawn
under the provisions of Clause 8.3
(iii),butshallnotincludeanypriceadjustmentsinpursuanceofClause19.10.

(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:

78
 (a) permittingsafe,smoothanduninterruptedflowoftrafficontheProject Highway;
(b) undertakingroutinemaintenanceincludingpromptrepairsofpotholes, cracks,
joints, drains, embankments, structures, pavement markings, lighting, road
signs and other traffic controldevices. 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 tostructures;
(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 thisAgreement.

(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”).

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 thefollowing:

(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 maintenanceWorks.

79
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
provisionsofthisAgreement,ApplicableLaws,ApplicablePermitsandGood
IndustryPractice.

(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 [near Project
site]. 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 policeforthwith.

14.5 Lane closure

(i) TheContractorshallnotcloseanylaneoftheProjectHighwayforundertaking 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
andshallbeaccompaniedbyparticularsthereof.Within5(five)businessdays
ofreceivingsuchrequest,theAuthority’sEngineershallgrantpermissionwith such
modifications as it may deem necessary and a copy of such permission shall be sent to
theAuthority.

(ii) Upon receiving the permission pursuant to Clause 14.5 (i), the Contractorshall
beentitledtoclosethedesignatedlanefortheperiodspecifiedtherein,andfor all lane
closures extending a continuous period of 48 (forty-eight) hours, the Contractor shall,
in the event of any delay in re-opening such lane, for every
stretchof250(twohundredandfifty)metres,orpartthereof,payDamages 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 Terminationthereof.

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 Terminationthereof.

80
(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
additionaltimeshallbedeterminedbytheAuthority’sEngineerandconveyed to the
Contractor and the Authority with reasonsthereof.

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 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 theAuthority 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
theAuthorityfromtheContractor,andtheAuthorityshallbeentitledtodeduct

81
 anysuchcostsandexpensesincurredfromthepaymentsduetotheContractor under
Clause 19.7 for the performance of its Maintenanceobligations.

(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;
providedthattheexerciseofsuchoverridingpowersbytheAuthorityshallbe 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. Itis 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
shallprovideassistanceandcooperationtotheAuthority,onabesteffortbasis, for
performance of its obligationshereunder.

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 successful in
accordance with Schedule-Q, the Authority
willissueTakingOverCertificatetotheContractorsubstantiallyintheformat set forth
inSchedule-R.

82
 Article 15

15 Supervision and Monitoring during Maintenance

15.1 Inspection by theContractor

(i) The Authority’s Engineer shall undertake regular inspections to evaluate

continuously the compliance with the MaintenanceRequirements.

(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
proposedmaintenanceworksasrequiredshallbeconveyedtotheAuthority’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 Engineerforthwith.

15.2 Inspection and payments

(i) TheAuthority’sEngineermayinspecttheProjectHighwayatanytime,butat 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)[Link] 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
inSchedule-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 isprocured.

83
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.

AtanytimeduringMaintenancePeriod,theAuthoritymayappointanexternal
[Link] 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
[Link],thetestingequipmentandthesamplesizeofthisaudit 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

TheContractorshall,duringtheMaintenancePeriod,priortothecloseofeach 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
HighwayrelatingtothesafetyandsecurityoftheUsersandProjectHighway.
Amonthlysummaryofsuchreportsshallalsobesentwithin3(three)business days of the
closing of month. For the purposes of this Clause 15.4, accidents and unusual
occurrences on the Project Highway shallinclude:

(a) accident, death or severe injury to anyperson;

(b) damaged or dislodged fixedequipment;
(c) flooding of Project Highway;and
(d) any other unusualoccurrence.

84
 Article 16

16 Traffic Regulation

16.1 Traffic regulation by the Contractor

(i) The Contractor shall take all the required measures and make arrangements
forthesafetyofUsersduringtheConstructionandMaintenanceoftheProject 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 interferenceto 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
unreasonablywithheld.

85
 Article 17

17 Defects Liability

17.1 Defects LiabilityPeriod

(i) TheContractorshallberesponsibleforalltheDefectsanddeficiencies,except usual wear

and tear in the Project Highway or any Section thereof, till the
expiryofaperiodofcommencingfromthedateofCompletionCertificate(the “Defects
Liability Period”) as specifiedbelow:

(a) 5 (five) years from the date of completion in case of a road being constructed
with flexiblepavement;
(b) 10 (ten) years from the date of completion in case of road being constructed
with rigid pavement;
(c) 10 (ten) years from the date of completion in case of road being constructed
with flexible pavement using perpetual design;
(d) 10 (ten) years from the date of completion in case of all stand-alone
structures, e.g. Major Bridges/ and Tunnels;
(e) 10(ten) yearsfromthedateofcompletionforthestretcheswherenew technology/
material has been/ is proposed to beused.
(f) 3 (three) years from the date of completion for stretches requiring renewal of
Bituminous Concrete (BC) layer through either using hot-in-place recycling of
the entire BC layer or providing a fresh layer of BC with 40mm thickness.
(g) 3 (three) years from the date of completion for stretches requiring
improvement to riding quality, in cases other than those mentioned in para (f)
above, through laying a layer of BM/DBM and BC.

TheDefectsLiabilityPeriodshallcommencefromthedateoftheCompletion 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.

86
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 theProject;

(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 Highwayby the
Contractor; and/or
(d) failure by the Contractor to comply with any other obligation under
thisAgreement.

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
[Link],afterdueconsultationwith 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
andmaybedeductedbytheAuthorityfromanymoniesduetotheContractor.

17.5 Extension of Defects Liability Period

The Defects Liability Period shall be deemed to be extended till theidentified Defects
under Clause 17.2 have beenremedied or rectified.

87
 Article 18

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
engineerunderthisAgreement(the“Authority’sEngineer”).Inunavoidable
circumstances,AuthoritymayappointanofficertoactasAuthority’sEngineer until
appointment of a Consulting Engineeringfirm/ 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) TheAuthority’sEngineershouldbeappointedwithin10daysfromthedateof this

Agreement or before declaration of Appointed Date, whichever isearlier. The
Authority shall notify the appointment or replacement of the Authority’s Engineer to
theContractor.

(iv) ThestaffoftheAuthority’sEngineershallincludesuitablyqualifiedengineers and other

professionals who are competent to assist the Authority’s Engineer to carry out
itsduties.

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
beforedetermining:

(a) any TimeExtension;

(b) any additional cost to be paid by the Authority to theContractor;
(c) the Termination Payment;

88
 (d) issuance of Completion Certificate;or
(e) any other matter which is not specified in (a), (b), (c) or (d) aboveand which
creates financial liability on eitherParty.

(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 suchpersonnel.

(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
EngineershallnotdelegatetheauthoritytoreferanymatterfortheAuthority’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
Clause18.3.

(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 issuingthem.

(iii) IncasetheContractordoesnotreceivetheconfirmationoftheoralinstructions
withinthetimespecifiedinClause18.4 (ii),theContractorshallseekthewritten
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

89
 Authority’sEngineeroritsdelegatedassistanttoreplytotheContractorwithin 2 (two)
days of the receipt of the communication from the Contractor, the Contractor may not
carry out theinstructions.

(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
beingreferred.

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
anymatterbytheAuthority’[Link],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 supportingparticulars.

(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 ResolutionProcedure.

18.6 Remuneration of the Authority’s Engineer

Theremuneration,costsandexpensesoftheAuthority’sEngineershallbepaid by
theAuthority.

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
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’s
Engineer in accordance with Clause 18.1 and 18.7 (i).

90
 Part IV

Financial Covenants

91
 Article 19

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 CompletionCertificate.

(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 thisAgreement.
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 and19.17.

(iv) The Contract Price shall not be adjusted to take account of any unforeseen difficulties
or costs, unless otherwise provided for in thisAgreement.

(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
necessaryfortheConstructionandtheremedyingofanyDefectsintheProject Highway.

(vi) All payments under this Agreement shall be made in IndianRupees.

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,
exclusively for
[Link] 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
releasedearlier.

91
(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 or
Insurance Surety Bond. 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 bank or Insurance Surety Bond from Insurance
Company 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 or Insurance Surety Bond from
Insurance Company 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 or Insurance Surety
Bond 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 or Insurance Surety Bond shall remain effective till full repayment of such
part advance corresponding to this bank guarantee or Insurance Surety Bond. Such
part of Bank Guarantee or Insurance Surety Bond shall be returned to the Contractor
on recovery under the Agreement of the full amount of such part guarantee or
Insurance Surety Bond 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 Clause19.2.

92
(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 Construction Period is over, Schedule
(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 or Insurance Surety
Bond 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 or Insurance Surety Bond 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
theAuthority’sEngineeroncompletionofastage,inalength,numberorarea
asspecifiedandvaluedinaccordancewiththeproportionoftheContractPrice assigned to
each item and its stage inSchedule-H.

(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
workswithdrawnunderClause8.3shallnotaffecttheamountspayableforthe items or
stage payments thereof which are not affected by such Change of
[Link],the
PartiesagreethatiftheamountassignedtoMajorBridgesisreducedfromRs. 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
Bridgesonlyandthepaymentdueinrespectofallotherstagepaymentsunder
[Link] agree that

93
 the adjustments arising out of the aforesaid modifications shall be carried out in a
manner that the impact of such modifications is restricted to
thesaidChangeofScopeorwithdrawal,asthecasemaybe,anddoesnotalter the payments
due for and in respect of items or stage payments which do not form part of such
Change of Scope orwithdrawal.

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)percentoftheamountsodeterminedaspartpaymentagainsttheStage 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
bankaccount.

(ii) Within15(fifteen)daysofthereceiptoftheStagePaymentStatementreferred 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
payabletotheContractor,afteradjustingthepaymentsalreadyreleasedtothe Contractor
against the said statement. For the avoidance of doubt, the Parties agree that the IPC
shall specify all the amounts that have been deducted from the Stage Payment
Statement and the reasonstherefor.

(iii) Incaseswherethereisadifferenceofopinionastothevalueofanystage,the
Authority’sEngineer’sviewshallprevailandinterimpaymentsshallbemade to the
Contractor on this basis; provided that the foregoing shall be without prejudice to the
Contractor’s right to raise aDispute.

(iv) The Authority’s Engineer may, for reasons to be recorded, withhold from payment:

(a) theestimatedvalueofworkorobligationthattheContractorhasfailed to perform

in accordance with this Agreement and the Authority’s Engineer had notified
the Contractor; and
(b) theestimatedcostofrectificationofworkdonebeingnotinaccordance with
thisAgreement.

94
(v) Payment by the Authority shall not be deemed to indicate the Authority's acceptance,
approval, consent or satisfaction with the workdone.

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 Clause14.1 (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
verifytheContractor’smonthlymaintenancestatementandcertifytheamount to be paid
to the Contractor taking intoaccount:

(a) Compliance with the Maintenance Requirements;and

(b) reduction for non-compliance with the Maintenance Requirement in
accordance with Clause19.7 (ii).
The Authority’s Engineer shall deliver to the Authority an IPC approving or
amending the monthly maintenance statement to reflect the amount due tothe
Contractor in accordance with this Agreement.

(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 orrectification.

(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
provisions of thisAgreement.

95
(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
withinthespecifiedtime,theAuthorityshallbeliabletopaytotheContractor
interestthereonandtheprovisionsofClause19.9shallapplymutatismutandis thereto.

19.9 Time of payment and interest

(i) The Authority shall pay to the Contractor any amount due under anypayment
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 asfollows:

(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
periodof30(thirty)days,theAuthorityshallpaytheamountshownin
theContractor’sStagePaymentStatementandanydiscrepancytherein
shallbeaddedto,ordeductedfrom,thenextpaymentcertificateissued to the
Contractor;and
(b) payment shall be made no later than 30 (thirty) days from the date of
submission of the Final Payment Certificate for Works along with the
dischargesubmittedtotheAuthority’sEngineerinaccordancewiththe provisions
of Clause 19.15 forcertification.

(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,onallsumsremainingunpaidfromthedateonwhichthesame
shouldhavebeenpaid,calculatedinaccordancewiththeprovisionsofsub-Clauses (a) and
(b) of Clause 19.9 (i) and till the date of actualpayment.

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 Clause19.10

(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 theAuthority’s
EngineerfortheincreaseordecreaseintheindexcostofinputsfortheWorks, by the
addition or subtraction of the amounts determined by the formulae prescribed in
Clause19.10 (iv).

96
(iii) To the extent that full compensation for any increase or decrease in costs to
theContractorisnotcoveredbytheprovisionsofthisorotherClausesinthis 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
andprices.

(iv) TheContractPriceshallbeadjustedforincreaseordecreaseinratesandprice 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 withSchedule-H;
(b) Adjustment for each item of work/stage shall be madeseparately;
(c) The following expressions and meanings are assigned to the value of the
workdone:
RW= Value of work done for the completion of a stage under the following
items of Schedule-H:
i. Road works;and

ii. Otherworks
BR=Valueofworkdoneforthecompletionofastageundertheitems Major Bridges
and Structures(Schedule-H)
(d) Price adjustment for changes in cost shall be paid in accordance with the
followingformulae:

(i) 𝑉𝑅𝑊 = 0.85 × 𝑅𝑊 × [𝑃𝐿 × + 𝑃𝐴 × + 𝑃𝐹 × +

𝑃𝐵 × + 𝑃𝑀 × + 𝑃𝐶 × + 𝑃𝑆 × ]

(ii) 𝑉𝐵𝑅 = 0.85 × 𝐵𝑅 × [𝑃𝐿 × + 𝑃𝐴 × + 𝑃𝐹 × +

𝑃𝑀 × + 𝑃𝐶 × + 𝑃𝑆 × ]

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= IncreaseordecreaseinthecostofMajorBridgesandStructuresduring 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)respectivelyfortherelevantitemasstatedinsub-paragraph(e).

97
PAisthepercentageofPlant,machineryandsparescomponentforthe 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 [Haldia] on the
Base Date.

BI = The official retail price of bitumen at nearest refinery at [Haldia], on the first
day of the month three months prior to the month to which the IPC relates.

CO = The WPI for Ordinary Portland Cement for the month of the Base Date.

CI = The WPI for Ordinary Portland Cement for the month three months prior to
the month to which the IPC relates.

FO = The official retail price of high-speed diesel (HSD) oil at the existing consumer
pumps of Indian Oil Corporation (“IOC”) in the [State of Sikkim having nearest
source to the project] on the Base Date.

FI = The official retail price of HSD at the existing consumer pumps of IOC in the
State of Sikkimhaving nearest source to the project] 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 [relevant circle in the
State of Sikkim], 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 prior to
the month to which the IPC relates.

98
 (e) The following percentages shall govern the price adjustment of the Contract
Price:

Item
Road Works
Earthwork, Culverts, Major
Component Cement
Granular work, Bitumin minor bridges Bridges and
Concrete
and ous work and other Structures
Pavement
Otherworks structures
Labour (PL) [20%] [20%] [20%] [15%] [15%]
Cement (PC) [5%] Nil [20%] [15%] [15%]
Steel (PS) Nil Nil Nil [15%] [20%]
Bitumen (PB) Nil [15%] Nil Nil Nil
Fuel and [10%] [10%] [10%] [10%] [10%]
lubricants
(PF)
Other [50%] [40%] [35%] [30%] [25%]
Materials
(PM)
Plant, [15%] [15%] [15%] [15%] [15%]
machinery
and spares.
(PA)
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
Contractornolaterthan30(thirty)daysfromthedateoftheapplicableProject Milestone or
the Scheduled Completion Date, as the case may be, including
anyTimeExtensiongrantedthereforinaccordancewiththeprovisionsofthis 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 maybe.

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:

𝑊 −𝑊
𝑉=𝑃×
𝑊

Where

99
 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.

W I= The wholesale price index (all commodities) for the first day of the quarter under
consideration for determining the price adjustment.

19.13 Final Payment Statement

(i) Within60(sixty)daysafterreceivingtheCompletionCertificateunderClause 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’sEngineer:

(a) the summary of Contractor’s Stage Payment claims for Works as submitted in
accordance with Clause19.4;
(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
FinalPaymentStatement,theContractorshallsubmitsuchfurtherinformation
astheAuthority’[Link]’sEngineer shall
deliver to theAuthority:
i. anIPCforthosepartsoftheFinalPaymentStatementwhicharenotin 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
disputeditems.

(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.

100
19.15 Final Payment Certificate

(i) Within30(thirty)daysafterreceiptoftheFinalPaymentStatementforWorks under Clause

19.13, and the written discharge under Clause 19.14, and there
beingnodisputeditemsofclaim,theAuthority’sEngineershalldelivertothe
Authority,withacopytotheContractor,afinalpaymentcertificate(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’sEngineershallascertainfromtheAuthorityallamountspreviously 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 maybe.

(ii) The Authority shall, in accordance with the provisions of Clause 19.9, payto the
Contractor the amount which is stated as being finally due in the Final
PaymentCertificate.

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’sEngineer:

(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
supportingdocuments.

(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 deemsfit.

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)
daysfromthedateitbecomesreasonablyawareofsuchadditionincost,notify the
Authority with a copy to the Authority’s Engineer of such additional cost due to
Change inLaw.

101
(ii) IfasaresultofChangeinLaw,theContractorbenefitsfromanyreductionin
costsfortheexecutionofthisAgreementorinaccordancewiththeprovisions 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 inLaw.

(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 Certificateissued by the
Authority’sEngineer.

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
particularstotheContractor20(twenty)daysbeforemakingtherecoveryfrom any
amount due to the Contractor, and shall take into consideration the representation, if
any, made by the Contractor in this behalf, before making suchrecovery.

19.20 Deleted

102
 Article 20

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
liabletobearthecostofanylossordamagethatdoesnotfallwithinthescope of this Article
20 or cannot be recovered from theinsurers.

(iii) Subject to the exceptions specified in Clause 20.1 (iv) below, the Contractor
shall,saveandexceptasprovidedforinthisAgreement,fullyindemnify,hold harmless and
defend the Authority from and against any and all losses, damages, costs, charges
and/or claims with respectto:

(a) the death of or injury to any person;or

(b) the loss of or damage to any property (other than theWorks);
thatmayariseoutoforinconsequenceofanybreachbytheContractorofthis
Agreement during the executionoftheWorksortheremedyingofanyDefects
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
indemnify the Contractor from and against any and all losses, damages,costs,
charges,proceedingsand/orclaimstotheextentasmaybeproportionately
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.

103
(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

Nolaterthan15(fifteen)daysafterthedateofthisAgreement,theContractor 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 shallapply.

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
furnishtotheAuthoritynotarisedtruecopiesofthecertificate(s)ofinsurance, 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
ofsuchproposedcancellation,modificationornon-renewalhasbeendelivered
[Link] 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
currentpremia.

(ii) The Contractor shall ensure the adequacy of the insurances at all times in accordance
with the provisions of thisAgreement.

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,treatanamountequaltotheInsuranceCoverasdeemedtohavebeen received by
theContractor.

104
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 personinsured under any such policy or in any way connected with any loss,
liability or obligation covered by such policies ofinsurance.

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

AnysuchinsurancemaintainedoreffectedinpursuanceofthisArticle20shall include a
cross liability clause such that the insurance shall apply to the Contractor and to the
Authority as separatelyinsured.

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
personintheemploymentoftheContractororSub-contractor,saveandexcept as for death
or injury resulting from any act, omission or wilful default of the Authority, its agents
or servants. The Contractor shall indemnify and keep indemnified the Authority from
and against all such claims, proceedings,
damages,costs,charges,andexpenseswhatsoeverinrespectoftheabovesave
andexceptforthoseacts,omissionsorwilfuldefaultsforwhichtheAuthority shall beliable.

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
[Link] 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

105
 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
respectofsuchpersonsinsuchmannerthattheAuthorityisindemnifiedunder
[Link]-contractortoproducebefore 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 theAuthority.

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 receiptsfor
thepremiums;
(b) effectallinsurancesforwhichtheContractorisresponsiblewithaninsurer
approved by theAuthority;
(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 Agreementor 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 costpromptly;
(f) provide all assistance to the Authority in the application for, and finalization
of, such comprehensive insurancepackage;
(g) pay the Contractor's share of the insurance premiums for insurance
premiums allocated under such comprehensive insurance package policy to

106
 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 claimexpeditiously;
(i) require all the Sub-Contractors providing equipment and materials or services
to the Contractor or the Authority to obtain, maintain and keepin
forceduringthetimeinwhichtheyareinvolvedintheperformanceofthe Works
hereunder insurance coverage consistent with the Contractor's insurance
obligations hereunder and the Contractor shall also be responsible for
fulfilment 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
[Link] the
Contractor of its liabilities and obligations under thisAgreement.

107
 Part V

Force Majeure and Termination

109
 Article 21

21 Force Majeure

21.1 Force Majeure

AsusedinthisAgreement,theexpression“ForceMajeure”or“ForceMajeure 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 AffectedParty.

21.2 Non-Political Event

A Non-Political Event shall mean one or more of the following acts or events:

(a) actofGod,epidemic,extremelyadverseweatherconditions,lightning, earthquake,

landslide, cyclone, flood, volcanic eruption, chemical or radioactive
contamination or ionising radiation, fire or explosion (to
theextentofcontaminationorradiationorfireorexplosionoriginating 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
attributabletoanyactoromissionofanyofthem)interruptingsupplies 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 Clause21.3;
(c) any failure or delay of a Sub-contractor but only to the extent caused by
another Non-PoliticalEvent;
(d) any judgement or order of any court of competent jurisdiction or statutory
authority made against the Contractor in any proceedingsfor 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 theAuthority;
(e) the discovery of geological conditions, toxic contamination or
archaeologicalremainsontheSitethatcouldnotreasonablyhavebeen 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:

111
 (a) an act of war (whether declared or undeclared), invasion, armed
conflictoractofforeignenemy,blockade,embargo,riot,insurrection, terrorist or
military action, civil commotion or politically motivated sabotage;
(b) industry-wideorState-widestrikesorindustrialactionforacontinuous
periodof24(twenty-four)hoursandexceedinganaggregateperiodof 10 (ten)
days in an AccountingYear;
(c) any civil commotion, boycott or political agitation which prevents
constructionoftheProjectHighwaybytheContractorforanaggregate period
exceeding 10 (ten) days in an AccountingYear;
(d) any failure or delay of a Sub-contractor to the extent caused by any Indirect
PoliticalEvent;
(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 Clause19.17;
(b) compulsory acquisition in national interest or expropriation of any Project
Assets or rights of the Contractor or of theSub-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
resultfromtheContractor’soranySub-contractor’sinabilityorfailure
tocomplywithanyconditionrelatingtogrant,maintenanceorrenewal of such
clearance, licence, authorisation, no objection certificate, exemption, consent,
approval orpermit;
(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) UponoccurrenceofaForceMajeureEvent,theAffectedPartyshallbynotice
[Link] shall
include full particularsof:

112
 (a) thenatureandextentofeachForceMajeureEventwhichisthesubject 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 thisAgreement;
(c) themeasureswhichtheAffectedPartyistakingorproposestotakefor alleviating
the impact of such Force Majeure Event;and
(d) any other information relevant to the Affected Party’sclaim.

(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) UpontheoccurrenceofanyForceMajeureaftertheAppointedDate,thecosts incurred and

attributable to such event and directly relating to thisAgreement (the “Force Majeure
costs”) shall be allocated and paid asfollows:

(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 coststhereof;
(b) uponoccurrenceofanIndirectPoliticalEvent,allForceMajeurecosts attributable
to such Indirect Political Event, and not exceeding the
InsuranceCoverforsuchIndirectPoliticalEvent,shallbebornebythe 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 theContractor.
(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,

113
 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) IfaForceMajeureEventsubsistsforaperiodof60(sixty)daysormorewithin 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,
whetherornotitisinreceiptofsuchrepresentation,initssolediscretionissue the
TerminationNotice.

21.8 Termination Payment for Force Majeure Event

(i) IntheeventofthisAgreementbeingterminatedonaccountofaNon-Political Event, the

Termination Payment shall be an amount equal to the sum payable under Clause23.5.

ProvidedthatintheeventTerminationoccursduringtheMaintenancePeriod, the
Authority’s Engineer shall only determine the value of Worksassociated with
Maintenance.

(ii) If Termination is on account of an Indirect Political Event, the Termination Payment

shallinclude:

(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
andMaterialsareinconformitywiththeSpecificationsandStandards;

ProvidedthatintheeventTerminationoccursduringtheMaintenancePeriod, the
Authority’s Engineer shall only determine the value of Works associated
withMaintenance.

(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 AuthorityDefault.

114
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 MajeureEvent.

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
beexcusedfromperformanceofsuchofitsobligationstotheextentitisunable to perform
on account of such Force Majeure Event; providedthat:

(a) the suspension of performance shall be of no greater scope and of no longer

duration than is reasonably required by the Force Majeure Event;
(b) theAffectedPartyshallmakeallreasonableeffortstomitigateorlimit 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
obligationsunderthisAgreement,itshallgivetotheotherPartynotice
tothateffectandshallpromptlyresumeperformanceofitsobligations hereunder.

115
 Article 22

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 thisAgreement 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
hereundershallbeeffectiveforthwithuponissueofnoticebytheAuthorityto the
Contractor and may extend up to a period not exceeding 90 (ninety) days from the
date of issue of suchnotice.

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
havebeendoneortakenforandonbehalfoftheContractorandtheContractor undertakes
to indemnify the Authority for all costs incurred during such period. The Contractor
hereby licences and sub-licences respectively, the
AuthorityoranyotherpersonauthorisedbyitunderClause22.1touseduring
Suspension,allIntellectualPropertybelongingtoorlicensedtotheContractor with
respect to the Project Highway and its design, engineering, construction
andmaintenance,andwhichisusedorcreatedbytheContractorinperforming its
obligations under theAgreement.

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
expresslyagreethattheAuthoritymay,initsdiscretion,revoketheSuspension at any time,
whether or not the cause of Suspension has been rectified or removedhereunder.

(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 Contractorunder thisAgreement.

116
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
receiptofsuchnotice,terminatethisAgreementunderandinaccordancewith Article23.

(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,bedeemedtohavebeenterminatedbymutualagreementoftheParties
andalltheprovisionsofthisAgreementshallapply,mutatismutandis,tosuch
TerminationasifaTerminationNoticehadbeenissuedbytheAuthorityupon occurrence of
a ContractorDefault.

117
 Article 23

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 Periodis
specified,thenwithinaCurePeriodof60(sixty)days,theContractorshallbe
deemedtobeindefaultofthisAgreement(the“ContractorDefault”),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) theContractorfailstoprovide,extendorreplenish,asthecasemaybe, the

Performance Security in accordance with thisAgreement;
(b) after the replenishment or furnishing of fresh Performance Security in
accordancewithClause7.3,theContractorfailstocure,withinaCure Period of 30
(thirty) days, the Contractor Default for which the whole or part of the
Performance Security wasappropriated;
(c) the Contractor does not achieve the latest outstanding Project
MilestonedueinaccordancewiththeprovisionsofSchedule-J,subject
toanyTimeExtension,andcontinuestobeindefaultfor45(fortyfive) days;
(d) the Contractor abandons or manifests intention to abandon the construction
or Maintenance of the Project Highway without the prior written consent of
theAuthority;
(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) theProjectCompletionDatedoesnotoccurwithintheperiodspecified in
Schedule-J for the Scheduled Completion Date, or any extension thereof;
(g) theContractorfailstorectifyanyDefect,thenon-rectificationofwhich shall have a
Material Adverse Effect on the Project, within the time
specifiedinthisAgreementorasdirectedbytheAuthority’sEngineer;
(h) the Contractor subcontracts the Works or any part thereof in violation
ofthisAgreementorassignsanypartoftheWorksortheMaintenance without the
prior approval of the Authority;
(i) the Contractor creates any Encumbrance in breach of thisAgreement;
(j) anexecutionleviedonanyoftheassetsoftheContractorhascauseda Material
AdverseEffect;

118
(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 theProject;
(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 AdverseEffect;
(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 providedthat:
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
hasacreditworthinessatleastasgoodasthatoftheContractor as at the
AppointedDate;

(n) any representation or warranty of the Contractor herein contained which is,
as of the date hereof, found to be false or the Contractor isat any time
hereafter found to be in breach or non-compliancethereof;
(o) the Contractor submits to the Authority any statement, notice or other
document,inwrittenorelectronicform,whichhasamaterialeffecton the
Authority’s rights, obligations or interests and which is false in
materialparticulars;
(p) the Contractor has failed to fulfil any obligation, for whichfailure Termination
has been specified in this Agreement; or
(q) the Contractor commits a default in complying with any other
provisionofthisAgreementifsuchadefaultcausesaMaterialAdverse Effect on the
Project or on theAuthority.
(r) gives or offers to give (directly or indirectly) to any person any bribe, gift,
gratuity, commission or other thing of value, as an inducementor 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

119
 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
suchnotice;
(b) The Cure Period provided in the Agreement shall not relieve the Contractor
from liability for Damages caused by its breach ordefault;
(c) The Cure Period shall not in any way be extended by any period of suspension
under theAgreement;
(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
Contractorfordamagesincurred)shallbeextendedbytheperiodtaken 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
“AuthorityDefault”)unlessthedefaulthasoccurredasaresultofanybreach of this
Agreement by the Contractor or due to Force Majeure. The defaults referred to herein
shallinclude:

(a) the Authority commits a material default in complying with any ofthe
provisions of this Agreement and such default has a Material Adverse Effect
on theContractor;

120
 (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) theAuthorityhasfailedtoprovide,withinaperiodof180(onehundred and eighty)
days from the Appointed Date, the environmental clearances required for
construction of the ProjectHighway;
(d) theAuthoritybecomesbankruptorinsolvent,goesintoliquidation,has
areceivingoradministrationordermadeagainsthim,compoundswith
itscreditors,orcarriesonbusinessunderareceiver,trusteeormanager for the
benefit of its creditors, or if any act is done or event occurs which (under
Applicable Laws) has a similareffect;
(e) the Authority repudiates this Agreement or otherwise takes anyaction that
amounts to or manifests an irrevocable intention not to be bound by
thisAgreement;
(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 theContractor.

(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 hewould be deemed to have waived
any claim and forfeited any right to any other remedy on that count or in relation to
such action oromission.

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 theContractor.

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:

121
 (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 extentpermissible under
Applicable Laws;and
(c) vacate the Site within 15 (fifteen)days.

23.5 Valuation of Unpaid Works

(i) Withinaperiodof45(forty-five)daysafterTerminationunderClause23.1, 23.2 or 23.3, as

the case may be, has taken effect, the Authority’s Engineer shall proceed in
accordance with Clause 18.5 to determine as follows the valuation of unpaid Works
(the “Valuation of Unpaid Works”):

(a) value of the completed stage of the Works, less payments already made;
(b) reasonable value of the partially completed stages of works as on the date of
Termination, only if such works conform with the Specifications and
Standards;and
(c) value of Maintenance, if any, for completed months, less payments
alreadymade, 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
Authorityshall:

(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, ifany;
(b) encashandappropriatetheBankGuarantee,ifany,forandinrespectof 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 adjustingany other
sumspayableorrecoverable,asthecasemaybe,inaccordancewiththe provisions
of thisAgreement.

(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:

122
 (a) return the Performance Security, Additional Performance Security and
Retention Moneyforthwith;
(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 UnpaidWorks;
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
Clause23.6;
(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) theAuthorityshallbeentitledtorestraintheContractorandanyperson claiming
through or under the Agreement from entering upon the Site or any part of
the Project, which have not been vested in theAuthority in accordance with
the provisions of thisAgreement.

123
23.8 Survival of rights

Notwithstanding anything to the contrary contained in this Agreement any

Termination pursuant to the provisions of this Agreement shall be without prejudice
to the accrued rights of either Party including its right to claim and recover money
damages, insurance proceeds, security deposits, and other rights and remedies,which
it may have in law or Agreement. All rights and obligations of either Party underthis
Agreement, including Termination Payments, shall survive the Termination to the
extent such survival is necessary for giving effect to such rights andobligations.

23.9 Foreclosure with mutualconsent

(i) Without prejudice to any provision of this Agreement, the Authority and Contractor
may foreclose this Agreement by mutual consent incircumstances which does not
constitute either party’s default without any liability or consequential future liability
for eitherparty.

(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
eitheragreetosuchforeclosureorraiseobjection(s)tothesamebyintimating either of the
two possible positions to the intending Party inwriting.

(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
notcomeintoeffectunlessandotherwiseSupplementaryAgreementissigned.

(iv) Anyattemptorendeavorforforeclosurebymutualagreementshallbewithout prejudice to

the rights and obligations of the Parties herein and the factum of
suchanattemptorexerciseshallnotstopeitherofthePartiesfromdischarging their
contractual obligations under thisAgreement.

(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 theAuthority.

124
 Part VI

Other Provisions

125
 Article 24

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.

127
 Article 25

25 Liability and Indemnity

25.1 Generalindemnity

(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
whateverkindandnature,whetherarisingoutofanybreachbytheContractor 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 IndemnifiedPersons.

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
IndemnifiedPersonsfromandagainstanyandalllossand/ordamagesarising out of or
with respectto:

(a) failure of the Contractor to comply with Applicable Laws and

ApplicablePermits;
(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 itsSub-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 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

128
 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,itmayconducttheproceedingsinthenameoftheIndemnifiedParty, subject to the
Indemnified Party being secured against any costs involved, to its
reasonablesatisfaction.

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
orarisingoutofanymatterforwhichitisentitledtobeindemnifiedhereunder, 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 todo 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,
unlesstheIndemnifyingPartyprovidessuchsecuritytotheIndemnifiedParty as shall be
reasonably required by the Indemnified Party to secure the loss to be indemnified
hereunder to the extent so compromised orsettled.

(ii) If the Indemnifying Party has exercised its rights under Clause 25.3, the
IndemnifiedPartyshallnotbeentitledtosettleorcompromiseanyclaim, action, suit or
proceeding without the prior written consent of the Indemnifying Party (which
consent shall not be unreasonably withheld or delayed).

129
(iii) If the Indemnifying Party exercises its rights under Clause 25.3, the
IndemnifiedPartyshallneverthelesshavetherighttoemployitsowncounsel, 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
counselreasonablysatisfactorytotheIndemnifiedParty,toassumethe defence of
such action and shall have been so notified by the Indemnified Party;or
(d) theIndemnifiedPartyshallhavereasonablyconcludedandspecifically 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 ofthe
IndemnifiedParty,andthereasonablefeesanddisbursementsofsuchcounsel shall
constitute legal or other expenseshereunder.

25.5 Survival on Termination

The provisions of this Article 25 shall survive Termination.

130
 Article 26

26 Dispute Resolution

26.1 Dispute Resolution

(iv) In the event of any dispute, difference or controversy of whatever nature howsoever
arising under or out 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”) either Party may call upon the Authority’s Engineer, to mediate and assist
the Parties in arriving at an amicable settlement thereof.

(v) 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 anyDispute.

(vi) Dispute Resolution Board (DRB):

Failing mediation by the Authority Engineer or without the intervention of the

Authority’s Engineer, either Party may require such dispute to be referred to the
Dispute Resolution Board (“DRB”) in accordance with the procedure setforth in
Schedule-[S] to the Contract Agreement. The decision(s) of the Dispute Resolution
shall be binding on both parties who shall promptly give effect to unless and until the
same is revised/ modified, as hereinafter provided, in a Conciliation/ Arbitral
Tribunal.

26.2 Conciliation

If either the employer or the Contractor is dissatisfied with any decision of the DRB,
and/ or if the DRB is unable to resolve the dispute, 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.

26.3 Arbitration

Any Dispute which is not resolved amicably by conciliation as provided in Clause 26.2 shall be
finally settled by arbitration as set forth below:

131
(vii) The Dispute shall be finally referred to Society for Affordable Resolution of Disputes
(hereinafter called as SAROD), a Society registered under Society's Act, 1860 vide
Registration no. S/RS/SW1049/2013 duly represented by Authority and National
Highways Builders Federation (NHBF), The dispute shall be dealt with in terms of
Rules of SAROD. The detailed procedure for conducting Arbitration shall be governed
by the Rules of SAROD and provisions of Arbitration & Conciliation Act, 1996, as
amended from time to time. The Dispute shall be governed by Substantive Law of
India.

(viii) The appointment of Tribunal, Code of conduct for Arbitrators and fees and expenses
of SAROD and Arbitral Tribunal shall also be governed by the Rules of SAROD as
amended from time to time. The rules of SAROD are placed at Appendix-III.

(ix) Subject to the provisions of THE LIMITATION ACT, 1963, as amended from time to
time, Arbitration may be commenced during or after the Contract Period, provided
that the obligations of Authority and the Contractor shall not be altered by reason of
the Arbitration being conducted during the Contract Period.

(x) The venue of Arbitration shall be Now Delhi of a place selected by governing body of
SAROD and the language for all documents and communications between the parties
shall be English.

(xi) The expenses incurred by each party in connection with the preparation,
presentation, etc., of arbitral proceedings shall be shared by each party itself.

26.3.2. The arbitrators shall make a reasoned award (the "Award"). Any Award made in any
arbitration held pursuant to this Article & 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.

26.3.3 The Contractor and the Authority agree that an Award may be enforced against the
Contractor and/or the Authority, as the case may be, and their respective assets wherever
situated.

26.3.4 This Agreement and the rights and obligations of the Parties shall remain in full force
and affect, pending the Award in any arbitration proceedings hereunder. Further, the parties
unconditionally acknowledge and agree that notwithstanding any dispute between them,
each party Shall proceed with the performance of its respective obligations, pending
resolution of Dispute in accordance with this Article.

26.4 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.

132
For the avoidance of doubt, the Parties hereto agree that the adjudication hereunder
shall not be final and binding until an appeal against such adjudication has been
decided by an appellatetribunalorcourtofcompetentjurisdiction,asthecasemaybe,or
no such appeal has been preferred within the time specified in the Applicable Law.

133
 Article 27

27 Miscellaneous

27.1 Governing law andjurisdiction

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 commercialpurpose;
(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
(whetherbyreasonofsovereigntyorotherwise)fromsuchproceedings shall be
claimed by or on behalf of the Party with respect to itsassets;
(c) waives any right of immunity which it or its assets, property or
revenuesnowhas,mayacquireinthefutureorwhichmaybeattributed 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
irrespectiveoftheiruseorintendeduseofanyorderorjudgementthat may be
made or given in connectiontherewith).

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 ofdelay 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 therights of the Parties under this Agreement including
Terminationthereof.

134
27.4 Waiver

(i) Waiver, including partial or conditional waiver, by either Party of anydefault by the
other Party in the observance and performance of any provision of or obligations
under this Agreement:-

(a) shallnotoperateorbeconstruedasawaiverofanyotherorsubsequent default

hereof or of other provisions of or obligations underthis 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.

27.7 Survival

(i) Terminationshall:

(a) not relieve the Contractor or the Authority, as the case may be, of any
obligations hereunder which expressly or by implicationsurvive Termination
hereof; and

135
 (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
arisingoutof,orcausedby,actsoromissionsofsuchPartypriortothe effectiveness
of such Termination or arising out of suchTermination.

(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
effectiveunlesssuchmodificationoramendmentisagreedtoinwritingbythe Parties and
duly executed by persons especially empowered in this behalf by the respective
Parties. All prior written or oral understandings, offers or other
communicationsofeverykindpertainingtothisAgreementareabrogatedand withdrawn.
For the avoidance of doubt, the Parties hereto agree that any obligations of the
Contractor arising from the Request for Qualification or
RequestforProposals,asthecasemaybe,shallbedeemedtoformpartofthis Agreement
and treated assuch.

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
jurisdictionoranyotherinstrumentalitytobeinvalid,illegalorunenforceable, the validity,
legality or enforceability of the remaining provisions shall notbe
affectedinanymanner,andthePartieswillnegotiateingoodfaithwithaview 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
obligationorliabilityuponeitherParty,andneitherPartyshallhaveanyright, 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 otherwisebind, 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

136
 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

AnynoticeorothercommunicationtobegivenbyanyPartytotheotherParty under or in
connection with the matters contemplated by this Agreementshall be in writing
andshall:

(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 addressoutside [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
theAuthority;
[***]
(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 [Managing Director] of the
Authority with a copy delivered to the Authority Representative or
suchotherpersonastheAuthoritymayfromtimetotimedesignateby 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-mailand by registered
acknowledgement due, air mail or by courier;and
(c) any notice or communication by a Party to the other Party, given in
accordance herewith, shall be deemed to have been delivered when in the
normal course of post it ought to have been delivered and in all other cases, it
shall be deemed to have been delivered on the actual date and time of
delivery; provided that in the case of facsimile or e- mail, it shall be deemed to
have been delivered on the working day following the date of itsdelivery.

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.

137
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

ThePartiesshalltreatthedetailsofthisAgreementasprivateandconfidential,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 theAuthority.

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(bysigningthisAgreement)togivetotheAuthorityanon-terminable transferable
non-exclusive royalty-free licence to copy, use and communicate the Contractor's
documents, including making and using modifications of them. This licenceshall:

(a) apply throughout the actual or intended working life (whichever is longer) of
the relevant parts of theWorks;
(b) entitle any person in proper possession of the relevant part of the Works to
copy, use and communicate the Contractor's documents for
thepurposesofcompleting,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
computerontheSiteandotherplacesasenvisagedbythisAgreement, including
replacements of any computers supplied by theContractor.

(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.

138
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 and25.

(ii) ThetotalliabilityofonePartytotheotherPartyunderandinaccordancewith 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 defaultingParty.

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’sdocuments.

(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 reasonabletimes.

(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 ordefect.

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) theContractor.

(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 licenseshall:

(a) apply through out the actual or intended working life (whichever is longer) of
the relevant parts of theWorks,
(b) entitle any person in proper possession of the relevant part of the Works to
copy, use and communicate the Contractor’s Documents for
thepurposesofcompleting,operating,maintaining,altering,adjusting, repairing
and demolishing the Works,and
(c) in the case of Contractor’s Documents which are in the formof computer
programs and other software, permit their use on any computer on the Site

139
 and other places as envisaged by the Contractor, including replacements of
any computers supplied by theContractor.

(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 theProject,
includingthoseconcernedwithsafety,securityorenvironmentalprotectionto inspect the
Project Highway and to investigate any matter within their authority and upon
reasonable notice, the Contractor shall provide to such
personsreasonableassistancenecessarytocarryouttheirrespectivedutiesand 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.

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
[Link] 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

exceptbyaninstrumentinwritingsignedbytheContractorandtheAuthority and
expressed to be a supplement, modification or change to theAgreement.

27.25 Representation and Bribes

The Contractor represents and warrants to the Authority that:

140
 (a) NorepresentationorwarrantybytheContractorcontainedhereinorin 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) Itwarrantsthatnosums,incashorkind,havebeenpaidorwillbepaid 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
connectiontherewith.

27.26 No Agency

The Agreement does not constitute either Party as the agent, partner or legal
representativeoftheotherforanypurposeswhatsoever,andneitherPartyshall 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 otherParty.

141
***** End of the Document*****

142