Request for Proposal (RFP)

for
Planning, Design, Construction, Defect Liability
and Maintenance & all other works contingent thereto
for the work of widening to Two lanes with paved
shoulders of existing NH 709 (Extn.) from km 123.520
(near Devsar Mor) to km 146.500 (Before Jui Village)
in District Bhiwani in the state of Haryana
on
Engineering, Procurement & Construction (EPC)
Mode

HARYANA PWD B&R BR. CHANDIGARH

1
 TABLE OF CONTENTS

S. No. Contents Page No.

Notice inviting RFP
Disclaimer
Glossary
1 Introduction
1.1 Background
1.2 Brief description of Bidding Process
1.3 Schedule of Bidding Process

2 Instructions to Bidders
A General
2.1 General terms of Bidding
2.2 Eligibility and qualification requirement of Bidder
2.3 Proprietary Data
2.4 Cost of Bidding
2.5 Site visit and verification of information
2.6 Verification and Disqualification

B Documents
2.7 Contents of the RFP
2.8 Clarifications
2.9 Amendment of RFP

C Preparation and Submission of BIDs

2.10 Format and Signing of BID
2.11 Documents comprising Technical & financial BID
2.12 BID Due Date
2.13 Late BIDs
2.14 Procedure of e-tendering
2.15 Online opening of Bids
2.16 Rejection of BIDs
2.17 Validity of BIDs
2.18 Confidentiality
2.19 Correspondence with the Bidder

D BID Security
2.20 BID Security

3 Evaluation of Technical and Opening & Evaluation of financial

Bids
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 3.1 Evaluation of Technical BIDs

3.2 Opening and Evaluation of financial Bids

3..3 Selection of Bidder
3.4 Contacts during BID Evaluation
3.5 Correspondence with the Bidder

4 Fraud and Corrupt Practices

5 Pre-BID Conference
6 Miscellaneous
Appendices
IA Letter comprising the Technical BID
IB Letter comprising the Financial BID
II Bank Guarantee for BID Security
III Format for Power of Attorney for signing of BID
IV Format for Power of Attorney for Lead Member of Joint Venture
V Format for Joint Bidding Agreement for Joint Venture

Annexure of Appendix 1A

I Details of Bidder
II Technical Capacity of the bidder
III Financial Capacity of the bidder
IV Details of Eligible Project
V Statement of legal capacity
VI Information required to Evaluate the Bid capacity
VII Guidelines of the Department of Disinvestment

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 Notice Inviting Bids
Bid/ Package no. ……….Dated ……….
RFP for Planning, Design, Construction, Defect Liability and Maintenance & all other works
contingent thereto for the work of widening to Two lanes with paved shoulders of existing NH
709 (Extn.) from km 123.520 to km 146.500 in the state of Haryana on EPC basis.
The Ministry of Road Transport & Highways, Government of India through Haryana PWD B&R Br., is
engaged in the development of National Highways entrusted to the State of Haryana and as part of this
endeavour, it has decided to undertake Planning, Design, Construction, Defect Liability and
Maintenance & all other works contingent thereto of the work of Widening to Two lane with
paved shoulder of existing NH 709 (Ext.) from km 123.520 (near Devsar Mor) to km 146.500 (before
Jui village) in District Bhiwani in the state of Haryana through Engineering, Procurement and
Construction (EPC) Basis.
The Haryana PWD B&R Br. now invites bids from eligible contractors for the following project:

State Name of ICB No. Name of work Estimated Completion Maintenance

Road cost Period period
Haryana NH-709 12014/880 Planning, Design, 29.03 450 Days 4 Years
(Extn.) /2014/HR/ Construction, Defect Crores
( Bhiwani - NH-1 Liability and Maintenance &
Loharu all other works
section) contingent thereto for the
work of widening to Two
lanes with paved shoulders of
existing NH 709 (Extn.) from
km 123.520 (near Devsar
Mor) to km 146.500 (before
Jui village) in District
Bhiwani in the state of
Haryana on EPC mode

For other details, “Instruction to bidders” refer to website https://morth.eproc.in. The tenders
submitted by post/courier/manually would not be entertained.

Bidding documents is available on website http://haryanapwd-bandr.org & http://morth.eproc.in.

The complete Bid Documents can be viewed / downloaded from official portal of http://haryanapwd-
bandr.org or e-procurement portal of MoRT&H [https://morth.eproc.in from 13.04.215 to 10.05.2015
(upto 17.00 Hrs. IST). Bid must be submitted online only at https://morth.eproc.in on or before (upto
11.05.2015 11.00 hours IST). Bids received online shall be opened on 13.05.2015 (at 11.30 hours
IST).
Bid through any other mode shall not be entertained. However, Bid Security, document fee, Power of
Attorney and joint bidding agreement shall be submitted physically by the Bidder on or before
12.05.2015(at 13.00 hours IST), Please note that the State PWD reserves the right to accept or reject all
or any of the BIDs without assigning any reason whatsoever.
Superintending Engineer,
Rohtak Circle,
Hr. PWD B&R Br.
Rohtak.
Phone Fax 01262-276076
e-mail: pwd-serohtak@hry.nic.in
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DISCLAIMER
The information contained in this Request for Proposal document (the “RFP”) or subsequently provided
to Bidder(s), whether verbally or in documentary or any other form by or on behalf of the Authority or
any of its employees or advisors, is provided to Bidder(s) on the terms and conditions set out in this RFP
and such other terms and conditions subject to which such information is provided.

This RFP is not an Agreement and is neither an offer nor invitation by the Authority to the prospective
Bidders or any other person. The purpose of this RFP is to provide interested parties with information
that may be useful to them in making their financial offers (BIDs) pursuant to this RFP. This RFP
includes statements, which reflect various assumptions and assessments arrived at by the Authority in
relation to the Project. Such assumptions, assessments and statements do not purport to contain all the
information that each Bidder may require. This RFP may not be appropriate for all persons, and it is not
possible for the Authority, its employees or advisors to consider the investment objectives, financial
situation and particular needs of each party who reads or uses this RFP. The assumptions, assessments,
statements and information contained in the Bidding Documents, especially the Detailed Project Report,
may not be complete, accurate, adequate or correct. Each Bidder should, therefore, conduct its own
investigations and analysis and should check the accuracy, adequacy, correctness, reliability and
completeness of the assumptions, assessments, statements and information contained in this RFP and
obtain independent advice from appropriate sources.

Information provided in this RFP to the Bidder(s) is on a wide range of matters, some of which may
depend upon interpretation of law. The information given is not intended to be an exhaustive account of
statutory requirements and should not be regarded as a complete or authoritative statement of law. The
Authority accepts no responsibility for the accuracy or otherwise for any interpretation or opinion on
law expressed herein.

The Authority, its employees and advisors make no representation or warranty and shall have no
liability to any person, including any Applicant or Bidder under any law, statute, rules or regulations or
tort, principles of restitution or unjust enrichment or otherwise for any loss, damages, cost or expense
which may arise from or be incurred or suffered on account of anything contained in this RFP or
otherwise, including the accuracy, adequacy, correctness, completeness or reliability of the RFP and any
assessment, assumption, statement or information contained therein or deemed to form part of this RFP
or arising in any way for participation in this BID Stage.

The Authority also accepts no liability of any nature whether resulting from negligence or otherwise
howsoever caused arising from reliance of any Bidder upon the statements contained in this RFP. The
Authority may in its absolute discretion, but without being under any obligation to do so, update, amend
or supplement the information, assessment or assumptions contained in this RFP.

The issue of this RFP does not imply that the Authority is bound to select a Bidder or to appoint the
Selected Bidder JV or Contractor, as the case may be, for the Project and the Authority reserves the
right to reject all or any of the Bidders or BIDs without assigning any reason whatsoever.

The Bidder shall bear all its costs associated with or relating to the preparation and submission of its
BID including but not limited to preparation, copying, postage, delivery fees, expenses associated with
any demonstrations or presentations which may be required by the Authority or any other costs incurred
in connection with or relating to its BID. All such costs and expenses will remain with the Bidder and
the Authority shall not be liable in any manner whatsoever for the same or for any other costs or other
expenses incurred by a Bidder in preparation or submission of the BID, regardless of the conduct or
outcome of the Bidding Process.

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 GLOSSARY

Agreement As defined in Clause 1.1.5

Authority As defined in Clause 1.1.1
Bank Guarantee As defined in Clause 2.20.1
BID(s) As defined in Clause 1.2.2
Bidders As defined in Clause 1.2.2
Bidding Documents As defined in Clause 1.1.7
BID Due Date As defined in Clause 1.1.7
Bidding Process As defined in Clause 1.2.1
BID Security As defined in Clause 1.2.4
BID Price or BID As defined in Clause 1.2.6
Contractor As defined in Clause 1.1.2
Conflict of Interest As defined in Clause 2.2.1
EPC As defined in Clause 1.1.1
EPC Contract As defined in Clause 1.1.2
Estimated Project Cost As defined in Clause 1.1.4
Detailed Project Report As defined in Clause 1.2.3
Government Government of India
Joint Venture As defined in Clause 2.2.1
Lowest Bidder As defined in Clause 1.2.6
LOA As defined in Clause 3.3.4
Project As defined in Clause 1.1.1
Re. or Rs. or INR Indian Rupee
RFP or Request for Proposals As defined in the Disclaimer

The words and expressions beginning with capital letters and defined in this document shall, unless
repugnant to the context, have the meaning ascribed thereto herein.

6
 DEPARTMENT, BUILDING AND ROADS, BR.,
GOVERNMENT OF HARYANA
SECTION 1
INTRODUCTION
1.1 Background
1.1.1 The Ministry of Road Transport and Highways, Government of India represented by Chief
Engineer, National Highways, Haryana Public Works Department Building & Roads Branch (the
“Authority”) is engaged in the development of National Highways entrusted to the State of
Haryana and as part of this endeavour, the Authority has decided to undertake Planning, Design,
Construction, Defect Liability and Maintenance & all other works contingent thereto for
the work of widening to Two lanes with paved shoulders of existing NH 709 (Extn.) from
km 123.520 (near Devsar Mor) to km 146.500 (before Jui village) in District Bhiwani in the state
of Haryana on EPC mode through Engineering, Procurement & Construction (EPC) Basis
Contract, and has decided to carry out the bidding process for selection of a bidder to whom the
Project may be awarded. A brief description of the project may be seen in the Information
Memorandum of the Project at the Authority’s website (https://morth.eproc.in ) Brief particulars
of the Project are as follows:

State Name of ICB Name of work Estimated Completion Maintenance

Road No. cost Period period

Haryana NH-709 12014 Planning, Design, 29.03 450 Days 4 Years

(Extn.) /880 Construction, Defect Crores
( Bhiwani - /2014/ Liability and
Loharu HR/ Maintenance & all other
section) NH-1 works contingent
thereto for the work of
widening to Two lanes
with paved shoulders of
existing NH 709 (Extn.)
from km 123.520 (near
Devsar Mor) to km
146.500 (before Jui
village) in District
Bhiwani in the state of
Haryana on EPC mode

1.1.2 The selected Bidder (the “Contractor”) shall be responsible for designing, engineering,
procurement and construction of the Project under and in accordance with the provisions of an
engineering, procurement and construction contract (the “EPC Contract”) to be entered into
between the Contractor and the Authority in the form provided by the Authority as part of the
Bidding Documents pursuant hereto. The Contractor shall also be responsible for the
maintenance of the project during the Defect Liability Period, which is expected to be as per
clause 1.1.3.

1.1.3 The scope of work will broadly include rehabilitation, upgradation and augmentation of the
existing carriageway to Two -lane standards with construction of new pavement, rehabilitation
of existing pavement, construction and/or rehabilitation of major and minor bridges, culverts,
road intersections, interchanges, drains, etc and maintenance of the Project during the Defect
Liability Period, which shall be 4 (four) years as per article 2, schedule A,B,C,D & E,

7
1.1.4 The estimated cost of the Project (the “Estimated Project Cost”) has been specified in the
clause 1.1.1 above. The assessment of actual costs, however, will have to be made by the
Bidders.

1.1.5 The Agreement sets forth the detailed terms and conditions for award of the project to the
Contractor, including the scope of the Contractor’s services and obligations.

1.1.6 The statements and explanations contained in this RFP are intended to provide a better
understanding to the Bidders about the subject matter of this RFP and should not be construed or
interpreted as limiting in any way or manner the scope of services and obligations of the
Contractor set forth in the Agreement or the Authority’s rights to amend, alter, change,
supplement or clarify the scope of work, the work to be awarded pursuant to this RFP or the
terms thereof or herein contained. Consequently, any omissions, conflicts or contradictions in the
Bidding Documents including this RFP are to be noted, interpreted and applied appropriately to
give effect to this intent, and no claims on that account shall be entertained by the Authority.

1.1.7 The Authority shall receive BIDs pursuant to this RFP in accordance with the terms set forth in
this RFP and other documents to be provided by the Authority pursuant to this RFP (collectively
the "Bidding Documents"), and all BIDs shall be prepared and submitted in accordance with
such terms on or before the BID due date specified in Clause 1.3 for submission of BIDs (the
“BID Due Date”).

1.2 Brief description of Bidding Process

1.2.1 The Authority has adopted a single stage two part system (collectively referred to as the
"Bidding Process") for selection of the Bidder for award of the Project. Under this process, the
bid shall be invited under two parts. Eligibility and qualification of the bidder will be first
examined based on the details submitted under first part (Technical Bid) with respect to
eligibility and qualification criteria prescribed in this RFP.(The “Bidder”, which expression
shall, unless repugnant to the context, include the members of the Joint Venture). The Financial
bid under the second part shall be opened of only those Bidders whose Technical Bids are
responsive to eligibility and qualifications requirements as per this RFP.

[GOI has issued guidelines (see Annexure-VII of Appendix-1A of RFP) for qualification of
bidders seeking to acquire stakes in any public sector enterprise through the process of
disinvestment. These guidelines shall apply mutatis mutandis to this Bidding Process. The
Authority shall be entitled to disqualify any Bidder in accordance with the aforesaid guidelines
at any stage of the Bidding Process. Bidders must satisfy themselves that they are qualified to
bid, and should give an undertaking to this effect in the form at Appendix-IA]
1.2.2 Interested bidders are being called upon to submit their BID in accordance with the terms
specified in this Bidding Document. The Bid shall be valid for a period of 120 days from the
date specified in Clause 1.3 for submission of BIDs (the “Bid Due Date”).

1.2.3 The complete Bidding Documents including the draft Agreement for the Project is enclosed for
the Bidders. The detailed estimate prepared by the Authority & sanctioned by Ministry of Road
Transport and Highways alongwith technical note referred to as the Feasibility Report / Detailed
Project Report (the "Feasibility Report/Detailed Project Report") is also enclosed. Subject to
the provisions of Clause 2.1.3, the aforesaid documents and any addenda issued subsequent to
this RFP Document, will be deemed to form part of the Bidding Documents.

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1.2.4 A Bidder is required to deposit, along with its BID, a BID security of Rs 43.55 (Rs Forty three

lacs and fifty five thousand only) (the "BID Security"), refundable not later than 180 (One
hundred & Eighty) days from the BID Due Date, except in the case of the Selected Bidder whose
BID Security shall be retained till it has provided a Performance Security under the Agreement.
The Bidders will have an option to provide BID Security in the form of bank guarantee
acceptable to the Authority, and in such event, the validity period of the bank guarantee, shall
not be less than 180 (one hundred and eighty) days from the BID Due Date, inclusive of a claim
period of 60 (sixty) days, and may be extended as may be mutually agreed between the
Authority and the Bidder from time to time. The BID shall be summarily rejected if it is not
accompanied by the BID Security. The bidders shall also submit Demand Draft for Rs.20,000
(Rupees Twenty Thousands only) issued from a scheduled Bank in India in favour of
“Executive Engineer, Provincial Division No.-3, Hr. PWD B&R Br. Rohtak at Rohtak
payable at Rohtak towards cost of bid document.

1.2.5 Bidders are advised to examine the Project in greater detail, and to carry out, at their cost, such
studies as may be required for submitting their respective BIDs for award of the contract
including implementation of the Project.
1.2.6 BIDs will be evaluated for the Project on the basis of the lowest cost required by a Bidder for
implementing the Project (the "BID Price"). The total time allowed for completion of
construction under the Agreement (the “Construction Period”) and the period during which the
Contractor shall be liable for maintenance and rectification of any defect or deficiency in the
Project after completion of the Construction Period (the “Defect Liability Period”) shall be pre-
determined, and are specified in the draft Agreement forming part of the Bidding Documents.

In this RFP, the term “Lowest Bidder” shall mean the bidder who is quoting the lowest BID
price.

1.2.7 Generally, the Lowest Bidder shall be the selected Bidder. In case such Lowest Bidder
withdraws or is not selected for whatsoever reason, the Authority shall annul the Bidding
Process and invite fresh BIDs.

1.2.8 Other details of the process to be followed under this bidding process and the terms thereof are
spelt out in this RFP.

1.2.9 Any queries or request for additional information concerning this RFP shall be submitted by e-
mail to the officer designated in Clause 2.11.4 below with identification/ title: "Queries/ Request
for Additional Information: RFP for Planning, Design, Construction, Defect Liability and
Maintenance & all other works contingent thereto for the work of widening to Two
lanes with paved shoulders of existing NH 709 (Extn.) from km 123.520 (near Devsar Mor)
to km 146.500 (before Jui village) in District Bhiwani in the state of Haryana on EPC
mode.

9
1.3 Schedule of Bidding Process
The Authority shall endeavour to adhere to the following schedule:
Sr. No. Event Description Date
1 Invitation of RFP (NIT) 13.04.2015

2 Last date for receiving queries 24.04.2015

3 Pre-BID meeting at venue 2.11.4 (i) 27.04.2015

4 Authority response to queries latest by 29.04.2015

5 Last date of Request for BID Document 10.05.2015

6 BID Due Date 11.05.2015

7 Physical Submission of Bid Security/POA etc 12.05.2015

8 Opening of Technical BIDs at venue 2.11.4 (i) 13.05.2015

i) [within 2 days from BID Due Date]

9 Declaration eligible / qualified bidders To be announced

10 Opening of Financial BID To be announced

11 Letter of Award (LOA) To be announced

12 Validity of BID 120 Days

13 Signing of Agreement To be announced

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 SECTION-2
INSTRUCTIONS TO BIDDERS
A. GENERAL

2.1. General terms of Bidding

2.1.1 No Bidder shall submit more than one BID for the Project. A Bidder bidding individually or as a
member of a Joint Venture shall not be entitled to submit another BID either individually or as a
member of any Joint Venture, as the case may be.

2.1.2 An International Bidder bidding individually or as a member of a Joint Venture shall ensure the
submission of documents strictly as per provision in this RFP and rules of Indian Stamp Act
along with fulfilment of requirement of Apostle.

2.1.3 The Feasibility Report\Detailed project Report of the Project is being provided only as a
preliminary reference document by way of assistance to the Bidders who are expected to carry
out their own surveys, investigations and other detailed examination of the Project before
submitting their Bids. Nothing contained in the Detailed Project Report shall be binding on the
Authority nor confer any right on the Bidders, and the Authority shall have no liability
whatsoever in relation to or arising out of any or all contents of the Feasibility Report/ Detailed
Project Report.

2.1.4 Notwithstanding anything to the contrary contained in this RFP, the detailed terms specified in
the draft Agreement shall have overriding effect; provided, however, that any conditions or
obligations imposed on the Bidder hereunder shall continue to have effect in addition to its
obligations under the Agreement.

2.1.5 The BID shall be furnished in the format exactly as per Appendix-I i.e. Technical Bid as per
Appendix IA and Financial Bid as per Appendix IB. BID amount shall be indicated clearly in
both figures and words, in Indian Rupees in prescribed format of Financial Bid and it will be
signed by the Bidder’s authorised signatory. In the event of any difference between figures and
words, the amount indicated in words shall be taken into account.

2.1.6 The Bidder shall deposit a BID Security of Rs. 43.55 Lacs (Rupees Forty three lacs and fifty
five thousand only) in accordance with the provisions of this RFP. The Bidder has to provide
the BID Security in the form of a Bank Guarantee acceptable to the Authority, as per format at
Appendix-II. The bidders shall also submit Demand Draft for Rs.20000/- (Twenty Thousand
Only) issued from a scheduled Bank in India in favour of “Executive Engineer, Provl. Division
No.3, PWD B&R Br. Rohtak payable at Rohtak.

2.1.7 The validity period of the Bank Guarantee, shall not be less than 180 (one hundred and eighty)
days from the BID Due Date, inclusive of a claim period of 60 (sixty) days, and may be
extended as may be mutually agreed between the Authority and the Bidder. The BID shall be
summarily rejected if it is not accompanied by the BID Security. The BID Security shall be
refundable no later than 150 (One Hundred & Fifty) days from the BID Due Date except in the
case of the Selected Bidder whose BID Security shall be retained till it has provided a
Performance Security under the Agreement.

2.1.8 The Bidder should submit a Power of Attorney as per the format at Appendix-III, authorising the
signatory of the BID to commit the Bidder.

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2.1.9 In case the Bidder is a Joint Venture, the Members thereof should furnish a Power of Attorney in
favour of the Lead Member in the format at Appendix-IV. In case the Bidder is a Joint Venture,
Joint Bidding Agreement in the format at Appendix V shall be submitted by the bidder.

2.1.10 Any condition or qualification or any other stipulation contained in the BID shall render the BID
liable to rejection as a non-responsive BID.

2.1.11 The BID and all communications in relation to or concerning the Bidding Documents and the
BID shall be in English language.

2.1.12 The documents including this RFP and all attached documents, provided by the Authority are
and shall remain or become the property of the Authority and are transmitted to the Bidders
solely for the purpose of preparation and the submission of a BID in accordance herewith.
Bidders are to treat all information as strictly confidential and shall not use it for any purpose
other than for preparation and submission of their BID. The provisions of this Clause 2.1.12
shall also apply mutatis mutandis to BIDs and all other documents submitted by the Bidders,
and the Authority will not return to the Bidders any BID, document or any information provided
along therewith.

2.1.13 This RFP is not transferable.

2.1.14 Any award of Project pursuant to this RFP shall be subject to the terms of Bidding Documents
and also fulfilling the criterion as mentioned in clause 2.1.17.

2.1.15 In case the Bidder is a Joint Venture, it shall comply with the following additional requirements:

(a) Number of members in a Joint Venture shall not exceed 3 (three);

(b) Subject to the provisions of clause (a) above, the Bid should contain the information
required for each Member of the Joint Venture;

(c) Members of the Joint Venture shall nominate one member as the lead member (the “Lead
Member”). Lead Member shall meet at least 60% requirement of Technical and Financial
Capacity required as per Clause 2.2.2.2(i) & 2.2.2.3. The nomination(s) shall be
supported by a Power of Attorney, as per the format at Appendix-III, signed by all the
other Members of the Joint Venture. Other Member(s) shall meet at least 30%
requirement of Technical and Financial Capacity required as per Clause 2.2.2.2(i) &
2.2.2.3;

(d) The Bid should include a brief description of the roles and responsibilities of individual
members, particularly with reference to financial, technical and defect liability
obligations;

(e) An individual Bidder cannot at the same time be member of a Joint Venture applying for
this Bid. Further, a member of a particular Bidder Joint Venture cannot be member of
any other Bidder Joint Venture applying for this bid;

(f) The Lead Member shall itself undertake and perform at least 30 (thirty) per cent of the
total length of the Project Highway.

12
 (g) Members of the Joint Venture shall have entered into a binding Joint Bidding Agreement,
substantially in the form specified at Appendix V (the “Jt. Bidding Agreement”), for the
purpose of making the Application and submitting a Bid in the event of being pre-
qualified. The Jt. Bidding Agreement, to be submitted along with the Application, shall,
inter alia:

(i) Convey the commitment(s) of the Lead Member in accordance with this RFP,in
case the contract to undertake the Project is awarded to the Joint Venture; and
clearly outline the proposed roles & responsibilities, if any, of each member;
(ii) Commit the approximate share of work to be undertaken by each member;
(iii)Include a statement to the effect that all members of the Joint Venture shall be
liable jointly and severally for all obligations of the Contractor in relation to the
Project until the completion of the Project (the “Defects Liability Period”) is
achieved in accordance with the EPC Contract; and

(h) Except as provided under this RFP, there shall not be any amendment to the Jt. Bidding
Agreement.

2.1.16 While bidding is open to persons from any country, the following provisions shall apply:

(a) Where, on the date of the Application, not less than 15% (fifteen percent) of the aggregate
issued, subscribed and paid up equity share capital in a Bidder or its Member is held by
persons resident outside India or where a Bidder or its Member is controlled by persons
resident outside India; or

(b) if at any subsequent stage after the Bid due date, there is an acquisition of not less than 15%
(fifteen percent) of the aggregate issued, subscribed and paid up equity share capital or
control, by persons resident outside India, in or of the Bidder or its Member; then the
Eligibility of such Bidder shall be subject to approval of the Authority from national security
and public interest perspective. The decision of the Authority in this behalf shall be final and
conclusive and binding on the Bidder.

The holding or acquisition of equity or control, as above, shall include direct or indirect holding/
acquisition, including by transfer, of the direct or indirect legal or beneficial ownership or
control, by persons acting for themselves or in concert and in determining such holding or
acquisition, the Authority shall be guided by the principles, precedents and definitions contained
in the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers)
Regulations, 1997, or any substitute thereof, as in force on the date of such acquisition.

The Bidder shall promptly inform the Authority of any change in the shareholding, as above, and
failure to do so shall render the Bidder liable for disqualification from the Bidding Process.

2.1.17 Notwithstanding anything to the contrary contained herein, in the event that the Bid Due Date
falls within three months of the closing of the latest financial year of a Bidder, it shall ignore
such financial year for the purposes of its Bid and furnish all its information and certification
with reference to the 5 (five) years or 1 (one) year, as the case may be, preceding its latest
financial year. For the avoidance of doubt, financial year shall, for the purposes of a Bid
hereunder, mean the accounting year followed by the Bidder in the course of its normal business.

2.1.18. Any entity which has been barred by the Central/ State Government, or any entity controlled by
it, from participating in any project, and the bar subsists as on the date of Application, would not
be eligible to submit the BID, either individually or as member of a Joint Venture.
13
2.1.19 The Bidder including individual or any of its Joint Venture Member should, in the last 3 (three)
years, have neither failed to perform on any contract, as evidenced by imposition of a penalty by
an arbitral or judicial authority or a judicial pronouncement or arbitration award against the
Bidder including individual or any of its Joint Venture Member, as the case may be, nor has been
expelled from any project or contract by any public entity nor have had any contract terminated
by any public entity for breach by such Bidder including individual or any of its Joint Venture
Member.

2.1.19.1The Bidder including individual or any of its Joint Venture Member may provide details of all
their on-going projects alongwith updated stage of litigation, if so, against the Authority /
Governments.

2.1.19.2 The Bidder including individual or any of its Joint Venture Member may also provide details of
updated on-going process of blacklisting if so, under any contract with Authority / Government.

2.1.19.3 The Authority reserves the right to reject an otherwise eligible bidder on the basis of the
information provided under clause 2.1.19. The decision of the Authority in this case shall be
final.

2.2 Eligibility and qualification requirements of Bidder

2.2.1 For determining the eligibility of Bidder the following shall apply:

(a) The Bidder may be a single entity or a group of entities (the “Joint Venture”), coming
together to implement the Project. However, no Bidder applying individually or as a
member of a Joint Venture, as the case may be, can be member of another Bidder. The term
Bidder used herein would apply to both a single entity and a Joint Venture.

(b) Bidder may be a natural person, private entity, or any combination of them with a formal
intent to enter into a Joint Venture agreement or under an existing agreement to form a Joint
Venture. A Joint Venture shall be eligible for consideration subject to the conditions set out
in Clause 2.1.15 above.

(c) Any Bidder shall not have a conflict of interest (the “Conflict of Interest”) that affects the
Bidding Process. Any Bidder found to have a Conflict of Interest shall be disqualified and
liable for forfeiture of the BID Security or Performance Security as the case may be. A
Bidder shall be deemed to have a Conflict of Interest affecting the Bidding Process, if:

(i) the Bidder, its Joint Venture Member (or any constituent thereof) and any other Bidder,
its Member or any Member of its Joint Venture thereof (or any constituent thereof)
have common controlling shareholders or other ownership interest; provided that this
disqualification shall not apply in cases where the direct or indirect shareholding of a
Bidder, or its Joint Venture Member thereof (or any shareholder thereof having a
shareholding of more than 5% (five percent) of the paid up and subscribed share capital
of such Bidder, or its Joint Venture Member, as the case may be), in the other Bidder,
its Joint Venture Member is less than 5% (five percent) of the subscribed and paid up
equity share capital thereof; provided further that this disqualification shall not apply to
any ownership by a bank, insurance company, pension fund or a public financial
institution referred to in section 4A of the Companies Act 1956. For the purposes of
this Clause 2.2.1(c), indirect shareholding held through one or more intermediate
persons shall be computed as follows: (aa) where any intermediary is controlled by a
14
 person through management control or otherwise, the entire shareholding held by such
controlled intermediary in any other person (the “Subject Person”) shall be taken into
account for computing the shareholding of such controlling person in the Subject
Person; and (bb) subject always to sub clause (aa) above, where a person does not
exercise control over an intermediary, which has shareholding in the Subject Person,
the computation of indirect shareholding of such person in the Subject Person shall be
undertaken on a proportionate basis; provided, however, that no such shareholding
shall be reckoned under this sub-clause (bb) if the shareholding of such person in the
intermediary is less than 26% of the subscribed and paid up equity shareholding of such
intermediary; or

(ii) a constituent of such Bidder is also a constituent of another Bidder; or

(iii) such Bidder, or any of its Joint Venture Member thereof receives or has received any
direct or indirect subsidy, grant, concessional loan or subordinated debt from any other
Bidder, or any of its Joint Venture Member thereof or has provided any such subsidy,
grant, concessional loan or subordinated debt to any other Bidder, its Member or any of
its Joint Venture Member thereof; or

(iv) such Bidder has the same legal representative for purposes of this Application as any
other Bidder; or

(v) such Bidder, or any of its Joint Venture Member thereof has a relationship with another
Bidder, or any of its Joint Venture Member thereof, directly or through common third
party/ parties, that puts either or both of them in a position to have access to each
others’ information about, or to influence the Application of either or each other; or

(vi) such Bidder, or any of its Joint Venture Member thereof has participated as a consultant
to the Authority in the preparation of any documents, design or technical specifications
of the project.

(d) A Bidder shall be liable for disqualification and forfeiture of BID Security, if any legal,
financial or technical adviser of the Authority in relation to the Project is engaged by the
Bidder, its Member or any Associate thereof, as the case may be, in any manner for matters
related to or incidental to such Project during the Bidding Process or subsequent to the (i)
issue of the LOA or (ii) execution of the Agreement. In the event any such adviser is engaged
by the selected Bidder or Contractor, as the case may be, after issue of the LOA or execution
of the Agreement for matters related or incidental to the project, then notwithstanding
anything to the contrary contained herein or in the LOA or the Agreement and without
Prejudice to any other right or remedy or the Authority, including the forfeiture and
appropriation of the BID Security or Performance Security, as the case may be, which the
Authority may have there under or otherwise, the LOA or the Agreement, as the case may be,
shall be liable to be terminated without the Authority being liable in any manner whatsoever
to the Selected Bidder or Contractor for the same. For the avoidance or doubt, this
disqualification shall not apply where such adviser was engaged by the Bidder, its Member
or Associate in the past but its assignment expired or was terminated 6 (six) months prior to
the date of issue of this RFP. Nor will this disqualification apply where such adviser is
engaged after a period of 3 (three) years from the date of commercial operation of the
Project.

15
2.2.2 Qualification requirements of Bidders:

2.2.2.1 BID Capacity

Bidders who inter alia meet the minimum qualification criteria will be qualified only if their
available BID capacity is more than the total BID value (value as per clause 1.1.1). The available
BID capacity will be calculated as per following, based on information mentioned at Annexure-
VI of Appendix-IA:

Assessed Available BID capacity = (A*N*2 – B), Where

N= Number of years prescribed for completion of work for which Bid is invited.

A= Maximum value of civil engineering works in respect of EPC Projects executed in any
one year during the last five years (updated to the price level of the year indicated in table
below under note) taking into account the completed as well as works in progress. The
EPC projects include turnkey project/ Item rate contract/ Construction works.

B= Value (updated to the price level of the year indicated in table below under note) of
existing commitments and on-going works to be completed during the next 1 ½ years i.e.
period of completion of the works for which BID is invited.

Note: The Statement showing the value of all existing commitments and ongoing works as well as the
stipulated period of completion remaining for each of the works listed should be countersigned
by the Client or its Engineer-in-charge not below the rank of Executive Engineer or equivalent in
respect of EPC Projects or Concessionaire / Authorised Signatory of SPV in respect of BOT
Projects and verified by Statutory Auditor. The factor for the year for updation to the price level
is indicated as under:
Year 1 year 2 Year 3 Year 4 Year 5 Year
Up-dation Factor 1.00 1.05 1.10 1.15 1.20

2.2.2.2 Technical Capacity

(h) For demonstrating technical capacity and experience (the “Technical Capacity”), the
Bidder shall, over the past 5 (five) financial years preceding the Bid Due Date, have
received payments for construction of Eligible Project(s), or has undertaken construction
works by itself, such that the sum total thereof is more than Rs.72.57 crore (Rs.
Seventy two crore &fifty seven Lakh (the “Threshold Technical Capacity”).

(ii) Provided that at least one similar work of 50% of Estimated Project Cost Rs.14.52 crore
(Rs. Forty crore and Fifty two Lakh) shall have been completed from the Eligible
Projects in Category 1 and/or Category 3specified in Clause 2.2.2.5. For this purpose, a
project shall be considered to be completed, if more than 90% of the value of work has
been completed and such completed value of work is equal to or more than 50% of the
estimated project cost.

2.2.2.3 Financial Capacity

The Bidder shall have a minimum Net Worth (the “Financial Capacity”) of Rs. 2.90
crore (Rs. Two crore & Ninty Lakh) at the close of the preceding financial year.
16
2.2.2.4 In case of a Joint Venture:

(i) The Threshold Technical Capacity and Financial Capacity of all the Members of Joint
Venture would be taken into account for satisfying the above conditions of eligibility.
Further, Lead Member shall meet at least 60% requirement of Technical and Financial
Capacity required as per Clause 2.2.2.2(i) and 2.2.2.3 and each of other JV members shall
meet at least 30% requirement of Technical and Financial capacity as per Clause 2.2.2.2(i)
and 2.2.2.3. For avoidance of doubt it is further clarified that the Joint Venture must
collectively and individually satisfy the above qualification criteria.
(ii) For requirement of 2.2.2.2 (ii), one similar work of 50% of Estimated Project Cost should
have been completed from the Eligible Projects in Category 1 and/or Category 3 specified in
Clause 2.2.2.5 individually by any of the JV members as a single work.

2.2.2.5 Categories and factors for evaluation of Technical Capacity:

(i) Subject to the provisions of Clause 2.2.2 the following categories of experience would
qualify as Technical Capacity and eligible experience (the "Eligible Experience") in
relation to eligible projects as stipulated in Clauses 2.2.2.6 (i) & (ii) (the "Eligible
Projects"). In case the Bidder has experience across different categories, the experience for
each category would be computed as per weight of following factors to arrive at its
aggregated Eligible Experience:
Category Project / Construction experience on Eligible Projects Factors
1 Project in highways sector that qualify under Clause 2.2.2.6 (i) 1
2 Project in core sector that qualify under Clause 2.2.2.6 (i) 0.50
3 Construction in highways sector that qualify under Clause 2.2.2.6 (ii) 1
4 Construction in core sector that qualify under Clause 2.2.2.6 (ii) 0.50

(ii) The Technical capacity in respect of an Eligible Project situated in a developed country
which is a member of OECD shall be further multiplied by a factor of 0.5 (zero point five)
and the product thereof shall be the Experience Score for such Eligible Project.
(ii) For the purpose of this RFP:
(a) highways sector would be deemed to include highways, expressways, bridges, tunnels
and airfields; and
(b) core sector would be deemed to include ports, airports, railways, metro rail, industrial
parks/ estates, logistic parks, pipelines, irrigation, water supply, sewerage and real estate
development.$

$ Real estate development shall not include residential flats unless they form part of
a real estate complex or township which has been built by the Applicant.

2.2.2.6 Eligible Experience on Eligible Projects in respect of each category:

(i) For a project to qualify as an Eligible Project under Categories 1 and 2:

(a) It should have been undertaken as a PPP project on BOT, BOLT, BOO, BOOT or other
similar basis for providing its output or services to a public sector entity or for providing
non-discriminatory access to users in pursuance of its charter, concession or contract,
as the case may be. For the avoidance of doubt, a project which constitutes a natural

17
 monopoly such as an airport or port should normally be included in this category even if
it is not based on a long-term agreement with a public entity;
(b) the entity claiming experience should have held, in the company owning the Eligible
Project, a minimum of 26% (twenty six per cent) equity during the entire year for which
Eligible Experience is being claimed;
(c) the capital cost of the project should be more than 10% of the amount specified as the
Estimated Project Cost; and
(d) the entity claiming experience shall, during the last 5 (five) financial years preceding the
Bid Due Date, have itself undertaken the construction of the project for an amount equal
to at least one half of the Project Cost of eligible projects, excluding any part of the
project for which any contractor, subcontractor or other agent was appointed for the
purposes of construction.

(ii) For a project to qualify as an Eligible Project under Categories 3 and 4, the Bidder should
have received payments from its client(s) for construction works executed, fully or partially,
during the 5 (five) financial years immediately preceding the Bid Due Date, and only the
amounts (gross) actually received, during such 5 (five) financial years shall qualify for
purposes of computing the Experience Score. However, receipts of less than Rs. 2.90 crore
(Rs. Two crore & Ninty lakhs) shall not be reckoned as receipts for Eligible Projects. For
the avoidance of doubt, construction works shall not include supply of goods or equipment
except when such goods or equipment form part of a turn-key construction contract / EPC
contract for the project. Further, the cost of land shall not be included hereunder.

(iii) The Bidder shall quote experience in respect of a particular Eligible Project under any one
category only, even though the Bidder (either individually or along with a member of the
Joint Venture) may have played multiple roles in the cited project. Double counting for a
particular Eligible Project shall not be permitted in any form.

(iv) Experience for any activity relating to an Eligible Project shall not be claimed by two or
more Members of the Joint Venture. In other words, no double counting by a Joint Venture
in respect of the same experience shall be permitted in any manner whatsoever.

2.2.2.7 Submission in support of Technical Capacity

(i) The Bidder should furnish the details of Eligible Experience for the last 5 (five) financial
years immediately preceding the Bid Due Date.
(ii) The Bidder must provide the necessary information relating to Technical Capacity as per
format at Annex-II of Appendix-IA.
(iii) The Bidder should furnish the required Project-specific information and evidence in support
of its claim of Technical Capacity, as per format at Annex-IV of Appendix-IA.

2.2.2.8 Submission in support of Financial capacity

(i) The Technical Bid must be accompanied by the Audited Annual Reports of the Bidder (of
each Member in case of a Joint Venture) for the last 5 (five) financial years, preceding the
year in which the bid is submitted.
(ii) In case the annual accounts for the latest financial year are not audited and therefore the
Bidder cannot make it available, the Bidder shall give an undertaking to this effect and the
statutory auditor shall certify the same. In such a case, the Bidder shall provide the Audited
Annual Reports for 5 (five) years preceding the year for which the Audited Annual Report is
not being provided.

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 (iii) The Bidder must establish the minimum Net Worth specified in Clause 2.2.2.3, and provide
details as per format at Annex-III of Appendix-IA.

2.2.2.9 The Bidder shall enclose with its Technical Bid, to be submitted as per the format at Appendix-
IA, complete with its Annexes, the following:
(i) Certificate(s) from its statutory auditors$ or the concerned client(s) stating the payments
received or in case of a PPP project, the construction carried out by itself, during the past 5
years, in respect of the Eligible Projects. In case a particular job/ contract has been jointly
executed by the Bidder (as part of a Joint Venture), it should further support its claim for the
payments received or construction carried out by itself in PPP Projects as applicable the
share in work done for that particular job/ contract by producing a certificate from its
statutory auditor or the client; and

(ii) certificate(s) from its statutory auditors specifying the net worth of the Bidder, as at the close
of the preceding financial year, and also specifying that the methodology adopted for
calculating such net Worth conforms to the provisions of this Clause 2.2.2.9 (ii). For the
purposes of this RFP, net worth (the “Net Worth”) shall mean the sum of subscribed and
paid up equity and reserves from which shall be deducted the sum of revaluation reserves,
miscellaneous expenditure not written off and reserves not available for distribution to
equity share holders.

2.2.2.10 If a prospective Bidder has been qualified by MORTH under RFAQ process and its eligibility
limit has been assigned, it may submit only Appendix-IA (Letter comprising the Technical
Bid), Annexure I (Details of bidder) and Annexure VI (Information related to Bid capacity
under Clause 2.2.2.1) against the requirement of clause 2.11.1 (a) of this RFP.
2.3 Proprietary data

All documents and other information supplied by the Authority or submitted by a Bidder to the
Authority shall remain or become the property of the Authority. Bidders are to treat all
information as strictly confidential and shall not use it for any purpose other than for preparation
and submission of their Bid. The Authority will not return any Bid or any information provided
along therewith.

2.4 Cost of Bidding

The Bidders shall be responsible for all of the costs associated with the preparation of their BIDs
and their participation in the Bidding Process. The Authority will not be responsible or in any
way liable for such costs, regardless of the conduct or outcome of the Bidding Process.

______________________
$
In case duly certified audited annual financial statements containing explicitly the requisite
details are provided, a separate certification by statutory auditors would not be necessary in
respect of Clause 2.2.2.9 (i). In jurisdictions that do not have statutory auditors, the firm of
auditors which audits the annual accounts of the Applicant may provide the certificates required
under this RFQ.

19
2.5 Site visit and verification of information

2.5.1 Bidders are encouraged to submit their respective BIDs after visiting the Project site and
ascertaining for themselves the site conditions, traffic, location, surroundings, climate, availability of
power, water & other utilities for construction, access to site, handling and storage of materials, weather
data, applicable laws and regulations, and any other matter considered relevant by them. Bidders are
advised to visit the site and familiarise themselves with the Project with in the stipulated time of
submission of the Bid. No extension of time is likely to be considered for submission of Bids.

2.5.2 It shall be deemed that by submitting a BID, the Bidder has:

(a) made a complete and careful examination of the Bidding Documents, Schedules annexed to
EPC agreement Document;
(b) received all relevant information requested from the Authority;

(c) accepted the risk of inadequacy, error or mistake in the information provided in the Bidding
Documents or furnished by or on behalf of the Authority relating to any of the matters
referred to in Clause 2.5.1 above. No claim shall be admissible at any stage on this account.

(d) satisfied itself about all matters, things and information including matters referred to in
Clause 2.5.1 hereinabove necessary and required for submitting an informed BID, execution
of the Project in accordance with the Bidding Documents and performance of all of its
obligations there under;

(e) acknowledged and agreed that inadequacy, lack of completeness or incorrectness of

information provided in the Bidding Documents or ignorance of any of the matters referred
to in Clause 2.5.1 hereinabove shall not be a basis for any claim for compensation, damages,
extension of time for performance of its obligations, loss of profits etc. from the Authority, or
a ground for termination of the Agreement by the Contractor;

(f) Acknowledged that it does not have a Conflict of Interest; and

(g) Agreed to be bound by the undertakings provided by it under and in terms hereof.

2.5.3 The Authority shall not be liable for any omission, mistake or error in respect of any of the above
or on account of any matter or thing arising out of or concerning or relating to RFP, including
any error or mistake therein or in any information or data given by the Authority.

2.6 Verification and Disqualification

2.6.1 The Authority reserves the right to verify all statements, information and documents submitted
by the Bidder in response to the RFP and the Bidder shall, when so required by the Authority,
make available all such information, evidence and documents as may be necessary for such
verification. Any such verification, or lack of such verification, by the Authority shall not relieve
the Bidder of its obligations or liabilities hereunder nor will it affect any rights of the Authority
there under.

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2.6.2 The Authority reserves the right to reject any BID and appropriate the BID Security if:

(a) at any time, a material misrepresentation is made or uncovered, or

(b) the Bidder does not provide, within the time specified by the Authority, the supplemental
information sought by the Authority for evaluation of the BID.

Such misrepresentation/ improper response shall lead to the disqualification of the Bidder. If the
Bidder is a Joint Venture, then the entire Joint Venture and each Member of the Joint Venture
may be disqualified/ rejected. If such disqualification/rejection occurs after the BIDs have been
opened and the lowest Bidder gets disqualified / rejected, then the Authority reserves the right to
Annual the Bidding Process and invites fresh BIDs.

2.6.3 In case it is found during the evaluation or at any time before signing of the Agreement or after
its execution and during the period of defect liability, subsistence thereof, that one or more of the
eligibility and/or qualification requirements have not been met by the Bidder, or the Bidder has
made material misrepresentation or has given any materially incorrect or false information, the
Bidder shall be disqualified forthwith if not yet appointed as the contractor either by issue of the
LOA or entering into of the Agreement, and if the Selected Bidder has already been issued the
LOA or has entered into the Agreement, as the case may be, the same shall, notwithstanding
anything to the contrary contained therein or in this RFP, be liable to be terminated, by a
communication in writing by the Authority to the Selected Bidder or the Contractor, as the case
may be, without the Authority being liable in any manner whatsoever to the Selected Bidder or
the Contractor. In such an event, the Authority shall be entitled to forfeit and appropriate the BID
Security or Performance Security, as the case may be, as Damages, without prejudice to any
other right or remedy that may be available to the Authority under the Bidding Documents and/
or the Agreement, or otherwise.

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B. DOCUMENTS

2.7 Contents of the RFP

2.7.1 This RFP comprises the Disclaimer set forth hereinabove, the contents as listed below, and will
additionally include any Addenda issued in accordance with Clause 2.9.
Part-I
Invitation for BIDs
Section 1. Introduction
Section 2. Instructions to Bidders
Section 3. Evaluation of BIDs
Section 4. Fraud and Corrupt Practices
Section 5. Pre-BID Conference
Section 6. Miscellaneous

Appendices
IA. Letter comprising the Technical BID including Annexure I to VII
IB. Letter comprising the Financial BID
II. Bank Guarantee for BID Security
III. Power of Attorney for signing of BID
IV. Power of Attorney for Lead Member of Joint Venture
V. Joint Bidding Agreement for Joint Venture
Part-II
Agreement Document with schedules
Part-III
[Detailed estimate sanctioned by MORT&H alongwith technical note referred to as
Feasibility Report/ Detailed Project Report provided by the Authority]

2.7.2 The draft Agreement and the Detailed estimate sanctioned by MORT&H alongwith technical
note referred to as Feasibility Report/ Detailed Project Report provided by the Authority as part
of the BID Documents shall be deemed to be part of this RFP.

2.8 Clarifications

2.8.1 Bidders requiring any clarification on the RFP may notify the Authority in writing or by e-mail
in accordance with Clause 1.2.9. They should send in their queries on or before the date
mentioned in the Schedule of Bidding Process specified in Clause 1.3. The Authority shall
endeavour to respond to the queries within the period specified therein, but no later than 15
(fifteen) days prior to the BID Due Date. The responses will be sent by fax or e-mail. The
Authority will forward all the queries and its responses thereto, to all Bidders without identifying
the source of queries.

2.8.2 The Authority shall endeavour to respond to the questions raised or clarifications sought by the
Bidders. However, the Authority reserves the right not to respond to any question or provide any
clarification, in its sole discretion, and nothing in this Clause shall be taken or read as compelling
or requiring the Authority to respond to any question or to provide any clarification.

2.8.3 The Authority may also on its own motion, if deemed necessary, issue interpretations and
clarifications to all Bidders. All clarifications and interpretations issued by the Authority shall be
deemed to be part of the Bidding Documents. Verbal clarifications and information given by

22
 Authority or its employees or representatives shall not in any way or manner be binding on the
Authority.

2.9 Amendment of RFP

2.9.1 At any time prior to the BID Due Date, the Authority may, for any reason, whether at its own
initiative or in response to clarifications requested by a Bidder, modify the RFP by the issuance
of Addenda.

2.9.2 Any Addendum issued hereunder will be in writing and will be uploaded on websites i.e.
morth.eproc.in & haryanapwd-b&r.org.

2.9.3 In order to afford the Bidders a reasonable time for taking an Addendum into account, or for any
other reason, the Authority may, in its sole discretion, extend the BID Due Date$.

_____________________
$ While extending the BID Due Date on account of an addendum, the Authority shall have due regard for the time
required by Bidders to address the amendments specified therein. In the case of significant amendments, at least 15
(fifteen) days shall be provided between the date of amendment and the BID Due Date, and in the case of minor
amendments, at least 7 (seven) days shall be provided.

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C. PREPARATION AND SUBMISSION OF BIDS

2.10 Format and Signing of BID

2.10.1 The Bidder shall provide all the information sought under this RFP. The Authority will evaluate
only those BIDs that are received online in the required formats and complete in all respects and
Bid Security, document fee, POA and Joint Bidding Agreement are received in hard copies.

2.10.2 The BID shall be typed and signed in indelible blue ink by the authorised signatory of the Bidder.
All the alterations, omissions, additions or any other amendments made to the BID shall be
initialled by the person(s) signing the BID.

2.11 Document comprising Technical and Financial BID

2.11.1 The Bidder shall submit the Technical BID & Financial Bid online through e-procurement portal
https://www.morth.eproc.in comprising of the following documents along with supporting
documents as appropriate:

Technical Bid

(a) Appendix-IA (Letter comprising the Technical Bid) including Annexure I to VI and
supporting certificates / documents. However, those bidders, whose RFAQ eligibility limit
assessed by ministry is not less than the estimated cost of the Project, are not required to
submit Annexure II to V of the Appendix-IA;

(b) Power of Attorney for signing the BID as per the format at Appendix-III;

(c) if applicable, Power of Attorney for Lead Member of Joint Venture as per the format at
Appendix-IV;

(d) if applicable, Joint Bidding Agreement for Joint Venture as per the format at Appendix-V

(e) if applicable Certificate / Copy of RFAQ eligibility limit assessed by the MoRT&H

(f) BID Security of Rs 43.55 Lacs (Rupees Forty three lacs and Fifty five thousand only) in
the form of Bank Guarantee in the format at Appendix-II from the Scheduled Bank .

(g) DD for Rs.20,000/- (Rupees Twenty thousand only) in favour of “Executive Engineer,
Provl. Division No.3, PWD B&R Br. Rohtak payable at Rohtak” towards the cost of Bid
Document.

Financial Bid

(h) Appendix-IB (Letter comprising the Financial Bid)

2.11.2 The Bidder shall submit the following documents physically:

(a) Original Power of Attorney for signing the BID as per format at Appendix-III;

(b) if applicable, Original Power of Attorney for Lead Member of Joint Venture as per the format
at Appendix-IV;

24
 (c) if applicable, Original Joint Bidding Agreement for Joint Venture as per the format at
Appendix-V
(d) BID Security of Rs. 43.55 Lacs (Rupees Forty three lacs and Fifty five thousand only) in
the form of Original Bank Guarantee in the format at Appendix-II from a Scheduled Bank.
(e) Original DD for Rs 20,000 (Rupees Forty Thousand only) in favour of “Executive
Engineer, Provl. Division No.3, PWD B&R Br. Rohtak payable at Rohtak” towards the cost
of Bid document
2.11.3 The documents listed at clause 2.11.2 shall be placed in an envelope, which shall be sealed. The
envelope shall clearly bear the identification “BID for the Planning, Design, Construction,
Defect Liability and Maintenance & all other works contingent thereto for the work
of widening to Two lanes with paved shoulders of existing NH 709 (Extn.) from km 123.520
(near Devsar Mor) to km 146.500 (before Jui village) in District Bhiwani in the state of
Haryana” and shall clearly indicate the name and address of the Bidder. In addition, the BID
Due Date should be indicated on the right hand top corner of the envelope.
2.11.4 The envelope shall be addressed to one of the following officer and shall be submitted at the
respective address:
[(i) ATTN. OF: Sh. H.R Raheja
DESIGNATION CE (NH),
ADDRESS: O/o Engineer-in-Chief, Hr. PWD B&R, Nitman Sadan, Plot No.1, Sector-33A,
Chandigarh
FAX NO: 0172-2618242
E-MAIL ADDRESS: pwd-cenh@hry.nic.in

(ii) ATTN. OF: Sh. Pardeep Ranjan

DESIGNATION, Superintending Engineer,
ADDRESS: Rohtak Circle, Haryana PWD (B&R), Rohtak.
FAX NO: 01262-276076
E-MAIL ADDRESS: pwd-serohtak@hry.nic.in

(iii) ATTN. OF: Sh. Hanumant Singh Sangwan

DESIGNATION : Executive Engineer
ADDRESS: Provincial Division No.-3, Haryana PWD (B&R), Rohtak.
FAX NO: 01262-277271
E-MAIL ADDRESS: pwd-eepd3nh-rohtak@hry.nic.in]

2.11.5 If the envelopes are not sealed and marked as instructed above, the Authority assumes no
responsibility for the misplacement or premature opening of the contents of the BID submitted
and consequent losses, if any, suffered by the Bidder.

2.11.6 BIDs submitted by fax, telex, telegram or e-mail shall not be entertained and shall be summarily
rejected.

2.12 BID Due Date

Technical & Financial BID comprising of the documents listed at clause 2.11.1 of the RFP shall
be submitted online through e-procurement portal https://www.morth.eporc.in on or before 11.00
hours IST on 11.05.2015. Documents listed at clause 2.11.2 of the RFP shall be physically
submitted on or before 13.00 hours IST on 12.05.2015 at the address provided in Clause 2.11.4
in the manner and form as detailed in this RFP. A receipt thereof should be obtained from the
person specified at Clause 2.11.4.

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2.13 Late BIDs
E-procurement portal https://www.morth.eporc.in shall not allow submission of any Bid after the
prescribed date and time at clause 2.12. Physical receipt of documents listed at clause 2.11.2 of
the RFP after the prescribed date and time at clause 2.12 shall not be considered and the bid shall
be summarily rejected.

2.14 Procedure for e-tendering

2.14.1 Accessing/ Purchasing of BID documents

2.14.1.1 It is mandatory for all the Bidders to have class-III Digital Signature Certificate (DSC) in the
name of Authorized Signatory / Firm or Organisation / Owner of the Firm or organisation)
from any of the licensed Certifying Agency (Bidders can see the list of licensed CAs from the
link www.cca.gov.in to participate in e-tendering of MoRT&H.
DSC should be in the name of the authorized signatory as authorized in Appendix III of
this RFP. It should be in corporate capacity (that is in Bidder capacity / in case of JV in the
Lead Member capacity, as applicable). The Bidder shall submit document in support of the
class III DSC.

2.14.1.2 To participate in the bidding, it is mandatory for the Bidders to get registered their firm / Joint
Venture with e-procurement portal of MoRT&H https://www.morth.eproc.in to have user ID &
password which has to be obtained by submitting an annual registration charges of INR
Rs.2247/- (Inclusive of all taxes) to the e-tendering service provider through their e-payment
gateway. Validity of online registration is one year. Following may kindly be noted:

(a) Registration with e-procurement portal of MoRTH should be valid at least up to the date
of submission of BID.
(b) BIDs can be submitted only during the validity of registration.

2.14.1.3 If the firm / Joint Venture is already registered with e-tendering service provider of MoRTH,
and validity of registration is not expired the firm / Joint Venture is not required a fresh
registration.

2.14.1.4 The complete BID document can be viewed / downloaded by the Bidder from procurement
portal of MoRT&H https://www.morth.eproc.in or official portal of MoRTH i.e
https://www.morth.nic.in or from 13.04.2015 to-10.05.2015 (upto 17.00 Hrs. IST).

2.14.1.5 To participate in e- bidding, Bidders have to pay Rs.1, 295 (One Thousand & two hundred
ninty five only) towards non-refundable to e-procurement service provider against tender
processing fee through e- payment gateway of using Credit Card/ Debit Card- Master Card and
Visa Card only or Net Banking.

2.14.2 Preparation & Submission of BIDs:

2.14.2.1 The Bidder may be submitted his Bid online following the instruction appearing on the screen.
A buyer manual containing the detailed guidelines for e-procurement is also available on e-
procurement portal of MoRTH.

26
2.14.2.2 The documents listed at clause 2.11.1 shall be prepared and scanned in different files (in PDF
or JPEG format such that file size is not more than 5 MB) and uploaded during the on-line
submission of BID.
2.14.2.3Bid must be submitted online only through e-procurement portal of MoRT&H
https://www.morth.eproc.in using the digital signature of authorized representative of the
Bidder on or before 11.05.2015 (upto11.00 hours IST).

2.14.3 Modifications/ Substitution/ withdrawal of BIDs

2.14.3.1 The Bidder may modify, substitute or withdraw its e- BID after submission prior to the BID
Due Date. No BID can be modified, substituted or withdrawn by the Bidder on or after the BID
Due Date & Time.

2.14.3.2 For modification of e-BID, Bidder has to detach its old BID from e-procurement portal and
upload / resubmit digitally signed modified BID. For withdrawal of BID, bidder has to click on
withdrawal icon at e-procurement portal and can withdraw its e-BID. Before withdrawal of a
BID, it may specifically be noted that after withdrawal of a BID for any reason, Bidder cannot
re-submit e-BID again.

2.15 Online Opening of BIDs

2.15.1 Opening of BIDs will be done through online process.

2.15.2 The Ministry shall on-line open Technical BIDs on 13.05.2015 at 11.30 hours IST, in the
presence of the authorized representatives of the Bidders, who choose to attend. Technical BID
of only those bidders shall be online opened whose documents listed at clause 2.11.2 of the
RFP have been physically received. The MoRT&H will subsequently examine and evaluate the
BIDs in accordance with the provisions of Section 3 of RFP.

2.16 Rejection of BIDs

2.16.1 Notwithstanding anything contained in this RFP, the Authority reserves the right to reject any
BID and to annul the Bidding Process and reject all BIDs at any time without any liability or any
obligation for such acceptance, rejection or annulment, and without assigning any reasons
therefor. In the event that the Authority rejects or annuls all the BIDs, it may, in its discretion,
invite all eligible Bidders to submit fresh BIDs hereunder.

2.16.2 The Authority reserves the right not to proceed with the Bidding Process at any time, without
notice or liability, and to reject any BID without assigning any reasons.

2.17 Validity of BIDs

The BIDs shall be valid for a period of not less than 120 (one hundred and twenty) days from
the BID Due Date. The validity of BIDs may be extended by mutual consent of the respective
Bidders and the Authority.

2.18 Confidentiality

Information relating to the examination, clarification, evaluation and recommendation for the
Bidders shall not be disclosed to any person who is not officially concerned with the process or
is not a retained professional advisor advising the Authority in relation to, or matters arising out
of, or concerning the Bidding Process. The Authority will treat all information, submitted as part
of the BID, in confidence and will require all those who have access to such material to treat the
27
 same in confidence. The Authority may not divulge any such information unless it is directed to
do so by any statutory entity that has the power under law to require its disclosure or is to
enforce or assert any right or privilege of the statutory entity and/ or the Authority or as may be
required by law or in connection with any legal process.

2.19 Correspondence with the Bidder

Save and except as provided in this RFP, the Authority shall not entertain any correspondence
with any Bidder in relation to acceptance or rejection of any BID.

D. BID SECURITY

2.20 BID Security

2.20.1 The Bidder shall furnish as part of its BID, a BID Security referred to in Clauses 2.1.6 and 2.1.7
hereinabove in the form of a bank guarantee issued by nationalised bank, or a Scheduled Bank
in India having a net worth of at least Rs. 1,000 crore (Rs. one thousand crore), in favour of the
Authority in the format at Appendix-II (the “Bank Guarantee”) and having a validity period
of not less than 180 (one hundred eighty) days from the BID Due Date, inclusive of a claim
period of 60 (sixty) days, and may be extended as may be mutually agreed between the
Authority and the Bidder from time to time. In case the Bank Guarantee is issued by a foreign
bank outside India, confirmation of the same by any nationalised bank in India is required. For
the avoidance of doubt, Scheduled Bank shall mean a bank as defined under Section 2(e) of the
Reserve Bank of India Act, 1934.

The bid security in one of the following forms, having the validity period not less than 180 days
from the bid due date, inclusive of claim period of 60 days, shall also be acceptable: -
(a) Receipt in challan of cash deposit in the Govt. Treasury in India.
(b) Deposit-at-call Receipt from any scheduled Indian Bank or a foreign Bank located in India
and approved by the Reserve Bank of India.
(c) Indian Post Office/National Savings Certificate duly endorsed by the competent postal
authority in India.
(d) Fixed Deposit Receipt, a certified cheque or an irrevocable letter of credit, issued by any
Scheduled Indian Bank or a foreign Bank approved by the Reserve Bank of India.

2.20.2 Any BID not accompanied by the BID Security shall be summarily rejected by the Authority as
non-responsive.

2.20.3 The Selected Bidder’s BID Security will be returned, without any interest, upon the bidder
signing the Contract Agreement and furnishing the Performance Security in accordance with
the provisions thereof. The Authority may, at the Selected Bidder’s option, adjust the amount
of BID Security in the amount of Performance Security to be provided by him in accordance
with the provisions of the Agreement.

2.20.4 The Authority shall be entitled to forfeit and appropriate the BID Security as Damages inter alia
in any of the events specified in Clause 2.20.5 herein below. The Bidder, by submitting its BID
pursuant to this RFP, shall be deemed to have acknowledged and confirmed that the Authority
will suffer loss and damage on account of withdrawal of its BID or for any other default by the
Bidder during the period of BID validity as specified in this RFP. No relaxation of any kind on
BID Security shall be given to any Bidder.

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2.20.5 The BID Security shall be forfeited and appropriated by the Authority as damages payable to
the Authority for, inter-alia, time cost and effort of the Authority without prejudice to any other
right or remedy that may be available to the Authority under the bidding documents and / or
under the Agreement, or otherwise, under the following conditions:
(a) If a Bidder submits a non-responsive BID as defined in 3.1.6;
(b) If a Bidder engages in a corrupt practice, fraudulent practice, coercive practice,
undesirable practice or restrictive practice as specified in Section 4 of this RFP;
(c) If a Bidder withdraws its BID during the period of Bid validity as specified in this RFP and
as extended by mutual consent of the respective Bidder(s) and the Authority;
(d) In the case of Selected Bidder, if it fails within the specified time limit -
(i) to sign and return the duplicate copy of LOA;
(ii) to sign the Agreement; or
(iii) to furnish the Performance Security within the period prescribed therefor in the
Agreement; or
(j) In case the Selected Bidder, having signed the Agreement, commits any breach thereof prior
to furnishing the Performance Security.

2.20.6 Performance Security

Within 10 (ten) days of signing of Contract Agreement, the successful bidder shall furnish to the
Authority a Performance Security in accordance with the provisions of the Agreement and in the
format given in this RFP.

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 SECTION-3
EVALUATION OF TECHNICAL BIDS AND OPENING & EVALUATION OF
FINANCIAL BIDS
3.1 Evaluation of Technical Bids

3.1.1 The Authority shall open the BIDs received physically & online at ……..hours IST on
………….., at the place specified in Clause 2.11.4(i); and in the presence of the Bidders who
choose to attend. Technical BID of only those bidders shall be online opened whose documents
listed at clause 2.11.2 of the RFP have been received physically. The Authority shall prepare
minutes of the BID opening, including information disclosed to those present at the time of
BID opening.

3.1.2 Technical Bids of those Bidders who have not submitted their Bid online, shall not be considered
for opening and evaluation.

3.1.3 If any information furnished by the Bidder is found to be incomplete, or contained in formats
other than those specified herein, the Authority may, in its sole discretion, exclude the relevant
information for consideration of eligibility and qualification of the Bidder.

3.1.4 To facilitate evaluation of Technical BIDs, the Authority may, at its sole discretion, seek
clarifications in writing from any Bidder regarding its Technical BID. Such clarification(s)
shall be provided within the time specified by the Authority for this purpose. Any request for
clarification(s) and all clarification(s) in response thereto shall be in writing.

3.1.5 If a Bidder does not provide clarifications sought under Clause 3.1.4 above within the prescribed
time, its Bid may be liable to be rejected. In case the Bid is not rejected, the Authority may
proceed to evaluate the Bid by construing the particulars requiring clarification to the best of its
understanding, and the Bidder shall be barred from subsequently questioning such
interpretation of the Authority.

3.1.6 Tests of responsiveness

3.2.1 As a first step towards evaluation of Technical BIDs, the Authority shall determine whether
each Technical BID is responsive to the requirements of this RFP. A Technical BID shall be
considered responsive only if:
(a) Technical BID is received online as per the format at Appendix-IA including Annexure I
to VI ; However, those bidders, whose RFAQ eligibility limit assessed by Ministry is not
less than the estimated cost of the Project, are not required to submit Annexure II to V of
Appendix-IA;
(b) Documents listed at clause 2.11.2 are received physically;

(c) Technical Bid is accompanied by the BID Security as specified in Clause 2.1.6 and 2.1.7;

(d) Technical Bid is accompanied by the Power of Attorney as specified in Clauses 2.1.8;

(e) Technical Bid is accompanied by Power of Attorney for Lead Member of Joint Venture
and the Joint Bidding Agreement as specified in Clause 2.1.9, if so required;

(f) Technical Bid contain all the information (complete in all respects);

(g) Technical Bid does not contain any condition or qualification; and

30
 (h) Cost of Bid document of Rs.20,000 (Rupees Twenty Thousand only) in the form of
Demand Draft in favour of “Executive Engineer, Provl. Division No.3 (NH) PWD B&R
Br. Rohtak payable at Rohtak

3.1.6.2 The Authority reserves the right to reject any BID which is non-responsive and no request for
alteration, modification, substitution or withdrawal shall be entertained by the Authority in
respect of such BID.

3.1.7 In the event that a Bidder claims credit for an Eligible Project, and such claim is determined by
the Authority as incorrect or erroneous, the Authority may reject / correct such claim for the
purpose of qualification requirements.

3.1.8 The Authority will get the BID security verified from the issuing authority and after due
verification, the Authority will evaluate the Technical BIDs for their compliance to the
eligibility and qualification requirements pursuant to clause 2.2.1 & 2.2.2 of this RFP.

3.1.9 After evaluation of Technical Bids, the Authority will publish a list of Technically responsive
Bidders whose financial bids shall be opened. The Authority shall notify other bidders that they
have not been technically responsive. The Authority will not entertain any query or
clarification from Applicants who fail to qualify.

3.2 Opening and Evaluation of Financial Bids

The Authority shall inform the venue and time of online opening of the Financial Bids to the
Technically responsive Bidders through e-procurement portal of MoRT&H and e-mail. The
Authority shall online open the Financial Bids on date and time to be informed in this clause in
the presence of the authorised representatives of the Bidders who may choose to attend. The
Authority shall publically announce the Bid Price quoted by the technically responsive Bidder.
The Authority shall prepare a record of opening of Financial Bids

3.3 Selection of Bidder

3.3.1 Subject to the provisions of Clause 2.16.1, the Bidder whose BID is adjudged as responsive in
terms of Clause 3.1.6 and who quotes lowest price shall be declared as the selected Bidder (the
“Selected Bidder”).

3.3.2 In the event that two or more Bidders quote the same BID price (the "Tie BIDs"), the
Authority shall identify the Selected Bidder by draw of lots, which shall be conducted, with
prior notice, in the presence of the Tie Bidders who choose to attend.

3.3.3 In the event that the Lowest Bidder is not selected for any reason, the Authority shall annul the
Bidding Process and invite fresh BIDs. In the event that the Authority rejects or annuls all the
BIDs, it may, in its discretion, invite all eligible Bidders to submit fresh BIDs hereunder

3.3.4 After selection, a Letter of Award (the “LOA”) shall be issued, in duplicate, by the Authority to
the Selected Bidder and the Selected Bidder shall, within 7(seven) days of the receipt of the
LOA, sign and return the duplicate copy of the LOA in acknowledgement thereof. In the event
the duplicate copy of the LOA duly signed by the Selected Bidder is not received by the
stipulated date, the Authority may, unless it consents to extension of time for submission
thereof, appropriate the BID Security of such Bidder as Damages on account of failure of the
Selected Bidder to acknowledge the LOA.

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3.3.5 After acknowledgement of the LOA as aforesaid by the Selected Bidder, it shall cause the
bidder to execute the Agreement within the period prescribed in Clause 1.3. The Selected
Bidder shall not be entitled to seek any deviation, modification or amendment in the
Agreement.

3.4 Contacts during BID Evaluation

BIDs shall be deemed to be under consideration immediately after they are opened and until
such time the Authority makes official intimation of award/ rejection to the Bidders. While the
BIDs are under consideration, Bidders and/ or their representatives or other interested parties
are advised to refrain, save and except as required under the Bidding Documents, from
contacting by any means, the Authority and/ or their employees/ representatives on matters
related to the BIDs under consideration.

3.5 Correspondence with Bidder

Save and except as provided in this RFP, the Authority shall not entertain any correspondence
with any Bidder in relation to the acceptance or rejection of any Bid.

3.6 Any information contained in the Bid shall not in any way be construed as binding on the
Authority, its agents, successors or assigns, but shall be binding against the Bidder if the
Project is subsequently awarded to it on the basis of such information.
3.7 The Authority reserves the right not to proceed with the Bidding Process at any time without
notice or liability and to reject any or all Bid(s) without assigning any reasons.

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 SECTION-4
4. FRAUD AND CORRUPT PRACTICES

4.1 The Bidders and their respective officers, employees, agents and advisers shall observe the highest
standard of ethics during the Bidding Process and subsequent to the issue of the LOA and during
the subsistence of the Agreement. Notwithstanding anything to the contrary contained herein, or in
the LOA or the Agreement, the Authority may reject a BID, withdraw the LOA or terminate the
Agreement, as the case may be, without being liable in any manner whatsoever to the Bidder, if it
determines that the Bidder, direct or indirectly or through an agent, engaged in corrupt practice,
fraudulent practice, coercive practice, undesirable practice or restrictive practice in the Bidding
Process. In such an event, the Authority shall be entitled to forfeit and appropriate the BID
Security or Performance Security, as the case may be, as Damages, without prejudice to any other
right or remedy that may be available to the Authority under the Bidding Documents and/ or the
Agreement, or otherwise.

4.2 Without prejudice to the rights of the Authority under Clause 4.1 hereinabove and the rights and
remedies which the Authority may have under the LOA or the Agreement, or otherwise if a
Bidder or Contractor, as the case may be, is found by the Authority to have directly or indirectly
or through an agent, engaged or indulged in any corrupt practice, fraudulent practice, coercive
practice, undesirable practice or restrictive practice during the Bidding Process, or after the issue
of the LOA or the execution of the Agreement, such Bidder shall not be eligible to participate in
any tender or RFP issued by the Authority during a period of 2 (two) years from the date such
Bidder, or Contractor, as the case may be, is found by the Authority to have directly or indirectly
or through an agent, engaged or indulged in any corrupt practice, fraudulent practice, coercive
practice, undesirable practice or restrictive practices, as the case may be.

4.3 For the purposes of this Section 4, the following terms shall have the meaning hereinafter
respectively assigned to them:
(a) “corrupt practice” means (i) the offering, giving, receiving, or soliciting, directly or
indirectly, of anything of value to influence the actions of any person connected with the
Bidding Process (for avoidance of doubt, offering of employment to or employing or
engaging in any manner whatsoever, directly or indirectly, any official of the Authority who
is or has been associated in any manner, directly or indirectly, with the Bidding Process or the
LOA or has dealt with matters concerning the Agreement or arising there for, before or after
the execution thereof, at any time prior to the expiry of one year from the date such official
resigns or retires from or otherwise ceases to be in the service of the Authority, shall be
deemed to constitute influencing the actions of a person connected with the Bidding Process);
or (ii) save and except as permitted under the Clause 2.1.1 of this RFP, engaging in any
manner whatsoever, whether during the Bidding Process or after the issue of the LOA or after
the execution of the Agreement, as the case may be, any person in respect of any matter
relating to the Project or the LOA or the Contract Agreement, who at any time has been or is a
legal, financial or technical adviser of the Authority in relation to any matter concerning the
Project;
(b) “fraudulent practice” means a misrepresentation or omission of facts or suppression of
facts or disclosure of incomplete facts, in order to influence the Bidding Process;
(c) “coercive practice” means impairing or harming, or threatening to impair or harm, directly
or indirectly, any person or property to influence any person’s participation or action in the
Bidding Process;
(d) “undesirable practice” means (i) establishing contact with any person connected with or
employed or engaged by the Authority with the objective of canvassing, lobbying or in any

33
 manner influencing or attempting to influence the Bidding Process; or (ii) having a Conflict of
Interest; and
(e) “restrictive practice” means forming a cartel or arriving at any understanding or
arrangement among Bidders with the objective of restricting or manipulating a full and fair
competition in the Bidding Process.

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 SECTION-5
5. PRE-BID CONFERENCE

5.1 Pre-BID conference of the Bidders shall be convened at the designated date, time and place. A
maximum of two representatives of prospective Bidders shall be allowed to participate on
production of authority letter from the Bidder.

5.2 During the course of Pre-Bid conference(s), the Bidders will be free to seek clarifications and make
suggestions for consideration of the Authority. The Authority shall endeavour to provide
clarifications and such further information as it may, in its sole discretion, consider appropriate for
facilitating a fair, transparent and competitive Bidding Process.

35
 SECTION-6
6. MISCELLANEOUS

6.1 The Bidding Process shall be governed by, and construed in accordance with, the laws of India and
the Courts at New Delhi shall have exclusive jurisdiction over all disputes arising under, pursuant
to and/ or in connection with the Bidding Process.

6.2 The Authority, in its sole discretion and without incurring any obligation or liability,
reserves the right, at any time, to;

(a) suspend and/ or cancel the Bidding Process and/ or amend and/ or supplement the Bidding
Process or modify the dates or other terms and conditions relating thereto;

(b) consult with any Bidder in order to receive clarification or further information;

(c) retain any information and/ or evidence submitted to the Authority by, on behalf of, and/ or in
relation to any Bidder; and/ or

(c) independently verify, disqualify, reject and/ or accept any and all submissions or other
information and/ or evidence submitted by or on behalf of any Bidder.

6.3 It shall be deemed that by submitting the Bid, the Bidder agrees and releases the Authority, its
employees, agents and advisers, irrevocably, unconditionally, fully and finally from any and all
liability for claims, losses, damages, costs, expenses or liabilities in any way related to or arising
from the exercise of any rights and/ or performance of any obligations hereunder, pursuant hereto
and/ or in connection with the Bidding Process and waives, to the fullest extent permitted by
applicable laws, any and all rights and/ or claims it may have in this respect, whether actual or
contingent, whether present or in future.

36
 APPENDIX-IA
LETTER COMPRISING THE TECHNICAL BID
(Refer Clauses 2.1.5, 2.11 and 3.1.6)

Dated:
The Chief Engineer (NH)
PWD B&R Br., Govt. of Haryana,
Nirman Sadan, Plot No.-1,
Sector-33A, Chandigarh

Sub: BID for “Planning, Design, Construction, Defect Liability and Maintenance & all other
works contingent thereto for the work of widening to Two lanes with paved shoulders of
existing NH 709 (Extn.) from km 123.520 (near Devsar Mor) to km 146.500 (before Jui village) in
District Bhiwani in the state of Haryana on EPC mode” Project

Dear Sir,

With reference to your RFP document dated *** **, I/we, having examined the Bidding Documents and
understood their contents, hereby submit my/our BID for the aforesaid Project. The BID is
unconditional and unqualified.

2. I/ We acknowledge that the Authority will be relying on the information provided in the BID and
the documents accompanying the BID for selection of the Contractor for the aforesaid Project, and
we certify that all information provided in the bid and its Annexure I to VI along with the
supporting document are true and correct; nothing has been omitted which renders such
information misleading; and all documents accompanying the BID are true copies of their
respective originals.
3. This statement is made for the express purpose of our selection as EPC Contractor for the
development, construction, rehabilitation and augmentation of the aforesaid Project and
maintenance of the Project during the Defect Liability Period.
4. I/ We shall make available to the Authority any additional information it may find necessary or
require to supplement or authenticate the BID.
5. I/ We acknowledge the right of the Authority to reject our BID without assigning any reason or
otherwise and hereby waive, to the fullest extent permitted by applicable law, our right to
challenge the same on any account whatsoever.
6. I/ We certify that in the last three years, we/ any of the JV partners have neither failed to perform
on any contract, as evidenced by imposition of a penalty by an arbitral or judicial authority or a
judicial pronouncement or arbitration award, nor been expelled from any project or contract by
any public authority nor have had any contract terminated by any public authority for breach on
our part.
7. I/ We declare that:
(a) I/ We have examined and have no reservations to the Bidding Documents, including any
Addendum issued by the Authority; and
(b) I/We do not have any conflict of interest in accordance with Clauses 2.1.1(c) and 2.1.1(d) of
the RFP document; and
(c) I/We have not directly or indirectly or through an agent engaged or indulged in any corrupt
practice, fraudulent practice, coercive practice, undesirable practice or restrictive practice, as
defined in Clause 4.3 of the RFP document, in respect of any tender or request for proposal
issued by or any Agreement entered into with the Authority or any other public sector
enterprise or any government, Central or State; and (d) I/ We hereby certify that we have
37
 taken steps to ensure that in conformity with the provisions of Section 4 of the RFP, no person
acting for us or on our behalf has engaged or will engage in any corrupt practice, fraudulent
practice, coercive practice, undesirable practice or restrictive practice; and
(e) the undertakings given by us along with the Application in response to the RFP for the Project
and information mentioned for the evaluation of the BID Capacity in Annexure VI were true
and correct as on the date of making the Application and are also true and correct as on the
BID Due Date and I/we shall continue to abide by them.
8. I/ We understand that you may cancel the Bidding Process at any time and that you are neither
bound to accept any BID that you may receive nor to invite the Bidders to BID for the Project,
without incurring any liability to the Bidders, in accordance with Clause 2.16.2 of the RFP
document.
9. I/We believe that we/our Joint Venture satisfy(s) the Threshold Technical Capacity, Net Worth
criteria and meet(s) the requirements as specified in the RFP document.
10. I/ We declare that we/ any Member of the Joint Venture or our/Joint Venture member, are not a
Member of any other Joint Venture submitting a BID for the Project.
11. I/ We certify that in regard to matters other than security and integrity of the country, we/ any
Member of the Joint Venture or any of our/their Joint venture member have not been convicted by
a Court of Law or indicted or adverse orders passed by a regulatory authority which could cast a
doubt on our ability to undertake the Project or which relates to a grave offence that outrages the
moral sense of the community.
12. I/ We further certify that in regard to matters relating to security and integrity of the country, we/
any Member of the Joint Venture or any of our/their Joint venture member have not been charge-
sheeted by any agency of the Government or convicted by a Court of Law.
13. I/ We further certify that no investigation by a regulatory authority is pending either against us/any
member of Joint Venture or against our CEO or any of our directors/ managers/ employees.
14. I/ We further certify that we are not disqualified in terms of the additional criteria specified by the
Department of Disinvestment in their OM No. 6/4/2001-DD-II dated 13.7.01, a copy of which
forms part of the RFP at Annexure -VII of Appendix-IA thereof.
15. I/ We undertake that in case due to any change in facts or circumstances during the Bidding
Process, we are attracted by the provisions of disqualification in terms of the guidelines referred to
above, we shall intimate the Authority of the same immediately.
16. I/We further acknowledge and agree that in the event such change in control occurs after signing
of the Agreement upto its validity. It would, not withstanding anything to the contrary contained
in the Agreement, be deemed a breach thereof, and the Agreement shall be liable to be terminated
without the Authority being liable to us in any manner whatsoever.
17. I/ We hereby irrevocably waive any right or remedy which we may have at any stage at law or
howsoever otherwise arising to challenge or question any decision taken by the Authority in
connection with the selection of the Bidder, or in connection with the Bidding Process itself, in
respect of the above mentioned Project and the terms and implementation thereof.
18. In the event of my/ our being declared as the Selected Bidder, I/we agree to enter into a
Agreement in accordance with the draft that has been provided to me/us prior to the BID Due
Date. We agree not to seek any changes in the aforesaid draft and agree to abide by the same.
19. I/ We have studied all the Bidding Documents carefully and also surveyed the project Highway
and the traffic. We understand that except to the extent as expressly set forth in the Agreement, we
shall have no claim, right or title arising out of any documents or information provided to us by
the Authority or in respect of any matter arising out of or relating to the Bidding Process including
the award of Agreement.
20. I/ We offer a BID Security of Rs 43.55 Lacs (Rupees Forty Three Lacs and Fifty five thousand
only) to the Authority in accordance with the RFP Document.
21. The BID Security in the form of a Bank Guarantee is attached.
22. The documents accompanying the Technical BID, as specified in Clause 2.11.1 of the RFP, have
been submitted in a separate files.
38
23. I/ We agree and understand that the BID is subject to the provisions of the Bidding Documents. In
no case, I/we shall have any claim or right of whatsoever nature if the Project / Contract is not
awarded to me/us or our BID is not opened or rejected.
24. The BID Price has been quoted by me/us after taking into consideration all the terms and
conditions stated in the RFP, draft Agreement, our own estimates of costs and after a careful
assessment of the site and all the conditions that may affect the project cost and implementation of
the project.
25. I/ We agree and undertake to abide by all the terms and conditions of the RFP document.
26. We, the Joint Venture agree and undertake to be jointly and severally liable for all the obligations
of the EPC Contractor under the Contract Agreement.
27. I/ We shall keep this offer valid for 120 (one hundred and twenty) days from the BID Due Date
specified in the RFP.
28 I/ We hereby submit our BID and offer a BID Price as indicated in Financial Bid for undertaking
the aforesaid Project in accordance with the Bidding Documents and the Agreement.
In witness thereof, I/we submit this BID under and in accordance with the terms of the RFP
document.

Yours faithfully,
Date: (Signature, name and designation
of the Authorised signatory)
Place: Name and seal of Bidder/Lead Member

Note: Paragraphs in curly parenthesis may be omitted by the Bidder, if not applicable to it, and
‘Deleted’ may be indicated there

39
 APPENDIX-IB
LETTER COMPRISING THE FINANCIAL BID
(Refer Clauses 2.1.5,2.11.1 and 3.1.6)
Dated:
The Chief Engineer (NH)
PWD B&R Br., Govt. of Haryana,
Nirman Sadan, Plot No.-1,
Sector-33A, Chandigarh

Sub: BID for “Planning, Design, Construction, Defect Liability and Maintenance & all other
works contingent thereto for the work of widening to Two lanes with paved shoulders of
existing NH 709 (Extn.) from km 123.520 (near Devsar Mor) to km 146.500 (before Jui village) in
District Bhiwani in the state of Haryana on EPC mode” through Engineering, Procurement &
Construction (EPC) Basis Contract.

Dear Sir,

With reference to your RFP document dated *** **$, I/we, having examined the Bidding Documents
and understood their contents, hereby submit my/our BID for the aforesaid Project. The BID is
unconditional and unqualified.

2. I/ We acknowledge that the Authority will be relying on the information provided in the BID and
the documents accompanying the BID for selection of the Contractor for the aforesaid Project, and
we certify that all information provided in the Bid are true and correct; nothing has been omitted
which renders such information misleading; and all documents accompanying the BID are true
copies of their respective originals.
3. The BID Price has been quoted by me/us after taking into consideration all the terms and
conditions stated in the RFP, draft Agreement, our own estimates of costs and after a careful
assessment of the site and all the conditions that may affect the project cost and implementation of
the project.
4. I/ We acknowledge the right of the Authority to reject our BID without assigning any reason or
otherwise and hereby waive, to the fullest extent permitted by applicable law, our right to
challenge the same on any account whatsoever.
5. In the event of my/ our being declared as the Selected Bidder, I/we agree to enter into a
Agreement in accordance with the draft that has been provided to me/us prior to the BID Due
Date. We agree not to seek any changes in the aforesaid draft and agree to abide by the same.
6. I/ We shall keep this offer valid for 120 (one hundred and twenty) days from the BID Due Date
specified in the RFP.
7. I/ We hereby submit our BID and offer a BID Price of Rs._______(Rupees___________only)
for undertaking the aforesaid Project in accordance with the Bidding Documents and the
Agreement.

Yours faithfully,

Date: (Signature, name and designation

of the Authorised signatory)
Place: Name and seal of Bidder/Lead Member
Class III DSC ID of Authorised Signatory

40
 Appendix IA
Annex-I
ANNEX-I
Details of Bidder
1. (a) Name:
(b) Country of incorporation:
(c) Address of the corporate headquarters and its branch office(s), if any, in India:
(d) Date of incorporation and/or commencement of business:

2. Brief description of the Company including details of its main lines of business and proposed role
and responsibilities in this Project:

3. Details of individual(s) who will serve as the point of contact/communication for the Authority:
(a) Name:
(b) Designation:
(c) Company:
(d) Address:
(e) Telephone Number:
(f) E-Mail Address:
(g) Fax Number:

4. Particulars of the Authorised Signatory of the Applicant:

(a) Name:
(b) Designation:
(c) Address:
(d) Phone Number:
(e) Fax Number:
(f) Class III Digital Signature Certificate ID Number

5. In case of a Joint Venture:

(a) The information above (1-4) should be provided for all the Members of the Joint Venture.
(b) A copy of the Jt. Bidding Agreement, as envisaged in Clause 2.1.15(g) should be attached to the
Application.
(c) Information regarding the role of each Member should be provided as per table below:
Sl. . Name of Member Role* Share of work in the
No {Refer Clause Project{Refer Clauses
2.1.15(d)} $ 2.1.15(a), & (f) & (h)}

1
2
3
* The role of each Member, as may be determined by the Applicant, should be indicated in
accordance with instruction 4 at Annex-IV.

(d) The following information shall also be provided w.r.t para 2.1.18 for each Member of the Joint
Venture:
Name of Applicant/ member of Joint Venture:

$
All provisions contained in curly parenthesis shall be suitably modified by the Applicant to reflect the particulars
relating to such Applicant.
41
No. Criteria Yes No.
1 Has the Bidder constituent of the Joint Venture been barred by
the Central/ State Government, or any entity controlled by it,
from participating in any project (BOT, EPC or otherwise).

2 If the answer to 1 is yes, does the bar subsist as on BID due

date.
3 Has the Bidder/ constituent of the Joint Venture paid liquidated
damages of more than 5% of the contract value in a contract
due to delay or has been penalised due to any other reason in
relation to execution of a contract, in the last three years?

6. A statement by the Bidder and each of the Members of its Joint Venture (where applicable)
disclosing material non-performance or contractual non-compliance in past projects, contractual
disputes and litigation/ arbitration in the recent past is given below (Attach extra sheets, if
necessary) w.r.t para 2.1.19:
Name of Bidder/ member of Joint Venture:
No Criteria Ist Last 2nd Last 3rd Last
Year Year year
1 If bidder have either failed to perform on any contract,
as evidenced by imposition of a penalty by an arbitral
or judicial authority or a judicial pronouncement or
arbitration award against the Bidder or any of its Joint
Venture Member, as the case may be, or has been
expelled from any project or contract by any public
entity nor have had any contract terminated by any
public entity for breach by such Bidder or any of its
Joint Venture member.
2 Updated details of stage of litigation, if so, against the
Authority / Governments on all the on-going projects
ofthe bidder or any of its Joint Venture Member
3 Updated details of on-going process of blacklisting if
so, under any contract with Authority / Government
on the Bidder including any of its Joint Venture
member

42
 Appendix IA
Annex-II
ANNEX-II
@
Technical Capacity of the Bidder
(Refer to Clauses 2.2.2.2, 2.2.2.5 and 2.2.2.7 of the RFP)

** $$
Applicant Project Cate- Experience (Equivalent Rs. crore) Technical
$ £
type Code* gory Payments received for Value of self-construction Experience
construction of Eligible in Eligible Projects in
Projects in Categories 3 & 4 Categories 1 and 2
(1) (2) (3) (4) (5) (6)
Single entity a
Bidder or Lead b
Member c
including other d
members of the e
Joint Venture
f
Aggregate Technical Experience =

@
Provide details of only those projects that have been undertaken by the Applicant, or its Lead
member including members in case of joint venture, under its own name separately and/ or by a project
company eligible under Clause 2.2.2.6(i)(b). In case of Categories 1 and 2, include only those projects
which have an estimated capital cost exceeding the amount specified in Clause 2.2.2.6(i)(c) and for
Categories 3 and 4, include only those projects where the payments received exceed the amount
specified in Clause 2.2.26(ii). In case the Bid Due Date falls within 3 (three) months of the close of the
latest financial year, refer to Clause 2.2.12.
* Refer Annex-IV of this Appendix-I. Add more rows if
$
necessary. Refer Clause 2.2.2.5(i)
** Construction shall not include supply of goods or equipment except when such goods or equipment
form part of a turn-key construction contract/ EPC contract for the project. In no case shall the cost of
maintenance and repair, operation of Highways and land be included while computing the Experience
Score of an Eligible Project.
$$
For conversion of US Dollars to Rupees, the rate of conversion shall be Rupees [50 (fifty)] to a US
Dollar. In case of any other currency, the same shall first be converted to US Dollars as on the date 60
(sixty) days prior to the Application Due Date, and the amount so derived in US Dollars shall be
converted into Rupees at the aforesaid rate. The conversion rate of such currencies shall be the daily
representative exchange rates published by the International Monetary Fund for the relevant date.
£
. In the case of an Eligible Project situated in an OECD country, the Experience Score so arrived at
shall be further multiplied by 0.5, in accordance with the provisions of Clause 2.2.2.5(ii) and the
product thereof shall be the Experience Score for such Eligible Projects.
NOTE:In case of a Joint Venture, information in Annex-II and Annex-IV of Appendix-I shall be
provided separately for other Members so as to establish that each such Member has 30 percent or more
of the Threshold Technical Capacity. Such information may be provided as Annex-IIA, Annex-IIB,
Annex-IVA and Annex-IVB respectively. (Refer Clause 2.2.2.4).

43
 Appendix IA
Annex-III
ANNEX-III

Financial Capacity of the Bidder

(Refer to Clauses 2.2.2.3, 2.2.2.9(i), 2.2.2.8(iii) of the RFP)
$
(In Rs. crore )

£
Bidder type Net Cash Accruals Net Worth
Year 1 Year 2 Year 3 Year 4 Year 5 Year 1
Single entity Bidder or Lead Member
including other members of the Joint
Venture
TOTAL

Name & address of Biddert’s Bankers:

$
For conversion of other currencies into rupees, see note below Annex-II of
£
Appendix-I. The Bidder should provide details of its own Financial Capacity.
Instructions:

1. The Bidder shall attach copies of the balance sheets, financial statements and Annual
Reports for 5 (five) years preceding the Bid Due Date. The financial statements
shall:
(a) reflect the financial situation of the Bidder;
(b) be audited by a statutory auditor;
(c) be complete, including all notes to the financial statements; and
(d) correspond to accounting periods already completed and audited (no statements
for partial periods shall be requested or accepted).
2. Net Cash Accruals shall mean Profit After Tax + Depreciation.
3. Net Worth shall mean (Subscribed and Paid-up Equity + Reserves) less (Revaluation
reserves + miscellaneous expenditure not written off + reserves not available for
distribution to equity shareholders).
4. Year 1 will be the latest completed financial year, preceding the bidding. Year 2 shall be
the year immediately preceding Year 1 and so on. In case the Bid Due Date falls within 3
(three) months of the close of the latest financial year, refer to Clause 2.1.17.
5. In the case of a Joint Venture, a copy of the Jt. Bidding Agreement shall be submitted in
accordance with Clause 2.1.15 (g) of the RFQ document.
6. The Bidder shall also provide the name and address of the Bankers to the Bidder.
7. The Bidder shall provide an Auditor’s Certificate specifying the net worth of the Bidder
and also specifying the methodology adopted for calculating such net worth in
accordance with Clause 2.2.2.9 (ii) of the RFP document.

44
 Appendix IA

ANNEX-IV
Annex-IV

Details of Eligible Projects

(Refer to Clauses 2.2.2.2, 2.2.2.5 and 2.2.2.7of the RFP)

Entity: Self/Members:
Project Code:
Item Refer Particulars
Instruction of the Project
Title & nature of the project
Category 5
Year-wise (a) payments received for construction, and/or (b) 6
revenues appropriated for self construction under PPP projects
Entity for which the project was constructed 7
Location
Project cost 8
Date of commencement of project/ contract
Date of completion/ commissioning 9
Equity shareholding (with period during which equity was held) 10
Instructions:

1. Bidders are expected to provide information in respect of each Eligible Projects in this
Annex. The projects cited must comply with the eligibility criteria specified in Clause
2.2.2.6 (i) and 2.2.2.6 (ii) of the RFP, as the case may be. Information provided in this
section is intended to serve as a back up for information provided in the Application.
Applicants should also refer to the Instructions below.

2. The Project Codes would be a, b, c, d etc.

3. A separate sheet should be filled for each Eligible Project.

4. In case the Eligible Project relates to other Members, write “Member”.

5. Refer to Clause 2.2.2.5 of the RFP for category number.

6. The total payments received and/or revenues appropriated for self construction for each
Eligible Project are to be stated in Annex-II of this Appendix-I. The figures to be provided
45
 here should indicate the break-up for the past 5 (five) financial years. Year 1 refers to the
financial year immediately preceding the Bid Due Date; Year 2 refers to the year before
Year 1, Year 3 refers to the year before Year 2, and so on (Refer Clause 1.1.17). For
Categories 1 and 2, expenditure on construction of the project by the Applicant itself should
be provided, but only in respect of projects having an estimated capital cost exceeding the
amount specified in Clause 2.2.2.6(i)(c). In case of Categories 3 and 4, payments received
only in respect of construction should be provided, but only if the amount received exceeds
the minimum specified in Clause 2.2.2.6(ii). Receipts for construction works should only
include capital expenditure, and should not include expenditure on maintenance & repair
and operation of Highways.

7. In case of projects in Categories 1and 2, particulars such as name, address and contact
details of owner/ Authority/ Agency (i.e. concession grantor, counter party to concession,
etc.) may be provided. In case of projects in Categories 3 and 4, similar particulars of the
client need to be provided.

8. Provide the estimated capital cost of Eligible Project. Refer to Clauses 2.2.2.6(i) and
2.2.2.6(ii)

9. For Categories 1 and 2, the date of commissioning of the project, upon completion, should
be indicated. In case of Categories 3 and 4, date of completion of construction should be
indicated. In the case of projects under construction, the likely date of completion or
commissioning, as the case may be, shall be indicated.

10. For Categories 1 and 2, the equity shareholding of the Bidder, in the company owning the
Eligible Project, held continuously during the period for which Eligible Experience is
claimed, needs to be given (Refer Clause 2.2.2.6(i).

11. Experience for any activity relating to an Eligible Project shall not be claimed twice. In
other words, no double counting in respect of the same experience shall be permitted in any
manner whatsoever.

$
12. Certificate from the Bidder’s statutory auditor or its respective clients must be furnished as
per formats below for each Eligible Project. In jurisdictions that do not have statutory
auditors, the auditors who audit the annual accounts of the Bidder may provide the requisite
46
 certification.

£
13. If the Bidder is claiming experience under Categories 1 & 2 , it should provide a certificate
from its statutory auditor in the format below:
Certificate from the Statutory Auditor regarding PPP projectsΦ
Based on its books of accounts and other published information authenticated by it, this is to
certify that …………………….. (name of the Bidder) is/ was an equity shareholder in
……………….. (title of the project company) and holds/ held Rs. ……… cr. (Rupees
………………………….. crore) of equity (which constitutes ……..%€ of the total paid up
and subscribed equity capital) of the project company from …………... (date) to
…………….. (date)¥ The project was/is commenced on………(date) and likely to be
commissioned on ……………. (date of commissioning of the project).
We further certify that the total estimated capital cost of the project is Rs. ……… cr.
(Rupees …………………crore), of which the applicant has itself undertaken the
construction of project of Rs. ………(Rupees ………. Crores) excluding any part of the
project for which any contractor, sub-contractor or other agent was appointed for the
purpose of construction as per Clause 2.2.2.6 (i) (d) by the aforesaid Applicant itself, during
the past five financial years as per year-wise details noted below:
........................................
........................................
Name of the audit firm:
Seal of the audit firm: (Signature, name and designation
Date: of the authorised signatory

$
In case duly certified audited annual financial statements containing the requisite details are provided, a
separate certification by statutory auditors would not be necessary.
£
Refer Clause 2.2.2.5 of the RFQ.

Φ Provide Certificate as per this format only. Attach Explanatory Notes to the Certificate, if necessary. Statutory
auditor means the entity that audits and certifies the annual accounts of the company.
€
Refer instruction no. 10 in this Annex-IV.

¥
In case the project is owned by the Applicant company, this language may be suitably modified to read: “It is
certified that …………….. (name of Applicant) constructed and/ or owned the ………….. (name of project)
from ……………….. (date) to ………………… (date).”

47
 ♣
14. If the Bidder is claiming experience under Category 3 & 4 , it should provide a certificate
from its statutory auditors or the client in the format below:
Φ
Certificate from the Statutory Auditor/ Client regarding construction works
Based on its books of accounts and other published information authenticated by it,
{this is to certify that …………………….. (name of the Bidder) was engaged by

……………….. (title of the project company) to execute ……………… (name of project) for
…………………. (nature of project)}. The construction of the project commenced on
………….. (date) and the project was/ is likely to be commissioned on

…………… (date, if any). It is certified that Bidder received payments from its Clients for
Construction Works executed by them, in the aforesaid construction works.

We further certify that the total estimated capital cost of the project is Rs. …… cr. (Rupees
…………………crore), of which the Applicant received Rs. ……… cr. (Rupees
……………………… crore), in terms of Clauses 2.2.2.5 and 2.2.2.6(ii)of the RFP, during the
past five financial years as per year-wise details noted below:

………………………
………………………

It is further certified that the receipts indicated above are restricted to the share of the Applicant
♠
who undertook these works as a partner or a member of joint venture/consortium.

We further certify that applicant has a share of _____% in the Joint Venture/Consortium.

Name of the audit

firm: Seal of the audit
firm: Date: (Signature, name and designation of the
authorised signatory).

15. It may be noted that in the absence of any detail in the above certificates, the
information would be considered inadequate and could lead to exclusion of the
relevant project in computation of Experience .

♣
Refer Clauses 2.2.2.5 and 2.2.2.6(ii)of the RFQ.

Φ
Provide Certificate as per this format only. Attach Explanatory Notes to the Certificate, if necessary.
Statutory auditor means the entity that audits and certifies the annual accounts of the company.

♠
This certification should be strike out in case of jobs/ contracts, which are executed a sole firm. The
payments indicated in the certificate should be restricted to the share of Applicant in such partnership/ joint
venture. This portion may be omitted if the contract did not involve a partnership/ joint venture. In case
where work is not executed by partnership/ joint venture, this paragraph may be deleted.

48
 Appendix IA
Annex-V

ANNEX-V

Statement of Legal Capacity

(To be forwarded on the letterhead of the Applicant/ Lead Member of Joint Venture)

Ref. Date:

To,
The Chief Engineer (NH),
PWD B&R Br., Govt. Of Haryana,
Nirman Sadan, Plot No.,
Sector-33A, Chandigarh.

Dear Sir,

We hereby confirm that we/ our members in the Joint Venture (constitution of which has
been described in the application) satisfy the terms and conditions laid out in the RFP
document.

We have agreed that …………………… (insert member’s name) will act as the Lead
Member of our Joint Venture.*

We have agreed that ………………….. (insert individual’s name) will act as our
representative/ will act as the representative of the Joint Venture on its behalf* and has been
duly authorized to submit the RFP. Further, the authorised signatory is vested with requisite
powers to furnish such letter and authenticate the same.

Thanking you,

Yours faithfully,

(Signature, name and designation of the authorised signatory)

For and on behalf of……………………………..

*Please strike out whichever is not applicable.

49
 Appendix - IA
Annexure-VI

ANNEX-VI
Information required to evaluate the BID Capacity under clause
2.2.2.1:

To calculate the value of “A”

1. A table containing value of Civil Engineering Works in respect to EPC Projects (Turnkey
projects / Item rate contract/ Construction works) undertaken by the Bidder during the last
5 years is as follows:
2.

Sl. No. Year Value of Civil Engg. Works

undertaken w.r.t. EPC Projects
(Rs. In Crores)
1 2013-14
2 2012-13
3 2011-12
4 2010-11
5 2009-10

3. Maximum value of projects that have been undertaken during the F.Y. ________ out of
the last 5 years and value thereof is Rs._____Crores
(Rupees__________________________). Further, value updated to the price level of
the year indicated in Appendix is as follows:

Rs. ______ Crores x _____(Updation Factor as per Appendix) = Rs. _______ Crores
(Rupees______________________________________)

…………………….. …………………………
…………………….. ………………………….
Name of the Statutory Auditor’s firm:
Signature, name and designation of
Authorised Signatory Seal of the audit firm: (Signature, name and
designation and Membership No. of authorised
For and on behalf of ………………(Name signatory)
of the Bidder)

50
To calculate the value of “B”
A table containing value of all the existing commitments and on-going workings to be
completed during the next ____ years is as follows:
updation Factor as given below:

For Year F.Y. / Calendar Year Up dation Factor

1 2013-14 / 2013 1.00

Sl. Name of Percentage of Dater of start / Value of Value of Balance Anticipated Balance value
No. Project/Work participation appointed date contract as work value of date of of work at
of Bidder in of project per completed work to be completion 2013-14 price
the project Agreement completed level
/LOA

Rs. in Rs. in Rs. in Rs. in Crore

Crore Crore Crore
1 2 3 4 5 6 7= (5-6) 8 9 (3x 7 x #)

2 2012-13 / 2012 1.05

3 2011-12 / 2011 1.10

4 2010-11 / 2010 1.15

5 2009-10 / 2009 1.20

The Statement showing the value of all existing commitments and ongoing works as well as the
stipulated period of completion remaining for each of the works mentioned above is verified from the
certificate issued that has been countersigned by the Client or its Engineer-in-charge not below the rank
of Executive Engineer or equivalent in respect of EPC Projects or Concessionaire / Authorised
Signatory of SPV in respect of BOT Projects. No awarded / ongoing works has been left in the aforesaid
statement which has been awarded to M/s………………individually / and other member M/s
……………….. and M/s ………………., as on bid due date of this RFP.

....................................... .........................................
....................................... .........................................
Signature, name and designation of Name of the Statutory Auditor’s firm:
Authorised Signatory
Seal of the audit firm: (Signature, name
For and on behalf of ..................(Name
Of the Bidder) and designation and Membership NO.
Date: Of authorised signatory)
Place:

51
 APPENDIX-IA
13
Annexure VII
Guidelines of the Department of Disinvestment
(Refer Clause1.2.1)

No. 6/4/2001-DD-II
Government of India
Department of Disinvestment
Block 14, CGO Complex
New Delhi.
th
Dated 13 July, 2001.

OFFICE MEMORANDUM

Sub: Guidelines for qualification of Bidders seeking to acquire stakes in Public Sector
Enterprises through the process of disinvestment

Government has examined the issue of framing comprehensive and transparent guidelines
defining the criteria for bidders interested in PSE-disinvestment so that the parties selected
through competitive bidding could inspire public confidence. Earlier, criteria like net worth,
experience etc. used to be prescribed. Based on experience and in consultation with
concerned departments, Government has decided to prescribe the following additional
criteria for the qualification/ disqualification of the parties seeking to acquire stakes in public
sector enterprises through disinvestment:
(a) In regard to matters other than the security and integrity of the country, any conviction
by a Court of Law or indictment/ adverse order by a regulatory authority that casts a
doubt on the ability of the bidder to manage the public sector unit when it is
disinvested, or which relates to a grave offence would constitute disqualification.
Grave offence is defined to be of such a nature that it outrages the moral sense of the
community. The decision in regard to the nature of the offence would be taken on case
to case basis after considering the facts of the case and relevant legal principles, by the
Government of India.
(b) In regard to matters relating to the security and integrity of the country, any charge-
sheet by an agency of the Government/ conviction by a Court of Law for an offence
committed by the bidding party or by any sister concern of the bidding party would
result in disqualification. The decision in regard to the relationship between the sister
concerns would be taken, based on the relevant facts and after examining whether the
two concerns are substantially controlled by the same person/ persons.
(c) In both (a) and (b), disqualification shall continue for a period that Government deems
appropriate.
(d) Any entity, which is disqualified from participating in the disinvestment process,
would not be allowed to remain associated with it or get associated merely because it
has preferred an appeal against the order based on which it has been disqualified. The
mere pendency of appeal will have no effect on the disqualification.

13
These guidelines may be modified or substituted by the Government from time to time.

52
(e) The disqualification criteria would come into effect immediately and would apply to
all bidders for various disinvestment transactions, which have not been completed as
yet.

(f) Before disqualifying a concern, a Show Cause Notice why it should not be disqualified
would be issued to it and it would be given an opportunity to explain its position.

(g) Henceforth, these criteria will be prescribed in the advertisements seeking Expression
of Interest (EOI) from the interested parties. The interested parties would be required
to provide the information on the above criteria, along with their Expressions of
Interest (EOI). The bidders shall be required to provide with their EOI an undertaking
to the effect that no investigation by a regulatory authority is pending against them. In
case any investigation is pending against the concern or its sister concern or against its
CEO or any of its Directors/ Managers/ employees, full details of such investigation
including the name of the investigating agency, the charge/ offence for which the
investigation has been launched, name and designation of persons against whom the
investigation has been launched and other relevant information should be disclosed, to
the satisfaction of the Government. For other criteria also, a similar undertaking shall
be obtained along with EOI.

sd/-
(A.K. Tewari)
Under Secretary to the Government of India

53
 APPENDIX – II
Appendix-II

Bank Guarantee for BID Security

(Refer Clauses 2.1.6 and 2.20.1)

B.G. No. Dated:

1. In consideration of you, Chief Engineer, National Highways, Hr. PWD B&R on

behalf of Ministry of Road Transport and Highways, Govt. of India, New Delhi,
having its office at Plot. No.1, Nirman Sadan, Sector-33A, Chandigarh, (hereinafter
referred to as the “Authority”, which expression shall unless it be repugnant to the
subject or context thereof include its, successors and assigns) having agreed to receive
the BID of ……………… and having its registered office at …………… (and acting
on behalf of its JV) (hereinafter referred to as the “Bidder” which expression shall
unless it be repugnant to the subject or context thereof include its/their executors,
administrators, successors and assigns), for the *** ** Project on [EPC] basis
(hereinafter referred to as “the Project”) pursuant to the RFP Document dated
…………… issued in respect of the Project and other related documents including
without limitation the draft contract Agreement (hereinafter collectively referred to as
“Bidding Documents”), we (Name of the Bank) having our registered office at
………………… and one of its branches at…………………….. (hereinafter referred
to as the “Bank”), at the request of the the Bidder, do hereby in terms of Clause
2.1.6 read with Clause 2.1.7 of the RFP Document, irrevocably, unconditionally
and without reservation guarantee the due and faithful fulfilment and
compliance of the terms and conditions of the Bidding Bidder and unconditionally
and irrevocably undertake to pay forthwith to the Authority an amount of Rs. *** **
(Rupees *** ** only) (hereinafter referred to as the “Guarantee”) as our primary
obligation without any demur, reservation, recourse, contest or protest and without
reference to the Bidder if the Bidder shall fail to fulfil or comply with all or any of the
terms and conditions contained in the said Bidding Documents.

2. Any such written demand made by the Authority stating that the Bidder is in default of
the due and faithful fulfilment and compliance with the terms and conditions contained
in the Bidding Documents shall be final, conclusive and binding on the Bank.

3. We, the Bank, do hereby unconditionally undertake to pay the amounts due and
payable under this Guarantee without any demur, reservation, recourse, contest or
protest and
without any reference to the Bidder or any other person and irrespective of whether the
claim of the Authority is disputed by the Bidder or not, merely on the first demand
from the Authority stating that the amount claimed is due to the Authority by reason of
failure of the Bidder to fulfil and comply with the terms and conditions contained in
the Bidding Documents including failure of the said Bidder to keep its BID open
during the BID validity period as set forth in the said Bidding Documents for any
reason whatsoever. Any such demand made on the Bank shall be conclusive as regards
amount due and payable by the Bank under this Guarantee. However, our liability
under this Guarantee shall be restricted to an amount not exceeding Rs. ***** (Rupees
*** ** only).

54
4. This Guarantee shall be irrevocable and remain in full force for a period of 180
(one hundred and eighty) days from the BID Due Date inclusive of a claim
period of 60 (sixty) days or for such extended period as may be mutually agreed
between the Authority and the Bidder, and agreed to by the Bank, and shall continue
to be enforceable till all amounts under this Guarantee have been paid.

5. We, the Bank, further agree that the Authority shall be the sole judge to decide as to
whether the Bidder is in default of due and faithful fulfilment and compliance with the
terms and conditions contained in the Bidding Documents including, inter alia, the
failure of the Bidder to keep its BID open during the BID validity period set forth in the
said Bidding Documents, and the decision of the Authority that the Bidder is in default
as aforesaid shall be final and binding on us, notwithstanding any differences between
the Authority and the Bidder or any dispute pending before any Court, Tribunal,
Arbitrator or any other Authority.

6. The Guarantee shall not be affected by any change in the constitution or winding up of
the Bidder or the Bank or any absorption, merger or amalgamation of the Bidder or the
Bank with any other person.

7. In order to give full effect to this Guarantee, the Authority shall be entitled to treat the
Bank as the principal debtor. The Authority shall have the fullest liberty without
affecting in any way the liability of the Bank under this Guarantee from time to time to
vary any of the terms and conditions contained in the said Bidding Documents or to
extend time for submission of the BIDs or the BID validity period or the period for
conveying acceptance of Letter of Award by the Bidder or the period for fulfilment and
compliance with all or any of the terms and conditions contained in the said Bidding
Documents by the said Bidder or to postpone for any time and from time to time any of
the powers exercisable by it against the said Bidder and either to enforce or forbear
from enforcing any of the terms and conditions contained in the said Bidding
Documents or the securities available to the Authority, and the Bank shall not be
released from its liability under these presents by any exercise by the Authority of the
liberty with reference to the matters aforesaid or by reason of time being given to the
said Bidder or any other forbearance, act or omission on the part of the Authority or
any indulgence by the Authority to the said Bidder or by any change in the constitution
of the Authority or its absorption, merger or amalgamation with any other person or
any other matter or thing whatsoever which under the law relating to sureties would but
for this provision have the effect of releasing the Bank from its such liability.

8. Any notice by way of request, demand or otherwise hereunder shall be sufficiently

given or made if addressed to the Bank and sent by courier or by registered mail to the
Bank at the address set forth herein.

9. We undertake to make the payment on receipt of your notice of claim on us addressed

to [name of Bank along with branch address] and delivered at our above branch which
shall be deemed to have been duly authorised to receive the said notice of claim.

10. It shall not be necessary for the Authority to proceed against the said Bidder before
proceeding against the Bank and the guarantee herein contained shall be enforceable
against the Bank, notwithstanding any other security which the Authority may have
obtained from the said Bidder or any other person and which shall, at the time when
55
 proceedings are taken against the Bank hereunder, be outstanding or unrealised.

11. We, the Bank, further undertake not to revoke this Guarantee during its currency except
with the previous express consent of the Authority in writing.

12. The Bank declares that it has power to issue this Guarantee and discharge the
obligations contemplated herein, the undersigned is duly authorised and has full power
to execute this Guarantee for and on behalf of the Bank.

13. For the avoidance of doubt, the Bank’s liability under this Guarantee shall be restricted
to Rs. *** crore (Rupees *** ** crore only). The Bank shall be liable to pay the said
amount or any part thereof only if the Authority serves a written claim on the Bank in
accordance with paragraph 9 hereof, on or before [*** (indicate date falling 180 days
after the BID Due Date)].

Signed and Delivered by ………………………. Bank

By the hand of Mr./Ms …………………….., its ………………….. and authorised official.

(Signature of the Authorised

Signatory)
(Official-Seal)

56
 APPENDIX-III
Format for Power of Attorney for signing of BID
(Refer Clause 2.1.8)

Know all men by these presents, We…………………………………………….. (name of the

firm and address of the registered office) do hereby irrevocably constitute, nominate, appoint
and authorise Mr/ Ms (name), …………………… son/daughter/wife of
……………………………… and presently residing at …………………., who is presently
employed with us/ the Lead Member of our Joint Venture and holding the position of
……………………………. , as our true and lawful attorney (hereinafter referred to as the
“Attorney”) to do in our name and on our behalf, all such acts, deeds and things as are
necessary or required in connection with or incidental to submission of our BID for the
***** Project proposed or being developed by the ***** (the “Authority”) including but not
limited to signing and submission of all applications, BIDs and other documents and
writings, participate in Pre-BID and other conferences and providing information/ responses
to the Authority, representing us in all matters before the Authority, signing and execution of
all contracts including the agreement and undertakings consequent to acceptance of our BID,
and generally dealing with the Authority in all matters in connection with or relating to or
arising out of our BID for the said Project and/ or upon award thereof to us and/or untill the
entering into of the EPC Contract with the Authority.

AND we hereby agree to ratify and confirm and do hereby ratify and confirm all acts, deeds
and things done or caused to be done by our said Attorney pursuant to and in exercise of the
powers conferred by this Power of Attorney and that all acts, deeds and things done by our
said Attorney in exercise of the powers hereby conferred shall and shall always be deemed to
have been done by us.

IN WITNESS WHEREOF WE, ………………., THE ABOVE NAMED PRINCIPAL

HAVE EXECUTED THIS POWER OF ATTORNEY ON THIS …… DAY OF…. 2…..
For …………………………..
(Signature, name, designation and address)
of person authorized by Board Resolution
(in case of Firm/ Company)/ partner in case of
Witnesses: Partnership firm
1.
2.
Accepted
……………………………
(Signature)
(Name, Title and Address of the Attorney) (Notarised)
Person identified by me/ personally appeared before me/
Attested/ Authenticated*
(*Notary to specify as applicable)
(Signature Name and Address of the Notary)

Seal of the Notary

Registration No. of the Notary
Date:………………

57
 Notes:


The mode of execution of the Power of Attorney should be in accordance with the procedure, if
any, laid down by the applicable law and the charter documents of the executant(s) and when it
is so required, the same should be under common seal affixed in accordance with the required
procedure.

Wherever required, the Bidder should submit for verification the extract of the charter
documents and documents such as a board or shareholders’ resolution/ power of attorney in
favour of the person executing this Power of Attorney for the delegation of power hereunder on
behalf of the Bidder.

For a Power of Attorney executed and issued overseas, the document will also have to be
legalised by the Indian Embassy and notarised in the jurisdiction where the Power of Attorney
is being issued. However, the Power of Attorney provided by Bidders from countries that have
signed the Hague Legislation Convention 1961 are not required to be legalised by the Indian
Embassy if it carries a conforming Appostille certificate.

67
 APPENDIX-IV
Format for Power of Attorney for Lead Member of Joint Venture
(Refer Clause 2.1.9)

Whereas the ***** (“the Authority”) has invited BIDs from prequalified applicants for the *****
Project (the “Project”).

Whereas, …………………….., …………………….., and …………………….. (collectively the

“Joint Venture”) being Members of the Joint Venture are interested in bidding for the Project in
accordance with the terms and conditions of the Request for Proposal (RFP) and other BID
documents including agreement in respect of the Project, and

Whereas, it is necessary for the Members of the Joint Venture to designate one of them as the Lead
Member with all necessary power and authority to do for and on behalf of the Joint Venture, all
acts, deeds and things as may be necessary in connection with the Joint Venture’s BID for the
Project and its execution.

NOW THEREFORE KNOW ALL MEN BY THESE PRESENTS

We, ……........................... having our registered office at .............................……., M/s.

.......…............................. having our registered office at ...........................................…, M/s.
…................................. having our registered office at …............................................., and
…............................ having our registered office at ….................……, (hereinafter collectively
referred to as the “Principals”) do hereby irrevocably designate, nominate, constitute, appoint and
authorize M/S ……........................................................ having its registered office at
……......................................................................…., being one of the Members of the Joint
Venture, as the Lead Member and true and lawful attorney of the Joint Venture (hereinafter referred
to as the “Attorney”). We hereby irrevocably authorize the Attorney (with power to sub-delegate) to
conduct all business for and on behalf of the Joint Venture and any one of us during the bidding
process and, in the event the Joint Venture is awarded the contract, during the execution of the
Project and in this regard, to do on our behalf and on behalf of the Joint Venture, all or any of such
acts, deeds or things as are necessary or required or incidental to the pre-qualification of the Joint
Venture and submission of its BID for the Project, including but not limited to signing and
submission of all applications, BIDs and other documents and writings, participate in pre BID and
other conferences, respond to queries, submit information/ documents, sign and execute contracts
and undertakings consequent to acceptance of the BID of the Joint Venture and generally to
represent the Joint Venture in all its dealings with the Authority, and/ or any other Government
Agency or any person, in all matters in connection with or relating to or arising out of the Joint
Venture’s BID for the in all respect Project and/ or upon award thereof till the EPC Contract is
entered into with the Authority & Compelled.

AND hereby agree to ratify and confirm and do hereby ratify and confirm all acts, deeds and things
done or caused to be done by our said Attorney pursuant to and in exercise of the powers conferred
by this Power of Attorney and that all acts, deeds and things done by our said Attorney in exercise
68
of the powers hereby conferred shall and shall always be deemed to have been done by us/ Joint
Venture.

IN WITNESS WHEREOF WE THE PRINCIPALS ABOVE NAMED HAVE EXECUTED

THIS POWER OF ATTORNEY ON THIS …………………. DAY OF ………. 2..…

For ……………………..
(Signature)
……………………..
(Name & Title)

For ……………………..
(Signature)

……………………..
(Name & Title)

For ……………………..
(Signature)

……………………..
(Name & Title)

(Executants)
(To be executed by all the Members of the Joint Venture)

Witnesses:
1.
2.

Notes:


The mode of execution of the Power of Attorney should be in accordance with the procedure, if
any, laid down by the applicable law and the charter documents of the executant(s) and when it
is so required, the same should be under common seal affixed in accordance with the required
procedure.

Also, wherever required, the Bidder should submit for verification the extract of the charter
documents and documents such as a board or shareholders’ resolution/ power of attorney in
favour of the person executing this Power of Attorney for the delegation of power hereunder on
behalf of the Bidder.

For a Power of Attorney executed and issued overseas, the document will also have to be
legalised by the Indian Embassy and notarised in the jurisdiction where the Power of Attorney
is being issued. However, the Power of Attorney provided by Bidders from countries that have
signed the Hague Legislation Convention 1961 are not required to be legalised by the Indian
Embassy if it carries a conforming Appostille certificate.

69
 APPENDIX V

Format for Joint Bidding Agreement for Joint Venture

(Refer Clause 2.1.9 & 2.1.15(g))

(To be executed on Stamp paper of appropriate value)

THIS JOINT BIDDING AGREEMENT is entered into on this the ………… day of ………… 20…

AMONGST

1. {………… Limited, and having its registered office at ………… } (hereinafter referred to as the
“First Part” which expression shall, unless repugnant to the context include its successors and
permitted assigns)

AND

2. {………… Limited, having its registered office at ………… } and (hereinafter referred to as the
“Second Part” which expression shall, unless repugnant to the context include its successors and
permitted assigns)

AND

3. {………… Limited, and having its registered office at …………} (hereinafter referred to as the
“Third Part” which expression shall, unless repugnant to the context include its successors and
permitted assigns)

The above mentioned parties of the FIRST, {SECOND and THIRD} PART are collectively
referred to as the “Parties” and each is individually referred to as a “Party”

WHEREAS,

(A) [Public Works Department under the Government of Haryana] (hereinafter referred to as
the “Authority” which expression shall, unless repugnant to the context or meaning thereof,
include its administrators, successors and assigns) has invited bids (the Bids”) by its Request
for Proposal No. ………… dated …………(the “RFP”) for award of contract for rehabilitation
and augmentation of ***** Project (the “Project”) through an EPC Contract.

(B) The Parties are interested in jointly bidding for the Project as members of a Joint Venture and
in accordance with the terms and conditions of the RFP document and other bid documents in
respect of the Project, and

(C) It is a necessary condition under the RFP document that the members of the Joint Venture shall
enter into a Joint Bidding Agreement and furnish a copy thereof with the Application.

NOW IT IS HEREBY AGREED as follows:

1. Definitions and Interpretations

70
 In this Agreement, the capitalised terms shall, unless the context otherwise requires, have the
meaning ascribed thereto under the RFP.

2. Joint Venture

2.1 The Parties do hereby irrevocably constitute a Joint Venture (the “Joint Venture”) for the
purposes of jointly participating in the Bidding Process for the Project.

2.2 The Parties hereby undertake to participate in the Bidding Process only through this Joint
Venture and not individually and/ or through any other Joint Venture constituted for this
Project, either directly or indirectly.

3. Covenants

The Parties hereby undertake that in the event the Joint Venture is declared the selected Bidder
and awarded the Project, it shall enter into an EPC Contract with the Authority for performing
all its obligations as the Contractor in terms of the EPC Contract for the Project.

4. Role of the Parties

The Parties hereby undertake to perform the roles and responsibilities as described below:

(a) Party of the First Part shall be the Lead member of the Joint Venture and shall have the
power of attorney from all Parties for conducting all business for and on behalf of the Joint
Venture during the Bidding Process and until the Appointed Date under the EPC Contract;

(b) Party of the Second Part shall be {the Member of the Joint Venture; and}

(c) Party of the Third Part shall be {the Member of the Joint Venture.}

5. Joint and Several Liability

The Parties do hereby undertake to be jointly and severally responsible for all obligations and
liabilities relating to the Project and in accordance with the terms of the RFP and the EPC
Contract, till such time as the completion of the Project is achieved under and in accordance
with the EPC Contract.

6. Share of work in the Project

The Parties agree that the proportion of construction in the EPC Contract to be allocated among
the members shall be as follows:

First Party:
Second Party:
{Third Party:}

Further, the Lead Member shall itself undertake and perform at least 30 (thirty) per cent of the
total length of the project highway if the Contract is allocated to the Joint Venture.
71
7. Representation of the Parties

Each Party represents to the other Parties as of the date of this Agreement that:

(a) Such Party is duly organised, validly existing and in good standing under the laws of its
incorporation and has all requisite power and authority to enter into this Agreement;

(b) The execution, delivery and performance by such Party of this Agreement has been
authorised by all necessary and appropriate corporate or governmental action and a copy of
the extract of the charter documents and board resolution/ power of attorney in favour of the
person executing this Agreement for the delegation of power and authority to execute this
Agreement on behalf of the Joint Venture Member is annexed to this Agreement, and will
not, to the best of its knowledge:

(i) require any consent or approval not already obtained;

(ii) violate any Applicable Law presently in effect and having applicability to it;

(iii) violate the memorandum and articles of association, by-laws or other applicable
organisational documents thereof;

(iv) violate any clearance, permit, concession, grant, license or other

governmental authorisation, approval, judgement, order or decree or
any mortgage agreement, indenture or any other instrument to which
such Party is a party or by which such Party or any of its properties
or assets are bound or that is otherwise applicable to such Party; or
(v) create or impose any liens, mortgages, pledges, claims, security
interests, charges or Encumbrances or obligations to create a lien,
charge, pledge, security interest, encumbrances or mortgage in or on
the property of such Party, except for encumbrances that would not,
individually or in the aggregate, have a material adverse effect on
the financial condition or prospects or business of such Party so as
to prevent such Party from fulfilling its obligations under this
Agreement;
(c) this Agreement is the legal and binding obligation of such Party,
enforceable in accordance with its terms against it; and
(d) there is no litigation pending or, to the best of such Party's knowledge,
threatened to which it or any of its Affiliates is a party that presently affects
or which would have a material adverse effect on the financial condition or
prospects or business of such Party in the fulfilment of its obligations under
this Agreement.
8. Termination
This Agreement shall be effective from the date hereof and shall continue in
full force and effect until Project completion (the “Defects Liability
Period”) is achieved under and in accordance with the EPC Contract, in
case the Project is awarded to the Joint Venture. However, in case the Joint
72
 Venture is either not pre-qualified for the Project or does not get selected
for award of the Project, the Agreement will stand terminated in case the
Applicant is not pre-qualified or upon return of the Bid Security by the
Authority to the Bidder, as the case may be.
9. Miscellaneous
9.1 This Joint Bidding Agreement shall be governed by laws of {India}.
9.2 The Parties acknowledge and accept that this Agreement shall not be
amended by the Parties without the prior written consent of the Authority.
IN WITNESS WHEREOF THE PARTIES ABOVE NAMED HAVE EXECUTED
AND DELIVERED THIS AGREEMENT AS OF THE DATE FIRST ABOVE
WRITTEN.
SIGNED, SEALED AND
DELIVERED
For and on behalf of
THIRD
LEAD MEMBER by: SECOND PART PART
(Signature) (Signature) (Signature)
(Name) (Name) (Name)
(Designation
) (Designation) (Designation)
(Address) (Address) (Address)
In the presence of:

1………………. 2.............................

Notes:

1. The mode of the execution of the Joint Bidding Agreement should be in accordance
with the procedure, if any, laid down by the Applicable Law and the charter documents
of the executant(s) and when it is so required, the same should be under common seal
affixed in accordance with the required procedure.

2. Each Joint Bidding Agreement should attach a copy of the extract of the charter
documents and documents such as resolution / power of attorney in favour of the
person executing this Agreement for the delegation of power and authority to execute
this Agreement on behalf of the Joint Venture Member.

3. For a Joint Bidding Agreement executed and issued overseas, the document shall be
legalised by the Indian Embassy and notarized in the jurisdiction where the Power of
Attorney has been executed.

73
 CONTRACT AGREEMENT
Contents Page No.

PART I
Preliminary

Recitals

1 Definitions and Interpretation

1.1 Definitions
1.2 Interpretation
1.3 Measurements and arithmetic conventions
1.4 Priority of agreements and errors/discrepancies
1.5 Joint and several liability

PART II
Scope of the Project

2 Scope of the Project

2.1 Scope of the Project

3 Obligations of the Contractor

3.1 Obligations of the Contractor
3.2 Obligations relating to sub-contracts and any other agreements
3.3 Employment of foreign nationals
3.4 Contractor’s personnel
3.5 Advertisement on Project
3.6 Contractor's care of the Works
3.7 Electricity, water and other services
3.8 Unforeseeable difficulties

4 Obligations of the Authority

4.1 Obligations of the Authority
4.2 Maintenance obligations prior to the Appointed Date
4.3 Environmental Clearances

5 Representations and Warranties

5.1 Representations and warranties of the Contractor
5.2 Representations and warranties of the Authority
5.3 Disclosure

6 Disclaimer
6.1 Disclaimer

PART III
Construction and Maintenance

7 Performance Security
7.1 Performance Security
7.2 Extension of Performance Security
7.3 Appropriation of Performance Security
7.4 Release of Performance Security
7.5 Retention Money

74
8 Right of Way
8.1 The Site
8.2 Procurement of the Site
8.3 Damages for delay in handing over the Site
8.4 Site to be free from Encumbrances
8.5 Protection of Site from encroachments
8.6 Special/temporary Right of Way
8.7 Access to the Authority and the Authority’s Engineer
8.8 Geological and archaeological finds

9 Utilities and Trees

9.1 Existing utilities and roads
9.2 Shifting of obstructing utilities
9.3 New utilities
9.4 Felling of trees

10 Design and Construction of the Project

10.1 Obligations prior to commencement of Works
10.2 Design and Drawings
10.3 Construction of the Project
10.4 Maintenance during Construction Period
10.5 Extension of time for completion
10.6 Incomplete Works
10.7 Maintenance Manual

11 Quality Assurance, Monitoring and Supervision

11.1 Quality of Materials and workmanship
11.2 Quality control system
11.3 Methodology
11.4 Inspection and technical audit by the Authority
11.5 External technical audit
11.6 Inspection of construction records
11.7 Monthly progress reports
11.8 Inspection
11.9 Samples
11.10 Tests
11.11 Examination of work before covering up
11.12 Rejection
11.13 Remedial work
11.14 Delays during construction
11.15 Quality control records and Documents
11.16 Video recording
11.17 Suspension of unsafe Construction Works

12 Completion Certificate
12.1 Tests on completion
12.2 Provisional Certificate
12.3 Completion of remaining Works
12.4 Completion Certificate
12.5 Rescheduling of Tests

13 Change of Scope
13.1 Change of Scope
75
13.2 Procedure for Change of Scope
13.3 Payment for Change of Scope
13.4 Restrictions on Change of Scope
13.5 Power of the Authority to undertake works
Maintenance
14.1 Maintenance obligations of the Contractor
14.2 Maintenance Requirements
14.3 Maintenance Programme
14.4 Safety, vehicle breakdowns and accidents
14.5 Lane closure
Reduction of payment for non-performance of
14.6 Maintenance obligations
14.7 Authority’s right to take remedial measures
14.8 Restoration of loss or damage to Project
14.9 Overriding powers of the Authority

15 Supervision and Monitoring during Maintenance

15.1 Inspection by the Contractor
15.2 Inspection and payments
15.3 Tests
15.4 Reports of unusual occurrence

16 Traffic Regulation
16.1 Traffic regulation by the Contractor

17 Defects Liability
17.1 Defects Liability Period
17.2 Remedying Defects
17.3 Cost of remedying Defects
17.4 Contractor’s failure to rectify Defects
17.5 Contractor to search cause
17.6 Extension of Defects Liability Period

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

PART IV
Financial Covenants

19 Payments
19.1 Contract Price
19.2 Advance Payment
19.3 Procedure for estimating the payment for the Works
19.4 Stage Payment Statement for Works
19.5 Stage Payment for Works
19.6 Monthly Maintenance Statement of the Project Highway
19.7 Payment for Maintenance of the Project Highway
19.8 Payment of Damages

76
19.9 Time of payment and interest
19.10. Price adjustment for the Works
19.11 Restrictions on price adjustment
19.12. Price adjustment for Maintenance of Project Highway
19.13 Final Payment Statement
19.14 Discharge
19.15 Final Payment Certificate
19.16 Final payment statement for Maintenance
19.17 Change in law
19.18 Correction of Interim Payment Certificates
19.19 Authority’s claims
19.20 Bonus for early completion

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

Part V
Force Majeure and Termination

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

22 Suspension of Contractor’s Rights

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

23 Termination
23.1 Termination for Contractor Default
23.2 Termination for Authority Default
23.3 Termination for Authority’s convenience
23.4 Requirements after Termination
23.5 Valuation of Unpaid Works
23.6 Termination Payment

77
23.7 Other rights and obligations of the Parties
23.8 Survival of rights

PART VI
Other Provisions

24 Assignment and Charges

24.1 Restrictions on assignment and charges
24.2 Hypothecation of Materials or Plant
25 Liability and Indemnity
25.1 General indemnity
25.2 Indemnity by the Contractor
25.3 Notice and contest of claims
25.4 Defence of claims
25.5 No consequential claims
25.6 Survival on Termination

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

27 Miscellaneous
27.1 Governing law and jurisdiction
27.2 Waiver of immunity
27.3 Delayed payments
27.4 Waiver
27.5 Liability for review of Documents and Drawings
27.6 Exclusion of implied warranties etc.
27.7 Survival
27.8 Entire Agreement
27.9 Severability
27.10 No partnership
27.11 Third Parties
27.12 Successors and assigns
27.13 Notices
27.14 Language
27.15 Counterparts
27.16 Confidentiality
27.17 Copyright and Intellectual Property rights
27.18 Limitation of Liability

28 Definitions
28.1 Definitions

Schedules

A Site of the Project

1. The Site
2. Annex-I:Site
3. Annex-II: Dates for providing Right of Way
4. .Annex-III: Alignment Plans

78
 5. Annex-IV : Environmental Clearances

B Development of the Project Highway

1. Development of the Project Highway
2. [Rehabilitation and augmentation]
3. Specifications and Standards
Annex-I: Description of [Two-Laning and
strengthening]

C Project Facilities
1. Project Facilities
2. Description of Project Facilities

D Specifications and Standards

Construction

Design Standards
Annex-I: Specifications and Standards for Construction

Specification and Standard

Deviations from the Specifications and Standard

E Maintenance Requirements

Maintenance Requirements

Repair/rectification of Defects and deficiencies

Other Defects and deficiencies

Extension of time limit

Emergency repairs/restoration

Daily inspection by the Contractor

Pre-monsoon Inspection/Post-monsoon Inspection

Repairs on account of natural calamities

Annex-I: Repair/rectification of Defects and
deficiencies

F Applicable Permits
1. Applicable Permits

G Annex-I: Form of Guarantee for Performance Security

Annex-II: Form of Guarantee for Withdrawal of
Retention Money
Annex-III: Form of Guarantee for Advance payment

H Contract Price Weightages

I Drawings
79
 Drawings

Additional drawings
Annex-I: List of Drawings

J Project Completion Schedule

Project Completion Schedule

Project Milestone-I

Project Milestone-II

Project Milestone-III

Scheduled Completion Date

Extension of time

K Tests on Completion

Schedule for Tests

Tests

Agency for conducting Tests

Completion Certificate

L Provisional/ Completion Certificate

M Payment reduction for non-compliance

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

Percentage reductions in lump sum payments

N Selection of Authority’s Engineer

Selection of Authority’s Engineer

Terms of Reference
3. Appointment of Government entity as Authority’s
Engineer
Annex-I: Terms of Reference for Authority’s Engineer

O Forms of Payment Statements

1. Stage Payment Statement for Works
2. Monthly Maintenance Payment Statement
3. Contractor’s Claim for Damages

80
P Insurance
1. Insurance during Construction Period
2. Insurance for Contractor's Defects Liability
3. Insurance against injury to persons and damage to property
4. Insurance to be in joint names

81
 Part I

Preliminary

82
 ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

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

BETWEEN

Chief Engineer, National Highways, Hr. PWD B&R having its office at Plot No.1, Nirman Sadan,
Sector-33A, Chandigarh on behalf of Ministry Of Road Transport & Highways (hereinafter
referred to as the “Authority ” which expression shall, unless repugnant to the context or meaning
thereof, include its administrators, successors and assigns) of One Part;
AND

{------------,} means the selected bidder having its registered office at ………, (hereinafter
referred to as the “Contractor” which expression shall, unless repugnant to the context or meaning
thereof, include its successors and permitted assigns) of the Other Part.
WHEREAS:
(A) The Government of India had entrusted to the Authority the Planning, Design, Construction, Defect
Liability and Maintenance & all other works contingent thereto for the work of widening
to Two lanes with paved shoulders of existing NH 709 (Extn.) from km 123.520 to km 146.500 in
the state of Haryana on EPC basis.
(B) The Authority had resolved to for the Planning, Design, Construction, Defect Liability and
Maintenance & all other works contingent thereto for the work of widening to Two
lanes with paved shoulders of existing NH 709 (Extn.) from km 123.520 to km 146.500 in the
state of Haryana on EPC basis (hereinafter referred to as the “Project”) on Engineering,
Procurement, Construction (“EPC”) basis in accordance with the terms and conditions to be set
forth in an agreement to be entered into.
(C) Deleted.
(D) The Authority had prescribed the technical and commercial terms and conditions, and invited bids
(the “Request for Proposals” or “RFP”) from the eligible bidders for undertaking the Project.
(E) After evaluation of the bids received, the Authority had accepted the bid of the selected bidder and
issued its Letter of Acceptance No. …….. dated………….. (hereinafter called the “LOA”) to the
selected bidder for the “Project” at the contract price specified hereinafter, requiring the selected
bidder to inter alia:
(i) deliver to the Authority a legal opinion from the legal counsel of the selected bidder with
respect to the authority of the selected bidder to enter into this Agreement and the
enforceability of the provisions thereof, within 10 (ten) days of the date of issue of LOA;
and
(ii) execute this Agreement within 15 (fifteen) days of the date of issue of LOA.

(F) The Contractor has fulfilled the requirements specified in Recital (E) above;

NOW THEREFORE in consideration of the foregoing and the respective covenants and agreements set
forth in this Agreement, the sufficiency and adequacy of which is hereby acknowledged, the Authority
hereby covenants to pay the Contractor, in consideration of the obligations specified herein, the Contract
Price or such other sum as may become payable under the provisions of the Agreement at the times and in
the manner specified by the Agreement and intending to be legally bound hereby, the Parties agree as
follows:

83
 ARTICLE 1

DEFINITIONS AND INTERPRETATION

1.1 Definitions

The words and expressions beginning with capital letters and defined in this Agreement (including
those in Article 28) shall, unless the context otherwise requires, have the meaning ascribed thereto
herein, and the words and expressions defined in the Schedules and used therein shall have the
meaning ascribed thereto in the Schedules.

1.2 Interpretation

1.2.1 In this Agreement, unless the context otherwise requires,

(a) references to any legislation or any provision thereof shall include amendment or re-
enactment or consolidation of such legislation or any provision thereof so far as such
amendment or re-enactment or consolidation applies or is capable of applying to any
transaction entered into hereunder;

(b) references to laws of India or Indian law or regulation having the force of law shall include
the laws, acts, ordinances, rules, regulations, bye laws or notifications which have the force
of law in the territory of India and as from time to time may be amended, modified,
supplemented, extended or re-enacted;

(c) references to a “person” and words denoting a natural person shall be construed as a
reference to any individual, firm, company, corporation, society, trust, government, state or
agency of a state or any association or partnership (whether or not having separate legal
personality) of two or more of the above and shall include successors and assigns;

(d) the table of contents, headings or sub-headings in this Agreement are for convenience of
reference only and shall not be used in, and shall not affect, the construction or
interpretation of this Agreement;

(e) the words “include” and “including” are to be construed without limitation and shall be
deemed to be followed by “without limitation” or “but not limited to” whether or not they
are followed by such phrases;

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

(g) references to “development” include, unless the context otherwise requires, construction,
renovation, refurbishing, augmentation, up-gradation and other activities incidental thereto
during the Construction Period, and “develop” shall be construed accordingly;

(h) any reference to any period of time shall mean a reference to that according to Indian
standard time;

(i) any reference to day shall mean a reference to a calendar day;

84
(j) references to a “business day” shall be construed as a reference to a day (other than a
Sunday) on which banks in [Chandigarh] 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;

(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;
85
 (w) the damages payable by either Party to the other of them, as set forth in this Agreement,
whether on per diem basis or otherwise, are mutually agreed genuine pre-estimated loss
and damage likely to be suffered and incurred by the Party entitled to receive the same and
are not by way of penalty (the “Damages”); and

(x) time shall be of the essence in the performance of the Parties’ respective obligations. If any
time period specified herein is extended for the reasons specified in the Agreement, such
extended time shall also be of the essence.

1.2.2 Unless expressly provided otherwise in this Agreement, any Documentation required to be
provided or furnished by the Contractor to the Authority shall be provided free of cost and in three
copies, and if the Authority is required to return any such Documentation with its comments and/or
approval, it shall be entitled to retain two copies thereof.

1.2.3 The rule of construction, if any, that a contract should be interpreted against the parties responsible
for the drafting and preparation thereof, shall not apply.

1.2.4 Any word or expression used in this Agreement shall, unless otherwise defined or construed in this
Agreement, bear its ordinary English meaning and, for these purposes, the General Clauses Act,
1897 shall not apply.

1.3 Measurements and arithmetic conventions

All measurements and calculations shall be in the metric system and calculations done to 2 (two)
decimal places, with the third digit of 5 (five) or above being rounded up and below 5 (five) being
rounded down.

1.4 Priority of agreements and errors/discrepancies

1.4.1 This Agreement, and all other agreements and documents forming part of or referred to in this
Agreement are to be taken as mutually explanatory and, unless otherwise expressly provided
elsewhere in this Agreement, the priority of this Agreement and other documents and agreements
forming part hereof or referred to herein shall, in the event of any conflict between them, be in the
following order:

(a) this Agreement; and

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

1.4.2 Subject to the provisions of Clause 1.4.1, in case of ambiguities or discrepancies within this
Agreement, the following shall apply:

(a) between two or more Clauses of this Agreement, the provisions of a specific Clause
relevant to the issue under consideration shall prevail over those in other Clauses;

(b) between the Clauses of this Agreement and the Schedules, the Clauses shall prevail and
between Schedules and Annexes, the Schedules shall prevail;

(c) between any two Schedules, the Schedule relevant to the issue shall prevail;

(d) between the written description on the Drawings and the Specifications and Standards, the
latter shall prevail;

86
 (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

1.5.1 If the Contractor has formed a Consortium of two or more persons for implementing the Project:

(a) these persons shall, without prejudice to the provisions of this 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 Consortium is effected
without the prior consent of the Authority.

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

$
This Clause 1.5 may be omitted if the Contractor is not a Consortium. Even if the Contractor is a
onsortium, the Authority may, at its discretion, delete this provision.

87
 Part II

Scope of Project

88
 ARTICLE 2

SCOPE OF THE PROJECT

2.1 Scope of the Project

Under this Agreement, the scope of the Project (the “Scope of the Project”) shall mean and
include:

(a) construction of the Project Highway on the Site set forth in Schedule-A and as specified in
Schedule-B together with provision of Project Facilities as specified in Schedule-C, and in
conformity with the Specifications and Standards set forth in Schedule-D;

(b) maintenance of the Project Highway in accordance with the provisions of this Agreement
and in conformity with the requirements set forth in Schedule-E; and

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

89
 ARTICLE 3

OBLIGATIONS OF THE CONTRACTOR

3.1 Obligations of the Contractor

3.1.1 Subject to and on the terms and conditions of this Agreement, the Contractor shall undertake the
survey, investigation, design, engineering, procurement, construction, and maintenance of the
Project Highway and observe, fulfil, comply with and perform all its obligations set out in this
Agreement or arising hereunder.

3.1.2 The Contractor shall comply with all Applicable Laws and Applicable Permits (including renewals
as required) in the performance of its obligations under this Agreement.

3.1.3 Subject to the provisions of Clauses 3.1.1 and 3.1.2, the Contractor shall discharge its obligations in
accordance with Good Industry Practice and as a reasonable and prudent person.

3.1.4 The Contractor shall remedy any and all loss or damage to the Project Highway 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 or damage shall have arisen from any default or neglect of the Authority.

3.1.5 The Contractor shall remedy any and all loss or damage to the Project Highway during the Defects
Liability Period at the Contractor’s cost to the extent that such loss or damage shall have arisen out
of the reasons specified in Clause 17.3.

3.1.6 The Contractor shall remedy any and all loss or damage to the Project Highway during the
Maintenance Period at the Contractor’s cost, including those stated in Clause 14.1.2, save and
except to the extent that any such loss or damage shall have arisen on account of any default or
neglect of the Authority or on account of a Force Majeure Event.

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

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

Instrumentalities with such particulars and details as may be required for obtaining
Applicable Permits set forth in Schedule-F and obtain and keep in force and effect such
Applicable Permits in conformity with the Applicable Laws;

(b) procure, as required, the appropriate proprietary rights, licences, agreements and
permissions for Materials, methods, processes and systems used or incorporated into the
Project Highway;
(c) make reasonable efforts to maintain harmony and good industrial relations among the
personnel employed by it or its Sub-contractors in connection with the performance of its
obligations under this Agreement;

(d) ensure and procure that its Sub-contractors comply with all Applicable Permits and
Applicable Laws in the performance by them of any of the Contractor’s obligations under
this Agreement;

(e) not do or omit to do any act, deed or thing which may in any manner be violative of any of
the provisions of this Agreement;

90
 (f) support, cooperate with and facilitate the Authority in the implementation and operation of
the Project in accordance with the provisions of this Agreement;

(g) ensure that the Contractor and its Sub-contractors comply with the safety and welfare
measures for labour in accordance with the Applicable Laws and Good Industry Practice;

(h) keep, on the Site, a copy of this Agreement, publications named in this Agreement, the
Drawings, Documents relating to the Project, and Change of Scope Orders and other
communications given under this Agreement. The Authority’s Engineer and its authorised
personnel shall have the right of access to all these documents at all reasonable times;

(i) cooperate with other contractors employed by the Authority and personnel of any public
authority; and

(j) not interfere unnecessarily or improperly with the convenience of the public, or the access
to and use and occupation of all roads and footpaths, irrespective of whether they are public
or in the possession of the Authority or of others.

3.1.8 The Contractor shall undertake all necessary superintendence to plan, arrange, direct, manage,
inspect and test the Works.

3.2 Obligations relating to sub-contracts and any other agreements

3.2.1 The Contractor shall not sub-contract any Works in more than 70% (seventy per cent) of the total
length of the Project Highway and shall carry out Works directly under its own supervision and
through its own personnel in at least 30% (thirty per cent) of the total length of the Project
Highway. Provided, however, that in respect of the Works carried out directly by the Contractor, it
may enter into contracts for the supply and installation of Materials, Plant, equipment, road
furniture, safety devices and labour, as the case may be, for such Works. For the avoidance of
doubt, the Parties agree that the Contractor may sub-divide the aforesaid length of 30% (thirty per
cent) in no more than 5 (five) sections of the Project Highway. The Parties further agree that all
obligations and liabilities under this Agreement for the entire project Highway shall at all times
remain with the Contractor. {The Parties also agree that obligation of the Contractor to 0carry out
Works directly in at least 30% (thirty per cent) of the total length of the Project Highway shall be
discharged solely by the Lead Member.}$

3.2.2. In the event any sub-contract for Works, or the aggregate of such sub-contracts with any Sub-
contractor, exceeds 5% (five percent) of the Contract Price, the Contractor shall communicate the
name and particulars, including the relevant experience of the sub-contractor, to the Authority prior
to entering into any such sub-contract. The Authority shall examine the particulars of the sub-
contractor from the national security and public interest perspective and may require the
Contractor, no later than 15 (fifteen) business days from the date of receiving the communication
from the Contractor, not to proceed with the sub-contract, and the Contractor shall comply
therewith.

3.2.3 In the event any sub-contract referred to in Clause 3.2.2 relates to a sub-contractor who has, over
the preceding 3 (three) years, not undertaken at least one work of a similar nature with a contract
value exceeding 40% (forty per cent) of the value of the sub-contract to be awarded hereunder and
received payments in respect thereof for an amount equal to at least such 40% (forty per cent), the
Authority may, no later than 15 (fifteen) business days from the date of receiving the
communication from the Contractor, require the Contractor not to proceed with such sub-contract,
and the Contractor shall comply therewith.

3.2.4 It is expressly agreed that the Contractor shall, at all times, be responsible and liable for all its
91
 obligations under this Agreement notwithstanding anything contained in the agreements with its
Sub-contractors or any other agreement that may be entered into by the Contractor, and no default
under any such agreement shall excuse the Contractor from its obligations or liability hereunder.

3.3 Employment of foreign nationals

The Contractor acknowledges, agrees and undertakes that employment of foreign personnel by the
Contractor and/or its Sub-contractors and their sub-contractors shall be subject to grant of requisite
regulatory permits and approvals including employment/residential visas and work permits, if any
required, and the obligation to apply for and obtain the same shall and will always be of the
Contractor. Notwithstanding anything to the contrary contained in this Agreement, refusal of or
inability to obtain any such permits and approvals by the Contractor or any of its Sub-contractors or
their sub-contractors shall not constitute Force Majeure Event, and shall not in any manner excuse
the Contractor from the performance and discharge of its obligations and liabilities under this
Agreement.

3.4 Contractor’s personnel

3.4.1 The Contractor shall ensure that the personnel engaged by it or by its Sub-contractors in the
performance of its obligations under this Agreement are at all times appropriately qualified,
skilled and experienced in their respective functions in conformity with Good Industry Practice.

3.4.2 The Authority’s Engineer may, for reasons to be specified in writing, direct the Contractor to
remove any member of the Contractor’s or Sub-contractor’s personnel. Provided that any such
direction issued by the Authority’s Engineer shall specify the reasons for the removal of such
person.

3.4.3 The Contractor shall on receiving such a direction from the Authority’s Engineer order for the
removal of such person or persons with immediate effect. It shall be the duty of the Contractor to
ensure that such persons are evicted from the Site within 10 (ten) days of any such direction being
issued in pursuance of Clause 3.4.2. The Contractor shall further ensure that such persons have no
further connection with the Works or Maintenance under this Agreement. The Contractor shall
then appoint (or cause to be appointed) a replacement.

3.5 Advertisement on Project Highway

The Project Highway or any part thereof shall not be used in any manner to advertise any
commercial product or services.

3.6 Contractor's care of the Works

The Contractor shall bear full risk in and take full responsibility for the care of the Works, and of
the Materials, goods and equipment for incorporation therein, from the Appointed Date until the
date of Provisional Certificate (with respect to the Works completed prior to the issuance of the
Provisional Certificate) and/or Completion Certificate (with respect to the Works referred to in the
Punch List), save and except to the extent that any such loss or damage shall have arisen from any
default or neglect of the Authority.

$
May be deleted if the Contractor is not a Consortium.

92
3.7 Electricity, water and other services

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

3.8 Unforeseeable difficulties

Except as otherwise stated in the Agreement:

(a) the Contractor accepts complete responsibility for having foreseen all difficulties and costs
of successfully completing the Works;

(b) the Contract Price shall not be adjusted to take account of any unforeseen difficulties or
costs; and

(c) the Scheduled Completion Date shall not be adjusted to take account of any unforeseen
difficulties or costs.

93
 ARTICLE 4

OBLIGATIONS OF THE AUTHORITY

4.1 Obligations of the Authority

4.1.1 The Authority shall, at its own cost and expense, undertake, comply with and perform all its
obligations set out in this Agreement or arising hereunder.

4.1.2 The Authority shall be responsible for the correctness of the Scope of the Project, Project Facilities,
Specifications and Standards and the criteria for testing of the completed Works.

4.1.3 The Authority shall provide to the Contractor:

(a) upon receiving the Performance Security under Clause 7.1.1, the Right of Way in
accordance with the provisions of Clauses 8.2 and 8.3, within a period of 15 (fifteen) days
from the date of this Agreement, on no less than 90% (ninety per cent) of the total length of
the Project Highway;

(b) Deleted

(c) all environmental clearances for the project are not required under Clause 4.3.

4.1.4 Deleted.

4.1.5 Notwithstanding anything to the contrary contained in this Agreement, the Parties expressly agree
that the aggregate Damages payable under Clauses 4.1.4, 8.3 and 9.2 shall not exceed 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 these Damages shall be full and final settlement of all claims
of the Contractor and such compensation shall be the sole remedy against delays of the Authority
and both parties further agree this as final cure against delays of the Authority.

4.1.6 The Authority agrees to provide support to the Contractor and undertakes to observe, comply with
and perform, subject to and in accordance with the provisions of this Agreement and the Applicable
Laws, the following:

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

(b) upon written request from the Contractor, provide reasonable assistance to 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
94
 or placed on or about the Project Highway by any Government Instrumentality or persons
claiming through or under it, except for reasons of Emergency, national security, law and
order or collection of inter-state taxes;

(d) not do or omit to do any act, deed or thing which may in any manner be violative of any of
the provisions of this Agreement;

(e) support, cooperate with and facilitate the Contractor in the implementation of the Project in
accordance with the provisions of this Agreement; and

(f) upon written request from the Contractor and subject to the provisions of Clause 3.3,
provide reasonable assistance to the Contractor and any expatriate personnel of the
Contractor or its Sub-contractors to obtain applicable visas and work permits for the
purposes of discharge by the Contractor or its Sub-contractors of their obligations under
this Agreement and the agreements with the Sub-contractors.

4.2 Maintenance obligations prior to the Appointed Date

The Authority shall, prior to the Appointed Date, maintain the Project Highway, at its own cost and
expense, so that its traffic worthiness and safety are at no time materially inferior as compared to its
condition 10 (ten) days prior to the last date for submission of the Bid, and in the event of any
material deterioration or damage other than normal wear and tear, undertake repair thereof. For the
avoidance of doubt, the Authority shall undertake only routine maintenance prior to the Appointed
Date, and it shall undertake special repairs only in the event of excessive deterioration or damage
caused due to unforeseen events such as floods or earthquake.

4.3 Environmental Clearances

The Authority represents and warrants that the environmental clearances required for construction
of the Project shall be procured by the Authority prior to the date of issue of LOA. For the
avoidance of doubt, the present status of environmental clearances is specified in Schedule-A.8

8
Clause 4.3 may be suitably modified in the event that all the environmental clearances for the Project
Highway have been received or are not required. It should be clearly stated that all the environmental
clearances for the Project Highway have been received; or such environmental clearances for the Project
Highway are not required.

95
 ARTICLE 5

REPRESENTATIONS AND WARRANTIES

5.1 Representations and warranties of the Contractor

The Contractor represents and warrants to the Authority that:

(a) it is duly organised and validly existing under the laws of India, and has full power and
authority to execute and perform its obligations under this Agreement and to carry out the
transactions contemplated hereby;

(b) it has taken all necessary corporate and/or other actions under Applicable Laws to authorise
the execution and delivery of this Agreement and to validly exercise its rights and perform
its obligations under this Agreement;

(c) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in
accordance with the terms hereof, and its obligations under this Agreement will be legally
valid, binding and enforceable obligations against it in accordance with the terms hereof;

(d) it is subject to the laws of India, and hereby expressly and irrevocably waives any
immunity in any jurisdiction in respect of this Agreement or matters arising there under
including any obligation, liability or responsibility hereunder;

(e) the information furnished in the Bid and as updated on or before the date of this Agreement
is true and accurate in all respects as on the date of this Agreement;

(f) the execution, delivery and performance of this Agreement will not conflict with, result in
the breach of, constitute a default under, or accelerate performance required by any of the
terms of its memorandum and articles of association or any Applicable Laws or any
covenant, contract, agreement, arrangement, understanding, decree or order to which it is a
party or by which it or any of its properties or assets is bound or affected;

(g) there are no actions, suits, proceedings, or investigations pending or, to its knowledge,
threatened against it at law or in equity before any court or before any other judicial, quasi-
judicial or other authority, the outcome of which may result in the breach of this
Agreement or which individually or in the aggregate may result in any material impairment
of its ability to perform any of its obligations under this Agreement;

(h) it has no knowledge of any violation or default with respect to any order, writ, injunction or
decree of any court or any legally binding order of any Government Instrumentality which
may result in any material adverse effect on its ability to perform its obligations under this
Agreement and no fact or circumstance exists which may give rise to such proceedings that
would adversely affect the performance of its obligations under this Agreement;

(i) it has complied with Applicable Laws in all material respects and has not been subject to
any fines, penalties, injunctive relief or any other civil or criminal liabilities which in the
aggregate have or may have a material adverse effect on its ability to perform its
obligations under this Agreement;

(j) no representation or warranty by it contained herein or in any other document furnished by

it to the Authority or to any Government Instrumentality in relation to Applicable Permits
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 contains or will contain any untrue or misleading statement of material fact or omits or will
omit to state a material fact necessary to make such representation or warranty not
misleading;

(k) no sums, in cash or kind, have been paid or will be paid, by it or on its behalf, to any
person by way of fees, commission or otherwise for securing the contract or entering into
this Agreement or for influencing or attempting to influence any officer or employee of the
Authority in connection therewith;

(l) all information provided by the {selected bidder/ members of the Consortium} in response
to the Request for Qualification and Request for Proposals or otherwise, is to the best of its
knowledge and belief, true and accurate in all material respects; and

(m) nothing contained in this Agreement shall create any contractual relationship or obligation
between the Authority and any Sub-contractors, designers, consultants or agents of the
Contractor.

5.2 Representations and warranties of the Authority

The Authority represents and warrants to the Contractor that:

(a) it has full power and authority to execute, deliver and perform its obligations under this
Agreement and to carry out the transactions contemplated herein and that it has taken all
actions necessary to execute this Agreement, exercise its rights and perform its obligations,
under this Agreement;

(b) it has taken all necessary actions under the Applicable Laws to authorize the execution,
delivery and performance of this Agreement;

(c) it has the financial standing and capacity to perform its obligations under this Agreement;

(d) this Agreement constitutes a legal, valid and binding obligation enforceable against it in
accordance with the terms hereof;

(e) it has no knowledge of any violation or default with respect to any order, writ, injunction or
any decree of any court or any legally binding order of any Government Instrumentality
which may result in any material adverse effect on the Authority’s ability to perform its
obligations under this Agreement;

(f) it has complied with Applicable Laws in all material respects;

(g) it has good and valid right to the Site and has the power and authority to grant the Right of
Way in respect thereof to the Contractor; and
(h) it has procured Right of Way and environment clearances such that the Contractor can
commence construction forthwith on 90% (ninety per cent) of the total length of the Project
Highway.
5.3 Disclosure
In the event that any occurrence or circumstance comes to the attention of either Party that renders
any of its aforesaid representations or warranties untrue or incorrect, such Party shall immediately
notify the other Party of the same. Such notification shall not have the effect of remedying any
breach of the representation or warranty that has been found to be untrue or incorrect nor shall it
adversely affect or waive any obligation of either Party under this Agreement.
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 ARTICLE 6

DISCLAIMER

6.1 Disclaimer

6.1.1 The Contractor acknowledges that prior to the execution of this Agreement, the Contractor has,
after a complete and careful examination, made an independent evaluation of the Request for
Qualification, 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 4.1.2 and Clause 5.2, the Authority makes no representation
whatsoever, express, implicit or otherwise, regarding the accuracy, adequacy, correctness,
reliability and/or completeness of any assessment, assumptions, statement or information provided
by it and the Contractor confirms that it shall have no claim whatsoever against the Authority in
this regard.

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

6.1.3 The Contractor acknowledges and hereby accepts the risk of inadequacy, mistake or error in or
relating to any of the matters set forth in Clause 6.1.1 above and hereby acknowledges and agrees
that the Authority shall not be liable for the same in any manner whatsoever to the Contractor, or
any person claiming through or under any of them, and shall not lead to any adjustment of Contract
Price or Scheduled Completion Date.

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

6.1.5 In the event that either Party becomes aware of any mistake or error relating to any of the matters
set forth in Clause 6.1.1 above, that Party shall immediately notify the other Party, specifying the
mistake or error.

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

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 Part III

Construction and Maintenance

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 ARTICLE 7

PERFORMANCE SECURITY

7.1 Performance Security

7.1.1 The Contractor shall, for the performance of its obligations hereunder during the Construction
Period, provide to the Authority, within 10 (ten) days of the date of this Agreement, an irrevocable
and unconditional guarantee from a Bank in the form set forth in Schedule-G (the “Performance
Security”) for an amount equal to 7.5% (seven and half percent) of the Contract Price. The
Performance Security shall be valid until 60 (sixty) days after the Defects Liability Period. Until
such time the Performance Security is provided by the Contractor pursuant hereto and the same
comes into effect, the Bid Security shall remain in force and effect, and upon such provision of the
Performance Security, the Authority shall release the Bid Security to the Contractor. For the
avoidance of doubt, the parties expressly agree that the Contractor shall provide, no later than 30
(thirty) days prior to the expiry of the Performance Security for the defects Liability Period
specified in Clause 17.1.1, a Performance Security in respect of the extended Defects Liability
Period specified in Clause 17.1.2 for an amount equal to 5% (five per cent) of the estimated cost of
Structures and Major Bridges specified therein.

7.1.2 Notwithstanding anything to the contrary contained in this Agreement, the Parties agree that in the
event of failure of the Contractor to provide the Performance Security in accordance with the
provisions of Clause 7.1.1 and within the time specified therein or such extended period as may be
provided by the Authority, in accordance with the provisions of Clause 7.1.3, the Authority may
encash the Bid Security and appropriate the proceeds thereof as Damages, and thereupon all rights,
privileges, claims and entitlements of the Contractor under or arising out of this Agreement shall be
deemed to have been waived by, and to have ceased with the concurrence of the Contractor, and
this Agreement shall be deemed to have been terminated by mutual agreement of the Parties.

7.1.3 In the event the Contractor fails to provide the Performance Security within 10 (ten) days of this
Agreement, it may seek extension of time for a period not exceeding 20 (twenty) days on payment
of Damages for such extended period in a sum calculated at the rate of 0.05% (zero point zero five
per cent) of the Contract Price for each day until the Performance Security is provided.

7.2 Extension of Performance Security

The Contractor may initially provide the Performance Security for a period of 2 (two) years;
provided that it shall procure the extension of the validity of the Performance Security, as
necessary, at least 2 (two) months prior to the date of expiry thereof. Upon the Contractor providing
an extended Performance Security, the previous Performance Security shall be deemed to be
released and the Authority shall return the same to the Contractor within a period of 7 (seven)
business days from the date of submission of the extended Performance Security.

7.3 Appropriation of Performance Security

7.3.1 Upon occurrence of a Contractor’s Default, the Authority shall, without prejudice to its other rights
and remedies hereunder or in law, be entitled to an cash and appropriate the relevant amounts from
the Performance Security as Damages for such Contractor’s Default.

7.3.2 Upon such encashment and appropriation from the Performance Security, the Contractor shall,
within 30 (thirty) days thereof, replenish, in case of partial appropriation, to its original level the
Performance Security, and in case of appropriation of the entire Performance Security provide a
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 fresh Performance Security, as the case may be, and the Contractor shall, within the time so
granted, replenish or furnish fresh Performance Security as aforesaid failing which the Authority
shall be entitled to terminate the Agreement in accordance with Article 23. Upon replenishment or
furnishing of a fresh Performance Security, as the case may be, as aforesaid, the Contractor shall be
entitled to an additional Cure Period of 30 (thirty) days for remedying the Contractor’s Default, and
in the event of the Contractor not curing its default within such Cure Period, the Authority shall be
entitled to an cash and appropriate such Performance Security as Damages, and to terminate this
Agreement in accordance with Article 23.

7.4 Release of Performance Security

The Authority shall return the Performance Security to the Contractor within 60 (sixty) days of the
later of the expiry of the Maintenance Period or the Defects Liability Period under this Agreement.
Notwithstanding the aforesaid, the Parties agree that the Authority shall not be obliged to release
the Performance Security until all Defects identified during the Defects Liability Period have been
rectified.

7.5 Retention Money

7.5.1 From every payment for Works due to the Contractor in accordance with the provisions of Clause
19.5, the Authority shall deduct 6% (six per cent) thereof as guarantee money for performance of
the obligations of the Contractor during the Construction Period (the “Retention Money”) subject
to the condition that the maximum amount of Retention Money shall not exceed 5% (five per cent)
of the Contract Price.

7.5.2 Upon occurrence of a Contractor’s Default, the Authority shall, without prejudice to its other rights
and remedies hereunder or in law, be entitled to appropriate the relevant amounts from the
Retention Money as Damages for such Contractor’s Default.

7.5.3 The Contractor may, upon furnishing an irrevocable and unconditional bank guarantee substantially
in the form provided at Annex-II of Schedule-G, require the Authority to refund the Retention
Money deducted by the Authority under the provisions of Clause 7.5.1. Provided that the refund
hereunder shall be made in tranches of not less than 1% (one per cent) of the Contract Price.

7.5.4 Within 15 (fifteen) days of the date of issue of the Completion Certificate, the Authority shall
discharge the bank guarantees furnished by the Contractor under the provisions of Clause 7.5.3 and
refund the balance of Retention Money remaining with the Authority after adjusting the amounts
appropriated under the provisions of Clause 7.5.2 and the amounts refunded under the provisions of
Clause 7.5.3.

7.5.5 The Parties agree that in the event of Termination of this Agreement, the Retention Money and the
bank guarantees specified in this Clause 7.5 shall be treated as if they are Performance Security and
shall be reckoned as such for the purposes of Termination Payment under Clause 23.6.

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 ARTICLE 8

RIGHT OF WAY

8.1 The Site

The site of the Project Highway (the “Site”) shall comprise the site described in Schedule-A in
respect of which the Right of Way shall be provided by the Authority to the Contractor. The
Authority shall be responsible for:

(a) acquiring and providing Right of Way on the Site in accordance with the alignment
finalised by the Authority, free from all encroachments and encumbrances, and free access
thereto for the execution of this Agreement; and

(b) obtaining licences and permits for environment clearance for the Project Highway.

8.2 Procurement of the Site

8.2.1 The Authority Representative and the Contractor shall, within 15 (fifteen) days of the date of this
Agreement, inspect the Site and prepare a memorandum containing an inventory of the Site
including the vacant and unencumbered land, buildings, structures, road works, trees and any other
immovable property on or attached to the Site. Subject to the provisions of Clause 8.2.3, such
memorandum shall have appended thereto an appendix (the “Appendix”) specifying in reasonable
detail those parts of the Site to which vacant access and Right of Way has not been given to the
Contractor. Signing of the memorandum, in two counterparts (each of which shall constitute an
original), by the authorized representatives of the Parties shall be deemed to constitute a valid
evidence of giving the Right of Way to the Contractor for discharging its obligations under and in
accordance with the provisions of this Agreement and for no other purpose whatsoever.

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, the proposed date and time such of handing
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. Signing of the memorandum, in two counterparts (each of
which shall constitute an original), by the authorized representatives of the Parties shall be deemed
to constitute a valid evidence of giving the relevant Right of Way to the Contractor.

8.2.2 The Authority shall provide the Right of Way to the Contractor in respect of all land included in the
Appendix by the date specified in Schedule-A for those parts of the Site referred to therein, or no
later than 90 (ninety) days of the Appointed Date for those parts of the Site which have not been
specified in Schedule-A, and in the event of delay for any reason other than Force Majeure or
breach of this Agreement by the Contractor, it shall pay to the Contractor, Damages in a sum
calculated in accordance with Clause 8.3.

8.2.3 Notwithstanding anything to the contrary contained in this Clause 8.2, the Authority shall specify
the parts of the Site, if any, for which Right of Way shall be provided to the Contractor on the dates
specified in Schedule-A. Such parts shall also be included in the Appendix prepared in pursuance
of Clause 8.2.1. For the avoidance of doubt, the Parties expressly agree that the Appendix shall in
no event contain sections of the Project Highway the cumulative length of which exceeds 10% (ten
per cent) of the total length of the Project Highway.

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8.3 Damages for delay in handing over the Site

8.3.1 In the event the Right of Way to any part of the Site is not provided by the Authority on or before
the date(s) specified in Clause 8.2 for any reason other than Force Majeure or breach of this
Agreement by the Contractor, the Authority shall pay Damages to the Contractor in a sum
calculated in accordance with the following formula for and in respect of those parts of the Site to
which the Right of Way has not been provided:

Amount of Damages in Rs. per day per metre = 0.05 x C x 1/L x 1/N Where

C = the Contract Price; L = length of the Project Highway in metres; and

N = Completion period in days (Appointed Date to Scheduled Completion Date)

In the event that any Damages are due and payable to the Contractor under the provisions of this
Clause 8.3.1 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 8.3.1, save and except that:

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

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

For the avoidance of doubt, the Parties expressly agree that the Damages specified hereunder and
the Time Extension specified in Clause 10.5 shall be restricted only to failure of the Authority to
provide the Right of Way for and in respect of the width of the roadway, its embankment and a
parallel working strip at least 3 (three) metres wide.

8.3.2 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 is granted within 90 (ninety) days
of 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 8.3.1.

8.3.3 Notwithstanding anything to the contrary contained in this Agreement, 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.

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, as the case may be, because the requisite
clearances or approvals for commencing construction of Works therein have not been given within
240 (two hundred and forty) days of the Appointed date, the affected Works shall be deemed to be
withdrawn under the provisions of this Clause 8.3.3 unless the Parties agree to the contrary, and
such Works shall not be computed for the purposes of the aforesaid ceiling of 10% (ten per cent)
hereunder.

8.3.4 In the event of withdrawal of Works under Clause 8.3.3, the Contract Price shall be reduced by an
amount equal to 90 (ninety) per cent of the value of the Works withdrawn and the Contractor shall
not be entitled to any other compensation or Damages for the withdrawal of Works.

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 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’s Engineer:

8.4 Site to be free from Encumbrances

Subject to the provisions of Clause 8.2, the Site shall be made available by the Authority to the
Contractor pursuant hereto free from all Encumbrances and occupations and without the Contractor
being required to make any payment to the Authority on account of any costs, compensation,
expenses and charges for the acquisition and use of such Site for the duration of the Project
Completion Schedule. For the avoidance of doubt, it is agreed that the existing rights of way,
easements, privileges, liberties and appurtenances to the Site shall not be deemed to be
Encumbrances. It is further agreed that, unless otherwise specified in this Agreement, the
Contractor accepts and undertakes to bear any and all risks arising out of the inadequacy or
physical condition of the Site.

8.5 Protection of Site from encroachments

On and after signing the memorandum and/or subsequent memorandum referred to in Clause 8.2.1,
and until the issue of the Completion Certificate, the Contractor shall maintain a round-the-clock
vigil over the Site and shall ensure and procure that no encroachment thereon takes place. During
the Construction Period, the Contractor shall protect the Site from any and all occupations,
encroachments or Encumbrances, and shall not place or create nor permit any Sub-contractor or
other person claiming through or under the Agreement to place or create any Encumbrance or
security threat over all or any part of the Site or the Project Assets, or on any rights of the
Contractor therein or under this Agreement, save and except as otherwise expressly set forth in this
Agreement. In the event of any encroachment or occupation on any part of the Site, the Contractor
shall report such encroachment or occupation forthwith to the Authority and undertake its removal
at its own cost and expenses.

8.6 Special/temporary Right of Way

The Contractor shall bear all costs and charges for any special or temporary right of way required
by it in connection with access to the Site. The Contractor shall obtain at its cost such facilities on
or outside the Site as may be required by it for the purposes of the Project Highway and the
performance of its obligations under this Agreement.

8.7 Access to the Authority and the Authority’s Engineer

8.7.1 The Right of Way given to the Contractor hereunder shall always be subject to the right of access
of the Authority and the Authority’s Engineer and their employees and agents for inspection,
viewing and exercise of their rights and performance of their obligations under this Agreement.

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

8.8 Geological and archaeological finds

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

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 ARTICLE 9

UTILITIES AND TREES

9.1 Existing utilities and roads

Notwithstanding anything to the contrary contained herein, the Contractor shall ensure that the
respective entities owning the existing roads, right of way, level crossings, structures, or utilities
on, under or above the Site are enabled by it to keep them in continuous satisfactory use, if
necessary, by providing suitable temporary diversions with the authority of the controlling body of
that road, right of way or utility.

9.2 Shifting of obstructing utilities

The Contractor shall, in accordance with Applicable Laws and with assistance of the Authority,
cause shifting of any utility (including electric lines, water pipes and telephone cables) to an
appropriate location or alignment, if such utility or obstruction adversely affects the execution of
Works or Maintenance of the Project Highway in accordance with this Agreement. The actual cost
of such shifting, as approved and communicated by the entity owning the utility, shall be paid by
the Contractor and reimbursed by the Authority to the Contractor. In the event of any delay in such
shifting by the entity owning the utility beyond a period of 180 (one hundred and eighty) days from
the date of notice by the Contractor to the entity owning the utility and to the Authority, the
Contractor shall be entitled to Damages in a sum calculated in accordance with the formula
specified in Clause 8.3.1 for the period of delay, and to 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.

9.3 New utilities

9.3.1 The Contractor shall allow, subject to such conditions as the Authority may specify, access to, and
use of the Site for laying telephone lines, water pipes, electric cables or other public utilities. Where
such access or use causes any financial loss to the Contractor, it may require the user of the Site to
pay compensation or damages as per Applicable Laws. For the avoidance of doubt, it is agreed that
use of the Site under this Clause 9.3 shall not in any manner relieve the Contractor of its obligation
to construct and maintain the Project Highway in accordance with this Agreement and any damage
caused by such use shall be restored forthwith at the cost of the Authority.

9.3.2 The Authority may, by notice, require the Contractor to connect any adjoining road to the Project
Highway, and the connecting portion thereof falling within the Site shall be constructed by the
Contractor at the Authority’s cost in accordance with Article 10.

9.3.3 The Authority may by notice require the Contractor to connect, through a paved road, any
adjoining service station, hotel, motel or any other public facility or amenity to the Project
Highway, whereupon the connecting portion thereof that falls within the Site shall be constructed
by the Contractor on payment of the cost. The cost to be paid by the Authority to the Contractor
shall be determined by the Authority’s Engineer. For the avoidance of doubt, in the event such road
is to be constructed for the benefit of any entity, the Authority may require such entity to make an
advance deposit with the Contractor or the Authority, as the case may be, of an amount equal to the
estimated cost as determined by the Authority’s Engineer and such advance shall be adjusted
against the cost of construction as determined by the Authority’s Engineer hereunder.

9.3.4 In the event the construction of any Works is affected by a new utility or works undertaken in
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 accordance with this Clause 9.3, the Contractor shall be entitled to a reasonable Time Extension as
determined by the Authority’s Engineer.

9.4 Felling of trees

The Authority shall assist the Contractor in obtaining the Applicable Permits for felling of trees to
be identified by the Authority for this purpose if and only if such trees cause a Material Adverse
Effect on the construction or maintenance of the Project Highway. The cost of such felling shall be
borne by the Authority and in the event of any delay in felling thereof for reasons beyond the
control of the Contractor; it shall be excused for failure to perform any of its obligations hereunder
if such failure is a direct consequence of delay in the felling of trees. The Parties hereto agree that
the felled trees shall be deemed to be owned by the Authority and shall be disposed in such manner
and subject to such conditions as the Authority may in its sole discretion deem appropriate. For the
avoidance of doubt, the Parties agree that if any felling of trees hereunder is in a forest area, the
Applicable Permit thereof shall be procured by the Authority within the time specified in the
Agreement.

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 ARTICLE 10

DESIGN AND CONSTRUCTION OF THE PROJECT HIGHWAY

10.1 Obligations prior to commencement of Works

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

(a) appoint its representative, duly authorized to deal with the Authority in respect of all
matters under or arising out of or relating to this Agreement;

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

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

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

10.1.2 The Authority shall, within 15 (fifteen) days of the date of this Agreement, appoint an engineer (the
“Authority’s Engineer”) to discharge the functions and duties specified in this Agreement, and
shall notify to the Contractor the name, address and the date of appointment of the Authority’s
Engineer forthwith.

10.1.3 Within 30 (thirty) days of the Appointed Date, the Contractor shall submit to the Authority and the
Authority’s Engineer a programme (the “Programme”) for the Works, developed using
networking techniques giving the following details:

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

Part II Programme for completion of all stages of construction given in Schedule-H and Project
Milestones of the Works as specified in Project Completion Schedule set forth in Schedule-
J. The Programme shall include:

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

(b) the periods for reviews under Clause 10.2;

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

The Contractor shall submit a revised programme whenever the previous programme is inconsistent
with the actual progress or with the Contractor’s obligations.

Part III Monthly cash flow forecast.

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10.1.4 The Contractor shall compute, on the basis of the Drawings prepared in accordance with Clause
10.2.4, and provide to the Authority’s Engineer, the length, area and numbers, as the case may be,
in respect of the various items of work specified in Schedule-H and comprising the Scope of the
Project. The Parties expressly agree that these details shall form the basis for estimating the interim
payments for the Works in accordance with the provisions of Clause 19.3. For the avoidance of
doubt, the sum of payments to be computed in respect of all the items of work shall not exceed the
Contract Price, as may be adjusted in accordance with the provisions of this Agreement.

10.1.5 The Contractor shall appoint a safety consultant (the “Safety Consultant”) to carry out safety audit
at the design stage of the Project 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 names of qualified and experienced firms from whom the Authority may choose one to be
the Safety Consultant. Provided, however, that if the panel is not acceptable to the Authority and
the reasons for the same are furnished to the Contractor, the Contactor shall propose to the
Authority a revised panel of three names from the firms 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.

10.1.6 The safety audit pursuant to Clause 10.1.5 shall be carried out by the Safety Consultant in respect
of all such design details that have a bearing on safety of Users as well as pedestrians and animals
involved in or associated with accidents. The recommendations of the Safety Consultant shall be
incorporated in the design of the Project Highway and the Contractor shall forward to the
Authority’s Engineer a certificate to this effect together with the recommendations of the Safety
Consultant. In the event that any works required by the Safety Consultant shall fall beyond the
scope of Schedule-B, Schedule-C or Schedule-D, the Contractor shall make a report thereon and
seek the instructions of the Authority for Change in Scope. For the avoidance of doubt, the Safety
Consultant to be engaged by the Contractor shall be independent of the design and implementation
team of the Contractor.

10.2 Design and Drawings

10.2.1 Design and Drawings shall be developed in conformity with the Specifications and Standards set
forth in Schedule-D. In the event, the Contractor requires any relaxation in design standards due to
restricted Right of Way in any section, the alternative design criteria for such section shall be
provided for review of the Authority’s Engineer.

10.2.2 The Contractor shall appoint a proof check consultant (the “Proof Consultant”) after proposing to
the Authority a panel of three names of qualified and experienced firms from whom the Authority
may choose one to be the Proof Consultant. Provided, however, that if the panel is not acceptable to
the Authority and the reasons for the same are furnished to the Contractor, the Contactor shall
propose to the Authority a revised panel of three 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 key personnel of
the Proof Consultant who shall have adequate experience and qualifications in highways and
bridges respectively. The Authority shall, within 15 (fifteen) days of receiving a proposal from the
Contractor hereunder, convey its decision, with reasons, to the Contractor, and if no such decision
is conveyed within the said period, the Contractor may proceed with engaging of the Proof
Consultant.

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10.2.3 The Proof Consultant shall:

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

(b) proof check the detailed calculations, drawings and designs, which have been approved by
the Design Director.

10.2.4 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 copies each of the design and
Drawings, duly certified by the Proof Consultant, to the Authority’s Engineer for review.
Provided, however, that in respect of Major Bridges and Structures, the Authority’s
Engineer may require additional drawings for its review in accordance with Good Industry
Practice.

(b) by submitting the Drawings for review 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 observations to the Contractor with particular reference to
their conformity or otherwise with the Scope of the Project and the Specifications and
Standards. The Contractor shall not be obliged to await the observations of the Authority’s
Engineer on the Drawings submitted pursuant hereto beyond the said period of 15 (fifteen)
days and may begin or continue Works at its own discretion and risk; Provided, however
that in case of a Major Bridge or Structure, the aforesaid period of 15 (fifteen) days may be
extended upto 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. 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 as aforesaid, the Authority’s Engineer may withhold the
payment for the affected works in accordance with the provisions of Clause 19.5.4. If the
Contractor disputes any decision, direction or determination of the Authority’s Engineer
hereunder, the Dispute shall be resolved in accordance with the Dispute Resolution
Procedure;

(e) no review and/or observation of the Authority’s Engineer and/or its failure to review and/or
convey its observations on any Drawings shall relieve the Contractor of its obligations and
liabilities under this Agreement in any manner nor shall the Authority’s Engineer or the
Authority be liable for the same in any manner; and if errors, omissions, ambiguities,
inconsistencies, inadequacies or other Defects are found in the Drawings, they and the
construction works shall be corrected at the Contractor's cost, notwithstanding any review
under this Article 10;

(f) the Contractor shall be responsible for delays in submitting the Drawing as set forth
in Schedule-I caused by reason of delays in surveys and field investigations, and shall
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 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.

10.2.5 Any cost or delay in construction arising from review by the Authority’s Engineer shall be borne by
the Contractor.

10.2.6 Works shall be executed in accordance with the Drawings provided by the Contractor in
accordance with the provisions of this Clause 10.2 and the observations of the Authority’s Engineer
thereon as communicated pursuant to the provisions of Clause 10.2.4 (d). Such Drawings shall not
be amended or altered without prior written notice to the Authority’s Engineer. If a Party becomes
aware of an error or defect of a technical nature in the design or Drawings, that Party shall
promptly give notice to the other Party of such error or defect.

10.2.7 Within 90 (ninety) days of the Project Completion Date, the Contractor shall furnish to the
Authority and the Authority’s Engineer a complete set of as-built Drawings, in 2 (two) hard copies
and in micro film form 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

10.3.1 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 [450th (four hundred and
fiftieth) 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.

10.3.2 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 Works are
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 Works are completed within or before the Scheduled Completion Date including any
Time Extension, applicable for that work or section, the Damages paid under this Clause 10.3.2
shall be refunded by the Authority to the Contractor, but without any interest thereon. For the
avoidance of doubt, it is agreed that recovery of Damages under this Clause 10.3.2 shall be without
prejudice to the rights of the Authority under this Agreement including the right of Termination
thereof. The Parties further agree that Time Extension hereunder shall only be reckoned for and in
respect of the affected works as specified in Clause 10.5.2.

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10.3.3 The Authority shall notify the Contractor of its decision to impose Damages in pursuance with the
provisions of this Clause 10.3. Provided that no deduction on account of Damages shall be effected
by the Authority without notifying the Contractor of its decision to impose the Damages, and taking
into consideration the representation, if any, made by the Contractor within 20 (twenty) days of
such notice. The Parties expressly agree that the total amount of Damages under Clause 10.3.2 shall
not exceed 10% (ten percent) of the Contract Price.

10.4 Maintenance during Construction Period

During the Construction Period, the Contractor shall maintain, at its cost, the existing lane(s) of the
Project Highway so that the traffic worthiness and safety thereof are at no time materially inferior
as compared to their condition 10 (ten) days prior to the date of this Agreement, and shall undertake
the necessary repair and maintenance works for this purpose; provided that the Contractor may, at
its cost, interrupt and divert the flow of traffic if such interruption and diversion is necessary for the
efficient progress of Works and conforms to Good Industry Practice; provided further that such
interruption and diversion shall be undertaken by the Contractor only with the prior written
approval of the Authority’s Engineer which approval shall not be unreasonably withheld. For the
avoidance of doubt, it is agreed that the Contractor shall at all times be responsible for ensuring
safe operation of the Project Highway. It is further agreed that in the event the Project includes
construction of a bypass or tunnel and realignment of the existing carriageway, the Contractor shall
maintain the existing highway in such sections until the new Works are open to traffic.

10.5 Extension of time for completion

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

(a) delay in providing the Right of Way, environmental clearances or approval of railway
authorities, specified in Clause 4.1.4;

(b) Change of Scope (unless an adjustment to the Scheduled Completion Date has been agreed
under Article 13);

(c) occurrence of a Force Majeure Event;

(d) any delay, impediment or prevention caused by or attributable to the Authority, the
Authority's personnel or the Authority's other contractors on the Site; and

(e) any other cause or delay which entitles the Contractor to Time Extension in accordance
with the provisions of this Agreement.

10.5.2 The Contractor shall, no later than 15 (fifteen) business days from the occurrence of an event or
circumstance specified in Clause 10.5.1, inform the Authority’s Engineer by notice in writing, with
a copy to the Authority, stating in reasonable detail with supporting particulars, the event or
circumstances giving rise to the claim for Time Extension in accordance with the provisions of this
Agreement. Provided that the period of 15 (fifteen) business days shall be calculated from the date
on which the Contractor became aware, or should have become aware, of the occurrence of such an
event or circumstance.

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
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 respect of the Works which are not affected hereunder.

10.5.3 In the event of the failure of the Contractor to issue to the Authority’s Engineer a notice in
accordance with the provisions of Clause 10.5.2 within the time specified therein, the Contractor
shall not be entitled to any Time Extension and shall forfeit its right for any such claims in future.
For the avoidance of doubt, in the event of failure of the Contractor to issue notice as specified in
this clause 10.5.3, the Authority shall be discharged from all liability in connection with the claim.

10.5.4 The Authority’s Engineer shall, on receipt of the claim in accordance with the provisions of Clause
10.5.2, examine the claim expeditiously within the time frame specified herein. In the event the
Authority’s Engineer requires any clarifications to examine the claim, the Authority’s Engineer
shall seek the same within 15 (fifteen) days from the date of receiving the claim. The Contractor
shall, on receipt of the communication of the Authority’s Engineer requesting for clarification,
furnish the same to the Authority’s Engineer within 10 (ten) days thereof. The Authority’s Engineer
shall, within a period of 60 (sixty) days from the date of receipt of such clarifications, forward in
writing to the Contractor its determination of Time Extension.

Provided that when determining each extension of time under this Clause 10.5, the Authority’s
Engineer shall review previous determinations and may increase, but shall not decrease, the total
Time Extension.

10.5.5 If the event or circumstance giving rise to the notice has a continuing effect:
(a) a fully detailed claim shall be considered as interim;
(b) the Contractor shall, no later than 10 (ten) days after the close of each month, send further
interim claims specifying the accumulated delay, the extension of time claimed, and such
further particulars as the Authority’s Engineer may reasonably require; and
(c) the Contractor shall send a final claim within 30 (thirty) days after the effect of the event or
the circumstance ceases.
Upon receipt of the claim hereunder, the Authority’s Engineer shall examine the same in
accordance with the provisions of Clause 10.5.4 within a period of 60 (sixty) days of the receipt
thereof.

10.6 Incomplete Works

In the event the Contractor fails to complete the Works in accordance with the Project Completion
Schedule, including any Time Extension granted under this Agreement, the Contractor shall
endeavour to complete the balance work expeditiously and shall pay Damages to the Authority in
accordance with the provisions of Clause 10.3.2 for delay of each day until the Works are
completed in accordance with the provisions of this Agreement. Recovery of Damages under this
Clause shall be without prejudice to the rights of the Authority under this Agreement including the
right to termination under Clause 23.1.

10.7 Maintenance Manual

No later than 60 (sixty) days prior to the Project Completion Date, the Contractor shall, in
consultation with the Authority’s Engineer, evolve a maintenance manual (the “Maintenance
Manual”) for the regular and preventive maintenance of the Project Highway in conformity with
the Specifications and Standards, safety requirements and Good Industry Practice, and shall provide
5 (five) copies thereof to the Authority’s Engineer. The Authority’s Engineer shall review the
Maintenance Manual within 15 (fifteen) days of its reciept and communicate its comments to the
Contractor for necessary modifications, if any.
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 ARTICLE 11

QUALITY ASSURANCE, MONITORING AND SUPERVISION

11.1 Quality of Materials and workmanship

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

11.2 Quality control system

11.2.1 The Contractor shall establish a quality control mechanism to ensure compliance with the
provisions of this Agreement (the “Quality Assurance Plan” or “QAP”).

11.2.2 The Contractor shall, within 30 (thirty) days of the Appointed Date, submit to the Authority’s
Engineer its Quality Assurance Plan which shall include the following:

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

(b) quality control mechanism including sampling and testing of Materials, test frequencies,
standards, acceptance criteria, testing facilities, reporting, recording and interpretation of
test results, approvals, check list for site activities, and proforma for testing and calibration
in accordance with the Specifications for Road and Bridge Works issued by MORTH,
relevant IRC specifications and Good Industry Practice; and

(c) internal quality audit system.

The Authority’s Engineer shall convey its comments to the Contractor within a period of 21
(twenty-one) days of receipt of the QAP stating the modifications, if any, required, and the
Contractor shall incorporate those in the QAP to the extent required for conforming with the
provisions of this Clause 11.2.

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

11.2.4 The cost of testing of Construction, Materials and workmanship under this Article 11 shall be borne
by the Contractor.

11.3. Methodology

The Contractor shall, at least 15 (fifteen) days prior to the commencement of the construction,
submit to the Authority’s Engineer for review the methodology proposed to be adopted for
executing the Works, giving details of equipment to be deployed, traffic management and measures
for ensuring safety. The Authority’s Engineer shall complete the review and convey its comments
to the Contractor within a period of 10 (ten) days from the date of receipt of the proposed
methodology from the Contractor.

11.4. Inspection and technical audit by the Authority

The Authority or any representative authorised by the Authority in this behalf may inspect and
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 review the progress and quality of the construction of Project Highway and issue appropriate
directions to the Authority’s Engineer and the Contractor for taking remedial action in the event the
Works are not in accordance with the provisions of this Agreement.

11.5 External technical audit

At any time during construction, the Authority may appoint an external technical auditor to conduct
an audit of the quality of the Works. The findings of the audit, to the extent accepted by the
Authority, shall be notified to the Contractor and the Authority’s Engineer for taking remedial
action in accordance with this Agreement. The Contractor shall provide all assistance as may be
required by the auditor in the conduct of its audit hereunder. Notwithstanding anything contained in
this Clause 11.5, the external technical audit shall not affect any obligations of the Contractor or the
Authority’s Engineer under this Agreement.

11.6 Inspection of construction records

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

11.7 Monthly progress reports

During the Construction Period, the Contractor shall, no later than 10 (ten) days after the close of
each month, furnish to the Authority and the Authority’s Engineer a monthly report on progress of
the Works and shall promptly give such other relevant information as may be required by the
Authority’s Engineer.

11.8 Inspection

11.8.1 The Authority’s Engineer and its authorised representative shall at all reasonable times:

(a) have full access to all parts of the Site and to all places from which natural Materials are
being obtained for use in the Works; and
(b) during production, manufacture and construction at the Site and at the place of production,
be entitled to examine, inspect, measure and test the Materials and workmanship, and to
check the progress of manufacture of Materials.

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

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

11.9 Samples

The Contractor shall submit the following samples of Materials and relevant information to the
Authority’s Engineer for pre-construction review:

(a) manufacturer's test reports and standard samples of manufactured Materials; and

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

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11.10 Tests

11.10.1For determining that the Works conform to the Specifications and Standards, the Authority’s
Engineer shall require the Contractor to carry out or cause to be carried out tests, at such time and
frequency and in such manner as specified in this Agreement, and in accordance with Good
Industry Practice for quality assurance. The test checks by the Authority’s Engineer shall comprise
at least 20 (twenty) percent of the quantity or number of tests prescribed for each category or type
of test for quality control by the Contractor.

11.10.2 In the event that results of any tests conducted under this Clause 11.10 establish any Defects or
deficiencies in the Works, the Contractor shall carry out remedial measures and furnish a report to
the Authority’s Engineer in this behalf. The Authority’s Engineer shall require the Contractor to
carry out or cause to be carried out tests to determine that such remedial measures have brought the
Works into compliance with the Specifications and Standards, and the procedure shall be repeated
until such Works conform to the Specifications and Standards. For the avoidance of doubt, the cost
of such tests and remedial measures in pursuance thereof shall be solely borne by the Contractor.

11.11 Examination of work before covering up

In respect of the work which the Authority’s Engineer is entitled to examine, inspect, measure
and/or test before it is covered up or put out of view or any part of the work is placed thereon, the
Contractor shall give notice to the Authority’s Engineer whenever any such work is ready and
before it is covered up. The Authority’s Engineer shall then either carry out the examination,
inspection or testing without unreasonable delay, or promptly give notice to the Contractor that the
Authority’s Engineer does not require to do so. Provided, however, that if any work is of a
continuous nature where it is not possible or prudent to keep it uncovered or incomplete, the
Contractor shall notify the schedule of carrying out such work to give sufficient opportunity, not
being less than 3 (three) business days’ notice, to the Authority’s Engineer to conduct its
inspection, measurement or test while the work is continuing. Provided further that in the event the
Contractor receives no response from the Authority’s Engineer within a period of 3 (three) business
days from the date on which the Contractor’s notice hereunder is delivered to the Authority’s
Engineer, the Contractor shall be entitled to assume that the Authority’s Engineer would not
undertake the said inspection.

11.12 Rejection

If, as a result of an examination, inspection, measurement or testing, any Plant, Materials, design or
workmanship is found to be defective or otherwise not in accordance with the provisions of this
Agreement, the Authority’s Engineer shall reject the Plant, Materials, design or workmanship by
giving notice to the Contractor, with reasons. The Contractor shall then promptly make good the
Defect and ensure that the rejected item complies with the requirements of this Agreement.

If the Authority’s Engineer requires the Plant, Materials, design or workmanship to be retested, the
tests shall be repeated under the same terms and conditions, as applicable in each case. If the
rejection and retesting cause the Authority to incur any additional costs, such cost shall be
recoverable by the Authority from the Contractor; and may be deducted by the Authority from any
monies due to be paid to the Contractor.

11.13 Remedial work

11.13.1 Notwithstanding any previous test or certification, the Authority’s Engineer may instruct the
Contractor to:

(a) remove from the Site and replace any Plant or Materials which are not in accordance with
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 the provisions of this Agreement;

(b) remove and re-execute any work which is not in accordance with the provisions of this
Agreement and the Specification and Standards; and

(c) execute any work which is urgently required for the safety of the Project Highway, whether
because of an accident, unforeseeable event or otherwise; provided that in case of any work
required on account of a Force Majeure Event, the provisions of Clause 21.6 shall apply.

11.13.2 If the Contractor fails to comply with the instructions issued by the Authority’s Engineer under
Clause 11.13.1, within the time specified in the Authority’s Engineer’s notice or as mutually
agreed, the Authority’s Engineer may advise the Authority to have the work executed by another
agency. The cost so incurred by the Authority for undertaking such work shall, without prejudice to
the rights of the Authority to recover Damages in accordance with the provisions of this
Agreement, be recoverable from the Contractor and may be deducted by the Authority from any
monies due to be paid to the Contractor.

11.14 Delays during construction

Without prejudice to the provisions of Clause 10.3.2, in the event the Contractor does not achieve
any of the Project Milestones or the Authority’s Engineer shall have reasonably determined that the
rate of progress of Works is such that Completion of the Project Highway is not likely to be
achieved by the end of the Scheduled Completion Date, it shall notify the same to the Contractor,
and the Contractor shall, within 15 (fifteen) days of such notice, by a communication inform the
Authority’s Engineer in reasonable detail about the steps it proposes to take to expedite progress
and the period within which it shall achieve the Project Completion Date.

11.15 Quality control records and Documents

The Contractor shall hand over to the Authority’s Engineer a copy of all its quality control records
and documents before the Completion Certificate is issued pursuant to Clause 12.2.

11.16 Video recording

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

11.17 Suspension of unsafe Construction Works

11.17.1 Upon recommendation of the Authority’s Engineer to this effect, the

Authority may by notice require the Contractor to suspend forthwith the whole or any part of the
Works if, in the reasonable opinion of the Authority’s Engineer, such work threatens the safety of
the Users and pedestrians.

11.17.2 The Contractor shall, pursuant to the notice under Clause 11.17.1, suspend the Works or any part
thereof for such time and in such manner as may be specified by the Authority and thereupon
carry out remedial measures to secure the safety of suspended works, the Users and pedestrians.
The Contractor may by notice require the Authority’s Engineer to inspect such remedial
measures forthwith and make a report to the Authority recommending whether or not the
suspension hereunder may be revoked. Upon receiving the recommendations of the Authority’s
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 Engineer, the Authority shall either revoke such suspension or instruct the Contractor to carry out
such other and further remedial measures as may be necessary in the reasonable opinion of the
Authority, and the procedure set forth in this Clause 11.17 shall be repeated until the suspension
hereunder is revoked.

11.17.3 Subject to the provisions of Clause 21.6, all reasonable costs incurred for maintaining and
protecting the Works or part thereof during the period of suspension (the “Preservation Costs”),
shall be borne by the Contractor; provided that if the suspension has occurred as a result of any
breach of this Agreement by the Authority, the Preservation Costs shall be borne by the
Authority.

11.17.4 If suspension of Works is for reasons not attributable to the Contractor, the Authority’s Engineer
shall determine any Time Extension to which the Contractor is reasonably entitled.

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 ARTICLE 12

COMPLETION CERTIFICATE

12.1 Tests on completion

12.1.1 At least 30 (thirty) days prior to the likely completion of the Project Highway, or a Section thereof,
the Contractor shall notify the Authority’s Engineer of its intent to subject the Project Highway or a
Section thereof, to Tests. The date and time of each of the Tests shall be determined by the
Authority’s Engineer in consultation with the Contractor, and notified to the Authority who may
designate its representative to witness the Tests. The Contractor shall either conduct the Tests as
directed by the Authority’s Engineer or provide such assistance as the Authority’s Engineer may
reasonably require for conducting the Tests. In the event of the Contractor and the Authority’s
Engineer failing to mutually agree on the dates for conducting the Tests, the Contractor shall fix the
dates by giving not less than 10 (ten) days notice to the Authority’s Engineer.

12.1.2 All Tests shall be conducted in accordance with Schedule-K. The Authority’s Engineer shall either
conduct or observe, monitor and review the Tests conducted by the Contractor, as the case may be,
and review the results of the Tests to determine compliance of the Project Highway or a Section
thereof, with Specifications and Standards and if it is reasonably anticipated or determined by the
Authority’s Engineer during the course of any Test that the performance of the Project Highway or
Section or any part thereof, does not meet the Specifications and Standards, it shall have the right to
suspend or delay such Test and require the Contractor to remedy and rectify the Defect or
deficiencies. Upon completion of each Test, the Authority’s Engineer shall provide to the
Contractor and the Authority copies of all Test data including detailed Test results. For the
avoidance of doubt, it is expressly agreed that the Authority’s Engineer may require the Contractor
to carry out or cause to be carried out additional Tests, in accordance with Good Industry Practice,
for determining the compliance of the Project Highway or Section thereof with the Specifications
and Standards.

12.2 Provisional Certificate

12.2.1 Subject to the provisions of Clause 12.2.5, upon completion of all Works forming part of the
Project Highway, save and except the Works for which Time Extension has been granted under
Clause 10.5, the Authority’s Engineer shall, at the request of the Contractor, issue a provisional
certificate of completion substantially in the form set forth in Schedule-L (the “Provisional
Certificate”) if the Tests for and in respect of the completed Works are successful. The Provisional
Certificate shall have appended thereto a list of outstanding items of work (the “Punch List”) that
need to be completed in accordance with the provisions of this Agreement. The Contractor
undertakes to complete the minor outstanding items of works in respect of those Sections of the
Project Highway for which the Provisional Certificate has been issued, within a period of 30
(thirty) days of the date of Provisional Certificate, and those parts of the Works in respect of which
Time Extension has been granted, within the extended period thereof. For the avoidance of doubt,
the Parties agree that the Punch List shall include all Works for which Time Extension has been
granted and shall also include any minor outstanding items of work forming part of the completed
Sections if such works do not materially affect the use of the completed Sections for their intended
purpose. The Parties further agree that Provisional Certificate shall not be issued if the completed
Works can not be safely and reliably placed in service of the Users thereof.

12.2.2 Upon issue of Provisional Certificate, the provisions of Articles 14 and 17 shall apply to the
completed parts of the Project Highway and the property and ownership of all such completed
Works shall vest in the Authority.
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12.2.3 If the Authority’s Engineer determines that the Project Highway or any completed part thereof does
not conform to the provisions of this Agreement and cannot be safely and reliably placed in
operation, it shall forthwith make a report in this behalf and send copies thereof to the Authority
and the Contractor and withhold issuance of the Provisional Certificate until the Defects or
deficiencies are rectified by the Contractor and Tests are successful in accordance with this Article
12.

12.2.4 Notwithstanding anything to the contrary contained in Clause 12.2.3, the Authority may, at any
time after receiving a report from the Authority’s Engineer under that Clause, direct the Authority’s
Engineer to issue a Provisional Certificate under Clause 12.2.1 and such direction shall be complied
forthwith.

12.2.5 No Provisional Certificate shall be issued under the provisions of this Clause 12.2 until the
Contractor has submitted valid claims for payment of at least 80% (eighty per cent) of the amount
arrived at after reducing the lump sum price specified in Clause 19.1.1 by the amount attributable to
works which have been withdrawn under the provisions of Clause 8.3.3. For the avoidance of doubt
and by way of illustration, the Parties agree that if the Contract Price specified in Clause 19.1.1 is
Rs. 105 cr. (Rs. one hundred and five crore) and the works withdrawn under Clause 8.3.3 have a
value of Rs. 5 cr. (Rs. five crore), a Provisional Certificate shall not be issued until valid claims for
payment of an amount of Rs. 80 cr. (Rs. eighty crore) have been submitted by the Contractor in
accordance with the provisions of this Agreement. It is further agreed that all price adjustments
made in pursuance of Clause 19.10 shall not be reckoned for computation of the claims for
payments referred to in this Clause 12.2.5.

12.3 Completion of remaining Works

All items in the Punch List shall be completed by the Contractor in accordance with the provisions
of this Agreement. For any delay in their completion other than for the reasons solely attributable to
the Authority or due to Force Majeure, the Authority shall be entitled to recover Damages from the
Contractor in accordance with the provisions of Clause 10.3.2 of this Agreement.

12.4 Completion Certificate

12.4.1 Upon completion of all Works, including the items specified in the Punch List, and the Authority’s
Engineer determining the Tests to be successful, it shall forthwith issue to the Contractor and the
Authority a certificate substantially in the form set forth in Schedule-L (the “Completion
Certificate”).

12.4.2 Upon receiving the Completion Certificate, the Contractor shall remove its equipment, materials,
debris and temporary works from the Site within a period of 30 (thirty) days thereof, failing which
the Authority may remove or cause to be removed, such equipment, materials, debris and
temporary works and recover from the Contractor an amount equal to 120% (one hundred and
twenty per cent) of the actual cost of removal incurred by the Authority.

12.4.3 Without prejudice to the obligations of the Contractor specified in Articles 14 and 17, the property
and ownership of all the completed Works forming part of the Project Highway shall vest in the
Authority.

12.5 Rescheduling of Tests

If the Authority’s Engineer certifies to the Authority and the Contractor that it is unable to issue the
Completion Certificate or Provisional Certificate, as the case may be, because of events or
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circumstances on account of which the Tests could not be held or had to be suspended, the
Contractor shall be entitled to re-schedule the Tests and hold the same as soon as reasonably
practicable.

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 ARTICLE 13

CHANGE OF SCOPE

13.1 Change of Scope

13.1.1 The Authority may, notwithstanding anything to the contrary contained in this Agreement, require
the Contractor to make modifications/alterations to the Works (“Change of Scope”) before the
issue of the Completion Certificate either by giving an instruction or by requesting the Contractor
to submit a proposal for Change of Scope involving additional cost or reduction in cost. Any such
Change of Scope shall be made and valued in accordance with the provisions of this Article 13.

13.1.2 Change of Scope shall mean:

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

(b) omission of any work from the Scope of the Project except under Clause 8.3.3; provided
that, subject to Clause 13.5, the Authority shall not omit any work under this Clause in
order to get it executed by any other authority; and / or

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

13.1.3 If the Contractor determines at any time that a Change of Scope will, if adopted, (i) accelerate
completion, (ii) reduce the cost to the Authority of executing, maintaining or operating the Project
Highway, (iii) improve the efficiency or value to the Authority of the completed Project Highway,
or (iv) otherwise be of benefit to the Authority, it shall prepare a proposal with relevant details at its
own cost. The Contractor shall submit such proposal, supported with the relevant details and the
amount of reduction in the Contract Price to the Authority to consider such Change of Scope. The
Authority shall, within 15 (fifteen) days of receipt of such proposal, either accept such Change of
Scope with modifications, if any, and initiate proceedings therefor in accordance with this Article
13 or reject the proposal and inform the Contractor of its decision. 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.

13.2 Procedure for Change of Scope

13.2.1 In the event of the Authority determining that a Change of Scope is necessary, it may direct the
Authority’s Engineer to issue to the Contractor a notice specifying in reasonable detail the works
and services contemplated thereunder (the “Change of Scope Notice”).

13.2.2 Upon receipt of a Change of Scope Notice, the Contractor shall, with due diligence, provide to the
Authority and the Authority’s Engineer such information as is necessary, together with preliminary
documentation in support of:

(a) the impact, if any, which the Change of Scope is likely to have on the Project Completion
Schedule if the works or services are required to be carried out during the Construction
Period; and

(b) the options for implementing the proposed Change of Scope and the effect, if any, each
such option would have on the costs and time thereof, including the following details:

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 (i) break down of the quantities, unit rates and cost for different items of work;

(ii) proposed design for the Change of Scope; and

(iii) proposed modifications, if any, to the Project Completion Schedule of the Project
Highway.

For the avoidance of doubt, the Parties expressly agree that, subject to the provisions of Clause
13.4.2, the Contract Price shall be increased or decreased, as the case may be, on account of
Change of Scope.

13.2.3 The Contractor’s quotation of costs for the Change of Scope shall be determined on the following
principles:

(a) For works where Schedule of Rates (SOR) of concerned circle of State’s Public Works
Department are available shall be applicable for determination of costs. In case of non-
availability of current SOR, the available Schedule of Rates shall be applied by updating
the same based on WPI.

(b) For works not similar in nature to the Works being executed, the cost of work shall be
derived on the basis of MORTH Standard Data Book and the applicable schedule of rates
for the relevant circle, as published by the respective State Government, and such rates
shall be indexed with reference to the WPI once every year, with the base being the month
and year of the publication of the said schedule of rates; provided, however, that for any
item not included in the schedule of rates, the prevailing market rates as determined by the
Authority’s Engineer shall apply, 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.

13.2.4 Upon reaching an agreement, the Authority shall issue an order (the “Change of Scope Order”)
requiring the Contractor to proceed with the performance thereof. In the event that the Parties are
unable to agree, the Authority may:

(a) issue a Change of Scope Order requiring the Contractor to proceed with the performance
thereof at the rates and conditions approved by the Authority till the matter is resolved in
accordance with Article 26; or

(b) proceed in accordance with Clause 13.5.

13.2.5 The provisions of this Agreement, insofar as they relate to Works and Tests, shall apply mutatis
mutandis to the works undertaken by the Contractor under this Article 13.

13.3 Payment for Change of Scope

Payment for Change of Scope shall be made in accordance with the payment schedule specified in
the Change of Scope Order.

13.4 Restrictions on Change of Scope

13.4.1 No Change of Scope shall be executed unless the Authority has issued the Change of Scope Order
save and except any Works necessary for meeting any Emergency.

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13.4.2 Unless the Parties mutually agree to the contrary, the total value of all Change of Scope Orders
shall not exceed 10 (ten) per cent of the Contract Price.

13.4.3 Notwithstanding anything to the contrary in this Article 13, no change made necessary because of
any default of the Contractor in the performance of its obligations under this Agreement shall be
deemed to be Change of Scope, and shall not result in any adjustment of the Contract Price or the
Project Completion Schedule.

13.5 Power of the Authority to undertake works

13.5.1 In the event the Parties are unable to agree to the proposed Change of Scope Orders in accordance
with Clause 13.2, the Authority may, after giving notice to the Contractor and considering its reply
thereto, award such works or services to any person on the basis of open competitive bidding from
amongst bidders who are pre-qualified for undertaking the additional work; provided that the
Contractor shall have the option of matching the first ranked bid in terms of the selection criteria,
subject to payment of 2% (two per cent) of the bid amount to the Authority$, and thereupon
securing the award of such works or services. For the avoidance of doubt, it is agreed that the
Contractor shall be entitled to exercise such option only if it has participated in the bidding process
and its bid does not exceed the first ranked bid by more than 10% (ten percent) thereof. It is also
agreed that the Contractor shall provide assistance and cooperation to the person who undertakes
the works or services hereunder, but shall not be responsible for rectification of any Defects and/ or
maintenance of works carried out by other agencies.

13.5.2 The works undertaken in accordance with this Clause 13.5 shall conform to the Specifications and
Standards and shall be carried out in a manner that minimises the disruption in operation of the
Project Highway. The provisions of this Agreement, insofar as they relate to Works and Tests, shall
apply mutatis mutandis to the works carried out under this Clause 13.5.

$
The Authority shall transfer 75% (seventy five percent) of the amount so received to the first ranked
bidder whose bid shall have been matched by the Contractor.

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 ARTICLE 14

MAINTENANCE

14.1 Maintenance obligations of the Contractor

14.1.1 The Contractor shall maintain the Project Highway for a period of [4 (four) years] commencing
from the date of the Provisional Certificate (the “Maintenance Period”). For the performance of
its Maintenance obligations, the Contractor shall be paid a total amount equal to 1.5% (one and
one-half per cent) of the Contract Price for the first year of maintenance, and 2% (two per cent) of
the Contract Price for the second year, third year and fourth year of maintenance, 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.
For the avoidance of doubt, it is agreed that in the event no Provisional Certificate is issued, the
Maintenance Period shall commence from the date of the Completion Certificate. It is further
agreed that the Contract Price hereunder shall be reckoned with reference to the amount specified
in Clause 19.1.1, which shall be adjusted to the extent of Change of Scope and the works
withdrawn under the provisions of Clause 8.3.3, but shall not include any price adjustments in
pursuance of Clause 19.10.

14.1.2 During the Maintenance Period, the Authority shall provide to the Contractor access to the Site for
Maintenance in accordance with this Agreement. The obligations of the Contractor hereunder shall
include:

(a) permitting safe, smooth and uninterrupted flow of traffic on the Project Highway;

(b) undertaking routine maintenance including prompt repairs of potholes, cracks, joints,
drains, embankments, structures, pavement markings, lighting, road signs and other traffic
control devices;

(c) undertaking repairs to structures;

(d) informing the Authority of any unauthorised use of the Project Highway;

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

(f) operation and maintenance of all communication, patrolling, and administrative systems
necessary for the efficient maintenance of the Project Highway in accordance with the
provisions of this Agreement.
14.1.3 In respect of any Defect or deficiency not specified in Schedule-E, the Contractor shall, at its own
cost, undertake repair or rectification in accordance with Good Industry Practice, save and except to
the extent that such Defect or deficiency shall have arisen on account of any default or neglect of
the Authority or a Force Majeure Event.
14.1.4 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
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 Requirements”).

14.3 Maintenance Programme

14.3.1 The Contractor shall prepare a monthly maintenance programme (the Maintenance Programme”)
in consultation with the Authority’s Engineer and submit the same to the Authority’s Engineer not
later than 10 (ten) days prior to the commencement of the month in which the Maintenance is to be
carried out. For this purpose a joint monthly inspection by the Contractor and the Authority’s
Engineer shall be undertaken. The Maintenance Programme shall contain the following:

(a) The condition of the road in the format prescribed by the Authority’s Engineer;

(b) the proposed maintenance works; and

(c) deployment of resources for maintenance works.

** Safety, vehicle breakdowns and accidents

14.4.1 The Contractor shall ensure safe conditions for the Users, and in the event of unsafe conditions,
lane closures, diversions, vehicle breakdowns and accidents, it shall follow the relevant operating
procedures for removal of obstruction and debris without delay. Such procedures shall conform to
the provisions of this Agreement, Applicable Laws, Applicable Permits and Good Industry
Practice.

14.4.2 The Contractor shall maintain and operate a round-the-clock vehicle rescue post with one mobile
crane having the capacity to lift a truck with a Gross Vehicle Weight of 30,000 (thirty thousand)
kilograms; and such post shall be located at ****. The Contractor shall promptly remove any
damaged vehicles and debris from the Project Highway to enable safe movement of traffic and shall
report all accidents to the police forthwith.

14.5 Lane closure

14.5.1The Contractor shall not close any lane of the Project Highway for undertaking maintenance works
except with the prior written approval of the Authority’s Engineer. Such approval shall be sought
by the Contractor through a written request to be made at least 10 (ten) days before the proposed
closure of lane and shall be accompanied by particulars thereof. Within 5 (five) business days of
receiving such request, the Authority’s Engineer shall grant permission with such modifications as
it may deem necessary and a copy of such permission shall be sent to the Authority.

14.5.2 Upon receiving the permission pursuant to Clause 14.5.1, the Contractor shall be entitled to close
the designated lane for the period specified therein, and in the event of any delay in re-opening such
lane, the Contractor shall, for every stretch of 250 (two hundred and fifty) metres, or part thereof,
pay Damages to the Authority calculated at the rate of 0.1% (zero point one per cent) of the
monthly maintenance payment for each day of delay until the lane has been re-opened for traffic.

14.6 Reduction of payment for non-performance of Maintenance obligations

14.6.1 In the event that the Contractor fails to repair or rectify any Defect or deficiency set forth in
Schedule-E within the period specified therein, it shall be deemed as failure of performance of
Maintenance obligations by the Contractor and the Authority shall be entitled to effect reduction in
monthly lump sum payment for maintenance in accordance with Clause 19.7 and Schedule-M,
without prejudice to the rights of the Authority under this Agreement, including Termination
thereof.

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14.6.2 If the nature and extent of any Defect justifies more time for its repair or rectification than the time
specified in Schedule-E, the Contractor shall be entitled to additional time in conformity with Good
Industry Practice. Such additional time shall be determined by the Authority’s Engineer and
conveyed to the Contractor and the Authority with reasons thereof.
14.7 Authority’s right to take remedial measures
In the event the Contractor does not maintain and/or repair the Project 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
14.9.1 If in the reasonable opinion of the Authority, the Contractor is in material breach of its obligations
under this Agreement and, in particular, the Maintenance Requirements, and such breach is causing
or likely to cause material hardship or danger to the Users and pedestrians, the Authority may,
without prejudice to any of its rights under this Agreement including Termination thereof, by notice
require the Contractor to take reasonable measures immediately for rectifying or removing such
hardship or danger, as the case may be.

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

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 ARTICLE 15

SUPERVISION AND MONITORING DURING MAINTENANCE

15.1 Inspection by the Contractor

15.1.1 The Authority’s Engineer shall undertake regular inspections to evaluate continuously the
compliance with the Maintenance Requirements.

15.1.2 The Contractor shall carry out a detailed pre-monsoon inspection of all bridges, culverts and
drainage system in accordance with the guidelines contained in IRC: SP35. Report of this
inspection together with details of proposed maintenance works as required shall be conveyed to
the Authority’s Engineer forthwith. The Contractor shall complete the proposed maintenance works
before the onset of the monsoon and send a compliance report to the Authority’s Engineer. Post
monsoon inspection shall be undertaken by the Contractor and the inspection report together with
details of any damages observed and proposed action to remedy the same shall be conveyed to the
Authority’s Engineer forthwith.

15.2 Inspection and payments

15.2.1 The Authority’s Engineer may inspect the Project Highway at any time, but at least once every
month, to ensure compliance with the Maintenance Requirements. It shall make a report of such
inspection (“Maintenance Inspection Report”) stating in reasonable detail the Defects or
deficiencies, if any, with particular reference to the Maintenance Requirements, the Maintenance
Manual, and the Maintenance Programme, and send a copy thereof to the Authority and the
Contractor within 10 (ten) days of such inspection.

15.2.2 After the Contractor submits to the Authority’s Engineer the Monthly Maintenance Statement for
the Project Highway pursuant to Clause 19.6, the Authority’s Engineer shall carry out an inspection
within 10 (ten) days to certify the amount payable to the Contractor. The Authority’s Engineer shall
inform the Contractor of its intention to carry out the inspection at least 3 (three) business days in
advance of such inspection. The Contractor shall assist the Authority’s Engineer in verifying
compliance with the Maintenance Requirements.

15.2.3 For each case of non-compliance of Maintenance Requirements as specified in the inspection report
of the Authority’s Engineer, the Authority’s Engineer shall calculate the amount of reduction in
payment in accordance with the formula specified in Schedule-M.

15.2.4 Any deduction made on account of non-compliance will not be paid subsequently even after
establishing the compliance thereof. Such deductions will continue to be made every month until
the compliance is procured.
15.3 Tests

For determining that the Project 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’s Engineer.

15.4 Reports of unusual occurrence

The Contractor shall, during the Maintenance Period, prior to the close of each day, send to the
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Authority and the Authority’s Engineer, by facsimile or e-mail, a report stating accidents and
unusual occurrences on the Project Highway relating to the safety and security of the Users and
Project Highway. A monthly summary of such reports shall also be sent within 3 (three) business
days of the closing of month. For the purposes of this Clause 15.4, accidents and unusual
occurrences on the Project Highway shall include:

(a) accident, death or severe injury to any person;

(b) damaged or dislodged fixed equipment;

(c) flooding of Project Highway; and

(d) any other unusual occurrence.

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 ARTICLE 16

TRAFFIC REGULATION

16.1 Traffic regulation by the Contractor

16.1.1 The Contractor shall take all the required measures and make arrangements for the safety of Users
during the construction and maintenance of the Project 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.

16.1.2 All works shall be carried out in a manner creating least interference to traffic passing through the
Project Highway or a Section thereof. In stretches where construction or maintenance works on the
carriageway are taken up, the Contractor shall ensure that proper passage is provided for the traffic.
Where it is not possible or safe to allow traffic on part width of the carriageway, a temporary
diversion of proper specifications shall be constructed by the Contractor at its own cost. The
Contractor shall take prior approval of the Authority’s Engineer for any proposed arrangement for
traffic regulation during Construction and Maintenance, which approval shall not be unreasonably
withheld.

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 ARTICLE 17

DEFECTS LIABILITY

17.1 Defects Liability Period

17.1.1 The Contractor shall be responsible for all the Defects and deficiencies, except usual wear and tear
in the Project Highway or any Section thereof, till the expiry of a period of 4 (four) years
commencing from the date of Provisional Certificate (the “Defects Liability Period”). Provided
that the Defects Liability Period shall in no case be less than 42 (forty two) months from
the date of Completion Certificate for and in respect of works for which Time Extension
was granted. Provided further that in the event no Provisional Certificate is issued, the Defects
Liability Period shall commence from the date of the Completion Certificate. For the avoidance of
doubt, any repairs or restoration on account 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.

17.1.2 Deleted.

17.2 Remedying Defects

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

17.3 Cost of remedying Defects

For the avoidance of doubt, any repair or rectification undertaken in accordance with the provisions
of Clause 17.2, including any additional testing, shall be carried out by the Contractor at its own
risk and cost, to the extent that such rectification or repair is attributable to:

(a) the design of the Project;

(b) Plant, Materials or workmanship not being in accordance with this Agreement and the
Specifications and Standards;

(c) improper maintenance during construction of the Project Highway by the Contractor; and/
or

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

17.4 Contractor’s failure to rectify Defects

In the event that the Contractor fails to repair or rectify such Defect or deficiency within the period
specified in Clause 17.2, the Authority shall be entitled to get the same repaired, rectified or
remedied at the Contractor’s cost so as to make the Project Highway conform to the Specifications
and Standards and the provisions of this Agreement. All costs consequent thereon shall, after due
consultation with the Authority and the Contractor, be determined by the Authority’s Engineer. The
cost so determined and an amount equal to twenty percent of the cost as Damages shall be
recoverable by the Authority from the Contractor and may be deducted by the Authority from any
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 monies due to the Contractor.

17.5 Contractor to search cause

17.5.1 The Authority’s Engineer may instruct the Contractor to examine the cause of any Defect in the
Works or part thereof before the expiry of the Defects Liability Period.

17.5.2 In the event any Defect identified under Clause 17.5.1 is attributable to the Contractor, the
Contractor shall rectify such Defect within the period specified by the Authority’s Engineer, and
shall bear the cost of the examination and rectification of such Defect.

17.5.3 In the event such Defect is not attributable to the Contractor, the Authority’s Engineer shall, after
due consultation with the Authority and the Contractor, determine the costs incurred by the
Contractor on such examination and notify the same to the Contractor, with a copy to the Authority,
and the Contractor shall be entitled to payment of such costs by the Authority.

17.6. Extension of Defects Liability Period

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

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 ARTICLE 18

AUTHORITY’S ENGINEER

18.1 Appointment of the Authority’s Engineer

8. The Authority shall appoint a consulting engineering firm substantially in accordance with the
selection criteria set forth in Schedule-N, to be the engineer under this Agreement (the
“Authority’s Engineer”).

9. The appointment of the Authority’s Engineer shall be made no later than 15 (fifteen) days from the
date of this Agreement. The Authority shall notify the appointment or replacement of the
Authority’s Engineer to the Contractor.

10. The staff of the Authority’s Engineer shall include suitably qualified engineers and other
professionals who are competent to assist the Authority’s Engineer to carry out its duties.

18.2 Duties and authority of the Authority’s Engineer

(d) 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 Annex 1 of Schedule N, but subject to obtaining prior
written approval of the Authority before determining:

(d) any Time Extension;

(e) any additional cost to be paid by the Authority to the Contractor;

(f) the Termination Payment; or

(g) any other matter which is not specified in (a), (b) or (c) above and which creates an
obligation or liability on either Party for a sum exceeding Rs. 5,000,000 (Rs. fifty lakh).

(e) No decision or communication of the Authority’s Engineer shall be effective or valid unless it is
accompanied by an attested true copy of the approval of the Authority for and in respect of any
matter specified in Clause 18.2.1.

(f) The Authority’s Engineer shall submit regular periodic reports, at least once every month, to the
Authority in respect of its duties and functions under this Agreement. Such reports shall be
submitted by the Authority’s Engineer within 10 (ten) days of the beginning of every month. For
the avoidance of doubt, the Authority’s Engineer shall include in its report, compliance of the
recommendations of the Safety Consultant.

18.3 Delegation by the Authority’s Engineer

18.3.1 The Authority’s Engineer may, by order in writing, delegate any of his duties and responsibilities to
suitably qualified and experienced personnel who are accountable to Authority’s Engineer, or may
revoke any such delegation, under intimation to the Authority and the Contractor. Provided,
however, that the Authority’s Engineer shall be responsible and liable for all actions and omissions
of such personnel.

18.3.2 Any failure of the Authority’s Engineer to disapprove any work, Plant or Materials shall not
133
 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.

18.3.3 Notwithstanding anything stated in Clause 18.3.1 above, the Authority’s Engineer shall not
delegate the authority to refer any matter for the Authority’s prior approval wherever required in
accordance with the provisions of Clause 18.2.

18.4 Instructions of the Authority’s Engineer

18.4.1 The Authority’s Engineer may issue to the Contractor instructions for remedying any Defect. The
Contractor shall take such instructions from the Authority’s Engineer, or from an assistant to whom
appropriate authority has been delegated under Clause 18.3.

18.4.2 The instructions issued by the Authority’s Engineer shall be in writing. However, if the Authority’s
Engineer issues any oral instructions to the Contractor, it shall confirm in writing the oral
instructions within 2 (two) working days of issuing them.

18.4.3 In case the Contractor does not receive the confirmation of the oral instruction within the time
specified in Clause 18.4.2, the Contractor shall seek the written confirmation of the oral
instructions from the Authority’s Engineer. The Contractor shall obtain acknowledgement from the
Authority’s Engineer of the communication seeking written confirmation. In case of failure of the
Authority’s Engineer or its delegated assistant to reply to the Contractor within 2 (two) days of the
receipt of the communication from the Contractor, the Contractor may not carry out the instruction.

18.4.4 In case of any dispute on any of the instructions issued by the delegated assistant, the Contractor
may refer the dispute to the Authority’s Engineer, who shall then confirm, reverse or vary the
instructions within [3 (three)] business days of the dispute being referred.

3. Determination by the Authority’s Engineer

18.5.1 The Authority’s Engineer shall consult with each Party in an endeavour to reach agreement
wherever this Agreement provides for the determination of any matter by the Authority’s Engineer.
If such agreement is not achieved, the Authority’s Engineer shall make a fair determination in
accordance with this Agreement having due regard to all relevant circumstances. The Authority’s
Engineer shall give notice to both the Parties of each agreement or determination, with supporting
particulars.

18.5.2 Each Party shall give effect to each agreement or determination made by the Authority’s Engineer
in accordance with the provisions of this Agreement. Provided, however, that if any Party disputes
any instruction, decision, direction or determination of the Authority’s Engineer, the Dispute shall
be resolved in accordance with the Dispute Resolution Procedure.

18.6 Remuneration of the Authority’s Engineer

The remuneration, cost and expenses of the Authority’s Engineer shall be paid by the Authority.

18.7 Termination of the Authority’s Engineer

18.7.1 The Authority may, in its discretion, replace the Authority’s Engineer at any time, but only after
appointment of another Authority’s Engineer in accordance with Clause 18.1.

18.7.2 If the Contractor has reasons to believe that the Authority’s Engineer is not discharging its duties
and functions in accordance with the provisions of this Agreement, it may make a written
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representation to the Authority and seek termination of the appointment of the Authority’s
Engineer. Upon receipt of such representation, the Authority shall hold a tripartite meeting with the
Contractor and Authority’s Engineer and make best efforts for an amicable resolution of the
representation. In the event that the appointment of the Authority’s Engineer is terminated
hereunder, the Authority shall appoint forthwith another Authority’s Engineer in accordance with
Clause 18.1.

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 Part IV

Financial Covenants

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 ARTICLE 19

PAYMENTS

19.1 Contract Price

19.1.1 The Authority shall make payments to the Contractor for the Works on the basis of the lump sum
price accepted by the Authority in consideration of the obligations specified in this Agreement for
an amount of Rs. … … … … (Rs. … … … … … … … …) (the “Contract Price”), which shall be
subject to adjustments in accordance with the provisions of this Agreement. For the avoidance of
doubt, the Parties expressly agree that the Contract Price shall not include the cost of Maintenance
which shall be paid separately in accordance with the provisions of Clause 19.7. The Parties further
agree that save and except as provided in this Agreement, the Contract Price shall be valid and
effective until issue of Completion Certificate.

19.1.2 The Contract Price includes all duties, taxes, royalty, and fees that may be levied in accordance
with the laws and regulations in force as on the Base Date on the Contractor's equipment, Plant,
Materials and supplies acquired for the purpose of this Agreement and on the services performed
under this Agreement. Nothing in this Agreement shall relieve the Contractor from its
responsibility to pay any tax including any tax that may be levied in India on profits made by it in
respect of this Agreement.

19.1.3 The Contract Price shall not be adjusted for any change in costs stated in Clause 19.1.2 above,
except as stated in Clauses 19.10 and 19.17.

19.1.4 The Contract Price shall not be adjusted to take account of any unforeseen difficulties or costs,
unless otherwise provided for in this Agreement.

19.1.5 Unless otherwise stated in this Agreement, the Contract Price covers all the Contractor’s
obligations for the Works under this Agreement and all things necessary for the Construction and
the remedying of any Defects in the Project Highway.

19.1.6 All payments under this Agreement shall be made in Indian Rupees.

19.2 Advance Payment

19.2.1 The Authority shall make an interest-free advance payment (the “Advance Payment”), equal in
amount to 10 (ten) percent of the Contract Price, for mobilisation expenses and for acquisition of
equipment. The Advance Payment shall be made in three instalments. The first instalment shall be
an amount equal to 2% (two percent) of the Contract Price, the second instalment shall be equal to
3% (three percent) of the Contract Price, and the third instalment shall be equal to 5% (five percent)
of the Contract Price.

19.2.2 The Contractor may apply to the Authority for the first instalment of the Advance Payment at any
time after the Appointed Date, along with an irrevocable and unconditional guarantee from a Bank
for an amount equivalent to 110% (one hundred and ten per cent) of such instalment, substantially
in the form provided at Annex-III of Schedule-G, to remain effective till the complete and full
repayment thereof.

19.2.3 At any time after 30 (thirty) days from the Appointed Date, the Contractor may apply for the
second instalment of the Advance Payment along with an irrevocable and unconditional guarantee
from a Bank for an amount equivalent to 110% (one hundred and ten per cent) of such instalment,
substantially in the form provided at Annex-III of Schedule-G, to remain effective till the complete
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 and full repayment thereof.

19.2.4 At any time, after 60 (sixty) days from the Appointed Date, the Contractor may apply to the
Authority for the third instalment of the Advance Payment along with an irrevocable and
unconditional guarantee from a Bank for an amount equivalent to 110% (one hundred and ten per
cent) of such instalment, substantially in the form provided at Annex-III of Schedule-G, to remain
effective till the complete and full repayment thereof.

19.2.5 The first, second and the third instalments shall be paid by the Authority to the Contractor within
15 (fifteen) days of the receipt of its respective requests in accordance with the provisions of this
Clause 19.2.

19.2.6 Each instalment of Advance Payment shall be repaid by the Contractor to the Authority no later
than 365 (three hundred and sixty five) days from the respective date of Advance Payment.

19.2.7 The Contractor shall repay each instalment of the Advance Payment on or before the due date of
repayment. In the event of the Contractor’s failure to make the repayment on time, the Authority
shall be entitled to encash the Bank guarantee for Advance Payment. The Parties expressly agree
that for any delay in repayment of the Advance Payment, the Contractor shall pay interest to the
Authority for each day of delay, such interest to be calculated at the rate of 18% (eighteen per cent)
per annum.

19.2.8 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
19.2.7, in the event of Termination for Contractor Default, the Advance Payment shall be deemed
to carry interest at the rate of 10% (ten per cent) per annum from the date of Advance Payment to
the date of recovery by encashment of the Bank Guarantee for the Advance Payment. For the
avoidance of doubt, the aforesaid interest shall be payable on each instalment of the Advance
Payment, regardless of whether the instalment or any part thereof has been repaid to the Authority
prior to Termination.
19.3 Procedure for estimating the payment for the Works

19.3.1 The Authority shall make interim payments to the Contractor as certified by the Authority’s
Engineer on completion of a stage, in a length, number or area as specified, and valued in
accordance with the proportion of the Contract Price assigned to each item and its stage in
Schedule-H.

19.3.2 The Contractor shall base its claim for interim payment for the stages completed till the end of the
month for which the payment is claimed, valued in accordance with Clause 19.3.1, supported with
necessary particulars and documents in accordance with this Agreement.

19.3.3 Any reduction in the Contract Price arising out of Change of Scope or the works withdrawn under
Clause 8.3 shall not affect the amounts payable for the items or stage payments thereof which are
not affected by such Change of Scope or withdrawal. For avoidance of doubt and by way of
illustration, the Parties agree that if the amount assigned to Major Bridges is reduced from Rs. 100
crore to Rs. 80 crore owing to Change of Scope or withdrawal of work, the reduction in payment
shall be restricted to relevant payments for Major Bridges only and the payment due in respect of
all other stage payments under the item Major Bridges shall not be affected in any manner. The
Parties further agree that the adjustments arising out of the aforesaid modifications shall be carried
out in a manner that the impact of such modifications is restricted to the said Change of Scope or
withdrawal, as the case may be, and does not alter the payments due for and in respect of items or
stage payments which do not form part of such Change of Scope or withdrawal.

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19.4 Stage Payment Statement for Works

The Contractor shall submit a statement (the “Stage Payment Statement”), in 3 copies, by the 7th
(seventh) day of the month to the Authority’s Engineer in the form set forth in Schedule-O,
showing the amount calculated in accordance with Clause 19.3 to which the Contractor considers
himself entitled for completed stage(s) of the Works. The Stage Payment Statement shall be
accompanied with the progress reports and any other supporting documents. The Contractor shall
not submit any claim for payment of incomplete stages of work.

19.5 Stage Payment for Works

19.5.1 Within 10 (ten) days of receipt of the Stage Payment Statement from the Contractor pursuant to
Clause 19.4, the Authority’s Engineer shall broadly determine the amount due to the Contractor and
recommend the release of 90 (ninety) percent of the amount so determined as part payment against
the Stage Payment Statement, pending issue of the Interim Payment Certificate by the Authority’s
Engineer. Within 10 (ten) days of the receipt of recommendation of the Authority’s Engineer, the
Authority shall make electronic payment directly to the Contractor’s bank account.

19.5.2 Within 15 (fifteen) days of the receipt of the Stage Payment Statement referred to in Clause 19.4,
the Authority’s Engineer shall determine and shall deliver to the Authority and the Contractor an
IPC certifying the amount due and payable to the Contractor, after adjusting the payments already
released to the Contractor against the said statement. For the avoidance of doubt, the Parties agree
that the IPC shall specify all the amounts that have been deducted from the Stage Payment
Statement and the reasons therefor.

19.5.3 In cases where there is a difference of opinion as to the value of any stage, the Authority’s
Engineer’s view shall prevail and interim payments shall be made to the Contractor on this basis;
provided that the foregoing shall be without prejudice to the Contractor’s right to raise a Dispute.

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

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

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

19.5.5 Payment by the Authority shall not be deemed to indicate the Authority's acceptance, approval,
consent or satisfaction with the work done.

19.6 Monthly Maintenance Statement of the Project Highway

19.6.1 The Contractor shall submit to the Authority’s Engineer a monthly maintenance statement
(“Monthly Maintenance Statement”) in 3 (three) copies by the 7th (seventh) day of each month in
the format set forth in Schedule-O for the Maintenance of the Project Highway during the previous
month.

19.6.2 The monthly lump sum amount payable for Maintenance shall be 1/12th (one-twelfth) of the annual
cost of Maintenance as specified in Clause 14.1.1.

19.7 Payment for Maintenance of the Project Highway

19.7.1 Within 15 (fifteen) days of receipt of the Monthly Maintenance Statement from the Contractor
139
 pursuant to Clause 19.6, the Authority’s Engineer shall verify the Contractor’s monthly
maintenance statement and certify the amount to be paid to the Contractor taking into account:

(a) Compliance with the Maintenance Requirements; and

(b) reduction for non-compliance with the Maintenance Requirement in accordance with
Clause 19.7.2.

The Authority’s Engineer shall deliver to the Authority an IPC approving or amending the monthly
maintenance statement to reflect the amount due to the Contractor in accordance with this
Agreement.

19.7.2 Maintenance shall be measured in units of one kilometer each; provided, however, that payment
thereof shall be made in fixed monthly amounts in accordance with this Agreement. If the
Maintenance Requirements set forth in Schedule-E are not met, reduction in payments shall be
made in accordance with the provisions of Schedule-M. The reductions for non-compliance with
the Maintenance Requirements shall be applied on the basis of monthly inspections by the
Authority’s Engineer.

19.7.3 The deduction made on account of non-compliance with the Maintenance Requirements shall not
be subsequently considered for payment after the compliance is achieved by repair or rectification.

19.7.4 The Authority shall pay to the Contractor every quarter any amount due under any IPC under this
Clause 19.7. The payment shall be made no later than 30 (thirty) days from the date of submission
of the last IPC for the relevant quarter.

19.8 Payment of Damages

19.8.1 The Contractor may claim Damages due and payable to it in accordance with the provisions of this
Agreement.

19.8.2 The Authority’s Engineer shall issue the IPC within 15 (fifteen) days of the receipt of the claim
under Clause 19.8.1, after making adjustments in accordance with the provisions of this
Agreement. The Authority shall pay to the Contractor the amount due under any IPC within a
period of 30 (thirty) days from the date of the submission of the claim under this Clause 19.8. In the
event of the failure of the Authority to make payment to the Contractor within the specified time,
the Authority shall be liable to pay to the Contractor interest thereon and the provisions of Clause
19.9 shall apply mutatis mutandis thereto.

19.9 Time of payment and interest

19.9.1 The Authority shall pay to the Contractor any amount due under any payment certificate issued by
the Authority’s Engineer in accordance with the provisions of this Article 19, or in accordance with
any other clause of this Agreement as follows:

(a) payment shall be made no later than 30 (thirty) days from the date of submission of the
Stage Payment Statement by the Contractor to the Authority’s Engineer for certification in
accordance with the provisions of Clause 19.4 for an IPC; provided that, in the event the
IPC is not issued by the Authority’s Engineer within the aforesaid period of 30 (thirty)
days, the Authority shall pay the amount shown in the Contractor’s Stage Payment
Statement and any discrepancy therein shall be added to, or deducted from, the next
payment certificate issued to the Contractor; and

(b) payment shall be made no later than 30 (thirty) days from the date of submission of the
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 Final Payment Certificate for Works along with the discharge submitted to the Authority’s
Engineer in accordance with the provisions of Clause 19.15 for certification.

19.9.2 In the event of the failure of the Authority to make payment to the Contractor within the time
period stated in this Clause 19.9, the Authority shall be liable to pay to the Contractor interest at the
Base Rate plus 2% (two percent), calculated at quarterly rests, on all sums remaining unpaid from
the date on which the same should have been paid, calculated in accordance with the provisions of
Clause 19.9.1(a) and (b) and till the date of actual payment.

19.10. Price adjustment for the Works

19.10.1 The amounts payable to the Contractor for Works shall be adjusted in accordance with the
provisions of this Clause 19.10.
19.10.2 Subject to the provisions of Clause 19.10.3, the amounts payable to the Contractor for Works,
shall be adjusted in the IPC issued by the Authority’s Engineer for the increase or decrease in the
index cost of inputs for the Works, by the addition or subtraction of the amounts determined by
the formulae prescribed in Clause 19.10.4.
19.10.3 To the extent that full compensation for any increase or decrease in costs to the Contractor is not
covered by the provisions of this or other Clauses in this Agreement, the costs and prices payable
under this Agreement shall be deemed to include the amounts required to cover the contingency of
such other increase or decrease of costs and prices.
19.10.4 The Contract Price shall be adjusted for increase or decrease in rates and price of labour, cement,
steel, Plant, machinery and spares, bitumen, fuel and lubricants, and other material inputs in
accordance with the principles, procedures and formulae specified below:
(a) Price adjustment shall be applied on completion of the specified stage of the respective
item of work in accordance with Schedule-H;
(b) Adjustment for each item of work/stage shall be made separately.
(c) The following expressions and meanings are assigned to the value of the work done:
RW= Value of work done for the completion of a stage under the following items of
Schedule-H:
(i) Road works; and
(ii) Other works
BR = Value of work done for the completion of a stage under the items Major Bridges and
Structures (Schedule-H)
(d) Price adjustment for changes in cost shall be paid in accordance with the following
formulae:
(i) VRW= 0.85 RW x [PL x (LI – LO)/LO + PA x (AI – AO)/AO
+ PF x (FI –FO)/FO + PB x (BI – BO)/BO + PM x (MI – MO)/MO + PC x
(CI – CO)/CO+ PS x (SI – SO)/SO]
(ii) VBR = 0.85 BR x [PL x (LI – LO)/LO + PA x (AI – AO)/AO
+ PF x (FI –FO)/FO + PM x (MI – MO)/MO+ PC x (CI – CO)/CO + PS x (SI
– SO)/SO ]
Where
VRW = Increase or decrease in the cost of road works/other works during the period under
consideration due to changes in the rates for relevant components as stated in sub-
paragraph (e)

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

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

PA is the percentage of Plant, machinery and spares component for the relevant item as stated in
sub-paragraph (e).

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

AO = The wholesale price index as published by the Ministry of Commerce & Industry,
Government of India (hereinafter called “WPI”) for construction machinery for the month
of the Base Date.

AI = The WPI for construction machinery for the month three months prior to the month to which
the IPC relates.

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

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

CO = The WPI for cement for the month of the Base Date.

CI = The WPI for 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 [Haryana] on the Base Date.

FI = The official retail price of HSD at the existing consumer pumps of IOC in the State of
[Haryana] on the first day of the month three months prior to the month to which the IPC
relates.

LO = The consumer price index for industrial workers for the [circle **** in the State of Uttar
Pradesh], published by Labour Bureau, Ministry of Labour, Government of India,
(hereinafter called “CPI”) for the month of the Base Date.

LI = The CPI for the month three months prior to the month to which the IPC relates.

MO = The WPI for all commodities for the month of the Base Date.

MI = The WPI for all commodities for the month three months prior to the month to which the IPC
relates.

SO = The WPI for steel (rods) for the month of the Base Date.

SI = The WPI for steel (rods) for the month three months prior to the month to which the IPC
relates.
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(e) The following percentages shall govern the price adjustment of the Contract Price:

Item

Road Works
Component Earthwork, Bitumin Cement Culverts, Major
Granular ous Concrete Bridges
work, and work Pavement minor and
Other works bridges and Structures
other
structures
Labour [20%] [20%] [20%] [15%] [15%]
(PL)

Cement [5%] Nil [20%] [15%] [15%]

(PC)

Steel Nil Nil Nil [15%] [20%]

(PS)

Bitumen Nil [15%] Nil Nil Nil

(PB)

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%

(f) In case an IPC relates to a month which is within 3 (three) months from the Base Date, no price
adjustment shall be applicable.

19.11 Restrictions on price adjustment

Price adjustment shall be due and payable only in respect of the stages of Works for which the Stage
Payment Statement has been submitted by the Contractor no later than 30 (thirty) days from the date
of the applicable Project Milestone or the Scheduled Completion Date, as the case may be, including
143
 any Time Extension granted therefor in accordance with the provisions of this Agreement. For the
avoidance of doubt, in the event of submission of any Stage Payment Statement after the period
specified herein, price adjustment shall be applicable until the date of the respective Project
Milestone or the Scheduled Completion Date, as the case may be.

19.12. Price adjustment for Maintenance of Project Highway

Lump sum payment for Maintenance shall be adjusted every quarter for changes in rates and prices
of various inputs in accordance with the formula given below:

V = P X (WI-WO)/WO

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

WO = The wholesale price index (all commodities) for the month of the Base Date.

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

19.13 Final Payment Statement

19.13.1 Within 60 (sixty) days after receiving the Completion Certificate under Clause 12.4, the Contractor
shall submit to the Authority’s Engineer for consideration six copies of a Final Payment Statement
(the “Final Payment Statement”) for Works, with supporting documents showing in detail, in the
form prescribed by the Authority’s Engineer:

(a) the summary of Contractor’s Stage Payment claims for Works as submitted in accordance
with Clause 19.4;

(b) the amounts received from the Authority against each claim; and

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

If the Authority’s Engineer disagrees with or cannot verify any part of the Final Payment
Statement, the Contractor shall submit such further information as the Authority’s Engineer may
reasonably require. The Authority’s Engineer shall deliver to the Authority:
(i) an IPC for those parts of the Final Payment Statement which are not in dispute, along with
a list of disputed items which shall then be settled in accordance with the provisions of
Article 26; or

(ii) a Final Payment Certificate in accordance with Clause 19.15 if there are no disputed items.

19.13.2 If the Authority’s Engineer does not prescribe the form referred to in Clause 19.13.1 within 15
(fifteen) 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
144
 to the Contractor in respect of this Agreement for all the Works arising out of this Agreement,
except for any monies due to either Party on account of any Defect. Provided that such discharge
shall become effective only after the payment due has been made in accordance with the Final
Payment Certificate issued pursuant to Clause 19.15.

19.15 Final Payment Certificate

19.15.1 Within 30 (thirty) days after receipt of the Final Payment Statement for Works under Clause
19.13, and the written discharge under Clause 19.14, and there being no disputed items of claim,
the Authority’s Engineer shall deliver to the Authority, with a copy to the Contractor, a final
payment certificate (the “Final Payment Certificate”) stating the amount which, in the opinion of
the Authority’s Engineer, is finally due under this Agreement or otherwise. For the avoidance of
doubt, before issuing the Final Payment Certificate, the Authority’s Engineer shall ascertain from
the Authority all amounts previously paid by the Authority and for all sums to which the Authority
is entitled, the balance, if any, due from the Authority to the Contractor or from the Contractor to
the Authority, as the case may be.

19.15.2 The Authority shall, in accordance with the provisions of Clause 19.9, pay to the Contractor the
amount which is stated as being finally due in the Final Payment Certificate.

19.16 Final payment statement for Maintenance

19.16.1 Within 30 (thirty) days after completion of the Maintenance Period, the Contractor shall submit to
the Authority’s Engineer six copies of the final payment statement for Maintenance of the Project
Highway, with supporting documents showing the details set forth below in the form prescribed by
the Authority’s Engineer :

(a) the total amount claimed in accordance with the monthly statement for Maintenance of
Project Highway;

(b) the amount paid in accordance with the Interim Payment Certificates; and

(c) any sums which the Contractor considers to be due to it, with supporting documents.

19.16.2 The Authority’s Engineer shall certify final payment within 30 (thirty) days of the receipt of the
final payment statement of Maintenance under Clause 19.16.1, segregating the items of amount
payable from the items of amount disallowed. The Authority shall make payment on the basis of
the final payment 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.

19.16.3 If the Authority’s Engineer does not prescribe the form within 15 (fifteen) days of the date of
issue of the Completion Certificate, the Contractor shall submit the statement in such form as it
deems fit.

19.17 Change in law

19.17.1 If as a result of Change in Law, the Contractor suffers any additional costs in the execution of the
Works or in relation to the performance of its other obligations under this Agreement, the
Contractor shall, within 15 (fifteen) days from the date it becomes reasonably aware of such
addition in cost, notify the Authority with a copy to the Authority’s Engineer of such additional
cost due to Change in Law.

19.17.2 If as a result of Change in Law, the Contractor benefits from any reduction in costs for the
execution of this Agreement or in accordance with the provisions of this Agreement, either Party
145
 shall, within 15 (fifteen) days from the date it becomes reasonably aware of such reduction in cost,
notify the other Party with a copy to the Authority’s Engineer of such reduction in cost due to
Change in Law.

19.17.3 The Authority’s Engineer shall, within 15 (fifteen) days from the date of receipt of the notice from
the Contractor or the Authority, determine any addition or reduction to the Contract Price, as the
case may be, due to the Change in Law.

19.18 Correction of Interim Payment Certificates

The Authority’s Engineer may by an Interim Payment Certificate make any correction or
modification in any previous Interim Payment Certificate issued by the Authority’s Engineer.

19.19 Authority’s claims

If the Authority considers itself to be entitled to any payment from the Contractor under any Clause
of this Agreement, it shall give notice and particulars to the Contractor 20 (twenty) days before
making the recovery from any amount due to the Contractor, and shall take into consideration the
representation, if any, made by the Contractor in this behalf, before making such recovery.

19.20 Bonus for early completion

In the event that the Project Completion Date occurs prior to the Scheduled Completion Date, the
Contractor shall be entitled to receive a payment of bonus equivalent to 0.03% (zero point zero
three per cent) of the Contract Price for each day by which the Project Completion Date precedes
the Scheduled Completion Date, but subject to a maximum of 3% (three per cent) of the Contract
Price. Provided, however, that the payment of bonus, if any, shall be made only after the issue of
the Completion Certificate. For the avoidance of the doubt, the Parties agree that for the purpose of
determining the bonus payable hereunder, the Contract Price shall always be deemed to be the
amount specified in Clause 19.1.1, and shall exclude any revision thereof for any reason. The
Parties also agree that bonus shall be payable only if each work for which Extension of Time has
been granted is completed within respective Extended Time.

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 ARTICLE 20

INSURANCE

20.1 Insurance for Works and Maintenance

20.1.1 The Contractor shall effect and maintain at its own cost the insurances specified in Schedule-P and
as per the requirements under the Applicable Laws.

20.1.2 Subject to the provisions of Clause 21.6, the Authority and the Contractor shall, in accordance with
its obligations as provided for in this Agreement, be liable to bear the cost of any loss or damage
that does not fall within the scope of this Article 20 or cannot be recovered from the insurers.

20.1.3 Subject to the exceptions specified in Clause 20.1.4 below, the Contractor shall, save and except as
provided for in this Agreement, fully indemnify, hold harmless and defend the Authority from and
against any and all losses, damages, costs, charges and/or claims with respect to:

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

(b) the loss of or damage to any property (other than the Works);

that may arise out of or in consequence of any breach by the Contractor of this Agreement during
the execution of the Works or the remedying of any Defects therein.

20.1.4 Notwithstanding anything stated above in Clause 20.1.3, the Authority shall fully indemnify the
Contractor from and against any and all losses, damages, costs, charges, proceedings and/or claims
arising out of or with respect to

(a) the use or occupation of land or any part thereof by the Authority;

(b) the right of the Authority to execute the Works, or any part thereof, on, over, under, in or
through any land;

(c) the damage to property which is the unavoidable result of the execution and completion of
the Works, or the remedying of any Defects therein, in accordance with this Agreement;
and

(d) the death of or injury to persons or loss of or damage to property resulting from any act or
neglect of the Authority, its agents, servants or other contractors, not being employed by
the Contractor.

Provided that, in the event of any injury or damage as a result of the contributory negligence of the
Contractor, the Authority shall be liable to indemnify the Contractor from and against any and all
losses, damages, costs, charges, proceedings and/or claims to the extent as may be proportionately
determined to be the liability of the Authority, its servants or agents or other contractors not
associated with the Contractor in such injury or damage.

20.1.5 Without prejudice to the obligations of the Parties as specified under Clauses 20.1.3 and 20.1.4, the
Contractor shall maintain or effect such third party insurances as may be required under the
Applicable Laws.

20.1.6 The Contractor shall provide to the Authority, within 30 days of the Appointed Date, evidence of
147
 professional liability insurance maintained by its Design Director and/or consultants to cover the
risk of professional negligence in the design of Works. The professional liability coverage shall be
for a sum of not less than [3% (three per cent)] of the Contract Price and shall be maintained until
the end of the Defects Liability Period.

20.2 Notice to the Authority

` No later than 15 (fifteen) days after the date of this Agreement, the Contractor shall by notice
furnish to the Authority, in reasonable detail, information in respect of the insurances that it
proposes to effect and maintain in accordance with this Article 20. Within 15 (fifteen) days of
receipt of such notice, the Authority may require the Contractor to effect and maintain such other
insurances as may be necessary pursuant hereto, and in the event of any difference or disagreement
relating to any such insurance, the Dispute Resolution Procedure shall apply.

20.3 Evidence of Insurance Cover

20.3.1 All insurances obtained by the Contractor in accordance with this Article 20 shall be maintained
with insurers on terms consistent with Good Industry Practice. Within 10 (ten) days from the
Appointed Date, the Contractor shall furnish to the Authority notarised true copies of the
certificate(s) of insurance, copies of insurance policies and premia payment receipts in respect of
such insurance, and no such insurance shall be cancelled, modified, or allowed to expire or lapse
until the expiration of at least 45 (forty-five) days after notice of such proposed cancellation,
modification or non-renewal has been delivered by the Contractor to the Authority. The Contractor
shall act in accordance with the directions of the Authority. Provided that the Contractor shall
produce to the Authority the insurance policies in force and the receipts for payment of the current
premia.

20.3.2 The Contractor shall ensure the adequacy of the insurances at all times in accordance with the
provisions of this Agreement.

20.4 Remedy for failure to insure

If the Contractor shall fail to effect and keep in force all insurances for which it is responsible
pursuant hereto, the Authority shall have the option to either

keep in force any such insurances, and pay such premia and recover the costs thereof from the
Contractor, or in the event of computation of a Termination Payment, treat an amount equal to the
Insurance Cover as deemed to have been received by the Contractor.

20.5 Waiver of subrogation

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

20.6 Contractor’s waiver

The Contractor hereby further releases, assigns and waives any and all rights of subrogation or
recovery against, inter alia, the Authority and its assigns, undertakings and their subsidiaries,
Affiliates, employees, successors, insurers and underwriters, which the Contractor may otherwise
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 have or acquire in or from or in any way connected with any loss, liability or obligation covered by
policies of insurance maintained or required to be maintained by the Contractor pursuant to this
Agreement (other than third party liability insurance policies) or because of deductible clauses in or
inadequacy of limits of any such policies of insurance.

20.7 Cross liabilities

Any such insurance maintained or effected in pursuance of this Article 20 shall include a cross
liability clause such that the insurance shall apply to the Contractor and to the Authority as
separately insured.

20.8 Accident or injury to workmen

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

20.9 Insurance against accident to workmen

The Contractor shall effect and maintain during the Agreement such insurances as may be required
to insure the Contractor’s personnel and any other persons employed by it on the Project Highway
from and against any liability incurred in pursuance of this Article 20. Provided that for the
purposes of this Clause 20.9, the Contractor’s personnel/any person employed by the Contractor
shall include the Sub-contractor and its personnel. It is further provided that, in respect of any
persons employed by any Sub-contractor, the Contractor's obligations to insure as aforesaid under
this Clause 20.9 shall be discharged if the Sub-contractor shall have insured against any liability in
respect of such persons in such manner that the Authority is indemnified under the policy. The
Contractor shall require such Sub-contractor to produce before the Authority, when required, such
policy of insurance and the receipt for payment of the current premium within 10 (ten) days of such
demand being made by the Authority.

20.10 Application of insurance proceeds

The proceeds from all insurance claims, except for life and injury, shall be applied for any
necessary repair, reconstruction, reinstatement, replacement, improvement, delivery or installation
of the Project Highway and the provisions of this Agreement in respect of construction of works
shall apply mutatis mutandis to the works undertaken out of the proceeds of insurance.

20.11 Compliance with policy conditions

Each Party hereby expressly agrees to fully indemnify the other Party from and against all losses
and claims arising from its failure to comply with conditions imposed by the insurance policies
effected in accordance with this Agreement.

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 Part V

Force Majeure and Termination

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 ARTICLE 21

FORCE MAJEURE

21.1 Force Majeure

As used in this Agreement, the expression “Force Majeure” or “Force Majeure Event” shall mean
occurrence in India of any or all of Non-Political Event, Indirect Political Event and Political
Event, as defined in Clauses 21.2, 21.3 and 21.4 respectively, if it affects the performance by the
Party claiming the benefit of Force Majeure (the “Affected Party”) of its obligations under this
Agreement and which act or event (i) is beyond the reasonable control of the Affected Party, and
(ii) the Affected Party could not have prevented or overcome by exercise of due diligence and
following Good Industry Practice, and (iii) has Material Adverse Effect on the Affected Party.

21.2 Non-Political Event

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

(a) act of God, epidemic, extremely adverse weather conditions, lightning, earthquake,
landslide, cyclone, flood, volcanic eruption, chemical or radioactive contamination or
ionising radiation, fire or explosion (to the extent of contamination or radiation or fire or
explosion originating from a source external to the Site);

(b) strikes or boycotts (other than those involving the Contractor, Sub-contractors or their
respective employees/representatives, or attributable to any act or omission of any of them)
interrupting supplies and services to the Project Highway for a continuous period of 24
(twenty-four) hours and an aggregate period exceeding 10 (ten) days in an Accounting
Year, and not being an Indirect Political Event set forth in Clause 21.3;

(c) any failure or delay of a Sub-contractor but only to the extent caused by another Non-
Political Event;

(d) any judgement or order of any court of competent jurisdiction or statutory authority made
against the Contractor in any proceedings for reasons other than (i) failure of the Contractor
to comply with any Applicable Law or Applicable Permit, or (ii) on account of breach of
any Applicable Law or Applicable Permit or of any contract, or (iii) enforcement of this
Agreement, or (iv) exercise of any of its rights under this Agreement by the Authority;

(e) the discovery of geological conditions, toxic contamination or archaeological remains on

the Site that could not reasonably have been expected to be discovered through a site
inspection; or

(f) any event or circumstances of a nature analogous to any of the foregoing.

21.3 Indirect Political Event

An Indirect Political Event shall mean one or more of the following acts or events:

(a) an act of war (whether declared or undeclared), invasion, armed conflict or act of foreign
enemy, blockade, embargo, riot, insurrection, terrorist or military action, civil commotion
or politically motivated sabotage;

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 (b) industry-wide or State-wide strikes or industrial action for a continuous period of 24
(twenty-four) hours and exceeding an aggregate period of 10 (ten) days in an Accounting
Year;

(c) any civil commotion, boycott or political agitation which prevents construction of the
Project Highway by the Contractor for an aggregate period exceeding 10 (ten) days in an
Accounting Year;

(d) any failure or delay of a Sub-contractor to the extent caused by any Indirect Political Event;

(e) any Indirect Political Event that causes a Non-Political Event; or

(f) any event or circumstances of a nature analogous to any of the foregoing.

21.4 Political Event

A Political Event shall mean one or more of the following acts or events by or on account of any
Government Instrumentality:

(a) Change in Law, only if consequences thereof cannot be dealt with under and in accordance
with the provisions of Clause 19.17;

(b) compulsory acquisition in national interest or expropriation of any Project Assets or rights
of the Contractor or of the Sub-Contractors;

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

(d) any failure or delay of a Sub-contractor but only to the extent caused by another Political
Event; or

(e) any event or circumstances of a nature analogous to any of the foregoing.

21.5 Duty to report Force Majeure Event

21.5.1 Upon occurrence of a Force Majeure Event, the Affected Party shall by notice report such
occurrence to the other Party forthwith. Any notice pursuant hereto shall include full particulars of:

(a) the nature and extent of each Force Majeure Event which is the subject of any claim for
relief under this Article 21 with evidence in support thereof;

(b) the estimated duration and the effect or probable effect which such Force Majeure Event is
having or will have on the Affected Party’s performance of its obligations under this
Agreement;

(c) the measures which the Affected Party is taking or proposes to take for alleviating the
impact of such Force Majeure Event; and

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 (d) any other information relevant to the Affected Party’s claim.

21.5.2 The Affected Party shall not be entitled to any relief for or in respect of a Force Majeure Event
unless it shall have notified the other Party of the occurrence of the Force Majeure Event as soon as
reasonably practicable, and in any event no later than 10 (ten) days after the Affected Party knew,
or ought reasonably to have known, of its occurrence, and shall have given particulars of the
probable material effect that the Force Majeure Event is likely to have on the performance of its
obligations under this Agreement.

21.5.3 For so long as the Affected Party continues to claim to be materially affected by such Force
Majeure Event, it shall provide the other Party with regular (and not less than weekly) reports
containing information as required by Clause 21.5.1, and such other information as the other Party
may reasonably request the Affected Party to provide.

21.6 Effect of Force Majeure Event on the Agreement

21.6.1 Upon the occurrence of any Force Majeure after the Appointed Date, the costs incurred and
attributable to such event and directly relating to this Agreement (the “Force Majeure costs”) shall
be allocated and paid as follows:

(a) upon occurrence of a Non-Political Event, the Parties shall bear their respective Force
Majeure costs and neither Party shall be required to pay to the other Party any costs
thereof;

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

(c) upon occurrence of a Political Event, all Force Majeure costs attributable to such Political
Event shall be reimbursed by the Authority to the Contractor.

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.

21.6.2 Save and except as expressly provided in this Article 21, neither Party shall be liable in any manner
whatsoever to the other Party in respect of any loss, damage, cost, expense, claims, demands and
proceedings relating to or arising out of occurrence or existence of any Force Majeure Event or
exercise of any right pursuant hereto.

21.6.3 Upon the occurrence of any Force Majeure Event during the Construction Period, the Project
Completion Schedule for and in respect of the affected Works shall be extended on a day 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

21.7.1 If a Force Majeure Event subsists for a period of 60 (sixty) days or more within a continuous period
of 120 (one hundred and twenty) days, either Party may in its discretion terminate this Agreement
by issuing a Termination Notice to the other Party without being liable in any manner whatsoever,
save as provided in this Article 21, and upon issue of such Termination Notice, this Agreement
shall, notwithstanding anything to the contrary contained herein, stand terminated forthwith;
provided that before issuing such Termination Notice, the Party intending to issue the Termination
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 Notice shall inform the other Party of such intention and grant 15 (fifteen) days time to make a
representation, and may after the expiry of such 15 (fifteen) days period, whether or not it is in
receipt of such representation, in its sole discretion issue the Termination Notice.

21.8 Termination Payment for Force Majeure Event

21.8.1 In the event of this Agreement being terminated on account of a Non-Political Event, the
Termination Payment shall be an amount equal to the sum payable under Clause 23.5.

Provided that in the event Termination occurs during the Maintenance Period, the Authority’s
Engineer shall only determine the value of Works associated with Maintenance.

21.8.2 If Termination is on account of an Indirect Political Event, the Termination Payment shall include:

(a) any sums due and payable under Clause 23.5; and

(b) the reasonable cost, as determined by the Authority’s Engineer, of the Plant and Materials
procured by the Contractor and transferred to the Authority for use in Construction or
Maintenance, only if such Plant and Materials are in conformity with the Specifications and
Standards;

Provided that in the event Termination occurs during the Maintenance Period, the Authority’s
Engineer shall only determine the value of Works associated with Maintenance.

21.8.3 If Termination is on account of a Political Event, the Authority shall make a Termination Payment
to the Contractor in an amount that would be payable under Clause 23.6.2 as if it were an Authority
Default.

21.9 Dispute resolution

In the event that the Parties are unable to agree in good faith about the occurrence or existence of a
Force Majeure Event, such Dispute shall be finally settled in accordance with the Dispute
Resolution Procedure; provided that the burden of proof as to the occurrence or existence of such
Force Majeure Event shall be upon the Party claiming relief and/or excuse on account of such
Force Majeure Event.

21.10 Excuse from performance of obligations

If the Affected Party is rendered wholly or partially unable to perform its obligations under this
Agreement because of a Force Majeure Event, it shall be excused from performance of such of its
obligations to the extent it is unable to perform on account of such Force Majeure Event; provided
that:

(a) the suspension of performance shall be of no greater scope and of no longer duration than
is reasonably required by the Force Majeure Event;

(b) the Affected Party shall make all reasonable efforts to mitigate or limit damage to the other
Party arising out of or as a result of the existence or occurrence of such Force Majeure
Event and to cure the same with due diligence; and

(c) when the Affected Party is able to resume performance of its obligations under this
Agreement, it shall give to the other Party notice to that effect and shall promptly resume
performance of its obligations hereunder.

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 ARTICLE 22

SUSPENSION OF CONTRACTOR’S RIGHTS

22.1 Suspension upon Contractor Default

Upon occurrence of a Contractor Default, the Authority shall be entitled, without prejudice to its
other rights and remedies under this Agreement including its rights of Termination hereunder, to (i)
suspend carrying out of the Works or Maintenance or any part thereof, and (ii) carry out such
Works or Maintenance itself or authorise any other person to exercise or perform the same on its
behalf during such suspension (the “Suspension”). Suspension hereunder shall be effective
forthwith upon issue of notice by the Authority to the Contractor and may extend up to a period not
exceeding 90 (ninety) days from the date of issue of such notice.

22.2 Authority to act on behalf of Contractor

During the period of Suspension hereunder, all rights and liabilities vested in the Contractor in
accordance with the provisions of this Agreement shall continue to vest therein and all things done
or actions taken, including expenditure incurred by the Authority for discharging the obligations of
the Contractor under and in accordance with this Agreement shall be deemed to have been done or
taken for and on behalf of the Contractor and the Contractor undertakes to indemnify the Authority
for all costs incurred during such period. The Contractor hereby licences and sub-licences
respectively, the Authority or any other person authorised by it under Clause 22.1 to use during
Suspension, all Intellectual Property belonging to or licenced to the Contractor with respect to the
Project Highway and its design, engineering, construction and maintenance, and which is used or
created by the Contractor in performing its obligations under the Agreement.

22.3 Revocation of Suspension

22.3.1 In the event that the Authority shall have rectified or removed the cause of Suspension within a
period not exceeding 60 (sixty) days from the date of Suspension, it shall revoke the Suspension
forthwith and restore all rights of the Contractor under this Agreement. For the avoidance of doubt,
the Parties expressly agree that the Authority may, in its discretion, revoke the Suspension at any
time, whether or not the cause of Suspension has been rectified or removed hereunder.

22.3.2 Upon the Contractor having cured the Contractor Default within a period not exceeding 60 (sixty)
days from the date of Suspension, the Authority shall revoke the Suspension forthwith and restore
all rights of the Contractor under this Agreement.
22.4 Termination

22.4.1 At any time during the period of Suspension under this Article 22, the Contractor may by notice
require the Authority to revoke the Suspension and issue a Termination Notice. The Authority
shall, within 15 (fifteen) days of receipt of such notice, terminate this Agreement under and in
accordance with Article 23.

22.4.2 Notwithstanding anything to the contrary contained in this Agreement, in the event that Suspension
is not revoked within 90 (ninety) days from the date of Suspension hereunder, the Agreement shall,
upon expiry of the aforesaid period, be deemed to have been terminated by mutual agreement of the
Parties and all the provisions of this Agreement shall apply, mutatis mutandis, to such Termination
as if a Termination Notice had been issued by the Authority upon occurrence of a Contractor
Default.

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 ARTICLE 23

TERMINATION

23.1 Termination for Contractor Default

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

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

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

with Clause 7.3, the Contractor fails to cure, within a Cure Period of 30 (thirty) days, the
Contractor Default for which the whole or part of the Performance Security was
appropriated;

(c) the Contractor does not achieve the latest outstanding Project Milestone due in accordance
with the provisions of Schedule-J, subject to any Time Extension, and continues to be in
default for 45 (forty five) days;

(d) the Contractor abandons or manifests intention to abandon the construction or Maintenance
of the Project Highway without the prior written consent of the Authority;

(e) the Contractor fails to proceed with the Works in accordance with the provisions of Clause
10.1 or stops Works and/or the Maintenance for 30 (thirty) days without reflecting the
same in the current programme and such stoppage has not been authorised by the
Authority’s Engineer;

(f) the Project Completion Date does not occur within the period specified in Schedule-J for
the Scheduled Completion Date, or any extension thereof;

(g) failure to complete the Punch List items within the periods stipulated therefor in Clause
12.2.1;

(h) the Contractor fails to rectify any Defect, the non rectification of which shall have a
Material Adverse Effect on the Project, within the time specified in this Agreement or as
directed by the Authority’s Engineer;

(i) the Contractor subcontracts the Works or any part thereof in violation of this Agreement or
assigns any part of the Works or the Maintenance without the prior approval of the
Authority;

(j) the Contractor creates any Encumbrance in breach of this Agreement;

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 (k) an execution levied on any of the assets of the Contractor has caused a Material Adverse
Effect ;

(l) the Contractor is adjudged bankrupt or insolvent, or if a trustee or receiver is appointed for
the Contractor or for the whole or material part of its assets that has a material bearing on
the Project;

(m) the Contractor has been, or is in the process of being liquidated, dissolved, wound-up,
amalgamated or reconstituted in a manner that would cause, in the reasonable opinion of
the Authority, a Material Adverse Effect;

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

(i) the amalgamated or reconstructed entity has the capability and experience
necessary for the performance of its obligations under this Agreement; and

(ii) the amalgamated or reconstructed entity has the financial standing to perform its
obligations under this Agreement and has a credit worthiness at least as good as
that of the Contractor as at the Appointed Date;

(o) any representation or warranty of the Contractor herein contained which is, as of the date
hereof, found to be materially false or the Contractor is at any time hereafter found to be in
breach thereof;

(p) the Contractor submits to the Authority any statement, notice or other document, in written
or electronic form, which has a material effect on the Authority’s rights, obligations or
interests and which is false in material particulars;

(q) the Contractor has failed to fulfil any obligation, for which failure Termination has been
specified in this Agreement; or

(r) the Contractor commits a default in complying with any other provision of this Agreement
if such a default causes a Material Adverse Effect on the Project or on the Authority.

23.1.2 Without prejudice to any other rights or remedies which the Authority may have under this
Agreement, upon occurrence of a Contractor Default, the Authority shall be entitled to terminate
this Agreement by issuing a Termination Notice to the Contractor; provided that before issuing the
Termination Notice, the Authority shall by a notice inform the Contractor of its intention to issue
such Termination Notice and grant 15 (fifteen) days to the Contractor to make a representation, and
may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation,
issue the Termination Notice.

23.1.3 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.
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23.2 Termination for Authority Default

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

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

(b) the Authority has failed to make payment of any amount due and payable to the Contractor
within the period specified in this Agreement;

(c) the Authority has failed to provide, within a period of 180 (one hundred and eighty) days
from the Appointed Date, the environmental clearances required for construction of the
Project Highway;

(d) the Authority repudiates this Agreement or otherwise takes any action that amounts to or
manifests an irrevocable intention not to be bound by this Agreement; or

(e) the Authority’s Engineer fails to issue the relevant Interim Payment Certificate within 60
(sixty) days after receiving a statement and supporting documents.

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

If on the consideration of the Authority’s representation or otherwise, the contractor does not issue
the Termination Notice on such 15th day and prefers to continue with the project, it is deemed that
the cause of action of the Termination Notice has been condoned by the Contractor. Hence he
forfeits his right to any other remedy on that count.

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 hereunder.

23.4 Requirements after Termination

Upon Termination of this Agreement in accordance with the terms of this Article 23, the Contractor
shall comply with and conform to the following:

(a) deliver to the Authority all Plant and Materials which shall have become the property of the
Authority under this Article 23;

(b) deliver all relevant records, reports, Intellectual Property and other licences pertaining to
the Works, Maintenance, other design documents and in case of Termination occurring
after the Provisional Certificate has been issued, the “as built’ Drawings for the Works;
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 (c) transfer and/or deliver all Applicable Permits to the extent permissible under Applicable
Laws; and

(d) vacate the Site within 15 (fifteen) days.

23.5 Valuation of Unpaid Works

23.5.1 Within a period of 45 (forty-five) days after Termination under Clause 23.1, 23.2 or 23.3, as the
case may be, has taken effect, the Authority’s Engineer shall proceed in accordance with Clause
18.5 to determine as follows the valuation of unpaid Works (the “Valuation of Unpaid Works”):

(a) value of the completed stage of the Works, less payments already made;

(b) reasonable value of the partially completed stages of works as on the date of Termination,
only if such works conform with the Specifications and Standards; and

(c) value of Maintenance, if any, for completed months, less payments already made,

and shall adjust from the sum thereof (i) any other amounts payable or recoverable, as the case may
be, in accordance with the provisions of this Agreement; and (ii) all taxes due to be deducted at
source.

23.5.2 The Valuation of Unpaid Works shall be communicated to the Authority, with a copy to the
Contractor, within a period of 30 (thirty) days from the date of Termination.

23.6 Termination Payment

23.6.1 Upon Termination on account of Contractor’s Default under Clause 23.1, the Authority shall:

(a) encash and appropriate the Performance Security and Retention Money, or in the event the
Contractor has failed to replenish or extend the Performance Security, claim the amount
stipulated in Clause 7.1.1, as agreed pre-determined compensation to the Authority for any
losses, delays and cost of completing the Works and Maintenance, if any;

(b) encash and appropriate the bank guarantee, if any, for and in respect of the outstanding
Advance Payment and interest thereon; and

(c) pay to the Contractor, by way of Termination Payment, an amount equivalent to the
Valuation of Unpaid Works after adjusting any other sums payable or recoverable, as the
case may be, in accordance with the provisions of this Agreement.

23.6.2 Upon Termination on account of an Authority Default under Clause 23.2 or for Authority’s
convenience under Clause 23.3, the Authority shall:

(a) return the Performance Security and Retention Money forthwith;

(b) encash and appropriate the bank guarantee, if any, for and in respect of the outstanding
Advance Payment; and

(c) pay to the Contractor, by way of Termination Payment, an amount equal to:

(i) Valuation of Unpaid Works;

(ii) the reasonable cost, as determined by the Authority’s Engineer, of the Plant and
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 Materials procured by the Contractor and transferred to the Authority for its use,
only if such Plant and Materials are in conformity with the Specifications and
Standards;

(iii) the reasonable cost of temporary works, as determined by the Authority’s

Engineer; and

(iv) 10% (ten per cent) of the cost of the Works and Maintenance that are not
commenced or not completed,

and shall adjust from the sum thereof (i) any other amounts payable or recoverable, as the case may
be, in accordance with the provisions of this Agreement, and (ii) all taxes due to be deducted at
source.

23.6.3 Termination Payment shall become due and payable to the Contractor 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 the Base Rate plus 2% (two percent),
calculated at quarterly rests, on the amount of Termination Payment remaining unpaid; provided
that such delay shall not exceed 90 (ninety) days. For the avoidance of doubt, it is expressly agreed
that Termination Payment shall constitute full discharge by the Authority of its payment obligations
in respect thereof hereunder.

23.6.4 The Contractor expressly agrees that Termination Payment under this Article 23 shall constitute a
full and final settlement of all claims of the Contractor on account of Termination of this
Agreement and that it shall not have any further right or claim under any law, treaty, convention,
contract or otherwise.

23.7 Other rights and obligations of the Parties

Upon Termination for any reason whatsoever

(a) property and ownership in all Materials, Plant and Works and the Project Highway shall, as
between the Contractor and the Authority, vest in the Authority in whole; provided that the
foregoing shall be without prejudice to Clause 23.6

(b) risk of loss or damage to any Materials, Plant or Works and the care and custody thereof
shall pass from the Contractor to the Authority; and

(c) the Authority shall be entitled to restrain the Contractor and any person claiming through or
under the Agreement from entering upon the Site or any part of the Project except for
taking possession of materials, stores, implements, construction plants and equipment of
the Contractor, which have not been vested in the Authority in accordance with the
provisions of this Agreement.

23.8 Survival of rights

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

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 Part VI

Other Provisions

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 ARTICLE 24

ASSIGNMENT AND CHARGES

24.1 Restrictions on assignment and charges

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

24.2 Hypothecation of Materials or Plant

Notwithstanding the provisions of Clause 24.1, the Contractor may pledge or hypothecate to its
lenders, any Materials or Plant prior to their incorporation in the Works. Further, the Contractor
may, by written notice to the Authority, assign its right to receive payments under this Agreement
either absolutely or by way of charge, to any person providing financing to the Contractor in
connection with the performance of the Contractor’s obligations under this Agreement. The
Contractor acknowledges that any such assignment by the Contractor shall not relieve the
Contractor from any obligations, duty or responsibility under this Agreement.

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 ARTICLE 25

LIABILITY AND INDEMNITY

25.1 General indemnity

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

25.2 Indemnity by the Contractor

25.2.1 Without limiting the generality of Clause 25.1, the Contractor shall fully indemnify, hold harmless
and defend the Authority and the Authority Indemnified Persons from and against any and all loss
and/or damages arising out of or with respect to:

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

(b) payment of taxes required to be made by the Contractor in respect of the income or other
taxes of the Sub-contractors, suppliers and representatives; or

(c) non-payment of amounts due as a result of Materials or services furnished to the Contractor
or any of its Sub-contractors which are payable by the Contractor or any of its Sub-
contractors.

25.2.2 Without limiting the generality of the provisions of this Article 25, the Contractor shall fully
indemnify, hold harmless and defend the Authority Indemnified Persons from and against any and
all suits, proceedings, actions, claims, demands, 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 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
163
 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. In the event that the
Indemnifying Party wishes to contest or dispute the claim or demand, it may conduct the
proceedings in the name of the Indemnified Party, subject to the Indemnified Party being secured
against any costs involved, to its reasonable satisfaction.

25.4 Defence of claims

25.4.1 The Indemnified Party shall have the right, but not the obligation, to contest, defend and litigate
any claim, action, suit or proceeding by any third party alleged or asserted against such Party in
respect of, resulting from, related to or arising out of any matter for which it is entitled to be
indemnified hereunder, and reasonable costs and expenses thereof shall be indemnified by the
Indemnifying Party. If the Indemnifying Party acknowledges in writing its obligation to indemnify
the Indemnified Party in respect of loss to the full extent provided by this Article 25, the
Indemnifying Party shall be entitled, at its option, to assume and control the defence of such claim,
action, suit or proceeding, liabilities, payments and obligations at its expense and through the
counsel of its choice; provided it gives prompt notice of its intention to do so to the Indemnified
Party and reimburses the Indemnified Party for the reasonable cost and expenses incurred by the
Indemnified Party prior to the assumption by the Indemnifying Party of such defence. The
Indemnifying Party shall not be entitled to settle or compromise any claim, demand, action, suit or
proceeding without the prior written consent of the Indemnified Party, unless the Indemnifying
Party provides such security to the Indemnified Party as shall be reasonably required by the
Indemnified Party to secure the loss to be indemnified hereunder to the extent so compromised or
settled.

25.4.2 If the Indemnifying Party has exercised its rights under Clause 25.3, the Indemnified Party
shall not be entitled to settle or compromise any claim, action, suit or proceeding without the prior
written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or
delayed).
25.4.3 If the Indemnifying Party exercises its rights under Clause 25.3, the Indemnified Party shall
nevertheless have the right to employ its own counsel, and such counsel may participate in such
action, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party,
when and as incurred, unless:

(a) the employment of counsel by such party has been authorised in writing by the
Indemnifying Party; or

(b) the Indemnified Party shall have reasonably concluded that there may be a conflict of
interest between the Indemnifying Party and the Indemnified Party in the conduct of the
defence of such action; or

(c) the Indemnifying Party shall not, in fact, have employed independent counsel reasonably
satisfactory to the Indemnified Party, to assume the defence of such action and shall have
been so notified by the Indemnified Party; or

(d) the Indemnified Party shall have reasonably concluded and specifically notified the
Indemnifying Party either:

(i) that there may be specific defences available to it which are different from or
additional to those available to the Indemnifying Party; or

(ii) that such claim, action, suit or proceeding involves or could have a material
164
 adverse effect upon it beyond the scope of this Agreement:

Provided that if Sub-clauses (b), (c) or (d) of this Clause 25.4.3 shall be applicable, the counsel for
the Indemnified Party shall have the right to direct the defence of such claim, demand, action, suit
or proceeding on behalf of the Indemnified Party, and the reasonable fees and disbursements of
such counsel shall constitute legal or other expenses hereunder.

25.5 No consequential claims

Notwithstanding anything to the contrary contained in this Article 25, the indemnities herein
provided shall not include any claim or recovery in respect of any cost, expense, loss or damage of
an indirect, incidental or consequential nature, including loss of profit, except as expressly provided
in this Agreement.

25.6 Survival on Termination

The provisions of this Article 25 shall survive Termination.

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 ARTICLE 26

DISPUTE RESOLUTION

26.1 Dispute Resolution

26.1.1 Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in
relation to this Agreement (including its interpretation) between the Parties, and so notified in
writing by either Party to the other Party (the “Dispute”) shall, in the first instance, be attempted to
be resolved amicably in accordance with the conciliation procedure set forth in Clause 26.2.

26.1.2 The Parties agree to use their best efforts for resolving all Disputes arising under or in respect of
this Agreement promptly, equitably and in good faith, and further agree to provide each other with
reasonable access during normal business hours to all non-privileged records, information and data
pertaining to any Dispute.

26.2 Conciliation

In the event of any Dispute between the Parties, either Party may call upon the Authority’s
Engineer, or such other person as the Parties may mutually agree upon (the “Conciliator”) to
mediate and assist the Parties in arriving at an amicable settlement thereof. Failing mediation by the
Conciliator or without the intervention of the Conciliator, either Party may require such Dispute to
be referred to the Chairman of the Authority and the Chairman of the Board of Directors of the
Contractor for amicable settlement, and upon such reference, the said persons shall meet no later
than 7 (seven) business days from the date of reference to discuss and attempt to amicably resolve
the Dispute. If such meeting does not take place within the 7 (seven) business day period or the
Dispute is not amicably settled within 15 (fifteen) days of the meeting or the Dispute is not
resolved as evidenced by the signing of written terms of settlement within 30 (thirty) days of the
notice in writing referred to in Clause 26.1.1 or such longer period as may be mutually agreed by
the Parties, either Party may refer the Dispute to arbitration in accordance with the provisions of
Clause 26.3.

26.3 Arbitration

26.3.1 “Any dispute, which is not resolved amicably as provided in clause 26.1 and 26.2 shall be finally
settled by arbitration as set forth below:

i) The Dispute shall be finally settled by arbitration in accordance with the Arbitration and Conciliation
Act, 1996, or any statutory amendment thereof. The Arbitral tribunal shall consist of 3 Arbitrators,
one each to be appointed by Authority and the Contractor. The third arbitrator shall be chosen by
the two Arbitrators so appointed by the Parties and shall act as Presiding Arbitrator. In case of failure
of the two Arbitrators, appointed by the parties to reach upon a consensus within period of 30 days
from the appointment of the Arbitrator appointed subsequently, the Presiding arbitrator shall be
appointed by the Chairman of the Executive Committee of the Indian Roads Congress.

ii) Neither party shall be limited in the proceedings before such Tribunal to the evidence or arguments
before the other party / Independent consultant.

iii) 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.
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iv) If one of the parties fails to appoint its Arbitrator in pursuance of Sub-Clause (i) above, within 30
days after receipt of the notice of the appointment of its Arbitrator by the other party, then the
Chairman of the Executive Committee of the Indian Roads Congress, shall appoint the Arbitrator. A
certified copy of the order of the Chairman of the Executive Committee of the Indian Roads
Congress making such an appointment shall be furnished to each of the parties.

v) Arbitration proceedings shall be held at Delhi, India, and the language of the Arbitration Proceedings
and that of all documents and communications between the parties shall be English.

vi) The expenses incurred by each party in connection with the preparation, presentation, etc., of its
proceedings shall be borne by each party itself.

vii) The fees and expenses payable to the Arbitrators shall be as per the schedule of remuneration and
expenses for Arbitrators notified by NHAI vide letter no. 11041/217/2007-Admin. Dt. 13th January
2010 reproduced herein below, or any amendment thereof:

S. Particulars Schedule Amount Payable per Arbitrator/per case

No
1. Arbitrator fee Rs. 15,000/- per day subject to a maximum of Rs. 4 lacs per
case
Or

Rs. 2.5 lacs (lump sum) subject to publishing the Award

within 12 months. 12 months will be reckoned from the
date of first hearing.
2. Reading Charges Rs. 15,000/-
3. Secretarial Assistance and Rs. 20,000/-
incidental charges (telephone,
fax, postage etc.)
4. Charges for publishing / Maximum of Rs. 20,000/-
declaration of the Award
5. Other expenses (actuals against bills subject to the prescribed ceiling) –applicable for the days
of hearing only.
Travelling expenses Economy class by air, first class AC by train, AC car by
Lodging and Boarding road
i) Upto Rs. 15,000/- per day (metro cities)
ii) Upto Rs. 7,000/- per day (other cities)
iii) Rs. 3,000/- per day (own arrangement)
6. Local Travel Rs. 1,500/- per day

7. Extra charges for days other than Rs. 3,500/- per day
hearing/ meeting days (maximum
for 2 days)
Note 1. Lodging, boarding and travelling expenses shall be allowed only for those members who are
residing 100 kms away from place of meeting.
2. Delhi, Mumbai, Chennai, Kolkata, Bangalore and Hyderabad shall be considered as Metro
cities.

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26.3.2 Deleted.

26.3.2 The arbitrators shall make a reasoned award (the “Award”). Any Award made in any arbitration
held pursuant to this Article 26 shall be final and binding on the Parties as from the date it is made,
and the Contractor and the Authority agree and undertake to carry out such Award without delay.

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 effect,
pending the Award in any arbitration proceedings hereunder.

26.3.5 In the event the Party against whom the Award has been granted challenges the Award for any
reason in a court of law, it shall make an interim payment to the other Party for an amount equal to
75% (seventy five per cent) of the Award, pending final settlement of the Dispute. The aforesaid
amount shall be paid forthwith upon furnishing an irrevocable Bank Guarantee for a sum equal to
120 % (one hundred and twenty per cent) of the aforesaid amount. Upon final settlement of the
Dispute, the aforesaid interim payment shall be adjusted and any balance amount due to be paid or
returned, as the case may be, shall be paid or returned with interest calculated at the rate of 10%
(ten per cent) per annum from the date of interim payment to the date of final settlement of such
balance.

26.4 Adjudication by Regulatory Authority, Tribunal or Commission

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

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 ARTICLE 27

MISCELLANEOUS

27.1 Governing law and jurisdiction

This Agreement shall be construed and interpreted in accordance with and governed by the laws of
India, and the courts at Rohtak shall have exclusive jurisdiction over matters arising out of or
relating to this Agreement.

27.2 Waiver of immunity

Each Party unconditionally and irrevocably:

(a) agrees that the execution, delivery and performance by it of this Agreement constitute
commercial acts done and performed for commercial purpose;

(b) agrees that, should any proceedings be brought against it or its assets, property or revenues
in any jurisdiction in relation to this Agreement or any transaction contemplated by this
Agreement, no immunity (whether by reason of sovereignty or otherwise) from such
proceedings shall be claimed by or on behalf of the Party with respect to its assets;

(c) waives any right of immunity which it or its assets, property or revenues now has, may
acquire in the future or which may be attributed to it in any jurisdiction; and

(d) consents generally in respect of the enforcement of any judgement or award against it in
any such proceedings to the giving of any relief or the issue of any process in any
jurisdiction in connection with such proceedings (including the making, enforcement or
execution against it or in respect of any assets, property or revenues whatsoever
irrespective of their use or intended use of any order or judgement that may be made or
given in connection therewith).

27.3 Delayed payments

The Parties hereto agree that payments due from one Party to the other Party under the provisions
of this Agreement shall be made within the period set forth therein, and if no such period is
specified, within 30 (thirty) days of receiving a demand along with the necessary particulars. In the
event of delay beyond such period, the defaulting Party shall pay interest for the period of delay
calculated at a rate equal to Base Rate plus 2 (two) percent, calculated at quarterly rests, and
recovery thereof shall be without prejudice to the rights of the Parties under this Agreement
including Termination thereof.

27.4 Waiver

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

(a) shall not operate or be construed as a waiver of any other or subsequent default hereof or of
other provisions of or obligations under this Agreement;

(b) shall not be effective unless it is in writing and executed by a duly authorised
representative of the Party; and

(c) shall not affect the validity or enforceability of this Agreement in any manner.
169
27.4.2 Neither the failure by either Party to insist on any occasion upon the performance of the terms,
conditions and provisions of this Agreement or any obligation thereunder nor time or other
indulgence granted by a Party to the other Party shall be treated or deemed as waiver of such breach
or acceptance of any variation or the relinquishment of any such right hereunder.

27.5 Liability for review of Documents and Drawings

Except to the extent expressly provided in this Agreement:

(a) no review, comment or approval by the Authority or the Authority’s Engineer of any
Document or Drawing submitted by the Contractor nor any observation or inspection of the
construction, or maintenance of the Project 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

27.7.1 Termination shall:

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

(b) except as otherwise provided in any provision of this Agreement expressly limiting the
liability of either Party, not relieve either Party of any obligations or liabilities for loss or
damage to the other Party arising out of, or caused by, acts or omissions of such Party prior
to the effectiveness of such Termination or arising out of such Termination.

27.7.2 All obligations surviving Termination shall only survive for a period of 3 (three) years following
the date of such Termination.

27.8 Entire Agreement

This Agreement and the Schedules together constitute a complete and exclusive statement of the
terms of the agreement between the Parties on the subject hereof, and no amendment or
modification hereto shall be valid and effective unless such modification or amendment is agreed to
in writing by the Parties and duly executed by persons especially empowered in this behalf by the
respective Parties. All prior written or oral understandings, offers or other communications of every
kind pertaining to this Agreement are abrogated and withdrawn. For the avoidance of doubt, the
Parties hereto agree that any obligations of the Contractor arising from the Request for
Qualification or Request for Proposals, as the case may be, shall be deemed to form part of this
Agreement and treated as such.

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27.9 Severability

If for any reason whatever, any provision of this Agreement is or becomes invalid, illegal or
unenforceable or is declared by any court of competent jurisdiction or any other instrumentality to
be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining
provisions shall not be affected in any manner, and the Parties will negotiate in good faith with a
view to agreeing to one or more provisions which may be substituted for such invalid,
unenforceable or illegal provisions, as nearly as is practicable to such invalid, illegal or
unenforceable provision. Failure to agree upon any such provisions shall not be subject to the
Dispute Resolution Procedure set forth under this Agreement or otherwise.

27.10 No partnership

This Agreement shall not be interpreted or construed to create an association, joint venture or
partnership between the Parties, or to impose any partnership obligation or liability upon either
Party, and neither Party shall have any right, power or authority to enter into any agreement or
undertaking for, or act on behalf of, or to act as or be an agent or representative of, or to otherwise
bind, the other Party.

27.11 Third parties

This Agreement is intended solely for the benefit of the Parties, and their respective successors and
permitted assigns, and nothing in this Agreement shall be construed to create any duty to, standard
of care with reference to, or any liability to, any person not a Party to this Agreement.

27.12 Successors and assigns

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

27.13 Notices

Any notice or other communication to be given by any Party to the other Party under or in
connection with the matters contemplated by this Agreement shall be in writing and shall:

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

[***]

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

(c) any notice or communication by a Party to the other Party, given in accordance herewith,
shall be deemed to have been delivered when in the normal course of post it ought to have
171
 been delivered and in all other cases, it shall be deemed to have been delivered on the
actual date and time of delivery; provided that in the case of facsimile or e-mail, it shall be
deemed to have been delivered on the working day following the date of its delivery.

27.14 Language

All notices required to be given by one Party to the other Party and all other communications,
Documentation and proceedings which are in any way relevant to this Agreement shall be in writing
and in English language.

27.15 Counterparts

This Agreement may be executed in two counterparts, each of which, when executed and delivered,
shall constitute an original of this Agreement.

27.16 Confidentiality

The Parties shall treat the details of this Agreement as private and confidential, except to the extent
necessary to carry out obligations under it or to comply with Applicable Laws. The Contractor shall
not publish, permit to be published, or disclose any particulars of the Works in any trade or
technical paper or elsewhere without the previous agreement of the Authority.

27.17 Copyright and Intellectual Property rights

27.17.1 As between the Parties, the Contractor shall retain the copyright and other intellectual property
rights in the Contractor's Documents and other design documents made by (or on behalf of) the
Contractor. The Contractor shall be deemed (by signing this Agreement) to give to the Authority a
non-terminable transferable non-exclusive royalty-free licence to copy, use and communicate the
Contractor's Documents, including making and using modifications of them. This licence shall:

(a) apply throughout the actual or intended working life (whichever is longer) of the relevant
parts of the Works,

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

(c) in the case of Contractor's Documents which are in the form of computer programs and
other software, permit their use on any computer on the Site and other places as envisaged
by this Agreement, including replacements of any computers supplied by the Contractor:

27.17.2 The Contractor's Documents and other design documents made by (or on behalf of) the Contractor
shall not, without the Contractor's consent, be used, copied or communicated to a third party by (or
on behalf of) the Authority for purposes other than those permitted under this Clause 27.17.

27.17.3 As between the Parties, the Authority shall retain the copyright and other intellectual property
rights in this Agreement and other documents made by (or on behalf of) the Authority. The
Contractor may, at its cost, copy, use, and obtain communication of these documents for the
purposes of this Agreement. They shall not, without the Authority's consent, be copied, used or
communicated to a third party by the Contractor, except as necessary for the purposes of the
contract.

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27.18 Limitation of Liability

27.18.1 Neither Party shall be liable to the other Party for loss of use of any Works, loss of profit, loss of
any contract or for any indirect or consequential loss or damage which may be suffered by the other
Party in connection with this Agreement, save and except as provided under Articles 23 and 25.

27.18.2 The total liability of one Party to the other Party under and in accordance with the provisions of
this Agreement, save and except as provided in Articles 23 and 25, shall not exceed the Contract
Price. For the avoidance of doubt, this Clause shall not limit the liability in any case of fraud,
deliberate default or reckless misconduct by the defaulting Party.

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 ARTICLE 28

DEFINITIONS

28.1 Definitions

In this Agreement, the following words and expressions shall, unless repugnant to the context or
meaning thereof, have the meaning hereinafter respectively assigned to them:

“Accounting Year” means the financial year commencing from the first day of April of any
calendar year and ending on the thirty-first day of March of the next calendar year;

“Advance Payment” shall have the meaning set forth in Clause 19.2; “Affected Party”
shall have the meaning set forth in Clause 21.1;

“Affiliate” means, in relation to either Party {and/or Members}, a person who controls, is
controlled by, or is under the common control with such Party {or Member} (as used in this
definition, the expression “control” means, with respect to a person which is a company or
corporation, the ownership, directly or indirectly, of more than 50% (fifty per cent) of the voting
shares of such person, and with respect to a person which is not a company or corporation, the
power to direct the management and policies of such person, whether by operation of law or by
contract or otherwise);

“Agreement” means this Agreement, its Recitals, the Schedules hereto and any amendments
thereto made in accordance with the provisions contained in this Agreement;

“Applicable Laws” means all laws, brought into force and effect by GOI or the State Government
including rules, regulations and notifications made thereunder, and judgements, decrees,
injunctions, writs and orders of any court of record, applicable to this Agreement and the exercise,
performance and discharge of the respective rights and obligations of the Parties hereunder, as may
be in force and effect during the subsistence of this Agreement;

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

certificates, consents, approvals and exemptions required to be obtained or maintained under
Applicable Laws in connection with the construction, operation and maintenance of the Project
Highway during the subsistence of this Agreement;

“Appointed Date” means that date which is later of the 15th day of the date of this Agreement, the
date on which the Contractor has delivered the Performance Security in accordance with the
provisions of Article 7 and the date on which the Authority has provided the Right of Way on no
less than 90% (Ninety per cent) of the total length of Project Highway;

“Arbitration Act” means the Arbitration and Conciliation Act, 1996 and shall include
modifications to or any re-enactment thereof, as in force from time to time;

“Authority” shall have the meaning attributed thereto in the array of Parties hereinabove as set
forth in the Recitals;

“Authority Default” shall have the meaning set forth in Clause 23.2;

“Authority’s Engineer” shall have the meaning set forth in Clause 18.1;

“Authority Representative” means such person or persons as may be authorised in writing by the
174
Authority to act on its behalf under this Agreement and shall include any person or persons having
authority to exercise any rights or perform and fulfil any obligations of the Authority under this
Agreement;

“Bank” means a bank incorporated in India and having a minimum net worth of Rs. 1,000 crore
(Rupees one thousand crore) or any other bank acceptable to the Authority;

“Base Rate” means the floor rate of interest announced by the State Bank of India for all its
lending operations;

“Base Date” means the last date of that calender month, which date precedes the Bid Due Date by
at least 28 (twenty eight) days;

“Bid” means the documents in their entirety comprised in the bid submitted by the [selected
bidder/Consortium] in response to the Request for Proposals in accordance with the provisions
thereof;

“Bid Security” means the bid security provided by the Contractor to the Authority in accordance
with the Request for Proposal, and which is to remain in force until substituted by the Performance
Security;

“Change in Law” means the occurrence of any of the following after the Base Date:

(a) the enactment of any new Indian law;

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

(c) the commencement of any Indian law which has not entered into effect until the
Base Date;

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

court of record which has become final, conclusive and binding, as compared to
such interpretation or application by a court of record prior to the Base Date; or

(e) any change in the rates of any of the Taxes or royalties that have a direct effect on
the Project;

“Change of Scope” shall have the meaning set forth in Article 13;

“Change of Scope Notice” shall have the meaning set forth in Clause 13.2.1;

“Change of Scope Order” shall have the meaning set forth in Clause 13.2.4;

“Completion Certificate” shall have the meaning set forth in Clause 12.4;

{“Consortium” means the consortium of entities which have formed a joint venture for
implementation of this Project;}$

“Construction” shall have the meaning set forth in Clause 1.2.1 (f);

“Construction Period” means the period commencing from the Appointed Date and ending on the
date of the Completion Certificate;

“Contract Price” means the amount specified in Clause 19.1.1;

175
 “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 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;
$
This definition may be omitted if the Contractor is not a Consortium.

“Damages” shall have the meaning set forth in paragraph (w) of Clause 1.2.1;

“Defect” means any defect or deficiency in Construction of the Works or any part thereof, which
does not conform with the Specifications and Standards, and in the case of Maintenance, means any
defect or deficiency which is specified in Schedule-E;

“Defects Liability Period” shall have the meaning set forth in Clause 17.1;

“Dispute” shall have the meaning set forth in Clause 26.1.1;

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

“Drawings” means all of the drawings, calculations and documents pertaining to the Project
Highway as set forth in Schedule-I, and shall include ‘as built’ drawings of the Project Highway;

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

discs, drawings, computer programmes, writings, reports, photographs, films, cassettes, or
expressed in any other written, electronic, audio or visual form;

“Emergency” means a condition or situation that is likely to endanger the safety or security of the
individuals on or about the Project Highway, including Users thereof, or which poses an immediate
threat of material damage to any of the Project Assets;

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

“EPC” means engineering, procurement and construction;

176
“Final Payment Certificate” shall have the meaning set forth in Clause 19.15.1;

“Final Payment Statement” shall have the meaning set forth in Clause 19.13.1;

“Force Majeure” or “Force Majeure Event” shall have the meaning ascribed to it in Clause
21.1;

“GAD” or “General Arrangement Drawings” shall have the meaning set forth in Clause 4.1.3
(b);

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

“Good Industry Practice” means the practices, methods, techniques, designs, standards, skills,
diligence, efficiency, reliability and prudence which are generally and reasonably expected from a
reasonably skilled and experienced contractor engaged in the same type of undertaking as
envisaged under this Agreement and which would be expected to result in the performance of its
obligations by the Contractor in accordance with this Agreement, Applicable Laws and Applicable
Permits in reliable, safe, economical and efficient manner;

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

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

“IRC” means the Indian Roads Congress;

“Indemnified Party” means the Party entitled to the benefit of an indemnity pursuant to Article
25;

“Indemnifying Party” means the Party obligated to indemnify the other Party pursuant to Article
25;

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

“Insurance Cover” means the aggregate of the maximum sums insured under the insurances taken
out by the Contractor pursuant to Article 20, and includes all insurances required to be taken out by
the Contractor under Clauses 20.1 and 20.9 but not actually taken, and when used in the context of
any act or event, it shall mean the aggregate of the maximum sums insured and payable or deemed
to be insured and payable in relation to such act or event;

“Intellectual Property” means all patents, trade marks, service marks, logos, get-up, trade names,
internet domain names, rights in designs, blue prints, programmes and manuals, drawings,
copyright (including rights in computer software), database rights, semi-conductor, topography
rights, utility models, rights in know-how and other intellectual property rights, in each case
whether registered or unregistered and including applications for registration, and all rights or
forms of protection having equivalent or similar effect anywhere in the world;

“Interim Payment Certificate” or “IPC” means the interim payment certificate issued by the
Authority’s Engineer for payment to the Contractor in respect of Contractor’s claims for payment
raised in accordance with the provisions of this Agreement;

177
 {“Lead Member” shall, in the case of a consortium, mean the member of such consortium who
shall have the authority to bind the contractor and each member of the Consortium; and shall be
deemed to be the Contractor for the purposes of this Agreement;}$

“LOA” or “Letter of Acceptance” means the letter of acceptance referred to in Recital (E);

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

“Maintenance Inspection Report” shall have the meaning set forth in Clause 15.2.1;

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

“Maintenance Programme” shall have the meaning set forth in Clause 14.3;

“Maintenance Period” shall have the meaning set forth in Clause 14.1.1;

“Maintenance Requirements” shall have the meaning set forth in Clause 14.2;

“Major Bridge” means a bridge having a total length of more than 60 (sixty) metres between the
inner faces of the dirt walls as specified in IRC:5-1998;

“Manual” shall mean the Manual of Standards and Specifications for Two Laning of Highways
(IRC:SP:73-2007);

“Material Adverse Effect” means a material adverse effect of any act or event on the ability of
either Party to perform any of its obligations under and in accordance with the provisions of this
Agreement and which act or event causes a material financial burden or loss to either Party;

“Materials” are all the supplies used by the Contractor for incorporation in the Works or for the
maintenance of the Project Highway;

“Monthly Maintenance Statement shall have the meaning set forth in Clause 19.6.1;

“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” shall have the meaning set forth in Clause 7.1;

$ This definition may be omitted if the Contractor is not a Consortium.

178
“Plant” means the apparatus and machinery intended to form or forming part of the Works;

“Political Event” shall have the meaning set forth in Clause 21.4;

“Programme” shall have the meaning set forth in Clause 10.1.3;

“Project” means the construction and maintenance of the Project Highway in accordance with the
provisions of this Agreement, and includes all works, services and equipment relating to or in
respect of the Scope of the Project;

“Project Assets” means all physical and other assets relating to (a) tangible assets such as civil
works and equipment including foundations, embankments, pavements, road surface, interchanges,
bridges, culverts, road over-bridges, drainage works, traffic signals, sign boards, kilometre-stones,
[toll plaza(s)], electrical systems, communication systems, rest areas, relief centres, maintenance
depots and administrative offices; and (b) Project Facilities situated on the Site;

“Project Completion Date” means the date on which the Provisional Certificate is issued and in
the event no Provisional Certificate is issued, the date on which the Completion Certificate is
issued;

“Project Completion Schedule” means the progressive Project Milestones set forth in Schedule-J
for completion of the Project Highway on or before the Scheduled Completion Date;

“Project Facilities” means all the amenities and facilities situated on the Site, as described in
Schedule-C;

“Project Highway” means the Site comprising the existing road {, proposed bypasses and tunnels}
forming part of [NH-** from km ** to km **] and all Project Assets, and its subsequent
development and augmentation in accordance with this Agreement;

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

“Proof Consultant” shall have the meaning set forth in Clause 10.2.2;

“Provisional Certificate” shall have the meaning set forth in Clause 12.2;

“Punch List” shall have the meaning set forth in Clause 12.2.1;

“Quality Assurance Plan” or “QAP” shall have the meaning set forth in Clause 11.2;

“Re.”, “Rs.” or “Rupees” or “Indian Rupees” means the lawful currency of the Republic of
India;

“Request for Proposals” or “RFP” shall have the meaning set forth in

Recital ‘D’;

“Request for Qualification” or “RFQ” shall have the meaning set forth in Recital ‘C’;

179
“Retention Money” shall have the meaning set forth in Clause 7.5.1;

“Right of Way” means the constructive possession of the Site free from encroachments and
encumbrances, 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 10.1.5;

“Scheduled Completion Date” shall be the date set forth in Clause 10.3.1;

“Scope of the Project” shall have the meaning set forth in Clause 2.1;

“Section” means a part of the Project Highway;

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

“Specifications and Standards” means the specifications and standards relating to the quality,
quantity, capacity and other requirements for the Project Highway, as set forth in Schedule-D, and
any modifications thereof, or additions thereto, as included in the design and engineering for the
Project Highway submitted by the Contractor to, and expressly approved by, the Authority;

"Stage Payment Statement" shall have the meaning set forth in Clause 19.4;

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

“Sub-contractor” means any person or persons to whom a part of the Works or the Maintenance
has been subcontracted by the Contractor and the permitted legal successors in title to such person,
but not an assignee to such person;

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

“Taxes” means any Indian taxes including excise duties, customs duties, value added tax, sales
tax, local taxes, cess and any impost or surcharge of like nature (whether Central, State or local) on
the goods, Materials, equipment and services incorporated in and forming part of the Project
Highway charged, levied or imposed by any Government Instrumentality, but excluding any
interest, penalties and other sums in relation thereto imposed on any account whatsoever. For the
avoidance of doubt, Taxes shall not include taxes on corporate income;

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

“Termination Notice” means the communication issued in accordance with this Agreement by one
Party to the other Party terminating this Agreement;

“Termination Payment” means the amount payable by either Party to the other upon Termination
in accordance with Article 23;

“Terms of Reference” or “TOR” shall have the meaning set forth in Clause 18.2.1;

“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 10.5.1;
180
 “User” means a person who travels or intends to travel on the Project Highway or any part thereof
in/on any vehicle;

“Valuation of Unpaid works” shall have the meaning set forth in Clause 23.5.1;

“Works” means all works including survey and investigation, design, engineering, procurement,
construction, Plant, Materials, maintenance, temporary works and other things necessary to
complete the Project Highway in accordance with this Agreement; and

“WPI” means the wholesale price index for various commodities as published by the Ministry of
Commerce and Industry, GOI and shall include any index which substitutes the WPI, and any
reference to WPI shall, unless the context otherwise requires, be construed as a reference to the
WPI published for the period ending with the preceding month.

IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED AND DELIVERED THIS AGREEMENT
AS OF THE DAY, MONTH AND YEAR FIRST ABOVE WRITTEN.

SIGNED, SEALED AND SIGNED, SEALED AND

DELIVERED DELIVERED

For and on behalf of For and on behalf of

THE AUTHORITY by: THE CONTRACTOR by:

(Signature) (Signature)

(Name) (Name)

(Designation) (Designation)

In the presence of: 1.

2.

{COUNTERSIGNED and accepted by:

Name and particulars of other members of the Consortium}

181
Schedules

182
 SCHEDULE - A

(See Clauses 2.1 and 8.1)

SITE OF THE PROJECT

1 The Site

1.1 Site for the Planning, Design, Construction, Defect Liability and Maintenance & all other
works contingent thereto for the work of widening to Two lanes with paved shoulders
of existing NH 709 (Extn.) from km 123.520 to km 146.500 in the state of Haryana on EPC
basis shall include the land, structures and road works as described in Annex-I of this Schedule-A.

1.2 The dates of handing over the Right of Way to the Contractor are specified in Annex-II of this
Schedule-A.

1.3 An inventory of the Site including the land, buildings, structures, road works, trees and any other
immovable property on, or attached to, the Site shall be prepared jointly by the Authority
Representative and the Contractor, and such inventory shall form part of the memorandum referred
to in Clause 8.2.1 of this Agreement.

1.4 The alignment plans of the Project Highway are specified in Annex-III. In the case of sections
where no modification in the existing alignment of the Project Highway is contemplated, the
alignment plan has not been provided. Alignment plans have only been given for sections where the
existing alignment is proposed to be modified.

1.5 The status of the environment clearances obtained or awaited is given in Annex IV.

183
 Annex - I
(Schedule-A)

Site

[Note: Through suitable drawings and description in words, the land, buildings, structures and road
works comprising the Site shall be specified briefly but precisely in this Annex-I.]

1. Site

The Site for the Planning, Design, Construction, Defect Liability and Maintenance & all
other works contingent thereto for the work of widening to Two lanes with paved
shoulders of existing NH 709 (Extn.) from km 123.520 to km 146.500 in the state of
Haryana on EPC basis.
The land, carriageway and structures comprising the Site are described below.

2. Land

The Site of the Project Highway comprises the land described below:
S.No. Chainage (km.) ROW(m) Remarks
From To
1 Km. 123.520 146.500 25.00 M

3. Carriageway

The present carriageway of the Project Highway is a two Lane carriageway with carriageway
width of 7.00 mtrs. The type of the existing pavement is flexible.

4. Major Bridges

The Site includes the following Major Bridges:

S.No. Chainage Type of Structure No. of Width (m)

(km.) Foundation Sub- Superstructure span with
structure span
length (m)
------ ------- -------- -------- -------- -------- -------

5 Road over-bridges (ROB)/ Road under-bridges (RUB)

The Site includes the following ROB (road over railway line)/RUB (road under railway line):

S.No. Chainage Type of Structure No. of span Width ROB/RUB

(km.) Foundation Superstructure with span (m)
length (m)
------ ------- -------- -------- -------- -------- ------- -------

184
6. Grade separators
The Site includes the following grade separators:

S.No. Chainage Type of Structure No. of span Width (m)

(km.) Foundation Superstructure with span
length (m)
------ ------- -------- -------- -------- -------

7 Minor bridges
The Site includes the following minor bridges:

S. Chainag Type of Structure No. of spans Width

No e (km.) Foundation Sub-structure Superstructure with span (m)
length (m)
1 128.440 Brick Masonry Brick Masonry RCC Syphon 7.00 M

2 131.420 Brick Masonry Brick Masonry RCC 1 span 6.00 M 7.00 M

3 135.670 Brick Masonry Brick Masonry RCC Syphon 7.00 M

4 140.00 Brick Masonry Brick Masonry RCC 1 span 2.00 M 12.00 M

5 141.220 Brick Masonry Brick Masonry RCC 1 span 6.00 M 7.00 M

8 Railway level crossings

The Site includes the following railway level crossings:

S. No. Location (km) Remarks

--- ------- -------

9 Underpasses (vehicular, non vehicular)

The Site includes the following underpasses:

S. No. Chainage Type of Structure No. of Spans with Width

(km) span length (m) (m)

--- ------ ------ ------ -----

185
10 Culverts

The Site has the following culverts:

S.No. Chainage (km.) Type of Culvert Span/Opening Width (m)

with span length
(m)
1 125.340 Hume pipe 600 mm dia 10.00 M
2 127.300 Hume pipe 600 mm dia 10.00 M
3 128.200 Hume pipe 600 mm dia 10.00 M
4 131.300 Hume pipe 600 mm dia 10.00 M
5 133.200 Hume pipe 600 mm dia 10.00 M
6 143.420 Hume pipe 600 mm dia 10.00 M
7 129.650 Syphon type 7.00 M
8 138.500 Syphon type 7.00 M

11 Bus bays
The details of bus bays on the Site are as follows:

S. No. Chainage (km) Length (m) Left Hand Right Hand Side
Side

-- ------ ----- ----- -----

12 Truck Lay byes

The details of truck lay byes are as follows:

S.No. Chainage(km.) Length (m) Left Hand Side Right Hand Side
------- ------- ------- ------- -------

13 Road side drains

The details of the roadside drains are as follows:

S.No. Location Type

From km To km Masonry/cc (Pucca) Earthen (Kutcha)
------- ------- ------- ------- -------

14 Major junctions

The details of major junctions are as follows:

S.No. Location At grade Separated Category of Cross Road
From km To km NH SH MDR Others
------ ------ ------- ------- ------ ------- ------- ------
NIL

(NH: National Highway, SH: State Highway, MDR: Major District Road)

186
 15 Minor junctions

The details of the minor junctions are as follows:

S.No. Location Left/Right Type

km. T-junction Cross road
1 124.520 LHS T-junction Road to Vill. Haluwas
2 126.00 RHS T-junction Road to Vill. Devsar
3 126.800 LHS T-junction Road to Vill. Dhirana
4 133.500 RHS T-junction Road to Vill. Kairu
5 139.500 RHS T-junction Road to Vill. Bhangarh

16 Bypasses

The details of the bypasses are as follows:

S.No. Name of Chainage Length Carriageway

bypass (km) (in Km.) Width (m) Type
(town) From----to
----- ------ ------ ------ ------ ------

17 Other structures NIL

18 Referencing System

Kilometer stones exist over the length of the project highway. This is referred as “Existing Chainage”. While
chainage along new design centre line is referred to “Design Chainage”

187
 Annex - II
(Schedule-A)

Dates for providing Right of Way

The dates on which the Authority shall provide Right of Way to the Contractor on different stretches of
the Site are stated below:

S.No. From km to km Length Width Date of

(km.) (m) providing
ROW*
1 2 3 4 5
(i) Full Right of Way (full width) 123.520. to 146.500 22.98 25.00 ROW is available
(a) Stretch on appointed date
(b) Stretch
(c) Stretch
(ii) Part Right of Way (part width) ----- ----- ----- -----
(a) Stretch
(b) Stretch
(c) Stretch
(iii) Balance Right of Way (width) ----- ----- ----- -----
(a) Stretch
(b) Stretch
(c) Stretch

* The dates specified herein shall in no case be beyond 150 (one hundred and fifty) days after the
Appointed Date.

188
 Annex - III
(Schedule-A)

Alignment Plans

There is no change in the existing alignment of the Project Highway.

NIL

189
 Annex - IV
(Schedule-A)

Environment Clearances

The following environment clearances have been obtained.

NIL

The following environment clearances are awaited:

NIL

Environmental Clearance is not required.

190
Planning, Design, Construction, Defect Liability and Maintenance & all other works contingent
thereto for the work of widening to Two lanes with paved shoulders of existing NH 709 (Extn.)
from km 123.520 (near Devsar Mor) to km 146.500 (before Jui Village) in Bhiwani District in the state
of Haryana on EPC basis

SCHEDULE - B
(See Clause 2.1)

Development of the Project Highway

1 Development of the Project Highway

Development of the Project Highway shall include design and construction of the Project Highway
as described in this Schedule-B and in Schedule-C.

2 [Rehabilitation and augmentation]

[Rehabilitation and augmentation] shall include [Two-Laning and strengthening] of the Project
Highway as described in Annex-I of this Schedule-B and in Schedule-C.

3 Specifications and Standards

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

191
 Annex - I
(Schedule-B)

Planning, Design, Construction, Defect Liability and Maintenance & all other works
contingent thereto for the work of widening to Two lanes with paved shoulders of
existing NH 709 (Extn.) from km 123.520 (near Devsar Mor) to km 146.500 (before Jui
Village) in Bhiwani District in the state of Haryana on EPC basis

1 WIDENING OF THE EXISTING HIGHWAY

1.1 The Project Highway shall follow the existing alignment unless otherwise specified by the
Authority and shown in the alignment plans specified in Annex III of Schedule-A. Geometric
deficiencies, if any, in the existing horizontal and vertical profiles shall be corrected as per the
prescribed standards for [plain/rolling] terrain to the extent land is available.

1.2 WIDTH OF CARRIAGEWAY

1.2.1 Two-Laning with paved shoulders shall be undertaken. The paved carriageway shall be 10 (Ten)
m wide in accordance with the typical cross sections drawings in the Manual of Specifications
and Standards for Two Laning of Highways (IRC:SP:73-2007), referred to as the Manual.

Provided that in the built-up areas the width of the carriageway shall be as specified in the
following table:

Sl. No. Built-up stretch Location Width Typical cross section

(Township) (km to km) (m) (Ref. to Manual)

10M

1.2.2 Except as otherwise provided in this Agreement, the width of the paved
carriageway and cross-sectional features shall conform to paragraph 1.1 above.

GEOMETRIC DESIGN AND GENERAL FEATURES

2.1 General

Geometric design and general features of the Project Highway shall be in accordance with
Section 2 of the Manual.

2.2 Design speed

The design speed shall be ruling design speed 100 km/per hr and minimum design speed of 80
km per hr for plain terrain.
192
2.3 Improvement of the existing road geometrics

In the following sections, where improvement of the existing road geometrics to the prescribed
standards is not possible, the existing road geometrics shall be improved to the extent possible
within the given right of way and proper road signs and safety measures shall be provided:

Sl. No. Stretch Type of deficiency Remarks

(from km to km)

Nil

2.4 Right of Way

Details of the Right of Way are given in Annexure-II of Schedule-A.

2.5 Type of shoulders

(a) In built-up sections, Brick on edge paving shall be provided in the following stretches:

Sr. Stretch Brick on edge Referenc

No. (from km to km) paving e to
cross
section

1 From Km.133.00 to 133.500 (LHS) Village Lohani Refer x-

2 From Km. 133.00 to 135.00(RHS) Village Lohani section at
3 From Km. 142.20 to 142.750(LHS) Village Lehlana annexure
4 From Km. 144.00 to 144.50(Both side) Village Golagarh 1A of
schedule
5. From Km. 145.50 to 145.845(RHS) Village Shankar
B

(b) In open country, paved shoulders of 1.5 m width shall be provided and balance 1.0m width shall
be earthen shoulders as per MORT&H specifications in section 300.

(c) Design and specifications of paved shoulders shall conform to the requirements specified in
paragraphs 5.9.9 of the Manual.

2.6 Lateral and vertical clearances at underpasses

2.6.1 Lateral and vertical clearances at underpasses and provision of guardrails/crash barriers shall be
as per paragraph 2.11 of the Manual.

2.6.2 Lateral clearance: The width of the opening at the underpasses shall be as follows:

Sl. No. Location Span/opening (m) Remarks

(chainage)
(from km to
km)
NIL
193
2.7 Lateral and vertical clearances at overpasses

2.7.1 Lateral and vertical clearances at overpasses shall be as per paragraph 2.12 of the Manual.

2.7.2 Lateral clearance: The width of the opening at the overpasses shall be as follows:

Sl. No. Location Span/opening Remarks

(chainage) (m)
(from km to
km)
NIL

2.8 Service roads

Service roads shall be constructed at the locations and for the lengths indicated below: [Refer to
section 2.13 of IRC:SP:73-2007 and provide details below]

Sl No. Location of Right hand side (RHS)/Left Length (km) of

service road hand
(from km to km) side (LHS)/ or Both sides service road

NIL

2.9 Grade separated structures

2.9.1 Grade separated structures shall be provided as per section 2.14 of IRC:SP:73-2007. The requisite
particulars are given below:
[Refer to section 2.14.1 of IRC:SP:73-2007 and provide details below]

Sl. No. Location of Length (m) Number Approach Remarks,

structure and length gradient if any
of spans
(m)

NIL

2.9.2 In the case of grade separated structures, the type of structure and the level of the Project Highway
and the cross roads shall be as follows:

Sl. Location Type of Cross road at Remarks, if any

No. structure
Length
(m) Existing Raised Lowered
Level Level Level

NIL

2.10 Cattle and pedestrian underpass /overpass

Cattle and pedestrian underpass/ overpass shall be constructed as follows:

194
 Sl. No. Location Type of crossing

NIL
2.11 Typical cross-sections of the Project Highway
The typical cross-section shall be as per figure-2.1 of the Manual.
3 INTERSECTIONS AND GRADE SEPARATORS
All intersections and grade separators shall be as per Section 3 of IRC:SP:73-2007. Existing
intersections which are deficient shall be improved to the prescribed standards.
[Refer to section 3.1.1, 3.1.2 and 3.3 of IRC:SP:73-2007 and specify the requirements. Explain
where necessary with drawings/sketches/general arrangement]
Properly designed intersections shall be provided at the locations and of the types and features
given in the tables below:
(a) At-grade intersections

Sl. No. Location of Type of Other features

intersection intersection

1 124.520 LHS T-junction Road to Vill. Haluwas

2 126.00 RHS T-junction Road to Vill. Devsar
3 126.800 LHS T-junction Road to Vill. Dhirana
4 133.500 RHS T-junction Road to Vill. Kairu
5 139.500 RHS T-junction Road to Vill. Bhangarh
(b) Grade separated intersection with/without ramps

SI No. Location Salient Minimum length of Roadto be carried

features viaduct to be provided over/under the
structures
NIL

4 ROAD EMBANKMENT AND CUT SECTION

4.1 Widening and improvement of the existing road embankment/cuttings and construction of new
road embankment/ cuttings shall conform to the Specifications and Standards given in section 4 of
the Manual and the specified cross sectional details. Deficiencies in the plan and profile of the
existing road shall be corrected.
4.2 Raising of the existing road [Refer to section 4.2.2 of IRC:SP:73-2007 and specify sections to be
raised]
The existing road shall be raised in the following sections:

SI.No. Section (from km to km) Length Extent of raising [Top of finished road level]
NIL

5 PAVEMENT DESIGN
5.1 Deleted.
5.2 Type of pavement

At no location in the project highway CC pavement is to be provided.

195
5.3 Design requirements

5.3.1 Design Period and strategy

Flexible pavement for new pavement or for widening and strengthening of the existing pavement
shall be designed for a minimum design period of 15 years. Stage construction shall not be
permitted.

5.3.2 Design Traffic

The pavement layers are to be provided as under :-

Widening portion
GSB - 150mm
WMM - 165mm
DBM - 85mm thick

BC - 40 mm in full width (10 m)

5% DBM has been allowed of total area of the existing surface for repair of the damaged/
cracked / failure area with proper scarification, rectification and compaction before
overlaying BC. Complete videography before and after this stage is to be submitted by the
Contractor to the Authority, Authority’s Engineer and Regional Officer MoRT&H
Chandigarh before laying of BC, otherwise no payment for this stage would be made.

Stipulations made in the Manaual for Construction and Supervision of Bituminous works shall be
strictly followed during execution of works by the Contractor and Authority’s Engineer.

Batch type Ho tmix Plant must be located at such a location that farthest point of the reach will be
within 25 km from the Hot mix Plant.

The work of road items should not continue over the bridges,if any. The longitudinal profile of
the road immediately before the approaches should be suitably adjusted to merge with the road
level of the bridge as per guidelines circulated vide Ministry’s letter no. RW/NH-33044/10/2000-
S & R dated 1st June 2000.

DBM layer shall be covered with the wearing course within a maximum of 48 hours. If there is to
be any delay, the course shall be covered by a seal coat before opening to any traffic. The seal coat
in such cases shall be considered incidental to the work and shall not be paid for separately.

No work beyond the sanctioned estimate leading to increase in the scope of the work or change in
specifications shall be undertaken without obtaining prior approval of the Ministry. In this
connection the Ministry’s letter no. RW/NHIII/ Coord/32/64 dated 19.5.1984 and NH-
11026/2/99- US(DI) DATED 29.10.2001 may be referred.

During the course of execution, the traffic may be regulated in accordance with guidelines laid
down vide Ministry’s letter No. NH III 33(126)/72 DATED 20.03 1973. Smooth flow of traffic
may be ensured by providing adequate traffic control devices in accordance with stipulations of
IRC SP 55 latest revision “
Guidelines on safety in Construction Zones.’

196
5.4 Reconstruction of stretches

[Refer to section 5.9.7 of IRC:SP:73-2007 and specify the stretches, if any, to be reconstructed.]

The following stretches of the existing road shall be reconstructed. These shall be designed as new
pavement.

SI.No. Stretch Remarks

From km. to km.
NIL

6 ROADSIDE DRAINAGE

Drainage system of surface drains for the Project Highway shall be provided as per section 6 of the
Manual.

Drainage system of RCC covered drains including & brick on edging between the RCC covered
drain and main carriage way at following locations of the Project Highway shall be provided as
per X-section enclosed in Annexure-1B of this schedule –B -
Village Lohani
Km. 133.00 to 133.500 (LHS)
Km. 134.00 to 135.00 (RHS)

Village Lehlana
Km. 142.200 to 142.750 ( Both side)

Village Golagarh
Km. 144.00 to 144.500 ( both side)

Village Dhani Shankar

Km. 145.500 to 145.845 ( RHS)

7 DESIGN OF STRUCTURES

7.1 General

7.1.1 All bridges, culverts and structures shall be designed and constructed in accordance with section 7
of the Manual and shall conform to the cross-sectional features and other details specified therein.

7.1.2 Width of the carriageway of new bridges and structures shall be as follows:
[Refer to section 7.1 (ii) of IRC:SP:73-2007 and specify the width of carriageway of new bridges
and structures of more than 60 metre length, if the carriageway width is different from 7.5 metres
in the table below.]

SI.No. Bridge at Km Width of carriageway and cross-sectional feature@

NIL

7.1.3 The following structures shall be provided with footpaths:

[Refer to paragraph 7.1 (iii) of the Manual and provide details of new Structures with footpath.]

SI.No. Location at km Remarks

NIL
197
7.1.4 All bridges shall be high-level bridges.
[Refer to section 7.1 (iv) of IRC:SP:73-2007 state if there is any exception]
7.1.5 The following structures shall be designed to carry utility services specified in table below:
[Refer to section 7.1 (viii) of IRC:SP:73-2007 and provide details]
SI.No. Bridge at Utility service to be carried Remarks
km.
Nil
7.1.6 Cross-section of the new culverts and bridges at deck level for the Project Highway shall conform
to the typical cross-sections given in section 7 of the Manual.

7.2 Culverts
7.2.1 Width of all Hume pipe culverts, slab type culverts and minor bridges at deck level shall be equal
to the roadway of 12 metres including width of crash barrier as per fig 7.2 of the manual.

7.2.2 Reconstruction of existing culverts:

The existing culverts at the following locations shall be re-constructed as new culverts:

[Refer to section 7.3 (i) of IRC:SP:73-2007 and provide details]

Sl. No. Culvert location (m) Remarks, if any*

Span/Opening
1 125.340 1000 mm dia Hume pipe Reinforced cement
concrete pipes for
culverts shall be of NP4
Type conforming to IS
458.
2 127.300 1000 mm dia Hume pipe Suitable concrete cradle
bedding as per clause
2904 of MOSRTH
specification shall be
3 128.200 1000 mm dia Huma pipe provided.
Minimum cushion of 600
mm shall be provided for
4 143.420 1000 mm dia hume pipe pipe culverts
Floor protection, wing
wall, crash barrier and
other ancillary works
shall be constructed as
per design and directions
198
 of Authority’s Engineer.

5 129.650 2x2 m RCC slab type

6 138.500 2x2 m RCC slab type

7.2.3 Widening of existing culverts

All existing culverts which are not to be reconstructed shall be widened to the roadway width of
the Project Highway as per the typical cross section given in section 7 of the Manual. Repairs and
strengthening of existing structures where required shall be carried out.

Sl. No. Culvert location Type, span, height and Repairs to be carried
Width of existing out [specify]
culvert (m)
---- ----- ----- ----

7.2.4 Additional new culverts shall be constructed as per particulars given in the table below:

Sl No. Culvert location Span/Opening (m)

1 40 No ( 2 Culvert per KM) . 600mm dia hume pipe

(i) Reinforced cement concrete pipes for culverts shall be of NP4 Type conforming to IS 458.
(ii) Suitable concrete cradle bedding as per clause 2904 of MOSRTH specification shall be provided.
(iii) Minimum cushion of 600 mm shall be provided for pipe culverts.
(iv) Floor protection, wing wall, crash barrier and other ancillary works shall be constructed as per
design and directions of Authority’s Engineer.

7.2.5 Repairs/replacements of railing/parapets, flooring and protection works of the existing culverts
shall be undertaken as follows:

[Refer to section 7.23 of IRC:SP:73-2007 and provide details]

Sl. No. Location at Type of repair required

km

---- ------ -------

7.2.6 Floor protection works shall be as specified in the relevant IRC Codes and Specifications.
7.3 Bridges
7.3.1 Existing bridges to be re- constructed

[(i) The existing bridges at the following locations shall be re-constructed

as new Structures:]

[Refer to section 7.3.2 of IRC:SP:73-2007 and provide details]

Sl. No. Bridge Salient details Adequacy or Remarks
location of otherwise
(km) existing bridge of the existing
waterway,
199
 vertical
clearance, etc*
1 128.440 Syphon type 1x3.0 M
2 130.420 6.00 m wide span 2x3.0 M
3 135.670 Syphon type 1x3.0 M
4 141.220 6.00 m wide span 2x3.0M
*GAD of the bridges to be reconstructed is attached at annexure 1-C of this schedule-B
(ii) The following narrow bridges shall be widened:
(iii)
Sl. No. Location Existing Extent of Cross-section at deck level
(km) width (m) widening (m) for widening @

----- ---- ------ ----- -------

7.3.2 Additional new bridges

[Specify additional new bridges if required, and attach GAD]

New bridges at the following locations on the Project Highway shall be constructed. GADs for the
new bridges are attached in the drawings folder.
Sl. No. Location Total length Remarks, if any
(km) (m)

-- ---- ----- -----

7.3.3 The railings of existing bridges shall be replaced by crash barriers at the following locations:

[Refer to section 7.18 (iv) of IRC:SP:73-2007 and provide details:]

Sl. No. Location at km Remarks

----- ------ ------

7.3.4 Repairs/replacements of railing/parapets of the existing bridges shall be undertaken as follows:

[Refer to section 7.18 (v) of IRC:SP:73-2007 and provide details]

Sl. No. Location at km Remarks

--- ----- ------

7.3.5 Drainage system for bridge decks

An effective drainage system for bridge decks shall be provided as specified in paragraph 7.21 of
the Manual

7.3.6 Structures in marine environment

[Refer to section 7.22 of IRC:SP:73-2007 and specify the necessary measures / treatments for
protecting structures in marine environment, where applicable]

200
7.4. Rail-road bridges

7.4.1 Design, construction and detailing of ROB/RUB shall be as specified in section 7 of the
Manual. [Refer to section 7.19 of IRC:SP:73-2007 and specify modification, if any]

7.4.2 Road over-bridges

Road over-bridges (road over rail) shall be provided at the following level crossings, as per GAD
drawings attached:
Sl. No. Location of Level crossing Length of bridge
(chainage km) (m)

--- ---- -----

7.4.3 Road under-bridges

Road under-bridges (road under railway line) shall be provided at the following level crossings, as
per GAD drawings attached:

Sl. No. Locationof Level Number and length of span

Crossing (chainage (m)
km)

--- ---- ---- -------

7.5 Grade separated structures

[Refer to section 7.20 of IRC:SP:73-2007]
The grade separated structures shall be provided at the locations and of the type and length
specified in section 2.9 and 3 of IRC:SP:73-2007 this Annex-I.
7.6 Repairs and strengthening of bridges and structures
[Refer to section 7.23 of IRC:SP:73-2007 and provide details]
The existing bridges and structures to be repaired/strengthened, and the nature and extent of
repairs /strengthening required are given below:
A. Bridges

Location of Nature and extent of repairs /strengthening to

Sl. No. bridge be
(km) carried out

---- ------ -----

B. ROB / RUB

Sl. No. Location of Nature and extent of repairs /strengthening to

ROB/RUB (km) be carried out

---- ------ -------

201
 C. Overpasses/Underpasses and other structures

Nature and extent of repairs /strengthening to

Sl. No. Location of be
Structure (km) carried out

--- ----- -------------

7.7 List of Major Bridges and Structures

The following is the list of the Major Bridges and Structures:

Sl. No. Location

---------- ----------

8 TRAFFIC CONTROL DEVICES AND ROAD SAFETY WORKS

8.1 Traffic control devices and road safety works shall be provided in accordance with Section 9 of
the Manual.
8.2 Specifications of the reflective sheeting. [Refer to section 9.3 of IRC:SP:73-2007 and specify]
9 ROADSIDE FURNITURE
Nil. However, the existing road side furniture is to be relocated as per provisions in contract
agreement and other schedules

10 COMPULSORY AFFORESTATION

Nil

11 HAZARDOUS LOCATIONS

The safety barriers shall also be provided at the following hazardous locations:

Location stretch from (km) to

Sl. No. (km) LHS/RHS

------ ------- ------

12 SPECIAL REQUIREMENT FOR HILL ROADS

[Refer to paragraphs 14.5 and 14.8 of the Manual and provide details where relevant and
required.]

13 CHANGE OF SCOPE

The length of Structures and bridges specified hereinabove shall be treated as an approximate
assessment. The actual lengths as required on the basis of detailed investigations shall be
determined by the Contractor in accordance with the Specifications and Standards. Any variations
in the lengths specified in this Schedule-B shall not constitute a Change of Scope, save and except
202
 any variations in the length arising out of a Change of Scope expressly undertaken in accordance
with the provisions of Article 13.

14 PRECONSTRUCTION ACTIVITIES
14.1 Land Acquisition (LA)
The additional land acquisition is not envisaged for the project. The project is to be designed and
constructed within the available Right of Way (ROW).

14.2 Utility Shifting and Removal of Trees

The project involves shifting of utilities of certain types. The cost towards utility shifting as per the
demand note of the concerned Government/Semi-Government agencies shall be borne by Authority.

14.3 Clearance to be obtained

The contractor shall obtain all necessary clearances from all the concemed authorities required for
implementing the project. Authority shall provide support letters in this regard.

14.4 Encroachment Removal

Encroachment shall be removed by the Authority at their own cost.

14.5 Compensatory Afforestation and Rehabilitation & Resettlement.

Authority shall bear cost in this regard. However, Contractor shall proactively be involved for all
related activities.

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205
206
207
208
209
210
211
212
213
214
 SCHEDULE - C
(See Clause 2.1)

PROJECT FACILITIES

1 Project Facilities

The Contractor shall construct the Project Facilities in accordance with the provisions of this
Agreement. Such Project Facilities shall include:

(a) toll plaza[s]; nil

(b) roadside furniture; Nil

(c) pedestrian facilities; Zebra crossing for pedestrians

(d) tree plantation; Nil

(e) truck lay-byes; Nil

(f) bus-bays and bus shelters; Nil

(h) rest areas; and Nil

(i) others to be specified side drains, brick on edge paving and centre line marking.

2 Description of Project Facilities

Each of the Project Facilities is described below:

S. No. Project Facility Location Design Other essential

Requirements details

-- ------ ----- ------ -------

Note: Provide adequate details of each Project Facility to ensure their design and completion in
accordance with the project-specific requirements and the provisions of the Manual.

215
 SCHEDULE - D
(See Clause 2.1)

SPECIFICATIONS AND STANDARDS

1 Construction

The Contractor shall comply with the Specifications and Standards set forth in Annex-I of this
Schedule-D for construction of the Project Highway.

2 Design Standards

The Project Highway including Project Facilities shall conform to design requirements set out in
the following documents:

[Manual of Specifications and Standards for Two Laning of Highways (IRC: SP: 73-2007), referred
to herein as the Manual]

[Note: Specify the relevant Manual, Specifications and Standards]

216
 Annex - I
(Schedule-D)

Specifications and Standards for Construction

1 Specifications and Standards

All Materials, works and construction operations shall conform to the Manual of Specifications and
Standards for Two-Laning of Highways (IRC:SP:73-2007), referred to as the Manual, and MORTH
Specifications for Road and Bridge Works. Where the specification for a work is not given, Good
Industry Practice shall be adopted to the satisfaction of the Authority’s Engineer.

2 Deviations from the Specifications and Standards

2.1 The terms “Concessionaire”, “Independent Engineer” and “Concession Agreement” used in the
Manual shall be deemed to be substituted by the terms “Contractor”, “Authority’s Engineer” and
“Agreement” respectively.

2.2 [Notwithstanding anything to the contrary contained in Paragraph 1 above, the following
Specifications and Standards shall apply to the Project Highway, and for purposes of this
Agreement, the aforesaid Specifications and Standards shall be deemed to be amended to the extent
set forth below:]

[Note 1: Deviations from the aforesaid Specifications and Standards shall be listed out here. Such
deviations shall be specified only if they are considered essential in view of project-specific
requirements.]

2.3 Typical X-section for the project highway shall be as per figure-2.1 of the Manual.

217
 Schedule – E
(See Clause 2.1 and 14.2)

MAINTENANCE REQUIREMENTS
1. Maintenance Requirements
1.1. The Contractor shall, at all time maintain the Bridges and their approaches in accordance with the
provisions of this Agreement, Applicable Laws and Applicable Permits.

1.2 The Contractor shall repair or rectify any Defect or deficiency set forth in Paragraph 2 of this
Schedule-E within the time limit specified therein and any failure in this behalf shall constitute non-
fulfillment of the Maintenance obligations by the Contractor. Upon occurrence of any breach
hereunder, the Authority shall be entitled to effect reduction in monthly lump sum payment as set
forth in Clause 14.6 of this Agreement, without prejudice to the rights of the Authority under this
Agreement, including Termination thereof.

1.3. All Materials, works and construction operations shall conform to the "SPECIFICATIONS FOR
ROAD AND BRIDGE WORKS (FIFTH REVISION, April 2013)”, including latest corrections
slips, issued by the Ministry of Surface Transport & Highways, Government of India and published
by the Indian Roads Congress.
This being not an item rate contract, the procedure for Measurement and Payment for the items of
works shall be in accordance with provision of Article 19 of the Agreement. Therefore, the Sub
Clauses of measurement for payment and rates in above specifications stand deleted.
Where the specifications for a work are not given, Good Industry Practice shall be adopted to the
satisfaction of the Authority’s Engineer.
2. Repair/rectification of Defects and deficiencies
The obligations of the Contractor in respect of Maintenance Requirements shall include repair and
rectification of the Defects and deficiencies specified in Annex-I of this Schedule-E within the time
limit set forth therein.

3. Other Defects and deficiencies

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

4. Extension of time limit

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

218
5. Emergency repairs/restoration
Notwithstanding anything to the contrary contained in this Schedule-E, if any Defect, deficiency or
deterioration in the Bridge poses a hazard to safety or risk of damage to property, the Contractor
shall promptly take all reasonable measures for eliminating or minimizing such danger.

6. Daily inspection by the Contractor

The Contractor shall, through its engineer, undertake a daily visual inspection of the Bridge and
maintain a record thereof in a register to be kept in such form and manner as the Authority’s
Engineer may specify. Such record shall be kept in safe custody of the Contractor and shall be open
to inspection by the Authority and the Authority’s Engineer at any time during office hours.

7. Pre-monsoon inspection / Post-monsoon inspection

The Contractor shall carry out a detailed pre-monsoon inspection of all bridges, culverts and
drainage system before [1st June] every year in accordance with the guidelines contained in IRC:
SP:35. Report of this inspection together with details of proposed maintenance works as required on
the basis of this inspection shall be sent to the Authority’s Engineer before the [10th June] every
year. The Contractor shall complete the required repairs before the onset of the monsoon and send to
the Authority’s Engineer a compliance report. Post monsoon inspection shall be done by the [30th
September] and the inspection report together with details of any damages observed and proposed
action to remedy the same shall be sent to the Authority’s Engineer.

8. Repairs on account of natural calamities

All damages occurring to the Bridge on account of torrential rains, floods, earthquake or other
natural disasters shall be undertaken by the Contractor at its own cost and/or out of the proceeds of
insurance.

219
 Annex – I
(Schedule-E)
Repair/rectification of Defects and deficiencies
The Contractor shall repair and rectify the defects and deficiencies specified in this Annex-I of
Schedule-E within the time limit set forth in the table below: -

Nature of Defect or deficiency Time limit for repair/rectification

ROADS
(a) Carriageway and paved shoulders
(i) Breach or blockade Temporary restoration of traffic within
24 hours; permanent restoration within
15 (fifteen) days
(ii) Roughness value exceeding 2000 mm in a stretch 120 (one hundred and twenty) days
of 1 km (as measured by a calibrated bump
integrator)
(iii) Pot holes 24 hours

(iv) Any cracks in road surface 15 (fifteen) days

(v) Any depressions, rutting exceeding 10 mm in 30 (thirty) days
road surface
(vi) Bleeding/skidding 7 (seven) days
(vii) Any other defect/distress on the road 15 (fifteen) days
(viii) Damage to pavement edges 15 (fifteen) days
(ix) Removal of debris, dead animals 6 hours

(b) Granular earth shoulders, side slopes, drains

and culverts
(i) Variation by more than 1 % in the prescribed 7 (seven) days
slope of camber/cross fall (shall not be less than
the camber on the main carriageway)

Nature of Defect or deficiency Time limit for repair/rectification

(ii) Edge drop at shoulders exceeding 40 mm 7 (seven) days
(iii) Variation by more than 15% in the prescribed 30 (thirty) days
side (embankment) slopes
(iv) Rain cuts/gullies in slope 7 (seven) days

220
(v) Damage to or silting of culverts and side drains 7 (seven) days
(vi) Desilting of drains in urban/semi-urban areas 24 hours
(vii) Railing, parapets, crash barriers 7 (seven) days (Restore immediately if
causing safety hazard)
(c) Road side furniture including road sign and
pavement marking
(i) Damage to shape or position, poor visibility or 48 hours
loss of retro-reflectivity
(ii) Painting of km stone, railing, parapets, crash As and when required/Once every year
barriers
(iii) Damaged/missing road signs requiring 7 (seven) days
replacement
(iv) Damage to road mark ups 7 (seven) days
(d) Road lighting
(i) Any major failure of the system 24 hours
(ii) Faults and minor failures 8 hours
(e) Trees and plantation
(i) Obstruction in a minimum head-room of 5 m 24 hours
above carriageway or obstruction in visibility of
road signs
(ii) Removal of fallen trees from carriageway 4 hours
(iii) Deterioration in health of trees and bushes Timely watering and treatment

Nature of Defect or deficiency Time limit for repair/rectification

(iv) Trees and bushes requiring replacement 30 (thirty) days
(v) Removal of vegetation affecting sight line and 15 (fifteen) days
road structures
(f) Rest area DELETED
(g) Toll Plaza DELETED
(h) Other Project Facilities and Approach roads
(i) Damage in approach roads, pedestrian facilities, DELETED
truck lay-byes, bus-bays, bus-shelters, cattle
crossings, Traffic Aid Posts, Medical Aid Posts
and service roads
(ii) Damaged vehicles or debris on the road DELETED
(iii) Malfunctioning of the mobile crane DELETED

221
Bridges
(a) Superstructure
(i) Any damage, cracks, spalling/ scaling
Temporary measures within 48 hours
Permanent measures within 15 (fifteen) days or as specified
by the Authority’s Engineer
(b) Foundations
(i) Scouring and/or cavitation 15 (fifteen) days
(c) Piers, abutments, return walls and wing walls
(i) Cracks and damages including settlement and 30 (thirty) days
tilting, spalling, scaling
(ii) Any other defects/deficiency not covered above 3 (Three) days
(d) & (e) but pointed out by Authority’s
Engineer

Nature of Defect or deficiency Time limit for repair/rectification

(d) Bearings (metallic) of bridges
(i) Deformation, damages, tilting or shifting of 15 (fifteen) days
bearings Greasing of metallic bearings once in a
year
(e) Joints
(i) Malfunctioning of joints 15 (fifteen) days
(ii) Any other defects/deficiency not covered above 3 (Three) days
(a) , (b) &(c) but pointed out by Authority’s
Engineer

(f) Other items

(i) Deforming of pads in elastomeric bearings 7 (seven) days
(ii) Gathering of dirt in bearings and joints; or 3 (three) days
clogging of spouts, weep holes and vent-holes
(iii) Damage or deterioration in kerbs, parapets, 3 (three) days
handrails and crash barriers
(immediately within 24 hours if posing
danger to safety)
(iv) Rain-cuts or erosion of banks of the side slopes 7 (seven) days
of approaches
(v) Damage to wearing coat 15 (fifteen) days
(vi) Damage or deterioration in approach slabs, 30 (thirty) days
pitching, apron, toes, floor or guide bunds
(vii) Growth of vegetation affecting the structure or 15 (fifteen) days
obstructing the waterway

222
(viii) Any other defects/deficiency not covered above 3 (Three) days
but pointed out by Authority’s Engineer

(g) Hill Roads DELETED

The failure to address above measures for any of the defects/deficiency may attract reduction in
payment as per schedule M.

223
 Schedule-F
(See Clause 3.1.5(a))

APPLICABLE PERMITS

1. Applicable Permits
The Contractor shall obtain, as required under the Applicable Laws, the following Applicable
Permits:

(a) Permission of the State Government for extraction of boulders from quarry;
(b) Permission of Village Panchayat and Pollution Control Board for installation of crushers;
(c) License for use of explosives;
(d) Permission of the State Government for drawing water from river/reservoir;
(e) License from inspector of factories or other competent Authority for setting up batching
plant;
(f) Clearance of Pollution Control Board for setting up batching plant;
(g) Clearance of Village Panchayats and Pollution Control Board for setting up asphalt plant;
(h) Permission of Village Panchayats and State Government for borrow earth;
(i) License for explosives from Explosive controller;
(j) Explosive License for Storing Diesel;
(k) Permission required from State Electricity Board, Haryana, for installation of DG;
(l) Permission for electrical connection, if power source is available;
(m) Cutting of Trees, permission from Forest Department;
(n) Sewage Lines and Water Mains. Permission from Local Municipalities and Development
Authorities; and
(o) Any other permits, clearances or approvals required under Applicable Laws.

224
 Schedule-G
(See Clause 7.1.1, 7.5.3 and 19.2)
FORM OF BANK GUARANTEE
Annex-I
(See Clause 7.1.1)
PERFORMANCE SECURITY

Superintending Engineer,
Rohtak Circle,
Hr. PWD B&R Br.
Rohtak.

WHEREAS:

(A) ___________________ [name and address of contractor] (hereinafter called “the Contractor”)
and [Public Works Department, Government of Haryana], (“the Authority”) have entered
into an agreement (the “Agreement”) for Planning, Design, Construction, Defect
Liability and Maintenance & all other works contingent thereto for the
work of widening to Two lanes with paved shoulders of existing NH 709 (Extn.)
from km 123.520 to km 146.500 in the state of Haryana on Engineering, Procurement
& Construction (EPC) Basis Contract, subject to and in accordance with the provisions of the
Agreement.

(B) The Agreement requires the Contractor to furnish a Performance Security for due and faithful
performance of its obligations, under and in accordance with the Agreement, during the
Construction Period and Defects Liability Period (as defined in the Agreement) in a sum of Rs.
…. Crore (Rupees …. Crore) (the “Guarantee Amount”).

(C) We, …………….. through our branch at …………………………. (the “Bank”) have agreed to
furnish this bank guarantee (hereinafter called the “Guarantee”) by way of Performance Security.

NOW, THEREFORE, the Bank hereby, unconditionally and irrevocably, guarantees and affirms as
follows:

1. The Bank hereby unconditionally and irrevocably guarantees the due and faithful performance of the
Contractor’s obligations during and under and in accordance with the Agreement, and agrees and
undertakes to pay to the Authority, upon its mere first written demand, and without any demur,
reservation, recourse, contest or protest, and without any reference to the Contractor, such sum or
sums up to an aggregate sum of the guarantee amount as the Authority shall claim, without the
Authority being required to prove or to show grounds or reasons for its demand and/or for the sum
specified therein.

2. A letter from the Authority, under the hand of an officer not below the rank of [Executive Engineer],
that the Contractor has committed default in the due and faithful performance of all or any of its
obligations under and in accordance with the Agreement shall be conclusive, final and binding on
225
 the Bank. The Bank further agrees that the Authority shall be the sole judge as to whether the
Contractor is in default in due and faithful performance of its obligations during and under the
Agreement and its decision that the Contractor is in default shall be final, and binding on the Bank,
notwithstanding any difference between the Authority and the Contractor, or any dispute between
them pending before any court, tribunal, arbitrators or any other Authority or body, or by the
discharge of the Contractor for any reason whatsoever.

3. In order to give effect to this Guarantee, the Authority shall be entitled to act as if the Bank were the
principal debtor and any change in the constitution of the Contractor and/or the Bank, whether by
their absorption with any other body or corporation or otherwise, shall not in any way or manner
affect the liability or obligation of the Bank under this Guarantee.

4. It shall not be necessary, and the Bank hereby waives any necessity, for the Authority to proceed
against the Contractor before presenting to the Bank its demand under this Guarantee.

5. The Authority shall have the liberty, without affecting in any manner the liability of the Bank under
this Guarantee, to vary at any time, the terms and conditions of the Agreement or to extend the time
or period for the compliance with, fulfillment and/or performance of all or any of the obligations of
the Contractor contained in the Agreement or to postpone for any time, and from time to time, any of
the rights and powers exercisable by the Authority against the Contractor, and either to enforce or
forbear from enforcing any of the terms and conditions contained in the Agreement and/or the
securities available to the Authority, and the Bank shall not be released from its liability and
obligation under these presents by any exercise by the Authority of the liberty with reference to the
matters aforesaid or by reason of time being given to the Contractor or any other forbearance,
indulgence, act or omission on the part of the Authority or of any other matter or thing whatsoever
which under any law relating to sureties and guarantors would but for this provision have the effect
of releasing the Bank from its liability and obligation under this Guarantee and the Bank hereby
waives all of its rights under any such law.

6. This Guarantee is in addition to and not in substitution of any other guarantee or security now or
which may hereafter be held by the Authority in respect of or relating to the Agreement or for the
fulfillment, compliance and/or performance of all or any of the obligations of the Contractor under
the Agreement.

7. Notwithstanding anything contained hereinbefore, the liability of the Bank under this Guarantee is
restricted to the Guarantee amount and this Guarantee will remain in force for the period specified in
paragraph 8 below and unless a demand or claim in writing is made by the Authority on the Bank
under this Guarantee all rights of the Authority under this Guarantee shall be forfeited and the Bank
shall be relieved from its liabilities hereunder.

8. The Performance Security shall cease to be in force and effect upto 90 (ninety) days after the end of
the Defects Liability Period as set forth in Clauses 17.1 of EPC agreement.

9. The Bank undertakes not to revoke this Guarantee during its currency, except with the previous
express consent of the Authority in writing, and declares and warrants that it has the power to issue
this Guarantee and the undersigned has full powers to do so on behalf of the Bank.

10. Any notice by way of request, demand or otherwise hereunder may be sent by post addressed to the
Bank at its above referred branch, which shall be deemed to have been duly authorized to receive
such notice and to effect payment thereof forthwith, and if sent by post it shall be deemed to have

226
 been given at the time when it ought to have been delivered in due course of post and in proving
such notice, when given by post, it shall be sufficient to prove that the envelope containing the notice
was posted and a certificate signed by an officer of the Authority that the envelope was so posted
shall be conclusive.
[[[

11. This Guarantee shall come into force with immediate effect and shall remain in force and effect for
up to the date specified in para 8 above or until it is released earlier by the Authority pursuant to the
provisions of the Agreement.

Signed and sealed this ……….. day of ………. 20…….. at ………

SIGNED, SEALED AND DELIVERED

For and on behalf of the Bank by:

(Signature)

(Name)

(Designation)

(Code Number)

(Address)

NOTES:

(i) The bank guarantee should contain the name, designation and code number of the officer(s) signing
the guarantee.

(ii) The address, telephone number and other details of the head office of the Bank as well as of issuing
branch should be mentioned on the covering letter of issuing branch.

227
 Annex-II
(Schedule-G)
(See Clause 7.5.3)

Form for Guarantee for Withdrawal of Retention Money

Superintending Engineer,
Rohtak Circle,
Hr. PWD B&R Br.
Rohtak.

WHEREAS:

(A) [Name and address of contractor] (hereinafter called “the Contractor”) has executed an
agreement (hereinafter called the “Agreement”) with the [Public Works Department,
Government of Haryana], (hereinafter called “the Authority”) for the Planning, Design,
Construction, Defect Liability and Maintenance & all other works
contingent thereto for the work of widening to Two lanes with paved
shoulders of existing NH 709 (Extn.) from km 123.520 to km 146.500 in the
state of Haryana on Engineering, Procurement & Construction (EPC) Basis Contract,
subject to and in accordance with the provisions of the Agreement.

(B) in accordance with the Clause 7.5.3 of the Agreement, whenever the amount of the retention
money (hereinafter called “Retention Money”) held by the Authority exceeds 1% (one per
cent) of the Contract Price, the Contractor may, at its option, withdraw the Retention Money
after furnishing to the Authority a bank guarantee for an amount equal to the proposed
withdrawal.

(C) We, …………….. through our branch at …………………………. (the “Bank”) have agreed
to furnish this bank guarantee (hereinafter called the “Guarantee”) for the amount of Rs.
…………. ( ………. in words) (the “Guarantee Amount”).

NOW, THEREFORE, the Bank hereby, unconditionally and irrevocably, guarantees and affirms as
follows:

1. The Bank hereby unconditionally and irrevocably undertakes to pay to the Authority, upon its mere
first written demand, and without any demur, reservation, recourse, contest or protest, and without
any reference to the Contractor, such sum or sums up to an aggregate sum of the Guarantee Amount
as the Authority shall claim, without the Authority being required to prove or to show grounds or
reasons for its demand and/or for the sum specified therein.

2. A letter from the Authority, under the hand of an officer not below the rank of [Executive Engineer],
that the Contractor has committed default in the due and faithful performance of all or any of its
obligations under and in accordance with the Agreement shall be conclusive, final and binding on

228
 the Bank. The Bank further agrees that the Authority shall be the sole judge as to whether the
Contractor is in default in due and faithful performance of its obligations during and under the
Agreement and its decision that the Contractor is in default shall be final, and binding on the Bank,
notwithstanding any difference between the Authority and the Contractor, or any dispute between
them pending before any court, tribunal, arbitrators or any other Authority or body, or by the
discharge of the Contractor for any reason whatsoever.

3. In order to give effect to this Guarantee, the Authority shall be entitled to act as if the Bank were the
principal debtor and any change in the constitution of the Contractor and/or the Bank, whether by
their absorption with any other body or corporation or otherwise, shall not in any way or manner
affect the liability or obligation of the Bank under this Guarantee.

4. It shall not be necessary, and the Bank hereby waives any necessity, for the Authority to proceed
against the Contractor before presenting to the Bank its demand under this Guarantee.

5. The Authority shall have the liberty, without affecting in any manner the liability of the Bank under
this Guarantee, to vary at any time, the terms and conditions of the Retention Money and any of the
rights and powers exercisable by the Authority against the Contractor, and either to enforce or
forbear from enforcing any of the terms and conditions contained in the Agreement and/or the
securities available to the Authority, and the Bank shall not be released from its liability and
obligation under these presents by any exercise by the Authority of the liberty with reference to the
matters aforesaid or by reason of time being given to the Contractor or any other forbearance,
indulgence, act or omission on the part of the Authority or of any other matter or thing whatsoever
which under any law relating to sureties and guarantors would but for this provision have the effect
of releasing the Bank from its liability and obligation under this Guarantee and the Bank hereby
waives all of its rights under any such law.

6. This Guarantee is in addition to and not in substitution of any other guarantee or security now or
which may hereafter be held by the Authority in respect of or relating to the Retention Money.

7. Notwithstanding anything contained hereinbefore, the liability of the Bank under this Guarantee is
restricted to the Guarantee amount and this Guarantee will remain in force for the period specified in
paragraph 8 below and unless a demand or claim in writing is made by the Authority on the Bank
under this Guarantee all rights of the Authority under this Guarantee shall be forfeited and the Bank
shall be relieved from its liabilities hereunder.

8. The guarantee shall cease to be in force and effect 90 (ninety) days after the end of the Defects
Liability Period specified in Clauses 17.1 of the Agreement.

9. The Bank undertakes not to revoke this Guarantee during its currency, except with the previous
express consent of the Authority in writing, and declares and warrants that it has the power to issue
this Guarantee and the undersigned has full powers to do so on behalf of the Bank.

10. Any notice by way of request, demand or otherwise hereunder may be sent by post addressed to the
Bank at its above referred branch, which shall be deemed to have been duly authorized to receive
such notice and to effect payment thereof forthwith, and if sent by post it shall be deemed to have
been given at the time when it ought to have been delivered in due course of post and in proving
such notice, when given by post, it shall be sufficient to prove that the envelope containing the notice
was posted and a certificate signed by an officer of the Authority that the envelope was so posted
shall be conclusive.

229
 11. This Guarantee shall come into force with immediate effect and shall remain in force and effect for
up to the date specified in para 8 above or until it is released earlier by the Authority pursuant to the
provisions of the Agreement.

Signed and sealed this ……….. day of ………. 20…….. at ………

SIGNED, SEALED AND DELIVERED

For and on behalf of the Bank by:

(Signature)

(Name)

(Designation)

(Code Number)

(Address)

NOTES:

(i) The bank guarantee should contain the name, designation and code number of the officer(s) signing
the guarantee.

(ii) The address, telephone number and other details of the head office of the Bank as well as of issuing
branch should be mentioned on the covering letter of issuing branch.

230
 Annex-II
(Schedule-G)
(See Clause 19.2)

Form for Guarantee for Advance Payment

Superintending Engineer,
Rohtak Circle,
Hr. PWD B&R Br.
Rohtak.

WHEREAS:

(A) [name and address of contractor] (hereinafter called “the Contractor”) has executed an
agreement (hereinafter called the “Agreement”) with the [Public Works Department,
Government of Haryana], for the Planning, Design, Construction, Defect Liability
and Maintenance & all other works contingent thereto for the work of
widening to Two lanes with paved shoulders of existing NH 709 (Extn.) from
km 123.520 to km 146.500 in the state of Haryana on Engineering, Procurement &
Construction (EPC) Basis Contract, subject to and in accordance with the provisions of the
Agreement.

(B) in accordance with the Clause 19.2 of the Agreement the Authority shall make to the
Contractor an interest free advance payment (hereinafter called “Advance Payment”) equal
to 10% (ten per cent) of the contract price for mobilization expenses and acquisition of
equipment; and that the Advance Payment shall be made in three installments subject to the
Contractor furnishing an irrevocable and unconditional guarantee by a scheduled bank for an
amount equal to the amount of each installment to remain effective till the complete and full
repayment of the installment of the Advance Payment as security for compliance with its
obligations in accordance with the Agreement; and the amount of (first/second/third)
installment of the Advance Payment is Rs. **** cr. (Rupees ***** crore) (the “Guarantee
Amount”).

(C) We, …………….. through our branch at …………………………. (the “Bank”) have agreed
to furnish this bank guarantee (hereinafter called the “Guarantee”) for the Guarantee
Amount.

NOW, THEREFORE, the Bank hereby, unconditionally and irrevocably, guarantees and affirms as
follows:

1. The Bank hereby unconditionally and irrevocably guarantees the due and faithful repayment on time
of the aforesaid installment of the Advance Payment under and in accordance with the Agreement,
and agrees and undertakes to pay to the Authority, upon its mere first written demand, and without
any demur, reservation, recourse, contest or protest, and without any reference to the Contractor,
such sum or sums up to an aggregate sum of the guarantee amount as the Authority shall claim,
without the Authority being required to prove or to show grounds or reasons for its demand and/or
for the sum specified therein.

2. A letter from the Authority, under the hand of an officer not below the rank of [Executive Engineer],
that the Contractor has committed default in the due and faithful performance of all or any of its
obligations for the repayment of the installment of the Advance Payment under and in accordance
with the Agreement shall be conclusive, final and binding on the Bank. The Bank further agrees that

231
 the Authority shall be the sole judge as to whether the Contractor is in default in due and faithful
performance of its obligations during and under the Agreement and its decision that the Contractor is
in default shall be final, and binding on the Bank, notwithstanding any difference between the
Authority and the Contractor, or any dispute between them pending before any court, tribunal,
arbitrators or any other Authority or body, or by the discharge of the Contractor for any reason
whatsoever.

3. In order to give effect to this Guarantee, the Authority shall be entitled to act as if the Bank were the
principal debtor and any change in the constitution of the Contractor and/or the Bank, whether by
their absorption with any other body or corporation or otherwise, shall not in any way or manner
affect the liability or obligation of the Bank under this Guarantee.

4. It shall not be necessary, and the Bank hereby waives any necessity, for the Authority to proceed
against the Contractor before presenting to the Bank its demand under this Guarantee.

5. The Authority shall have the liberty, without affecting in any manner the liability of the Bank under
this Guarantee, to vary at any time, the terms and conditions of the Advance Payment or to extend
the time or period of its repayment or to postpone for any time, and from time to time, any of the
rights and powers exercisable by the Authority against the Contractor, and either to enforce or
forbear from enforcing any of the terms and conditions contained in the Agreement and/or the
securities available to the Authority, and the Bank shall not be released from its liability and
obligation under these presents by any exercise by the Authority of the liberty with reference to the
matters aforesaid or by reason of time being given to the Contractor or any other forbearance,
indulgence, act or omission on the part of the Authority or of any other matter or thing whatsoever
which under any law relating to sureties and guarantors would but for this provision have the effect
of releasing the Bank from its liability and obligation under this Guarantee and the Bank hereby
waives all of its rights under any such law.

6. This Guarantee is in addition to and not in substitution of any other guarantee or security now or
which may hereafter be held by the Authority in respect of or relating to the Advance Payment.

7. Notwithstanding anything contained hereinbefore, the liability of the Bank under this Guarantee is
restricted to the Guarantee amount and this Guarantee will remain in force for the period specified in
paragraph 8 below and unless a demand or claim in writing is made by the Authority on the Bank
under this Guarantee all rights of the Authority under this Guarantee shall be forfeited and the Bank
shall be relieved from its liabilities hereunder.

8. The guarantee shall cease to be in force and effect 90 (ninety) days after the end of the one year from
the date of payment of the installment of the Advance Payment, as set forth in Clause 19.2 of the
Agreement.

9. The Bank undertakes not to revoke this Guarantee during its currency, except with the previous
express consent of the Authority in writing, and declares and warrants that it has the power to issue
this Guarantee and the undersigned has full powers to do so on behalf of the Bank.

10. Any notice by way of request, demand or otherwise hereunder may be sent by post addressed to the
Bank at its above referred branch, which shall be deemed to have been duly authorized to receive
such notice and to effect payment thereof forthwith, and if sent by post it shall be deemed to have
been given at the time when it ought to have been delivered in due course of post and in proving
such notice, when given by post, it shall be sufficient to prove that the envelope containing the notice
was posted and a certificate signed by an officer of the Authority that the envelope was so posted
shall be conclusive.

232
 11. This Guarantee shall come into force with immediate effect and shall remain in force and effect for
up to the date specified in para 8 above or until it is released earlier by the Authority pursuant to the
provisions of the Agreement.

Signed and sealed this ……….. day of ………. 20…….. at ………

SIGNED, SEALED AND DELIVERED

For and on behalf of the Bank by:

(Signature)

(Name)

(Designation)

(Code Number)

(Address)

NOTES:

(i) The bank guarantee should contain the name, designation and code number of the officer(s) signing
the guarantee.

(ii) The address, telephone number and other details of the head office of the Bank as well as of issuing
branch should be mentioned on the covering letter of issuing branch.

233
 SCHEDULE - H
(See Clauses10.1.4 and 19.3)
Contract Price Weightages
1.1 The Contract Price for this Agreement is Rs.-------------Crores
1.2 Proportions of the Contract Price for different stages of Construction of the Project Highway shall
be as specified below subject to the condition that maximum of two interim stage payments in
calendar month can be raised by the contractor:
Item Weightage in Stage for payment Percentage
percentage to weightage
the contract
Price
1 2 3 4
Road works including [61%] A- Widening and strengthening of
culverts, minor/Major existing road including earth work
bridges, underpasses, excavation, dismantling of existing
overpasses, approaches crust and pavement if any
to (1) Earthwork up to top of the sub-grade [1%]
ROB/RUB/Major/minor including earthwork on side slopes
Bridges/culverts/hume (2) Granular sub-base work including [5%]
pipe culverts and its earthen shoulders upto that level
approaches (but (3) Wet Mix Macadam work in base [6%]
excluding service roads) course including earthen shoulders
upto that level.
(4) Bituminous work
(i) Dense Bituminous Macadam [2%]
(DBM) including tack coat on
existing bituminous pavement
not exceeding 5% of its area for
repair of the damaged/ cracked
/failure area of the road with
proper scarification/ rectification
and compaction before
overlaying BC on it.
Complete videography before
and after this stage is to be
submitted by the Contractor to
the Authority, Authority’s
Engineer and Regional Officer
MoRT&H Chandigarh before
laying of BC, otherwise no
payment for this stage would be
made. The estimate for this
stage is to be submitted by the
Contractor with complete
justification after taking levels
and before execution. The
quantity is not to exceed 5% of
the existing area with 85 mm
thick DBM.
(ii) Dense Bituminous Macadam [17%]
(DBM) including prime coat and
tack in widening portion and
earthen shoulders upto that level.
234
 (iii) Bituminous concrete (BC) in full [30%]
width (10M) including tack coat
& earthen shoulders upto that
level.
21% B- New culverts, minor/major bridges,
hume pipe culverts including
dismantling of the existing culverts,
bridges, siphons and pavement
layers etc. for execution of this part
B.
1 Hume pipe Culverts [3%]
2 Slab type culverts, Minor/Major [18%]
bridges including their diversion
Other works [18%] (j) RCC Road side drains in village [9%]
portions
(ii) Road markings, relocation of km [2%]
stones, 200m stones, sign boards
cautionary boards, delineators, hazard
marker safety devices etc.
(iv) Brick on edge paving in village [4%]
portions
(v) Junction improvement of side roads [2%]
including preparation of their
drawings, construction work of earth
work, GSB,WMM,DBM and BC. This
will also include dismantling if any
(vi) Grassing on side slopes & construction [1%]
of kuchha drain on both sides of
Project Highway and removal of
unsuitable material from Project
highway

* The above list is illustrative and may require modification as per the scope of the work.

1.3 Procedure of estimating the value of work done

1.3.1 Road works including approaches to minor bridges, Major Bridges and Structures (excluding
service roads).

235
 Procedure for estimating the value of road work done shall be as follows:
Table 1.3.1
Stage of Payment
A-Widening and strengthening
(1) Earthwork up to top of the sub-grade
including earthwork on side slopes
(2) Granular work including earthen
shoulders upto that level
(3) Wet Mix Macadam including earthen
shoulders upto that level
(4) Bituminous work
(i) Dense Bituminous Macadam
(DBM) in widening portion
including earthen shoulders upto
that level.
(ii) Bituminous concrete (BC) in
full width (10M) including
earthen shoulders upto that level
(5)
B - New culverts, minor/major
bridges, hume pipe culverts including
dismantling of the existing culverts,
bridges, siphons and pavement layers
etc. for execution of this part B
1 Hume pipe Culverts including their
diversions
2 Slab type culverts, Minor/Major
bridges including their diversions
I) Bridge portion :on completion of 60%
the bridge works including foundations
for wing and return walls, abutment, piers
up to the abutment, pier cap, super
structure, hand rails, crash barrier wing
wall return wall etc. including diversion
II) Approaches :- On completion of [40%]
approaches of bridge i/c embankment,
GSB, WMM, DBM & BC etc.
Percentage- Payment Procedure
wightage
[1%]
[5%]
[6%] Unit of measurement is linear length. Payment
of each stage shall be made on pro rata basis
on completion of a stage in a length of not less
[19%] than 10 (ten) percent of the total length in
continutity. @
[30%]
Cost of each Hume pipe culvert shall be
determined on pro rata basis with respect to the
total number of culverts. Payment shall be
made on the completion of five Hume pipe
culverts.
[3%]
[18%] Cost of each slab type culvert, Minor/Major
bridge shall be determined on pro rata basis
with respect to the total number of culverts.
Minor/Major bridges Payment shall be made
on the completion of one number slab type
culvert, Minor/Major bridge
Cost of each Hume pipe culvert/slab type
culvert/ minor bridge shall be determined on
pro rata basis with respect to the total
linear length (m) of the minor bridges.
Payment shall be made on completion of each
stage of aPipe culvert, slab type culvert,
Minor bridge as per the weightage given in this
table.
It is to be ensure that the payment of
approaches is made only in bridge portion and
not in Highway portion to avoid duplicacy.
236
@. For example, if the total length of bituminous work to be done is 100 km, the cost per km of bituminous
work shall be determined as follows:
Cost per km = P x weightage for road work x weightage for bituminous work x (1/L)
Where P= Contract Price
L = Total length in km
Similarly, the rates per km for stages (1), (2) and (4) above shall be worked out.
1.3.2 Other works.
Procedure for estimating the value of other works done shall be as stated in table 1.3.2:
Stage of payment
(i) Road side drains in village
portions
(ii) Road markings with
thermoplastic paint, relocation
of km stones, 200m
stones, sign boards cautionary
boards, delineators, hazard
marker safety devices etc.
(iii) Brick on edge paving in
village portion
(iv) Junction improvement of
side roads including
preparation of their
drawings, construction
work of earth work,
GSB,WMM,DBM and
BC. This will also include
dismantling if any
(v) Grassing on side slopes &
construction of kuchha drain
on both sides of Project
Highway and removal of
unsuitable material from
Project highway
Table 1.3.2
Weightage Payment Procedure
[9%] Unit of measurement is linear
length in km. Payment shall be
made on prorate basis on
completion of a stage in a length
of not less than 10% (ten percent)
of the total length.
Unit of measurement is linear
[2%] length in km. Payment shall be
made on prorate basis on
completion of a stage in a length
of not less than 50% (fifty
percent) of the total length.
[4%] Unit of measurement is area
length in square metres Payment
shall be made on prorate basis on
completion of a stage in a area of
not less than 25% (twenty five
percent) of the total area
Unit of measurement is numbers.
[2%] Payment shall be made on prorate
basis on completion of a stage in
numbers of not less than 25%
(twenty five percent) of the total
numbers
[1%] Unit of measurement is linear
length in km. Payment shall be
made on prorate basis on
completion of a stage in a length
of not less than 50% (fifty
percent) of the total length.
237
1. Procedure for payment for Maintenance
2.1 The cost for maintenance shall be as stated in Clause 14.1.1.
2.2 Payment for Maintenance shall be made in quarterly installments in accordance with the provisions
of Clause 19.7.

238
 SCHEDULE - I
(See Clause 10.2.4)

DRAWINGS

1 Drawings

In compliance of the obligations set forth in Clause 10.2 of this Agreement, the Contractor shall
furnish to the Authority’s Engineer, free of cost, all Drawings listed in Annex-I of this Schedule-I.

2 Additional Drawings

If the Authority’s Engineer determines that for discharging its duties and functions under this
Agreement, it requires any drawings other than those listed in Annex-I, it may by notice require the
Contractor to prepare and furnish such drawings forthwith. Upon receiving a requisition to this
effect, the Contractor shall promptly prepare and furnish such drawings to the Authority’s
Engineer, as if such drawings formed part of Annex-I of this Schedule-I.

239
 Annex - I
(Schedule - I)

List of Drawings

A minimum list of the drawings of the various components / elements of the Project Highway
and project facilities required to be submitted by the Contractor is given below:

a) Drawings of horizontal alignment, vertical profile and detailed cross sections.

b) Drawings of cross-drainage works.
c) Drawings of Major intersections.
d) Drawing of road furniture including traffic signage, marking, safety barriers etc.
e) Drawing of traffic diversion plan.
f) Drawing as per instruction of Authority’s Engineer
g) General arrangement showing area of base camp and administrative block.

240
 SCHEDULE - J
(See Clause 10.3.2)

PROJECT COMPLETION SCHEDULE

Project Completion Schedule

During Construction period, the Contractor shall comply with the requirements set forth in this
Schedule-J for each of the Project Milestones and the Scheduled Completion Date. Within 15
(fifteen) days of the date of each Project Milestone, the Contractor shall notify the Authority of
such compliance along with necessary particulars thereof.

2 Project Milestone-I

2.1 Project Milestone-I shall occur on the date falling on the 120th (one hundred twentieth) day from
the Appointed Date (the “Project Milestone-I”).

2.2 Prior to the occurrence of Project Milestone-I, the Contractor shall have planned, designed and
prepared drawings of the project highway including the design and preparation of drawings of all
bridges and culverts, junctions, drainage system and got it approved from Authority’s
Engineer/Authority, mobilized at site, erected and mobilized plant and equipments for execution of
work, commenced construction of the Project Highway and submitted to the Authority duly and
validly prepared Stage Payment Statements for an amount not less than 10% (ten per cent) of the
Contract Price.
3 Project Milestone-II
3.1 Project Milestone-II shall occur on the date falling on the 270th (two hundred and seventieth) day
from the Appointed Date (the “Project Milestone-II”).

3.2 Prior to the occurrence of Project Milestone-II, the Contractor shall have continued with
construction of the Project Highway and submitted to the Authority duly and validly prepared Stage
Payment Statements for an amount not less than 40% (forty per cent) of the Contract Price. All
bridges, culverts, Hume pipe culverts and RCC/brick side drains should be completed prior to the
occurrence of Project Milestone-II.
4 Project Milestone-III

4.1 Project Milestone-III shall occur on the date falling on the 360 (three hundred and sixtieth)] day
from the Appointed Date (the “Project Milestone-III”).

4.2 Prior to the occurrence of Project Milestone-III, the Contractor shall have continued with
construction of the Project Highway and submitted to the Authority duly and validly prepared Stage
Payment Statements for an amount not less than 70% (seventy per cent) of the Contract Price.
5 Scheduled Completion Date

5.1 The Scheduled Completion Date shall occur on the 450 (four hundred and fiftieth)] day from the
Appointed Date.

5.2 On or before the Scheduled Completion Date, the Contractor shall have completed construction in
accordance with this Agreement.

6 Extension of time

Upon extension of any or all of the aforesaid Project Milestones or the Scheduled Completion Date,
as the case may be, under and in accordance with the provisions of this Agreement, the Project
Completion Schedule shall be deemed to have been amended accordingly.
241
 SCHEDULE - K
(See Clause 12.1.2)
Tests on Completion
1 Schedule for Tests
1.1 The Contractor shall, no later than 30 (thirty) days prior to the likely completion of construction,
notify the Authority’s Engineer and the Authority of its intent to subject the Project Highway to
Tests, and no later than 10 (ten) days prior to the actual date of Tests, furnish to the Authority’s
Engineer and the Authority detailed inventory and particulars of all works and equipment forming
part of Works.
1.2 The Contractor shall notify the Authority’s Engineer of its readiness to subject the Project Highway
to Tests at any time after 10 (ten) days from the date of such notice, and upon receipt of such
notice, the Authority’s Engineer shall, in consultation with the Contractor, determine the date and
time for each Test and notify the same to the Authority who may designate its representative to
witness the Tests. The Authority’s Engineer shall thereupon conduct the Tests itself or cause any of
the Tests to be conducted in accordance with Article 12 and this Schedule-K.
2 Tests
2.1 Visual and physical test: The Authority’s Engineer shall conduct a visual and physical check of
construction to determine that all works and equipment forming part thereof conform to the
provisions of this Agreement. The physical tests shall include: all the tests specified in IRC codes,
manual and MORTH specifications for the road and Bridge works, 5th revision, 2013.

2.2 Riding quality test: Riding quality of each lane of the carriageway shall be checked with the help
of a calibrated bump integrator and the maximum permissible roughness for purposes of this Test
shall be [2,000 (two thousand)] mm for each kilometre.

2.3 Tests for bridges: All major and minor bridges shall be subjected to the rebound hammer and
ultrasonic pulse velocity tests, to be conducted in accordance with the procedure described in
Special Report No. 17: 1996 of the IRC Highway Research Board on Nondestructive Testing
Techniques, at two spots in every span, to be chosen at random by the Authority’s Engineer.
Bridges with a span of 15 (fifteen) metres or more shall also be subjected to load testing.

2.4 Other tests: The Authority’s Engineer may require the Contractor to carry out or cause to be carried
additional tests, in accordance with Good Industry Practice, for determining the compliance of the
Project Highway with Specifications and Standards.

2.5 Regional Officer, Ministry of Road Transport & Highways, Chandigarh may get necessary testing
done for quality control of the work from accredited laboratories keeping in view IRC:SP:94-2011,
charging cost to the provisions of Quality Control. The results of tests so conducted would be
binding on the contractor as well as the Authority’s Engineer. If the result of tests are not complying
with the provisions of this agreement the cost of such tests would be recoverable from the contractor
besides action for non-conformity of results of the tests, as per provisions of this agreement.

2.6 Three stage videography ( before, during and after completion of work) shall be got done by the
Authority’s Engineer and CD shall be furnished to Regional Officer, MORT&H, Chandigarh before
final payment is released. In this regard, Ministry’s circular No. NH- 22023/16/2005 – P&M dated
18.05.2005 may be referred.
2.7 Environmental audit: The Authority’s Engineer shall carry out a check to determine conformity of
the Project Highway with the environmental requirements set forth in Applicable Laws and
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 Applicable Permits.

2.8 Safety Audit: The Authority’s Engineer shall carry out, or cause to be carried out, a safety audit to
determine conformity of the Project Highway with the safety requirements and Good Industry
Practice.
3 Agency for conducting Tests

All Tests set forth in this Schedule-K shall be conducted by the Authority’s Engineer or such other
agency or person as it may specify in consultation with the Authority.

4 Completion Certificate

Upon successful completion of Tests, the Authority’s Engineer shall issue the Completion
Certificate in accordance with the provisions of Article 12.

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 Schedule-L
(See Clause 12.2 and 12.4)

PROVISIONAL CERTIFICATE
1. I, …………….. (Name of the Authority’s Engineer), acting as Authority’s Engineer, under and in
accordance with the Agreement dated ………….. (the “Agreement”), for Planning, Design,
Construction, Defect Liability and Maintenance & all other works contingent
thereto for the work of widening to Two lanes with paved shoulders of existing
NH 709 (Extn.) from km 123.520 to km 146.500 in the state of Haryana on EPC mode
through …………………. (Name of Contractor), hereby certify that the Tests in accordance with
Article 12 of the Agreement have been undertaken to determine compliance of the Bridge with the
provisions of the Agreement.

2. Construction Works that are incomplete on account of Time Extension have been specified in the
Punch List appended hereto, and the Contractor has agreed and accepted that it shall complete all
such works in the time and manner set forth in the Agreement. In addition, certain minor works are
incomplete and these are not likely to cause material inconvenience to the users of the Bridge or
other their safety. The contractor has agreed and accepted that as a condition of this Provisional
Certificate, it shall complete such minor works within 30 (thirty) days hereof. These minor works
have also been specified in the aforesaid punch list.

3. In view of the foregoing, I am satisfied that that Bridge can be safety and reliably placed in service
of the users thereof, and in terms of the Agreement, the Bridge is hereby provisionally declared fit
for entry into operation on this the ………day of ……….20 …..

ACCEPTED, SIGNED, SEALED SIGNED, SEALED

AND DELIVERED AND DELIVERED

For and on behalf of For and on behalf of

CONTRACTOR by Authority’s Engineer by:

(Signature) (Signature)

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 COMPLETION CERTIFICATE

1. I, …………….. (Name of the Authority’s Engineer), acting as Authority’s Engineer, under and in
accordance with the Agreement dated ………….. (the “Agreement”), for construction of the for
Planning, Design, Construction, Defect Liability and Maintenance & all other works
contingent thereto for the work of widening to Two lanes with paved shoulders
of existing NH 709 (Extn.) from km 123.520 to km 146.500 in the state of Haryana on
EPC mode through …………………. (Name of Contractor), hereby certify that the Tests in
accordance with Article 12 of the Agreement have been successfully undertaken to determine
compliance of the Bridge with the provisions of the Agreement, and I am satisfied that the Bridge
can be safety and reliably placed in service of the Users thereof..

2. It is certified that, in terms of the aforesaid Agreement, all works forming part of Bridge have been
completed, and the Bridge is hereby declared fit for entry into operation on this the ………..day of
……..20 …..

SIGNED, SEALED AND DELIVERED

For and on behalf of

Authority’s Engineer by:

(Signature)

(Name)

(Designation)

(Address)

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 SCHEDULE - M
(See Clauses 14.6, 15.2 and 19.7)

PAYMENT REDUCTION FOR NON-COMPLIANCE

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

1.1 Monthly lump sum payments for maintenance shall be reduced in the case of non-compliance with
the Maintenance Requirements set forth in Schedule-E.

1.2 Any deduction made on account of non-compliance with the Maintenance Requirements shall not
be paid even after compliance subsequently. The deductions shall continue to be made every month
until compliance is done.

1.3 The Authority’s Engineer shall calculate the amount of payment reduction on the basis of
weightage in percentage assigned to non-conforming items as given in Paragraph 2.

2. Percentage reductions in lump sum payments

2.1 The following percentages shall govern the payment reduction:

S. No. Item/Defect/Deficiency Percentage

(a) Carriageway/Pavement

(i) Potholes, cracks, other surface 15%

defects

(ii) Repairs of Edges, Rutting 5%

(b) Road, Embankment, Cuttings,

Shoulders

(i) Edge drop, inadequate cross fall, 10%

undulations, settlement, potholes,
ponding, obstructions

(ii) Deficient slopes, raincuts, 5%

disturbed pitching, vegetation
growth, pruning of trees

(c) Bridges and Culverts

(i) Desilting, cleaning. vegetation 20%

growth, damaged pitching,
flooring, parapets, wearing course,
footpaths, any damage to
foundations

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 S. No. Item/Defect/Deficiency Percentage

(ii) Any Defects in superstructures, 10%

bearings and sub-structures

(iii) Painting, repairs/replacement 5%

kerbs, railings, parapets,
guideposts/crash barriers

(d) Roadside Drains

(i) Cleaning and repair of drains 5%

(e) Road Furniture

(i) Cleaning, painting, replacement of 5%

road signs, delineators, road
markings, 200 m/km/5th km stones

(f) Miscellaneous Items

(i) Removal of dead animals, broken 10%

down/accidented vehicles, fallen
trees, road blockades or
malfunctioning of mobile crane

(ii) Any other Defects in accordance 5%

with paragraph 1.

(g) Defects in Other Project 5%

Facilities

2.2 The amount to be deducted from monthly lump-sum payment for non compliance of particular item
shall be calculated as under:

R=P/IOO x M x L1/L

Where P = Percentage of particular item/Defect/deficiency for deduction M = Monthly lump-

sum payment in accordance with the Bid

L1 = Non-complying length L = Total length

of the road,

R = Reduction (the amount to be deducted for non compliance for a particular

item/Defect/deficiency
The total amount of reduction shall be arrived at by summation of reductions for such
items/Defects/deficiency or non compliance.

For any Defect in a part of one kilometer, the non-conforming length shall be taken as one
kilometer.

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 SCHEDULE - N
(See Clause 18.1.1)

SELECTION OF AUTHORITY’S ENGINEER

0. The Authority’s Engineer has already been selected by Ministry of Road Transport and Highways
for Engineering, Procurement and Construction (EPC) contracts for the State of Haryana. M/s
Feedback Infra Private Limited, 15th Floor, Tower 9B, DLF Cyber City, Phase-III, Gurgaon-122002
is accordingly the Authority’s Engineer for this work also, the copy of the contract agreement
between Ministry of Road Transport and Highways and M/s Feedback Infra Private Limited for
consultancy services for State wise Authority’s Engineer under Package-11 entered on 1st
December, 2014 is enclosed as Annexure-II of this schedule-N.

As such the procedure for selection of Authority’s Engineer given henceforth in this schedule is not
applicable.

1 Selection of Authority’s Engineer

1.1 The provisions of the Model Request for Proposal for Selection of Technical Consultants, issued by
the Ministry of Finance in May 2009, or any substitute thereof shall apply for selection of an
experienced firm to discharge the functions and duties of an Authority’s Engineer.

1.2 In the event of termination of the Technical Consultants appointed in accordance with the
provisions of Paragraph 1.1, the Authority shall appoint another firm of Technical Consultants
forthwith and may engage a government-owned entity in accordance with the provisions of
Paragraph 3 of this Schedule-N.

2 Terms of Reference

The Terms of Reference for the Authority’s Engineer (the “TOR”) shall substantially conform with
Annex 1 to this Schedule N.

3 Appointment of Government entity as Authority’s Engineer

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

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 Annex – I
(Schedule - N)

TERMS OF REFERENCE FOR AUTHORITY’S ENGINEER

1 Scope

1.1 These Terms of Reference (the “TOR”) for the Authority’s Engineer are being specified pursuant
to the EPC Agreement dated ........... (the “Agreement), which has been entered into between the
[name and address of the Authority] (the “Authority”) and .......... (the “Contractor”) for [Two-
Laning] of the **** section (km ** to km **) of National Highway No. ** in the State of *** on
Engineering, Procurement, Construction (EPC) basis, and a copy of which is annexed hereto and
marked as Annex-A to form part of this TOR.

1.2 The TOR shall apply to construction and maintenance of the Project Highway.

2 Definitions and interpretation

2.1 The words and expressions beginning with or in capital letters and not defined herein but defined in
the Agreement shall have, unless repugnant to the context, the meaning respectively assigned to
them in the Agreement.

2.2 References to Articles, Clauses and Schedules in this TOR shall, except where the context
otherwise requires, be deemed to be references to the Articles, Clauses and Schedules of the
Agreement, and references to Paragraphs shall be deemed to be references to Paragraphs of this
TOR.

2.3 The rules of interpretation stated in Clauses 1.2, 1.3 and 1.4 of the Agreement shall apply, mutatis
mutandis, to this TOR.

3. General

3.1 The Authority’s Engineer shall discharge its duties in a fair, impartial and efficient manner,
consistent with the highest standards of professional integrity and Good Industry Practice.

3.2 The Authority’s Engineer shall perform the duties and exercise the authority in accordance with the
provisions of this Agreement, but subject to obtaining prior written approval of the Authority
before determining:

(a) any Time Extension;

(b) any additional cost to be paid by the Authority to the Contractor;
(c) the Termination Payment; or
(d) any other matter which is not specified in (a), (b) or (c) above and which creates an obligation or
liability on either Party for a sum exceeding Rs. 50,00,000 (Rs. fifty lakh).

3.3 The Authority’s Engineer shall submit regular periodic reports, at least once every month, to the
Authority in respect of its duties and functions under this Agreement. Such reports shall be
249
 submitted by the Authority’s Engineer within 10 (ten) days of the beginning of every month.

3.4 The Authority’s Engineer shall inform the Contractor of any delegation of its duties and
responsibilities to its suitably qualified and experienced personnel; provided, however, that it shall
not delegate the authority to refer any matter for the Authority’s prior approval in accordance with
the provisions of Clause 18.2.

3.5 The Authority’s Engineer shall aid and advise the Authority on any proposal for Change of Scope
under Article 13.

3.6 In the event of any disagreement between the Parties regarding the meaning, scope and nature of
Good Industry Practice, as set forth in any provision of the Agreement, the Authority’s Engineer
shall specify such meaning, scope and nature by issuing a reasoned written statement relying on
good industry practice and authentic literature.

4 Construction Period

4.1 During the Construction Period, the Authority’s Engineer shall review the Drawings furnished by
the Contractor along with supporting data, including the geo-technical and hydrological
investigations, characteristics of materials from borrow areas and quarry sites, topographical
surveys, and the recommendations of the Safety Consultant in accordance with the provisions of
Clause 10.1.6. The Authority’s Engineer shall complete such review and send its observations to
the Authority and the Contractor within 15 (fifteen) days of receipt of such Drawings; provided,
however that in case of a Major Bridge or Structure, the aforesaid period of 15 (fifteen) days may
be extended upto 30 (thirty) days. In particular, such comments shall specify the conformity or
otherwise of such Drawings with the Scope of the Project and Specifications and Standards.

4.2 The Authority’s Engineer shall review any revised Drawings sent to it by the Contractor and
furnish its comments within 10 (ten) days of receiving such

Drawings.

4.3 The Authority’s Engineer shall review the Quality Assurance Plan submitted by the Contractor and
shall convey its comments to the Contractor within a period of 21 (twenty-one) days stating the
modifications, if any, required thereto.

4.4 The Authority’s Engineer shall complete the review of the methodology proposed to be adopted by
the Contractor for executing the Works, and convey its comments to the Contractor within a period
of 10 (ten) days from the date of receipt of the proposed methodology from the Contractor.

4.5 The Authority’s Engineer shall grant written approval to the Contractor, where necessary, for
interruption and diversion of the flow of traffic in the existing lane(s) of the Project Highway for
purposes of maintenance during the Construction Period in accordance with the provisions of
Clause 10.4.

4.6 The Authority’s Engineer shall review the monthly progress report furnished by the Contractor and
send its comments thereon to the Authority and the Contractor within 7 (seven) days of receipt of
such report.
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4.7 The Authority’s Engineer shall inspect the Construction Works and the Project Highway and shall
submit a monthly Inspection Report bringing out the results of inspections and the remedial action
taken by the Contractor in respect of Defects or deficiencies. In particular, the Authority’s Engineer
shall include in its Inspection Report, the compliance of the recommendations made by the Safety
Consultant.

4.8 The Authority’s Engineer shall conduct the pre-construction review of manufacturer's test reports
and standard samples of manufactured Materials, and such other Materials as the Authority’s
Engineer may require.

4.9 For determining that the Works conform to Specifications and Standards, the Authority’s Engineer
shall require the Contractor to carry out, or cause to be carried out, tests at such time and frequency
and in such manner as specified in the Agreement and in accordance with Good Industry Practice
for quality assurance. For purposes of this Paragraph 4.9, the tests specified in the IRC Special
Publication-11 (Handbook of Quality Control for Construction of Roads and Runways) and the
Specifications for Road and Bridge Works issued by MORTH (the “Quality Control Manuals”) or
any modification/substitution thereof shall be deemed to be tests conforming to Good Industry
Practice for quality assurance.

4.10 The Authority’s Engineer shall test check at least 20 (twenty) percent of the quantity or number of
tests prescribed for each category or type of test for quality control by the Contractor.

4.11 The timing of tests referred to in Paragraph 4.9, and the criteria for acceptance/ rejection of their
results shall be determined by the Authority’s Engineer in accordance with the Quality Control
Manuals. The tests shall be undertaken on a random sample basis and shall be in addition to, and
independent of, the tests that may be carried out by the Contractor for its own quality assurance in
accordance with Good Industry Practice.

4.12 In the event that results of any tests conducted under Clause 11.10 establish any Defects or
deficiencies in the Works, the Authority’s Engineer shall require the Contractor to carry out
remedial measures.

4.13 The Authority’s Engineer may instruct the Contractor to execute any work which is urgently
required for the safety of the Project Highway, whether because of an accident, unforeseeable event
or otherwise; provided that in case of any work required on account of a Force Majeure Event, the
provisions of Clause 21.6 shall apply.

4.14 In the event that the Contractor fails to achieve any of the Project Milestones, the Authority’s
Engineer shall undertake a review of the progress of construction and identify potential delays, if
any. If the Authority’s Engineer shall determine that completion of the Project Highway is not
feasible within the time specified in the Agreement, it shall require the Contractor to indicate within
15 (fifteen) days the steps proposed to be taken to expedite progress, and the period within which
the Project Completion Date shall be achieved. Upon receipt of a report from the Contractor, the
Authority’s Engineer shall review the same and send its comments to the Authority and the
Contractor forthwith.

251
4.15 The Authority’s Engineer shall obtain from the Contractor a copy of all the Contractor’s quality
control records and documents before the Completion Certificate is issued pursuant to Clause 12.4.

4.16 Authority’s Engineer may recommend to the Authority suspension of the whole or part of the
Works if the work threatens the safety of the Users and pedestrians. After the Contractor has
carried out remedial measure, the Authority’s Engineer shall inspect such remedial measures
forthwith and make a report to the Authority recommending whether or not the suspension
hereunder may be revoked.

4.17 In the event that the Contractor carries out any remedial measures to secure the safety of suspended
works and Users, and requires the Authority’s Engineer to inspect such works, the Authority’s
Engineer shall inspect the suspended works within 3 (three) days of receiving such notice, and
make a report to the Authority forthwith, recommending whether or not such suspension may be
revoked by the Authority.

4.18 The Authority’s Engineer shall carry out, or cause to be carried out, all the Tests specified in
Schedule-K and issue a Completion Certificate or Provisional Certificate, as the case may be. For
carrying out its functions under this Paragraph 4.18 and all matters incidental thereto, the
Authority’s Engineer shall act under and in accordance with the provisions of Article 12 and
Schedule-K.

5. Maintenance Period

5.1 The Authority’s Engineer shall aid and advise the Contractor in the preparation of its monthly
Maintenance Programme and for this purpose carry out a joint monthly inspection with the
Contractor.

5.2 The Authority’s Engineer shall undertake regular inspections, at least once every month, to
evaluate compliance with the Maintenance Requirements and submit a Maintenance Inspection
Report to the Authority and the Contractor.

5.3 The Authority’s Engineer shall specify the tests, if any, that the Contractor shall carry out, or cause
to be carried out, for the purpose of determining that the Project Highway is in conformity with the
Maintenance Requirements. It shall monitor and review the results of such tests and the remedial
measures, if any, taken by the Contractor in this behalf.

5.4 In respect of any defect or deficiency referred to in Paragraph 3 of Schedule-E, the Authority’s
Engineer shall, in conformity with Good Industry Practice, specify the permissible limit of
deviation or deterioration with reference to the Specifications and Standards and shall also specify
the time limit for repair or rectification of any deviation or deterioration beyond the permissible
limit.

5.5 The Authority’s Engineer shall examine the request of the Contractor for closure of any lane(s) of
the Project Highway for undertaking maintenance/repair thereof, and shall grant permission with
such modifications, as it may deem necessary, within 5 (five) days of receiving a request from the
Contractor. Upon expiry of the permitted period of closure, the Authority’s Engineer shall monitor
252
 the reopening of such lane(s), and in case of delay, determine the Damages payable by the
Contractor to the Authority under Clause 14.5.

6 Determination of costs and time

6.1 The Authority’s Engineer shall determine the costs, and/or their reasonableness, that are required to
be determined by it under the Agreement.

6.2 The Authority’s Engineer shall determine the period of Time Extension that is required to be
determined by it under the Agreement.

6.3 The Authority’s Engineer shall consult each Party in every case of determination in accordance
with the provisions of Clause 18.5.

7. Payments

7.1 The Authority’s Engineer shall withhold payments for the affected works for which the Contractor
fails to revise and resubmit the Drawings to the Authority’s Engineer in accordance with the
provisions of Clause 10.2.4 (d).

7.2 Authority’s Engineer shall -

(a) within 10 (ten) days of receipt of the Stage Payment Statement from the Contractor pursuant to
Clause 19.4, determine the amount due to the Contractor and recommend the release of 90 (ninety)
percent of the amount so determined as part payment, pending issue of the Interim Payment
Certificate; and

(b) within 15 (fifteen) days of the receipt of the Stage Payment Statement referred to in Clause 19.4,
deliver to the Authority and the Contractor an Interim Payment Certificate certifying the amount
due and payable to the Contractor, after adjustments in accordance with the provisions of Clause
19.10.

7.3 The Authority’s Engineer shall, within 15 (fifteen) days of receipt of the Monthly Maintenance
Statement from the Contractor pursuant to Clause 19.6, verify the Contractor’s monthly statement
and certify the amount to be paid to the Contractor in accordance with the provisions of the
Agreement.

7.4 The Authority’s Engineer shall certify final payment within 30 (thirty) days of the receipt of the
final payment statement of Maintenance in accordance with the provisions of Clause 19.16.

8. Other duties and functions

The Authority’s Engineer shall perform all other duties and functions as specified in the
Agreement.
9 Miscellaneous
9.1 A copy of all communications, comments, instructions, Drawings or Documents sent by the
Authority’s Engineer to the Contractor pursuant to this TOR, and a copy of all the test results with
comments of the Authority’s Engineer thereon, shall be furnished by the Authority’s Engineer to
the Authority forthwith.
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9.2 The Authority’s Engineer shall retain at least one copy each of all Drawings and Documents
received by it, including ‘as-built’ Drawings, and keep them in its safe custody.

9.3 Within 90 (ninety) days of the Project Completion Date, the Authority’s Engineer shall obtain 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;
and shall hand them over to the Authority against receipt thereof.

Three stage videography ( before, during and after completion of work) shall be got done by the
Authority’s Engineer and CD shall be furnished to Regional Officer, MORT&H, Chandigarh
before final payment is released. In this regard, Ministry’s circular No. NH- 22023/16/2005 – P&M
dated 18.05.2005 may be referred.

9.4 The Authority’s Engineer, if called upon by the Authority or the Contractor or both, shall mediate
and assist the Parties in arriving at an amicable settlement of any Dispute between the Parties.

9.5 The Authority’s Engineer shall inform the Authority and the Contractor of any event of
Contractor’s Default within one week of its occurrence.

254
 SCHEDULE - O
(See Clauses 19.4.1, 19.6.1, and 19.8.1)
Forms of Payment Statements
1. Stage Payment Statement for Works
The Stage Payment Statement for Works shall state:
the estimated amount for the Works executed in accordance with Clause 19.3.1
subsequent to the last claim;

amounts reflecting adjustments in price for the aforesaid claim;

the estimated amount of each Change of Scope Order executed subsequent to the
last claim;

amounts reflecting adjustment in price, if any, for (c) above in accordance with the
provisions of Clause 13.2.3 (a);

total of (a), (b), (c) and (d) above;

Deductions:

Any amount to be deducted in accordance with the provisions of the Agreement

except taxes;
Any amount towards deduction of taxes; and

Total of (i) and (ii) above.

Net claim: (e) – (f) (iii);

The amounts received by the Contractor upto the last claim:

For the Works executed (excluding Change of Scope orders);

For Change of Scope Orders, and

Taxes deducted

(v) Monthly Maintenance Payment Statement

The monthly Statement for Maintenance Payment shall state:

(a) the monthly payment admissible in accordance with the provisions of the Agreement;
(b) the deductions for maintenance work not done;
(c) net payment for maintenance due, (a) minus (b);
(d) amounts reflecting adjustments in price under Clause 19.12; and
amount towards deduction of taxes
3. Contractor’s claim for Damages

Note: The Contractor shall submit its claims in a form acceptable to the Authority.

255
 SCHEDULE - P
(See Clause 20.1)

INSURANCE

1. Insurance during Construction Period

1.1 The Contractor shall effect and maintain at its own cost, from the Appointed Date till the date of
issue of the Completion Certificate, the following insurances for any loss or damage occurring on
account of Non Political Event of Force Majeure, malicious act, accidental damage, explosion, fire
and terrorism:

(a) insurance of Works, Plant and Materials and an additional sum of [15 (fifteen)] per cent of
such replacement cost to cover any additional costs of and incidental to the rectification of
loss or damage including professional fees and the cost of demolishing and removing any
part of the Works and of removing debris of whatsoever nature; and

(b) insurance for the Contractor's equipment and Documents brought onto the Site by the
Contractor, for a sum sufficient to provide for their replacement at the Site.
1.2 The insurance under paragraph 1.1 (a) and (b) above shall cover the Authority and the Contractor
against all loss or damage from any cause arising under paragraph 1.1 other than risks which are
not insurable at commercial terms.

2. Insurance for Contractor's Defects Liability

The Contractor shall effect and maintain insurance cover for the Works from the date of issue of
the Completion Certificate until the end of the Defects Liability Period for any loss or damage for
which the Contractor is liable and which arises from a cause occurring prior to the issue of the
Completion Certificate. The Contractor shall also maintain other insurances for maximum sums as
may be required under the Applicable Laws and in accordance with Good Industry Practice.

3. Insurance against injury to persons and damage to property

3.1 The Contractor shall insure against its liability for any loss, damage, death or bodily injury, or
damage to any property (except things insured under Paragraphs 1 and 2 of this Schedule or to any
person (except persons insured under Clause 20.9), which may arise out of the Contractor's
performance of this Agreement. This insurance shall be for a limit per occurrence of not less than
the amount stated below with no limit on the number of occurrences.

The insurance cover shall be as per the applicable laws of government and procedure in vogue.

3.2 The insurance shall be extended to cover liability for all loss and damage to the Authority's
property arising out of the Contractor’s performance of this Agreement excluding:

(a) the Authority's right to have the construction works executed on, over, under, in or through
any land, and to occupy this land for the Works; and

(b) damage which is an unavoidable result of the Contractor's obligations to execute the
Works.
4. Insurance to be in joint names
The insurance under paragraphs 1 to 3 above shall be in the joint names of the Contractor and the
Authority.

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End of the Document

257