MAHARASHTRA STATE INFRASTRUCTURE

DEVELOPMENT CORPORATION
(CIN: U43900MH2023SGC412992)

(Government Of Maharashtra Undertaking)

PROCUREMENT OF WORKS

AGREEMENT

For

Package 4 - Construction of Nashik Ring Road (Eastern side)

from Design chainage 0.500 to 8.140 (Length = 7.640km) under
EPC mode

Issued on: December 2025

Employer /Client: Managing Director,
Maharashtra State Infrastructure Development Corporation,
Mumbai
Email: [Link]@[Link]
Country: India.
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Table of Contents

Part I 9

Preliminary 9

1 Definitions and Interpretations 12

1.1 Definitions 12
1.2 Interpretation 21
1.3 Measurements and arithmetic conventions 23
1.4 Priority of agreements and errors/discrepancies 24
1.5 Joint and several liability 24

Part II 26

Scope of Project 26

2 Scope of the Project 27

2.1 Scope of the Project 27

3 Obligations of the Authority 28

3.1 Obligations of the Authority 28
3.2 Maintenance obligations prior to the Appointed Date 29
3.3 Environmental Clearances 30
3.4 Deemed Termination upon delay 30

4 Obligations of the Contractor 31

4.1 Obligations of the Contractor 31
4.2 Obligations relating to sub-contracts and any other agreements 33
4.3 Employment of foreign nationals 35
4.4 Contractor’s personnel 35
4.5 Advertisement on Project Highway 36
4.6 Contractor's care of the Works 36
4.7 Electricity, water and other services 36
4.8 Unforeseeable difficulties 36
4.9 Co-ordination of the Works 36
4.10 Environmental Measures 37
4.11 Site Data 38
4.12 Sufficiency of Contract Price 39
4.13 Clearance of the Site 39

Contractor Managing Director,

MSIDC, Mumbai.
1
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

4.14 Deleted 39

5 Representations and Warranties 40

5.1 Representations and warranties of the Contractor 40
5.2 Representations and warranties of the Authority 43
5.3 Disclosure 44

6 Disclaimer 45
6.1 Disclaimer 45

Part III 47

Construction and Maintenance 47

7 Performance Security 48
7.1 Performance Security 48
7.2 Extension of Performance Security 49
7.3 Appropriation of Performance Security 49
7.4 Release of Performance Security 50
7.5 Retention Money 50

8 Right of Way 51
8.1 The Site 51
8.2 Procurement of the Site 51
8.3 Deleted 53
8.4 Site to be free from Encumbrances 53
8.5 Protection of Site from encroachments 53
8.6 Special/ temporary Right of Way 53
8.7 Access to the Authority and the Authority’s Engineer 53
8.8 Geological and archaeological finds 54

9 Utilities and Trees 55

9.1 Existing utilities and roads 55
9.2 Shifting of obstructing utilities 55
9.3 New utilities 56
9.4 Felling of trees 56
9.5 Dismantling of structures 57
9.6 Development Period 57
9.7 Utilities and Trees Not Covered in Scope of Work 57

Contractor Managing Director,

MSIDC, Mumbai.
2
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

10 Design and Construction of the Project Highway 59

10.1 Obligations prior to commencement of Works 59
10.2 Design and Drawings 61
10.3 Construction of the Project Highway 63
10.4 Maintenance during Construction Period 65
10.5 Extension of time for completion 65
10.6 Incomplete Works 67
10.7 Maintenance Manual 67
10.8 As-Built Records 68
10.9 Contractor's Use of Authority’s Documents 68

11 Quality Assurance, Monitoring and Supervision 69

11.1 Quality of Materials and workmanship 69
11.2 Quality control system 69
11.3 Methodology 69
11.4 Inspection and technical audit by the Authority 70
11.5 External technical audit 70
11.6 Inspection of construction records 70
11.7 Monthly & Quarterly progress reports 70
11.8 Inspection 72
11.9 Samples 72
11.10 Tests 72
11.11 Examination of work before covering up 73
11.12 Rejection 73
11.13 Remedial work 74
11.14 Delays during construction 74
11.15 Quality control records and Documents 74
11.16 Video recording 75
11.17 Suspension of unsafe Construction Works 76
11.18 Staff and Labour 76
11.19 Decision 79

12 Completion Certificate 81
12.1 Tests on Completion 81
12.2 Completion Certificate 81
12.3 Rescheduling of Tests 82
12.4 Decision 82

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

13 Change of Scope 83
13.1 Change of Scope 83
13.2 Procedure for Change of Scope 83
13.3 Payment for Change of Scope 86
13.4 Restrictions on Change of Scope 86
13.5 Power of the Authority to undertake Works 86

14 Maintenance 88
14.1 Maintenance obligations of the Contractor 88
14.2 Maintenance Requirements 89
14.3 Maintenance Programme 89
14.4 Safety, vehicle breakdowns and accidents 90
14.5 Lane closure 90
14.6 Reduction of payment for non-performance of Maintenance obligations 91
14.7 Authority’s right to take remedial measures 91
14.8 Restoration of loss or damage to Project Highway 91
14.9 Overriding powers of the Authority 91
14.10 Taking over Certificate 92

15 Supervision and Monitoring during Maintenance 93

15.1 Inspection by the Contractor 93
15.2 Inspection and payments 93
15.3 Tests 94
15.4 Reports of unusual occurrence 94
15.5 Decision 94

16 Traffic Regulation 96
16.1 Traffic regulation by the Contractor 96

17 Defects Liability 97
17.1 Defects Liability Period 97
17.2 Remedying Defects 97
17.3 Cost of remedying Defects 98
17.4 Contractor’s failure to rectify Defects 99
17.5 Extension of Defects Liability Period 99
17.6 Performance Certificate 99

18 Authority’s Engineer 101

18.1 Appointment of the Authority’s Engineer 101

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

18.2 Duties and authority of the Authority’s Engineer 101

18.3 Delegation by the Authority’s Engineer 102
18.4 Instructions of the Authority’s Engineer 102
18.5 Determination by the Authority’s Engineer 103
18.6 Remuneration of the Authority’s Engineer 103
18.7 Termination of the Authority’s Engineer 103
18.8 Vacancy of the Authority’s Engineer’s Office 104

Part IV 105

Financial Covenants 105

19 Payments 106
19.1 Contract Price 106
19.2 Advance Payment 107
19.3 Procedure for estimating the payment for the Works 109
19.4 Stage Payment Statement for Works 109
19.5 Stage Payment for Works 109
19.6 Monthly Maintenance Statement of the Project Highway 110
19.7 Payment for Maintenance of the Project Highway 110
19.8 Payment of Damages 111
19.9 Time of payment and interest 112
19.10 Price adjustment for the Works 112
19.11 Restrictions on price adjustment 115
19.12 Price adjustment for Maintenance of Project Highway 116
19.13 Final Payment Statement 116
19.14 Discharge 117
19.15 Final Payment Certificate 117
19.16 Final payment statement for Maintenance 117
19.17 Change in law 118
19.18 Correction of Interim Payment Certificates 118
19.19 Authority’s claims 118
19.20 Bonus for early completion 119

20 Insurance 120
20.1 Insurance for Works and Maintenance 120
20.2 Notice to the Authority 121
20.3 Evidence of Insurance Cover 121

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

20.4 Remedy for failure to insure 121

20.5 Waiver of subrogation 122
20.6 Contractor’s waiver 122
20.7 Cross liabilities 122
20.8 Accident or injury to workmen 122
20.9 Insurance against accident to workmen 123
20.10 Application of insurance proceeds 123
20.11 Compliance with policy conditions 123
20.12 General Requirements of Insurance Policies 123

Part V 125

Force Majeure and Termination 125

21 Force Majeure 126

21.1 Force Majeure 126
21.2 Non-Political Event 126
21.3 Indirect Political Event 127
21.4 Political Event 127
21.5 Duty to report Force Majeure Event 128
21.6 Effect of Force Majeure Event on the Agreement 128
21.7 Termination Notice for Force Majeure Event 129
21.8 Termination Payment for Force Majeure Event 129
21.9 Dispute resolution 130
21.10 Excuse from performance of obligations 130

22 Suspension of Contractor’s Rights 131

22.1 Suspension upon Contractor Default 131
22.2 Authority to act on behalf of Contractor 131
22.3 Revocation of Suspension 131
22.4 Termination 132
22.5 Withdrawal of part of the Work: 132

23 Termination 133
23.1 Termination for Contractor Default 133
23.2 Termination for Authority Default 136
23.3 Termination for Authority’s convenience 137
23.4 Requirements after Termination 137
23.5 Valuation of Unpaid Works 137

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

23.6 Termination Payment 138

23.7 Other rights and obligations of the Parties 139
23.8 Survival of rights 139
23.9 Foreclosure with mutual consent 139

Part VI 141

Other Provisions 141

24 Assignment and Charges 142

24.1 Restrictions on assignment and charges 142
24.2 Hypothecation of Materials or Plant 142

25 Liability and Indemnity 143

25.1 General indemnity 143
25.2 Indemnity by the Contractor 143
25.3 Notice and contest of claims 144
25.4 Defence of claims 144
25.5 Survival on Termination 145

26 Dispute Resolution 147

26.1 Dispute Resolution 147
26.2 Dispute Review Board (DB); 147
26.3 Conciliation 149
26.4 Arbitration 149
26.5 Adjudication by Regulatory Authority, Tribunal or Commission 150

27 Miscellaneous 151
27.1 Governing law and jurisdiction 151
27.2 Waiver of immunity 151
27.3 Delayed payments 151
27.4 Waiver 152
27.5 Liability for review of Documents and Drawings 152
27.6 Exclusion of implied warranties etc. 152
27.7 Survival 152
27.8 Entire Agreement 153
27.9 Severability 153
27.10 No partnership 153
27.11 Third parties 154

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

27.12 Successors and assigns 154

27.13 Notices 154
27.14 Language 155
27.15 Counterparts 155
27.16 Confidentiality 155
27.17 Copyright and Intellectual Property rights 155
27.18 Limitation of Liability 156
27.19 Care and Supply of Documents 156
27.20 Authority’s Use of Contractor’s Documents. 156
27.21 Contractor’s Use of Authority’s Documents 157
27.22 Access to the Site by Others 157
27.23 Term 158
27.24 Amendments 158
27.25 Representation and Bribes 158
27.26 No Agency 158
27.27 Stamp Duty & Registration Charges 158
27.28 Insurance 158

28 Schedules 160

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Part I

Preliminary

Contractor Managing Director,

MSIDC, Mumbai.
9
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Engineering, Procurement and Construction Agreement

THIS AGREEMENT1 is entered into on this the ………. day of ………, 20….

Between

The Maharashtra State Infrastructure Development Corporation (MSIDC),

represented by:

The Managing Director, Maharashtra State Infrastructure Development Corporation

(MSIDC) (hereinafter referred to as the “Authority” or “MSIDC” which expression shall,
unless repugnant to the context or meaning thereof, include its administrators, successors
and assigns) of One Part;

And

<insert name of party>,2 the selected contractor3 having its registered office at <insert
registered office address of the party>, (hereinafter referred to as the “Contractor” which
expression shall, unless repugnant to the context or meaning thereof, include its successors
and permitted assigns) of the Other Part.

Whereas:

A. The Government of Maharashtra has entrusted Maharashtra State Infrastructure

Development Corporation, for the development of State Highways and other roads
vide Government Resolution numbered Sankirn 2021/[Link].114/Niyo-1A dated
22nd February 2024. For the purpose of the same, MSIDC is acting as an
implementing agency for execution of works on EPC basis from various contractors
/ sub-contractors. Further also, MSIDC, for the purpose of the project, will form a
Special Purpose Vehicle (SPV) which will further appoint the contractors for
execution of the project on EPC basis. The MSIDC and SPV are jointly and severally,
as the case may be, called as 'Authority' hereinafter. And as part of this endeavour,
the Authority has decided to undertake Package 4 - Construction of Nashik Ring
Road (Eastern side) from Design chainage 0.500 to 8.140 (Length = 7.640km) under
EPC mode (the "Project") through an Engineering, Procurement and Construction
(the "EPC") Contract

2All provisions enclosed in curly parenthesis shall be retained in the Bid Documents and shall be modified
as required after the selected contractor has been identified.
3 Refers to the single entity or the lead member of the joint venture, which is the selected contractor under
the RFP.

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

B. The Authority resolved to Rehabilitate and upgrade existing carriageway to the

standard enumerated under scope of project for Package 4 - Construction of Nashik
Ring Road (Eastern side) from Design chainage 0.500 to 8.140 (Length = 7.640km)
under EPC mode 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. The Authority accordingly invited the proposals (the “Request for Proposals” or
“RFP”) from the eligible bidders as per the technical and commercial terms and
conditions prescribed in the RFP for undertaking the Project.

D. After evaluation of the bids received, the Authority accepted the bid of the selected
contractor and issued its Letter of Acceptance No. <insert details> dated <insert
date> (hereinafter called the “LOA”) to the selected contractor for construction of
the above section of Package 4 - Construction of Nashik Ring Road (Eastern side)
from Design chainage 0.500 to 8.140 (Length = 7.640km) under EPC mode at the
Contract Price specified hereinafter, requiring the selected contractor to inter alia:

(i) to give his consent to enter into this Agreement and the enforceability of the
provisions thereof, within 10 (ten) days of the date of issue of NOA;
(ii) submit Performance Security as per RFP requirements, and
(iii) execute this Agreement within 10 days from the receipt of 50% of
Performance Security.

E. The Contractor has fulfilled the requirements specified in Recital (D) above.

NOW, THEREFORE, in consideration of the foregoing and the respective

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

Contractor Managing Director,

MSIDC, Mumbai.
11
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 1

1 Definitions and Interpretations

1.1 Definitions

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

(ii) In this Agreement, the following words and expressions shall, unless repugnant to
the context or meaning thereof, have the meaning hereinafter respectively assigned
to them:

“Accounting Year” means the financial year commencing from the first day of April
of any calendar year and ending on the thirty-first day of March of the next calendar
year;

“Advance Payment” shall have the meaning set forth in Clause 19.2;

“Affected Party” shall have the meaning set forth in Clause 21.1;

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

controls, is controlled by, or is under the common control with such Party {or
Member} (as used in this definition, the expression “control” means, with respect to
a person which is a company or corporation, the ownership, directly or indirectly, of
more than 50% (fifty per cent) of the voting shares of such person, and with respect
to a person which is not a company or corporation, the power to direct the
management and policies of such person, whether by operation of law or by contract
or otherwise);

“Agreement” means this Agreement, its Recitals, the Schedules hereto and any
amendments thereto, or any supplementary agreement made in accordance with the
provisions contained in this Agreement;

“Applicable Laws” means all laws, brought into force and effect by the GOI or the
State Government including rules, regulations and notifications made thereunder,
and judgements, decrees, injunctions, writs and orders of any court of record,
applicable to this Agreement and the exercise, performance and discharge of the
respective rights and obligations of the Parties hereunder, as may be in force and
effect during the subsistence of this Agreement. In case there is a conflict between
the laws enforced by the Government of India and those enforced by the State
Government, the laws enforced by Government of India shall prevail;

Contractor Managing Director,

MSIDC, Mumbai.
12
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

“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 the date declared by the Authority as the project
commencement date with the consent of the contractor, as per the process prescribed
in Article 3 and 8 of this Agreement;

“Arbitration Act” means the Arbitration and Conciliation Act, 1996, with all its
subsequent amendments;

“Authority” shall have the meaning attributed thereto in the array of Parties
hereinabove as set forth in the Recitals;

“Authority Default” shall have the meaning set forth in Clause 23.2;

“Authority’s Engineer” shall have the meaning set forth in Clause 18.1;

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

writing by the Authority to act on its behalf under this Agreement and shall include
any person or persons having authority to exercise any rights or perform and fulfil
any obligations of the Authority under this Agreement;

“Bank” means a bank incorporated in India and recognized by the Reserve Bank of
India.

“Bank Rate” means the rate of interest specified by Reserve Bank of India from
time to time in pursuance of section 49 of Reserve Bank of India Act, 1934 or any
replacement of such Bank Rate for the time being in effect;

“Base Rate” means the floor rate of interest announced by the State Bank of India
for all its lending operations;

“Base Date” means the last date of the calendar month, which precedes the Bid Due
Date by at least 28 (twenty eight) days;

“Bid” means the documents in their entirety comprised in the bid submitted by the
[selected contractor/ Joint venture] in response to the Request for Proposal in
accordance with the provisions thereof;

“Bid Security” means the bid security provided by the Contractor to the Authority
in accordance with the Request for Proposal, and which is to remain in force until
substituted by the Performance Security

“Change in Law” means the occurrence of any of the following after the Base Date:

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

(a) the enactment of any new Indian law;

(b) the repeal, modification or re-enactment of any existing Indian law;
(c) the commencement of any Indian law which has not come into effect until
the Base Date; or
(d) a change in the interpretation or application of any Indian law by a judgement
of a court of record which has become final, conclusive and binding, as
compared to such interpretation or application by a court of record prior to
the Base Date.

“Change of Scope” shall have the meaning set forth in Article 13;

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

“Change of Scope Request” shall have the meaning set forth in Clause 13.2 (ii);

“Change of Scope Order” shall have the meaning set forth in Clause 13.2 (v);

“Completion Certificate” shall have the meaning set forth in Clause 12.2;

“Construction” shall have the meaning set forth in Clause 1.2 (f);

“Construction Period” means the period commencing from the Appointed Date and
ending on the date of the Completion Certificate;

“Construction Zone” shall have the meaning set forth in Clause 8.3 (i);

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

“Contractor” shall have the meaning attributed thereto in the array of Parties
hereinabove as set forth in the Recitals;

“Contractor Default” shall have the meaning set forth in Clause 23.1;

“Contractor’s Personnel” means the Contractor’s Representative and all personnel

whom the Contractor utilises on Site, who may include the staff, labour and other
employees of the Contractor and of each Subcontractor; and any other personnel
assisting the Contractor in the execution of the Work;

“CPI” means the consumer price index for industrial workers for the concerned
PWD circle in the State of Maharashtra, published by Labour Bureau, Ministry of
Labour, Government of India.

“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:

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

(a) commence from the date on which a notice is delivered by one Party to the
other Party asking the latter to cure the breach or default specified in such
notice;
(b) not relieve any Party from liability to pay Damages or compensation under
the provisions of this Agreement; and
(c) not in any way be extended by any period of Suspension under this
Agreement; provided that if the cure of any breach default by the Contractor
requires any reasonable action by the Contractor that must be approved by
the Authority or the Authority’s Engineer hereunder, the applicable Cure
Period shall be extended by the period taken by the Authority or the
Authority’s Engineer to accord their approval;

“Damages” shall have the meaning set forth in paragraph (w) of Clause 1.2;

“Defect” means any defect or deficiency in Construction of the Works or any part
thereof, which does not conform with the Specifications and Standards, and in the
case of Maintenance, means any Defect or deficiency which is specified in Schedule-
E;

“Defects Liability Period” shall have the meaning set forth in Clause 17.1;

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

“Dispute Resolution Procedure” means the procedure for resolution of Disputes

set forth in Article 26;

“Drawings” means all of the drawings, calculations and documents pertaining to the
Project Highway as set forth in Schedule-I, and shall include ‘as built’ drawings of
the Project Highway;

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

or in tapes, discs, drawings, computer programmes, writings, reports, photographs,
films, cassettes, or expressed in any other written, electronic, audio or visual form;

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

security of the individuals on or about the Project Highway, including Users thereof,
or which poses an immediate threat of material damage to any of the Project Assets;

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

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

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

“EPC” means engineering, procurement and construction;

“Final Payment Certificate” shall have the meaning set forth in Clause 19.15;

“Final Payment Statement” shall have the meaning set forth in Clause 19.13;

“Force Majeure” or “Force Majeure Event” shall have the meaning ascribed to it
in Clause 21.1;

“GAD” or “General Arrangement Drawings” shall have the meaning set forth in
Clause 3.1 (iii) (b);

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

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

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

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

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

“Handover Memorandum” shall have the meaning set forth in Clause 8.2;

“IRC” means the Indian Roads Congress;

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

pursuant to Article 25;

“Indemnifying Party” means the Party obligated to indemnify the other Party
pursuant to Article 25;

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

“Insurance Cover” means the aggregate of the maximum sums insured under the
insurance taken out by the Contractor pursuant to Article 20, and includes all
insurances required to be taken out by the Contractor under Clauses 20.1 and 20.9
but not actually taken, and when used in the context of any act or event, it shall mean

Contractor Managing Director,

MSIDC, Mumbai.
16
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

the aggregate of the maximum sums insured and payable or deemed to be insured
and payable in relation to such act or event;

“Intellectual Property” means all patents, trademarks, service marks, logos, get-up,
trade names, internet domain names, rights in designs, blue prints, programmes and
manuals, drawings, copyright (including rights in computer software), database
rights, semi-conductor, topography rights, utility models, rights in know-how and
other intellectual property rights, in each case whether registered or unregistered and
including applications for registration, and all rights or forms of protection having
equivalent or similar effect anywhere in the world;

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

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

“Joint Venture” means the group of entities which have come together for
implementation of this Project;

“Lead Member” shall, in the case of a joint venture, mean the member of such joint
venture who shall have the authority to bind the contractor and each member of the
Joint venture; and shall be deemed to be the Contractor for the purposes of this
Agreement; the Lead Member shall itself undertake and perform at least 51% (fifty
one per cent) of the total length of the Project Highway;

“NOA” or “Notification of Acceptance” means the letter of acceptance issued by

the Authority as referred to in Recital (D);

“Maintenance” means the maintenance of the Project Highway as set forth in

Article 14 for the period specified therein;

“Maintenance Inspection Report” shall have the meaning set forth in Clause 15.2;

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

“Maintenance Programme” shall have the meaning set forth in Clause 14.3;

“Maintenance Period” shall have the meaning set forth in Clause 14.1;

“Maintenance Requirements” shall have the meaning set forth in Clause 14.2;

“Major Bridge” means a bridge having a total length of more than 60 (sixty) metres
between the inner faces of the dirt walls as specified in IRC:5;

“Manual” shall mean the Manual of Standards and Specifications for Project
Highways;

Contractor Managing Director,

MSIDC, Mumbai.
17
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

“Material Adverse Effect” means a material adverse effect of any act or event on
the ability of either Party to perform any of its obligations under and in accordance
with the provisions of this Agreement and which act or event causes a material
financial burden or loss to either Party;

“Materials” comprise of all the supplies used by the Contractor used in the Works
or for the maintenance of the Project Highway;

“Monthly Maintenance Statement shall have the meaning set forth in Clause 19.6;

“MSIDC” shall have meaning as set forth in the parties of the contract;

“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;

“Plant” means the apparatus and machinery intended to form or forming part of the
works of the Works;

“Political Event” shall have the meaning set forth in Clause 21.4;

“Programme” shall have the meaning set forth in Clause 10.1 (iii);

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

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

“Project Assets” means all physical and other assets relating to (a) tangible assets
such as civil works and equipment including foundations, embankments, pavements,
road surface, interchanges, bridges, culverts, road over-bridges, drainage works,
traffic signals, sign boards, kilometre-stones, [toll plaza(s)], electrical systems,
communication systems, rest areas, relief centres, maintenance depots and
administrative offices; and (b) Project Facilities situated on the Site;

“Project Completion Date” means the date on which the Completion Certificate is
issued;

“Project Completion Schedule” means the progressive Project Milestones set forth
in Schedule-J for completion of the Project Highway on or before the Scheduled
Completion Date;

“Project Facilities” means all the amenities and facilities situated on the Site, as
described in Schedule-C;

Contractor Managing Director,

MSIDC, Mumbai.
18
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

“Project Highway” means the Site comprising the Engineering Procurement and
Construction (EPC) Contract for Package 4 - Construction of Nashik Ring Road
(Eastern side) from Design chainage 0.500 to 8.140 (Length = 7.640km) under EPC
mode and all Project Assets, and its subsequent development and augmentation in
accordance with this Agreement;

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

“Proof Consultant” shall have the meaning set forth in Clause 10.2;

“Quality Assurance Plan” or “QAP” shall have the meaning set forth in Clause
11.2;

“Re.”, “Rs.” or “Rupees” or “Indian Rupees” or “INR” means the lawful

currency of the Republic of India;

“Request for Proposals” or “RFP” shall have the meaning set forth in Recital ‘C’;

“Retention Money” shall have the meaning set forth in Clause 7.5;

“Right of Way” means and refers to the total land required and acquired for the
project, both in its width and length, together with all way leaves, easements,
unrestricted access and other rights of way, howsoever described, necessary for
construction and maintenance of the Project Highway in accordance with this
Agreement;

“Safety Consultant” shall have the meaning set forth in Clause 10.1;

“Scheduled Completion Date” shall be the date set forth in Clause 10.3;

“Scheduled Construction Period” means the period commencing from the

Appointed Date and ending on Scheduled Completion Date;

“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;

Contractor Managing Director,

MSIDC, Mumbai.
19
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

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

“Sub-contractor” means any person or persons to whom a part of the Works or the
Maintenance has been subcontracted by the Contractor and the permitted legal
successors in title to such person, but not an assignee to such person;

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

“Taking Over Certificate” shall have the meaning set forth in Clause 14.10;

“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 GST, any interest, penalties and other
sums in relation thereto imposed on any account whatsoever. For the avoidance of
doubt, Taxes shall not include taxes on corporate income;

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

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

Agreement by one Party to the other Party terminating this Agreement;

“Termination Payment” means the amount payable by either Party to the other
upon Termination in accordance with Article 23;

“Terms of Reference” or “TOR” shall have the meaning set forth in Clause 18.2;

“Tests” means the tests set forth in Schedule-K to determine the completion of
Works in accordance with the provisions of this Agreement;

“Time Extension” shall have the meaning set forth in Clause 10.5;

“User” means a person who travels or intends to travel on the Project Highway or any
part thereof in/on any vehicle;

“Valuation of Unpaid works” shall have the meaning set forth in Clause 23.5;

“Works” means all works including survey and investigation, design, engineering,
procurement, construction, Plant, Materials, maintenance, temporary works and
other things necessary to complete the Project Highway in accordance with this
Agreement; and

“WPI” means the wholesale price index for various commodities as published by the
Ministry of Commerce and Industry, GOI and shall include any index which
substitutes the WPI, and any reference to WPI shall, unless the context otherwise

Contractor Managing Director,

MSIDC, Mumbai.
20
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

requires, be construed as a reference to the WPI published for the period ending with
the preceding month.

1.2 Interpretation

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

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

amendment or re-enactment or consolidation of such legislation or any
provision thereof so far as such amendment or re-enactment or 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, by 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;
Contractor Managing Director,
MSIDC, Mumbai.
21
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

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

(j) references to a “business day” shall be construed as a reference to a day (other
than a Sunday) on which banks in the state of Maharashtra 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

Contractor Managing Director,

MSIDC, Mumbai.
22
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

it is in writing under the hand of a duly authorised representative of such Party

or the Authority’s Engineer, as the case may be, in this behalf and not
otherwise;
(u) the Schedules and Recitals to this Agreement form an integral part of this
Agreement and will be in full force and effect as though they were expressly
set out in the body of this Agreement;
(v) references to Recitals, Articles, Clauses, Sub-clauses or Schedules in this
Agreement shall, except where the context otherwise requires, mean
references to Recitals, Articles, Clauses, Sub-clauses and Schedules of or to
this Agreement, and references to a Paragraph shall, subject to any contrary
indication, be construed as a reference to a Paragraph of this Agreement or of
the Schedule in which such reference appears;
(w) the damages payable by either Party to the other of them, as set forth in this
Agreement, whether on per diem basis or otherwise, are mutually agreed
genuine pre-estimated loss and damage likely to be suffered and incurred by
the Party entitled to receive the same and are not by way of penalty or
liquidated damages (the “Damages”); and
(x) time shall be of the essence in the performance of the Parties’ respective
obligations. If any time period specified herein is extended for the reasons
specified in the Agreement, such extended time shall also be of the essence.

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

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

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

1.3 Measurements and arithmetic conventions

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

Contractor Managing Director,

MSIDC, Mumbai.
23
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

1.4 Priority of agreements and errors/discrepancies

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

(a) this Agreement; and

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

(ii) Subject to the provisions of Clause 1.4 (i), in case of ambiguities or discrepancies
within this Agreement, the following shall apply:

(a) between two or more Clauses of this Agreement, the provisions of a specific
Clause relevant to the issue under consideration shall prevail over those in
other Clauses;
(b) between the Clauses of this Agreement and the Schedules, the Clauses shall
prevail and between Schedules and Annexes, the Schedules shall prevail;
(c) between any two Schedules, the Schedule relevant to the issue shall prevail;
(d) between the written description on the Drawings and the Specifications and
Standards, the latter shall prevail;
(e) between the dimension scaled from the Drawing and its specific written
dimension, the latter shall prevail; and
(f) between any value written in numerals and that in words, the latter shall
prevail.

1.5 Joint and several liability

(i) If the Contractor has formed a Joint Venture of two or more persons for
implementing the Project:

(a) these persons shall, without prejudice to the provisions of this Agreement or
any other agreement, be deemed to be jointly and severally liable to the
Authority for the performance of the Agreement; and
(b) the Contractor shall ensure that no change in the composition of the Joint
Venture is effected without the prior consent of the Authority.

(ii) Without prejudice to the joint and several liability of all the members of the Joint
Venture, the Lead Member shall represent all the members of the Joint Venture and

Contractor Managing Director,

MSIDC, Mumbai.
24
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

shall always be liable and responsible for discharging the functions and obligations
of the Contractor. The Contractor shall ensure that each member of the Joint Venture
shall be bound by any decision, communication, notice, action or inaction of the Lead
Member on any matter related to this Agreement and the Authority shall be entitled
to rely upon any such action, decision or communication of the Lead Member. The
Authority shall have the right to release payments solely to the Lead Member and
shall not in any manner be responsible or be held liable for the inter se allocation of
payments among members of the Joint venture. 4

4 This Clause 1.5 may be omitted if the Contractor is not a Joint venture. Even if the Contractor
is a Joint venture, the Authority may, at its discretion, delete this provision.

Contractor Managing Director,

MSIDC, Mumbai.
25
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Part II

Scope of Project

Contractor Managing Director,

MSIDC, Mumbai.
26
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 2

2 Scope of the Project

2.1 Scope of the Project

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

(a) construction of the Project Highway on the Site set forth in Schedule- A and
as specified in Schedule-B together with provision of Project Facilities as
specified in Schedule-C, and in conformity with the Specifications and
Standards set forth in Schedule-D;
(b) maintenance of the Project Highway in accordance with the provisions of this
Agreement and in conformity with the requirements set forth in Schedule-E;
and
(c) performance and fulfilment of all other obligations of the Contractor in
accordance with the provisions of this Agreement and matters incidental
thereto or necessary for the performance of any or all of the obligations of the
Contractor under this Agreement.

Contractor Managing Director,

MSIDC, Mumbai.
27
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 3

3 Obligations of the Authority

3.1 Obligations of the Authority

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

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

(iii) The Authority shall, upon submission of the Performance Security as per the RFP by
the Contractor, provide to the Contractor:

(a) No less than 90% (ninety per cent) of the required Right of Way (mentioned
at subclause (xi) clause 2 of Annexure I to Schedule B) of the Construction
Zone of total length of the Project Highway within a period of 30 (thirty) days
from the date of this Agreement, which shall be in contiguous stretches of
length not less than 5 (five) kilometre.
(b) deleted; and
(c) all environmental clearances as required under Clause 3.3.

(iv) Delay in providing the Right of Way or approval of GAD by railway authorities, as
the case may be, in accordance with the provisions of Clause 3.1 (iii) shall entitle the
Contractor to Damages in a sum calculated in accordance with the provisions of
Clause 8.3 of this Agreement and Time Extension in accordance with the provisions
of Clause 10.5 of this Agreement. For the avoidance of doubt, the Parties agree that
the Damages for delay in approval of GAD by the railway authorities for a particular
road over-bridge/ under-bridge shall be deemed to be equal to the Damages payable
under the provisions of Clause 8.3 for delay in providing Right of Way for a length
of 2 (two) kilometre for each such road over-bridge/ under-bridge.

(v) Notwithstanding anything to the contrary contained in this Agreement, the Parties
expressly agree that the aggregate Damages payable under Clauses 3.1 (iv), 8.3 and
9.5 shall not exceed 1% (one per cent) of the Contract Price. For the avoidance of
doubt, the Damages payable by the Authority under the aforesaid Clauses shall not
be additive if they arise concurrently from more than one cause but relate to the same
part of the Project Highway.

Both the parties agree that payment of such Damages shall be full and final settlement
of all claims of the Contractor and such compensation shall be the sole remedy
against delays of the Authority and both parties further agree that the payment of

Contractor Managing Director,

MSIDC, Mumbai.
28
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Damages shall be the final cure for the Contractor against delays of the Authority,
without recourse to any other payments

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

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

3.2 Maintenance obligations prior to the Appointed Date

The Authority shall, prior to the Appointed Date, maintain the Project Highway, at
its own cost and expense, so that its traffic worthiness and safety are at no time
materially inferior as compared to its condition 10 (ten) days prior to the last date for
submission of the Bid, and in the event of any material deterioration or damage other
than normal wear and tear, undertake repair thereof. For the avoidance of doubt, the
Authority shall undertake only routine maintenance prior to the Appointed Date, and
it shall undertake special repairs only in the event of excessive deterioration or
damage caused due to unforeseen events such as floods or earthquake.
Contractor Managing Director,
MSIDC, Mumbai.
29
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

3.3 Environmental Clearances

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

3.4 Deemed Termination upon delay

Without prejudice to the provisions of Clauses 8.3, and subject to the provisions of
Clause 7.3, the Parties expressly agree that in the event the Appointed Date does not
occur, for any reason whatsoever, within 90 days of signing of the Agreement and
submission of the full Performance Security by the Contractor, the Agreement shall
be deemed to have been terminated. The Authority shall pay damages to the
Contractor equivalent to 1% of the Contract Price (3% in case of standalone bridge
projects). All other rights, privileges, claims and entitlements of the Contractor under
or arising out of this Agreement shall be deemed to have been waived by, and to have
ceased. The Contractor shall hand over all information in relation to the Highway,
including but not limited to any data, designs, drawings, structures, information,
plans, etc. prepared by them for the Highway, to the Authority.

Contractor Managing Director,

MSIDC, Mumbai.
30
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 4

4 Obligations of the Contractor

4.1 Obligations of the Contractor

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

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

(iii) Subject to the provisions of Clauses 4.1 (i) and 4.1 (ii), the Contractor shall discharge
its obligations in accordance with Good Industry Practice and as a reasonable and
prudent person.

(iv) The Contractor shall remedy any and all loss, defects, or damage to the Project
Highway from the Appointed Date until the end of the Construction Period at the
Contractor’s cost, save and except to the extent that any such loss, defect, or damage
shall have arisen from any wilful default or neglect of the Authority.

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

(vi) The Contractor shall remedy any and all loss or damage to the Project Highway
during the Maintenance Period at the Contractor’s cost, including those stated in
Clause 14.1 (ii), save and except to the extent that any such loss or damage shall have
arisen on account of any wilful default or neglect of the Authority or on account of a
Force Majeure Event.

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

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

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

Contractor Managing Director,

MSIDC, Mumbai.
31
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

(b) procure, as required, the appropriate proprietary rights, licences, agreements

and permissions for Materials, methods, processes and systems used or
incorporated into the Project Highway;
(c) make reasonable efforts to maintain harmony and good industrial relations
among the personnel employed by it or its Sub-contractors in connection with
the performance of its obligations under this Agreement;
(d) ensure and procure that its Sub-contractors comply with all Applicable
Permits and Applicable Laws in the performance by them of any of the
Contractor’s obligations under this Agreement;
(e) not do or omit to do any act, deed or thing which may in any manner violate
any provisions of this Agreement;
(f) support, cooperate with and facilitate the Authority in the implementation and
operation of the Project in accordance with the provisions of this Agreement;
(g) ensure that the Contractor and its Sub-contractors comply with the safety and
welfare measures for labour in accordance with the Applicable Laws and
Good Industry Practice;
(h) keep, on Site, a copy of this Agreement, publications named in this
Agreement, the Drawings, Documents relating to the Project, and Change of
Scope orders and other communications given under this Agreement. The
Authority’s Engineer and its authorised personnel shall have the right of
access to all these documents at all reasonable times;
(i) cooperate with other contractors employed by the Authority and personnel of
any public authority; and
(j) not interfere unnecessarily or improperly with the convenience of the public,
or the access to and use and occupation of all roads and footpaths, irrespective
of whether they are public or in the possession of the Authority or of others.

(viii) The Contractor shall undertake all necessary superintendence to plan, arrange, direct,
manage, inspect and test the Works. The Contractor shall provide all necessary
superintendence of the Works for the proper fulfilling of the Contractor's obligations
under the Agreement. Such superintendence shall be given by competent person
having adequate knowledge of the operations to be carried out (including the
methods and techniques required, the hazards likely to be encountered and methods
of preventing accidents) for the satisfactory and safe execution of the Works.

(ix) The Contractor shall obtain and maintain a project related bank account operational
at site where all transactions related to the payment of work will be done. The
Contractor shall submit a monthly account statement and a detailed report on
utilization of funds transferred to this project related bank account to Authority’s
Engineer. Notwithstanding anything contrary to this agreement, the authority, in the

Contractor Managing Director,

MSIDC, Mumbai.
32
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

interest and to ensure timely completion of the work, reserves the right to audit such
bank accounts to ensure that there is no diversion of funds from this project specific
account to any other project being implemented by the Contractor.

(x) The Contractor shall provide the documents of the Contractor specified in the
Agreement, and all Contractors' personnel; Goods, consumables and other things and
services, whether of a temporary or permanent nature, required in and for the
execution, completion of Works and remedying defects.

(xi) The Contractor shall perform the Works in conformity with the Project requirements
and other requirements and standards prescribed under or pursuant to the Agreement.

(xii) The Contractor shall carry out such work incidental and contingent to the original
Scope of the Project to comply with Good Industry Practices.

(xiii) The Contractor shall maintain required staff and necessary Contractor’s equipment
and materials within the reach of the Site during the Defects Liability Period so that
any defects arising are promptly attended.

(xiv) The Contractor shall permit Authority to inspect the Contractor's accounts, records,
and other documents relating to the submission of bids and contract performance and
to have them audited by auditors appointed by Authority. The Contractor shall
maintain all documents and records related to the Contract for a period of Ten (10)
years after completion of the Works. The Contractor shall provide any documents
necessary for the investigation of allegations of fraud, collusion, coercion, or
corruption and require its employees or agents with knowledge of the Contract to
respond to questions from Authority.

4.2 Obligations relating to sub-contracts and any other agreements

(i) The Contractor, whether Joint Venture or sole, shall not sub-contract any Works in
more than 49% (forty-nine per cent) of the Contract Price and shall carry out Works
directly under its own supervision and through its own personnel and equipment in
at least 51% (fifty-one per cent) of the Contract Price. Further, in case the Contractor
is a Joint Venture, then the Lead Member shall carry out Works directly through its
own resources (men, material and machines etc.) in at least 51% (fifty-one per cent)
of total length of the Project Road. Provided, however, that in respect of the Works
carried out directly by the Contractor, it may enter into contracts for the supply and
installation of Materials, Plant, equipment, road furniture, safety devices and labour,
as the case may be, for such Works. For the avoidance of doubt, the Parties agree
that the Contractor may sub-divide the aforesaid length of 51% (fifty-one per cent)
in no more than 5 (five) sections of the Project Road. The Parties further agree that
all obligations and liabilities under this Agreement for the entire Project Road shall
at all times remain with the Contractor.

Contractor Managing Director,

MSIDC, Mumbai.
33
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

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

(iii) In the event any sub-contract referred to in Clause 4.2.2 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 without delay or demur.

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

(v) Specialist Subcontractors are allowed with the prior permission of the Managing
Director only for bridge works and relevant part of the work for which the contractor
proposes to execute the work with new/ alternate technology which has been
previously successfully used in India. Only the specific experience of the
subcontractor for the bridge works and new/alternate technology will be considered.
The experience of specialist subcontractor in contract of similar size and nature, and
their financial resources shall not be added to those of the Bidder for purposes of
qualification of the Bidder.

Contractor Managing Director,

MSIDC, Mumbai.
34
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

4.3 Employment of foreign nationals

The Contractor acknowledges, agrees and undertakes that employment of foreign

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

4.4 Contractor’s personnel

(i) The Contractor shall ensure that the personnel engaged by it or by its Sub- contractors
in the performance of its obligations under this Agreement are at all times
appropriately and adequately qualified, skilled and experienced in their respective
functions in conformity with Good Industry Practice. The Contractor shall hire at
least 10% (ten percent) trained workmen as per the National Skills Qualifications
Framework. If necessary, the requisite workmen may be got trained by the Contractor
at his cost through authorized training centres of the Directorate General of Training
(DGT). The Contractor will organize training at project site/ sites for the trainees as
and when required as per the training schedule finalized in consultation with the
training centres. The trainees shall be paid stipend by the Contractor (subject to a
maximum of Rs. 15,000/- per person) on the basis of minimum wages to compensate
for loss of income during the training period.

(ii) The Contractor’s Personnel shall be appropriately qualified, skilled and experienced
in their respective trades or occupations. The Authority’s Engineer may require the
Contractor to remove (or cause to be removed) any person employed on the Site or
Works, including the Contractor’s Representative if applicable, who:

(a) persists in any misconduct or lack of care,

(b) carries out duties incompetently or negligently,

(c) fails to conform with any provisions of the Contract, or

(d) persists in any conduct which is prejudicial to safety, health, or the

protection of the environment.

If appropriate, the Contractor shall then appoint (or cause to be appointed) a suitable

Contractor Managing Director,

MSIDC, Mumbai.
35
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

replacement person.

(iii) The Contractor shall on receiving such a direction from the Authority’s Engineer
order for the removal of such person or persons with immediate effect. It shall be the
duty of the Contractor to ensure that such persons are evicted from the Site within 10
(ten) days of any such direction being issued in pursuance of Clause 4.4 (ii). The
Contractor shall further ensure that such persons have no further connection with the
Works or Maintenance under this Agreement. The Contractor shall then appoint (or
cause to be appointed) a replacement.

4.5 Advertisement on Project Highway

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

4.6 Contractor's care of the Works

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

4.7 Electricity, water and other services

The Contractor shall be responsible for procuring of all utilities as may be required,
including without limitation, adequate power, water and other services.

4.8 Unforeseeable difficulties

Except as otherwise stated in the Agreement:

(a) the Contractor accepts complete responsibility for having foreseen all
difficulties and costs of successfully completing the Works;
(b) the Contract Price shall not be adjusted to take account of any unforeseen
difficulties or costs; and
(c) the Scheduled Completion Date shall not be adjusted to take account of any
unforeseen difficulties or costs.

4.9 Co-ordination of the Works

(i) The Contractor acknowledges that in addition to the Agreement, it is also aware of
terms of the other Project contracts and other agreements the Authority has
negotiated and entered into for performance of its obligations under the Agreement
( copies of other contracts and other agreements are made available to the Contractor

Contractor Managing Director,

MSIDC, Mumbai.
36
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

from time to time) and that the Contractor is fully aware of the consequences to the
Authority which would or are likely to result from a breach by the Contractor of its
obligations under the Agreement. In the event the actions of the Contractor result in
the breach by the Authority of any or all of the other Project contracts and such breach
imposes any liability on the Authority, the Contractor shall: (a) undertake all steps as
may be possible to mitigate or neutralize the liability that has arisen, and (b)
indemnify the Authority against any such liability and compensate the Authority to
that extent.

(ii) The Contractor shall be responsible for the co-ordination and proper provision of the
Works, including co-ordination of other Contractors or Sub-contractors for the
Project. The Contractor shall co-operate with the Authority in the co- ordination of
the Works with the works under the other Project contracts. The Contractor shall
provide all reasonable support for carrying out their work to:

(a) any other contractors employed by the Authority;

(b) the workmen of the Authority;

(c) the workmen of any Governmental Instrumentality who may be employed in the
execution of work on or near the Site; and

(iii) (d) such other persons as is required in the opinion of the Authority for successful
completion of the Project.

4.10 Environmental Measures

(i) The Contractor agrees to conduct its activities in connection with the Agreement in
such a manner so as to comply with the environmental requirements which includes,
inter alia, all the conditions required to be satisfied under the environmental
clearances and applicable law, and assumes full responsibility for measures which
are required to be taken to ensure such compliance.

(ii) The Contractor shall comply with all applicable national, provincial and local
environmental laws regulations. The Contractor shall (a) establish an operational
system for managing environmental impacts (b) carry out all of the monitoring and
mitigation measures set forth in the Environmental Impact Assessment and Prepare
updated Environmental Management Plan (EMP) including the action plan and
checklist. The Contractor shall allocate the budget required to ensure that such
measures are carried out and submit quarterly/semi-annual reports on carrying out of
such measures to the Authority.

More particularly, the Contractor shall comply with (i) the measures and
requirements set forth in the environmental management plan attached here to as
Appendix B XX of Schedule B; and (ii) any corrective or preventive actions set out

Contractor Managing Director,

MSIDC, Mumbai.
37
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

in safeguards monitoring reports that the Authority will prepare from time to time to
monitor implementation of the Environmental Management Plan.

The Contractor shall allocate a budget for compliance with these measures,
requirements and actions.

4.11 Site Data

(i) The Contractor shall be deemed to have inspected and examined the Site and its
surroundings and to have satisfied himself before entering into the Agreement in all
material respects including but not limited to:

(a) the form and nature of the Site (including, inter-alia, the surface and sub-
surface conditions and geo-technical factors);
(b) the hydrological and climatic conditions;
(c) the extent and nature of the works already completed and Materials necessary
for the execution and completion of the Works and the remedying of any
defects that includes already executed part also.
(d) the suitability and the adequacy of the Site for the execution of the Works;
(e) the means of access to the Site and the accommodation the Contractor may
require;
(f) arranging permits as required as per provisions of the Agreement.
(g) the requirements of operation and maintenance; and
(h) all other factors and circumstances affecting the Contractor's rights and
obligations under the Agreement, the Contract Price and Time for
Completion.
(i) The Contractor shall adequately record the condition of roads, agricultural
land and other infrastructure prior to the start of transporting materials, goods
and equipment, and construction.
(j) The Contractor has to study & survey on his own about all existing Major
and minor bridges and C.D. works along the project length. The condition
survey is to be carried out by the contractor at his own cost. The bridges which
are to be retained as mentioned in the schedule, the cost required for repairs,
if any, shall be considered by the contractor before bidding. As per IRC
standards some bridges / culverts / C.D. works may require widening. The
cost required for widening and for repair if any of existing retained structure
shall be considered by the contractor before bidding.

Contractor Managing Director,

MSIDC, Mumbai.
38
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

4.12 Sufficiency of Contract Price

The Contractor shall have satisfied itself as to the correctness and sufficiency of the
Contract Price. The Contract Price shall cover all its obligations under the
Agreement, in addition to all risks the Contractor has agreed to undertake under the
Agreement, including those associated with the performance of its obligations under
the Agreement and all things necessary for the provision of the Works in a manner
satisfactory to the Authority and in accordance with this Agreement.

4.13 Clearance of the Site

During the provision of the Works, and as a pre-condition to the issue of the Taking-
Over Certificate, the Contractor shall clear away and remove from the Site, all
Contractor's equipment, surplus material, wreckage, rubbish and temporary Works,
and shall keep the Site free from all unnecessary obstructions, and shall not store or
dispose of any Contractor's equipment or surplus materials on the Site. The
Contractor shall promptly clear away and remove from the Site any wreckage,
rubbish or temporary Works no longer required and leave the Site and the Works in
a clean and safe condition to the sole satisfaction of the Authority.

4.14 Deleted

Contractor Managing Director,

MSIDC, Mumbai.
39
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 5

5 Representations and Warranties

5.1 Representations and warranties of the Contractor

(i) The Contractor represents and warrants to the Authority that:

(a) it is duly in compliance with the laws of India, and has full power and
authority to execute and perform its obligations under this Agreement and to
carry out the transactions contemplated hereby;
(b) it has taken all necessary corporate and/or other actions under Applicable
Laws to authorise the execution and delivery of this Agreement and to validly
exercise its rights and perform its obligations under this Agreement;
(c) this Agreement constitutes its legal, valid and binding obligation, enforceable
against it in accordance with the terms hereof, and its obligations under this
Agreement will be legally valid, binding and enforceable against it in
accordance with the terms hereof;
(d) it is subject to the laws of India, and hereby expressly and irrevocably waives
any immunity in any jurisdiction in respect of this Agreement or matters
arising thereunder including any obligation, liability or responsibility
hereunder;
(e) the information furnished in the Bid, Request for Proposals or otherwise and
as updated on or before the date of this Agreement is true and accurate in all
respects as on the date of this Agreement;
(f) the execution, delivery and performance of this Agreement will not conflict
with, or result in the breach of, or constitute a default under, or accelerate
performance required by any of the terms of its memorandum and articles of
association or any Applicable Laws or any covenant, contract, agreement,
arrangement, understanding, decree or order to which it is a party or by which
it or any of its properties or assets is bound or affected;
(g) there are no actions, suits, proceedings, or investigations pending or, to its
knowledge, threatened against it at law or in equity before any court or before
any other judicial, quasi-judicial or other authority, the outcome of which may
result in the breach of this Agreement or which individually or in the
aggregate may result in any material impairment of its ability to perform any
of its obligations under this Agreement;
(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

Contractor Managing Director,

MSIDC, Mumbai.
40
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

circumstance exists which may give rise to such proceedings that would
adversely affect the performance of its obligations under this Agreement;
(i) it has complied with Applicable Laws in all material respects and has not
been subject to any fines, penalties, injunctive relief or any other civil or
criminal liabilities which in the aggregate have or may have a material
adverse effect on its ability to perform its obligations under this Agreement;
(j) no representation or warranty by it contained herein or in any other document
furnished by it to the Authority or to any Government Instrumentality in
relation to Applicable Permits contains or will contain any untrue or
misleading statement of material fact or omits or will omit to state a material
fact necessary to make such representation or warranty not misleading;
(k) no sums, in cash or kind, have been paid or will be paid, by it or on its behalf,
to any person by way of fees, commission or otherwise for securing the
contract or entering into this Agreement or for influencing or attempting to
influence any officer or employee of the Authority in connection therewith;
(l) nothing contained in this Agreement shall create any contractual relationship
or obligation between the Authority and any Sub- contractors, designers,
consultants or agents of the Contractor;
(m) it is adequately financed has the requisite knowledge, expertise, technical
know-how, experience, resources, infrastructure, licenses, patents, copy
rights, for designing, supplying/ procuring the goods and materials, and for
providing the installation and construction services required for completing
the construction of the Project Facilities;
(n) all information provided by the {selected contractor/ members of the
Consortium} in response to the Request for Qualification and Bidding
Documents or otherwise, is to the best of its knowledge and belief, true and
accurate in all material respects and

(ii) it represents to the Authority that:

(a) it owns or has the right to use all “Intellectual Property” necessary to
perform the contractual obligations and to carry on the Works without
conflict with the right of others;
(b) All intellectual property rights necessary to perform the contractual
obligations and to carry on the Works are in full force and effect and are
vested in, and beneficially owned by the Contractor, and are free from
encumbrances.
(c) None of the intellectual property rights is being used, claimed, or posed or
attacked by any other person, nor does the use of such intellectual property

Contractor Managing Director,

MSIDC, Mumbai.
41
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

rights or any part of them infringe the intellectual property rights owned or
enjoyed by any third party.
(d) None of the intellectual property rights owned or used by the Contractor is
the subject of any claim, opposition, attack, assertion or other arrangement of
whatsoever nature which does or may impinge upon their use, validity,
enforceability or ownership by the Parties, and there are no grounds or other
circumstances which may give rise to the same.
(e) No licenses or registered user or other rights have been granted or agreed to
be granted to any third party in respect of such intellectual property rights.
(f) No act has been done or has been omitted to be done to entitle any authority
or person to cancel, forfeit or modify any intellectual property rights.
(g) The Contractor shall notify the Authority of any adverse use of the
intellectual property rights or confusingly or deceptively similar to the
intellectual property rights.
(h) The Contractor shall recognize the Authority’s ownership and title to the
intellectual property rights and shall not at any time, either directly or
indirectly, put to issue the validity or ownership of the intellectual property
rights and it will not do any act or thing, either directly or indirectly, which in
anyway impairs the validity and ownership of the intellectual property rights.
(i) The Contractor shall, promptly execute, acknowledge and deliver all
documents which are requested by Authority to record with appropriate
governmental agencies and authorities the fact that the Authority has the right
to the use of the said intellectual property rights.
(j) The Contractor shall not, for any reason, object to, or interfere in any way
with the ownership, registration or use of the intellectual property rights by
the Authority (or its licensee or assigns) for any purpose whatsoever.

(iii) The Contractor is fully aware that the Agreement is inter linked with the other Project
contracts and the non-performance or deficient performance or default by the
Contractor and/or any of the Contractor’s personnel or Subcontractors under one
among the said contracts will have bearing on the other contracts and the evaluation
of the Contractor’s performance under the Agreement and the Project itself.

(iv) If at any time during the Defects Liability Period any item of the Works or Project
Facilities or any part thereof, do not conform to the Authority requirements and
Specifications and Standards, on being so notified by the Authority, the Contractor
shall promptly rectify/remedy such nonconformity to the satisfaction of the Authority
solely at the Contractor's expense; failing which the Authority may reject or revoke
Taking-Over Certificate, and the Authority may proceed to correct the Contractor's
nonconforming Work by the most expeditious means available, the costs of which

Contractor Managing Director,

MSIDC, Mumbai.
42
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

shall be to the Contractor's account; or the Authority may retain the non-conforming
Work and an equitable adjustment reducing the total Contract Price to reflect the
diminished value of such non-conforming Work will be made by written amendment.

(v) In addition to the other warranties, the Contractor represents and warrants as follows:

(a) The Contractor has (or, if the technology does not currently exist, will have
granted at the time of passing to The Authority) in and to the technology used
in the equipment, materials, goods, Works, Contractor's documents,
Drawings and Manuals (“Technology") -
i. all right, title and interest free of any lien, claim or restriction; and
ii. right to grant to the Authority the right to use the Technology for the
purpose of this contract, free of any lien, claim or restriction and on the
terms of license as required.
(b) The Contractor has granted (or, if the technology does not currently exist,
will grant at the time of passing to the Authority the property and title in and
to the equipment, materials, goods, Works, spares, Contractor's documents,
Drawings and Manuals in which it is used) to the Authority the right to use
the Technology, free of any lien, claim or restriction.

(vi) In addition to the other Warranties, the Contractor represents and warrants as follows:

(a) No Technology contains any worm (i.e., a program that travels from one
computer to another computer but does not attach itself to the operating
system of the computer it enters), virus (i.e., a program that travels from one
computer to another computer that attaches itself to the operating system it
enters) or self-destruct capability.
(b) The Technology will not abnormally end or provide invalid or incorrect
results as a result of date-dependent data.
(c) The Technology can accurately recognize, manage, accommodate, and
manipulate date-dependent data, including single and multi-century formulas
and leap years.

(vii) No criminal proceedings instituted against any of the employees or Directors of the
Contractor.

(viii) Till date the services of the Contractor has not been terminated by any person for any
breach or non-performance or negligence by the Contractor.

5.2 Representations and warranties of the Authority

The Authority represents and warrants to the Contractor that:

Contractor Managing Director,

MSIDC, Mumbai.
43
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

(a) it has full power and authority to execute, deliver and perform its obligations
under this Agreement and to carry out the transactions contemplated herein
and that it has taken all actions necessary to execute this Agreement, exercise
its rights and perform its obligations, under this Agreement;
(b) it has taken all necessary actions under the Applicable Laws to authorise the
execution, delivery and performance of this Agreement;
(c) it has the financial standing and capacity to perform its obligations under this
Agreement;
(d) this Agreement constitutes a legal, valid and binding obligation enforceable
against it in accordance with the terms hereof;
(e) it has no knowledge of any violation or default with respect to any order, writ,
injunction or any decree of any court or any legally binding order of any
Government Instrumentality which may result in any material adverse effect
on the Authority’s ability to perform its obligations under this Agreement;
(f) it has complied with Applicable Laws in all material respects;
(g) it has good and valid right to the Site and has the power and authority to grant
the Right of Way in respect thereof to the Contractor; and
(h) it has procured Right of Way and environment clearances such that the
Contractor can commence construction forthwith on 90% (ninety per cent) of
the total length of the Project Highway.

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.

Contractor Managing Director,

MSIDC, Mumbai.
44
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 6

6 Disclaimer

6.1 Disclaimer

(i) The Contractor acknowledges that prior to the execution of this Agreement, the
Contractor has, after a complete and careful examination, made an independent
evaluation of the Request for Proposal, Scope of the Project, Specifications and
Standards of design, construction and maintenance, Site, local conditions, physical
qualities of ground, subsoil and geology, traffic volumes, suitability and availability
of access routes to the Site and all information provided by the Authority or obtained,
procured or gathered otherwise, and has determined to its satisfaction the accuracy
or otherwise thereof and the nature and extent of difficulties, risks and hazards as are
likely to arise or may be faced by it in the course of performance of its obligations
hereunder. Save as provided in Clause 3.1 and Clause 5.2, the Authority makes no
representation whatsoever, express, implicit or otherwise, regarding the accuracy,
adequacy, correctness, reliability and/or completeness of any assessment,
assumptions, statement or information provided by it and the Contractor confirms
that it shall have no claim whatsoever against the Authority in this regard.

(ii) The Contractor acknowledges and hereby accepts the risk of inadequacy, mistake or
error in or relating to any of the matters set forth in Clause 6.1.(i) above and hereby
acknowledges and agrees that the Authority shall not be liable for the same in any
manner whatsoever to the Contractor, {the Joint Venture Members and their}
Associates or any person claiming through or under any of them.

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

(iv) The Contractor acknowledges and hereby accepts the risk of inadequacy, mistake or
error in or relating to any of the matters set forth in Clause 6.1 (i) above and hereby
acknowledges and agrees that the Authority shall not be liable for the same in any
manner whatsoever to the Contractor, or any person claiming through or under any
of them, and shall not lead to any adjustment of Contract Price or Scheduled
Completion Date.

(v) The Parties agree that any mistake or error in or relating to any of the matters set
forth in Clause 6.1 (i) above shall not vitiate this Agreement, or render it voidable.

(vi) In the event that either Party becomes aware of any mistake or error relating to any
of the matters set forth in Clause 6.1 (i) above, that Party shall immediately notify
the other Party, specifying the mistake or error provided, however, that a failure on
part of the Authority to give any notice pursuant to this Clause 6.1.(vi) shall not

Contractor Managing Director,

MSIDC, Mumbai.
45
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

prejudice the disclaimer of the Authority contained in Clause 6.1.(i) and shall not in
any manner shift to the Authority any risks assumed by the Contractor pursuant to
this Agreement.

(vii) 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.

(viii) Requirement of retaining wall or increase in its length to protect embankment shall
be assessed by the Contractor keeping in view Right of way available. No extra
payment will be given by the Authority for retaining wall or increase in its length or
protective measures required for protection or safety of project.

(ix) The length of RCC drains & other drains shall be assessed by the Contractor to
discharge the water up to the natural drain or C. D. work. No Extra payment will be
given by the Authority for any increase in the length of the drain on this account.

(x) Bid Price submitted by {bidder/ Joint Venture} shall include all costs required for
completion of this Project in all respect. In Future no claims will be entertained on
account of any alteration/modification/rectification/repairs/ new works required as
per Contractor’s detail study.

Contractor Managing Director,

MSIDC, Mumbai.
46
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Part III

Construction and Maintenance

Contractor Managing Director,

MSIDC, Mumbai.
47
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 7

7 Performance Security

7.1 Performance Security

(i) (A) Within 30 (thirty) days of receipt of Letter of Acceptance, the selected Bidder
shall furnish to the Authority in the form of Demand Draft/ Fixed Deposit Receipt/
Bank Guarantee in the form set forth in Annex-I of Schedule-G (the “Performance
Security”) for an amount equal to 7.50% (Seven and half percent) , bifurcated in two
parts of 4.5% (four and half percent) and 3% (three percent) of its Bid Price. In case
of bids mentioned below, the Selected Bidder, along with the Performance Security,
shall also furnish to the Authority in the form of Demand Draft/ Fixed Deposit
Receipt/Bank Guarantee in the same form given at Annex-I of Schedule-G towards
an Additional Performance Security (the “Additional Performance Security”) for an
amount calculated amount calculated as per Clause 2.21 of RFP.

(B) The Performance Security shall be valid until 60 (sixty) days after the Defects
Liability Period. The Additional Performance Security shall be valid until 28
(twenty-eight) days after Project Completion Date.

(ii) The Selected Bidder has the option to provide 50% of the Performance Security and
50% of the Additional Performance Security, if any, within 30 (thirty) days of receipt
of Letter of Acceptance, in any case before signing of the Contract Agreement and
the remaining Performance Security and Additional Performance Security, if any,
shall be submitted within 30 days of signing of this agreement.

(iii) In the event the Selected Bidder fails to provide the remaining Performance Security
and Additional Performance Security, if any, as prescribed herein, it may seek
extension of time for a further period upto 60 days by paying the Damages upfront
along with the request letter seeking the extension. The Damages shall be the sum
calculated at the rate of 0.01% (zero point zero one per cent) of the Bid Price offered
by the Selected Bidder for each day until the Performance Security and Additional
Performance Security, if any, is provided in full as prescribed herein. The damages
at full rate as given above shall be applicable even if a part of the Performance
Security and the Additional Performance Security is provided.

(iv) For avoidance of any doubt, in case of failure of submission of Performance Security
and Additional Performance Security, if any, within the additional 60 days’ time
period, the award shall be deemed to be cancelled/ withdrawn and the Bid Security
shall be encashed and the proceeds thereof appropriated by the Authority. Thereupon
all rights, privileges, claims and entitlements of the Contractor under or arising out
of the Award shall be deemed to have been waived by, and to have ceased with the

Contractor Managing Director,

MSIDC, Mumbai.
48
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

concurrence of the Contractor, and the Award shall be deemed to have been
withdrawn by the Authority.

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

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

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

(iii) Upon the failure of the Contractor to achieve the milestones referred in schedule J
within the prescribed period as per the schedule at the fault of the Contractor the
Additional Performance Security shall be appropriated/encashed.

(iv) The Additional Performance Security shall be encashed in case the Contractor cannot
achieve the Milestones –II/III/IV … within the prescribed period as per this
Agreement due to the fault of the Contractor.

Contractor Managing Director,

MSIDC, Mumbai.
49
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

7.4 Release of Performance Security

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

(ii) The Authority shall return the Additional Performance Security to the Contractor
within 28 (twenty eight) days from the date of issue of Completion Certificate under
Article 12 of this Agreement.

(iii) Upon application by contractor, the Authority shall be liable to pay interest @ 9%
(nine per cent) per annum for any delay in the return of Performance Security and
Additional Performance Security, if any, beyond the period prescribed above for the
period of delay.

7.5 Retention Money

(i) From every payment for Works due to the Contractor in accordance with the
provisions of Clause 19.5, the Authority shall deduct 6% (six 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.

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

(iii) Deleted;

(iv) Within 15 (fifteen) days of the date of issue of the Completion Certificate, the
Authority shall refund the balance of Retention Money remaining with the Authority
after adjusting the amounts appropriated under the provisions of Clause 7.5 (ii).

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

Contractor Managing Director,

MSIDC, Mumbai.
50
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 8

8 Right of Way

8.1 The Site

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

(a) acquiring and providing Right of Way on the Site in accordance with the
alignment finalised by the Authority, free from all encroachments and
encumbrances, and free access thereto for the execution of this Agreement;
and
(b) obtaining licences and permits for environment clearance for the Project
Highway.

8.2 Procurement of the Site

(i) The Authority Representative, the Contractor and Authority’s Engineer shall, within
10 (ten) days of the date of this Agreement, inspect the Site and prepare a detailed
memorandum containing an inventory of the Site including the vacant and
unencumbered land, buildings, structures, road works, trees and any other
immovable property on or attached to the Site (hereinafter referred to as the
“Handover Memorandum”). Subject to the provisions of Clause 8.2 (iii), the
Handover Memorandum shall have appended thereto an appendix (the “Appendix”)
specifying in reasonable detail those parts of the Site to which vacant access and
Right of Way has not been given to the Contractor along with details of hindrances
in the Construction Zone. For sake of clarity the Handover Memorandum shall
clearly specify the parts of Site where work can be executed. Signing of the Handover
Memorandum, in three counterparts (each of which shall constitute an original), by
the authorized representatives of the Authority, Contractor and Authority’s Engineer
shall be deemed to constitute a valid evidence of giving the Right of Way to the
Contractor for discharging its obligations under and in accordance with the provisions
of this Agreement and for no other purpose whatsoever.

(ii) Whenever the Authority is ready to hand over any part or parts of the Site included
in the Appendix, it shall inform the Contractor, by notice, of the proposed date and
time such of hand over. The Authority Representative and the Contractor shall, on
the date so notified, inspect the specified parts of the Site, and prepare a
memorandum containing an inventory of the vacant and unencumbered land,
buildings, structures, road works, trees and any other immovable property on or
attached to the Site so handed over. The signing of the memorandum, in three (3)
counterparts (each of which shall constitute an original), by the authorised

Contractor Managing Director,

MSIDC, Mumbai.
51
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

representatives of the Parties shall be deemed to constitute a valid evidence of giving

the relevant Right of Way to the Contractor.

If the contractor fails to join for site inspection or disputes the parts of the site
available for work, the Authority’s Engineer shall decide the parts of the site where
work can be executed and notify to both the parties within 3 days of the proposed date
of inspection. The parties agree that such notification of the Authority’s Engineer as
mentioned hereinabove shall be final and binding on the parties.

(iii) The Authority shall provide the Right of Way to the Contractor in respect of all land
included in the Appendix by the date specified in Schedule-A for those parts of the
Site referred to therein, and in the event of delay for any reason other than Force
Majeure or breach of this Agreement by the Contractor, it shall pay to the Contractor,
Damages in a sum calculated in accordance with Clause 8.3. The Contractor agrees
that it shall not be entitled to claim any other damages on account of any such delay
by the Authority.

(iv) Notwithstanding anything to the contrary contained in this Clause 8.2, the Authority
shall specify the parts of the Site, if any, for which Right of Way shall be provided
to the Contractor on the dates specified in Schedule-A. Such parts shall also be
included in the Appendix prepared in pursuance of Clause 8.2 (i).

(v) The Authority further acknowledges and agrees that prior to the Appointed Date, it
shall have procured issuance of the statutory notification under Applicable Laws for
vesting of all the land comprising the Project in the Authority and has taken
possession of area for Construction Zone for at least 90% (ninety per cent) of the
total length of the Project Highway. The Parties also acknowledge and agree that the
conditions specified in this Clause 8.2 (iii) shall not be modified or waived by either
Party.

(vi) For the avoidance of doubt, the Parties expressly agree that the Appendix shall in no
event contain sections of the Project Highway the cumulative length of which
exceeds 10% (ten percent) of the total length of the Project Highway.

(vii) Pursuant to signing of Handover Memorandum under clause 8.2 (i), Contractor shall
submit to the Authority’s Engineer, a monthly land possession report till expiry of
180 (one hundred and eighty) days from Appointed Date, in respect of those parts of
the site to which vacant access and right of way was not given to the contractor and
included in Appendix to the memorandum signed under clause 8.2 (i), duly specifying
the part of the site, if any, for which the right of way is yet to be handed over.

Contractor Managing Director,

MSIDC, Mumbai.
52
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

8.3 Deleted

8.4 Site to be free from Encumbrances

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

8.5 Protection of Site from encroachments

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

in Clause 8.2, and until the issue of the Completion Certificate, the Contractor shall
maintain a round-the-clock vigil over the Site and shall ensure and procure that no
encroachment takes place thereon. During the Construction Period, the Contractor
shall protect the Site from any and all occupations, encroachments or Encumbrances,
and shall not place or create nor permit any Sub-contractor or other person claiming
through or under the Agreement to place or create any Encumbrance or security
threat over all or any part of the Site or the Project Assets, or on any rights of the
Contractor therein or under this Agreement, save and except as otherwise expressly
set forth in this Agreement. In the event of any encroachment or occupation on any
part of the Site, the Contractor shall report such encroachment or occupation
forthwith to the Authority and undertake its removal at its own cost and expenses.

8.6 Special/ temporary Right of Way

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

8.7 Access to the Authority and the Authority’s Engineer

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

Contractor Managing Director,

MSIDC, Mumbai.
53
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

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

8.8 Geological and archaeological finds

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

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

Contractor Managing Director,

MSIDC, Mumbai.
54
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 9

9 Utilities and Trees

9.1 Existing utilities and roads

Notwithstanding anything to the contrary contained herein, it shall be the

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

9.2 Shifting of obstructing utilities

The Contractor shall, subject to Applicable Laws and with assistance of the
Authority, undertake shifting of any utility (including electric lines, water pipes and
telephone cables), to an appropriate location or alignment, if such utility or
obstruction adversely affects the execution of Works or Maintenance of the Project
Highway in accordance with this Agreement, as per the scope given in Schedule B
and in accordance with applicable standards and specification of concerned utility
owning entity. The contractor shall shift only such utilities included in Schedule B.
The cost of shifting of such, utilities indicated in Schedule-B is payable to the
Contractor as per Schedule-H, in case it is executed by the Contractor. Cost of
shifting utilities not included in the Schedule-B, if any, may be treated as Change of
Scope. The Authority will provide assistance to the Contractor for obtaining the
estimates for shifting of such utilities from the entity owning such electric lines,
water pipes or telephone cables, as the case may be. The Contractor shall execute
such utility shifting works under the supervision of utility owning agency and
Authority’s Engineer (AE) in accordance with the provision of Agreement. The
supervision charges only shall be paid by the Authority to the Utility Owning Entity.
In the event of any delay in shifting thereof, the Contractor shall be responsible for
failure to perform any of its obligations hereunder if such failure is not as a direct
consequence of delay on the part of the entity owning such electric lines, water pipes
or telephone cables, as the case may be.

The dismantled material/scrap of existing Utility to be shifted/dismantled shall

belong to the Contractor who would be free to dispose-off the dismantled material as
deemed fit by them.

The work of shifting of Utilities can be taken up by the Contractor any time after
signing of the Agreement.

Contractor Managing Director,

MSIDC, Mumbai.
55
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

9.3 New utilities

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

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

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

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

9.4 Felling of trees

The Authority shall assist the Contractor in obtaining the Applicable Permits for
felling of trees in non-forest area to be identified by the Authority for this purpose if,
and only if, such trees cause a Material Adverse Effect on the construction or
maintenance of the Project Highway. The Contractor shall fell these trees as per the
Permits obtained. The cost of such felling shall be borne by the Authority and in the
event of any delay in felling thereof for reasons beyond the control of the Contractor;
it shall be excused for failure to perform any of its obligations hereunder if such failure
is a direct consequence of delay in the felling of trees. The Parties hereto agree that
the felled trees shall be deemed to be owned by the Authority and shall be disposed

Contractor Managing Director,

MSIDC, Mumbai.
56
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

in such manner and subject to such conditions as the Authority may in its sole
discretion deem appropriate. For the avoidance of doubt, the Parties agree that if any
felling of trees hereunder is in a forest area, the Applicable Permit thereof shall be
procured by the Authority within the time specified in the Agreement.

9.5 Dismantling of structures

The Contractor shall at its own cost dismantle the structures in the acquired lands
including those on patta lands, abadi lands, assigned lands, etc. the compensation for
which, was paid by the Authority to the land owners and the lands were handed over
to the Contractor as per Schedule B-I. The Contractor shall, at its own cost, dispose
off the dismantled material in its sole discretion as deemed appropriate, while
complying with all environmental guidelines and regulations and clear the Site for
undertaking construction. In the event of any delay in dismantling of structures
thereof for reasons beyond the control of the Contractor, the Contractor shall be
entitled to Damages in a sum calculated in accordance with the formula specified in
Clause 8.3 (i) for the period of delay, and to the Time Extension in accordance with
Clause 10.5 for and in respect of the part(s) of the Works affected by such delay;
provided that if the delays involve any time overlaps, the overlaps shall not be
additive.

Structure owners should be allowed to take away the materials salvaged from
dismantled houses and shops and no charges will be levied upon them for the same.
A notice to that effect will be issued that structure owners can take away the materials
so salvaged within 15 days of their demolition; otherwise, the same will be disposed
by the Contractors without giving any further notice.

9.6 Development Period

The Contractor may commence pre-construction activities like utility shifting,

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

9.7 Utilities and Trees Not Covered in Scope of Work

Notwithstanding any provisions set forth in Article 9, should it become necessary to

relocate utilities or remove trees that interfere with the execution of the work, and

Contractor Managing Director,

MSIDC, Mumbai.
57
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

such activities fall outside the Work Scope defined in Schedule B, the Authority
reserves the right to engage an alternative contractor. It is the Contractor's duty to
facilitate coordination with any such alternative contractor or entity; however, the
Authority will not consider claims for compensation, liquidated damages, extensions
of time, or any other claims arising from or related to the execution of tasks given
under this Article 9.7.

Contractor Managing Director,

MSIDC, Mumbai.
58
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 10

10 Design and Construction of the Project Highway

10.1 Obligations prior to commencement of Works

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

(a) appoint its representative, duly authorised to deal with the Authority in respect
of all matters under or arising out of or relating to this Agreement;
(b) appoint key personnel as required by clause [Link] (vi) of the RFP;
(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.
(e) Prepare a checklist setting out the safety procedures which shall be adopted
within the construction zone
(f) Prepare updated Environmental Management Plan (EMP) including the
action plan

(ii) The Authority shall, appoint an engineer (the “Authority’s Engineer”) before the
Appointed Date to discharge the functions and duties specified in this Agreement,
and shall notify to the Contractor the name, address and the date of appointment of
the Authority’s Engineer forthwith.

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

(a) Part I : Contractor’s organisation for the Project, the general methods
and arrangements for design and construction, environmental management
plan, Quality Assurance Plan including design quality plan, traffic
management and safety plan covering safety of users and workers during
construction (including use of ‘ROBOTS’ for diversion and control of
traffic), Contractor’s key personnel and equipment.
(b) Part II : Programme for completion of all stages of construction given
in Schedule-H and Project Milestones of the Works as specified in Project
Completion Schedule set forth in Schedule-J. The Programme shall include:
Contractor Managing Director,
MSIDC, Mumbai.
59
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

i. the order in which the Contractor intends to carry out the Works,
including the anticipated timing of design and stages of Works;
ii. the periods for reviews under Clause 10.2;
iii. the sequence and timing of inspections and tests specified in this
Agreement; and
iv. the particulars for the pre-construction reviews and for any other
submissions, approvals and consents specified in the Agreement.

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

(c) Part III : Monthly cash flow forecast.

(iv) The Contractor shall compute, on the basis of the Drawings prepared in accordance
with Clause 10.2 (iv), and provide to the Authority’s Engineer, the length, area and
numbers, as the case may be, in respect of the various items of work specified in
Schedule-H and comprising the Scope of the Project. The Parties expressly agree that
these details shall form the basis for estimating the interim payments for the Works
in accordance with the provisions of Clause 19.3. For the avoidance of doubt, the
sum of payments to be computed in respect of all the items of work shall not exceed
the Contract Price, as may be adjusted in accordance with the provisions of this
Agreement.

(v) The Contractor shall appoint a safety consultant (the “Safety Consultant”) to carry
out a safety audit at the design stage of the Project Highway in accordance with the
Applicable Laws and Good Industry Practice. The Safety Consultant shall be
appointed after proposing to the Authority a panel of three (3) names of qualified and
experienced firms from which the Authority may choose one (1) to be the Safety
Consultant. Provided, however, that if the panel is not acceptable to the Authority
and the reasons for the same are furnished to the Contractor, the Contractor shall
propose to the Authority a revised panel of three (3) names from the firms
empanelled as safety consultants by the Ministry of Road Transport and Highways
for obtaining the consent of the Authority. The Contractor shall also obtain the
consent of the Authority for the key personnel of the Safety Consultant who shall
have adequate experience and qualifications in safety audit of the highway projects.
The Authority shall, within 15 (fifteen) days of receiving a proposal from the
Contractor hereunder, convey its decision, with reasons, to the Contractor, and if no
such decision is conveyed within the said period, the Contractor may proceed with
engaging of the Safety Consultant.

(vi) The safety audit pursuant to Clause 10.1 (v) shall be carried out by the Safety
Consultant in respect of all such design details that have a bearing on safety of Users
as well as pedestrians and animals involved in or associated with accidents. The
Contractor Managing Director,
MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

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

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

(ii) The Contractor shall appoint a proof check consultant (the “Proof Consultant”) after
proposing to the Authority a panel of three (3) names of qualified and experienced
firms from whom the Authority may choose one (1) to be the Proof Consultant.
Provided, however, that if the panel is not acceptable to the Authority and the reasons
for the same are furnished to the Contractor, the Contractor shall propose to the
Authority a revised panel of three (3) names from the firms empanelled as proof
consultants by the Ministry of Road Transport and Highways/ Public Works
Department, Maharashtra for obtaining the consent of the Authority. The Contractor
shall also obtain the consent of the Authority for two (2) key personnel of the Proof
Consultant who shall have adequate experience and qualifications in highways and
bridges respectively. The Authority shall, within 15 (fifteen) days of receiving a
proposal from the Contractor hereunder, convey its decision, with reasons, to the
Contractor, and if no such decision is conveyed within the said period, the Contractor
may proceed with engaging of the Proof Consultant.

(iii) The Proof Consultant shall:

(a) evolve a systems approach with the Design Director so as to minimise the
time required for final designs and construction drawings; and
(b) proof check the detailed calculations, drawings and designs, which have been
approved by the Design Director.

(iv) In respect of the Contractor’s obligations with respect to the design and Drawings of
the Project Highway as set forth in Schedule-I, the following shall apply:

(a) The Contractor shall prepare and submit, with reasonable promptness and in
such sequence as is consistent with the Project Completion Schedule, three

Contractor Managing Director,

MSIDC, Mumbai.
61
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

(3) copies each of the design and Drawings, duly certified by the Proof
Consultant, to the Authority’s Engineer for its approval. Provided, however,
that in respect of Major Bridges and Structures, the Authority’s Engineer may
require additional drawings for approval in accordance with Good Industry
Practice.
(b) by submitting the Drawings for review and approval to the Authority’s
Engineer, the Contractor shall be deemed to have represented that it has
determined and verified that the design and engineering, including field
construction criteria related thereto, are in conformity with the Scope of the
Project, the Specifications and Standards and the Applicable Laws;
(c) within 15 (fifteen) days of the receipt of the Drawings, the Authority’s
Engineer shall review the same and convey its approval/observations to the
Contractor with particular reference to their conformity or otherwise with the
Scope of the Project and the Specifications and Standards. Provided, however
that in case of a major bridge or structure, the aforesaid period of 15 (fifteen)
days may be extended up to 30 (thirty) days;
(d) if the aforesaid observations of the Authority’s Engineer indicate that the
Drawings are not in conformity with the Scope of the Project or the
Specifications and Standards, such Drawings shall be revised by the
Contractor in conformity with the provisions of this Agreement and
resubmitted to the Authority’s Engineer for review and approval. The
Authority’s Engineer shall give its observations, if any, within 10 (ten) days
of receipt of the revised Drawings. In the event the Contractor fails to revise
and resubmit such Drawings to the Authority’s Engineer for review/approval
as aforesaid, the Authority’s Engineer may withhold the payment for the
affected works in accordance with the provisions of Clause 19.5 (iv). If the
Contractor disputes any decision, direction or determination of the
Authority’s Engineer hereunder, the Dispute shall be resolved in accordance
with the Dispute Resolution Procedure;
(e) no review/approval and/or observation of the Authority’s Engineer and/or its
failure to review/approval and/or convey its observations on any Drawings
shall relieve the Contractor of its obligations and liabilities under this
Agreement in any manner nor shall the Authority’s Engineer or the Authority
be liable for the same in any manner; and if errors, omissions, ambiguities,
inconsistencies, inadequacies or other Defects are found in the Drawings,
they and the construction works shall be corrected at the Contractor's cost,
notwithstanding any approval under this Article 10;
(f) the Contractor shall be responsible for delays in submitting the Drawing as
set forth in Schedule-I caused by reason of delays in surveys and field
investigations, and shall not be entitled to seek any relief in that regard from
the Authority; and

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

(g) the Contractor warrants that its designers, including any third parties engaged
by it, shall have the required experience and capability in accordance with
Good Industry Practice and it shall indemnify the Authority against any
damage, expense, liability, loss or claim, which the Authority might incur,
sustain or be subject to arising from any breach of the Contractor’s design
responsibility and/or warranty set out in this Clause.
(h) the Contractor shall ensure that all the designs and drawings shall be
approved from the Authority’s Engineer within 90 days (ninety) from the
Appointed Date.

(v) Any cost or delay in construction arising from review/approval by the Authority’s
Engineer shall be borne by the Contractor. But the Authority shall be responsible for
any undue delay in review/approval caused by the Authority’s Engineer.

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

(vii) Within 90 (ninety) days of the Project Completion Date, the Contractor shall furnish
to the Authority and the Authority’s Engineer a complete set of as- built Drawings,
in 2 (two) hard copies and in micro film form or in such other medium as may be
acceptable to the Authority, reflecting the Project Highway as actually designed,
engineered and constructed, including an as-built survey illustrating the layout of the
Project Highway and setback lines, if any, of the buildings and structures forming
part of Project Facilities.

10.3 Construction of the Project Highway

(i) The Contractor shall construct the Project Highway as specified in Schedule- B and
Schedule-C, and in conformity with the Specifications and Standards set forth in
Schedule-D. The Contractor shall be responsible for the correct positioning of all
parts of the Works, and shall rectify any error in the positions, levels, dimensions or
alignment of the Works. The 912th (nine hundred and twelfth) day from the
Appointed Date shall be the scheduled completion date (the “Scheduled
Completion Date”) and the Contractor agrees and undertakes that the construction
shall be completed on or before the Scheduled Completion Date, including any
extension thereof.

(ii) The Contractor shall construct the Project Highway in accordance with the Project
Completion Schedule set forth in Schedule-J. In the event that the Contractor fails to
Contractor Managing Director,
MSIDC, Mumbai.
63
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

achieve any Project Milestone or the Scheduled Completion Date within a period of
30 (thirty) days from the date set forth in Schedule-J, unless such failure has occurred
due to Force Majeure or for reasons solely attributable to the Authority, it shall pay
Damages to the Authority of a sum calculated at the rate of 0.05% (zero point zero
five percent) of the Contract Price for delay of each day reckoned from the date
specified in Schedule –J and until such Project Milestone is achieved or the Project
Highway is completed; provided that if the period for any or all Project Milestones
or the Scheduled Completion Date is extended in accordance with the provisions of
this Agreement, the dates set forth in Schedule-J shall be deemed to be modified
accordingly and the provisions of this Agreement shall apply as if Schedule-J has
been amended as above; provided further that in the event the Project Highway is
completed within or before the Scheduled Completion Date including any Time
Extension, applicable for that work or section, the Damages paid under this Clause
10.3 (ii) shall be refunded by the Authority to the Contractor, but without any interest
thereon.

The Parties agree that for determining achievement or delays in completion of the
Project Milestones or the Project on the due date, the works affected due to delay in
providing the site for which time extension has been granted beyond the Scheduled
Completion Date will be excluded. For example on the due date to achieve the Project
Milestone-I (i.e., Stage Payments of 10% (ten percent) of Contract Price on 180 th
(one hundred and eighty) day from the Appointed Date), if 5% (five percent) of the
project length corresponding to the Project Milestone-I is not handed over or lately
handed over resulting in the extension of completion of this 5% (five percent) length
beyond Scheduled Completion Date, Stage Payment of 10% X 0.95 = 9.5% only is to
be achieved by 180th (one hundred and eighty) day.

For the avoidance of doubt, it is agreed that recovery of Damages under this Clause
10.3 (ii) shall be without prejudice to the rights of the Authority under this Agreement
including the right of Termination thereof. The Parties further agree that Time
Extension hereunder shall only be reckoned for and in respect of the affected Works
as specified in Clause 10.5 (ii).

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

Contractor Managing Director,

MSIDC, Mumbai.
64
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Agreement by issuing a Termination Notice in accordance with the provisions of

Clause 23.1 (ii).

(iv) In the event that the Contractor fails to achieve the Project Completion within a
period of 90 (ninety) days from the Schedule Completion Date set forth in Schedule-
J, unless such failure has occurred due to Force Majeure or for reasons solely
attributable to the Authority, the contractor shall be deemed to be ineligible for
bidding any future projects of the Authority, both as the sole party or as one of the
parties of Joint Venture/ Consortium during the period from Scheduled Completion
Date to issuance of Completion Certificate. This restriction is applicable if the
contract value of the delayed project is not less than Rs. 300 Crore.

(v) Maintenance of existing roads used by the contractor for approaching the site, ROW
and any diversion road used by Contractor for carrying quarry material through
heavy vehicle shall be maintained in good motorable condition by the contractor till
completion of work.

10.4 Maintenance during Construction Period

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

(ii) Notwithstanding anything to the contrary contained in this Agreement, in the event
of default by the Contractor in discharging the obligations specified in Clause 10.4
(i) above, the Authority shall get these maintenance works completed in the manner
recommended by the Authority’s Engineer to avoid public inconvenience at the risk
and cost of the Contractor in order to keep the road in traffic worthy condition.

10.5 Extension of time for completion

(i) Without prejudice to any other provision of this Agreement for and in respect of
extension of time, the Contractor shall be entitled to extension of time in the Project

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Completion Schedule (the “Time Extension”) to the extent that completion of any
Project Milestone is or will be delayed by any of the following, namely:

(a) delay in providing the Right of Way of Construction Zone, environmental

clearances or approval of railway authorities, specified in Clause 3.1 (iv);
(b) Change of Scope (unless an adjustment to the Scheduled Completion Date
has been agreed under Article 13);
(c) occurrence of a Force Majeure Event;
(d) any delay, impediment or prevention caused by or attributable to the
Authority, the Authority's personnel or the Authority's other contractors on
the Site; and
(e) any other cause or delay which entitles the Contractor to Time Extension in
accordance with the provisions of this Agreement.

(ii) The Contractor shall, no later than 15 (fifteen) business days from the occurrence of
an event or circumstance specified in Clause 10.5 (i), inform the Authority’s
Engineer by notice in writing, with a copy to the Authority, stating in reasonable
detail with supporting particulars, the event or circumstances giving rise to the claim
for Time Extension in accordance with the provisions of this Agreement. Provided
that the period of 15 (fifteen) business days shall be calculated from the date on which
the Contractor became aware, or should have become aware, of the occurrence of
such an event or circumstance.

Provided further that notwithstanding anything to the contrary contained in this

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

(iii) On the failure of the Contractor to issue to the Authority’s Engineer a notice in
accordance with the provisions of Clause 10.5 (ii) within the time specified therein,
the Contractor shall not be entitled to any Time Extension and shall forfeit its right
for any such claims in future. For the avoidance of doubt, in the event of failure of
the Contractor to issue notice as specified in this clause 10.5 (iii), the Authority shall
be discharged from all liability in connection with the claim.

(iv) The Authority’s Engineer shall, on receipt of the claim in accordance with the
provisions of Clause 10.5 (ii), examine the claim expeditiously within the time frame
specified herein. In the event the Authority’s Engineer requires any clarifications to
examine the claim, the Authority’s Engineer shall seek the same within 15 (fifteen)
days from the date of receiving the claim. The Contractor shall, on receipt of the
communication of the Authority’s Engineer requesting for clarification, furnish the

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

same to the Authority’s Engineer within 10 (ten) days thereof. The Authority’s
Engineer shall, within a period of 30 (thirty) days from the date of receipt of such
clarifications, forward in writing to the Contractor its determination of Time
Extension.

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

(v) If the event or circumstance giving rise to the notice has a continuing effect:

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

(b) the Contractor shall, no later than 10 (ten) days after the close of each month,
send further interim claims specifying the accumulated delay, the extension
of time claimed, and such further particulars as the Authority’s Engineer may
reasonably require; and
(c) the Contractor shall send a final claim within 30 (thirty) days after the effect
of the event or the circumstance ceases.

Upon receipt of the claim hereunder, the Authority’s Engineer shall examine the
same in accordance with the provisions of Clause 10.5 (iv) within a period of 30
(thirty) days of the receipt thereof

10.6 Incomplete Works

In the event the Contractor fails to complete the Works in accordance with the Project
Completion Schedule, including any Time Extension granted under this Agreement,
the Contractor shall endeavour to complete the balance work expeditiously and shall
pay Damages to the Authority in accordance with the provisions of Clause 10.3 (ii)
for delay of each day until the Works are completed in accordance with the provisions
of this Agreement. Recovery of Damages under this Clause shall be without
prejudice to the rights of the Authority under this Agreement including the right to
termination under Clause 23.1.

10.7 Maintenance Manual

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

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

10.8 As-Built Records

The Contractor shall prepare, and keep up-to-date, a complete set of as built records
of the execution of the Works, showing the exact as built locations, sizes and details
on the Works as executed with cross references to all relevant specifications and data
sheets. These records shall be kept on the Site and shall be used exclusively for the
purpose of this Sub-Clause 10.8. The Contractor shall provide 2 (two) copies of as
built records to the Authority prior to the commencement of the Tests on Completion.

10.9 Contractor's Use of Authority’s Documents

Intellectual property in the Authority’s requirements and Specifications and

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

Contractor Managing Director,

MSIDC, Mumbai.
68
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 11

11 Quality Assurance, Monitoring and Supervision

11.1 Quality of Materials and workmanship

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

11.2 Quality control system

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

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

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

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

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

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

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

11.3 Methodology

The Contractor shall, at least 15 (fifteen) days prior to the commencement of the
construction, submit to the Authority’s Engineer for review and consent the

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

methodology proposed to be adopted for executing the Works, giving details of

equipment to be deployed, traffic management and measures for ensuring safety. The
Authority’s Engineer shall complete the review and convey its consent to the
Contractor within a period of 10 (ten) days from the date of receipt of the proposed
methodology from the Contractor.

11.4 Inspection and technical audit by the Authority

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

11.5 External technical audit

(i) At any time during construction, the Authority may appoint an external technical
auditor to conduct an audit of the quality of the Works. The Auditor in the presence
of the representatives of the Contractor and the Authority’s Engineer shall carry out
the tests and/ or collect samples for testing in the laboratory. The timing, the testing
equipment and the sample size of this audit shall be as decided by the Authority. The
findings of the audit, to the extent accepted by the Authority, shall be notified to the
Contractor and the Authority’s Engineer for taking remedial action in accordance
with this Agreement.

(ii) After completion of the remedial measures by the Contractor, the Auditor shall
undertake a closure audit and this process will continue till the remedial measures
have brought the works into compliance with the Specifications and Standards. The
Contractor shall provide all assistance as may be required by the auditor in the
conduct of its audit hereunder. Notwithstanding anything contained in this Clause
11.5, the external technical audit shall not affect any obligations of the Contractor or
the Authority’s Engineer under this Agreement.

11.6 Inspection of construction records

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

11.7 Monthly & Quarterly 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.

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

The Contractor agrees that reporting under this Clause 11.7 shall continue until the
date of the completion of the Works. Each report shall include:

(a) an executive summary;

(b) charts showing the status of Contractor's documents, construction and
manufacturing and environmental works;
(c) details of work subcontracted and the performance of Sub-contractors;
(d) for the construction of each main part of the Works, the extent of progress
(both quantity and percentage of the whole), the actual or expected dates of
commencement, anticipated completion date of the activity, Contractor's
inspections and tests;
(e) records of manpower and Contractor's equipment on the Site;
(f) copies for that month of quality assurance documents, test results and
certificates;
(g) safety statistics, accident data collection including details of any hazardous
incidents and activities relating to environmental aspects and public relations;
(h) comparisons of actual and planned progress, with details of any aspects which
may jeopardise the completion in accordance with the Agreement, and the
measures being (or to be) adopted to overcome such aspects;
(i) details of any unresolved disputes or claims, in relation to the Project;
(j) details of any revision to the cash flow estimate, together with a copy of the
revised cash flow estimate;
(k) status of various Applicable Permits and compliance of conditions therein;
(l) details of various royalty payment and insurances required to be taken by the
Contractor; and
(m) such other reports as may be required by the Authority for enabling the
Authority to comply with its obligations under the other Project contracts.
(n) details of defects by the Authority;
(o) change in emission of any sewage or effluent of any nature whatsoever,
whether qualitatively or quantitatively;
(p) any Material Adverse Effect;
(q) declaration towards compliance with Applicable Laws including but not
limited to environmental and labour legislations;
(r) declaration specifying compliance with all Manuals provided to the
Contractor; and
(s) any change in the flow of traffic in the existing Project Highway.

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

(t) The Contractor shall provide the Employer with quarterly reports of its
activities, including each of its obligations specified under Clauses 4.15, 4.16,
4.17, 4.18, 11.18.i (f) and [Link].”

11.8 Inspection

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

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

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

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

11.9 Samples

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

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

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

11.10 Tests

(i) For determining that the Works conform to the Specifications and Standards, the
Authority’s Engineer shall require the Contractor to carry out or cause to be carried
out tests, at such time and frequency and in such manner as specified in this
Agreement, and in accordance with Good Industry Practice for quality assurance.
The test checks by the Authority’s Engineer shall comprise at least 50% (fifty
percent) of the quantity or number of tests prescribed for each category or type of
test for quality control by the Contractor.

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

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

11.11 Examination of work before covering up

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

11.12 Rejection

If, as a result of an examination, inspection, measurement or testing, any Plant,

Materials, design or workmanship is found to be defective or otherwise not in
accordance with the provisions of this Agreement, the Authority’s Engineer shall
reject the Plant, Materials, design or workmanship by giving notice to the 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.

Contractor Managing Director,

MSIDC, Mumbai.
73
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

11.13 Remedial work

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

(a) remove from the Site and replace any Plant or Materials which are not in
accordance with the provisions of this Agreement;
(b) remove and re-execute any work which is not in accordance with the
provisions of this Agreement and the Specification and Standards; and
(c) execute any work which is urgently required for the safety of the Project
Highway, whether because of an accident, unforeseeable event or otherwise;
provided that in case of any work required on account of a Force Majeure
Event, the provisions of Clause 21.6 shall apply.

(ii) If the Contractor fails to comply with the instructions issued by the Authority’s
Engineer under Clause 11.13 (i), within the time specified in the Authority’s
Engineer’s notice or as mutually agreed, the Authority’s Engineer may advise the
Authority to have the work executed by another agency. The cost so incurred by the
Authority for undertaking such work shall, without prejudice to the rights of the
Authority to recover Damages in accordance with the provisions of this Agreement,
be recoverable from the Contractor and may be deducted by the Authority from any
monies due to be paid to the Contractor.

11.14 Delays during construction

Without prejudice to the provisions of Clause 10.3 (ii), in the event the Contractor
does not achieve any of the Project Milestones or the Authority’s Engineer shall have
reasonably determined that the rate of progress of Works is such that Completion of
the Project Highway is not likely to be achieved by the end of the Scheduled
Completion Date, it shall notify the same to the Contractor, and the Contractor shall,
within 15 (fifteen) days of such notice, by a communication inform the Authority’s
Engineer in reasonable detail about the steps it proposes to take to expedite progress
and the period within which it shall achieve the Project Completion Date.

11.15 Quality control records and Documents

The Contractor shall hand over a copy of all its quality control records and documents
to the Authority’s Engineer before the Completion Certificate is issued pursuant to
Clause 12.2. The Contractor shall submit Road Signage Plans to the Authority
Engineer for approval at least 6 (six) months prior to expected completion of Project
Highway.

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

11.16 Video recording

During the Construction Period, the Contractor shall provide to the Authority for
every calendar quarter, a video recording and drone 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 and
drone recording shall be provided to the Authority no later than 15 (fifteen) days after
the close of each quarter after the Appointed Date.

The contractor must engage a competent agency for conducting Aerial survey,
monitoring of all allotted packages for entire construction period which aims to have
digital construction monitoring to track the progress of highway construction site.
This agency should have a total experience of minimum 200 kms of highways or
expressways in past 10 years for similar works. This monitoring will utilize
combination of GIS and Aerial technology for reporting. Final useful digital data
should be used to visualize on a compatible dashboard which should be accessible to
the Authority. The digital progress recording shall be done at every end of every
calendar month, of critical and/ or major milestones of the project corridor and as
directed by the Authority.

The scope is mentioned below:

1. Conduct an Aerial Topography survey of all packages for creation of Base Map
before construction to make a reference layer.

2. Conduct an Aerial survey (with ground control points for accuracy) of all
packages on monthly basis during construction to track the progress of the
work.

3. Monthly Drone based Geo-referenced Orthophoto, Point cloud in .LAS format.

4. Monthly Drone Video at lower height, forward angle so as to cover entire ROW
showing progress clearly, archival Google earth video with CAD plan overlay,
to be edited & synchronised frame-by-frame showing past present & future.

5. Dashboard features - GIS Tools showing periodical progress monitoring, drone

videos timeline, planned vs actual progress comparison tool.

6. Process the captured raw data into multi-format output as per the Authority
Guidelines.

7. Cloud-based application dashboard with various analytics features like change

detection of progress, layer classification etc as per MSRDC guidelines to
visualize output data.

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

8. Customizable Dashboard for addition/removal of features as per requirement

of the Authority.

11.17 Suspension of unsafe Construction Works

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

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

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

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

11.18 Staff and Labour

(i) Engagement of Staff and Labour

(a) The Contractor shall make its own arrangements for the engagement of all
personnel and labour, local or otherwise, and for their payment, housing,
feeding and transport.
(b) The Contractor has verified/ shall verify the identity and address of all its
employees and officials related to the Works by collecting necessary
documentary proof.
(c) The Contractor shall seek a self-declaration from its employees that they have
not been convicted of any criminal offence by any court and if any criminal

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

proceedings/charge-sheets have been pending/filed against them. The

Contractor shall not employ persons with criminal track record on the project.
In cases where it comes to notice later that the employee concerned has
concealed any such fact in his self-declaration or commits a criminal offence
during the course of his employment, the Contractor shall remove such
person from the project
(d) Deleted.
(e) The employees and personnel of the Contractor shall work under the
supervision, control and direction of the Contractor and the Contractor shall
be solely responsible for all negotiations with its employees and personnel
relating to their salaries and benefits, and shall be responsible for assessments
and monitoring of performance and for all disciplinary matters. All
employees / personnel, executives engaged by the Contractor shall be in sole
employment of the Contractor and the Contractor shall be solely responsible
for their salaries, wages, statutory payments, etc and under no circumstances
the personnel shall be deemed to be the employees of the Authority. Under no
circumstances the Authority shall be liable for any payment or claim or
compensation of any nature to the employees and personnel of the Contractor.
(f) The Contractor shall not make employment decisions based upon personal
characteristics unrelated to job requirements. The Contractor shall base the
employment relationship upon equal opportunity and fair treatment and shall
not discriminate with respect to aspects of the employment relationship,
including recruitment and hiring, compensation (including wages and
benefits), working conditions and terms of employment or retirement and
discipline. The contractor shall provide equal wages and benefits to men and
women for equal value for equal value or type.

(ii) Returns of Labour

(a) The Contractor shall deliver to the Authority a detailed return in such form
and at such intervals as the Authority may prescribe, showing the details
including names, payment details and terms of appointment of the several
classes of labour employed by the Contractor from time to time for the
Works. The Contractor shall, in its returns certify that all dues of the workers
or labour have been fully paid.
(b) The Authority is entitled to witness labour payments made or to be made by
the Contractor. If the Contractor defaults in its obligations for making any
payments under the labour laws, the Employer may make the relevant
payments. Any sum equal to any amount paid by the Employer under this
Sub-Sub-Clause shall be immediately due as a debt from the Contractor to
the Employer and until payment/ set off shall carry interest at 18% per annum.
For this purpose it is agreed between the parties that debt due aforesaid shall
Contractor Managing Director,
MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

be set off immediately out the running account bills of the Contractor under
this Agreement.

(iii) Persons in the Service of Others

The Contractor shall not recruit, or attempt to recruit from amongst persons in the
service of the Authority.

(iv) Labour Laws

(a) The Contractor shall obtain all relevant labour registrations and comply with
all relevant labour laws applying to its employees, and shall duly pay them
and afford to them all their legal rights.
(b) The Contractor shall make all deductions of tax at source and all contributions
to the Payment of Gratuity, Provident Fund (including Employees’
contribution) and Employees’ State Insurance Scheme as may be required by
Applicable Laws and deposit the aforesaid contributed amount with the
appropriate authority/(s).
(c) The Contractor shall require all personnel engaged in the Works to obey all
Applicable Laws and regulations. The Contractor shall permit Authority to
witness labour payments for the Contractors direct labour, or the
Subcontractors labour. The Contractor shall ensure that all its Subcontractors
strictly comply with all labour laws.
(d) Documentary evidence confirming compliance with this Sub-Clause, as may
be required from time to time, shall be provided to the Employer’s
Representative.
(e) The Employer shall not be liable for any delay/default of the Contractor in
compliance of the labour laws.

(v) Facilities for Staff and Labour

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

(vi) Health And Safety

All necessary precautions shall be taken by the Contractor to ensure the health and
safety of staff and labour engaged for the Works. The Contractor shall, in
collaboration with and to the requirements of the local health authorities, ensure that
para-medical staff, first aid facilities, ambulance service are available on the Site at
all times, and that suitable arrangements are made for all necessary welfare and

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
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hygiene requirements and for the prevention of epidemics. The Contractor shall
appoint a safety officer to be responsible for the safety of personnel on the Site. This
safety officer shall be qualified for his work and shall have the authority to issue
instructions concerning safety and take protective measures to prevent accidents. The
Contractor shall maintain records and make reports concerning health, safety and
welfare of personnel, and damage to property, in such manner as the Authority may
reasonably require.

(vii) Contractor's Personnel

The Contractor shall employ only personnel who are appropriately qualified, skilled
and experienced in their respective trades or occupations. The Authority may require
the Contractor to remove any personnel engaged for the Works, who in the opinion
of the Authority:

(a) has engaged in any misconduct;

(b) is incompetent or negligent in the performance of his duties;
(c) fails to conform with any provisions of the Contract;
(d) engages in any conduct which is prejudicial to safety, health, or the protection
of the environment; or
(e) makes errors in the discharge of his functions.

If appropriate and required by the Employer, the Contractor shall then appoint (or
cause to be appointed) a suitable replacement person.

(viii) Disorderly Conduct

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

(ix) The Contractor shall not employ any child to perform any work, including work that
is economically exploitative, or is likely to be hazardous to, or interfere with, the
child’s education, or to be harmful to the child’s health or physical, mental, spiritual,
moral or social development. “Child” means a child below the statutory minimum
age specified under applicable national law.

11.19 Decision

i. In case of difference of opinion in the Authority Engineer and the Chief

Engineer, Maharashtra State Infrastructure Development Corporation or
any officer appointed by the Authority about any quality aspect of the

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

work, the decision of the Managing Director will be final and binding on
all parties.

ii. In all technical matters relating to the work, the decision of Managing
Director will be binding on all the parties.

Contractor Managing Director,

MSIDC, Mumbai.
80
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 12

12 Completion Certificate

12.1 Tests on Completion

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

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

12.2 Completion Certificate

(i) Upon completion of all Works forming part of the Project Highway, and the
Authority’s Engineer determining the Tests to be successful and after the receipt of
notarized true copies of the certificate(s) of insurance, copies of insurance policies
and premium payment receipts in respect of the insurance defined in Article 20 and
Schedule P of this Agreement, it shall, at the request of the Contractor forthwith issue
to the Contractor and the Authority a certificate substantially in the form set forth in
Schedule-L (the “Completion Certificate”).

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

(ii) Upon receiving the Completion Certificate, the Contractor shall remove its
equipment, materials, debris and temporary works from the Site within a period of
30 (thirty) days thereof, failing which the Authority may remove or cause to be
removed, such equipment, materials, debris and temporary works and recover from
the Contractor an amount equal to 120% (one hundred and twenty per cent) of the
actual cost of removal incurred by the Authority. Upon completion of construction,
the Contractor shall fully reinstate pathways, other local infrastructure and
agricultural land to at least their pre-project conditions as recorded by the Contractor
in consonance with its obligation in Clause 3.13

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

12.3 Rescheduling of Tests

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

12.4 Decision

In case of difference of opinion in the Authority Engineer and the Chief Engineer,
Maharashtra State Infrastructure Development Corporation or any officer appointed
by the Authority about the completion of any of the work, the decision of the
Managing Director will be final and binding on all parties.

In all technical matters relating to the work, the decision of Managing Director will
be binding on all the parties.

Contractor Managing Director,

MSIDC, Mumbai.
82
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 13

13 Change of Scope

13.1 Change of Scope

(i) The Authority may, notwithstanding anything to the contrary contained in this
Agreement, require the Contractor to make modifications/ alterations to the Works
(“Change of Scope”) within a period of six months counted from the Appointed
Date. Upon the Authority making its intention known to the Contractor for the
specific Change of Scope, be it positive or negative, the Contractor shall submit his
proposal for the said Change of Scope involving additional cost or reduction in cost.
Any such Change of Scope shall be made and valued in accordance with the
provisions of this Article 13.

(ii) Provided that any such Change of Scope, excluding major structures (e.g. Major
Bridge/ ROB/ RUB/ Flyover/ elevated road of more than 50 m length) may be
required and agreed to be executed between the parties beyond the period of six
months of the Appointed Date but before expiry of 50% of the original Scheduled
Construction Period of the Project Highway, subject to the condition that it shall not
entail any claims (e.g. Extension of Time/ Prolongation related claims), against the
Authority.

(iii) The Change of Scope shall mean the following:

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

(b) omission of any work from the Scope of the Project except under Clause 8.3
(iii); provided that, subject to Clause 13.5, the Authority shall not omit any
Work under this Clause in order to get it executed by any other authority; and
/ or
(c) any additional Work, Plant, Materials or services which are not included in
the Scope of the Project, including any associated Tests on completion of
construction.

13.2 Procedure for Change of Scope

(i) In the event of the Authority determining that a Change of Scope is necessary, it may
direct the Authority’s Engineer to issue to the Contractor a notice specifying in
reasonable detail the Works and services contemplated thereunder (the “Change of
Scope Notice”). The Contractor shall submit a detailed proposal as per Clause 13.2
(iii) within 15 days from the receipt of Change of Scope Notice.

(ii) If the Contractor determines, not later than 90 days from the Appointed Date, that a
Change of Scope to the Works is required, it shall prepare a proposal with relevant

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
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details as per Clause 13.2 (iii) at its own cost and shall submit to the Authority to
consider such Change of Scope (the “Change of Scope Request”).

(iii) Upon receipt of a Change of Scope Notice, the Contractor shall, with due diligence,
provide to the Authority and the Authority’s Engineer such information as is
necessary, together with detailed proposal in support of:

(a) the impact, if any, which the Change of Scope is likely to have on the Project
Completion Schedule if the works or services are required to be carried out
during the Construction Period; and
(b) the options for implementing the proposed Change of Scope and the effect, if
any, each such option would have on the costs and time thereof, including the
following details:
i. break-up of the quantities, unit rates and cost for different items of work;
and
ii. proposed design for the Change of Scope;
iii. proposed modifications, if any, to the Project Completion Schedule of the
Project Highway.
For the avoidance of doubt, the Parties expressly agree that, subject to the
provisions of Clause 13.4 (ii), the Contract Price shall be increased or
decreased, as the case may be, on account of any such Change of Scope.

(iv) The parties agree that costs and time for implementation of the proposed Change of
Scope shall be determined as per the following:

(a) For works where Schedule of Rates (SOR) of concerned circle of State’s
Maharashtra State Infrastructure Development Corporation are applicable at
the Base Date are available, the same shall be applicable for determination of
costs. In case of non-availability of Schedule of Rates at the Base Date, the
available Schedule of Rates shall be applied by updating the same based on
WPI. In case the Contract Price is lower/ higher than the Estimated Project
Cost as per RFP, then the SOR rates shall be reduced/ increased in the same
proportion accordingly.
(b) For item of Works not included in Schedule of Rates as mentioned in sub-
para (a) of Clause 13.2 (iv) above, the cost of same shall be derived on the
basis of MORTH Standard Data Book and the Authority’s Engineer shall
determine the prevailing market rates and discount the same considering WPI
to achieve the prevailing rate at the Base Date, and for any item in respect of
which MORTH Standard Data Book does not provide the requisite details,
the Authority’s Engineer shall determine the rate in accordance with Good
Industry Practice.

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

For the avoidance of doubt, in case the cost as determined by the Contractor
and the Authority reveals a difference of more than 10% (ten per cent), the
cost as determined by the Authority shall be considered as final and binding
on the Contractor.
(c) The design charges shall be considered only for new works or items (i.e. the
Works or items not similar to the works or items in the original scope) @ 1%
(one per cent) of cost of such new works or items.
(d) The costs of existing works or items, which are being changed/ omitted shall
also be valued as per above procedure and only net cost shall be considered.
(e) The reasonable time for completion of works to be taken under Change of
Scope shall be determined by the Authority’s Engineer on the basis of Good
Industry Practice and if such time exceeds the Scheduled Completion Date,
the issue of Completion Certificate shall not be affected or delayed on
account of construction of Change of Scope items/ works remaining
incomplete on the date of Tests.

(v) Upon consideration of the detailed proposal submitted by the Contractor under the
Clause 13.2 (iii), the Authority, within 15 (fifteen) days of receipt of such proposal,
may in its sole discretion either accept such Change of Scope with modifications, if
any, and initiate proceedings thereof in accordance with this Article 13 or reject the
proposal and inform the Contractor of its decision and shall issue an order (the
“Change of Scope Order”) requiring the Contractor to proceed with the
performance thereof.

For the avoidance of doubt, the Parties agree that the Contractor shall not undertake
any Change of Scope without the express consent of the Authority, save and except
any works necessary for meeting any Emergency, that too with verbal approval of
Authority which shall be confirmed in writing in next 3 (three) days. In the event that
the Parties are unable to agree, the Authority may:

(a) issue a Change of Scope Order requiring the Contractor to proceed with the
performance thereof at the rates and conditions approved by the Authority till
the matter is resolved in accordance with Article 26;
or
(b) proceed in accordance with Clause 13.5.

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

Contractor Managing Director,

MSIDC, Mumbai.
85
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

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. In case of bridges / slab drain / C D
works which are to be reconstructed as per schedule (B) and if the contractor comes
with the proposal to retain the bridge / slab drain / CD Works with proper repairs
which enhance the life of the bridge / slab drain / CD Works by at least 15 years and
the Authority Engineer approves the repair scheme of the bridge / slab drain / CD
Works, in such case the negative change of scope will be considered as per the cost
of the bridge/slab drain/CD Works as estimated in the Technically sanctioned
estimate by applying the effect of lower / upper side of offer of the contractor put to
the tender. The payment of the repairs as approved by the Authority Engineer shall
be made as per the provisions of the Article 13 of the Contract Documents.

13.4 Restrictions on Change of Scope

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

(ii) The total value of all Change of Scope Orders shall not exceed 25% (Twenty Five
per cent) of the Contract Price.

(iii) Notwithstanding anything to the contrary in this Article 13, if any change is
necessitated because of any default of the Contractor in the performance of its
obligations under this Agreement, the same shall not be deemed to be Change of
Scope, and shall not result in any adjustment of the Contract Price or the Project
Completion Schedule.

13.5 Power of the Authority to undertake Works

(i) In the event the Parties are unable to agree to the proposed Change of Scope Orders
in accordance with Clause 13.2, the Authority may, after giving notice to the
Contractor and considering its reply thereto, award such Works or services to any
person or agency on the basis of open competitive bidding. It is also agreed that the
Contractor shall provide assistance and cooperation to the person or agency who
undertakes the works or services hereunder. The Contractor shall not be responsible
for rectification of any Defects, but the Contractor shall carry out maintenance of
such works after completion of Defect Liability Period of work by other person or
agency during the remaining period of this agreement without any extra payment.

(ii) The Works undertaken in accordance with this Clause 13.5 shall conform to the
Specifications and Standards and shall be carried out in a manner that minimises the
disruption in operation of the Project Highway. The provisions of this Agreement,

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

insofar as they relate to Works and Tests, shall apply mutatis mutandis to the Works
carried out under this Clause 13.5.

Contractor Managing Director,

MSIDC, Mumbai.
87
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 14

14 Maintenance

14.1 Maintenance obligations of the Contractor

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

(a) For flexible/ rigid pavement with 5 years Maintenance Period including
structures: no maintenance charges shall be paid for the first year , 0.25% of
the Contract Price will be paid each for the second, third, fourth and fifth
year.
(b) For rigid pavement with 5 years Maintenance Period including structures: no
maintenance charges shall be paid for the first year; 0.50%of the Contract
Price each for the second, third and fourth year; and 1% of the Contract Price
for the fifth year.
(c) For flexible perpetual pavement with 10 years maintenance period including
structures: no maintenance charges shall be paid for the first year; 0.5% of
the Contract Price each for the second, third and fourth year; 0.75% of the
Contract Price each for the subsequent years till laying of the renewal layer
or end of maintenance period, whichever is earlier.
(d) For stand-alone Bridge/ Tunnel works: the contractor shall be paid @ 0.25%
of the Contract Price each for the first five years and @ 0.50% of the Contract
Price each for the remaining period of five years.

Above amount for the performance of Contractors’ Maintenance obligations shall be,
inclusive of all taxes (Excluding GST). The amount payable for maintenance shall
be adjusted to reflect any increase or decrease arising out of variation in WPI to be
determined in accordance with the provisions of Clause 19.12. It is further agreed
that the Contract Price hereunder shall be reckoned with reference to the amount
specified in Clause 19.1 (i), which shall be adjusted to the extent of Change of Scope
and the works withdrawn under the provisions of Clause 8.3 (iii), but shall not include
any price adjustments in pursuance of Clause 19.10. Also, the contract price for
flexible pavement and contract price for rigid pavement shall be as bifurcated in
Schedule H.

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

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
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(a) permitting safe, smooth and uninterrupted flow of traffic on the Project
Highway;
(b) undertaking routine maintenance including prompt repairs of potholes, cracks,
joints, drains, embankments, structures, pavement markings, lighting, road
signs and other traffic control devices. For the avoidance of doubt, the
electricity charges for operation of electrical infrastructure installed along the
project length, except the infrastructure being used by the Contractor for its
own use, shall be borne by the Authority;
(c) undertaking repairs to structures;
(d) informing the Authority of any unauthorised use of the Project Highway;
(e) informing the Authority of any encroachments on the Project Highway; and
(f) operation and maintenance of all communication, patrolling, and
administrative systems necessary for the efficient maintenance of the Project
Highway in accordance with the provisions of this Agreement.

(iii) In respect of any Defect or deficiency not specified in Schedule-E, the Contractor
shall, at its own cost, undertake repair or rectification in accordance with Good
Industry Practice, save and except to the extent that such Defect or deficiency shall
have arisen on account of any wilful default or neglect of the Authority or a Force
Majeure Event.

(iv) The Contractor shall remove promptly from the Project Highway any waste materials
(including hazardous materials and waste water), rubbish and other debris (including,
without limitation, accident debris) and keep the Project Highway in a clean, tidy and
orderly condition, and in conformity with the Applicable Laws, Applicable Permits
and Good Industry Practice.

14.2 Maintenance Requirements

The Contractor shall ensure and procure that at all times during the Maintenance
Period, the Project Highway conforms to the maintenance requirements set forth in
Schedule-E (the “Maintenance Requirements”).

14.3 Maintenance Programme

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

Contractor Managing Director,

MSIDC, Mumbai.
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(a) The condition of the road in the format prescribed by the Authority’s
Engineer;
(b) the proposed maintenance Works; and
(c) deployment of resources for maintenance Works.

14.4 Safety, vehicle breakdowns and accidents

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

(ii) The Contractor shall maintain and operate a round-the-clock vehicle rescue post with
1 (one) mobile crane having the capacity to lift a truck with a Gross Vehicle Weight
of 30,000 (thirty thousand) kilograms; and such post shall be located at km. 127+000
(Near Rashin Village). The Contractor shall promptly remove any damaged vehicles
and debris from the Project Highway to enable safe movement of traffic and shall
report all accidents to the police forthwith.

14.5 Lane closure

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

(ii) Upon receiving the permission pursuant to Clause 14.5 (i), the Contractor shall be
entitled to close the designated lane for the period specified therein, and for all lane
closures extending a continuous period of 48 (forty-eight) hours, the Contractor shall,
in the event of any delay in re-opening such lane, for every stretch of 250 (two
hundred and fifty) metres, or part thereof, pay Damages to the Authority calculated
at the rate of 0.1% (zero point one per cent) of the monthly maintenance payment for
each day of delay until the lane has been re-opened for traffic. In the event of any
delay in re-opening such lanes or in the event of emergency decommissioning and
closure to traffic of the whole or any part of the Project Highway due to failure of
the Contractor, the Contractor shall pay damages to the Authority at double the above
rate, without prejudice the rights of the Authority under this Agreement including
Termination thereof.

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

14.6 Reduction of payment for non-performance of Maintenance obligations

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

(ii) If the nature and extent of any Defect justifies more time for its repair or rectification
than the time specified in Schedule-E, the Contractor shall be entitled to additional
time in conformity with Good Industry Practice. Such additional time shall be
determined by the Authority’s Engineer and conveyed to the Contractor and the
Authority with reasons thereof.

14.7 Authority’s right to take remedial measures

In the event the Contractor does not maintain and/or repair the Project Highway or
any part thereof in conformity with the Maintenance Requirements, the Maintenance
Manual or the Maintenance Programme, as the case may be, and fails to commence
remedial works within 15 (fifteen) days of receipt of the Maintenance Inspection
Report under Clause 15.2 or a notice in this behalf from the Authority or the
Authority’s Engineer, as the case may be, the Authority shall, without prejudice to
its rights under this Agreement including Termination thereof, be entitled to
undertake such remedial measures at the cost of the Contractor, and to recover its
cost from the Contractor. In addition to recovery of the aforesaid cost, a sum equal
to 20% (twenty per cent) of such cost shall be paid by the Contractor to the Authority
as Damages.

14.8 Restoration of loss or damage to Project Highway

Save and except as otherwise expressly provided in this Agreement, in the event that
the Project Highway or any part thereof suffers any loss or damage during the
Maintenance from any cause attributable to the Contractor, the Contractor shall, at
its cost and expense, rectify and remedy such loss or damage forthwith so that the
Project Highway conforms to the provisions of this Agreement.

14.9 Overriding powers of the Authority

(i) If in the reasonable opinion of the Authority, the Contractor is in material breach of
its obligations under this Agreement and, in particular, the Maintenance
Requirements, and such breach is causing or likely to cause material hardship or
danger to the Users and pedestrians, the Authority may, without prejudice to any of
its rights under this Agreement including Termination thereof, by notice require the

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Contractor to take reasonable measures immediately for rectifying or removing such

hardship or danger, as the case may be.

(ii) In the event that the Contractor, upon notice under Clause 14.9 (i), fails to rectify or
remove any hardship or danger within a reasonable period, the Authority may
exercise overriding powers under this Clause 14.9 (ii) and take over the performance
of any or all the obligations of the Contractor to the extent deemed necessary by it
for rectifying or removing such hardship or danger; provided that the exercise of such
overriding powers by the Authority shall be of no greater scope and of no longer
duration than is reasonably required hereunder; provided further that any costs and
expenses incurred by the Authority in discharge of its obligations hereunder shall be
recovered by the Authority from the Contractor, and the Authority shall be entitled to
deduct any such costs and expenses incurred from the payments due to the Contractor
under Clause 19.7 for the performance of its Maintenance obligations.

(iii) In the event of a national emergency, civil commotion or any other circumstances
specified in Clause 21.3, the Authority may take over the performance of any or all
the obligations of the Contractor to the extent deemed necessary by it, and exercise
such control over the Project Highway or give such directions to the Contractor as
may be deemed necessary; provided that the exercise of such overriding powers by
the Authority shall be of no greater scope and of no longer duration than is reasonably
required in the circumstances which caused the exercise of such overriding power by
the Authority. For the avoidance of doubt, it is agreed that the consequences of such
action shall be dealt in accordance with the provisions of Article 21. It is also agreed
that the Contractor shall comply with such instructions as the Authority may issue in
pursuance of the provisions of this Clause 14.9 (iii), and shall provide assistance and
cooperation to the Authority, on a best effort basis, for performance of its obligations
hereunder.

14.10 Taking over Certificate

The Maintenance Requirements set forth in Schedule-E having been duly carried out,
Maintenance Period as set forth in Clause 14.1 (i) having been expired and
Authority’s Engineer determining the Tests on Completion of Maintenance to be
successful in accordance with Schedule-Q, the Authority will issue Taking Over
Certificate to the Contractor substantially in the format set forth in Schedule-R.

Contractor Managing Director,

MSIDC, Mumbai.
92
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 15

15 Supervision and Monitoring during Maintenance

15.1 Inspection by the Contractor

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

continuously the compliance with the Maintenance Requirements.

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

15.2 Inspection and payments

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

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

(iii) For each case of non-compliance of Maintenance Requirements as specified in the

inspection report of the Authority’s Engineer, the Authority’s Engineer shall
calculate the amount of reduction in payment in accordance with the formula
specified in Schedule-M.

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

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

15.3 Tests

For determining that the Project Highway conforms to the Maintenance

Requirements, the Authority’s Engineer shall require the Contractor to carry out, or
cause to be carried out, Tests specified by it in accordance with Good Industry
Practice. The Contractor shall, with due diligence, carry out or cause to be carried
out all such Tests in accordance with the instructions of the Authority’s Engineer and
furnish the results of such Tests forthwith to the Authority’ Engineer.

At any time during Maintenance Period, the Authority may appoint an external
technical auditor to conduct an audit of the quality of the Works. The Auditor in the
presence of the representatives of the Contractor and the Authority’s Engineer shall
carry out the Tests and/ or collect samples for testing in the laboratory. The timing,
the testing equipment and the sample size of this audit shall be as decided by the
Authority. The findings of the audit, to the extent accepted by the Authority, shall be
notified to the Contractor and the Authority’s Engineer for taking remedial measures.
After completion of the remedial measures by the Contractor, the auditor shall
undertake a closure audit and this process will continue till the remedial measures
have brought the maintenance works into compliance with the Specifications and
Standards. The Contractor shall provide all assistance as may be required by the
auditor in the conduct of its audit hereunder. Notwithstanding anything contained in
this Clause 15.3, the external technical audit shall not affect any obligations of the
Contractor or the Authority’s Engineer under this Agreement.

15.4 Reports of unusual occurrence

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

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

(b) damaged or dislodged fixed equipment;
(c) flooding of Project Highway; and
(d) any other unusual occurrence.

15.5 Decision

i. In case of difference of opinion in the Authority Engineer and the Chief Engineer,
Maharashtra State Infrastructure Development Corporation or any officer appointed

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
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by the Authority about any quality aspect of the work, the decision of the Managing
Director will be final and binding on all parties.

ii. In all technical matters relating to the work, the decision of Managing Director
will be binding on all the parties.

Contractor Managing Director,

MSIDC, Mumbai.
95
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 16

16 Traffic Regulation

16.1 Traffic regulation by the Contractor

(i) The Contractor shall take all the required measures and make arrangements for the
safety of Users during the Construction and Maintenance of the Project Highway or a
Section thereof in accordance with the provisions of MORTH Specifications. It shall
provide, erect and maintain all such barricades, signs, markings, flags, and lights as
may be required by Good Industry Practice for the safety of the traffic passing
through the Section under construction or maintenance.

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

Contractor Managing Director,

MSIDC, Mumbai.
96
Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 17

17 Defects Liability

17.1 Defects Liability Period

(i) The Contractor shall be responsible for all the Defects and deficiencies, including
usual wear and tear in the Project Highway or any Section thereof, till the expiry of
a period of commencing from the date of Completion Certificate (the “Defects
Liability Period”) as specified below:

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

The Defects Liability Period shall commence from the date of the Completion
Certificate. For the avoidance of any doubt, any repairs or restoration because of
usual wear or tear in the Project Highway or any Section thereof shall form a part of
the Maintenance obligations of the Contractor as specified in Article 14.

17.2 Remedying Defects

Save and except as provided in Clause 14.1 (iii), the Contractor shall repair or rectify
all Defects and deficiencies observed by the Authority or Authority’s Engineer
during the Defects Liability Period within a period of 15 (fifteen) days from the date
of notice issued by the Authority or Authority’s Engineer in this behalf, or within
such reasonable period as may be determined by the Authority or Authority’s
Engineer at the request of the Contractor, in accordance with Good Industry Practice.

Contractor Managing Director,

MSIDC, Mumbai.
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The damage due to natural/environmental conditions to the various components of

the work shall be repaired/reinstated by the Contractor with no additional costs to the
Authority. However, the damages due to the accident shall be payable as a change of
scope during the Defect Liability Period.

However, the security of the project highway, facilities and road furniture shall be
the responsibility of Contractor throughout the Defect Liability Period with no
additional cost to the authority.

The contractor shall procure, deploy, operate a maintain the Mechanized Road
Sweeping Machines of standard make as directed by the Authority for Cleaner a
Safer Roads during the construction a Defects Liability Period at his own cost. Upon
completion of Defects Liability Period, the contractor shall handover the Mechanized
Road Sweeping Machines which is operational Et in good working conditions to be
operatable in future to the Authority without cost to authority.

The contractor shall procure, deploy, operate a maintain the Bridge Inspection
Unit/Machine (BIM) of standard make as directed the authority at his own cost for
checking the health of the bridges and long structures such as flyovers/viaducts a
Road Over Bridges (ROB) during construction and Defects Liability Period. Upon
completion of Defects Liability Period, the contractor shall handover the BIM which
is operational a in good working conditions to be operatable in future to the
Authority.

The contractor shall procure, deploy, operate Etc. maintain the equipment/
Vehicles/ Devices of standard make (the list of equipment/ vehicles/ devices is listed
in Schedule B and C) as directed the authority at his own cost for ensuring the project
expressway is operated at the high level of services from safety, operation a
maintenance perspective during construction a defects Liability Period. Upon
completion of Defects Liability Period, the contractor shall handover the following
Equipment/ Vehicles/ Devices which is operational a in good conditions to be
operatable in future to the Authority.

17.3 Cost of remedying Defects

Any repair or rectification undertaken in accordance with the provisions of Clause

17.2, including any additional testing, shall be carried out by the Contractor at its
own risk and cost, to the extent that such rectification or repair is attributable to:

(a) the design of the Project;

(b) Plant, Materials or workmanship not being in accordance with this
Agreement and the Specifications and Standards;
(c) improper maintenance during construction of the Project Highway by the
Contractor; and/ or
Contractor Managing Director,
MSIDC, Mumbai.
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(d) failure by the Contractor to comply with any other obligation under this
Agreement.

17.4 Contractor’s failure to rectify Defects

If the Contractor fails to remedy any defect or damage within the period specified in
Clause 17.2, a date may be fixed by (or on behalf of) the Employer, on or by which
the defect or damage is to be remedied. The Contractor shall be given reasonable
notice of this date.

If the Contractor fails to remedy the defect or damage by this notified date and this
remedial work was to be executed at the cost of the Contractor under Sub-Clause
17.3 [Cost of Remedying Defects], the Employer may (at his option):

(a) carry out the work himself or by others, in a reasonable manner and at the
Contractor’s cost, but the Contractor shall have no responsibility for this work; and
the Contractor shall subject to Sub-Clause 2.5 [Employer’s Claims] pay to the
Employer the costs reasonably incurred by the Employer in remedying the defect or
damage;

(b) require the Engineer to agree or determine a reasonable reduction in the Contract
Price in accordance with Sub-Clause 3.5 [Determinations]; or

(c) if the defect or damage deprives the Employer of substantially the whole benefit
of the Works or any major part of the Works, terminate the Contract as a whole, or
in respect of such major part which cannot be put to the intended use. Without
prejudice to any other rights, under the Contract or otherwise, the Employer shall
then be entitled to recover all sums paid for the Works or for such part (as the case
may be), plus financing costs and the cost of dismantling the same, clearing the Site
and returning Plant and Materials to the Contractor.

17.5 Extension of Defects Liability Period

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

17.6 Performance Certificate

(i) Performance of the Contractor’s obligations shall not be considered to have been
completed until the Authority’s Engineer has issued the Performance Certificate to
the Contractor, stating the date on which the Contractor completed its obligations
with regard to any remedial or other work required as a result of any defect in the
Works, as identified under Clause 17.1, to the satisfaction of the Authority’s
Engineer.

Contractor Managing Director,

MSIDC, Mumbai.
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(ii) The Authority’s Engineer shall issue the Performance Certificate substantially in the
format set forth in Schedule-U within 28 days after the latest of the expiry dates of
the Defects Liability Period, or as soon thereafter as the Contractor has supplied all
the Contractor’s documents, completed and tested all the Works, including
remedying any defects.

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 18

18 Authority’s Engineer

18.1 Appointment of the Authority’s Engineer

(i) The Authority shall appoint a firm of Consulting Engineers or a Project Monitoring
Committee (PMC) substantially in accordance with the selection criteria set forth in
Schedule-N, to be the engineer under this Agreement (the “Authority’s Engineer”).
In unavoidable circumstances, Authority may appoint an officer to act as Authority’s
Engineer until appointment of a Consulting Engineering firm/ Supervision
Consultant/ PMC.

(ii) The officer in-charge of the Authority is responsible for the overall supervision and
monitoring of the execution of project as the representative of the owner of the
project. The Authority's Engineer is appointed to assist the Authority for carrying out
the functions as detailed under clause 18.2. As such, an officer of the Authority is
vested with all such powers and responsibilities as are enjoined upon the Authority's
Engineer and is fully competent to issue any instructions for proper monitoring and
supervision of the project, either by himself or through the Authority's Engineer.
Instructions issued by the concerned officer of the Authority shall have the same
effect as that of the Authority's Engineer in terms of this Agreement. Wherever such
concerned officer issues any instructions or notice to the Contractor, he shall endorse
a copy thereof to the Authority's Engineer.

(iii) The Authority’s Engineer should be appointed within 10 days from the date of this
Agreement or before declaration of Appointed Date, whichever is earlier. The
Authority shall notify the appointment or replacement of the Authority’s Engineer to
the Contractor.

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

18.2 Duties and authority of the Authority’s Engineer

(i) The Authority’s Engineer shall perform the duties and exercise the authority in
accordance with the provisions of this Agreement and substantially in accordance
with the terms of reference (“Terms of Reference” or “TOR”) set forth in
Annexure-I of Schedule N, but subject to obtaining prior written approval of the
Authority before determining:

(a) any Time Extension;

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

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(c) the Termination Payment;

(d) issuance of Completion Certificate; or
(e) any other matter which is not specified in (a), (b), (c) or (d) above and which
creates financial liability on either Party.

(ii) No decision or communication of the Authority’s Engineer shall be effective or valid

unless it is accompanied by an attested true copy of the approval of the Authority for
and in respect of any matter specified in Clause 18.2 (i).

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

18.3 Delegation by the Authority’s Engineer

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

(ii) Any failure of the Authority’s Engineer to disapprove any work, Plant or Materials
shall not constitute approval, and shall, therefore, not prejudice the right of the
Authority to reject the work, Plant or Materials, which is not in accordance with the
provisions of this Agreement and the Specifications and Standards.

(iii) Notwithstanding anything stated in Clause 18.3 (i) above, the Authority’s Engineer
shall not delegate the authority to refer any matter for the Authority’s prior approval
wherever required in accordance with the provisions of Clause 18.2.

18.4 Instructions of the Authority’s Engineer

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

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

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(iii) In case the Contractor does not receive the confirmation of the oral instructions within
the time specified in Clause 18.4 (ii), the Contractor shall seek the written
confirmation of the oral instructions from the Authority’s Engineer. The Contractor
shall obtain acknowledgement from the Authority’s Engineer of the communication
seeking written confirmation. In case of failure of the Authority’s Engineer or its
delegated assistant to reply to the Contractor within 2 (two) days of the receipt of the
communication from the Contractor, the Contractor may not carry out the
instructions.

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

18.5 Determination by the Authority’s Engineer

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

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

18.6 Remuneration of the Authority’s Engineer

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

18.7 Termination of the Authority’s Engineer

(i) The Authority may, in its discretion, replace the Authority’s Engineer at any time.
However, the Authority shall ensure that alternative arrangements for appointment
of another Authority's Engineer or designation of its own officer as the Authority
Engineer for the intervening period are made simultaneously.

(ii) If the Contractor has reasons to believe that the Authority’s Engineer is not
discharging its duties and functions in accordance with the provisions of this
Agreement, it may make a written representation to the Authority and seek
termination of the appointment of the Authority’s Engineer. Upon receipt of such

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representation, the Authority shall hold a tripartite meeting with the Contractor and
the Authority’s Engineer and make best efforts for an amicable resolution of the
representation. In the event that the appointment of the Authority’s Engineer is
terminated hereunder, the Authority shall appoint forthwith another Authority’s
Engineer in accordance with Clause 18.1 and 18.7 (i).

(iii) Deleted.

18.8 Vacancy of the Authority’s Engineer’s Office

In the absence of a duly appointed Authority Engineer, or in the event of the

termination, resignation, or any other circumstance resulting in the unavailability of
the Authority Engineer, the Executive Engineer shall assume the role of the Authority
Engineer until a new appointment is made. The Executive Engineer, in such capacity,
shall assume all powers, duties, and responsibilities of the Authority Engineer under
this Agreement.

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Part IV

Financial Covenants

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

Article 19

19 Payments

19.1 Contract Price

(i) The Authority shall make payments to the Contractor for the Works on the basis of
the lump sum price accepted by the Authority in consideration of the obligations
specified in this Agreement for an amount of INR … … … … (INR … … … … …
… … …) (the “Contract Price”), which shall be subject to adjustments in accordance
with the provisions of this Agreement. For the avoidance of doubt, the Parties
expressly agree that the Contract Price shall not include the cost of Maintenance,
utility shifting, royalty charges, roadside arboriculture, testing charges, traffic
signages, painting gantry board and Goods and Services Tax (GST), the cost of
maintenance shall be paid separately in accordance with the provisions of Clause
19.7 and GST shall be payable at the applicable rates. The Parties further agree that
save and except as provided in this Agreement, the Contract Price shall be valid and
effective until issue of Completion Certificate.

(ii) The Contract Price includes all duties, taxes (excluding GST, which shall be payable
at the applicable rates), cess, charges, and fees that may be levied in accordance with
the laws and regulations in force as on the Base Date on the Contractor's equipment,
Plant, Materials and supplies acquired for the purpose of this Agreement and on the
services performed under this Agreement. Nothing in this Agreement shall relieve
the Contractor from its responsibility to pay any tax including any tax that may be
levied in India on profits made by it in respect of this Agreement. The Contract Price
also includes the cost of shifting of obstructing Utilities (including all centages as
applicable by the Utility owning department except supervision charges) as given in
clause 9.2 and Schedule B.

(iii) The Contract Price shall not be adjusted for any change in costs stated in Clause 19.1
(ii) above, except as stated in Clauses 19.10 and 19.17.

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

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

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

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

19.2 Advance Payment

(i) The Authority shall make an interest-bearing advance payment (the “Advance
Payment”) @ “Bank Rate + 3%”, equal to 10 % (ten percent) of the Contract Price,
exclusively for mobilisation expenses. The Advance Payment for mobilisation
expenses shall be made in two instalments each equal to 5% (five percent) of the
Contract Price. The second 5% (five percent) mobilization advance would be
released after submission of utilization certificate by the Contractor for the first 5%
(five per cent) advance already released earlier.

(ii) In addition to above, the Authority shall make an additional interest-bearing Advance
Payment against newly purchased key Construction equipment required for the
works as per agreed Construction programme and brought to the site, if so requested
by the Contractor subject to the same terms and conditions specified for Advance
Payment for mobilisation expenses in this Agreement. The maximum of such
advance shall be 5% (five per cent) of the Contract Price against bank guarantee/ e-
Bank Guarantee. This advance shall be further subject to the condition that:

(a) such new equipment are considered by the Authority’s Engineer to be

necessary for the works and

(b) these new equipment should be procured in the name of Contractor and is
verified by Authority’s Engineer to have been brought to site.

(iii) The Advance Payment for mobilization expenses and for acquisition of key new
Construction equipment would be deemed as interest bearing advance at the
applicable interest rate (@"Bank rate + 3%”), to be compounded annually on a
reducing balance basis. The interest would be recovered along with the recovery of
mobilization Advance Payment as per provision laid down for the mobilization
advance recovery.

(iv) 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 bank guarantee/ e-Bank 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. If the institution issuing the advance payment guarantee/s
is located outside the country of the Authority, it shall have a correspondent financial
institution located in the country of the Authority to make it enforceable.

(v) At any time, after 60 (sixty) days from the Appointed Date, the Contractor may apply
to the Authority for the second instalment of the Advance Payment along with an
irrevocable and unconditional bank guarantee/ e-Bank guarantee from a Bank for an
amount equivalent to 110% (one hundred and ten per cent) of such instalment,

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
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substantially in the form provided at Annex-III of Schedule-G, to remain effective

till the complete and full repayment thereof.

(vi) The Contractor has the option of splitting the bank guarantee/ e-Bank Guarantee
against Advance Payment for mobilization expenses into parts, each not less than
2.75% (two point seven five per cent) of the Contract Price. Each part of the bank
guarantee/ e-Bank guarantee shall remain effective till full repayment of such part
advance corresponding to this bank guarantee/ e-bank guarantee. Such part of bank
guarantee/ e-Bank Guarantee shall be returned to the Contractor on recovery under
the Agreement of the full amount of such part bank guarantee/ e-Bank guarantee
within 30 (thirty) days of the said recovery.

(vii) The Advance Payment shall be paid by the Authority to the Contractor within 15
(fifteen) days of the receipt of its respective requests in accordance with the
provisions of this Clause 19.2.

(viii) The Advance Payment shall be repaid through percentage deductions from the stage
payments determined by the Authority’s Engineer in accordance with Clause 19.5,
as follows:

(a) deductions shall commence in the first Stage Payment Statement;

(b) deductions shall be made at the rate of 15% (fifteen percent) of each Stage
Payment Statement until such time as the advance payment has been repaid;
provided that the advance payment shall be completely repaid prior to the
time when 80% (eighty percent) of the Schedule Construction Period is over;
(c) if total certified stage payments (excluding the Advance Payment and
deductions and repayments of retention) does not exceed 20% (twenty
percent) of the Contract Price within 50% of the Scheduled Construction
Period from the Appointed Date then the Advance Payment including interest
shall be recovered by encashment of the bank guarantee/ e-Bank Guarantee
for the Advance Payment.

(ix) If the Advance Payment has not been fully repaid prior to Termination under Clause
21.7 or Article 23, as the case may be, the whole of the balance then outstanding shall
immediately become due and payable by the Contractor to the Authority. Without
prejudice to the provisions of Clause 19.2 (vi), in the event of Termination for
Contractor Default, the Advance Payment shall be deemed to carry interest @ “Bank
Rate+5%” per annum from the date of Advance Payment to the date of recovery by
encashment of the Bank Guarantee for the Advance Payment. For the avoidance of
doubt, the aforesaid interest shall be payable on the unrecovered balance..

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

19.3 Procedure for estimating the payment for the Works

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

(ii) The Contractor shall base its claim for interim payment for the stages completed till
the end of the month for which the payment is claimed, valued in accordance with
Clause 19.3 (i), supported with necessary particulars and documents in accordance
with this Agreement.

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

19.4 Stage Payment Statement for Works

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

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

19.5 Stage Payment for Works

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

Contractor Managing Director,

MSIDC, Mumbai.
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the receipt of recommendation of the Authority’s Engineer, the Authority shall make
electronic payment directly to the Contractor’s bank account.

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

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

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

(a) the estimated value of work or obligation that the Contractor has failed to
perform in accordance with this Agreement and the Authority’s Engineer had
notified the Contractor; and
(b) the estimated cost of rectification of work done being not in accordance with
this Agreement.

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

19.6 Monthly Maintenance Statement of the Project Highway

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

(ii) The monthly lump sum amount payable for Maintenance shall be 1/12th (one-
twelfth) of the annual cost of Maintenance as specified in Clause 14.1 (i).

19.7 Payment for Maintenance of the Project Highway

The payment for Maintenance of the Project Highway shall be made in accordance
with the Clause 14.1 subject to fulfilment of following conditions:

(i) Within 15 (fifteen) days of receipt of the Monthly Maintenance Statement from the
Contractor pursuant to Clause 19.6, the Authority’s Engineer shall verify the

Contractor Managing Director,

MSIDC, Mumbai.
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Contractor’s monthly maintenance statement and certify the amount to be paid to the
Contractor taking into account:

(a) Compliance with the Maintenance Requirements; and

(b) reduction for non-compliance with the Maintenance Requirement in
accordance with Clause 19.7 (ii).
The Authority’s Engineer shall deliver to the Authority an IPC approving or
amending the monthly maintenance statement to reflect the amount due to the
Contractor in accordance with this Agreement.

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

(iii) The deduction made on account of non-compliance with the Maintenance

Requirements shall not be subsequently considered for payment after the compliance
is achieved by repair or rectification.

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

19.8 Payment of Damages

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

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

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

19.9 Time of payment and interest

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

(a) payment shall be made no later than 30 (thirty) days from the date of
submission of the Stage Payment Statement by the Contractor to the
Authority’s Engineer for certification in accordance with the provisions of
Clause 19.4 for an IPC; provided that, in the event the IPC is not issued by
the Authority’s Engineer within the aforesaid period of 30 (thirty) days, the
Authority shall pay the amount shown in the Contractor’s Stage Payment
Statement and any discrepancy therein shall be added to, or deducted from, the
next payment certificate issued to the Contractor; and
(b) payment shall be made no later than 30 (thirty) days from the date of
submission of the Final Payment Certificate for Works along with the
discharge submitted to the Authority’s Engineer in accordance with the
provisions of Clause 19.15 for certification.

(ii) In the event of the failure of the Authority to make payment to the Contractor within
the time period stated in this Clause 19.9, the Authority shall be liable to pay to the
Contractor interest @ Bank Rate plus 3% (Three Percent) per annum, on all sums
remaining unpaid from the date on which the same should have been paid, calculated
in accordance with the provisions of sub-Clauses (a) and (b) of Clause 19.9.1 and till
the date of actual payment.

19.10 Price adjustment for the Works

(i) The amounts payable to the Contractor for Works shall be adjusted in accordance
with the provisions of this Clause 19.10

(ii) Subject to the provisions of Clause 19.10 (iii), the amounts payable to the Contractor
for Works, shall be adjusted in the IPC issued by the Authority’s Engineer for the
increase or decrease in the index cost of inputs for the Works, by the addition or
subtraction of the amounts determined by the formulae prescribed in Clause 19.10
(iv).

(iii) To the extent that full compensation for any increase or decrease in costs to the
Contractor is not covered by the provisions of this or other Clauses in this Agreement,
the costs and prices payable under this Agreement shall be deemed to include the
amounts required to cover the contingency of such other increase or decrease of costs
and prices.

Contractor Managing Director,

MSIDC, Mumbai.
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(Length = 7.640km) under EPC mode

(iv) The Contract Price shall be adjusted for increase or decrease in rates and price of
labour, cement, steel, Plant, machinery and spares, bitumen, fuel and lubricants, and
other material inputs in accordance with the principles, procedures and formulae
specified below:

(a) Price adjustment shall be applied on completion of the specified stage of the
respective item of work in accordance with Schedule-H;
(b) Adjustment for each item of work/stage shall be made separately;
(c) The following expressions and meanings are assigned to the value of the work
done:
RW= Value of work done for the completion of a stage under the following
items of Schedule-H:
i. Road works; and
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 = 0.85𝑅𝑊 × [𝑃𝐿 × + 𝑃𝐴 × + 𝑃𝐹 × +

𝑃𝐵 × + 𝑃𝑀 × + 𝑃𝐶 × + 𝑃𝑆 × ]

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

𝑃𝑀 × + 𝑃𝐶 × + 𝑃𝑆 × ]

Where,

VRW = Increase or decrease in the cost of road works/other works during the
period under consideration due to changes in the rates for relevant
components as stated in sub-paragraph (e).

VBR = 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).

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

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

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

AO = The wholesale price index as published by the Ministry of Commerce &

Industry, Government of India (hereinafter called “WPI”) for “Manufacture
of machinery for mining, quarrying and construction” for the month of the
Base Date.

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

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

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

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

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

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

FI = The official retail price of HSD at the existing consumer pumps of IOC in the
State of Maharashtra 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 applicable workers for the concerned
PWD circle in the State of Maharashtra, 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.

Contractor Managing Director,

MSIDC, Mumbai.
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SO = The WPI for Mild Steel –Long Products for the month of the Base Date.

SI = The WPI for Mild Steel –Long Products for the month three months prior to
the month to which the IPC relates.

(e) The following percentages shall govern the price adjustment of the Contract
Price:
Item
Road Works
Culverts, Major
Earthwork,
Component Bitumin Cement minor Bridges
Granular
ous Concrete bridges and and
work, and
work Pavement other Structures
Other works
structures
Labour (PL) 20% 20% 20% 15% 15%
Cement (PC) 5% Nil 20% 15% 15%
Steel (PS) Nil Nil Nil 15% 20%
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%

19.11 Restrictions on price adjustment

Price adjustment shall be due and payable only in respect of the stages of Works for
which the Stage Payment Statement has been submitted by the Contractor no later
than 30 (thirty) days from the date of the applicable Project Milestone or the
Scheduled Completion Date, as the case may be, including any Time Extension
granted therefor in accordance with the provisions of this Agreement. For the
avoidance of doubt, in the event of submission of any Stage Payment Statement after
the period specified herein, price adjustment shall be applicable until the date of the
respective Project Milestone or the Scheduled Completion Date, as the case may be.

Contractor Managing Director,

MSIDC, Mumbai.
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Package 4 - Construction of Nashik Ring Road (Eastern side) from Design chainage 0.500 to 8.140
(Length = 7.640km) under EPC mode

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×(W_I-W_0)/W_0

Where

V= Increase or decrease in the quarterly lump sum payment

P= Quarterly lump sum payment due to the Contractor after adjusting any
reduction in payment for non-compliance of the Maintenance Requirements

W0= The wholesale price index (all commodities) for the month of the Base
Date.

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

19.13 Final Payment Statement

(i) Within 60 (sixty) days after receiving the Completion Certificate under Clause 12.2,
the Contractor shall submit to the Authority’s Engineer for consideration 6 (six)
copies of a Final Payment Statement (the “Final Payment Statement”) for Works,
with supporting documents showing in detail, in the form prescribed by the
Authority’s Engineer:

(a) the summary of Contractor’s Stage Payment claims for Works as submitted
in accordance with Clause 19.4;
(b) the amounts received from the Authority against each claim; and
(c) any further sums which the Contractor considers due to it from the Authority.
If the Authority’s Engineer disagrees with or cannot verify any part of the
Final Payment Statement, the Contractor shall submit such further information
as the Authority’s Engineer may reasonably require. The Authority’s Engineer
shall deliver to the Authority:
i. an IPC for those parts of the Final Payment Statement which are not in
dispute, along with a list of disputed items which shall then be settled in
accordance with the provisions of Article 26; or
ii. a Final Payment Certificate in accordance with Clause 19.15 if there are
no disputed items.

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MSIDC, Mumbai.
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(ii) If the Authority’s Engineer does not prescribe the form referred to in Clause 19.13
(i) within 15 (fifteen) of the date of issue of the Completion Certificate, the
Contractor shall submit the statement in such form as it deems fit.

19.14 Discharge

Upon submission of the Final Payment Statement for Works under Clause 19.13, the
Contractor shall give to the Authority, with a copy to the Authority’s Engineer, a
written discharge confirming that the total of the Final Payment Statement represents
full and final settlement of all monies due to the Contractor in respect of this
Agreement for all the Works arising out of this Agreement, except for any monies
due to either Party on account of any Defect. Provided that such discharge shall
become effective only after the payment due has been made in accordance with the
Final Payment Certificate issued pursuant to Clause 19.15.

19.15 Final Payment Certificate

(i) Within 30 (thirty) days after receipt of the Final Payment Statement for Works under
Clause 19.13, and the written discharge under Clause 19.14, and there being no
disputed items of claim, the Authority’s Engineer shall deliver to the Authority, with
a copy to the Contractor, a final payment certificate (the “Final Payment
Certificate”) stating the amount which, in the opinion of the Authority’s Engineer,
is finally due under this Agreement or otherwise. For the avoidance of doubt, before
issuing the Final Payment Certificate, the Authority’s Engineer shall ascertain from
the Authority all amounts previously paid by the Authority and for all sums to which
the Authority is entitled, the balance, if any, due from the Authority to the Contractor
or from the Contractor to the Authority, as the case may be.

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

19.16 Final payment statement for Maintenance

(i) Within 30 (thirty) days after completion of the Maintenance Period, the Contractor
shall submit to the Authority’s Engineer 6 (six) copies of the final payment statement
for Maintenance of the Project Highway, with supporting documents showing the
details set forth below in the form prescribed by the Authority’s Engineer:

(a) the total amount claimed in accordance with clause 19.7 (i) and
(b) any sums which the Contractor considers to be due to it, with supporting
documents.

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MSIDC, Mumbai.
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(ii) The Authority’s Engineer shall certify final payment within 30 (thirty) days of the
receipt of the final payment statement of Maintenance under Clause 19.16 (i),
segregating the items of amount payable from the items of amount disallowed. The
Authority shall make payment on the basis of the final payment authorised by the
Authority’s Engineer within a period of 30 (thirty) days of the receipt of the Final
Payment Statement from the Authority’s Engineer.

(iii) If the Authority’s Engineer does not prescribe the form within 15 (fifteen) days of
the date of issue of the Completion Certificate, the Contractor shall submit the
statement in such form as it deems fit.

19.17 Change in law

(i) If as a result of Change in Law, the Contractor suffers any additional costs in the
execution of the Works or in relation to the performance of its other obligations under
this Agreement, the Contractor shall, within 15 (fifteen) days from the date it becomes
reasonably aware of such addition in cost, notify the Authority with a copy to the
Authority’s Engineer of such additional cost due to Change in Law.

(ii) If as a result of Change in Law, the Contractor benefits from any reduction in costs
for the execution of this Agreement or in accordance with the provisions of this
Agreement, either Party shall, within 15 (fifteen) days from the date it becomes
reasonably aware of such reduction in cost, notify the other Party with a copy to the
Authority’s Engineer of such reduction in cost due to Change in Law.

(iii) The Authority’s Engineer shall, within 15 (fifteen) days from the date of receipt of
the notice from the Contractor or the Authority, determine any addition or reduction
to the Contract Price, as the case may be, due to the Change in Law.

19.18 Correction of Interim Payment Certificates

The Authority’s Engineer may by an Interim Payment Certificate make any

correction or modification in any previous Interim Payment Certificate issued by the
Authority’s Engineer.

19.19 Authority’s claims

If the Authority considers itself to be entitled to any payment from the Contractor
under any Clause of this Agreement, it shall give notice and particulars to the
Contractor 20 (twenty) days before making the recovery from any amount due to the
Contractor, and shall take into consideration the representation, if any, made by the
Contractor in this behalf, before making such recovery.

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19.20 Bonus for early completion

In the event that the Project Completion Date occurs prior to the Scheduled
Completion Date, the Contractor shall be entitled to receive a payment of bonus
equivalent to 0.03% (zero point zero three per cent) of the Contract Price for each day
by which the Project Completion Date precedes the Scheduled Completion Date, but
subject to a maximum of 5% (five per cent) of the Contract Price. Provided, however,
that the payment of bonus, if any, shall be made only after the issue of the Completion
Certificate. For the avoidance of the doubt, the Parties agree that for the purpose of
determining the bonus payable hereunder, the works shall always be deemed to be as
specified in this Contract Agreement but excluding the works deemed to be deleted
from the scope of work under clause 8.3 of this Contract Agreement and the Contract
Price shall always be deemed to be the amount specified in Clause 19.1 (i) after
excluding the Contract Price of the Works deemed to be deleted from the Scope of
Work under clause 8.3 of this Contract Agreement, and shall exclude any revision
thereof for any reason. The Parties also agree that bonus shall be payable only if each
work for which Time Extension has been granted is completed within respective
Extended Time.

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MSIDC, Mumbai.
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Article 20

20 Insurance

20.1 Insurance for Works and Maintenance

(i) The Contractor shall effect and maintain at its own cost the insurances specified in
Schedule-P and as per the requirements under the Applicable Laws.

(ii) Subject to the provisions of Clause 21.6, the Authority and the Contractor shall, in
accordance with its obligations as provided for in this Agreement, be liable to bear
the cost of any loss or damage that does not fall within the scope of this Article 20 or
cannot be recovered from the insurers.

(iii) Subject to the exceptions specified in Clause 20.1 (iv) below, the Contractor shall,
save and except as provided for in this Agreement, fully indemnify, hold harmless and
defend the Authority from and against any and all losses, damages, costs, charges
and/or claims with respect to:

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

(b) the loss of or damage to any property (other than the Works);
that may arise out of or in consequence of any breach by the Contractor of this
Agreement during the execution of the Works or the remedying of any Defects
therein.

(iv) Notwithstanding anything stated above in Clause 20.1 (iii), the Authority shall fully
indemnify the Contractor from and against any and all losses, damages, costs,
charges, proceedings and/or claims arising out of or with respect to:

(a) the use or occupation of land or any part thereof by the Authority;
(b) the right of the Authority to execute the Works, or any part thereof, on, over,
under, in or through any land;
(c) the damage to property which is the unavoidable result of the execution and
completion of the Works, or the remedying of any Defects therein, in
accordance with this Agreement; and
(d) the death of or injury to persons or loss of or damage to property resulting
from any act or neglect of the Authority, its agents, servants or other
contractors, not being employed by the Contractor.
Provided that, in the event of any injury or damage as a result of the
contributory negligence of the Contractor, the Authority shall be liable to
indemnify the Contractor from and against any and all losses, damages, costs,
charges, proceedings and/or claims to the extent as may be proportionately

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determined to be the liability of the Authority, its servants or agents or other

contractors not associated with the Contractor in such injury or damage.

(v) Without prejudice to the obligations of the Parties as specified under Clauses 20.1
(iii) and 20.1 (iv), the Contractor shall maintain or effect such third party insurances
as may be required under the Applicable Laws.

(vi) The Contractor shall provide to the Authority, within 30 days of the Appointed Date,
evidence of professional liability insurance maintained by its Design Director and/or
consultants to cover the risk of professional negligence in the design of Works. The
professional liability coverage shall be for a sum of not less than [3% (three per cent)]
of the Contract Price and shall be maintained until the end of the Defects Liability
Period.

20.2 Notice to the Authority

No later than 15 (fifteen) days after the date of this Agreement, the Contractor shall
by notice furnish to the Authority, in reasonable detail, information in respect of the
insurances that it proposes to effect and maintain in accordance with this Article 20.
Within 15 (fifteen) days of receipt of such notice, the Authority may require the
Contractor to effect and maintain such other insurances as may be necessary pursuant
hereto, and in the event of any difference or disagreement relating to any such
insurance, the Dispute Resolution Procedure shall apply.

20.3 Evidence of Insurance Cover

(i) All insurances obtained by the Contractor in accordance with this Article 20 shall be
maintained with insurers on terms consistent with Good Industry Practice. Within 10
(ten) days from the Appointed Date, the Contractor shall furnish to the Authority
notarised true copies of the certificate(s) of insurance, copies of insurance policies
and premia payment receipts in respect of such insurance, and no such insurance
shall be cancelled, modified, or allowed to expire or lapse until the expiration of at
least 45 (forty-five) days after notice of such proposed cancellation, modification or
non-renewal has been delivered by the Contractor to the Authority. The Contractor
shall act in accordance with the directions of the Authority. Provided that the
Contractor shall produce to the Authority the insurance policies in force and the
receipts for payment of the current premia.

(ii) The Contractor shall ensure the adequacy of the insurances at all times in 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

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force any such insurances, and pay such premia and recover the costs thereof from
the Contractor, or in the event of computation of a Termination Payment, treat an
amount equal to the Insurance Cover as deemed to have been received by the
Contractor.

20.5 Waiver of subrogation

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

20.6 Contractor’s waiver

The Contractor hereby further releases, assigns and waives any and all rights of
subrogation or recovery against, inter alia, the Authority and its assigns, undertakings
and their subsidiaries, Affiliates, employees, successors, insurers and underwriters,
which the Contractor may otherwise have or acquire in or from or in any way
connected with any loss, liability or obligation covered by policies of insurance
maintained or required to be maintained by the Contractor pursuant to this
Agreement (other than third party liability insurance policies) or because of
deductible clauses in or inadequacy of limits of any such policies of insurance.

20.7 Cross liabilities

Any such insurance maintained or effected in pursuance of this Article 20 shall include
a cross liability clause such that the insurance shall apply to the Contractor and to the
Authority as separately insured.

20.8 Accident or injury to workmen

Notwithstanding anything stated in this Agreement, it is hereby expressly agreed

between the Parties that the Authority shall not be liable for or in respect of any
damages or compensation payable to any workman or other person in the
employment of the Contractor or Sub-contractor, save and except as for death or
injury resulting from any act, omission or wilful default of the Authority, its agents
or servants. The Contractor shall indemnify and keep indemnified the Authority from
and against all such claims, proceedings, damages, costs, charges, and expenses
whatsoever in respect of the above save and except for those acts, omissions or wilful
defaults for which the Authority shall be liable.

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20.9 Insurance against accident to workmen

The Contractor shall effect and maintain during the Agreement such insurances as
may be required to insure the Contractor’s personnel and any other persons employed
by it on the Project Highway from and against any liability incurred in pursuance of
this Article 20. Provided that for the purposes of this Clause 20.9, the Contractor’s
personnel/any person employed by the Contractor shall include the Sub-contractor
and its personnel. It is further provided that, in respect of any persons employed by
any Sub-contractor, the Contractor's obligations to insure as aforesaid under this
Clause 20.9 shall be discharged if the Sub-contractor shall have insured against any
liability in respect of such persons in such manner that the Authority is indemnified
under the policy. The Contractor shall require such Sub-contractor to produce before
the Authority, when required, such policy of insurance and the receipt for payment
of the current premium within 10 (ten) days of such demand being made by the
Authority.

20.10 Application of insurance proceeds

The proceeds from all insurance claims, except for life and injury, shall be applied
for any necessary repair, reconstruction, reinstatement, replacement, improvement,
delivery or installation of the Project Highway and the provisions of this Agreement
in respect of construction of works shall apply mutatis mutandis to the works
undertaken out of the proceeds of insurance.

20.11 Compliance with policy conditions

Each Party hereby expressly agrees to fully indemnify the other Party from and
against all losses and claims arising from its failure to comply with conditions
imposed by the insurance policies effected in accordance with this Agreement.

20.12 General Requirements of Insurance Policies

The Contractor must:

(a) immediately deposit copies of the policies or certificates of any insurance

which it is required to effect under the Contract, together with receipts for the
premiums;
(b) effect all insurances for which the Contractor is responsible with an insurer
approved by the Authority;
(c) make no material changes to the terms of any insurance without the
Authority’s approval;
(d) in all respects comply with any conditions stipulated in the insurance policies
which the Contractor is required to effect under the Agreement or which the

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Authority has effected in relation to the Facility and notified to the

Contractor; and shall provide all assistance to the Authority in the application
for, and finalization of, such comprehensive insurance package;
(e) regardless of the extent of settlement of claims by the underwriters or the time
taken for settlement of claims, the Contractor shall make good any loss, or
damage at its own cost promptly;
(f) provide all assistance to the Authority in the application for, and finalization
of, such comprehensive insurance package;
(g) pay the Contractor's share of the insurance premiums for insurance premiums
allocated under such comprehensive insurance package policy to the
insurances directly to the insurance provider promptly on demand. In case the
Contractor fails to make such payment in time, the Authority may elect to
pay the Contractor's share and adjust it against amounts payable to the
Contractor under this Agreement;
(h) in the case of occurrence of any event leading to an insurance claim, promptly
follow the procedures specified by the insurance provider, and provide full
cooperation and access to the insurance provider or its representative, to settle
the claim expeditiously;
(i) require all the Sub-Contractors providing equipment and materials or services
to the Contractor or the Authority to obtain, maintain and keep in force during
the time in which they are involved in the performance of the Works
hereunder insurance coverage consistent with the Contractor's insurance
obligations hereunder and the Contractor shall also be responsible for
fulfillment of this requirement; and
(j) the required insurance coverage and the Contractor's obligations-referred to
shall in no way affect or limit the Contractor's liability with respect to its
performance of the Works. Nothing in this Section shall limit or relieve the
Contractor of its liabilities and obligations under this Agreement.

Contractor Managing Director,

MSIDC, Mumbai.
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Part V

Force Majeure and Termination

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Article 21

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.

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21.3 Indirect Political Event

An Indirect Political Event shall mean one or more of the following acts or events:

(a) an act of war (whether declared or undeclared), invasion, armed conflict or

act of foreign enemy, blockade, embargo, riot, insurrection, terrorist or
military action, civil commotion or politically motivated sabotage;
(b) industry-wide or State-wide strikes or industrial action for a continuous period
of 24 (twenty-four) hours and exceeding an aggregate period of 10 (ten) days
in an Accounting Year;
(c) any civil commotion, boycott or political agitation which prevents
construction of the Project Highway by the Contractor for an aggregate period
exceeding 10 (ten) days in an Accounting Year;
(d) any failure or delay of a Sub-contractor to the extent caused by any Indirect
Political Event;
(e) any Indirect Political Event that causes a Non-Political Event; or
(f) any event or circumstances of a nature analogous to any of the foregoing.

21.4 Political Event

A Political Event shall mean one or more of the following acts or events by or on
account of any Government Instrumentality:

(a) Change in Law, only if consequences thereof cannot be dealt with under and
in accordance with the provisions of Clause 19.17;
(b) compulsory acquisition in national interest or expropriation of any Project
Assets or rights of the Contractor or of the Sub-Contractors;
(c) unlawful or unauthorised or without jurisdiction revocation of, or refusal to
renew or grant without valid cause, any clearance, licence, permit,
authorisation, no objection certificate, consent, approval or exemption
required by the Contractor or any of the Sub-contractors to perform their
respective obligations under this Agreement; provided that such delay,
modification, denial, refusal or revocation did not result from the Contractor’s
or any Sub-contractor’s inability or failure to comply with any 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.

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21.5 Duty to report Force Majeure Event

(i) Upon occurrence of a Force Majeure Event, the Affected Party shall by notice report
such occurrence to the other Party forthwith. Any notice pursuant hereto shall include
full particulars of:

(a) the nature and extent of each Force Majeure Event which is the subject of any
claim for relief under this Article 21 with evidence in support thereof;
(b) the estimated duration and the effect or probable effect which such Force
Majeure Event is having or will have on the Affected Party’s performance of
its obligations under this Agreement;
(c) the measures which the Affected Party is taking or proposes to take for
alleviating the impact of such Force Majeure Event; and
(d) any other information relevant to the Affected Party’s claim.

(ii) The Affected Party shall not be entitled to any relief for or in respect of a Force
Majeure Event unless it shall have notified the other Party of the occurrence of the
Force Majeure Event as soon as reasonably practicable, and in any event no later than
10 (ten) days after the Affected Party knew, or ought reasonably to have known, of
its occurrence, and shall have given particulars of the probable material effect that
the Force Majeure Event is likely to have on the performance of its obligations under
this Agreement.

(iii) For so long as the Affected Party continues to claim to be materially affected by such
Force Majeure Event, it shall provide the other Party with regular (and not less than
weekly) reports containing information as required by Clause 21.5 (i), and such other
information as the other Party may reasonably request the Affected Party to provide.

21.6 Effect of Force Majeure Event on the Agreement

(i) Upon the occurrence of any Force Majeure after the Appointed Date, the costs
incurred and attributable to such event and directly relating to this Agreement (the
“Force Majeure costs”) shall be allocated and paid as follows:

(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

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(c) upon occurrence of a Political Event, all Force Majeure costs attributable to
such Political Event shall be reimbursed by the Authority to the Contractor.
(d) For the avoidance of doubt, Force Majeure costs may include costs directly
attributable to the Force Majeure Event, but shall not include debt repayment
obligations, if any, of the Contractor.

(ii) Save and except as expressly provided in this Article 21, neither Party shall be liable
in any manner whatsoever to the other Party in respect of any loss, damage, cost,
expense, claims, demands and proceedings relating to or arising out of occurrence or
existence of any Force Majeure Event or exercise of any right pursuant hereto.

(iii) Upon the occurrence of any Force Majeure Event during the Construction Period, the
Project Completion Schedule for and in respect of the affected Works shall be
extended on a day for day basis for such period as performance of the Contractor’s
obligations is affected on account of the Force Majeure Event or its subsisting effects.

21.7 Termination Notice for Force Majeure Event

(i) If a Force Majeure Event subsists for a period of 60 (sixty) days or more within a
continuous period of 120 (one hundred and twenty) days, either Party may in its
discretion terminate this Agreement by issuing a Termination Notice to the other
Party without being liable in any manner whatsoever, save as provided in this Article
21, and upon issue of such Termination Notice, this Agreement shall,
notwithstanding anything to the contrary contained herein, stand terminated
forthwith; provided that before issuing such Termination Notice, the Party intending
to issue the Termination Notice shall inform the other Party of such intention and
grant 15 (fifteen) days’ time to make a representation, and may after the expiry of
such 15 (fifteen) days period, whether or not it is in receipt of such representation, in
its sole discretion issue the Termination Notice.

21.8 Termination Payment for Force Majeure Event

(i) In the event of this Agreement being terminated on account of a Non-Political Event,
the Termination Payment shall be an amount equal to the sum payable under Clause
23.5.

Provided that in the event Termination occurs during the Maintenance Period, the
Authority’s Engineer shall only determine the value of Works associated with
Maintenance.

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

shall include:

(a) any sums due and payable under Clause 23.5; and

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(b) the reasonable cost, as determined by the Authority’s Engineer, of the Plant
and Materials procured by the Contractor and transferred to the Authority for
use in Construction or Maintenance, only if such Plant and Materials are in
conformity with the Specifications and Standards;

Provided that in the event Termination occurs during the Maintenance Period, the
Authority’s Engineer shall only determine the value of Works associated with
Maintenance.

(iii) If Termination is on account of a Political Event, the Authority shall make a

Termination Payment to the Contractor in an amount that would be payable under
Clause 23.6 (ii) as if it were an Authority Default.

21.9 Dispute resolution

In the event that the Parties are unable to agree in good faith about the occurrence or
existence of a Force Majeure Event, such Dispute shall be finally settled in
accordance with the Dispute Resolution Procedure; provided that the burden of proof
as to the occurrence or existence of such Force Majeure Event shall be upon the Party
claiming relief and/ or excuse on account of such Force Majeure Event.

21.10 Excuse from performance of obligations

If the Affected Party is rendered wholly or partially unable to perform its obligations
under this Agreement because of a Force Majeure Event, it shall be excused from
performance of such of its obligations to the extent it is unable to perform on account
of such Force Majeure Event; provided that:

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

duration than is reasonably required by the Force Majeure Event;
(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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MSIDC, Mumbai.
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Article 22

22 Suspension of Contractor’s Rights

22.1 Suspension upon Contractor Default

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

prejudice to its other rights and remedies under this Agreement including its rights
of Termination hereunder, to (i) suspend carrying out of the Works or Maintenance
or any part thereof, and (ii) carry out such Works or Maintenance itself or authorise
any other person to exercise or perform the same on its behalf during such suspension
(the “Suspension”). Suspension hereunder shall be effective forthwith upon issue of
notice by the Authority to the Contractor and may extend up to a period not exceeding
90 (ninety) days from the date of issue of such notice.

22.2 Authority to act on behalf of Contractor

During the period of Suspension hereunder, all rights and liabilities vested in the
Contractor in accordance with the provisions of this Agreement shall continue to vest
therein and all things done or actions taken, including expenditure incurred by the
Authority for discharging the obligations of the Contractor under and in accordance
with this Agreement shall be deemed to have been done or taken for and on behalf of
the Contractor and the Contractor undertakes to indemnify the Authority for all costs
incurred during such period. The Contractor hereby licences and sub-licences
respectively, the Authority or any other person authorised by it under Clause 22.1 to
use during Suspension, all Intellectual Property belonging to or licensed to the
Contractor with respect to the Project Highway and its design, engineering,
construction and maintenance, and which is used or created by the Contractor in
performing its obligations under the Agreement.

22.3 Revocation of Suspension

(i) In the event that the Authority shall have rectified or removed the cause of
Suspension within a period not exceeding 60 (sixty) days from the date of
Suspension, it shall revoke the Suspension forthwith and restore all rights of the
Contractor under this Agreement. For the avoidance of doubt, the Parties expressly
agree that the Authority may, in its discretion, revoke the Suspension at any time,
whether or not the cause of Suspension has been rectified or removed hereunder.

(ii) Upon the Contractor having cured the Contractor Default within a period not
exceeding 60 (sixty) days from the date of Suspension, the Authority shall revoke
the Suspension forthwith and restore all rights of the Contractor under this
Agreement.

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22.4 Termination

(i) At any time during the period of Suspension under this Article 22, the Contractor
may by notice require the Authority to revoke the Suspension and issue a
Termination Notice. The Authority shall, within 15 (fifteen) days of receipt of such
notice, terminate this Agreement under and in accordance with Article 23.

(ii) Notwithstanding anything to the contrary contained in this Agreement, in the event
that Suspension is not revoked within 90 (ninety) days from the date of Suspension
hereunder, the Agreement shall, upon expiry of the aforesaid period, be deemed to
have been terminated by mutual agreement of the Parties and all the provisions of this
Agreement shall apply, mutatis mutandis, to such Termination as if a Termination
Notice had been issued by the Authority upon occurrence of a Contractor Default.

22.5 Withdrawal of part of the Work:

If the progress of any particular portion of the work during the construction or
maintenance period is unsatisfactory, the Employer shall, notwithstanding the
general progress of the work in accordance with the construction program or
milestones as specified in this contract agreement be entitled to withdraw such part
of work and execute it by any other Contractor at the risk and cost of the contractor
after giving the Contractor 10 days' notice in writing. If any extra cost is involved in
appointing of new contractor to get the part of the Work done, will be recovered from
the contractor. The Contractor will have no claim for compensation for any loss
sustained by him owing to such action.

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MSIDC, Mumbai.
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Article 23

23 Termination

23.1 Termination for Contractor Default

(i) Save as otherwise provided in this Agreement, in the event that any of the defaults
specified below shall have occurred, and the Contractor fails to cure the default
within the Cure Period set forth below, or where no Cure Period is specified, then
within a Cure Period of 60 (sixty) days, the Contractor shall be deemed to be in default
of this Agreement (the “Contractor Default”), unless the default has occurred solely
as a result of any breach of this Agreement by the Authority or due to Force Majeure.
The defaults referred to herein shall include:

(a) the Contractor fails to provide, extend or replenish, as the case may be, the
Performance Security in accordance with this Agreement;
(b) after the replenishment or furnishing of fresh Performance Security in
accordance with Clause 7.3, the Contractor fails to cure, within a Cure Period
of 30 (thirty) days, the Contractor Default for which the whole or part of the
Performance Security was appropriated;
(c) the Contractor does not achieve the latest outstanding Project Milestone due
in accordance with the provisions of Schedule-J, subject to any Time
Extension, and continues to be in default for 45 (forty five) days;
(d) the Contractor abandons or manifests intention to abandon the construction
or Maintenance of the Project Highway without the prior written consent of
the Authority;
(e) the Contractor fails to proceed with the Works in accordance with the
provisions of Clause 10.1 or stops Works and/or the Maintenance for 30
(thirty) days without reflecting the same in the current programme and such
stoppage has not been authorised by the Authority’s Engineer;
(f) the Project Completion Date does not occur within the period specified in
Schedule-J for the Scheduled Completion Date, or any extension thereof;
(g) the Contractor fails to rectify any Defect, the non-rectification of which shall
have a Material Adverse Effect on the Project, within the time specified in
this Agreement or as directed by the Authority’s Engineer;
(h) the Contractor subcontracts the Works or any part thereof in violation of this
Agreement or assigns any part of the Works or the Maintenance without the
prior approval of the Authority;
(i) the Contractor creates any Encumbrance in breach of this Agreement;

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(j) an execution levied on any of the assets of the Contractor has caused a
Material Adverse Effect;
(k) the Contractor is adjudged bankrupt or insolvent, or if a trustee or receiver is
appointed for the Contractor or for the whole or material part of its assets that
has a material bearing on the Project;
(l) the Contractor has been, or is in the process of being liquidated, dissolved,
wound-up, amalgamated or reconstituted in a manner that would cause, in the
reasonable opinion of the Authority, a Material Adverse Effect;
(m) a resolution for winding up or insolvency of the Contractor is passed, or any
petition for winding up or insolvency of the Contractor is admitted by a court
of competent jurisdiction and a provisional liquidator or receiver or interim
resolution professional, as the case may be, is appointed and such order has
not been set aside within 90 (ninety) days of the date thereof or the Contractor
is ordered to be wound up by court except for the purpose of amalgamation
or reconstruction; provided that, as part of such amalgamation or
reconstruction, the entire property, assets and undertaking of the Contractor
are transferred to the amalgamated or reconstructed entity and that the
amalgamated or reconstructed entity has unconditionally assumed the
obligations of the Contractor under this Agreement; and provided that:
i. the amalgamated or reconstructed entity has the capability and experience
necessary for the performance of its obligations under this Agreement;
and
ii. the amalgamated or reconstructed entity has the financial standing to
perform its obligations under this Agreement and has a credit worthiness
at least as good as that of the Contractor as at the Appointed Date;
(n) any representation or warranty of the Contractor herein contained which is,
as of the date hereof, found to be false or the Contractor is at any time
hereafter found to be in breach or non-compliance thereof;
(o) the Contractor submits to the Authority any statement, notice or other
document, in written or electronic form, which has a material effect on the
Authority’s rights, obligations or interests and which is false in material
particulars;
(p) the Contractor has failed to fulfil any obligation, for which failure
Termination has been specified in this Agreement; or
(q) the Contractor commits a default in complying with any other provision of
this Agreement if such a default causes a Material Adverse Effect on the
Project or on the Authority.
(r) gives or offers to give (directly or indirectly) to any person any bribe, gift,
gratuity, commission or other thing of value, as an inducement or reward:

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i. for doing or forbearing to do any action in relation to the Contract, or

ii. for showing or forbearing to show favour or disfavour to any person in
relation to the Contract,
or if any of the Contractor’s personnel, agents or subcontractors gives or
offers to give (directly or indirectly) to any person any such inducement or
reward as is described in this sub-paragraph (s). However, lawful
inducements and rewards to Contractor’s Personnel shall not entitle
termination.

(ii) Without prejudice to any other rights or remedies which the Authority may have
under this Agreement, upon occurrence of a Contractor Default, the Authority shall
be entitled to terminate this Agreement by issuing a Termination Notice to the
Contractor; provided that before issuing the Termination Notice, the Authority shall
by a notice inform the Contractor of its intention to issue such Termination Notice
and grant 15 (fifteen) days to the Contractor to make a representation, and may after
the expiry of such 15 (fifteen) days, whether or not it is in receipt of such
representation, issue the Termination Notice.

(iii) The following shall apply in respect of cure of any of the defaults and/ or breaches
of the Agreement:

(a) The Cure Period shall commence from the date of the notice by the Authority
to the Contractor asking the latter to cure the breach or default specified in
such notice;
(b) The Cure Period provided in the Agreement shall not relieve the Contractor
from liability for Damages caused by its breach or default;
(c) The Cure Period shall not in any way be extended by any period of suspension
under the Agreement;
(d) If the cure of any breach by the Contractor requires any reasonable action by
the Contractor that must be approved by the Authority hereunder the
applicable Cure Period (and any liability of the Contractor for damages
incurred) shall be extended by the period taken by the Authority to accord its
required approval.

(iv) After termination of this Agreement for Contractor Default, the Authority may
complete the Works and/or arrange for any other entities to do so. The Authority and
these entities may then use any Materials, Plant and equipment, Contractor’s
documents and other design documents made by or on behalf of the Contractor.

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23.2 Termination for Authority Default

(i) In the event that any of the defaults specified below shall have occurred, and the
Authority fails to cure such default within a Cure Period of 90 (ninety) days or such
longer period as has been expressly provided in this Agreement, the Authority shall
be deemed to be in default of this Agreement (the “Authority Default”) unless the
default has occurred as a result of any breach of this Agreement by the Contractor or
due to Force Majeure. The defaults referred to herein shall include:

(a) the Authority commits a material default in complying with any of the
provisions of this Agreement and such default has a Material Adverse Effect
on the Contractor;
(b) the Authority has failed to make payment of any amount due and payable to
the Contractor within the period specified in this Agreement;
(c) the Authority has failed to provide, within a period of 180 (one hundred and
eighty) days from the Appointed Date, the environmental clearances required
for construction of the Project Highway;
(d) the Authority becomes bankrupt or insolvent, goes into liquidation, has a
receiving or administration order made against him, compounds with its
creditors, or carries on business under a receiver, trustee or manager for the
benefit of its creditors, or if any act is done or event occurs which (under
Applicable Laws) has a similar effect;
(e) the Authority repudiates this Agreement or otherwise takes any action that
amounts to or manifests an irrevocable intention not to be bound by this
Agreement;
(f) the Authority’s Engineer fails to issue the relevant Interim Payment
Certificate within 60 (sixty) days after receiving a statement and supporting
documents; or
(g) the whole work is suspended by Authority beyond 120 (one hundred twenty)
days for any reason which is not attributed to the Contractor.

(ii) Without prejudice to any other right or remedy which the Contractor may have under
this Agreement, upon occurrence of an Authority Default, the Contractor shall be
entitled to terminate this Agreement by issuing a Termination Notice to the
Authority; provided that before issuing the Termination Notice, the Contractor shall
by a notice inform the Authority of its intention to issue the Termination Notice and
grant 15 (fifteen) days to the Authority to make a representation, and may after the
expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation,
issue the Termination Notice.

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If on the consideration of the Authority’s representation or otherwise, the contractor

does not issue the Termination Notice on such 15th (fifteenth) day and prefers to
continue with the project, it is deemed that the cause of action of the Termination
Notice has been condoned by the Contractor and he would be deemed to have waived
any claim and forfeited any right to any other remedy on that count or in relation to
such action or omission.

23.3 Termination for Authority’s convenience

Notwithstanding anything stated hereinabove, the Authority may terminate this

Agreement for convenience. The termination shall take effect 30 (thirty) days from
the date of notice provided to the Contractor.

23.4 Requirements after Termination

Upon Termination of this Agreement in accordance with the terms of this Article 23,
the Contractor shall comply with and conform to the following:

(a) deliver all relevant records, reports, Intellectual Property and other licences
pertaining to the Works, Maintenance, other design documents;
(b) transfer and/or deliver all Applicable Permits to the extent permissible under
Applicable Laws; and
(c) vacate the Site within 15 (fifteen) days.

23.5 Valuation of Unpaid Works

(i) Within a period of 45 (forty-five) days after Termination under Clause 23.1, 23.2
or 23.3, as the case may be, has taken effect, the Authority’s Engineer shall proceed
in accordance with Clause 18.5 to determine as follows the valuation of unpaid
Works (the “Valuation of Unpaid Works”):

(a) value of the completed stage of the Works, less payments already made;
(b) reasonable value of the partially completed stages of works as on the date of
Termination, only if such works conform with the Specifications and
Standards; and
(c) value of Maintenance, if any, for completed months, less payments already
made, and shall adjust from the sum thereof (i) any other amounts payable or
recoverable, as the case may be, in accordance with the provisions of this
Agreement; and (ii) all taxes due to be deducted at source.

(ii) The Valuation of Unpaid Works shall be communicated to the Authority, with a copy
to the Contractor, within a period of 30 (thirty) days from the date of Termination.

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23.6 Termination Payment

(i) Upon Termination on account of Contractor’s Default under Clause 23.1, the
Authority shall:

(a) encash and appropriate the Performance Security, Additional Performance

Security if any and Retention Money, or in the event the Contractor has failed
to replenish or extend the Performance Security and Additional Performance
Security if any, claim the amount stipulated in Clause 7.1, as agreed pre-
determined compensation to the Authority for any losses, delays and cost of
completing the Works and Maintenance, if any;
(b) encash and appropriate the Bank Guarantee, if any, for and in respect of the
outstanding Advance Payment and interest thereon; and
(c) pay to the Contractor, by way of Termination Payment, an amount equivalent
to the Valuation of Unpaid Works after adjusting any other sums payable or
recoverable, as the case may be, in accordance with the provisions of this
Agreement.

(ii) Upon Termination on account of an Authority Default under Clause 23.2 or for
Authority’s convenience under Clause 23.3, the Authority shall:

(a) return the Performance Security, Additional Performance Security and

Retention Money forthwith;
(b) encash and appropriate the bank guarantee, if any, for and in respect of the
outstanding Advance Payment; and
(c) pay to the Contractor, by way of Termination Payment, an amount equal to:
i. Valuation of Unpaid Works;
ii. the reasonable cost of temporary works, as determined by the Authority’s
Engineer; and
iii. 10% (ten per cent) of the cost of the Works and Maintenance that are not
commenced or not completed,
and shall adjust from the sum thereof (i) any other amounts payable or
recoverable, as the case may be, in accordance with the provisions of this
Agreement, and (ii) all taxes due to be deducted at source.

(iii) Termination Payment shall become due and payable to the Contractor within 30
(thirty) days of a demand being made by the Contractor to the Authority with the
necessary particulars, and in the event of any delay, the Authority shall pay interest
at Bank Rate + 3% per annum, on the amount of Termination Payment remaining
unpaid; provided that such delay shall not exceed 90 (ninety) days. For the avoidance

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of doubt, it is expressly agreed that Termination Payment shall constitute full

discharge by the Authority of its payment obligations in respect thereof hereunder.

(iv) The Contractor expressly agrees that Termination Payment under this Article 23 shall
constitute a full and final settlement of all claims of the Contractor on account of
Termination of this Agreement and that it shall not have any further right or claim
under any law, treaty, convention, contract or otherwise.

23.7 Other rights and obligations of the Parties

Upon Termination for any reason whatsoever:

(a) property and ownership in all Materials, Plant and Works and the Project
Highway shall, as between the Contractor and the Authority, vest in the
Authority in whole; provided that the foregoing shall be without prejudice to
Clause 23.6;
(b) risk of loss or damage to any Materials, Plant or Works and the care and
custody thereof shall pass from the Contractor to the Authority; and
(c) the Authority shall be entitled to restrain the Contractor and any person
claiming through or under the Agreement from entering upon the Site or any
part of the Project, which have not been vested in the Authority in accordance
with the provisions of this Agreement.

23.8 Survival of rights

Notwithstanding anything to the contrary contained in this Agreement any

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

23.9 Foreclosure with mutual consent

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

(ii) Should a Party intend to foreclose this Agreement by mutual consent, the intending
Party shall issue a notice to the other Party and upon issuance of such notice, the

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other Party may within 15 days from receipt of such notice either agree to such
foreclosure or raise objection(s) to the same by intimating either of the two possible
positions to the intending Party in writing.

(iii) In either case of the other Party agreeing to the proposed foreclosure or otherwise,
the Parties may negotiate the proposed foreclosure and sign a Supplementary
Agreement for foreclosure to the main Contract Agreement within 30 (thirty) days
of the date agreeing by both Parties. Foreclosure shall not come into effect unless and
otherwise Supplementary Agreement is signed.

(iv) Any attempt or endeavor for foreclosure by mutual agreement shall be without
prejudice to the rights and obligations of the Parties herein and the factum of such an
attempt or exercise shall not stop either of the Parties from discharging their
contractual obligations under this Agreement.

(v) For the avoidance of doubt, it is clarified that such foreclosure will be without
prejudice to the Contractor and shall not affect the Contractor in any way if it wishes
to bid in future projects of the Authority.

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MSIDC, Mumbai.
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Part VI

Other Provisions

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Article 24

24 Assignment and Charges

24.1 Restrictions on assignment and charges

This Agreement shall not be assigned by the Contractor to any person, save and
except with the prior consent in writing of the Authority, which consent the Authority
shall be entitled to decline without assigning any reason.

24.2 Hypothecation of Materials or Plant

Notwithstanding the provisions of Clause 24.1, the Contractor may pledge or

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

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Article 25

25 Liability and Indemnity

25.1 General indemnity

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

25.2 Indemnity by the Contractor

(i) Without limiting the generality of Clause 25.1, the Contractor shall fully indemnify,
hold harmless and defend the Authority and the Authority Indemnified Persons from
and against any and all loss and/or damages arising out of or with respect to:

(a) failure of the Contractor to comply with Applicable Laws and Applicable
Permits;
(b) payment of taxes required to be made by the Contractor in respect of the
income or other taxes of the Sub-contractors, suppliers and representatives;
or
(c) non-payment of amounts due because of Materials or services furnished to
the Contractor or any of its Sub-contractors which are payable by the
Contractor or any of its Sub-contractors.

(ii) Without limiting the generality of the provisions of this Article 25, the Contractor
shall fully indemnify, hold harmless and defend the Authority Indemnified Persons
from and against any and all suits, proceedings, actions, claims, demands, liabilities
and damages which the Authority Indemnified Persons may hereafter suffer, or pay
by reason of any demands, claims, suits or proceedings arising out of claims of
infringement of any domestic or foreign patent rights, copyrights or other intellectual
property, proprietary or confidentiality rights with respect to any materials,
information, design or process used by the Contractor or by the Sub-contractors in
performing the Contractor’s obligations or in any way incorporated in or related to
the Project. If in any such suit, action, claim or proceedings, a temporary restraint

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order or preliminary injunction is granted, the Contractor shall make every

reasonable effort, by giving a satisfactory bond or otherwise, to secure the revocation
or suspension of the injunction or restraint order. If, in any such suit, action, claim or
proceedings, the Project Highway, or any part thereof or comprised therein, is held
to constitute an infringement and its use is permanently enjoined, the Contractor shall
promptly make every reasonable effort to secure for the Authority a licence, at no
cost to the Authority, authorising continued use of the infringing work. If the
Contractor is unable to secure such licence within a reasonable time, the Contractor
shall, at its own expense, and without impairing the Specifications and Standards,
either replace the affected work, or part, or process thereof with non-infringing work
or part or process or modify the same so that it becomes non-infringing.

25.3 Notice and contest of claims

In the event that either Party receives a claim or demand from a third party in respect
of which it is entitled to the benefit of an indemnity under this Article 25 (the
“Indemnified Party”) it shall notify the other Party (the “Indemnifying Party”)
within 15 (fifteen) days of receipt of the claim or demand and shall not settle or pay
the claim without the prior approval of the Indemnifying Party, which approval shall
not be unreasonably withheld or delayed. If the Indemnifying Party wishes to contest
or dispute the claim or demand, it may conduct the proceedings in the name of the
Indemnified Party, subject to the Indemnified Party being secured against any costs
involved, to its reasonable satisfaction.

25.4 Defence of claims

(i) The Indemnified Party shall have the right, but not the obligation, to contest, defend
and litigate any claim, action, suit or proceeding by any third party alleged or asserted
against such Party in respect of, resulting from, related to or arising out of any matter
for which it is entitled to be indemnified hereunder, and reasonable costs and expenses
thereof shall be indemnified by the Indemnifying Party. If the Indemnifying Party
acknowledges in writing its obligation to indemnify the Indemnified Party in respect
of loss to the full extent provided by this Article 25, the Indemnifying Party shall be
entitled, at its option, to assume and control the defence of such claim, action, suit or
proceeding, liabilities, payments and obligations at its expense and through the
counsel of its choice; provided it gives prompt notice of its intention to do so to the
Indemnified Party and reimburses the Indemnified Party for the reasonable cost and
expenses incurred by the Indemnified Party prior to the assumption by the
Indemnifying Party of such defence. The Indemnifying Party shall not be entitled to
settle or compromise any claim, demand, action, suit or proceeding without the prior
written consent of the Indemnified Party, unless the Indemnifying Party provides
such security to the Indemnified Party as shall be reasonably required by the
Indemnified Party to secure the loss to be indemnified hereunder to the extent so
compromised or settled.
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(ii) If the Indemnifying Party has exercised its rights under Clause 25.3, the Indemnified
Party shall not be entitled to settle or compromise any claim, action, suit or
proceeding without the prior written consent of the Indemnifying Party (which
consent shall not be unreasonably withheld or delayed).

(iii) If the Indemnifying Party exercises its rights under Clause 25.3, the Indemnified
Party shall nevertheless have the right to employ its own counsel, and such counsel
may participate in such action, but the fees and expenses of such counsel shall be at
the expense of the Indemnified Party, when and as incurred, unless:

(a) the employment of counsel by such party has been authorised in writing by
the Indemnifying Party; or
(b) the Indemnified Party shall have reasonably concluded that there may be a
conflict of interest between the Indemnifying Party and the Indemnified Party
in the conduct of the defence of such action; or
(c) the Indemnifying Party shall not, in fact, have employed independent counsel
reasonably satisfactory to the Indemnified Party, to assume the defence of
such action and shall have been so notified by the Indemnified Party; or
(d) the Indemnified Party shall have reasonably concluded and specifically
notified the Indemnifying Party either:
i. that there may be specific defences available to it which are different from
or additional to those available to the Indemnifying Party; or
ii. that such claim, action, suit or proceeding involves or could have a
material adverse effect upon it beyond the scope of this Agreement:

Provided that if Sub-clauses (b), (c) or (d) of this Clause 25.4 (iii) shall be applicable,
the counsel for the Indemnified Party shall have the right to direct the defence of
such claim, demand, action, suit or proceeding on behalf of the Indemnified Party,
and the reasonable fees and disbursements of such counsel shall constitute legal or
other expenses hereunder.

25.5 Survival on Termination

The provisions of this Article 25 shall survive Termination.

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MSIDC, Mumbai.
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Article 26

26 Dispute Resolution

26.1 Dispute Resolution

26.1.1 In the event of 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”) either Party may call upon the Authority Engineer, to mediate and assist
the Parties in arriving at an amicable settlement thereof.

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 Dispute Review Board (DB);

26.2 (i)

a) The Parties shall appoint a Dispute Review Board comprising of 3 (three)

suitably qualified persons (the “DRB Members”) each of whom shall be fluent in
English language with a professional experience in the matters with respect to
contractual obligations in construction and operation of highways, within 3 months
of signing of the Agreement, wherein each Party shall nominate one member for the
approval of the other Party. The first two members shall recommend and the Parties
shall agree upon the third member, who shall act as chairman.

b) The terms of the remuneration of each of the three members, including the
remuneration of any expert whom the Dispute Review Board consults, shall be
mutually agreed upon by the Parties when agreeing the terms of appointment. Each
Party shall be responsible for paying one-half of this remuneration. The other terms
and conditions of the appointment shall be substantially in the form appended to this
Agreement as General Terms and Conditions of appointment and shall be appended
to the appointment letter.

26.2.(ii)

a) If at any time the Parties so agree, they may jointly refer a matter to the
Dispute Review Board for it to give its opinion. Neither Party shall consult the
Dispute Review Board on any matter for an opinion without the agreement of the
other Party.

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b) If a member declines to act or is unable to act as a result of death, disability,

resignation or termination of appointment, a replacement shall be appointed in the
same manner as the DRB Members are appointed within 42 days of such death,
disability, resignation or termination.

c) The appointment of any member may be terminated by mutual agreement of

both Parties, but not by the Authority or the Contractor acting alone. Unless
otherwise agreed by both Parties, the appointment of the Dispute Review Board
(including each member) shall expire on termination of this Agreement.

26.2.(iii)

(a) If Dispute (of any kind whatsoever) arises between the Parties in connection
with, or arising out of, the Agreement, including any Dispute as to any certificate,
determination, instruction, opinion or valuation of the Authority’s Engineer, either
Party may refer the Dispute in writing to the Dispute Review Board for its decision,
with copies to the other Party and the Authority’s. Such reference shall state that it
is given under this Clause.

(b) The Dispute Review Board shall be deemed to have received such reference
on the date when it is received by the chairman of the Dispute Review Board. Both
Parties shall promptly make available to the Dispute Review Board all such
additional information, further access to the Site, and appropriate facilities, as the
Dispute Review Board may require for the purposes of making a decision on such
Dispute. The Dispute Review Board shall be deemed to be not acting as arbitrators.

(c) Within 84 (eighty four) days after receiving such reference, or within such
other period not exceeding additional 30 (thirty) days as may be proposed by the
Dispute Review Board and approved by both Parties, the Dispute Review Board shall
give its decision, which shall be reasoned and shall state that it is given under this
Clause.

26.2 (iv). The decision shall be binding on both Parties, who shall promptly give
effect to it, provided that the Contractor shall continue to proceed with the works/
perform its obligations in accordance with this Agreement.

26.2 (v)

a) If either Party is dissatisfied with the Dispute Review Board’s decision, then
either Party may, within 28 (twenty eight) days after receiving the decision, give
notice to the other Party of its dissatisfaction and intention to commence arbitration.
If the Dispute Review Board fails to give its decision within the period of 84 (eighty
four) days (or as otherwise approved) after receiving such reference, then either Party
may, within 28 (twenty eight) days after this period has expired, give notice to the

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other Party of its dissatisfaction and intention to commence arbitration accordance

with clause 26.4.

b) In either event, this notice of dissatisfaction shall state that it is given under
this Sub-Clause, and shall set out the matter in Dispute and the reason(s) for
dissatisfaction. If the Dispute Review Board has given its decision as to a matter in
Dispute to both Parties, and no notice of dissatisfaction has been given by either Party
within 28 days after it received the Dispute Review Board’s decision, then the
decision shall become final and binding upon both the Parties.

26.3 Conciliation

If either the employer (i.e. Authority) or the Contractor is dissatisfied with any
decision of the DB, and/ or if the DB is unable to resolve the dispute, either Party
may refer the Dispute to arbitration in accordance with the provisions of Clause 26.4
but before resorting to such arbitration, the parties agree to explore conciliation by
the Conciliation Committees of Independent Experts set up by the Authority in
accordance with the procedure decided by the panel of such experts and notified by
the Authority on its website including its subsequent amendments. In the event of the
conciliation proceedings being successful, the parties to the dispute would sign the
written settlement agreement and the conciliators would authenticate the same. Such
settlement agreement would then be binding on the parties in terms of Section 73 of
the Arbitration Act. In case of failure of the conciliation process even at the level of
the Conciliation Committee, either party may refer the Dispute to arbitration in
accordance with the provisions of Clause 26.4.

26.4 Arbitration

26.4.1 Any Dispute which is not resolved by Conciliation, as provided in Clause 26.3,
shall be finally decided by reference to arbitration by a Board of Arbitrators
appointed in accordance with Clause 26.4.2. Any dispute between the Parties
arising out of or in connection with the Contract not settled in respect of which
the DB’s decision per Clause 26.2 (ii) has not become final and binding shall be
finally settled by arbitration. The seat of arbitration shall be the neutral location to
be agreed between the parties.

26.4.2 Disputes shall be settled by arbitration in accordance with the following

provisions:

a. Selection of Arbitrators – Each dispute submitted by a Party to arbitration shall be

heard by an arbitration tribunal composed of three (3) arbitrators, in accordance with
the following provisions:

i. The Authority and the Contractor shall each appoint one (1) arbitrator, and
these two arbitrators shall jointly appoint a third arbitrator, who shall chair
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the arbitration tribunal. If the arbitrators named by the Parties do not succeed
in appointing a third arbitrator within thirty (30) days after the latter of the
two (2) arbitrators named by the Parties has been appointed, the appointment
shall be done in accordance with the provision of the SIAC Arbitration Rule
for foreign Contractor and Arbitration and Conciliation Act 1996 of India
for domestic contractor.
ii. If, in a dispute subject to paragraph (a) above, one Party fails to appoint its
arbitrator within thirty (30) days after the other Party has appointed its
arbitrator, the Party which has appointed its arbitrator, the party may take
recourse to the provision of SIAC Arbitration Rule for foreign Contractor and
Arbitration and Conciliation Act 1996 of India for domestic contractor.

b. Rules of Procedure –

If the Contract is with a domestic contractor, arbitration proceedings shall be

conducted in accordance with the procedure of the Arbitration and Conciliation Act
1996 of India.

c. Substitute Arbitrators – If for any reason an arbitrator is unable to perform his/her

function, a substitute shall be appointed in the same manner as the original arbitrator.

Nationality and Qualification of Arbitrators – the Arbitrators appointed pursuant

to paragraphs 1(a) through 1(b) above shall be a legal or technical expert with
extensive experience in relation to the matter in dispute.

26.5 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 26.4, 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

27 Miscellaneous

27.1 Governing law and jurisdiction

This Agreement shall be construed and interpreted in accordance with and governed
by the laws of India, and the courts at [Mumbai] shall have exclusive jurisdiction
over matters arising out of or relating to this Agreement.

27.2 Waiver of immunity

Each Party unconditionally and irrevocably:

(a) agrees that the execution, delivery and performance by it of this Agreement
constitute commercial acts done and performed for commercial purpose;
(b) agrees that, should any proceedings be brought against it or its assets,
property or revenues in any jurisdiction in relation to this Agreement or any
transaction contemplated by this Agreement, no immunity (whether by reason
of sovereignty or otherwise) from such proceedings shall be claimed by or on
behalf of the Party with respect to its assets;
(c) waives any right of immunity which it or its assets, property or revenues now
has, may acquire in the future or which may be attributed to it in any
jurisdiction; and
(d) consents generally in respect of the enforcement of any judgement or award
against it in any such proceedings to the giving of any relief or the issue of
any process in any jurisdiction in connection with such proceedings
(including the making, enforcement or execution against it or in respect of
any assets, property or revenues whatsoever irrespective of their use or
intended use of any order or judgement that may be made or given in
connection therewith).

27.3 Delayed payments

The Parties hereto agree that payments due from one Party to the other Party under
the provisions of this Agreement shall be made within the period set forth therein,
and if no such period is specified, within 30 (thirty) days of receiving a 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
Bank Rate plus 3 (Three) percent, calculated at quarterly rests, and recovery thereof
shall be without prejudice to the rights of the Parties under this Agreement including
Termination thereof.

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27.4 Waiver

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

(a) shall not operate or be construed as a waiver of any other or subsequent default
hereof or of other provisions of or obligations under this Agreement;
(b) shall not be effective unless it is in writing and executed by a duly authorised
representative of the Party; and
(c) shall not affect the validity or enforceability of this Agreement in any manner.

(ii) Neither the failure by either Party to insist on any occasion upon the performance of
the terms, conditions and provisions of this Agreement or any obligation thereunder
nor time or other indulgence granted by a Party to the other Party shall be treated or
deemed as waiver of such breach or acceptance of any variation or the relinquishment
of any such right hereunder.

27.5 Liability for review of Documents and Drawings

Except to the extent expressly provided in this Agreement:

(a) no review, comment or approval by the Authority or the Authority’s Engineer

of any Document or Drawing submitted by the Contractor nor any
observation or inspection of the construction, or maintenance of the Project
Highway nor the failure to review, approve, comment, observe or inspect
hereunder shall relieve or absolve the Contractor from its obligations, duties
and liabilities under this Agreement, the Applicable Laws and Applicable
Permits; and
(b) the Authority shall not be liable to the Contractor by reason of any review,
comment, approval, observation or inspection referred to in Sub-clause (a)
above.

27.6 Exclusion of implied warranties etc.

This Agreement expressly excludes any warranty, condition or other undertaking

implied at law or by custom or otherwise arising out of any other agreement between
the Parties or any representation by either Party not contained in a binding legal
agreement executed by both Parties.

27.7 Survival

(i) Termination shall:

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(a) not relieve the Contractor or the Authority, as the case may be, of any
obligations hereunder which expressly or by implication survive Termination
hereof; and
(b) except as otherwise provided in any provision of this Agreement expressly
limiting the liability of either Party, not relieve either Party of any obligations
or liabilities for loss or damage to the other Party arising out of, or caused by,
acts or omissions of such Party prior to the effectiveness of such Termination
or arising out of such Termination.

(ii) All obligations surviving Termination shall only survive for a period of 3 (three)
years following the date of such Termination.

27.8 Entire Agreement

This Agreement and the Schedules together constitute a complete and exclusive
statement of the terms of the agreement between the Parties on the subject hereof,
and no amendment or modification hereto shall be valid and effective unless such
modification or amendment is agreed to in writing by the Parties and duly executed
by persons especially empowered in this behalf by the respective Parties. All prior
written or oral understandings, offers or other communications of every kind
pertaining to this Agreement are abrogated and withdrawn. For the avoidance of
doubt, the Parties hereto agree that any obligations of the Contractor arising from the
Request for Proposals, shall be deemed to form part of this Agreement and treated as
such.

27.9 Severability

If for any reason whatever, any provision of this Agreement is or becomes invalid,
illegal or unenforceable or is declared by any court of competent jurisdiction or any
other instrumentality to be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions shall not be affected in any manner, and
the Parties will negotiate in good faith with a view to agreeing to one or more
provisions which may be substituted for such invalid, unenforceable or illegal
provisions, as nearly as is practicable to such invalid, illegal or unenforceable
provision. Failure to agree upon any such provisions shall not be subject to the
Dispute Resolution Procedure set forth under this Agreement or otherwise.

27.10 No partnership

This Agreement shall not be interpreted or construed to create an association, joint

venture or partnership between the Parties, or to impose any partnership obligation
or liability upon either Party, and neither Party shall have any right, power or authority
to enter into any agreement or undertaking for, or act on behalf of, or to act as or be
an agent or representative of, or to otherwise bind, the other Party.

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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

Unless the law requires to follow the specified mode of communication only as
prescribed therein, any notice or other communication to be given by one contracting
Party to the other Party under or in connection with the matters contemplated by this
Agreement shall be routed through Maharashtra State Infrastructure Development
Corporation under the hands of a duly authorized representative and shall:

(a) in the case of the Contractor, be given through Maharashtra State

Infrastructure Development Corporation 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;
{Attention:
Designation:
Address:
Fax No.
E-mail;}
(b) in the case of the Authority, be through Maharashtra State Infrastructure
Development Corporation and be addressed to the Managing Director’s
Department of the Authority or such other person as the Authority may from
time to time designate by notice to the Contractor;
{Attention:
Designation:
Address:
Fax No.
E-mail;}
(c) any notice or communication by one contracting Party to the other Party,
given in accordance herewith, shall be deemed to have been delivered when
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given through or made on the Maharashtra State Infrastructure Development

Corporation.

27.14 Language

All notices required to be given by one Party to the other Party and all other
communications, Documentation and proceedings which are in any way relevant to
this Agreement shall be in writing and in English language.

27.15 Counterparts

This Agreement may be executed in two counterparts, each of which, when executed
and delivered, shall constitute an original of this Agreement.

27.16 Confidentiality

The Parties shall treat the details of this Agreement as private and confidential, except
to the extent necessary to carry out obligations under it or to comply with Applicable
Laws. The Contractor shall not publish, permit to be published, or disclose any
particulars of the Works in any trade or technical paper or elsewhere without the
previous agreement of the Authority.

27.17 Copyright and Intellectual Property rights

(i) As between the Parties, the Contractor shall retain the copyright and other Intellectual
Property rights in the Contractor's documents and other design documents made by
(or on behalf of) the Contractor. The Contractor shall be deemed (by signing this
Agreement) to give to the Authority a non-terminable transferable non-exclusive
royalty-free licence to copy, use and communicate the Contractor's documents,
including making and using modifications of them. This licence shall:

(a) apply throughout the actual or intended working life (whichever is longer) of
the relevant parts of the Works;
(b) entitle any person in proper possession of the relevant part of the Works to
copy, use and communicate the Contractor's documents for the purposes of
completing, operating, maintaining, altering, adjusting, repairing and
demolishing the Works; and
(c) in the case of Contractor's documents which are in the form of computer
programs and other software, permit their use on any computer on the Site
and other places as envisaged by this Agreement, including replacements of
any computers supplied by the Contractor.

(ii) The Contractor's documents and other design documents made by (or on behalf of)
the Contractor shall not, without the Contractor's consent, be used, copied or

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communicated to a third party by (or on behalf of) the Authority for purposes other
than those permitted under this Clause 27.17.

(iii) As between the Parties, the Authority shall retain the copyright and other intellectual
property rights in this Agreement and other documents made by (or on behalf of) the
Authority. The Contractor may, at its cost, copy, use, and obtain communication of
these documents for the purposes of this Agreement. They shall not, without the
Authority's consent, be copied, used or communicated to a third party by the
Contractor, except as necessary for the purposes of the contract.

27.18 Limitation of Liability

(i) Neither Party shall be liable to the other Party for loss of use of any Works, loss of
profit, loss of any contract or for any indirect or consequential loss or damage which
may be suffered by the other Party in connection with this Agreement, save and
except as provided under Articles 23 and 25.

(ii) The total liability of one Party to the other Party under and in accordance with the
provisions of this Agreement, save and except as provided in Articles 23 and 25,
shall not exceed the Contract Price. For the avoidance of doubt, this Clause shall not
limit the liability in any case of fraud, deliberate default or reckless misconduct by
the defaulting Party.

27.19 Care and Supply of Documents

(i) Each of the Contractor’s documents shall be in the custody and care of the
Contractor, unless and until taken over by the Authority. Unless otherwise stated in
the Agreement, the Contractor shall supply to the Authority 2 (two) copies of the
each of the Contractor’s documents.

(ii) The Contractor shall keep, on the Site, a copy of the Agreement, publication named
in the Authority’s requirements, the Contractor’s documents, and variations and
other communications given under the Agreement. The Authority’s personnel shall
have the right of access to all these documents at all reasonable times.

(iii) If a Party becomes aware of an error or defect of a technical nature in a document

which was prepared for use in executing the Works, the Party shall promptly give
notice to the other party of such error or defect.

27.20 Authority’s Use of Contractor’s Documents.

(i) As between the Parties, the Contractor shall retain the copyright and other Intellectual
Property rights in the Contractor’s Documents and other design documents made by
(or on behalf of) the Contractor.

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(ii) The Contractor hereby gives to the Authority a non-terminable transferable

nonexclusive royalty-free license to copy, use and communicate the Contractor’s
Documents, including making and using modifications of them. This license shall:

(a) apply through out the actual or intended working life (whichever is longer)
of the relevant parts of the Works,
(b) entitle any person in proper possession of the relevant part of the Works to
copy, use and communicate the Contractor’s Documents for the purposes of
completing, operating, maintaining, altering, adjusting, repairing and
demolishing the Works, and
(c) in the case of Contractor’s Documents which are in the form of computer
programs and other software, permit their use on any computer on the Site
and other places as envisaged by the Contractor, including replacements of
any computers supplied by the Contractor.

(iii) The Contractor’s Documents and other design documents made by or on behalf of
the Contractor shall not, without the Contractor’s consent, be used, copied or
communicated to a third party by (or on behalf of) the Authority for purposes other
than those permitted under this Sub-Clause.

27.21 Contractor’s Use of Authority’s Documents

As between the Parties, the Authority shall retain the copyright and other intellectual
property rights in the Authority’s requirements and other Documents made by (or on
behalf of) the Authority. The Contractor may, at its cost copy, use, and obtain
communication of these documents for the purpose of the Agreement. They shall not
without the Authority’s consent, be copied, used or communicating to a third party
by the Contractor, except as necessary for the purposes of the Agreement.

27.22 Access to the Site by Others

The Contractor shall, at all times, afford access to the Site to the authorized
representatives of the Authority, the Authority’s Engineer and anyone else
authorized by the Authority to access the site and to the persons duly authorized by
any Governmental Agency having jurisdiction over the Project, including those
concerned with safety, security or environmental protection to inspect the Project
Highway and to investigate any matter within their authority and upon reasonable
notice, the Contractor shall provide to such persons reasonable assistance necessary
to carry out their respective duties and functions with minimum disruption to the
construction, operation and maintenance of the Project Highway consistent with the
purpose for which such persons have gained such access to the Site.

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27.23 Term

This Agreement shall come into force and effect from the date first hereinabove
written and shall remain in force and effect till the Termination Date i.e. the Parties
perform all their respective obligations or is terminated by any of the Parties for the
reasons and in the manner provided for in the Agreement.

27.24 Amendments

The Agreement may not be supplemented, amended, modified or changed except by

an instrument in writing signed by the Contractor and the Authority and expressed to
be a supplement, modification or change to the Agreement.

27.25 Representation and Bribes

The Contractor represents and warrants to the Authority that:

(a) No representation or warranty by the Contractor contained herein or in any

other document furnished by it to the Authority, or to any Governmental
Instrumentality in relation to Applicable Permits contains or will contain any
untrue statement of material fact or omits or will omit to state a material fact
necessary to make such representation or warranty not misleading; and
(b) It warrants that no sums, in cash or kind, have been paid or will be paid by or
on behalf of the Contractor, to any person by way of fees, commission or
otherwise for securing or entering into the Contractor for influencing or
attempting to influence any officer or employee of the Authority or GOI in
connection therewith.

27.26 No Agency

The Agreement does not constitute either Party as the agent, partner or legal
representative of the other for any purposes whatsoever, and neither Party shall have
any express or implied right or authority to assume or to create any obligation or
responsibility on behalf of or in the name of the other Party.

27.27 Stamp Duty & Registration Charges

Stamp Duty & Registration Charges shall be borne by the contractor. The registration
shall be executed within fifteen days from the signing of the agreement.

27.28 Insurance

No payment shall be admissible unless the insurance is compiled as per Article 20.

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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

[MAHARASHTRA STATE [THE CONTRACTOR] by:

INFRASTRUCTURE DEVELOPMENT

CORPORATION] by:

(Signature) (Signature)

(Name) (Name)

(Designation) (Designation)

In the presence 1.

2.

{COUNTERSIGNED and accepted by:

Name and Particulars of other members of the Consortium}

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28 Schedules

160