h

EPC Agreement

Engineering, Procurement and

Construction (EPC) Agreement for
Redevelopment of Varkala Sivagiri
Railway Station of Thiruvananthapuram
Division of Southern Railway.

CHIEF ADMINISTRATIVE OFFICER (CONSTRUCTION)

SOUTHERN RAILWAY
ERNAKULAM, FIRST FLOOR, GCDA
EASTERN ENTRY TOWER,
ERNAKULAM JUNCTION,
ERNAKULAM -682016

Signature Not
Verified
Digitally signed by
SOUMYA S
Date: 2023.08.20
17:17:06 IST
Reason: IREPS-CRIS
Location: New Delhi
 Contents
PART I
Preliminary 1

Recitals 2

1 Definitions and Interpretation 4

1.1 Definitions 4
1.2 Interpretation 12
1.3 Measurements and arithmetic conventions 14
1.4 Priority of agreements and errors/discrepancies 14
1.5 Joint and several liability 15

PART II
Scope of the Project 16

2 Scope of the Project 17

2.1 Scope of the Project 17

3 Obligations of the Contractor 18

3.1 Obligations of the Contractor 18
3.2 Obligations relating to sub-contracts and any other agreements 20
3.3 Employment of foreign nationals 21
3.4 Contractor’s personnel 22
3.5 Advertisement on Project 22
3.6 Contractor’s care of the Works 22
3.7 Electricity, water and other services 22
3.8 Unforeseeable difficulties 22
3.9 Training of Authority’s personnel 22
3.10 Safety at work site 23
3.11 Operation of Existing Railway Station 23
3.12 Environmental Measures 23

4 Obligations of the Authority 24

4.1 Obligations of the Authority 24
4.2 Maintenance and operation of the existing facilities 25
4.3 Environmental and Forest Clearances 25
4.4 Machinery and equipment 26
4.5 Deleted 26
4.6 Deleted 26
4.7 Provision of Power Block sand Traffic Blocks 26

5 Representations and Warranties 28

5.1 Representations and warranties of the Contractor 28
5.2 Representations and warranties of the Authority 29
5.3 Disclosure 30
 6 Disclaimer 31
6.1 Disclaimer 31

PART III
Construction 32

7 Performance Security 33
7.1 Performance Security 33
7.2 Extension of Performance Security 34
7.3 Appropriation of Performance Security 34
7.4 Release of Performance Security 34
7.5 Retention Money 34

8 Right of Way 36
8.1 The Site 36
8.2 Procurement of the Site 36
8.3 Damages for delay in handing over the Site 37
8.4 Site to be free from Encumbrances 38
8.5 Protection of Site from encroachments 39
8.6 Special/temporary Right of Way 39
8.7 Access to the Authority and the Authority Engineer 39
8.8 Geological and archaeological finds 39

9 Utilities and Trees 41

9.1 Existing utilities and roads 41
9.2 Shifting of obstructing utilities 41
9.3 New utilities 41
9.4 Felling of trees 42

10 Design and Construction of the Project 43

10.1 Obligations prior to commencement of Works 43
10.2 Design and Drawings 45
10.3 Construction of the Project 48
10.4 Extension of time for completion 49
10.5 Incomplete Works 50
10.6 Equipment specific Maintenance Manual 50

11 Quality Assurance, Monitoring and Supervision 51

11.1 Quality of Materials and workmanship 51
11.2 Quality control system 51
11.3 Methodology 52
11.4 Inspection and technical audit by the Authority 52
11.5 External technical audit 52
11.6 Inspection of construction records 52
11.7 Monthly progress reports 52
11.8 Inspection 53
11.9 Samples 53
11.10 Tests 53
11.11 Examination of work before covering up 54
11.12 Rejection 54
11.13 Remedial work 55
11.14 Delays during construction 55
11.15 Quality control records and Documents 56
11.16 Video recording 56
11.17 Suspension of unsafe Construction Works 56

12 Completion Certificate 57
12.1 Tests on completion 57
12.2 Provisional Certificate 57
12.3 Completion of Punch List items 58
12.4 Completion Certificate 59
12.5 Rescheduling of Tests 59
12.6 Delayed authorisation 59

13 Change of Scope 60
13.1 Change of Scope 60
13.2 Procedure for Change of Scope 60
13.3 Payment for Change of Scope 62
13.4 Restrictions on Change of Scope 62
13.5 Power of the Authority to undertake works 62

14 Traffic Regulation 63
14.1 Traffic regulation by the Contractor 63

15 Defects Liability 64
15.1 Defects Liability Period 64
15.2 Remedy and rectification of Defects and deficiencies 64
15.3 Cost of remedying Defects 65
15.4 Contractor’s failure to rectify Defects 65
15.5 Contractor to search cause 65
15.6 Extension of Defects Liability Period 65

16 Authority Engineer 67
16.1 Appointment of the Authority Engineer 67
16.2 Duties and functions of the Authority Engineer 67
16.3 Authorised signatories 68
16.4 Instructions of the Authority Engineer 68
16.5 Determination by the Authority Engineer 68
16.6 Remuneration of the Authority Engineer 69
16.7 Replacement of the Authority Engineer 69
16.8 Interim arrangement 69
PART IV
Financial Covenants 70

17 Payments 71
17.1 Contract Price 71
17.2 Advance Payment 71
17.3 Procedure for estimating the payment for the Works 72
17.4 Stage Payment Statement for Works 73
17.5 Stage Payment for Works 73
17.6 Payment of Damages 74
17.7 Time of payment and interest 74
17.8 Price adjustment for the Works 75
17.9 Restrictions on price adjustment 77
17.10 Final Payment Statement 77
17.11 Discharge 78
17.12 Final Payment Certificate 78
17.13 Change in law 78
17.14 Correction of Interim Payment Certificates 79
17.15 Authority’s claims 79
17.16 Bonus for early completion 79

18 Insurance 80
18.1 Insurance for Works 80
18.2 Notices to the Authority 81
18.3 Evidence of Insurance Cover 81
18.4 Remedy for failure to insure 81
18.5 Waiver of subrogation 81
18.6 Contractor’s waiver 82
18.7 Cross liabilities 82
18.8 Accident or injury to workmen 82
18.9 Insurance against accident to workmen 82
18.10 Application of insurance proceeds 83
18.11 Compliance with policy conditions 83

Part V
Force Majeure and Termination 84

19 Force Majeure 85
19.1 Force Majeure 85
19.2 Non-Political Event 85
19.3 Indirect Political Event 86
19.4 Political Event 86
19.5 Duty to report Force Majeure Event 87
19.6 Effect of Force Majeure Event on the Agreement 87
19.7 Termination Notice for Force Majeure Event 88
19.8 Termination Payment for Force Majeure Event 89

19.9 Dispute resolution 89

 19.10 Excuse from performance of obligations 89

20 Suspension of Contractor’s Rights 90

20.1 Suspension upon Contractor Default 90
20.2 Authority to act on behalf of Contractor 90
20.3 Revocation of Suspension 90
20.4 Termination 90

21 Termination 92
21.1 Termination for Contractor Default 92
21.2 Termination for Authority Default 94
21.3 Right of Authority to determine the Agreement 94
21.4 Requirements after Termination 95
21.5 Valuation of Unpaid Works 95
21.6 Termination Payment 95
21.7 Other rights and obligations of the Parties 96
21.8 Survival of rights 97

PART VI
Other Provisions 98

22 Assignment and Charges 99

22.1 Restrictions on assignment and charges 99
22.2 Hypothecation of Materials or Plant 99

23 Liability and Indemnity 100

23.1 General indemnity 100
23.2 Indemnity by the Contractor 100
23.3 Notice and contest of claims 101
23.4 Defence of claims 101
23.5 No consequential claims 102
23.6 Survival on Termination 102

24 Dispute Resolution 103

24.1 Conciliation of Disputes 103
24.2 Dispute Adjudication Board(DAB) 103
24.3 Standing Arbitral Tribunal 105

25 Miscellaneous 108
25.1 Governing law and jurisdiction 108
25.2 Waiver of immunity 108
25.3 Delayed payments 108
25.4 Waiver 109
25.5 Liability for review of Documents and Drawings 109

25.6 Exclusion of implied warranties etc. 109

 25.7 Survival 109
25.8 Entire Agreement 110
25.9 Severability 110
25.10 No partnership 110
25.11 Third Parties 110
25.12 Successors and assigns 110
25.13 Notices 111
25.14 Language 111
25.15 Counterparts 111
25.16 Confidentiality 111
25.17 Copyright and Intellectual Property rights 112
25.18 Limitation of Liability 112

Schedules : Attached as Volume-II from Part-02 toPart-19

 Part I
Preliminary

1
 ENGINEERING, PROCUREMENT AND
CONSTRUCTION AGREEMENT
THIS AGREEMENT1 is entered into on this the ……….. Day of ………, 20…..

BETWEEN

The President of India, represented by the Chief Engineer ( Construction), South, having its
principal office at First Floor, GCDA Eastern Entry Tower, Ernakulam Jn, Ernakulam -682016, India,
(hereinafter referred to as the “Authority” which expression shall, unless repugnant to the
context or meaning thereof, include its administrators, successors and assigns) of One Part;

AND

1 {name of the selected bidder3}, having its registered office at ..................... ,

(hereinafter referred to as the “Contractor” which expression shall, unless
repugnant to the context or meaning thereof, include its successors and
permitted assigns) of the Other Part.

WHEREAS:

(A) The Authority has the responsibility to develop, operate and maintain the Indian
Railways in the territorial jurisdiction of the Southern Railwayzone5.

(B) The Authority intends to develop/redevelopment/major upgrade of Varkala

Sivagiri Railway station (the “Railway Station”) on Engineering, Procurement,
Construction ("EPC") basis in accordance with the terms and conditions to be
set forth in an agreement to be entered into, at the site of the Railway Station at
Varkala Sivagiri, Kerala India (“Project”).

(C) The Authority had prescribed the Technical and Financial terms and conditions,
and invited Request for Proposal (RFP) No. 20-CE-CN-ERS-2023-EPC dated:
19.8.2023 from the bidders for undertaking the Project.

1 Serially numbered footnotes in this Agreement are for guidance of the Authority and should be
omitted from the draft EPC Agreement forming part of Bid Documents. Footnotes marked $
shall be retained in the draft Agreement.
2 All provisions enclosed in curly parenthesis shall be retained in the Bid Documents and shall be
modified as required after the selected bidder has been identified.
3 Refers to the single entity or all the members of the Consortium/Joint venture including the
Lead Member, which is the selected bidder
4 All asterisks in this Agreement should be substituted by project-specific particulars in the draft
Agreement forming part of the Bid Documents.
5 All project-specific provisions in this Standard EPC Agreement have been enclosed in square
parenthesis and may be modified, as necessary, before issuing the draft EPC Agreement
forming part of Bid Documents.

2
(D) After evaluation of the bids received, the Authority had technically qualified
certain bidders including, inter alia, the {the selected bidder/consortium/JV
comprising……….and…….. (Collectively the “Consortium/JV”) with…….as
its lead member the “Lead Member”} and accepted the financial bid of the
selected bidder and issued its Letter of Acceptance No. *** dated ***
(hereinafter called the “LOA”) to the {selected bidder/ Consortium/JV} for the
[Major Up-gradation/development/redevelopment] of the Railway Station at the
Contract Price specified hereinafter, requiring the selected bidder to interalia:

(i) deliver to the Authority a legal opinion from the legal counsel of the
selected bidder with respect to the authority of the selected bidder to
enter into this Agreement and the enforceability of the provisions
thereof, within 10 (ten) days of the date of issue of LOA; and

(ii) Submit Performance Security within 30 (thirty) days of the date of issue
of LOA, and

(iii) Execute this Agreement within 15(fifteen) days of the submission 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

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

3
 ARTICLE 1

DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement, the following words and expressions beginning with the capital
letters hall, unless repugnant to the context or meaning thereof, have the meaning
hereinafter respectively assigned to them. The words and expressions defined in the
Schedules and used therein shall have the meaning ascribed thereto in the Schedules.
The clauses of this document shall be read in accordance with the latest amendments and
correction slips issued by the Railway Board.

“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 as set forth in Clause 17.2.1;

“Affected Party “shall have the meaning as set forth in Clause 19.1;

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

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

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

“Applicable Laws” means all laws, brought into force and effect by GOI or the State
Government(s) including rules, regulations and notifications made there under, and
judgements, decrees, injunctions, writs and orders of any court of record, applicable to
this Agreement and the exercise, performance and discharge of the respective rights
and obligations of the Parties hereunder, as may be in force and effect during the
subsistence of this Agreement;

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

objection certificates, consents, approvals and exemptions required to be obtained or
maintained under Applicable Laws in connection with the construction of the Project
during the subsistence of this Agreement;

“Appointed Date” means that date which is later of:

(a) The 15th day of the date of this Agreement,

(b) The date on which the Authority has provided the Right of Way and forest
clearances in phases of the area of the Site for the Project in conformity with the
provisions of Clause 4.3 and8.2;

4
“Arbitration Act “means the Arbitration and Conciliation Act, 1996 and shall include
modifications to or any re-enactment thereof, as in force from time to time;

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

“Authority Default “shall have the meaning as set forth in Clause 21.2;

“Authority Engineer” shall have the meaning as set forth in Clause 16.1;

“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 fulfill any
obligations of the Authority under this Agreement;

“Bank” means
(i) A nationalized bank incorporated in India for the purposes of submission of
Bank Guarantee against Advance Payment as per provisions of Clause17.2;
(ii) A scheduled commercial bank incorporated in India for all other purposes; or
(iii)Any other bank acceptable to the Authority;

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

“Base Month” means the month just prior to Bid Due Date month. The Quarter for
applicability of price adjustment shall commence from next month after base month;

“Bid” means the documents in their entirety comprised in the bid submitted by the
selected bidder/Consortium/JV 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;1

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

(a) The enactment of any new Indian law;

(b) The repeal, modification or re-enactment of any existing Indian law;
(c) The commencement of any Indian law which has not entered into effect until
the Bid Due Date;
(d) a change in the interpretation or application of any Indian law by a judgement
of a court of record which has become final, conclusive and binding, as

1
To be deleted if not applicable in line with the provisions of the RFP.

5
 compared to such interpretation or application by a court of record prior to the
Bid Due Date; or
(e) Any change in the rates of any of the Taxes or royalties that have a direct effect
on the Project;

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

“Change of Scope Notice” shall have the meaning as set forth in Clause

13.2.1; “Change of Scope Order” shall have the meaning as set forth in

Clause 13.2.4; “Completion Certificate” shall have the meaning as set forth in

Clause12.4;

{“Consortium/Joint Venture” means the Consortium/Joint Venture of entities which

have formed a consortium/joint venture for implementation of this Project ;}$

“Construction” shall have the meaning as set forth in Clause 1.2.1 (f);

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

“Contract Price” means the amount as specified in Clause 17.1.1;

“Contractor” shall have the meaning attributed thereto in the array of Parties
hereinabove as set forth in the Recitals and refers to the single entity, or, all the
members of the Consortium/Joint venture including the Lead Member, which is the
selected bidder;

“Contractor Default” shall have the meaning as set forth in Clause 21.1;

“Cure Period” means the period specified in this Agreement for curing any breach or
default of any provision of this Agreement by the Party responsible for such breach or
default and shall:

(a) Commence from the date on which a notice is delivered by one Party to the
other Party asking the latter to cure the breach or default specified in such
notice;

(b) Not relieve any Party from liability to pay Damages or compensation under the
provisions of this Agreement; and

(c) not in any way be extended by any period of Suspension under this Agreement;
provided that if the cure of any breach by the Contractor requires any
reasonable action by the Contractor that must be approved by the Authority or
the Authority Engineer hereunder, the applicable Cure Period shall be extended

$
This definition may be omitted if the Contractor is not a Consortium/Joint Venture.

6
 by the period taken by the Authority or the Authority Engineer to accord their
approval;

“Damages” shall have the meaning as set forth in paragraph (w) of Clause 1.2.1;

“Defect” means any defect or deficiency in Construction of the Works or any part
thereof, which does not conform to the Specifications and Standards;

“Defects Liability Period” shall have the meaning as set forth in Clause 15.1;

“Dispute” shall have the meaning as set forth in Clause 24.1.1;

“Dispute Resolution Procedure” means the procedure for resolution of Disputes as set
forth in Article 24;

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

“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, including Users thereof, or which
poses an immediate threat of material damage to the Works or any of the Project
Assets;

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

mortgage, charge, pledge, lien, hypothecation, security interest, assignment, privilege
or priority of any kind having the effect of security or other such obligations, and shall
include any designation of loss payees or beneficiaries or any similar arrangement
under any insurance policy pertaining to the Project, where applicable herein but
excluding utilities referred to in Clause9.1;

“EPC” means engineering, procurement and construction;

“Final Payment Certificate” shall have the meaning as set forth in Clause 17.12.1;

“Final Payment Statement “shall have the meaning as set forth in Clause 17.10.1;

“Force Majeure” or “Force Majeure Event” shall have the meaning ascribed to it in
Clause 19.1;

“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;

7
“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 or the performance of all or any of
the services or obligations of the Contractor under or pursuant to this Agreement;

“Indemnified Party “means the Party entitled to the benefit of an indemnity pursuant
to Article 23;

“Indemnifying Party “means the Party obligated to indemnify the other Party pursuant
to Article 23;

“Indirect Political Event” shall have the meaning as set forth in Clause 19.3;

“Insurance Cover” means the aggregate of the maximum sums insured under the
insurances taken out by the Contractor pursuant to Article18, and includes all
insurances required to be taken out by the Contractor under Clauses 18.1 and 18.9 but
not actually taken, and when used in the context of any act or event, it shall mean the
aggregate of the maximum sums insured and payable or deemed to be insured and
payable in relation to such act or event;

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

“Interim Payment Certificate” or “IPC” means the interim payment certificate issued
by the Authority Engineer for payment to the Contractor in respect of Contractor’s
claims for payment raised in accordance with the provisions of this Agreement;

{“Lead Member “shall, in the case of a Consortium/Joint Venture, mean the member
of such Consortium/Joint Venture who shall have the authority to bind the contractor
and each member of the Consortium/Joint Venture; and together with the members of
the Consortium/Joint Venture shall be deemed to be the Contractor for the purposes of
this Agreement;}$

h$
This definition may be omitted if the Contractor is not a Consortium/Joint Venture.

8
“LOA” or “Letter of Acceptance” means the letter of acceptance referred to in Recital (D);

“Maintenance Manual” shall have the meaning ascribed to it in Clause 10.6;

“Manuals” shall mean the manuals specified in Schedule-D;

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

“Materials “are all the supplies used by the Contractor for incorporation in the Works
or for the maintenance of the Project;

“Non-Political Event” shall have the meaning as set forth in Clause 19.2;

“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 as set forth in Clause 7.1;

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

“Political Event” shall have the meaning as set forth in Clause 19.4;

“Power Block” means the length of the railway line between two railway
sections/railway stations, on which the overhead equipment (OHE) is de-energised and
earthed to enable the Contractor to execute construction or maintenance works;

“Programme” shall have the meaning as set forth in Clause 10.1.3;

“Project” means the Works for the development/redevelopment of Railway Station

subject to and in accordance with the provisions of this Agreement and Applicable
Laws, Applicable Permits and Good Industry Practice, 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 [station buildings, end blocks, concourses, sub-
ways, HVAC/MEP systems, lifts/escalators, foot over bridges, platform
shelters/surfaces, passenger amenities, railway quarters, foundations, embankments,
pavements, road surface, interchanges, bridges, culverts, road over-bridges, drainage
works, traffic signals, sign boards, kilometre-stones, electrical systems, communication
systems, rest areas, relief centres, maintenance depots and administrative offices, etc.];
and (b) Project Facilities situated on the Site;

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

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

9
“Project Facilities” means all the amenities and facilities to be constructed on the Site,
as described in Schedule-C;

“Project Milestone” means the project milestone set forth in Schedule-I and includes
the Scheduled Completion Date;

“Proof Consultant” shall have the meaning as set forth in Clause 10.2.2;

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

“Punch List “shall have the meaning as set forth in Clause 12.2.1;

“Quality Assurance Plan” or “QAP” shall have the meaning as set forth in Clause 11.2.1;

“Re.”,“Rs.” Or “Rupees” or “Indian Rupees” means the lawful currency of the Republic of
India;

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

“Retention Money” shall have the meaning set forth in Clause 7.5.1;

“Right of Way” means the constructive possession of the Site free from
encroachments and encumbrances, together with all way leaves, easements,
unrestricted access and other rights of way, howsoever described, necessary for
construction of the Project in accordance with this Agreement;

“RINL” means Rashtriya Ispat Nigam Limited;

“Safety Consultant” shall have the meaning as set forth in clause 10.2.11;

“Scheduled Completion Date” shall be the date as set forth in Clause 10.3.1;

“Scope of the Project” shall have the meaning as set forth in Clause 2.1;

“Section” means the portion of the railway line between two block stations;

“Site” shall have the meaning as 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, as set forth in
Schedule-D, and any modifications thereof, or additions thereto, as included in the
design and engineering for the Project submitted by the Contractor to, and expressly
approved by, the Authority;

“Stage Payment Statement” shall have the meaning as set forth in Clause 17.4;

“Structures” means any concourse, building blocks, foot over bridge, subway under
this Project, as the case may be;

10
“Sub-contractor” means any person or persons to whom a part of the Works 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 as set forth in Article 20;

“Taxes” means any Indian taxes including Goods & Services Tax (GST), excise duties,
customs duties, value added tax, sales tax, local taxes, cess and any impost or surcharge
of like nature (whether Central, State or local) on the goods, Materials, equipment and
services incorporated in and forming part of the Project charged, levied or imposed by
any Government Instrumentality, but excluding any interest, penalties and other sums
in relation thereto imposed on any account whatsoever. For the avoidance of doubt,
Taxes shall not include taxes on corporate income;

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

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

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

“Termination Payment” means the amount payable by either Party to the other upon
Termination in accordance with Article 21;

“Terms of Reference” or “TOR” shall have the meaning as set forth in Clause 16.2.1;

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

“Time Extension” shall have the meaning as set forth in Clause 10.4.1;

“Traffic Block” means the length of railway line between two railway stations/Section,
on which traffic is blocked with or without OHE being de-energised to enable
construction or maintenance works to be undertaken.

“User” means a person who uses or intends to use the Railway Station or any part
thereof;

“Valuation of Unpaid works” shall have the meaning as set forth in Clause 21.5.1;
and

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

“WPI” means the wholesale price index for various commodities as published by the
Ministry of Commerce and Industry, GOI and shall include any index which substitutes
the WPI, and any reference to WPI shall, unless the context otherwise requires, be
construed as a reference to the WPI published for the period ending with the preceding
month.

11
1.2 Interpretation

1.2.1 In this Agreement, unless the context otherwise requires,

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

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

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

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

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

(e) the words “include” and “including” are to be construed without

limitation and shall be deemed to be followed by “without limitation” or
“but not limited to” whether or not they are followed by such phrases;

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

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

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

requires, construction, renovation, refurbishing, augmentation, up-
gradation and other activities incidental thereto during the Construction
Period, and “develop” shall be construed accordingly;

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

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

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

(other than a Sunday) on which banks in the State are generally open for
business;

12
(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 Sub-clause(s) 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 Engineer shall be valid and effective
only if it is in writing under the hand of a duly authorised representative
of such Party or the Authority 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;

13
 (v) references to Recitals, Articles, Clauses, Sub-clauses, Provisos or
SchedulesinthisAgreementshall,exceptwherethecontextotherwiserequires,
mean references to Recitals, Articles, Clauses, Sub-clauses, Provisos and
Schedules of or to this Agreement; reference to an Annex shall, subject to
anything to the contrary specified therein, be construed as a reference to an
Annex to the Schedule in which such reference occurs; and reference to a
Paragraph shall, subject to anything to the contrary specified therein, be
construed as a reference to a Paragraph of the Schedule or Annex, as the case
may be, 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 (the “Damages”);and

(x) Time shall be of the essence in the performance of the Parties’

respective obligations. If any time period specified herein is extended
for the reasons specified in the Agreement, such extended time shall also
be of the essence.

1.2.2 Unless expressly provided otherwise in this Agreement, any Documentation

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

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

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

1.2.5 The clauses of this document shall be read in accordance with the latest
amendments and correction slips issued by the Railway Board.

1.3 Measurements and arithmetic conventions

All measurements and calculations shall be in the metric system and

calculations done to 2 (two) decimal places, with the third digit of 5 (five) or
above being rounded up and below 5 (five) being rounded down.

1.4 Priority of agreements and errors/discrepancies

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

(a) This Agreement; and

14
 (b) All other agreements and documents forming part hereof or referred to
herein, i.e. this Agreement at (a) above shall prevail over the agreements and
documents at(b).

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

discrepancies within this Agreement, the following shall apply:

(a) Between two or more Clauses of this Agreement, the provisions of a

specific Clause relevant to the issue under consideration shall prevail
over those in other Clauses;

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

(c) Between any two Schedules, the Schedule relevant to the issue shall
prevail;
(d) Between the written description on the Drawings and the Specifications
and Standards, the latter shall prevail;
(e) Between the dimension scaled from the Drawing and its specific written
dimension, the latter shall prevail; and

(f) Between any value written in numerals and that in words, the latter shall
prevail.

1.5 Joint and several liability

1.5.1 If the Contractor has formed a Consortium/Joint Venture of two or more

persons for implementing the Project:

(a) These persons shall, without prejudice to the provisions of this

Agreement, be deemed to be jointly and severally liable to the Authority
for the performance of the Agreement; and

(b) The Contractor shall ensure that no change in the composition of the
Consortium/Joint Venture is effected without the prior consent of the
Authority.

1.5.2 Without prejudice to the joint and several liability of all the members of the
Consortium/Joint Venture, the Lead Member shall represent all the members of
the Consortium/Joint Venture and shall at all times be liable and responsible for
discharging the functions and obligations of the Contractor. The Contractor
shall ensure that each member of the Consortium/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 liable for the inter se allocation of
payments among members of the {Consortium/Joint Venture}.

15
 Part II
Scope of the Project

16
 ARTICLE 2
SCOPE OF THE PROJECT

2.1 Scope of the Project

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

(a) Construction of the Project on the Site set forth in Schedule-A and as
specified in Schedule-B together with provision of Project
Facilities/Utilities as specified in Schedule-C, and in conformity with
the Specifications and Standards set forth in Schedule-D, with
Contractor’s own Materials;

and

(b) Performance and fulfillment 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.

17
 ARTICLE 3

OBLIGATIONS OF THE CONTRACTOR

3.1 Obligations of the Contractor

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

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

3.1.3 Save and except as otherwise provided in this Agreement or Applicable Laws,
as the case may be, the Contractor shall, in discharge of all its obligations under
this Agreement, conform with and adhere to Good Industry Practice at all times.

3.1.4 The Contractor shall remedy any and all loss or damage to the Project,
occurring on or after the Appointed Date and until the date of Provisional
Certificate, with respect to the Works completed prior to the issuance of the
Provisional Certificate and/or Completion Certificate, with respect to the Works
referred to in the Punch List, at its own cost, save and except to the extent that
any such loss or damage shall have arisen from any default of the Authority or
on account of a Force Majeure Event in which case the provisions of Article
19shallapply.

3.1.5 The Contractor shall remedy any and all loss or damage to the Project during
the Defects Liability Period at its own cost, to the extent that such loss or
damage shall have arisen out of the reasons specified in Clause15.3.

3.1.6 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-E and
obtain and keep in force and effect such Applicable Permits in
conformity with Applicable Laws;

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

agreements and permissions for Materials, methods, processes, know-
how and systems used or incorporated into the Project.

(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.

18
 (d) ensure 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) Always act in a manner consistent with the provisions of this Agreement
and not cause or fail to do any act, deed or thing, whether intentionally
or otherwise, which may in any manner be in violation of any of the
provisions of this Agreement;

(f) Support, cooperate with and facilitate the Authority in the

implementation and operation of the Project in accordance with the
provisions of this Agreement;

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

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

(i) Cooperate with other contractors employed by the Authority and with
personnel of any other 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 the existing
facilities within the Right of Way, irrespective of whether they are
public or in the possession of the Authority or of others.

(k) To provide reasoned comments on any information relating to the

Contractor’s activities under or pursuant to the agreement, which the
Authority may publish.

3.1.7 The Contractor shall undertake all necessary superintendence to plan, arrange,
direct, manage, inspect and test the Works.
3.1.8 The Contractor shall be liable for complete designing of the Project and the
Project Facilities and all allied utilities.
3.1.9 The Contractor shall maintain required staff and necessary Contractor’s
equipment and materials within the reach of the Site during the Defects
Liability Period so that any defects arising are promptly attended.
3.1.10 The Contractor shall design the overall Project on Net Zero Energy Building
(NZEB) concept, as far as practically possible.
3.1.11 The Contractor shall obtain certification for the project under either the
Leadership in Energy and Environmental Design (LEED), Assocham Gem
Rating, Green Building Rating System™, USA or under the IGBC rating
system. The Contractor shall obtain the [Gold] level or equivalent level of
certification.

19
 References:

a) Ministry of Environment and Forests

b) National Building Code(India)
c) Bureau of Energy Efficiency BEE(India)
d) Energy Conservation Building Code(India)
e) Leadership in Energy and Environmental Design (LEED), USA.
f) Indian Green Building Council (IGBC),India
(g) The Energy and Resource Institute (TERI) Recommendations and Mandates
(h) ISO 9001, International Standards Organization, Standard for Quality
(i) ISO 14001, International Standards Organization, Standard for
Environmental Management System

3.2 Obligations relating to sub-contracts and any other agreements

3.2.1 The Contractor shall not sub-contract Works comprising more than 50% (fifty per
cent) of the Contract Price and shall carry out Works for at least 50% (fifty per cent) of
the total Contract Price directly under its own supervision and through its own
personnel. The Parties expressly agree that for the purposes of computing the value of
sub-contracts under this Clause 3.2.1, the Contract Price shall exclude any sub-contract
for the procurement of goods and equipment like [Heating, Ventilation, and Air
Conditioning (HVAC) system, Mechanical, Electrical and Plumbing (MEP) system,
lifts and escalators]. The Parties agree that all obligations and liabilities under this
Agreement for the entire Project shall at all-time remain with the Contractor. {The
Parties agree that the obligations of the Contractor to carry out Works equal to at least
50% (fifty per cent) of the Contract Price shall be discharged solely by the Lead
Member.}$

3.2.2 In the event any sub-contract for Works, or the aggregate of such sub-contracts with
any Sub-contractor, exceeds 5% (five percent) of the Contract Price, the Contractor
shall communicate the name and particulars, including the relevant experience of the
sub-contractor, to the Authority prior to entering into any such sub-contract. Provided,
however, that in any event the Contractor shall communicate the name and particulars
to the Authority for any sub-contract including the relevant experience 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 and shall have no claim whatsoever on this account.
The sub-contractor shall possess a valid electrical contractor’s license from the
concerned statutory authority. The above said electrical contractor’s license would be
submitted along with the credentials of the sub-contractor to the Authority for
approval. In case the sub-contractor is a partnership firm, the electrical contractor’s
license shall be either in the name of the partnership firm or in the name of any of the
constituent partners of such partnership firm. In case the sub-contractor is a
JV/Consortium, the electrical contractor’s license shall be either in the name of the
JV/consortium or in the name of any of the constituent partners of such

20
 JV/consortium

3.2.3 Without prejudice to the provisions of Clause 3.2.2, in the event any sub-
contract referred to in Clause 3.2.2 relates to a sub-contractor who has, over the
preceding 3 (three) financial years and the current financial year, 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 80% (eighty per
cent) of such contract, 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. The similar nature of work would be approved by the
Authority, based on the nature of the work being sub-Contract.

3.2.4 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
hereunder.

3.2.5 Notwithstanding anything to the contrary contained in this Agreement, the

Contractor agrees and acknowledges that it will not assign any work to any
contractor/sub-contractor from a country which shares a land border with India
unless such contractor/sub-contractor is registered with the competent Authority.
Contractor will ensure that such Contractor/sub-contractor fulfils all requirements
in this regard and is eligible to be considered (evidence of valid registration by the
competent authority is enclosed). The Competent Authority for registration will be
the Registration Committee constituted by the Department for Promotion of
Industry and Internal Trade (DPIIT), India.

3.3 Employment of foreign nationals

The Contractor acknowledges, agrees and undertakes that employment of

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

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

21
3.4 Contractor’s personnel

3.4.1 The Contractor shall ensure and procure that the personnel engaged by it or by
its Sub-contractors for performance of its obligations under this Agreement
are at all times appropriately qualified, skilled and experienced in their
respective functions including in conformity with Applicable Laws including
the Indian Railway General and Subsidiary Rules, the Indian Electricity
Rules, and Good Industry Practice.

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

3.4.3 The Contractor shall, on receiving a direction from the Authority Engineer
under the provisions of Clause 3.4.2, ensure and procure the removal of such
person or persons from the Project with immediate effect. The Contractor shall
further ensure that such persons have no further connection with the Project.
3.4.4 The Contractor shall be responsible for the security of the work site and for
keeping the unauthorized persons off the Site.

3.5 Advertisement on Project

The Contractor shall not use the Project or any part thereof in any manner for
branding or advertising purposes including for advertising any commercial
product or services or companies.

3.6 Contractor's care of the Works

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

3.7 Electricity, water and other services

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

3.8 Unforeseeable difficulties

Except as otherwise specified 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

22
 (c) The Scheduled Completion Date shall not be adjusted to take account of any
unforeseen difficulties or costs.

For the purposes of this Clause, unforeseeable difficulties include physical

conditions like man-made or natural physical conditions including sub-surface
and hydrological conditions which the Contractor encounters at the Site during
execution of the Works.

3.9 Training of Authority’s personnel

3.9.1 The Contractor shall provide and complete the training to the personnel of the
Authority in diagnostic, trouble shooting, repairing, operation and maintenance
of the MEP and HVAC equipment. The number of persons to be trained shall
not exceed [6 (six)] and the period of training shall be for a period of 2 (two)
weeks. The training shall be completed before the issuance of the Provisional
Certificate/ Completion Certificate. Before the issue of any handing-over
certificate, the final O& M manuals, wherever required, shall be submitted by
the Contractor to the Authority Engineer

3.9.2 The Contractor shall provide training to the personnel of the Authority in
SCADA. The number of persons to be trained shall not exceed 6 (six) and the
period of training shall be at least 2 (two) weeks. The training shall be
completed before the issuance of the Provisional Certificate/Completion
Certificate.

3.9.3 A Maintenance Manual shall be prepared and got approved by the Contractor
from the Authority before the start of Defect Liability Period (DLP). It shall be
in force for the whole period of DLP subject to modifications made by the
Authority from time to time.
3.10 Safety at worksite

The Contractor and its sub-contractors shall follow the safety instructions and
take all safety measures for workmen and vehicles plying in the work area in
accordance with Applicable Laws, Good Industry Practice and the provisions of
this Agreement.
3.11 Operation of existing Railway Station
The Contractor shall ensure that the operations at the existing Railway Station
are carried on without any hindrance on account of its activities. The Contractor
shall undertake, ensure and comply with all safety requirements required for the
safety of Users, pedestrians and equipment belonging to the Authority, as per
Applicable Laws, regulations & best international practices.
3.12 Environmental Measures
The Contractor agrees to conduct its activities in connection with the
Agreement in such a manner so as to comply with the environmental
requirements which includes, inter alia, all the conditions required to be
satisfied under the environmental clearances and applicable law, and assumes
full responsibility for measures which are required to be taken to ensure such
compliance.

23
 ARTICLE 4

OBLIGATIONS OF THE AUTHORITY

4.1 Obligations of the Authority

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

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

4.1.3 The Authority shall, upon receiving the Performance Security under Clause
7.1.1, provide to the Contractor:

(a) The Right of Way in accordance with the provisions of Clause 8.2 to the
Site for the Project; and

(b) All forest clearances as required under Clause4.3;

4.1.4 In the event that (i) the Authority does not procure fulfillment of any or all of
the obligations set forth in Clause 4.1.3 within the period specified in respect
thereof, and (ii) the delay has not occurred as a result of breach of this
Agreement by the Contractor or due to Force Majeure, the Authority shall pay
to the Contractor Damages in a sum calculated in accordance with the
provisions of Clause 8.3 of this Agreement and grant Time Extension in
accordance with the provisions of Clause10.4.

4.1.5 Notwithstanding anything to the contrary contained in this Agreement, the

Parties expressly agree that the aggregate Damages payable by the Authority
under Clauses 4.1.4, 4.4.3, 8.3 and 9.2 shall not exceed 5% (five per cent) of the
Contract Price. For the avoidance of doubt, the Damages payable by the
Authority under the aforesaid Clauses shall not be additive if they arise
concurrently from more than one cause but relate to the same part of the Project.

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

24
 terms no less favorable than those generally available to commercial
customers receiving substantially equivalent services;

(c) procure that no barriers that would have a material adverse effect on
Works are erected or placed on or about the Project by any Government
Instrumentality or persons claiming through or under it, except for
reasons of Emergency, national security or law and order;

(d) Not do or omit to do any act, deed or thing which may in any manner is
in violation of any of the provisions of this Agreement;

(e) Support, cooperate with and facilitate the Contractor in the

implementation of the Project in accordance with the provisions of this
Agreement; and

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

4.2 Maintenance and operation of the existing facilities

The Authority shall undertake the maintenance of the facilities existing prior to
the Appointed Date including Railway Station, railway lines, bridges,
structures, electrical, signaling and communications works within the Right of
Way.

4.3 Environmental and Forest Clearances

Prior environmental clearances under the EIA Notification 2006 for the Project
is not required for the Project in line with MoEF letter and annexed at Schedule
F. However the Contractor has to prepare Environment Management Plan
(EMP) for the Project and submit to the Authority for taking approval from
competent authority. The EMP shall be prepared duly taking into account all
factors related to environment management viz, air pollution, water load, water
pollution, land degradation etc. and Contractor shall provide the necessary
documentations, submissions and clarifications to Authority for getting the
approval of EMP before undertaking any physical development at Site. The
Contractor represents and warrants that it shall follow all the guidelines and
meet the environmental mitigation measures/compliances as per the Applicable
Laws.

The Authority represents and warrants that the forest clearances of Site
mentioned in clause 4.1.3 shall be obtained before Appointed Date or shall be
obtained before the dates of providing Right of Way to the respective phases of
the Site as per Clause 8.2. In the event of any delay in providing forest
clearance, the Contractor shall be entitled to Time Extension for the period of
such delay in accordance with the provisions of Clause 10.4 of this Agreement
and shall also be entitled to Damages calculated as if the Right of Way for and

25
 in respect of such sections of the Project has not been provided in accordance
with the provisions of Clause 8.2 and as a consequence thereof, the Contractor
shall be entitled to Damages under and in accordance with the provisions of
Clause 8.3. For the avoidance of doubt, the present status of forest clearances is
specified in Schedule-A.2

4.4 Machinery and equipment

4.4.1 The Authority shall upon receiving a request from the Contractor, provide the
machinery and equipment specified in Schedule P on payment of hire charges at
the monthly rates specified therein. The Parties agree that the monthly rate for
each machine or equipment shall be inclusive of fuel and all other operating
charges, which shall be converted into daily rates taking a month comprising 25
(twenty five) working days. The Parties further agree that for each machinery or
equipment:

(a) The charges shall be payable for a day even if a machine or equipment is
used for less than 8 (eight) hours, so long as it has been placed at the
disposal of the Contractor and has not been withdrawn;

(b) The daily rates shall be computed for a shift of 8 (eight) hours taken as one
day. By way of illustration, if the machinery or equipment is used for 16
(sixteen) hours on any day, the charges payable shall be equal to twice the
daily rate; and

(c) For any machinery or equipment which can be used only during the period
of a Power Block or Traffic Block, no payment shall be due or payable for
the day on which such block is not provided to the Contractor.

4.4.2 The Contractor shall by notice of at least three weeks convey to the Authority
particulars of the machinery and equipment required for each day of the
following one month.
4.4.3 In the event that the Authority does not provide any machinery and equipment
at the designated time in pursuance of the provisions of Clause 4.4.1, the
Contractor shall be entitled to Damages in an amount equal twice the rates
specified in Schedule-P. Provided further that the Contractor shall be entitled to
Time Extension in accordance with the provisions of Clause 10.4 if the number
of days for which the machinery has not been provided continuously exceeds 7
(seven) and/ or the total number of days of not providing the machinery exceed
15 (fifteen) days in a period of 03months.3

4.5 Deleted
4.6 Deleted
4.7 Provision of Power Blocks and Traffic Blocks

2
Delete if not applicable
3
Delete if not applicable

26
4.7.1 The Authority shall provide Power Block or Traffic Block or both to enable the
Contractor to undertake the construction of overhead equipment, or such other
work as may be determined by the Authority Engineer.

4.7.2 The Contractor shall, in consultation with the Authority Engineer, submit a
weekly programme of Blocks, commencing from Monday, with a notice of at
least 1 (one) week and the Authority Engineer shall convey the approved
weekly programme to the Contractor no less than 3 (three) days prior to the
start of such week.

4.7.3 The minimum period for which a Power Block or Traffic Block shall be
provided to the Contractor shall not be less than two hours, period being
counted from the time the track is placed at the disposal of the Contractor and
until it is cleared by the Contractor. Provided, however, that a Power Block or
Traffic Block, as the case may be, of shorter duration may be provided with
mutual consent of the Parties.

4.7.4 The aggregate period of Power Block and Traffic Block to be provided to the
Contractor during the Construction Period is specified in Schedule-O. The
Contractor shall organise its work so as to complete all Construction Works
within such aggregate period. However, this aggregate period may be increased
by the Authority Engineer on Contractor’s request, if the same is considered
justified and reasonable under the prevailing circumstances.

4.7.5 In the event of any change in the schedule of Power Block or Traffic Block or
both, as the case may be, the Authority shall inform the Contractor by a notice
of not less than 24 (twenty four) hours. Provided, however, that no such notice
shall be required in case of a breakdown, accident, law and order disturbance,
natural calamity or any other unusual occurrence or Emergency.

4.7.6 In the event a Power Block or Traffic Block, as the case may be, is not provided
for any day in accordance with the confirmed programme, the Contractor shall
be compensated by providing an additional Power Block or Traffic Block of
equal time during the same week or the following week. The Parties expressly
agree that in the event of any default in providing such additional blocks for
compensating the Contractor, the Authority shall pay to the Contractor
Damages at the rate of Rs.1000 (Rupees one thousand) per day for each hour
which has not been provided as required hereunder and until such hour is
provided during any of the 6 (six) following weeks.

4.7.7 The Contractor shall be entitled to undertake the Construction Works within the
aggregate period specified in Schedule-O. Provided, however, that in the event
the aggregate period utilised by the Contractor exceeds the period specified in
Schedule-O and the extra time granted thereto under clause 4.7.4 if any, the
Contractor shall pay to the Authority hourly charges at the rate specified
therein.

27
 ARTICLE 5
REPRESENTATIONS AND WARRANTIES

5.1 Representations and warranties of the Contractor

The Contractor represents and warrants to the Authority that:

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

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

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

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

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

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

(g) there are no actions, suits, proceedings, or investigations pending or, to

its knowledge, threatened against it at law or in equity before any court
or before any other judicial, quasi-judicial or other authority, the
outcome of which may result in the breach of this Agreement or which
individually or in the aggregate may result in any material impairment
of its ability to perform any of its obligations under this Agreement;

(h) it has no knowledge of any violation or default with respect to any

order, writ, injunction or decree of any court or any legally binding
order of any Government Instrumentality which may result in any
material adverse effect on its ability to perform its obligations under this
Agreement and no factor circumstance exists which may give rise to

28
 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 notmisleading;

(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
connectiontherewith;

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

Consortium/Joint Venture} in response to the RFP or otherwise, is to the
best of its knowledge and belief, true and accurate in all material
respects;and

(m) Nothing contained in this Agreement shall create any contractual

relationship or obligation between the Authority and any Sub-
contractors, designers, consultants or agents of the Contractor.

5.2 Representations and warranties of theAuthority

The Authority represents and warrants to the Contractor that:

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

(b) it has taken all necessary actions under Applicable Laws to authorisethe
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 orderof

29
 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 shall have procured, Right of Way and forest clearances such that the
Contractor can commence construction forthwith on the area of the Site to
be handed over in phases in line with the provisions of Clause 8.2 and
Clause4.3

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.

30
 ARTICLE 6
DISCLAIMER

6.1 Disclaimer

6.1.1 The Contractor acknowledges that prior to the execution of this Agreement, the
Contractor has, after a complete and careful examination, made an independent
evaluation of the Request for Proposal (RFP), Scope of the Project,
Specifications and Standards, Site, local conditions, physical qualities of
ground, subsoil and geology, traffic volumes, existing structures, 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. Same as provided in Clause
4.1.2 and Clause 5.2, the Authority makes no representation whatsoever,
express, implicit or otherwise, regarding the accuracy, adequacy, correctness,
reliability and/or completeness of any assessment, assumptions, statement or
information provided by it and the Contractor confirms that it shall have no
claim whatsoever against the Authority in this regard.

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

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

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

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

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

31
 Part III
Construction

32
 ARTICLE 7
PERFORMANCE SECURITY
7.1 Performance Security
7.1.1 The Contractor shall, for the performance of its obligations hereunder, provide
to the Authority, within 30 (Thirty) days of issue of LOA, an irrevocable and
unconditional Bank Guarantee (the “Performance Security”), for an amount
equal to 5% (Five percent)of the Contract Price from a Bank in the form set
forth in Annex-I of Schedule-F.

The Performance Security shall be valid until 60 (sixty) days of the expiry of
the Defects Liability Period specified in Clause 15.1.1. [Until such time the
Performance Security is furnished by the Contractor pursuant hereto and the
same comes into effect, the Bid Security shall remain in force and effect, and
upon such furnishing of the Performance Security, the Authority shall release
the Bid Security to the Contractor.]4For the avoidance of doubt, the Parties
expressly agree that the Contractor shall provide, no later than 30 (thirty) days
prior to the expiry of the Performance Security for the Defects Liability Period
specified in Clause 15.1.1, a Performance Security in respect of the extended
Defects Liability Period, as specified in Clause 15.1.2, for an amount equal to
5% (Five percent) of the estimated cost of the Structures, HVAC, MEP
equipment, if any, comprising a new technology not currently in use in the
Railways as specified in Schedule B.

7.1.2 Notwithstanding anything to the contrary contained in this Agreement, the

Parties agree that in the event of failure of the Contractor to provide the
Performance Security in accordance with the provisions of Clause 7.1.1 and
within the time specified therein or such extended period as may be provided by
the Authority, in accordance with the provisions of Clause 7.1.3, the Authority
shall encash the Bid Security and appropriate the proceeds thereof as part-
Damages, and thereupon all rights, privileges, claims and entitlements of the
Contractor under or arising out of this Agreement shall be deemed to have been
waived by, and to have ceased with the concurrence of the Contractor, and this
Agreement shall be deemed to have been terminated by mutual agreement of
the Parties along with further levy of the liquidated Damages equivalent to the
stipulated ‘Performance Security’, which shall be recoverable from Contractor’s
pending/future dues with the Authority/Indian Railways in any of the on-
going/future contracts.

7.1.3 In the event the Contractor fails to provide the Performance Security within 30
(Thirty) days of the date of issue of the LOA as provided in Clause 7.1.1 above,
the Contractor may seek extension of time for a period not exceeding a further
30 (thirty) days on payment of Damages for such extended period equivalent to
a sum calculated at the rate of 0.002% (zero point zero zero two percent) of the
Contract Price for each day of delay until the Performance Security is provided.

4
To be retained as per the provisions related to submission of Bid Security

33
7.2 Extension of Performance Security

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

7.3 Appropriation of Performance Security

7.3.1 Upon occurrence of a Contractor Default, the Authority shall, without prejudice
to its other rights and remedies hereunder or in law, be entitled to encash and
appropriate from the Performance Security the amounts due to it.

7.3.2 Upon such encashment and appropriation from the Performance Security, the
Contractor shall, within 30 (thirty) days thereof, replenish, in case of partial
appropriation, to its original level the Performance Security, and in case of
appropriation of the entire Performance Security provide a fresh Performance
Security, as the case may be, and the Contractor shall, within the time so
granted, replenish or furnish fresh Performance Security as aforesaid failing
which the Authority shall be entitled to terminate the Agreement in accordance
with Article 21. Upon such replenishment or furnishing of a fresh Performance
Security, as the case may be, the Contractor shall be entitled to an additional
Cure Period of 30 (thirty) days for remedying the Contractor 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 Article21.

7.4 Release of Performance Security

The Authority shall release the Performance Security within 60 (sixty) days of
the expiry of the Defects Liability Period or the extended Defects Liability
Period, as the case may be, 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 or the extended Defects Liability Period, as the case may be, have been
rectified.
7.5 RetentionMoney5
7.5.1 From every payment for Works due to the Contractor in accordance with the
provisions of Clause 17.5, 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.

34
7.5.2 Upon occurrence of a Contractor’s Default, the Authority shall, without
prejudice to its other rights and remedies hereunder or in law, are entitled to
appropriate the relevant amounts from the Retention Money as Damages for
such Contractor’s Default.

7.5.3 The Contractor may, upon furnishing an irrevocable and unconditional bank
guarantee from the Bank substantially in the form provided at Annex-II of
Schedule-F, require the Authority to refund the Retention Money deducted by
the Authority under the provisions of Clause 7.5.1. Provided that the refund
hereunder shall be made in tranches of not less than 0.5% (zero point five per
cent) of the Contract Price. Further, the Retention Money may be deposited as
Bank Guarantee, issued by Bank after signing of the Agreement, but before the
payment against the first Stage Payment. Provided further that validity of Bank
Guarantee shall be extended from time to time depending upon extension
granted for completion of the Project.

7.5.4 Within 15 (fifteen) days of the date of issue of the Completion Certificate, the
Authority shall discharge the bank guarantees, if any, furnished by the
Contractor under the provisions of Clause 7.5.3 and refund the balance of
Retention Money remaining with the Authority after adjusting the amounts
appropriated under the provisions of Clause 7.5.2 and the amounts refunded
under the provisions of Clause7.5.3.

7.5.5 The Parties agree that in the event of Termination of this Agreement, the
Retention Money and the bank guarantees specified in this Clause 7.5 shall be
treated as if they are Performance Security and shall be reckoned as such for the
purposes of Termination Payment under Clause21.6.

5
This is different from Performance Security

35
 ARTICLE 8
RIGHT OF WAY

8.1 The Site

The site of the Project (the “Site”) shall comprise the site described in
Schedule-A in respect of which the Right of Way shall be progressively in
accordance with Clause 8.2, provided by the Authority to the Contractor. The
Authority shall be responsible for:

a) Acquiring and providing Right of Way on the Site free from all
encroachments and encumbrances, and free access thereto for the execution
of this Agreement.

b) Obtaining forest clearance and assistance in approval of Environment

Management Plan as per provisions of Clause4.3.

c) This Right of Way will not include completely free access to locations
where working may affect safety of train traffic (i.e. relay room, locations
boxes etc.). In such cases, right of work will be arranged by the Authority
Engineer on written request made by Contractor at least 7 days in advance,
if such request is reasonable.

8.2 Procurement of the Site

8.2.1 The Authority Representative and the Contractor shall, within 15 (fifteen) days
of providing the Performance Security by the Contractor in accordance with the
provisions of Clause 7.1, jointly inspect the Site and prepare a joint
memorandum containing an inventory of the Site including the vacant and
unencumbered land, buildings, structures, road/ railway works, trees and any
other immovable property on or attached to the Site. Subject to the provisions of
Clause 8.2.3, such memorandum shall have appended thereto an appendix (the
“Appendix”) specifying in reasonable detail those parts of the Site to which
vacant access and Right of Way has not been given to the Contractor. Signing
of the memorandum, in 2 (two) counterparts (each of which shall constitute an
original), by the authorised representatives of the Parties shall be deemed to
constitute a valid evidence of handing over of 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.

For the avoidance of doubt, the Parties agree that subject to the provisions of
Clauses 8.2.2 and 8.2.3, whenever the Authority is ready to provide Right of
Way for any part or parts of the Site included in the Appendix, it shall by notice
inform the Contractor, of the proposed date and time when the Authority
Representative and the Contractor shall inspect the specified parts of the Site,
and prepare a memorandum which shall be deemed to constitute a valid
evidence of handing over of such Right of Way to the Contractor in accordance
with the provisions of this Clause 8.2.1.

36
8.2.2 Notwithstanding anything to the contrary contained in this Clause 8.2, the
Authority shall specify the parts of the Site in phases, if any, for which Right of
Way shall be provided to the Contractor on the dates specified in Schedule-A
(Annexure-II) for such phases. Such parts shall also be included in the
Appendix prepared in pursuance of Clause8.2.1.

8.2.3 The Authority shall provide the Right of Way to the Contractor, in respect of
the land included in the Appendix, by the date specified in Schedule-A
(Annexure-II) for each part 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 Clause8.3.

8.2.4 Released Material- In case of planned dismantling of any existing asset on Site
as a part of the Project, the detailed plan and procedure for the dismantling
activity with possible repercussions and disposal of released material and other
relevant details, shall be submitted by the Contractor. Such work shall be taken
up only after the approval of Authority. [The joint inventory of the existing
material in the Site to be dismantled shall be listed prior to commencement of
the dismantling/undertaking Works at such portions of the Site by the Authority
Engineer, Contractor and Authority Representative. The structure, buildings and
other properties/material which are disturbed or dismantled, including debris
shall be the property of the Contractor, except Lifts, Escalators, Other
Electrical, Signal & Telecommunication fittings/ fixtures, CCTV cameras etc
and any other materials that are specifically instructed by the Authority to be
handed over to the Authority by the Contractor.. Such materials of all kind and
sort shall be transported and handed over in depot /places within [5 km] of
location of the Project, by the Contractor at its own cost, as per the direction of
the Authority. The Contractor shall be fully responsible for safe guarding of
such material while it is in its custody, till the time it is handed over to the
Authority's Representative.]

8.3 Damages for delay in handing over the Site

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

Amount of Damages in Rs. per day per phase of part of the Site not handed over
= 0.001% of Contract Price.

In the event that any Damages are due and payable to the Contractor under the
provisions of this Clause 8.3.1 for delay in providing the Right of Way, the
Contractor shall, subject to the provisions of Clause 10.4, be entitled to Time
Extension equal to the period for which the Damages have become due and
payable under this Clause 8.3.1, save and except that:
(a) if any delays involve time overlaps, the overlaps shall not be additive;

and

37
 (b) Such Time Extension shall be restricted only to the Works which are
affected by the delay in providing the Right of Way.

For the avoidance of doubt, the Parties expressly agree that the Damages
specified hereunder and the Time Extension specified in Clause 10.4 shall be
restricted only to failure of the Authority to provide the Right of Way for and in
respect of the phases of the Site as per Clause 8.2.

8.3.2 Notwithstanding anything to the contrary contained in this Agreement, the

Contractor expressly agrees that Works on all parts of the Site for which Right
of Way is granted within 180 (one hundred and eighty) days of the Appointed
Date, or with respect to the parts of the Site provided in Schedule-A, no later
than the date(s) specified therein, as the case may be, shall be completed before
the Scheduled Completion Date and shall not qualify for any Time Extension
under the provisions of Clause8.3.1.

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

Authority may at any time withdraw any part of the Right of Way and the
Works forming part of this Agreement, subject to such Works not exceeding an
aggregate value equal to 5% (five per cent) of the Contract Price.

Provided that if Right of Way has not been provided within 240 (two hundred
and forty) days of the date specified in Schedule-A (Annexure-II), for
commencing construction on any part of the Site included in the Appendix, the
affected Works shall be deemed to be withdrawn under the provisions of this
Clause 8.3.3 unless the Parties agree to the contrary, and such Works shall not
be computed for the purposes of the aforesaid ceiling of 5% (five per cent) of
the Contract Price hereunder. For the avoidance of doubt, the Parties agree that
such deemed withdrawal of Works hereunder shall be without prejudice to the
Contractor’s entitlement to Damages under Clauses 4.1.4, 8.3 and9.2.

8.3.4 In the event of withdrawal of Works under Clause 8.3.3, including deemed
withdrawal of Works, the Contract Price shall be reduced by an amount equal to
95% (ninety five per cent) of the value of the Works withdrawn and the
Contractor shall not be entitled to any other compensation or Damages for the
withdrawal of Works, including their deemed withdrawal, save and except for
Damages as provided under Clause4.3.

Provided that if any part of Works are withdrawn after commencement of the
Construction of such part of Works, the Authority shall pay to the Contractor
100 % (one hundred per cent) of the fair value of the work done, as assessed by
the Authority Engineer:

8.4 Site to be free from Encumbrances

Subject to the provisions of Clause 8.2, the Site shall be made available by the
Authority to the Contractor pursuant hereto free from all Encumbrances and
occupations and without the Contractor being required to make any payment to
the Authority on account of any costs, compensation, expenses and charges for
the acquisition and use of such Site for the duration of the Project Completion

38
 Schedule. For the avoidance of doubt, it is agreed that the existing rights of
way, easements, privileges, liberties and appurtenances to the Site shall not be
deemed to be Encumbrances. It is further agreed that, unless otherwise specified
in this Agreement, the Contractor accepts and undertakes to bear any and all
risks arising out of the inadequacy or physical condition of the Site.

8.5 Protection of Site from encroachments

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

to in Clause 8.2.1, and until the issue of the Provisional Certificate, the
Contractor shall maintain a round-the-clock vigil over the Site and shall ensure
and procure that no encroachment thereon takes place. During the Construction
Period, the Contractor shall protect the Site from any and all occupations,
encroachments or Encumbrances, and shall not place or create nor permit any
Sub-contractor or other person claiming through or under the Agreement to
place or create any Encumbrance or security interest 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 and the performance of its obligations under
this Agreement.

8.7 Access to the Authority and the Authority Engineer

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

8.7.2 The Contractor shall ensure, subject to all relevant safety procedures that the
Authority has unrestricted access to the Site during any Emergency.

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

39
Instructions as the Authority or 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.

40
 ARTICLE 9
UTILITIES AND TREES
9.1 Existing utilities and roads

Notwithstanding anything to the contrary contained herein, the Contractor shall

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

9.2 Shifting of obstructing utilities

9.2.1 The Contractor shall, in accordance with Applicable Laws and with the
proactive support & assistance of the Authority, cause shifting of any utility
which is owned by agencies other than Railways (including electric lines, water
pipes and telephone cables) to an appropriate location or alignment, if such
utility or obstruction adversely affects/ infringes the execution of Works in
accordance with this Agreement. The actual cost of shifting/relocation of such
utilities, as approved and communicated/demanded by the entity owning such
utility, shall be paid by the Authority directly to the entity. In the event of any
delay in such shifting by the entity owning the utility beyond a period of 180
(one hundred and eighty) days from the date of notice by the Contractor to the
entity owning the utility and to the Authority, the Contractor shall be entitled to
Damages in a sum calculated in accordance with the formula specified in
Clause 8.3.1 for the period of delay, and to Time Extension in accordance with
Clause 10.4 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. However, the cost of shifting of Electrical Power cables,
Communication cables, Switch Room, Control Panel etc which are owned
by Railways and falling in the project area are required to be done by the
agency as per the requirements of Railways based on an agreed scheme
and specifications and nothing shall be paid separately because the cost of
these works is already included in the estimated cost of the project and no
time extension is accepted on this account.
9.2.2

9.2.3 For the existing utilities owned by Railways and not forming part of scope of
work under Schedule B or Schedule C, where the shifting thereof can take place
only after certain works for enabling its shifting have been completed by the
Contractor, the Authority shall, through the Contractor, undertake and complete
its shifting within 180 (one hundred and eighty) days after the Contractor has
notified the Authority of the completion of the enabling works. The shifting of
such utilities will be undertaken by the Contractor as per the provisions of
Article 13. For avoidance of doubt for such utilities including its shifting which
form part of scope of work under Schedule B or Schedule C, no payments over
and above the Contract Price shall be payable. In the event of delay in shifting
the utility, beyond the aforesaid period of 180 (one hundred and eighty) days,
due to the delay on account of the Authority, the Contractor shall be entitled to
Damages for the period of delay in accordance with the provisions of the Clause

41
9.2.1.

42
9.3 New utilities

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

9.3.2 In the event the construction of any Works is affected by a new utility or works
undertaken in accordance with this Clause 9.3, the Contractor shall be entitled
to a reasonable Time Extension in accordance with Clause 10.4 for and in
respect of the part(s) of the Works affected by such delay; provided that if the
delays involve any time overlaps, the overlaps shall not be additive.

9.4 Felling of trees

The Authority shall obtain the Applicable Permits for felling of trees to be
identified by the Authority for this purpose if and only if such trees cause a
Material Adverse Effect on the construction of the Project. The cost of such
felling and of the compensatory plantation of trees, if any, shall be borne by the
Agency. 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 part of
its obligations hereunder if such failure is a direct consequence of delay in the
felling of trees. The Parties hereto agree that the felled trees shall be deemed to
be owned by the Authority and shall be disposed in such manner and subject to
such conditions as the Authority may in its sole discretion deem appropriate.
For the avoidance of doubt, the Parties agree that if any felling of trees
hereunder is in a forest area, the Applicable Permit thereof shall be procured by
the Authority within the time specified in the Agreement; and for any period of
delay in providing the Applicable Permits, the Contractor shall be entitled to
Damages and Time Extension as provided under Clause9.2.1.

43
 ARTICLE 10
DESIGN AND CONSTRUCTION OF THE PROJECT

10.1 Obligations prior to commencement of Works

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

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

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

The Contractor shall appoint a Design director at its cost after proposing to the
Authority a panel of 3 (three) names of qualified, reputed and experienced
persons and Authority will select one person from the above panel, provided,
however, that if none of the name proposed in the panel is acceptable to the
Authority and the reasons for the same are furnished to the Contractor, the
Contactor shall propose to the Authority a revised panel of 3 (three) more
names for obtaining the consent of the Authority. The Contractor shall also
obtain the consent of the Authority for two key personnels of the Design
Director, who shall have adequate experience and qualifications with respect to
the main components of the Project, at least one person shall be Post Graduate
in Structural Engineering/ Graduate in Civil Engineering and shall have
experience of more than 5 years/7 years respectively in Design consultancy
works and one person shall be an Architect, both having experience in
construction of Airports/ Malls/ Metro Rail / Railway Station Redevelopment
works or works of similar nature, having The Authority shall, within 30 (thirty)
days of receiving a panel from the Contractor, either 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 The Design Director
of its own choice. For the avoidance of doubt, the Parties agree that no firm or
person having any conflict of interest shall be engaged for this purpose. The
Parties further agree that any assignments completed at least three years prior to
the appointment hereunder shall not be reckoned for the purposes of conflict of
interest. The design director or its key personnel would visit the site regularly
and when called upon to discuss the site issues or during inspection if required.

(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, Applicable Laws and Applicable Permits; and

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

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

44
10.1.3 Within 30 (thirty) days of the Appointed Date, the Contractor shall submit to the
Authority and the Authority Engineer a programme/CPM Charts & Bar Charts (the
“Programme”) for construction of Works, developed using networking techniques and
giving the following details:

Part I Contractor’s organisation for the Project, the project execution plan indicating
arrangements for design and construction i.e. engagement of design
consultants, project phasing and sub-contracting, the general methods and
arrangements for overall planning of design and construction, landscaping,
acoustics, vibration minimization, traffic management, signages, Non-fare
revenue (NFR) maximization from station area users, retail planning, interiors,
façade, lighting etc., environmental management plan, Quality Assurance Plan
including design quality plan, traffic management and safety plan covering
safety of users and workers during construction, Contractor’s key personnel,
and equipment.

Part II Programme for completion of all stages of construction given in Schedule-G

and Project Milestones of the Works as specified in Project Completion
Schedule set forth in Schedule-I. The Programme shall include:

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

(b) the periods for reviews under Clause 10.2;and

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

The Contractor shall submit a revised programme whenever the previous

programme is inconsistent with the actual progress or with the Contractor’s
obligations.

Part III Monthly cash flow forecast for the Project

Provided, however, that the Authority may, within a period of 15 (fifteen) days
of receipt of the Programme, convey its comments to the Contractor stating the
modifications, if any, required for compliance with the provisions of this
Agreement, and the Contractor shall carry out such modifications, to the extent
required for conforming with the provisions of this Agreement.

10.1.4 The Contractor shall plan the project work by keeping Schedule-G into
consideration in order to maximise the cash flow and progress. However the
Authority Engineer may modify/break up any of the stage payment schedule
(payment milestones) during execution if the same is considered essential to
speed up the progress or if the Contractor is not able to achieve a particular
payment milestone due to the reasons/delays attributable to the Authority or due
to the factors beyond the control of Contractor or to any unforeseen
circumstances.

10.1.5 Procurement of items should be planned by the Contractor in consultation with

the Authority Engineer. Procurement plan should be prepared in such a manner
that those materials which have limited shelf life may be procured in a

45
 staggered manner so that materials are utilized/consumed before its expiry. If
the material/product does not remain of required specifications at the time of its
actual use, the same will be replaced by the Contractor with materials
confirming to Specifications at his own cost.

10.2 Design and Drawings

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

10.2.2 The Contractor shall appoint a proof checking consultant at its cost (the “Proof
Consultant”) after proposing to the Authority a panel of 3 (three) names of
qualified, reputed and experienced firms and Authority will select one Proof
Consultant from the above panel, provided, however, that if none of the name proposed
in the panel is acceptable to the Authority and the reasons for the same are furnished to
the Contractor, the Contactor shall propose to the Authority a revised panel of 3 (three)
more names for obtaining the consent of the Authority. The Contractor shall also
obtain the consent of the Authority for two key personnel of the Proof Consultant who
shall have adequate experience and qualifications with respect to the main components
of the Project. The Authority shall, within 30(thirty) days of receiving a panel from the
Contractor, either 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 of its own choice. For the avoidance of doubt, the Parties agree
that no firm or person having any conflict of interest shall be engaged for this purpose.
The Parties further agree that any assignments completed at least three years prior to
the appointment hereunder shall not be reckoned for the purposes of conflict of
interest.

10.2.3 The Proof Consultant shall:

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

(b) Examine the designs expeditiously and wherever necessary raise observations/
seek clarifications etc. as deemed appropriate and refer back the drawings
within 15 days for rectifications/clarifications, and finally proof check and
endorse/counter-sign the detailed calculations, drawings and designs, which
have been approved by the Design Director.

10.2.4 Deleted

10.2.5 Deleted

10.2.6 Deleted

10.2.7 In regard to the Contractor’s obligations with respect to the design and
Drawings of the Project as set forth in Schedule-H, 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, 3
(three) copies each of the design and necessary Drawings, duly

46
 approved/signed by the Design Director and certified/signed by the Proof
Consultant, to the Authority Engineer for review. Provided, however, that
in respect of Structures, airspace development at railway stations
including concourse, the Authority Engineer may require additional
drawings for its review in accordance with Good Industry Practice;

(b) by submitting the Drawings for review to the Authority Engineer, the
Contractor shall be deemed to have represented that it has determined and
verified that the design and Drawings are in conformity with stipulated
Specifications and Standards, , the Applicable Laws, statutory stipulations
and Good Industry Practice;
(c) within 21(twenty one) days of the receipt of the Drawings, the Authority
Engineer shall review the same and convey its observations to the
Contractor with particular reference to their conformity or otherwise with
the Scope of the Project and the Specifications and Standards. Beyond the
said period of 21 (twenty one) days, the Contractor shall not be obliged to
await the observations of the Authority Engineer on the Drawings
submitted pursuant hereto and may begin or continue Works at its own
discretion and risk; Provided, however, that in case of Structures, airspace
development at railway stations including concourse and any other
specified item the aforesaid period of 21 (twenty one) days may be
extended as per the time limit as indicated in Annexure-I of Schedule-D;

(d) if the aforesaid observations of the Authority 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 Engineer for review. The Authority 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 Engineer for review as aforesaid, the
Authority Engineer may cause the payment for the affected works to be
withheld under and in accordance with the provisions of Clause 17.5.4. If
the Contractor disputes any decision, direction or determination of the
Authority Engineer hereunder, the Dispute shall be resolved in accordance
with the Dispute Resolution Procedure;

(e) no review and/or observation of the Authority Engineer and/or its failure
to review and/or convey its observations on any Drawings shall relieve the
Contractor of its obligations and liabilities under this Agreement in any
manner nor shall the Authority 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 shall, along with the affected Works, be corrected at the Contractor's
cost, notwithstanding any review under this Article10;

(f) the Contractor shall be responsible for delays in submitting the Drawings,
as set forth in Schedule-H, caused by reason of delays in surveys and field
investigations, and shall not be entitled to seek any relief in respect
thereof from the Authority; and

(g) the Contractor warrants that its designers, including any third parties

47
 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 as set out in this
Clause.

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

10.2.9 Works shall be executed in accordance with the Drawings provided by the
Contractor in accordance with the provisions of this Clause 10.2 and the
observations of the Authority Engineer thereon as communicated pursuant to
the provisions of Clause 10.2.7. Such Drawings shall not be amended or altered
without prior written notice to the Authority Engineer. If a Party becomes aware
of an error or defect of a technical nature in the design or Drawings, that Party
shall promptly give notice to the other Party of such error or defect.

10.2.10 Within 90 (ninety) days of the Project Completion Date, the Contractor shall
furnish to the Authority and the Authority Engineer a complete set of as-built
Drawings, in 2 (two) hard copies and in its editable digital format or in such
other medium or manner as may be acceptable to the Authority, including an as-
built survey illustrating the layout of the Project and setback lines, if any, of the
buildings and structures forming part of Project Facilities, and shall hand them
over to the Authority against receipt thereof.

10.2.11 The Contractor shall also appoint a safety consultant (the “Safety
Consultant”) after proposing to the Authority a panel of 3 (three) names of
qualified and experienced consultants having minimum 10 years’ experience in
ensuring safety at work site from whom the Authority may choose 1 (one) to be
the Safety Consultant. Provided, however, that if the panel is not acceptable to
the Authority and the reasons for the same are furnished to the Contractor, the
Contractor shall propose to the Authority a revised panel of 3 (three) names for
obtaining the consent of the Authority. The Contractor shall also obtain the
consent of the Authority for additional two key personnel of the Safety
Consultant who shall have at least 5 years’ experience in ensuring safety at
work site. 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. The Safety
Consultant shall:

(a) Evolve a system approach for undertaking a safety audit of the Project
during construction phase; and

(b) Proof check the detailed safety plan covering all aspects of including safety
of Users, workers and equipment.

10.3 Construction of the Project

10.3.1 The Contractor shall construct the Project as specified in Schedule-B and
Schedule-C, and in conformity with the Specifications and Standards set forth

48
 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 day mentioned in the Schedule-I
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, in which case the Scheduled Completion
Date will be the extended date as per the time extension granted.
10.3.2 The Contractor shall construct the Project in accordance with the Project
Completion Schedule set forth in Schedule-I. In the event that the Contractor
fails to achieve any Project Milestone or the Scheduled Completion Date within
a period of 30 (thirty) days from the date set forth in Schedule-I, unless such
failure has occurred due to Force Majeure or for reasons attributable to the
Authority, it shall pay Damages to the Authority in a sum calculated at the rate
of 0.05% (zero point zero five per cent) of the Contract Price for delay of each
day reckoned from the date specified in Schedule - I and until such Project
Milestone is achieved or the Works are completed; provided that if the period
for any or all Project Milestones or the Scheduled Completion Date is extended
in accordance with the provisions of this Agreement, the dates set forth in
Schedule-I shall be deemed to be modified accordingly and the provisions of
this Agreement shall apply as if Schedule-I has been amended as above;
provided further that in the event the Works are completed within or before the
Scheduled Completion Date including any Time Extension, the Damages paid
under this Clause 10.3.2 shall be refunded by the Authority to the Contractor,
but without any interest thereon. For the avoidance of doubt, it is agreed that
recovery of Damages under this Clause 10.3.2 shall be without prejudice to the
rights of the Authority under this Agreement including the right of Termination
thereof. The Parties further agree that Time Extension hereunder shall only be
reckoned for and in respect of the affected Works as specified in Clause10.4.2.

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

10.3.4 Certain works, which are executed in the vicinity of running track, may require
prior sanction of Commissioner of Railway Safety (CRS) before execution of
such works are taken up by the Contractor. Authority Engineer will advise such
works to the Contractor. The Contractor shall be responsible to prepare and
submit applications to Authority Engineer for obtaining sanction of CRS at least
60 (sixty) days in advance of commencing a work that requires prior sanction of
CRS.

10.4 Extension of time for completion

10.4.1 Without prejudice to any other provision of this Agreement for and in respect of
extension of time, the Contractor shall be entitled to extension of time in the
Project Completion Schedule (the “Time Extension”) to the extent that

49
 completion of any Project Milestone is or will be delayed by any of the
following, namely:

(a) Delay in providing the Right of Way, or forest clearances, in accordance

with the provisions of this Agreement;

(b) Change of Scope, unless an adjustment to the Scheduled Completion Date

has been agreed under Article13;
(c) Occurrence of a Force Majeure Event;

(d) Any delay, impediment or prevention caused by or attributable to the

Authority, the Authority’s personnel or the Authority’s other contractors
on the Site; and

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

10.4.2 The Contractor shall, no later than 15 (fifteen) business days from the
occurrence of an event or circumstance specified in Clause 10.4.1, inform the
Authority 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 thereby.

10.4.3 In the event of the failure of the Contractor to issue to the Authority Engineer a
notice in accordance with the provisions of Clause 10.4.2 within the time
specified therein, the Contractor shall not be entitled to any Time Extension and
shall forfeit its right for any such claims in future. For the avoidance of doubt,
in the event of failure of the Contractor to issue notice as specified in this
Clause 10.4.3, the Authority shall be discharged from all liability in connection
with the claim.

10.4.4 The Authority Engineer shall, on receipt of acclaim in accordance with the
provisions of Clause 10.4.2, examine the claim expeditiously within the time
frame specified herein. In the event the Authority Engineer requires any
clarifications to examine the claim, the Authority Engineer shall seek the same
within 15 (fifteen) days from the date of receiving the claim. The Contractor
shall, on the receipt of the communication of the Authority Engineer requesting
for clarification, furnish the same to the Authority Engineer within 10 (ten) days
thereof. The Authority 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. For the avoidance of doubt, the Parties agree
that the Authority Engineer shall, in accordance with the provisions of this
Agreement, notify the Contractor of the aforesaid Time Extension no later than

50
 30 (thirty) days from the date of receipt of the Contractor’s claim for Time
Extension or the date of receipt of the clarification from the Contractor, as the
case maybe.

Provided that when determining each extension of time under this Clause 10.4,
the Authority Engineer shall review previous determinations and may increase,
but shall not decrease, the total Time Extension.

10.4.5 If the event or circumstance giving rise to the notice has a continuing effect:

(a) the 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
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 Engineer shall examine and
determine the same in accordance with the provisions of Clause 10.4.4 within a
period of 30 (thirty) days of the receipt thereof.

10.5 Incomplete Works

In the event the Contractor fails to complete the Works in accordance with the
Project Completion Schedule, including any Time Extension granted under this
Agreement, the Contractor shall endeavour to complete the balance work
expeditiously and shall pay Damages to the Authority in accordance with the
provisions of Clause 10.3.2 for delay of each day until the Works are completed
in accordance with the provisions of this Agreement. Recovery of Damages
under this Clause shall be without prejudice to the rights of the Authority under
this Agreement including the right to termination under Clause 21.1.
10.6 Equipment specific Maintenance Manual
No later than 90 (ninety) days prior to the Project Completion Date, the
Contractor shall, in consultation with the Authority Engineer, evolve an
equipment specific maintenance manual for equipment based on a new
technology not currently in use in the Railways (the “Maintenance Manual”)
for the regular operation and maintenance of such equipment in conformity with
safety requirements, Good Industry Practice and manufacturer’s manuals and
instructions and shall provide 10 (ten) hard copies and 2 (two) compact discs
thereof to the Authority Engineer.

51
 ARTICLE 11
QUALITY ASSURANCE, MONITORING AND SUPERVISION

11.1 Quality of Materials and workmanship

11.1.1 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.

11.1.2 The Contractor warrants that all Materials shall be new, unused, not
reconditioned and in conformity with Specification and Standards, Applicable
Laws and Good Industry Practice, and that the Contractor shall not use any
materials which are generally recognised as being deleterious under Good
Industry Practice.

11.2 Quality control system

11.2.1 The Contractor shall establish a Quality Control Mechanism, Quality Assurance
Plan (the “Quality Assurance Plan” or “QAP”), Material Testing Plan (the
“Material Testing Plan” or “MTP”) and Method Statements for execution of
works (the “Method Statements” or “MS”) in consultation of Authority
Engineer.

11.2.2 The Contractor shall, within 150 (One hundred fifty)days of the Appointed
Date, submit to the Authority Engineer its Quality Control Mechanism, QAP,
MTP and MS which shall include the following:

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

documentation;

(b) quality control mechanism including sampling and testing of Materials,

tests required during the execution of works and frequencies by Contractor
and Authority Engineer, 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 and Standards and Good Industry Practice; and

(c) Internal quality audit system. The Contractor shall carry out internal audits
of the Quality management System regularly, and at least once every 6
months. The Contractor shall submit to the Authority Engineer a report
listing the results of each internal audit within 7 days of completion. Each
report shall include, where appropriate, the proposed measures to improve
and/or rectify the Quality Management System and/or its implementation.

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

52
11.2.3 The Contractor shall procure all documents, apparatus and instruments, fuel,
consumables, water, electricity, labour, Materials, samples, and qualified
personnel as are necessary for examining and testing the Project Assets,
Materials and workmanship in accordance with the Quality Assurance Plan.

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

11.3 Methodology

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

any construction activity, submit to the Authority Engineer for review the
Method Statement proposed to be adopted for executing the Work, giving
details of inspection checklist, quality parameters, equipment to be deployed,
traffic management and measures for ensuring safety. The Authority Engineer
shall complete the review and convey its comments, if any, to the Contractor
within a period of 10 (ten) days from the date of receipt of the proposed method
statement from the Contractor. The Contractor shall revise the method
statements by incorporating these comments or else will advise the Authority
Engineer reasons for not/partially including the same.

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 Works
and issue appropriate directions to the Authority Engineer and the Contractor
for taking remedial action in the event the Works are not in accordance with the
provisions of this Agreement.

11.5 External technical audit

At any time during construction, the Authority may appoint an external

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

11.6 Inspection of construction records

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

11.7 Monthly progress reports

During the Construction Period, the Contractor shall, no later than 10 (ten) days
after the close of each month, furnish to the Authority and the Authority
Engineer a monthly report on the progress of Works and shall promptly give

53
 such other relevant information as may be required by the Authority Engineer
along with all resources deployed and all problems faced during work.

11.8 Inspection

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

(a) Have full access to all parts of the Site and to all places from which natural
Materials are being obtained for use in the Works; and

(b) During production, manufacture and construction at the Site and at the
place of production, be entitled to examine, inspect, measure and test the
Materials and workmanship, and to check the progress of manufacture of
Materials.

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

11.8.3 The Authority 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 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 Engineer for review:

(a) manufacturer’s test reports and standard samples of manufactured

Materials; and

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

11.10 Tests

11.10.1 For determining that the Works conform to the Specifications and Standards,
the Authority 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 Contractor shall submit the schedule for performing such tests to
the Authority Engineer well in advance and not less than 7 days prior to
conducting such tests. The Contractor shall, with due diligence, carry out all the
tests in accordance with the Agreement and furnish the results thereof to the
Authority Engineer. Of the total tests for each category or type to be undertaken
by the Contractor under the provisions of this Agreement and Good Industry
Practice, the Authority Engineer or his authorised representative may witness or
participate in such tests conducted or cause to be conducted by the Contractor.
Documentation of test records to be maintained by Contractor and Authority

54
 Engineer or his authorized representative shall scrutinize 100% testing records
of all tests conducted as per existing guidelines of Indian Railways and Indian
Road Congress. A copy of such test’s records shall be provided to the Authority
Engineer.

11.10.2 In the event that results of any tests conducted under this Clause 11.10 establish
any Defects or deficiencies in the Works, the Contractor shall carry out
remedial measures and furnish a report to the Authority Engineer in this behalf.
The Authority 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 the 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 Engineer is entitled to examine,

inspect, measure 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
Engineer whenever any such work is ready and before it is covered up. The
Authority Engineer shall then either carry out the examination, inspection or
testing without unreasonable delay, or promptly give notice to the Contractor
that the Authority 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 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 Engineer within a
period of 3 (three) business days from the date on which the Contractor’s notice
hereunder is delivered to the Authority Engineer, the Contractor shall be
entitled to assume that the Authority Engineer would not undertake the said
inspection.

11.12 Rejection

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

Material, design or workmanship is found to be defective or otherwise not in
accordance with the provisions of this Agreement, the Authority Engineer may
reject such Plant, Material, 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.

11.12.2 If the Authority Engineer requires the Plant, Material, design or workmanship
to be retested; the tests shall be repeated on the same terms and conditions, as
applicable in each case. If the rejection and retesting cause the Authority to
incur any additional costs, such costs 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.

55
11.12.3 The Contractor shall not be entitled to any extension of time on account of
rectifying any Defect or retesting as specified in this Clause11.12.

11.12.4 No examination, inspection, measurement or testing of any Plant, Material,

design or workmanship by the Authority Engineer or its failure to convey its
observations or to examine, inspect, measure or test shall relieve the Contractor
of its obligations and liabilities under this Agreement in any manner nor shall
the Authority be liable for the same in any manner.

11.13 Remedial work

11.13.1 Notwithstanding any previous test or certification, the Authority 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, whether because of an accident, unforeseeable event or
otherwise; provided that in case of any work which is required on
account of a Force Majeure Event, the provisions of Clause 19.6 shall
apply.

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

11.14 Delays during construction

Without prejudice to the provisions of Clause 10.3.2, in the event the Contractor
does not achieve any of the Project Milestones within the time period stipulated
in Schedule - I or the Authority Engineer shall have reasonably determined that
the rate of progress of Works is such that Completion of the Project is not likely
to be achieved by the end of the Scheduled Completion Date, it may notify the
same to the Contractor, and the Contractor shall, within 15 (fifteen) days of
such notice, by a communication inform the Authority 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.

56
11.15 Quality control records and Documents
The Contractor shall hand over to the Authority Engineer a copy of all its
quality control records and documents before the Completion Certificate is
issued pursuant to Clause12.2.

11.16 Video recording

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

11.17 Suspension of unsafe Construction Works

11.17.1 Upon recommendation of the Authority Engineer to this effect, or on its own
volition in cases of emergency or urgency, 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 Engineer or the Authority, as the case may
be, such work threatens the safety of the Users and or other persons on or about
the Project.

11.17.2 The Contractor shall, pursuant to the notice under Clause 11.17.1, suspend the
Works or any part thereof for such time and in such manner as may be specified
by the Authority and thereupon carry out remedial measures to secure the safety
of suspended works, the Users, other persons and vehicles on or about the
Project including pedestrians. The Contractor may by notice require the
Authority 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
Engineer, the Authority shall either revoke such suspension or instruct the
Contractor to carry out such other and further remedial measures as may be
necessary in the reasonable opinion of the Authority, and the procedure set forth
in this Clause 11.17 shall be repeated until the suspension hereunder is revoked.

11.17.3 Subject to the provisions of Clause 19.6, all reasonable costs incurred for
maintaining and protecting the Works or part thereof during the period of
suspension (the “Preservation Costs”), shall be borne by the Contractor;
provided that if the suspension has occurred as a result of any breach of this
Agreement by the Authority, the Preservation Costs shall be borne by the
Authority.

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

57
 ARTICLE 12
COMPLETION CERTIFICATE

12.1 Tests on completion

12.1.1 No later than 30 (thirty) days prior to the likely completion of the Project or a
part thereof, the Contractor shall prepare and submit to the Authority Engineer
the documents required for seeking approval of the Commissioner of Railway
Safety in accordance with the provisions of the [Railways Opening for Public
Carriage of Passenger Rules, the Indian Railway Permanent Way Manual, the
Indian Railways Manual of A.C. Traction] as the case may be, and notify the
Authority Engineer of its intent to subject the Project to Tests, if required. After
ensuring and procuring that the documents required to be submitted to the
Commissioner for Railway Safety meet the requirements of Applicable Laws,
the Authority Engineer shall, in consultation with the Contractor, determine the
date and time of each of the Tests, and inform the Authority who may designate
its representative to witness the Tests. The Contractor shall provide such
assistance as the Authority Engineer may reasonably require for conducting the
Tests. For avoidance of doubts, the parties agree that in the event of the
Contractor and the Authority Engineer failing to mutually agree on the dates for
conducting the Tests, the Contractor shall fix the dates by giving not less than10
(ten) days’ notice to the Authority Engineer. Authority will carry out tests on
completion within 30 days of receiving request from Contractor. And if
Authority Engineer fails to carry out test within 30 days, the Authority will pay
damage to Contractor @ 0.02% of the payment pending for want of test per day.

12.1.2 All Tests shall be conducted in accordance with Schedule-J at the cost and
expense of the Contractor. The Authority Engineer shall observe, monitor and
review the results of the Tests to determine compliance of the Project with
Specifications and Standards and if it is reasonably anticipated or determined by
the Authority Engineer during the course of any Test that the performance of
the Project 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 any Defect or deficiency. Upon completion of each Test,
the Authority Engineer shall provide to the Contractor and the Authority copies
of all Test data including detailed Test results. For the avoidance of doubt, the
Parties expressly agree that the Authority 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 thereof with the
Specifications and Standards.

12.2 Provisional Certificate

12.2.1 Upon completion of Tests, the Authority Engineer shall satisfy itself that the
Tests have been successful and the Project is fit for opening / commissioning. A
list of outstanding but non-critical/non-safety items (called the “Punch List”);
duly signed jointly by the Authority Engineer and the Contractor shall be
prepared. The Authority Engineer may issue a Provisional Certificate to the
Contractor and the Authority in the form set forth in Schedule-K(the

58
 “Provisional Certificate”), pending the items figuring in the Punch List. The
items figuring in the Punch List should be completed by contractor in a time
frame as stipulated in clause-12.3. The Parties further agree that Provisional
Certificate shall not be issued if the completed part of Works cannot be safely
and reliably placed in service of the Users thereof.

12.2.2 Upon issuance of the Provisional Certificate, the Authority Engineer shall
forwardtotheAuthority(i)copiesofallTestdataincludingTestresults,and
(ii) the documents submitted by the Contractor for seeking approval of the
Commissioner of Railway Safety in accordance with the provisions of the
[Railways Opening for Public Carriage of Passenger Rules, the Indian Railway
Permanent Way Manual/ or the Indian Railways Manual of A.C. Traction,]as
the case may be, for obtaining authorisation from the Commissioner for
Railway Safety.

12.2.3 The Contractor shall assist the Authority during inspection and tests to be
conducted by the Commissioner of Railway Safety for determining compliance
of the Project with Applicable Laws and the provisions of this Agreement.

12.2.4 The Defects Liability Period for the Project shall commence from the date of
issue of the Provisional Certificates.

12.2.5 The Parties hereto expressly agree that the Authority Engineer may also issue a
“part Provisional Certificate” for part of the Project ready for
commissioning/opening subject to the provisions of Clauses 12.1 and 12.2
applying mutatis mutandis. The issuance of the part-provisional certificate will
however not absolve the Contractor in any manner of its obligations to complete
the remaining part of Project.

12.2.6 The risk of loss or damage to any Materials, Plant or Works in the Project or
part thereof, as the case may be, and the care and custody thereof shall pass
from the Contractor to the Authority upon issuance of Provisional Certificate
for the Project or part thereof.

12.3 Completion of Punch List items

All items figuring in the Punch List shall be completed by the Contractor within
60 (sixty) days of the date of issuance of the Provisional Certificate for that part
and for any delay thereafter, other than for reasons solely attributable to the
Authority or due to Force Majeure, the Authority shall be entitled to recover
Damages from the Contractor to be calculated and paid for each day of delay
until all items are completed, at the rate of 0.2% (zero point two per cent) of the
cost of completing such items as estimated by the Authority Engineer. Subject
to payment of such Damages, the Contractor shall be entitled to a further period
not exceeding 120 (one hundred and twenty) days for completion of the Punch
List items. For the avoidance of doubt, it is agreed that if completion of any
item in the Punch List is delayed for reasons attributable to the Authority or due
to Force Majeure, the completion date thereof shall be determined by the
Authority Engineer in accordance with Good Industry Practice, and such
completion date shall be deemed to be the date of issue of the Provisional
Certificate for the purposes of Damages, if any, payable for such item under this
Clause 12.3.

59
12.4 Completion Certificate

12.4.1 Upon completion of all items in the Punch List and issuance of authorisation
by the Commissioner of Railway Safety and compliance of all CRS
observations pertaining to Contractor if any, the Authority Engineer shall
issue forthwith to the Contractor and the Authority; a completion certificate
substantially in the form set forth in Schedule-K (the “Completion
Certificate”) separately in respect of each Provisional Certificate issued. For
Avoidance of doubt, Completion Certificate may also be issued for part-
commissioning of Project.

12.4.2 Upon receiving the Completion Certificate, the Contractor shall remove its
equipment, materials, debris and temporary works from the Site which are not
required any more for the Project within a period of 15 (fifteen) days thereof,
failing which the Authority may remove or cause to be removed, such
equipment, materials, debris and temporary works and recover from the
Contractor an amount equal to 120% (one hundred and twenty per cent) of the
actual cost of removal incurred by the Authority.

12.5 Rescheduling of Tests

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

12.6 Delayed authorisation

In the event of delay in issuance of authorisation by the Commissioner of

Railway Safety beyond a period of 60 (sixty) days from the date of completion
of all items of punch list, the Contractor shall be entitled to interest for the
period of delay at a rate equal to 3% (three percent) above the Bank Rate on the
payment due for integrated testing and commissioning as specified in Schedule-
G.

60
 ARTICLE 13
CHANGE OF SCOPE

13.1 Change of Scope

13.1.1 The Authority may, notwithstanding anything to the contrary contained in this
Agreement, require the Contractor to make modifications or alterations to the
Works (“Change of Scope”) before the issue of the Completion Certificate
either by giving an instruction or by requesting the Contractor to submit a
proposal for Change of Scope involving additional cost or reduction in cost.
Any such Change of Scope shall be made and valued in accordance with the
provisions of this Article13.

13.1.2 Change of Scope shall mean:

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

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

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

13.1.3 If the Contractor determines at any time that a Change of Scope will, if adopted,
(i) accelerate completion, (ii) reduce the cost to the Authority of executing,
maintaining or operating the Project, (iii) improve the efficiency or value to the
Authority of the completed Project, or (iv) otherwise be of benefit to the
Authority, it shall prepare a proposal with relevant details at its own cost. The
Contractor shall submit such proposal, supported with the relevant details
including the amount of reduction in the Contract Price, if any, to the Authority
to consider such Change of Scope. The Authority shall, within 15 (fifteen) days
of receipt of such proposal, either accept such Change of Scope with
modifications, if any, and initiate proceedings therefore in accordance with this
Article 13 or reject the proposal and inform the Contractor of its decision. For
the avoidance of doubt, the Parties agree that the Contractor shall not undertake
any Change of Scope without a Change of Scope Order being issued by the
Authority, save and except any Works necessary for meeting any Emergency.

13.2 Procedure for Change of Scope

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

13.2.2 Upon receipt of a Change of Scope Notice from the Authority Engineer, the
Contractor shall, with due diligence, provide to the Authority and the Authority

61
 Engineer such information as is necessary, together with preliminary
documentation in support of:

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

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

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

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

(iii) proposed modifications, if any, to the Project Completion

Schedule of the Project.

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

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

(A) The rate for various items to be executed through change of scope order shall be
estimated on the basis of analysis of rates (AOR) of Zonal Railway, for item
other than building works and as per CPWD’s AOR for building works and by
applying the prevailing market rates of various input construction materials,
labour, machinery and T &P.

(B) In case AOR of any items is not available in Zonal Railway’s AOR then such
rates shall be determined as per the prevailing market rates in accordance with
Good Industry Practice by the Authority Engineer.

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

(a) issue a Change of Scope Order requiring the Contractor to proceed with
the performance thereof at the rates and conditions approved by the
Authority till the matter is resolved in accordance with Article 24;or

(b) Proceed in accordance with Clause13.5.

13.2.5 The provisions of this Agreement, insofar as they relate to Works and Tests,
shall apply mutatis mutandis to the works undertaken by the Contractor under
this Article13.

62
13.3 Payment for Change of Scope
Payment for Change of Scope shall be made in accordance with the payment
schedule specified in the Change of Scope Order.

13.4 Restrictions on Change of Scope

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

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

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

13.5 Power of the Authority to undertake works

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

13.5.2 The works undertaken in accordance with this Clause 13.5 shall conform to the
Specifications and Standards and shall be carried out in a manner that it should
not cause any disruption to the Project and also minimise adverse effect to main
contractor. The provisions of this Agreement, insofar as they relate to Works
and Tests, shall apply mutatis mutandis to the works carried out under this
Clause13.5.

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

63
 ARTICLE 14
TRAFFIC REGULATION

14.1 Traffic regulation by the Contractor

14.1.1 The Contractor shall take all the required measures and make arrangements for
the safety of any persons or Users and vehicles on or about the Site during the
construction of the Project or a section thereof in accordance with Good
Industry Practice, and Applicable Laws. 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 using any public roads or access
along or across the Project Site under construction.

14.1.2 All works shall be carried out in a manner creating least interference to traffic
passing along or across the Project. The Contractor shall ensure that proper
passage is provided for the traffic. Where it is not possible or safe to allow
traffic on the existing road or passage, a temporary diversion of proper
specifications shall be constructed by the Contractor at its own cost. The
Contractor shall take prior approval of the Authority Engineer for any proposed
arrangement for traffic regulation during Construction, which approval shall not
be unreasonably withheld.

14.1.3 In the event any construction work is required to be executed in close proximity
of an existing operating system of Railways, the Contractor shall make
arrangements for the safety of such system in accordance with the provisions of
the ‘Compendium of Instructions on Safety at work Sites’ issued by the
Authority and Good Industry Practice.

64
 ARTICLE 15
DEFECTS LIABILITY

15.1 Defects Liability Period

15.1.1 The Contractor shall be responsible for all the Defects and deficiencies, except
usual wear and tear in the Project or any part thereof, till the expiry of a period
of 2 (two) years commencing from the date of Provisional Certificate or expiry
of a period 18 (eighteen) months from the date of Completion Certificate,
whichever is later (the “Defects Liability Period”).

15.1.2 Without prejudice to the provisions of Clause 15.1.1, the Defects Liability
Period for and in respect of any Structure or MEP or HVAC equipment
comprising a new technology as specified in Schedule B, shall be deemed to be
extended by a further period of 2 (two) year after the expiry of the Defects
Liability Period specified in Clause [Link] Liability Period shall also
cover the extensions covered under clause 15.6]

15.1.3 Without prejudice to the provisions of Clause 15.1.1, the Contractor shall be
responsible for making arrangement for signing of agreement for AMC of
SCADA as per clause 3.9 of Annexure - I (Schedule-B) between
OEM/Approved SCADA vendor and concerned Railway/Division 6 months
prior to defects liability period as defined in 15.1.1. In the event that the
Contractor fails to make above Arrangement, the Authority shall be entitled to
remedy the defects and deficiency of the Contractor in Accordance with the
clause 15.4 or may extend the Defects Liability Period in accordance with
clause 15.6.1].

15.2 Remedy and rectification of Defects and deficiencies

15.2.1 Without prejudice to the provisions of Clause 15.2.2, the Contractor shall repair
or rectify all Defects and deficiencies observed by the Authority Engineer
during the Defects Liability Period within a period of 15 (fifteen) days from the
date of notice issued by the Authority Engineer in this behalf, or within such
reasonable period as may be determined by the Authority Engineer at the
request of the Contractor, in accordance with Good Industry Practice. For the
purpose of this clause, the time period of 15 days shall be applicable only to
those Defects and Deficiencies which are not affecting train operations of
safety. For any defect noticed affecting train operation of train safety, the
Contractor shall arrange to rectify it within such reasonable period as may be
determined by the Authority Engineer. If the Contractor’s staff is not able to
rectify any fault as decided by the Authority Engineer, the Authority will be at
full liberty to make its own efforts to get such defects rectified at Contractor’s
cost.

15.2.2 During a period of 2 (two) months from the date of issuance of Completion
Certificate, the Contractor shall retain sufficient staff and spares at Project
location for procuring prompt replacement, installation or re-installation of any
defective parts. The spares for the purpose of this clause shall be separate from
any spares supplied within the scope of the Project.

65
15.3 Cost of remedying Defects

For the avoidance of doubt, any repair or rectification undertaken in accordance

with the provisions of Clause 15.2, including any additional tests, 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) Works, Plant, Materials or workmanship not being in accordance with this
Agreement and the Specifications and Standards;
(c) Improper maintenance during construction of the Project by the Contractor;
or
(d) Failure by the Contractor to comply with any other obligation under this
Agreement.

15.4 Contractor’s failure to rectify Defects

In the event that the Contractor fails to repair or rectify such Defect or
deficiency within the period specified in Clause 15.2, the Authority shall be
entitled to get the same repaired, rectified or remedied at the Contractor’s cost
so as to make the Project conform to the Specifications and Standards and the
provisions of this Agreement. All costs consequent thereon shall, after due
consultation with the Authority and the Contractor, be determined by the
Authority Engineer. The cost so determined, and an amount equal to 20%
(twenty percent) of such cost as Damages, shall be recoverable by the Authority
from the Contractor and may be deducted by the Authority from any monies
due to the Contractor.

15.5 Contractor to search cause

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

15.5.2 In the event any Defect identified under Clause 15.5.1 is attributable to the
Contractor, the Contractor shall rectify such Defect within the period specified
by the Authority Engineer, and shall bear the cost of the examination and
rectification of such Defect.

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

15.6. Extension of Defects Liability Period

15.6.1 The Defects Liability Period shall be deemed to be extended till the identified
Defects under Clause 15.2 have been remedied.

66
15.6.2 Any Materials or Works with Defects identified under Clause 15.2 and replaced
or repaired during the Defects Liability Period or the extended Defects Liability
Period, as the case may be, would be further warranted for a period of twelve
(12) months from the date of completion of such repair or replacement.

15.6.3 The Contractor shall upon termination or expiry of this Agreement or upon
expiry of the Defects Liability Period, assign any outstanding benefit in respect
of any subcontract or any warranty, to the Authority or to such other person as
the Authority may direct.

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 ARTICLE 16
AUTHORITY ENGINEER

16.1 Appointment of the Authority Engineer

16.1.1 The Authority shall appoint a railway engineer/ Project Management

Consultancy (PMC), to be the engineer under this Agreement (the “Authority
Engineer”).

16.1.2 The appointment of the Authority Engineer shall be made no later than 30
(Thirty) days from the date of this Agreement. The Authority shall notify the
appointment or replacement of the Authority Engineer to the Contractor.

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

16.2 Duties and functions of the Authority Engineer

16.2.1 The Authority Engineer shall perform its duties and discharge its functions in
accordance with the provisions of this Agreement, and substantially in
accordance with the duties and responsibilities set forth in Annex 1 of Schedule
L, but subject to obtaining prior written approval of the Authority before
determining:

(a) Any Time Extension;

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

(c) The Termination Payment;

(d) Providing Power Block or Traffic Block or necessary disconnections to

the Contractor;

(e) Approval of disconnections for modification of signalling and telecom

works, or

(f) Any other matter which is not specified in (a) to (e) above and which
creates an obligation or liability on either Party for a sum exceeding
Rs.5, 000,000 (Rupees fifty lakh).

16.2.2 No decision or communication of the Authority 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 Clause16.2.1.

16.2.3 The Authority Engineer shall submit regular periodic reports, at least once
every month, to the Authority in respect of its duties and functions assigned to
him for the project. Such reports shall be submitted by the Authority Engineer
within 10 (ten) days of the beginning of every month.

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16.2.4 A true copy of all communications sent by the Authority to the Authority
Engineer and by the Authority Engineer to the Authority shall be sent forthwith
by the Authority Engineer to the Contractor.

16.2.5 A true copy of all communications sent by the Authority Engineer to the
Contractor and by the Contractor to the Authority Engineer shall be sent
forthwith by the Authority Engineer to the Authority.

16.3 Authorised signatories

The Authority Engineer will designate and notify to the Contractor up to 2 (two)
persons under him to sign for and on behalf of the Authority Engineer, and any
communication or document required to be signed by the Authority Engineer
shall be valid and effective only if signed by any of the designated persons;
provided that the Authority Engineer may, by notice in writing, substitute any
of the designated persons by any of its employees.

16.4 Instructions of the Authority Engineer

16.4.1 The Authority Engineer may issue to the Contractor instructions for remedying
any Defect. The Contractor shall take such instructions from the Authority
Engineer only.

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

16.4.3 In case the Contractor does not receive the confirmation of the oral instructions
within the time specified in Clause 16.4.2, the Contractor shall seek the written
confirmation of the oral instructions from the Authority Engineer and shall
obtain acknowledgement from the Authority Engineer of the communication
seeking written confirmation. In case of failure of the Authority Engineer to
reply to the Contractor within 2 (two) days of the receipt of the communication
from the Contractor, the Contractor may not carry out theinstruction.

16.5 Determination by the Authority Engineer

16.5.1 The Authority 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 Engineer. If such agreement is not achieved, the
Authority Engineer shall make a fair determination in accordance with this
Agreement having due regard to all relevant circumstances. The Authority
Engineer shall give notice to both the Parties of each such agreement or
determination, with supporting particulars.

16.5.2 Each Party shall give effect to each agreement or determination made by the
Authority 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 Engineer, the Dispute shall be resolved in
accordance with the Dispute Resolution Procedure as per article24.

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16.6 Remuneration of the Authority Engineer

The remuneration, cost and expenses of the Authority Engineer shall be borne
by the Authority.

16.7 Replacement of the Authority Engineer

16.7.1 The Authority may, in its discretion, replace the Authority Engineer at any time,
but only upon appointment of another Authority Engineer in accordance with
Clause16.1.

16.7.2 If the Contractor has reasons to believe that the Authority 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
replacement of the Authority Engineer. Upon receipt of such representation, the
Authority shall hold a tripartite meeting with the Contractor and Authority
Engineer and make best efforts for an amicable resolution of the Dispute. After
due consideration, The Authority will decide about the replacement of
Authority Engineer or otherwise. However , if Contractor is not satisfied with
decision of Authority, the Dispute shall be resolved in accordance with Depute
Resolution Procedure as per article [Link] the event that the Authority Engineer
is to be replaced, the Authority shall appoint forthwith another Authority
Engineer in accordance with Clause16.1.

16.8 Interim Arrangement

In the event that the Authority has not appointed an Authority Engineer, or the
Authority Engineer so appointed has relinquished its functions, the Authority
may, in the interim, designate and authorise any person to discharge the
functions of the Authority Engineer in accordance with the provisions of this
Agreement, save and except that such person shall not exercise any functions
relating to review, comment, approval or inspection as specified in this
Agreement for and in respect of the Authority Engineer, and such functions
shall be discharged as and when an Authority Engineer is appointed in
accordance with the provisions of this Agreement. Provided, however, that
nothing contained in this Clause 16.8 shall in any manner restrict the rights of
the Authority to enforce compliance of the provisions of this Agreement.

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 Part IV
Financial Covenants

71
 ARTICLE17
PAYMENTS

17.1 Contract Price

17.1.1 The Authority shall make payments to the Contractor for the Works on the basis
of the lump sum price accepted by the Authority in consideration of the
obligations specified in this Agreement for an amount as mentioned in
Schedule-G (the “Contract Price”), which shall be subject to adjustments, in
accordance with the provisions of this Agreement. 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.

17.1.2 The Contract Price includes all duties, taxes, royalty, and fees that may be
levied in accordance with the laws and regulations in force as on the Bid Due
Date on the Contractor’s equipment, Plant, Materials and supplies acquired for
the purpose of this Agreement and on the Works undertaken 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.

17.1.3 The Contract Price shall not be adjusted for any change in duties, taxes etc.
specified in Clause 17.1.2 above, save and except as specified in Clauses 17.8
and 17.13.

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

17.1.5 Unless otherwise specified 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 thereof and for the rectification of any Defects in
the Project.

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

17.2 Advance Payment

17.2.1 Upon receiving request from Contractor, the Authority shall make an advance
payment (the “Advance Payment”), up to 10% (ten percent) of the Contract
Price, for mobilisation expenses and for acquisition of equipment, which shall
carry simple interest at the rate of Bank Rate plus 5%( five per cent) (subject to
change as per Railway Board Directions) per annum and shall be made in two
installments of up to maximum 5% (five percent) of the Contract Price each.

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

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17.2.3 At any time, after 60 (sixty) days from the Appointed Date, the Contractor may
apply to the Authority for the second installment of the Advance Payment along
with an irrevocable and unconditional guarantee from a Bank for an amount
equivalent to 110% (one hundred and ten percent) of such installment,
substantially in the form provided at Annex-III of Schedule-F, to remain
effective till the complete and full repayment thereof along with proof of
utilization of 1stinstalment.

17.2.4 The installments of Advance Payment shall generally 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 Clause17.2.

17.2.5 The Advance Payment shall be recovered through proportionate deductions to

be made in the Interim Payments Certificates issued in accordance with the
provisions of Clause 17.5.2. Deductions of Advance Payment shall commence
from the Interim Payment Certificate in which the cumulative interim payments
certified shall have reached 50% (fifty percent) of the Contract Price. The total
amount recovered in each Interim Payment Certificate shall be equal to 30%
(thirty percent) of the amount of interim payment due and payable under such
Interim Payment Certificate, and interest on the amount being recovered to be
calculated from the date of disbursement of the Advance Payment to the date of
recovery until the entire Advance Payment together with interest is recovered.
For the avoidance of doubt, the Parties agree that in the event the total payment
specified in any Interim Payment Certificate exceeds the limit of 50% (fifty per
cent) of the Contract Price, the proportionate of recovery hereunder shall be
restricted to the amount exceeding 50% (fifty per cent) of the Contract Price.
By way of illustration, the Parties agree that if the first recovery of say, Rupees
‘x’ is made after 20 (twenty) months from the date of 1st (first) installment of
the Advance Payment, the interest will be recovered on Rupees ‘x’ for a period
of 20 (twenty) months; and when the next recovery is made in the following
month for say, Rupees ‘y’, interest on Rupees ‘y’ will be computed for a period
of 21 (twenty one)months. The Parties further agree that no payments in excess
of 90% (ninety per cent) of the Contract Price shall be released until the
Advance Payment, including interest thereon, has been fully recovered.

17.2.6 If the Advance Payment has not been fully repaid prior to Termination under
Clause 19.7 or Article 21, as the case may be, the whole of the balance then
outstanding shall immediately become due and payable by the Contractor to the
Authority. In the event of Termination for Contractor Default, the Advance
Payment shall be deemed to carry interest at an annual rate of 5%( five per cent)
(subject to change as per Railway Board Directions) above the Bank Rate above the
Bank Rate from the date of Advance Payment to the date of recovery by
encashment of bank guarantee for the Advance Payment. For the avoidance of
doubt, the aforesaid interest shall be payable on each installment of the Advance
Payment, regardless of whether the installment or any part thereof has been
repaid to the Authority prior to Termination.

17.3 Procedure for estimating the payment for the Works

17.3.1 The Authority shall make interim payments to the Contractor, as certified by the
Authority Engineer on completion of a stage, for a length, number or area as

73
 specified, and valued in accordance with the proportion of the Contract Price
assigned to each item and its stage and payment procedure in Schedule-G.

17.3.2 The Contractor shall base its claim for interim payment for the stages completed
till the end of the month for which the payment is claimed, valued in
accordance with Clause 17.3.1, supported with necessary particulars and
documents in accordance with this Agreement.

17.3.3 Any reduction in the Contract Price arising out of Change of Scope or the
Works withdrawn under Clause 8.3, as the case may be, 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 the avoidance of doubt and by way
of illustration, the Parties agree that if the amount assigned to end blocks is
reduced from Rs.10 Crore to Rs. 8 Crore owing to Change of Scope or
withdrawal of Works, as the case may be, the reduction in payment shall be
restricted to the relevant payments for end blocks and the payment due in
respect of all other stage payments under the item end blocks 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.

17.4 Stage Payment Statement for Works

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

3 copies, by the 7th (seventh) day of a month to the Authority Engineer in the
form set forth in Schedule-M, showing the amount calculated in accordance
with Clause 17.3 to which the Contractor considers itself entitled for the
completed stage(s) of 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. In the event that there is no claim for a month in accordance with the
provisions of this Clause 17.4, the Contractor shall submit a nil claim to the
Authority Engineer.

17.5 Stage Payment for Works

17.5.1 Within 10 (ten) days of receipt of the Stage Payment Statement from the
Contractor pursuant to Clause 17.4, the Authority Engineer shall broadly
determine the amount due to the Contractor and recommend the release of 80
(eighty) percent of the amount so determined as part payment against the Stage
Payment Statement, pending issue of the Interim Payment Certificate (IPC) by
the Authority Engineer. Within 5(five) days of the receipt of recommendation
of the Authority Engineer as above, the Authority shall make electronic
payment directly to the Contractor’s bank account.

17.5.2 Within 20 (twenty) days of the receipt of the Stage Payment Statement referred
to in Clause 17.4, the Authority Engineer shall determine and shall deliver to
the Authority and the Contractor an IPC certifying the amount due and payable

74
 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 therefore.

17.5.3 In cases where there is a difference of opinion as to the value of any stage, the
opinion of the Authority Engineer 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.

17.5.4 The Authority 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 in respect of which
the Authority Engineer had notified the Contractor; and
(b) The estimated cost of rectification of any Works which have not been
constructed in accordance with this Agreement.

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

17.5.6 In the event the amounts released by the Authority under Clause 17.5.1 exceed
the amount finally determined by the Authority Engineer pursuant to Clauses
17.5.2 to 17.5.4, the difference thereof shall be accounted for in the next IPC.

17.6 Payment of Damages

17.6.1 The Contractor as well as the Authority may claim Damages due and payable to
it in accordance with the provisions of this Agreement.

17.6.2 The Authority Engineer shall verify and check the claim and issue the IPC
within 20 (twenty) days of the receipt of the claim under Clause 17.6.1, after
making adjustments, in accordance with the provisions of this Agreement. The
Authority shall pay to the Contractor the amount due under such IPC within a
period of 30(thirty) days from the date of the submission of the claim under this
Clause 17.6. 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 17.7 shall apply mutatis
mutandis thereto.

17.7 Time of payment and interest

17.7.1 The Authority shall pay to the Contractor any amount due under any payment
certificate issued by the Authority Engineer in accordance with the provisions
of this Article 17, 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

75
 Authority Engineer for certification in accordance with the provisions of
Clause 17.4 for an IPC; provided, however, that in the event the IPC is
not issued by the Authority 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 adjusted in the next payment certificate; and

(b) payment shall be made no later than30 (thirty) days from the date of
submission of the Final Payment Certificate for Works along with the
discharge submitted to the Authority Engineer for certification in
accordance with the provisions of Clause17.12.

17.7.2 In the event of failure of the Authority to make payment to the Contractor
within the time period specified in this Clause 17.7, the Authority shall be liable
to pay to the Contractor interest at a rate equal to the Bank Rate plus 3% (three
percent), calculated at quarterly rests, on all sums remaining unpaid from the
date by which the same should have been paid, calculated in accordance with
the provisions of Clause 17.7.1 (a) and (b) and till the date of actual payment.

17.8 Price adjustment for Works

17.8.1 The amounts payable to the Contractor for Works shall be adjusted in
accordance with the provisions of this Clause17.8.
17.8.2 Subject to the provisions of Clause 17.8.3, the amounts payable to the
Contractor for Works shall be adjusted by the Authority 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 specified in Clause
[Link] avoidance of doubt, the price adjustment shall be paid on quarterly
basis for the payments made in the respective quarter.
17.8.3 To the extent that any compensation or reimbursement for 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.

17.8.4 The Contract Price shall be adjusted for increase or decrease in rates and prices
of labour, Materials, fuel and lubricants, equipment, Machinery, Plant and other
Materials or 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 work in accordance with Schedule-G. The 1st Quarter will
start from the month next to the Base month;
b) Price adjustment for change in costs of Project shall be paid in
accordance with the following formula:

Variation = 0.85 Vx [PLB x (LBi – LBo)/LBo + PC x (Ci – Co)/Co + PS x

(Si – So)/So + PF x (Fi –Fo)/Fo + PMACH x (MACHi –
MACHo)/MACHo + POTH x (OTHi -OTHo)/OTHo];

76
Where;

V = Value of work done for the completion of a stage

PC, PF, PLB, PMACH, POTH, and PS are the percentages of cement, fuel and
lubricants, labour, Plant Machinery and tools, other materials and steel/
components (including strands and steel cables), respectively for the Project as
provided in schedule G;

Co = The wholesale price index as published by the Ministry of Commerce and

Industry, Government of India (hereinafter called “WPI”) for sub-group
Cement, Lime & Plaster for the month of the Base Month;

Ci = The WPI for sub-group Cement, Lime & Plaster for the average price
index of the 3 months of the quarter under consideration;

Fo= The wholesale price index as published by the Ministry of Commerce and
Industry, Government of India (hereinafter called “WPI”) for group Fuel &
Power for the month of the Base Month

Fi = The WPI for group Fuel & Power for the average price index of the 3
months of the quarter under consideration

LBo = The consumer price index for industrial workers – All India, published
by Labour Bureau, Ministry of Labour, Government of India, (hereinafter called
“CPI”) for the month of the Base Month;

LBi = The CPI for industrial workers – All India for the average price index of
the 3 months of the quarter under consideration;

MACHo = The wholesale price index as published by the Ministry of

Commerce and Industry, Government of India (hereinafter called “WPI”) for
category- k “Manufacturing of Machinery for Mining, quarrying and
construction’ under (R) Manufacturing of Machinery and Equipment for the
month of the Base Month;

MACHi = The WPI for category- k “Manufacturing of Machinery for Mining,

quarrying and construction’ under (R) Manufacturing of Machinery and
Equipment for the average price index of the 3 months of the quarter under
consideration;

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

and Industry, Government of India (hereinafter called “WPI”) for all
commodities for the month of the Base Month;

OTHi = The WPI for all commodities for the average price index of the 3
months of the quarter under consideration;

So = Rate of RINL for Rebar 8 mm (coil) as published on their website for the
month of the Base Month or any other reference index mutually acceptable in
case RINL discontinues publication of the rates;

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 Si = Average rate of RINL for Rebar 8 mm (coil) as published on their website
for the 3 months of the quarter under consideration or any other reference index
mutually acceptable in case RINL discontinues publication of the rates.

17.8.5 In case an IPC relates to a month which is within 3 (three) months from the
Base Month, no price adjustment shall be applicable.

17.9 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 therefore 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 only until the date of the respective Project Milestone or the
Scheduled Completion Date, as the case maybe.

17.10 Final Payment Statement

17.10.1 Within 60 (sixty) days of receiving the Completion Certificate under Clause
12.4, the Contractor shall submit to the Authority Engineer six copies of a final
payment statement (the “Final Payment Statement”), with supporting
documents, in the form prescribed by the Authority Engineer:

(a) The summary of Contractor’s Stage Payment Statements for Works as

submitted in accordance with Clause17.4;

(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 Engineer disagrees with or cannot verify any part of the Final
Payment Statement, the Contractor shall submit such further information as the
Authority Engineer may reasonably require. The Authority 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 24;or

(ii) a Final Payment Certificate in accordance with Clause 17.15, if there are
no disputed items.

17.10.2 If the Authority Engineer does not prescribe the form referred to in Clause
17.10.1 within 7 (Seven) days of the date of issue of the Completion Certificate,
the Contractor shall submit the statement in such form as it deems fit.

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17.11 Discharge
Upon submission of the Final Payment Statement under Clause 17.10, the
Contractor shall give to the Authority, with a copy to the Authority 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 17.12.

17.12 Final Payment Certificate

17.12.1 Within 30 (thirty) days after receipt of the Final Payment Statement under
Clause 17.10, and the written discharge under Clause 17.11, and there being no
disputed items of claim, the Authority 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
Engineer, is finally due under this Agreement or otherwise. For the avoidance
of doubt, before issuing the Final Payment Certificate, the Authority Engineer
shall ascertain from the Authority all amounts previously paid by the Authority,
all sums due to the Authority, and the balance, if any, due from the Authority to
the Contractor or from the Contractor to the Authority, as the case maybe.

17.12.2 The Authority shall, in accordance with the provisions of Clause 17.7, pay to
the Contractor the amount which is specified as being finally due in the Final
Payment Certificate.

17.13 Change in law

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

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

17.13.3 The Authority Engineer shall, within15 (fifteen) days from the date of receipt of
notice from the Contractor or the Authority, as the case may be, determine any
addition or reduction to the Contract Price, as the case may be, due to the
Change in Law.

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17.14 Correction of Interim Payment Certificates
The Authority Engineer may by an Interim Payment Certificate make any
correction or modification in any previous Interim Payment Certificate issued
by the Authority Engineer.

17.15 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.

17.16 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
doubt, the Parties agree that for the purpose of determining the bonus payable
hereunder, the Contract Price shall always be deemed to be the amount
specified in Clause 17.1.1, and shall exclude any revision thereof for any
reason.

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 ARTICLE 18
INSURANCE

18.1 Insurance for Works

18.1.1 The Contractor shall effect and maintain at its own cost the insurances specified
in Schedule-N and as per the requirements of Applicable Laws.

18.1.2 Subject to the provisions of Clause 19.6, the Contractor shall, in accordance
with the provisions of this Agreement, be liable to bear the cost of any loss or
damage that does not fall within the scope of this Article 18 or cannot be
recovered from the insurers.

18.1.3 Subject to the exceptions specified in Clause 18.1.4 below, the Contractor shall
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;

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.

18.1.4 Notwithstanding anything stated above in Clause 18.1.3, the Authority shall
fully indemnify the Contractor from and against any and all losses, damages,
costs, charges, proceedings and/or claims arising out of or with respect to

(a) The use or occupation of land or any part thereof by the Authority;

(b) The 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

(c) 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 proportionate to the liability of
the Authority, its servants or agents or other contractors not associated with the
Contractor in such injury or damage.

18.1.5 WithoutprejudicetotheobligationsofthepartiesasspecifiedunderClauses
18.1.3 and 18.1.4, the Contractor shall maintain or effect such third party
insurances as may be required under Applicable Laws.

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

18.2 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 18. 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.

18.3 Evidence of Insurance Cover

18.3.1 All insurances obtained by the Contractor in accordance with this Article 18
shall be maintained with insurers on terms consistent with Good Industry
Practice. Within 10 (ten) days of obtaining any insurance cover, the Contractor
shall furnish to the Authority notarised true copies of the certificate(s) of
insurance, copies of insurance policies and premium 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.

18.3.2 The Contractor shall procure and ensure the adequacy of the insurances at all
times in accordance with the provisions of this Agreement.

18.4 Remedy for failure to insure

If the Contractor shall fail to effect and keep in force all insurances for which it
is responsible pursuant hereto, the Authority shall have the option to either keep
in force any such insurances, and pay such premium 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. If either the Contractor or the Authority fails to
comply with any condition of the insurances effected under the contract, the
Party so failing to comply shall indemnify the other Party against all direct
losses and claims (including legal fees and expenses) arising from such failure.
18.5 Waiver of subrogation
All insurance policies in respect of the insurance obtained by the Contractor
pursuant to this Article 18shall include a waiver of any and all rights of
subrogation or recovery of the insurers there under against, inter alia, the
Authority, and its assigns, successors, undertakings and their subsidiaries,

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 Associates, 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.
18.6 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, Associates, 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.

18.7 Cross liabilities

Any such insurance maintained or effected in pursuance of this Article 18 shall

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

18.8 Accident or injury to workmen

Notwithstanding anything contained in this Agreement, it is hereby expressly

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

18.9 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 from and against any liability incurred in
pursuance of this Article 18 Provided that for the purposes of this Clause 18.9,
the Contractor’s personnel/any person employed by the Contractor shall include
the Sub-contractor and its personnel. Provided further that in respect of any
persons employed by any Sub-contractor, the Contractor's obligations to insure
as aforesaid under this Clause 18.9 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.

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18.10 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 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.

18.11 Compliance with policy conditions

The Contractor expressly acknowledges and undertakes to fully indemnify the

Authority from and against all losses and claims arising from the Contractor’s
failure to comply with conditions imposed by the insurance policies effected in
accordance with this Agreement.

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 Part V
Force Majeure and Termination

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 ARTICLE 19
FORCE MAJEURE

19.1 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 19.2,
19.3 and 19.4 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 (a) is beyond the reasonable control of the
Affected Party, and (b) the Affected Party could not have prevented or
overcome by exercise of due diligence and following Good Industry Practice,
and (c) has Material Adverse Effect on the Affected Party.

19.2 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 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 Clause19.3;

(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; or (v) breach of its obligations by the
Contractor under its sub-contracts;

(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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19.3 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 by the Contractor for an aggregate period
exceeding 10 (ten) days in an Accounting Year;

(d) failure of the Authority to permit the Contractor to continue with its
Construction Works, with or without modifications, in the event of
stoppage of such work after discovery of any geological or
archaeological finds;

(e) any failure or delay of a Sub-contractor to the extent caused by any

Indirect Political Event;

(f) any Indirect Political Event that causes a Non-Political Event; or

(g) any event or circumstances of a nature analogous to any of the

foregoing.

19.4 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 Clause17.13;

(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, license, 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, license, authorisation, no objection certificate, exemption,
consent, approval or permit;

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 (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.

19.5 Duty to report Force Majeure Event

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

(a) the nature and extent of each Force Majeure Event which is the subject
of any claim for relief under this Article 19 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.

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

19.5.3 For so long as the Affected Party continues to claim to be 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 19.5.1, and
such other information as the other Party may reasonably request the Affected
Party to provide.

19.6 Effect of Force Majeure Event on the Agreement

19.6.1 Upon the occurrence of any Force Majeure

(a) prior to the Appointed Date, both Parties shall bear their respective
Force Majeure costs.

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

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 (i) 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;

(ii) 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

(iii) upon occurrence of a Political Event, all Force Majeure costs attributable
to such Political Event shall be reimbursed by the Authority to the
Contractor.

For the avoidance of doubt, Force Majeure costs may include costs directly
attributable to the Force Majeure Event, but shall not include debt repayment
obligations, if any, of the Contractor.

19.6.2 Save and except as expressly provided in this Article 19, 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.

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

19.6.4 Force Majeure costs for any event which results in any offsetting compensation
being payable to the Contractor by or on behalf of its sub-contractors shall be
reduced by such amounts that are payable to the Contractor by its Sub-
contractors.

19.7 Termination Notice for Force Majeure Event

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 19, and upon issue of such Termination Notice, this Agreement
shall, notwithstanding anything to the contrary contained herein, stand
terminated forthwith; provided that before issuing such Termination Notice, the
Party intending to issue the Termination Notice shall inform the other Party of
such intention and grant 15 (fifteen) days’ time to make a representation, and
may after the expiry of such 15 (fifteen) days’ period, whether or not it is in
receipt of such representation, in its sole discretion issue the Termination
Notice.

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19.8 Termination Payment for Force Majeure Event

19.8.1 In the event of this Agreement being terminated on account of a Non-Political

Event, the Termination Payment shall be an amount equal to the sum payable
under Clause21.5.

19.8.2 If Termination is on account of an Indirect Political Event, the Termination

Payment shall include:

(a) any sums due and payable under Clause 21.5;and

(b) the reasonable cost, as determined by the Authority Engineer, of the

Plant and Materials procured by the Contractor and transferred to the
Authority for use in Construction, only if such Plant and Materials are in
conformity with the Specifications and Standards;

19.8.3 If Termination is on account of a Political Event, the Authority shall make a

Termination Payment to the Contractor in an amount that would be payable
under Clause 21.6.2 as if it were an Authority Default.

19.9 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.

19.10 Excuse from performance of obligations

If the Affected Party is rendered wholly or partially unable to perform its

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

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

longer duration than is reasonably required by the Force Majeure Event;

(b) the Affected Party shall make all reasonable efforts to mitigate or limit
damage to the other Party arising out of or as a result of the existence or
occurrence of such Force Majeure Event and to cure the same with due
diligence; and

(c) when the Affected Party is able to resume performance of its obligations
under this Agreement, it shall give to the other Party notice to that effect
and shall promptly resume performance of its obligations hereunder.

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 ARTICLE 20
SUSPENSION OF CONTRACTOR’S RIGHTS

20.1 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 (a) suspend carrying out of the
Works or any part thereof, and (b) carry out such Works 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.

20.2 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 in the Contractor 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 20.1 to use during Suspension,
all Intellectual Property belonging to or licensed to the Contractor with respect
to the Project and its design, engineering, construction and maintenance, and
which is used or created by the Contractor in performing its obligations under
the Agreement.

20.3 Revocation of Suspension

20.3.1 In the event that the Authority shall have rectified or removed the cause of
Suspension within a period not exceeding 60 (sixty) days from the date of
Suspension, it shall revoke the Suspension forthwith and restore all rights of the
Contractor under this Agreement. For the avoidance of doubt, the Parties
expressly agree that the Authority may, in its discretion, revoke the Suspension
at any time, whether or not the cause of Suspension has been rectified or
removed hereunder.

20.3.2 Upon the Contractor having cured the Contractor Default within a period not
exceeding 60 (sixty) days from the date of Suspension, the Authority shall
revoke the Suspension forthwith and restore all rights of the Contractor under
this Agreement.

20.4 Termination

20.4.1 At any time during the period of Suspension under this Article 20,
theContractormaybynoticerequiretheAuthoritytorevoketheSuspensionand

91
 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 21 as if it is a Contractor Default under Clause 21.1.

20.4.2 Notwithstanding anything to the contrary contained in this Agreement, in the

event that Suspension is not revoked within 90 (ninety) days from the date of
Suspension hereunder, the Agreement shall, upon expiry of the aforesaid
period, be deemed to have been terminated by mutual agreement of the Parties
and all the provisions of this Agreement shall apply, mutatis mutandis, to such
Termination as if a Termination Notice had been issued by the Authority upon
occurrence of a Contractor Default.

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 ARTICLE 21
TERMINATION

21.1 Termination for Contractor Default

21.1.1 Save as otherwise provided in this Agreement, in the event that any of the
defaults specified below shall have occurred, and the Contractor fails to cure the
default within the Cure Period set forth below, or where no Cure Period is
specified, then within a Cure Period of 60 (sixty) days, the Contractor shall be
deemed to be in default of this Agreement (the “Contractor Default”), unless
the default has occurred as a result of any breach of this Agreement by the
Authority or due to Force Majeure. The defaults referred to herein shall include:

(a) The Contractor fails to provide, extend or replenish, as the case may be,
the Performance Security in accordance with this Agreement;
(b) subsequent to the replenishment or furnishing of fresh Performance
Security in accordance with Clause 7.3, the Contractor fails to cure,
within a Cure Period of 30 (thirty) days, the Contractor Default for
which the whole or part of the Performance Security was appropriated;
(c) the Contractor does not achieve the latest outstanding Project Milestone
due in accordance with the provisions of Schedule-I, 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 of the Project 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 for 30 (thirty) days without
reflecting the same in the current programme and such stoppage has not
been authorised by the Authority Engineer;
(f) the Project Completion Date does not occur within the period specified
in Schedule-I for the Scheduled Completion Date, or any extension
thereof;
(g) failure to complete the Punch List items within the periods stipulated
therefore in Clause12.3;
(h) the Contractor fails to rectify any Defect, the non rectification of which
shall have a Material Adverse Effect on the Project, within the time
specified in this Agreement or as directed by the Authority Engineer;
(i) the Contractor subcontracts the Works or any part thereof in violation of
this Agreement or assigns any part of the Works without the prior
approval of the Authority;

(j) the Contractor creates any Encumbrance in breach of this Agreement;

(k) an execution levied on any of the assets of the Contractor has caused a
Material Adverse Effect;

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 (l) the Contractor is adjudged bankrupt or insolvent, or if a trustee or
receiver is appointed for the Contractor or for the whole or material part
of its assets that has a material bearing on the Project;
(m) the Contractor has been, or is in the process of being liquidated,
dissolved, wound-up, amalgamated or reconstituted in a manner that
would cause, in the reasonable opinion of the Authority, a Material
Adverse Effect;
(n) a resolution for winding up of the Contractor is passed, or any petition
for winding up of the Contractor is admitted by a court of competent
jurisdiction and a provisional liquidator or receiver is appointed and
such order has not been set aside within 90 (ninety) days of the date
thereof or the Contractor is ordered to be wound up by a court except for
the purpose of amalgamation or reconstruction; provided that, as part of
such amalgamation or reconstruction, the entire property, assets and
undertaking of the Contractor are transferred to the amalgamated or
reconstructed entity and that the amalgamated or reconstructed entity
has unconditionally assumed the obligations of the Contractor under this
Agreement; and provided that:
(i) the amalgamated or reconstructed entity has the capability and
experience necessary for the performance of its obligations
under this Agreement; and
(ii) the amalgamated or reconstructed entity has the financial
standing to perform its obligations under this Agreement and has
a credit worthiness at least as good as that of the Contractor as at
the Appointed Date;
(o) any representation or warranty of the Contractor herein contained which
is, as of the date hereof, found to be materially false or the Contractor is
at any time hereafter found to be in breach thereof;
(p) the Contractor submits to the Authority any statement, notice or other
document, in written or electronic form, which has a material effect on
the Authority’s rights, obligations or interests and which is false in
material particulars;
(q) the Contractor has failed to fulfill any obligation, for which failure
Termination has been specified in this Agreement;
(r) the Contractor has failed to make any payment to the Authority within
the period specified in this Agreement; or

(s) 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.

21.1.2 Without prejudice to any other rights or remedies which the Authority may
have under this Agreement, upon occurrence of a Contractor Default, the
Authority shall be entitled to terminate this Agreement by issuing a Termination
Notice to the Contractor; provided that before issuing the Termination Notice,
the Authority shall by a notice inform the Contractor of its intention to issue
such Termination Notice and grant 15 (fifteen) days to the Contractor to make a

94
 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.

21.1.3 After termination of this Agreement for Contractor Default, the Authority may
complete the Works and/or procure its completion through any other entity. The
Authority and such entity may, for this purpose, use any Materials, Plant and
equipment, Contractor’s documents and other design documents made by or on
behalf of the Contractor.

21.2 Termination for Authority Default

21.2.1 In the event that any of the defaults specified below shall have occurred, and the
Authority fails to cure such default within a Cure Period of 90 (ninety) days or
such longer period as has been expressly provided in this Agreement, the
Authority shall be deemed to be in default of this Agreement (the “Authority
Default”) unless the default has occurred as a result of any breach of this
Agreement by the Contractor or due to Force Majeure. The defaults referred to
herein shall include:

(a) the Authority commits a material default in complying with any of the
provisions of this Agreement and such default has a Material Adverse
Effect on the Contractor;
(b) the Authority has failed to make payment of any amount due and
payable to the Contractor within the period specified in this Agreement;
(c) the Authority has failed to provide, within a period of 180 (one hundred
and eighty) days from the Appointed Date, the forest clearances required
for construction of the Project;
(d) the Authority repudiates this Agreement or otherwise takes any action
that amounts to or manifests an irrevocable intention not to be bound by
this Agreement; or
(e) the Authority Engineer fails to issue the relevant Interim Payment
Certificate within 60 (sixty) days after receiving a statement and
supporting documents.
21.2.2 Without prejudice to any other right or remedy which the Contractor may have
under this Agreement, upon occurrence of an Authority Default, the Contractor
shall be entitled to terminate this Agreement by issuing a Termination Notice to
the Authority; provided that before issuing the Termination Notice, the
Contractor shall by a notice inform the Authority of its intention to issue the
Termination Notice and grant 15 (fifteen) days to the Authority to make a
representation, and may after the expiry of such 15 (fifteen) days, whether or
not it is in receipt of such representation, issue the Termination Notice.

21.3 Right of Authority to determine the Agreement

Notwithstanding anything hereinabove, the Authority shall be entitled to

determine and terminate the Agreement at any time should, in the Authority’s
opinion, cessation of the work becomes necessary owing to paucity of funds or
from any other cause whatever, in which case, it will be treated as Authority

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 Default and the Termination Payment shall be made as per Clause 21.6.2.
Notice in writing from the Authority of such determination and the reasons
thereof shall be conclusive evidence thereof. The termination shall take effect
30 (thirty) days from the date of notice hereunder.

21.4 Requirements after Termination

Upon Termination of this Agreement in accordance with the provisions of this

Article 21, the Contractor shall comply with and conform to the following:

(a) Deliver to the Authority all Plant and Materials which shall have
become the property of the Authority under this Article21;
(b) Deliver all relevant records, reports, Intellectual Property and other
licences pertaining to the Works, other design documents and in case of
Termination occurring after the Provisional Certificate has been issued,
the “as built” Drawings for the Works;
(c) Transfer and/or deliver all Applicable Permits to the Authority to the
extent permissible under Applicable Laws; and
(d) Vacate the Site within 15 (fifteen) days.

21.5 Valuation of Unpaid Works

21.5.1 Withinaperiodof45(forty-five)daysafterTerminationunderClause21.1,
21.2 or 21.3, as the case may be, has taken effect, the Authority Engineer shall
proceed in accordance with Clause 16.5 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;
and
(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 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.

21.5.2 The Valuation of Unpaid Works shall be communicated to the Authority, with a
copy to the Contractor, within a period of 45 (forty five) days from the date of
Termination.

21.6 Termination Payment

21.6.1 Upon Termination on account of Contractor Default under Clause 21.1, the
Authority shall:

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 (a) encash and appropriate the Performance Security and Retention Money
and in the event the Contractor has failed to replenish or extend the
Performance Security, claim the amount stipulated
inClause7.1.1,asagreed pre-determined compensation to the Authority for any
losses, delays and cost of completing the Works, if any;
(b) encash and appropriate the bank guarantee, if any, to the extent 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, and all taxes due to be deducted at source.

21.6.2 Upon Termination on account of an Authority Default under Clause 21.2 or

21.3, the Authority shall:

(a) return the Performance Security and Retention Money forthwith;

(b) encash and appropriate the bank guarantee, if any, to the extent of the
outstanding Advance Payment, including interest thereon; and
(c) pay to the Contractor, by way of Termination Payment, an amount equal
to:
(i) Valuation of Unpaid Works;
(ii) the reasonable cost, as determined by the Authority Engineer, of the
Plant and Materials procured by the Contractor and transferred to the
Authority for its use, only if such Plant and Materials are in conformity
with the Specifications and Standards;
(iii) the reasonable cost of temporary works, as determined by the Authority
Engineer;

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.]

21.6.3 Termination Payment shall become due and payable to the Contractor within 30
(thirty) days of a demand being made by the Contractor to the Authority with
the necessary particulars, after the Valuation of Unpaid Works has been
communicated by the Authority Engineer, and in the event of any delay, the
Authority shall pay interest at the Bank Rate plus 3% (three percent), calculated
at quarterly rests, on the amount of Termination Payment remaining unpaid;
provided that such delay shall not exceed 90 (ninety) days. For the avoidance of
doubt, it is expressly agreed that Termination Payment shall constitute full
discharge by the Authority of its payment obligations in respect thereof
hereunder.

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21.6.4 The Contractor expressly agrees that Termination Payment under this Article
21shall 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.

21.7 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 shall, as between the Contractor and the Authority, vest in the
Authority in whole, free from any and all Encumbrances; provided that
the foregoing shall be without prejudice to Clause21.6;
(b) risk of loss or damage to any Materials, Plant or Works and the care and
custody thereof shall pass from the Contractor to the Authority; and
(c) the Authority shall be entitled to restrain the Contractor and any person
claiming through or under the Agreement from entering upon the Site or
any part of the Project except for taking possession of materials, stores,
implements, construction plants and equipment of the Contractor, which
have not been vested in the Authority in accordance with the provisions
of this Agreement.

21.8 Survival of rights

Notwithstanding anything to the contrary contained in this Agreement any

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

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 Part VI
Other Provisions

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 ARTICLE 22

ASSIGNMENT AND CHARGES

22.1 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.

22.2 Hypothecation of Materials or Plant

Notwithstanding the provisions of Clause 22.1, 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. For the avoidance of doubt, all Materials
and Plants shall, upon their incorporation into Works, be free from any and all
Encumbrances without the Authority being required to make any payment to
any person on account of any costs, compensation, expenses and charges for
such Materials, Plants and Works.

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 ARTICLE 23
LIABILITY AND INDEMNITY

23.1 General indemnity

The Contractor will indemnify, defend, save and hold harmless the Authority
and its officers, servants, agents, Government Instrumentalities and
Government owned and/or controlled entities/enterprises, (the “Authority
Indemnified Persons”) against any and all suits, proceedings, actions, demands
and third party claims for any loss, damage, cost and expense of whatever kind
and nature, whether arising out of any breach by the Contractor of any of its
obligations under this Agreement or from any negligence under the Agreement,
including any errors or deficiencies in the design documents, or tort or on any
other ground whatsoever, except to the extent that any such suits, proceedings,
actions, demands and claims have arisen due to any negligent act or omission,
or breach or default of this Agreement on the part of the Authority Indemnified
Persons.
23.2 Indemnity by the Contractor

23.2.1 Without limiting the generality of Clause 23.1, the Contractor shall fully
indemnify, hold harmless and defend the Authority and the Authority
Indemnified Persons from and against any and all loss and/or damages arising
out of or with respect to:
(a) failure of the Contractor to comply with Applicable Laws and
Applicable Permits;
(b) payment of taxes required to be made by the Contractor in respect of the
income or other taxes of the Sub-contractors, suppliers and
representatives; or
(c) non-payment of amounts due as a result of Materials or services
furnished to the Contractor or any of its Sub-contractors which are
payable by the Contractor or any of its Sub-contractors.

23.2.2 Without limiting the generality of the provisions of this Article 23, the
Contractor shall fully indemnify, hold harmless and defend the Authority
Indemnified Persons from and against any and all suits, proceedings, actions,
claims, demands, liabilities and damages which the Authority Indemnified
Persons may hereafter suffer, or pay by reason of any demands, claims, suits or
proceedings arising out of claims of infringement of any domestic or foreign
patent rights, copyrights or other Intellectual Property, proprietary or
confidentiality rights with respect to any materials, information, design or
process used by the Contractor or by the Sub-contractors in performing the
Contractor’s obligations or in any way incorporated in or related to the Project.
If in any such suit, action, claim or proceedings, a temporary restraint order or
preliminary injunction is granted, the Contractor shall make every reasonable
effort, by giving a satisfactory bond or otherwise, to secure the revocation or

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 suspension of the injunction or restraint order. If, in any such suit, action, claim
or proceedings, the Project, 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.

23.3 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
Agreement (the “Indemnified Party”) it shall notify the other Party (the
“Indemnifying Party”) within 15 (fifteen) days of receipt of the claim or
demand and shall not settle or pay the claim without the prior approval of the
Indemnifying Party, which approval shall not be unreasonably withheld or
delayed. In the event that the Indemnifying Party wishes to contest or dispute
the claim or demand, it may conduct the proceedings in the name of the
Indemnified Party, subject to the Indemnified Party being secured against any
costs involved, to its reasonable satisfaction.

23.4 Defence of claims

23.4.1 The Indemnified Party shall have the right, but not the obligation, to contest,
defend and litigate any claim, action, suit or proceeding by any third party
alleged or asserted against such Party in respect of, resulting from, related to or
arising out of any matter for which it is entitled to be indemnified hereunder,
and reasonable costs and expenses thereof shall be indemnified by the
Indemnifying Party. If the Indemnifying Party acknowledges in writing its
obligation to indemnify the Indemnified Party in respect of loss to the full
extent provided by this Agreement, 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.

23.4.2 If the Indemnifying Party has exercised its rights under Clause 23.3, 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).

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23.4.3 If the Indemnifying Party exercises its rights under Clause 23.3, 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 23.4.3 shall be
applicable, the counsel for the Indemnified Party shall have the right to direct
the defence of such claim, demand, action, suit or proceeding on behalf of the
Indemnified Party, and the reasonable fees and disbursements of such counsel
shall constitute legal or other expenses hereunder.

23.5 No consequential claims

Notwithstanding anything to the contrary contained in this Article 23, the

indemnities herein provided shall not include any claim or recovery in respect
of any cost, expense, loss or damage of an indirect, incidental or consequential
nature, including loss of profit, except as expressly provided in this Agreement.

23.6 Survival on Termination

The provisions of this Article 23 shall survive Termination.

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 ARTICLE 24

DISPUTE RESOLUTION

24.1 Conciliation of Disputes

24.1.1 All disputes and differences of any kind whatsoever arising out of or in
connection with the contract, whether during the progress of the work or after
its completion and whether before or after the determination of the contract,
shall be referred by the Contractor to the "Authority" through “Notice of
Dispute” provided that no such notice shall be served later than 30 days after
the date of issue of Completion Certificate by the Authority Engineer.
Authority shall, within 30 days after receipt of the Contractor’s “Notice of
Dispute”, notify the name of conciliator(s) to the Contractor. In case Authority
fails to fix Conciliator within 30 days, Contractor shall be free to approach
Dispute Adjudication Board (DAB) for adjudication of Dispute.
24.1.2 The Conciliator(s) shall assist the parties to reach an amicable settlement in an
independent and impartial manner within the terms of contract. If the parties
reach agreement on a settlement of the dispute, they shall draw up and sign a
written settlement agreement duly signed by Authority Engineer, Contractor
and conciliator(s). When the settlement agreement is signed, it shall be final
and binding on the parties. The conciliators shall be paid fee as fixed by
Ministry of Railways time to time, which shall be shared equally by the
parties.
24.1.3 The parties shall not initiate, during the conciliation proceedings, any
reference to DAB or arbitral or judicial proceedings in respect of a dispute that
is the subject matter of the conciliation proceedings.
24.1.4 The conciliation shall be carried out as per ‘The Arbitration and Conciliation
Act, 1996’ and the proceedings may be terminated as per Section 76 of the
above Act.

24.2 Dispute Adjudication Board (DAB)

24.2.1 A dispute/s if not settled through conciliation, shall be referred to DAB. The
DAB shall consist of a panel of three Retired Railway Officers not below
senior administrative grade (SAG). For this purpose, the Authority will
maintain a panel of DAB members. The complete panel, which shall not be
less than five members, shall be sent by Authority to the Contractor to
nominate one member of the DAB from the panel as Contractor’s nominee
within two weeks of receipt of the panel. On receipt of Contractor’s nominee,
the Authority shall nominate one member from the same panel as Authority’s
nominee for the DAB. Another member shall also be nominated by the
Authority as presiding member of the DAB from the same panel.
24.2.2 The terms of the remuneration of each member of the DAB shall be as fixed
by Ministry of Railways from time to time. Each party shall be responsible for
paying one-half of this remuneration.

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24.2.3 If one or more of the members appointed refuses to act as DAB member, or is
unable or unwilling to perform his functions as DAB member for any reason
whatsoever or dies or in the opinion of the Authority fails to act without undue
delay, the parties shall terminate the mandate of such DAB member and
thereupon new DAB member shall be appointed in the same manner, as the
outgoing DAB member had been appointed.
24.2.4 The Appointment of any may be terminated by mutual agreement of both
parties, but not by the Authority or the Contractor acting alone. Unless
otherwise agreed by both the parties, the appointment of the DAB (including
each member) shall expire upon expiry of this Contract Agreement.
24.2.5 Before start of DAB proceedings, each DAB member shall give the following
certificate to the Authority and the Contractor:
“I have no any past or present relationship in relation to the subject matter in
dispute, whether financial, business, professional or other kind. Further, I
have no any past or present relationship with or interest in any of the parties
whether financial, business, professional or other kind, which is likely to give
rise to justifiable doubts as to my independence or impartiality.”
24.2.6 DAB proceedings shall be conducted as decided by the DAB. The DAB shall
give its decision within 90 days of a Dispute referred to it by any of the Parties,
duly recording the reasons before arriving at the decision. The DAB shall
decide the issue within terms and conditions of the contract. This time limit
shall be extendable subject to the Parties mutual agreement.
24.2.7 The DAB decision shall not be binding on both the parties. In case any party is
not satisfied by the decision of DAB, then the aggrieved party may approach
Standing Arbitral Tribunal for arbitration proceedings. However, even if the
aggrieved party had proceeded for Arbitration as per provisions of this
agreement, 75% of award amount, pending adjudication by the Arbitral
Tribunal/Court of Law, shall be made by party to other party. In case payment
is to be made by Authority to Contractor, the terms & conditions as
incorporated in the Ministry of Railways letter No. 2016/CE(I)/
CT/ARB/3(NITI Aayog) /Pt. dated 08th Mar, 2017 as amended time to time
shall be followed. However, in case Contractor has to pay to the Authority,
then 75% of the award amount shall be deducted by the Authority from the
running bills or other dues of the Contractor, pending adjudication by Standing
Arbitral Tribunal/Court of Law.
24.2.8 No dispute shall be referred to the Arbitral Tribunal unless the same has been
referred to DAB for adjudication. However, in case DAB is not formed due to
any reason, the disputes can be directly referred to Standing Arbitral Tribunal
to adjudicate the dispute.
24.2.9 In the specific cases of any misconduct by any of the members of the DAB,
the parties shall have the right to specifically bring it to the notice of the DAB
such conduct, through a statement filed with necessary documents in proof of

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 such misconduct and the DAB, after taking NOTICE of such conduct initiate
the replacement of the member concerned, in the same manner the member to
be replaced was appointed.
24.2.10 Once the decision is given by DAB, DAB cannot review the decision at its
own or on the request of one party, unless both parties agree for review of
decision by DAB.
24.2.11 In case DAB decision is not challenged by either party within 180 days of
receipt of decision of DAB, the decision shall be considered as final and
parties would be barred for referring the same to Standing Arbitral Tribunal
for adjudication.
24.2.12 The obligation of the Authority and the Contactor shall not be altered by
reasons of issue being or under reference to DAB.
24.2.13 The DAB shall conduct the proceedings at Ernakulam. or any other convenient
venue which shall be decided by DAB in consultations with parties.
24.2.14 It is a term of this contract that the Parties shall not approach any Court of
Law for settlement of such disputes or differences unless an attempt has first
been made by the parties to settle such disputes or differences through DAB
and Standing Arbitral Tribunal.

24.3 Standing Arbitral Tribunal

24.3.1 The arbitration proceedings shall be conducted as per ‘The Arbitration and
Conciliation Act, 1996’. The Arbitral Tribunal shall consist of a panel of three
Retired Railway Officers not below senior administrative grade (SAG). For
this purpose, the Authority shall maintain a panel of arbitrators. The complete
panel, which shall not be less than five members, shall be sent by Authority to
the Contractor to nominate one arbitrator from the panel as Contractor’s
nominee within two weeks of receipt of the panel. On receipt of Contractor’s
nominee, the Authority shall appoint above contractor’s nominee as well as
another from the same panel as Authority’s nominee as arbitrators. Both above
arbitrators shall jointly select presiding arbitrator from the same panel.
24.3.2 If the Contractor fails to select the contractor’s nominee from the panel within
two weeks of the receipt of the said panel, the Authority shall, after giving one
more opportunity to contractor to nominate one as contractor’s nominee within
next two weeks, appoint two arbitrators from the same panel. Both above
arbitrators shall jointly select presiding arbitrator from the same panel.
24.3.3 If one or more of the Arbitrators appointed refuses to act as Arbitrator,
withdraws from his office as Arbitrator, or vacates his office or is unable or
unwilling to perform his functions as Arbitrator for any reason whatsoever or
dies or in the opinion of the Authority fails to act without undue delay, the
parties shall terminate the mandate of such arbitrator and thereupon new
arbitrator shall be appointed in the same manner, as the outgoing arbitrator had
been appointed.
24.3.4 Before start of arbitration proceedings, each appointed arbitrator shall give the
following certificate to the Authority and the Contractor:
“I have no any past or present relationship in relation to the subject matter in
dispute, whether financial, business, professional or other kind. Further, I

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 have no any past or present relationship with or interest in any of the parties
whether financial, business, professional or other kind, which is likely to give
rise to justifiable doubts as to my independence or impartiality in terms of The
Arbitration and Conciliation Act,1996.”
24.3.5 In the specific cases of any misconduct by any of the members of the
TRIBUNAL, the parties shall have the right to specifically bring it to the
notice of the TRIBUNAL such conduct, through a statement filed with
necessary documents in proof of such misconduct and the TRIBUNAL, after
taking NOTICE of such conduct initiate the replacement of the member
concerned, in the same manner the member to be replaced was appointed.
24.3.6 Each party has to prepare and furnish to Standing Arbitral Tribunal and other
party, once in a every six months, an account giving full and detailed
particulars of all claims, which even after decision of DAB are unsettled, to
which the parties may consider themselves entitled to during the last preceding
six months. If any dispute has arisen as regards execution of the works under
the contract, while submitting the said half yearly claims, the parties shall give
full particulars of such dispute in the said submission. After signing Contract
agreement, within 6 months, the parties shall submit all the claims from date
of award of contract in first submission of claims.
24.3.7 The said communication will be the reference of the dispute to the
ARBITRAL TRIBUNAL appointed under the present agreement.
24.3.8 The parties shall submit all the relevant documents in support of their claims
and the reasons for raising the dispute to the TRIBUNAL.
24.3.9 The said claims of the parties so referred to ARBITRAL TRIBUNAL so far it
relates to the disputed claims, shall be treated as Statement of Claims of the
parties and the ARBITRAL TRIBUNAL shall call upon the other party to
submit its reply. The ARBITRAL TRIBUNAL after giving an opportunity of
being heard to both the parties, decide the dispute within a period of Six
months from the date of communication of the dispute under clause 24.3.6
above. The Arbitral Tribunal will pass a reasoned award in writing, while
deciding the Dispute. Once the award is declared, the Arbitral Tribunal cannot
review the same except what is permissible in terms of provisions contained in
Arbitration and Conciliation Act. The parties shall be entitled to the remedies
under the Arbitration and Conciliation Act 1996 or any amendment thereof.
24.3.10 The parties agree that all the claims of any nature whatsoever, which the parties
may have in respect of the work of the preceding six months, should be made
in the said Statements of half yearly claims. If the parties do not raise the
claim, if any, arising from the work done in the preceding six months in the
statement of half yearly claim, to Standing Arbitral Tribunal, the parties shall
be deemed to have waived and given up the claims. The ARBITRAL
TRIBUNAL shall not entertain such disputes, which have not been raised in
the statement of half yearly Claim before the Standing Arbitral Tribunal and
such claims will stand excluded from the scope of arbitration and beyond the
terms of reference to the ARBITRALTRIBUNAL.
24.3.11 The parties agree that where the Arbitral award is for payment of money, no
interest shall be payable on the whole or any part of the money for any period
till the date on which the award is made.

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24.3.12 The obligation of the Authority and the Contactor shall not be altered by
reasons of arbitration being conducted during the progress of work. Neither
party shall be suspended the work on account of arbitration and payments to
the contractor shall continue to be made in terms of the contract and /or as
awarded (except when Award is challenged in the Court in which case the
payments would be as per the court's orders)
24.3.13 The ARBITRAL TRIBUNAL shall remain in force during the entire period the
PRINCIPAL CONTRACT is in force and until the closure of the PRINCIPAL
CONTRACT with the final no claim certificate, which will be filed with
ARBITRAL TRIBUNAL.
24.3.14 The Arbitral Tribunal shall conduct the Arbitration proceedings at Ernakulam
or, any other convenient venue which shall be decided by Tribunal in
consultations with parties.
24.3.15 The cost of arbitration shall be borne equally by the respective parties. The cost
shall inter-alia include fee of the arbitrators as per the rates fixed by the Indian
Railways from time to time.
24.3.16 It is a term of this contract that the Contractor shall not approach any Court of
Law for settlement of such disputes or differences unless an attempt has first
been made by the parties to settle such disputes or differences through
conciliation, DAB and Standing Arbitral Tribunal.
24.3.17 Even in case arbitration award is challenged by a party in the Court of Law,
75% of award amount, pending adjudication by Court of Law, shall be made
by party to other party. In case payment is to be made by Authority to
Contractor, the terms & conditions as incorporated in the Ministry of Railways
letter No. 2016/CE(I)/CT/ARB/3(NITI Aayog)/Pt. dated 08thMar, 2017 as
amended time to time, shall be followed. However, in case Contractor has to
pay to the Authority, then 75% of the award amount shall be deducted by the
Authority from the running bills or other dues of the Contractor, pending
adjudication by Court of Law.
24.3.18 The contract shall be governed by the law for the time being in force in the
Republic of India. In case of any disputes/differences resulting in court cases
between Contractor & Authority, the jurisdiction shall be of Courts at
Ernakulam/Kerala only.

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 ARTICLE 25
MISCELLANEOUS

25.1 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 Kerala shall have exclusive
jurisdiction over matters arising out of or relating to this Agreement.

25.2 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).

25.3 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), save and except as
otherwise specified in this Agreement. All interest payment under this
Agreement shall, save and except as otherwise specified, be 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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25.4 Waiver

25.4.1 Waiver, including partial or conditional waiver, by either Party of any default
by the other Party in the observance and performance of any provision of or
obligations under this Agreement:
(a) shall not operate or be construed as a waiver of any other or subsequent
default hereof or of other provisions of or obligations under this
Agreement;
(b) shall not be effective unless it is in writing and executed by a duly
authorised representative of the Party; and

(c) shall not affect the validity or enforceability of this Agreement in any
manner.

25.4.2 Neither the failure by either Party to insist on any occasion upon the
performance of the terms, conditions and provisions of this Agreement or any
obligation there under 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.

25.5 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

Engineer of any Document or Drawing submitted by the Contractor nor
any observation or inspection of the construction of the Project 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, 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.

25.6 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.

25.7 Survival

25.7.1 Termination shall:

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

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 (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.

25.7.2 All obligations surviving Termination shall only survive for a period of 3
(three) years following the date of such Termination.

25.8 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 Proposal and bid
submissions, as the case may be, shall be deemed to form part of this
Agreement and treated as such.

25.9 Severability

If for any reason whatsoever, 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.

25.10 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.

25.11 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.

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25.12 Successors and assigns

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

25.13 Notices

Any notice or other communication to be given by any Party to the other Party
under or in connection with the matters contemplated by this Agreement shall
be in writing and shall:

(a) in the case of the Contractor, be given by facsimile or e-mail and by

letter delivered by hand to the address given and marked for attention of
the person set out below or to such other person as the Contractor may
from time to time designate by notice to the Authority; provided that
notices or other communications to be given to an address outside
Varkala Sivagiri may, if they are subsequently confirmed by sending a
copy thereof by registered acknowledgement due, air mail or by courier,
be sent by facsimile or e-mail to the person as the Contractor may from
time to time designate by notice to the Authority;

(b) in the case of the Authority, be given by facsimile or e-mail and by letter
delivered by hand and be addressed to the [Head of the Authority] with a
copy delivered to the Authority Representative or such other person as
the Authority may from time to time designate by notice to the
Contractor; provided that if the Contractor does not have an office in
Varkala Sivagiri, it may send such notice by facsimile or e-mail and by
registered acknowledgement due, air mail or by courier; and

(c) any notice or communication by a Party to the other Party, given in

accordance herewith, shall be deemed to have been delivered when in
the normal course of post it ought to have been delivered and in all other
cases, it shall be deemed to have been delivered on the actual date and
time of delivery; provided that in the case of facsimile or e-mail, it shall
be deemed to have been delivered on the working day following the date
of its delivery.

25.14 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.

25.15 Counterparts

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

executed and delivered, shall constitute an original of this Agreement.

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 25.16 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 consent of the Authority.

25.17 Copyright and Intellectual Property rights

25.17.1 As between the Parties, the Contractor shall retain the copyright and other
Intellectual Property rights in the Contractor’s Documents and other design
documents made by (or on behalf of) the Contractor. The Contractor shall be
deemed (by signing this Agreement) to give to the Authority a non-terminable
transferable non-exclusive royalty-free licence to copy, use and communicate
the Contractor’s Documents, including making and using modifications of
them. This licence shall:

(a) apply throughout the actual or intended working life (whichever is

longer) of the relevant parts of the Works,

(b) entitle any person in proper possession of the relevant part of the Works
to copy, use and communicate the Contractor’s Documents for the
purposes of completing, operating, maintaining, altering, adjusting,
repairing and demolishing the Works, and

(c) in the case of Contractor’s Documents which are in the form of

computer programs and other software, permit their use on any
computer on the Site and other places as envisaged by this Agreement,
including replacements of any computers supplied by the Contractor:

25.17.2 The Contractor’s Documents and other design documents made by (or on
behalf of) the Contractor shall not, without the Contractor’s consent, be used,
copied or communicated to a third party by (or on behalf of) the Authority for
purposes other than those permitted under this Clause25.17.

25.17.3 As between the Parties, the Authority shall retain the copyright and other
Intellectual Property rights in this Agreement and other documents made by
(or on behalf of) the Authority. The Contractor may, at its cost, copy, use, and
obtain communication of these documents for the purposes of this Agreement.
They shall not, without the Authority’s consent, be copied, used or
communicated to a third party by the Contractor, except as necessary for the
purposes of the contract.

25.18 Limitation of Liability

25.18.1Neither 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.

25.18.2The 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 Articles21

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 and 23, 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.

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

[Chief Engineer/Const. THE CONTRACTOR by:

North Western Railway] by:

(Signature) (Signature)

(Name) (Name)

(Designation) (Designation)

In the presence of:

1.

2.

{COUNTERSIGNED and accepted by:

Name and particulars of other members of the Consortium/Joint Venture}

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