AGREEMENT

BETWEEN

AGROH BIAORA TOLLWYAS PVT. LTD.

AND
AGROH INFRASTRUCTURE DEVELOPERS
PVT. LTD.

FOR

DEVELOPMENT OF BIAORATO MP/RAJASTHAN

BORDER ROADSECTION OF NH-12 IN THE
STATE OF MADHYA PRADESH.

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TABLE OF CONTENT

Page No.

1.

DEFINITIONS AND INTERPRETATION

1.1
1.2
1.3
1.4
1.5
2.

Definition
Interpretation
Measurements and Arithmetic Conventions
Ambiguities and Discrepancies
Authority of Person Signing Document
SCOPE OF WORKS

2.1

Works to be performed by the Contractor

3.

SITE AND PROJECT FACILITIES

3.1
3.2

Handover of Site
Rights, Title and use of the Site

4.

CONTRACTORS OBLIGATIONS

4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8

Performance of Works
Performance security
Contractors Project Manager
Coordination of Works
Design, Drawings and Engineering
Implementation Schedule
Operation and Maintenance Manual
Contractors Documents

5.

CONTRACTORS OBLIGATIONS DURING IMPLEMENTATION

5.1
5.2
5.3
5.4
5.5
5.6
5.7
5.8
5.9
5.10
5.11
5.12
5.13
5.14
5.15
5.16
5.17
5.18
5.19

Material and Equipments

Reporting of Progress
Rate of Progress
Sub-Contracting
Suspension of Work
Key Site Personnel
Personnel
Site Conditions
Insurance
Inspection
Health and Safety
Co-Ordination of Construction Activities
Quality Assurance Program
Compliance with Applicable Law
Licenses and Permits
Payment of Taxes and Contributions
Environmental Measures
Project Funding
Relics, Fossils, Soil, Timber and Dismantled Materials
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6.

EMPLOYERS OBLIGATION

6.1
6.2
6.3

Permits
Employers Representatives
Independent Engineer

7.

CONTRACT PRICE AND PAYMENT

7.1
7.2
7.3
7.4
7.5
7.6
7.7
7.8

Contract Price
Employers Payment Obligation
Mobilization Advance
Progress Payments
Back Charges
Set off
Withholding
Mode of Payment

7.9

Contract Price in case of Reduction of scope due to non-availability of

Forest Land

8.

CHANGE OF SCOPE

8.1
8.2
8.3
8.4

Change of Scope
Execution for Change of Scope
Change in Contract Price
Change of scope due to non-availability of Forest Land

9.

WORKS COMPLETION

9.1
9.2
9.3
9.4
9.5
9.6
9.7
9.8
9.9
9.10

Testing
Completion
Defects Notification Period
Cost of Remedying Defects
Extension of Defects Notification Period
Failure of Remedy Defects
Removal of Defective Work
Further Tests
Performance Certificate
Unfulfilled obligations

10.

MAINTENANCE

10.1
10.2
10.3
11.

Maintenance
Maintenance during the Implementation Period
Operation and Management from the COD
LIQUIDATED DAMAGES AND BONUS

11.1
11.2
12

Liquidated Damages
Bonus
FORCE MAJEURE

12.1
12.2
12.3

Definition of Force Majeure

Obligation of Notify
Performance of Obligations
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12.4
12.5
13.

Termination due to Force Majeure Event

Liability for other losses, damages etc.
EVENTS OF DEFAULT AND TERMINATION

13.1
13.2
13.3
13.4
13.5

Events of Defaults
Termination due to Events of Default
Termination Payment
Rights of Employer in Termination
Right of Parties

14.

DISPUTE RESOLUTION

14.1
14.2
14.3
15.

Amicable Resolution
Mediation
Arbitration
REPRESENTATIONS AND WARRANTIES, DISCLAIMER

15.1
15.2
15.3

Representations and Warranties of the Contractor

Representations and Warranties of the Employer
Obligation to Notify Change

16.

EFFECTIVE DATE OF AGREEMENT AND TERMINATION

16.1
16.2
16.3
16.4

Effective Date
Activities prior to Notice to Proceed
Notice to Proceed
Termination

17.

MISCELLANEOUS

17.1
17.2
17.3
17.4
17.5
17.6
17.7
17.8
17.9
17.10
17.11
17.12
17.13

Waiver
Benefit
Independent Contractor
Lenders Approval
Survival
Language
Severability
Entire Contract
Other Documents
Amendments
Notices
Assignment and Charges
Law

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This Agreement,being effective from the appointed date issued by Madhya Pradesh
Road development Corporation Ltd. is made on this ___ day of ________2014
(Agreement) by and between: attention
AGROH BIAORA TOLLWAYS PVT. LTD., a company incorporated in Madhya
Pradesh, India, under the Indian Companies Act, 1956 with its registered office
atAqua Point, Old A.B. Road,Umariya Mhow Dist. Indore (MP) , (hereinafter referred to
as the Employer or Concessionaire which expression shall unless repugnant to the
context or meaning thereof be deemed to mean and include its successors and
permitted assigns) of the ONE PART;
AND
M/s. AGROH INFRASTRUCTURE DEVELOPERS PVT. LTD., a company duly
organized and existing under the laws of the Companies Act, 1956 and having its
registered office at Aqua Point, Old A.B. Road,Umariya Mhow Dist. Indore (MP)
(hereinafter referred to as the Contractor, which expression shall unless repugnant
to the context or meaning thereof be deemed to mean and include its successors and
permitted assigns) of the OTHER PART.
WHEREAS
a) The Madhya Pradesh Road Development Corporation Limited (MPRDC or

Concession Authority as the context may require or admit), a statutory body

constituted under the provisions of the Madhya Pradesh Road Development Corporation
Limited Act, 1988, and the Concessionaire have entered into the Concession Agreement
(defined hereinafter) pursuant whereto, the Client has awarded the project envisaging
Development of Biaora-MP/Rajasthan Border Road section of NH-12 on Built,
Operate and Transfer (BOT) Basis in the State of Madhya Pradesh in accordance with
the provisions of the Concession Agreement.

b) The EmployerAGROH BIAORA TOLLWAYS PVT. LTD.is a company promoted by

M/SAGROH INFRASTRUCTURE DEVELOPERS PVT LTD for the Specific
purpose of implementing the Project.
c) By the Concession Agreement dated 26/07/2013 entered into between the
Concession Authority and the Employer, the Concession Authority awarded to the
Employer a Concession for Construction, Development, Operation, Finance and
maintenance of the Project Road.
d) The Contractor has been provided the Concession Agreement for its review and the
Employer has disclosed to the Contractor the project plans and time schedules for the

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implementation of the Project Facilities (Implementation Schedule). The Contractor

has understood the scope of work, specifications, time schedule, obligations and
responsibilities and warranties as enjoined upon the Employer by the MPRDC and
accordingly agreed to enter into this Agreement.
e) The Employer has selected the Contractor to execute the Works (as hereinafter
defined) in respect of Project Road (as defined hereinafter) for a lump sum fixed
price.
f) The Parties hereto have agreed to record the terms and conditions of this
Agreement as appearing hereinafter.
NOW THEREFORE, THE EMPLOYER AND THE CONTRACTOR HEREBY AGREE
AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
Agreement means this agreement together with the schedules, annexure and
appendices, as of the date hereof, as may be modified / amended from time to time in
accordance with the provisions hereof.
Applicable Laws means all laws in force and effect as of the date hereof and which
may be promulgated or brought into force and effect hereinafter in India and/or in the
State of Madhya Pradeshincluding judgments, decrees, injunctions, writs or orders of
any court of record, as may be in force and effect during the subsistence of this
Agreement which the Contractor is required to comply with for proper conduct of its
business including its obligations to execute the Work in accordance with this
Agreement.
Applicable Permits means all clearances, permits, authorizations, consents and
approvals under or pursuant to any of the Applicable Laws, required to be obtained
and maintained by the Contractor in order to execute the Works in accordance with
this Agreement read with the Concession Agreement.
Arbitration Act means the Arbitration and Conciliation Act, 1996 and shall
include any amendment to or any re-enactment thereof as in force from time to time.
Change of Scope shall have the meaning ascribed to it in Section 8.

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Certificate of Payment means the certificate referred to as such in Section 7.3

PROVISIONALCOD means the commercial operations date of the Project which
shall be the date on which the Independent Engineer has issued the Provisional
Certificate or the Completion Certificate on completion of construction of 75% of the
project road length under the provisions of clause 14.3.2 of Concession Agreement.

COD means the date on which the Independent Engineer has issued the
Completion Certificate on completion of construction of the project road length under
the provisions of clause 14.4.2 of Concession Agreement.

Commencement Date means the date on which the Employer has issued Notice
to Proceed to the Contractor in accordance with Sub section 16.3.
Completion Certificate means the certificate to be issued by the Independent
Engineer in accordance with Sub-Section 9.1 b) certificate of completion of
construction of the Project in accordance with the Project Requirements as per the
scope of the Concession agreement.
Concession Agreement means the agreement dated 17/05/2013entered into
between the Concession Authority and the Employer.
Concession Authority means MPRDC as the context may admit or require.
Construction Contract means this agreement to be entered in to between the
Employer and M/s. AGROH INFRASTRUCTURE DEVELOPERS PVT. LTD. for
completion of construction of Project Road and all the associated facilities.
Construction Drawings means the designs and drawings to be prepared by the
Contractor for the purpose of construction of the Project Facilities and shall include
As- Built drawings of the Project Facilities.
Construction Requirements means the requirements as to construction of the
Project and the associated facilities set forth in the Concession Agreement.
Construction Works or Work means all works and things necessary to complete
the Project Highway for use of the traffic and other users thereof in accordance with
this agreement and concession agreement Schedules I, J and L

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Contractor meansAgroh Infrastructure Developers Pvt. Ltd. and includes its

successors and permitted assigns.
Contractors Documents means to include (a) the calculations, drawings,
manuals and models pertaining to the Works; (b) complete set of as-built drawings
and records of the execution of the Works; and (c) other documents of a technical
nature prepared or procured by the Contractor for discharging its responsibilities
under this Agreement.
Contractors Project Manager means a person appointed as such by the
Contractor in accordance with Section 4.3.
Contractors Site Representative means a competent, experienced and qualified
alternate to the Contractors Project Manager approved by the Employer to be located
at the Site during construction, startup, testing and commissioning of the Project
Facilities who will represent the Contractor at the Site in the absence of the
Contractors Project Manager.
Contract Price means the fixed amount inclusive of all taxes, duties etc
designated as such and detailed in Section 7.1.
Defects Liability Period means the period up to completion of rectification of the
defects attributable to the design of the Works or material used for the Works or the
services associated with the completion of the Works that are notified by the
Employer to the Contractor before the expiry of the Defects Notification Period and is
also a period during which maintenance if any on the Project road shall be carried out
by Contractor at his own cost.
Defects Notification Period means the period up to expiry of Six Months from
the date of issuance of the Completion Certificate.
Design Requirements means the design requirements of the Project and the
associated facilities set forth in Schedules of the Concession Agreement.
Detailed Project Report or DPR means the technical DPR including drawings
and CPM, PERT charts preparedin respect of the Project prepared by the contractor
Dispute shall have the meaning ascribed to it at Section 14.1.
Drawings means all of the drawings, designs, calculations and documents
pertaining to the Project Road and other Project Facilities in accordance with the
Design Requirements, as specified in the Detailed Project Report.

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Effective Date means the date of execution of this Agreement.

Emergency means a condition or situation existing or prevailing on or about the
Site/Project Facilities that is likely to endanger the safety of the users thereof or
which poses an immediate threat material damage to any of the Site/Project
Facilities.
Employer meansAGROH BIAORA TOLLWAYS PVT. LTD.and includes its
successors and permitted assigns.
Employers Representative means a person appointed by the Employer under
Section 6.2.
Encumbrance means any encumbrance 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 without limitation
any designation of loss payees or beneficiaries or any similar arrangement under any
insurance policy pertaining to Project Road, physical encumbrances and
encroachments on the Site/Project Facilities.

EPC Project Road under this EPC contract means the site comprising of
Biaorato MP/Rajasthan Border Road section of NH-12 in the state of Madhya Pradesh
Starting from existing chainage Km. 2/6 (project chainage Km. 0/00) at junction of
NH-3 on Biaora Bypass and terminates at existing chainage Km.67/0 (project
chainage Km.61/0)at MP/Rajasthan Border,of whose concession has been awarded
under the Concession Agreement, Further the EPC project Road shall also include
all project assets on the EPC project road length and its subsequent development and
augmentation during the Concession Period in accordance with the provisions of this
Agreement.

Equipment and Materials means any and all materials, machinery, equipment,
computer hardware, computer software and other apparatus, articles, things or items,
incorporated, placed, operated or intended to be incorporated, placed or operated in
the Project Facilities or to be used in the operation and maintenance of the Project
Facilities and to be furnished in connection with performance of the Works and
including the Project Facilities, any items procured by the Contractor to repair or
replace any Equipment and Materials, and spare parts for start-up, testing and
commissioning of the Project Facilities.
Event of Default shall have the meaning ascribed thereto in Section 13.
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Financial Close means the date on which the Financing Documents providing for
funding by the Lenders have become effective and the Employer has immediate access
to such funding under the Financing documents.
Financing Documents means collectively the documents evidencing Lenders
commitment to finance the debt component of cost of the Project.
Force Majeure and Force Majeure Event shall have the meaning ascribed
thereto in Article 12 of this Agreement.
Force Majeure Period means, as determined by the Independent Engineer, or
the Employers Engineer on site, the period commencing from the date of occurrence
of a Force Majeure Event and ending on (i) the date on which the affected party,
acting in accordance with the Good Industry Practice, resumes or should have
resumed such of its obligations the performance of which was excused in terms of
Sub-Section 12.2(b) of (ii) the Termination Date, as applicable.
GoI means the Government of India.
MPRDC means Madhya Pradesh Road Development Corporation
MPRDC Representative means such person or persons as may be authorized in
writing by MPRDCto act on its behalf under this Agreement and shall include
Independent Engineer or any person or persons having authority to exercise any
rights or perform and fulfill any obligations of MPRDC under this Agreement.

Independent Engineer i.e. IE shall mean a firm, company or a body corporate

if any appointed in accordance with the Concession Agreement for performing the
scope of work and providing services set forth in the Concession Agreement, in case
the CA provides for appointment of such Engineer.
Implementation period means the period beginning from the Commencement
date and ending on the issuing of the Final completion certificate as per clause 14.4.2.
of the Concession agreement.
O&M Agreement means the agreement(s) if any entered in to between the
Employer and person(s) qualified and possessing expertise in operating and
maintaining like road facilities for operation and maintenance of the Project Facilities
after the Implementation Period.

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O&M Contractor means the person(s) with whom the Employer may enter into
the O&M Agreement(s) and shall include such persons Sub-Contractors and their
respective successors and assigns.
O&M Requirements means the requirements as to operation and maintenance of
the Project Facilities set forth in the Concession Agreement.
Parties means the parties to this Agreement collectively and Party means either
of the Parties to this Agreement individually.
Performance Certificate shall have the meaning ascribed to it in Section 9.9.
Person or Persons means (unless otherwise specified or required by the
context), any individual, company, corporation, partnership, joint venture, trust,
unincorporated organization, or Governmental Authority or any other legal entity.
Project means financing, construction, operation and maintenance of the EPC
Project Road and the associated facilities and exercise and/or enjoyment by the
Employer of the rights, powers, benefits, privileges, authorizations and the
entitlements in accordance with the provisions of the Concession Agreement.
Project Agreements means collectively this Agreement, Concession Agreement,
O&M Contract(s) if any and any other material agreement entered into or that may
hereafter be entered into by the Employer in connection with the Project.
Project Facilities means all the amenities and facilities situated on the EPC
Project road.
Project Requirements means collectively Construction Requirements and
Maintenance Requirements or any of them as the context may admit or require.
Project Road means road length starting from existing chainage Km. 2/6 (project
chainage Km. 0/00) at junction of NH-3 on Biaora Bypass and terminates at existing
chainage Km.67/0 (project chainage Km.61/0) at MP/Rajasthan Border in the state of
Madhya Pradesh of whose concession has been awarded under the Concession
Agreement and all project assets on the EPC project road length and its subsequent
development and augmentation during the Concession Period in accordance with the
provisions of this Agreement
Protestor means any person engaged in protest action.

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Provisional Certificate means the certificate that may be issued by the

Independent Engineerof MPRDC pending completion of the Punch List items in
accordance with the Provision to Sub-Section 9.1 (b).
Punch List shall have the meaning ascribed thereto in the Provision to SubSection 9.1 (b)
Request for Payment shall have the meaning ascribed thereto in Sub-Section 7.3
(a).
Retention means the amount certified by the Employers Representative and
subject to the Retention Percentage.
Rupees refers to the lawful currency of the Republic of India.
Scheduled Project Completion Date means the date 730 days from the Start
Date.
Site means the Right of way on which the Project Road is situated and which shall
be used by the Contractor under rights granted under this Agreement.
Start Date shall mean the commencement date as defined in the Concession
Agreement which is the date of Financial Closure or the date on which site is handed
over to the Employer by MPRDC whichever is later.
Sub-Contractor means any person to whom any part of the Works has been sub
contracted and the permitted legal successors in title to such person and shall include
the suppliers or Equipment and Materials and other services to the Contractor.
Substitution Agreement means the agreement substantially in the form set out
at Schedule _V_ of the Concession Agreement, to be entered into between the
Concession Authority, Lenders and the Employer.
Tax means and includes all taxes, duties, fees, cess, levies that may be payable by
the Contractor under any Applicable Law
Termination means early termination of this Agreement pursuant to Termination
Notice or otherwise in accordance with the provisions of this Agreement but shall not,
unless the context otherwise requires, include the expiry of this Agreement due to
efflux of time in the normal course.

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Termination Date means the date specified in the Termination Notice as the date
on which Termination occurs.
Termination Notice means the notice of Termination by either Party to the other
Party, in accordance with the applicable provisions of this Agreement.
Termination Payment means the amount payable by Employer to the Contractor
under this Agreement upon Termination for the actual Work done and certified by the
Employers Representative.
Tests means the tests to be carried out in accordance with the Construction
Requirements as specified in Schedule I of the Concession Agreement and the O&M
Requirements if O&M agreement is entered into with the EPC contractor for the EPC
Project Road.
Trespasser means any person (other than Protestor) not entitled to be on the Site.
Works mean all the works that are required to be carried out for construction of
the Project Road and Project Facilities and performance of all the obligations
undertaken by the Contractor under this Agreement in accordance with the Project
Requirements and include any work that may become necessary to satisfy the
requirements and expectations under the Concession Agreement.
1.2

Interpretation

In this Agreement, unless the context otherwise requires,

(a)

any reference to a statutory provision shall include such provision as is from

time to time modified or re-enacted or consolidated so far as such modification
or re-enactment or consolidation applies or is capable of applying to any
transactions entered into hereunder;

(b)

references to Applicable Law shall include the laws, acts, ordinances, rules,
regulations, notifications, guidelines or byelaws which have the force of law in
any State or Union Territory forming part of the Union of India;

(c)

the words importing singular shall include plural and vice versa, and words
denoting natural persons shall include partnerships, firms, companies,
corporations, joint ventures, trusts, associations, organizations or other
entities (whether or not having a separate legal entity);

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(d)

The headings 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;

(f)

References to construction include engineering, procurement, delivery,

transportation, installation, processing, fabrication, testing, commissioning
and other activities incidental to the construction;

(g)

Any reference to any period of time shall mean a reference to that according to
Indian Standard Time;

(h)

Any reference to day shall mean a reference to a calendar day;

(i)

Any reference to month shall mean a reference to a calendar month;

(j)

The Schedules 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;

(k)

any reference at any time to any agreement deed, instrument, license or

document of any description shall be construed as reference to that agreement,
deed, instrument, license or other document as amended, varied,
supplemented, modified or suspended at the time of such reference;

(l)

references to recitals, sections, sub-sections, clauses, or Schedules in this

Agreement shall, except where the context otherwise requires, be deemed to be
references to recitals, sections, sub-sections, clauses and Schedules of or to this
Agreement;

(m)

any agreement, consent, approval, authorization, notice, communication,

information or report required under or pursuant to this Agreement from or
by any Party or the Independent Engineer shall be valid and effectual only if it
is in writing under the hands of duly authorized representative of such Party
or the Independent Engineer, as the case may be, in this behalf and not
otherwise; and

(n)

Unless otherwise stated, 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.

1.3

Measurements and Arithmetic Conventions

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All measurements and calculations shall be in metric system and calculations done to
2 decimal places, with the third digit of 5 or above being rounded up and below 5
being rounded down.
1.4

Ambiguities and Discrepancies

In case of ambiguities or discrepancies within this Agreement, the following shall

apply:
(a)

between two or more Sections of this Agreement, the provisions of specific

Section relevant to the issue under consideration shall prevail over those in
other Sections;

(b)

between the written description on the Drawings and the specifications and
standards, the latter shall prevail;

(c)

between the dimension scaled from the Drawing and its specific written
dimension, the latter shall prevail; and

(d)

between any value written in numerals and that in words, the latter shall
prevail

and any obligation imposed upon the Contractor in one document but not expressly
included in the others shall be performed by the Contractor as if the obligation is
included in all documents forming part of this Agreement.
1.5

Authority of Person Signing Document

A Person signing any document forming a part of this Agreement on behalf of another
shall be deemed to warrant that he has authority to bind such other Person. Any
Person so signing shall submit satisfactory evidence of his authority. Each Party
represents that any Person signing any document forming a part of this Agreement
has the authority to bind such Party.
2.

SCOPE OF WORKS

2.1

Works to be performed by the Contractor

a)

The Contractor shall be responsible for the Construction and commissioning of

Project Road and other Project Facilities as per the specifications. The
Contractor shall be solely responsible for procuring, providing and arranging
for (a) the skilled, semiskilled and unskilled services and personnel; (b) all
Equipments and Material and tools; (c) construction of workshops and
Page 15

site/work offices, whether of a permanent or temporary nature; and (d) all

other resources and things as may be required for performing the Works. The
performance of the Works shall be in conformity with the Project
Requirements and other requirements and standards prescribed under or
pursuant to the Concession Agreement.
b)

The Contractor shall have the right to propose changes or modifications to the
design of the Works, subject to the approval of the IE/MPRDCs representative/
as may be necessary under the terms of Concession Agreement. In the event,
any modifications and/or changes suggested by the Contractor are acceptable
to the IE/MPRDC/for implementation in the construction of the Works, then
any cost savings resulting from adopting the modifications and for changes
suggested by the Contractor shall be to the benefit of the Contractor and
similarly any additional costs incurred due to the adoption of the modifications
and/or changes suggested by the Contractor, shall be borne by the Contractor.

c)

Any inadequacy arising due to the adoption of any modification and/or change
proposed by the Contractor shall be attributable to the Contractor.

d)

The scope of Works to be performed by the Contractor is more particularly

specified in Annexure I of this agreement which in turn shall be
synonymous/identical with the scope of work specified under the terms of
Concession Agreement. The Contractor agrees and confirms that the said
Annexure - I reflects only a general and brief account of the scope of Works
and shall be deemed to include all actions, facilities, works and performances
as may be necessary to complete the Works in compliance with the Concession
Agreement and the Project Requirements.

2.2

No payment by the Employer nor any expression or implication of satisfaction

or acceptance nor any confirmation, certification, determination, consent,
approval or notice by the Independent Engineer or by the Employers
Representative shall restrict, debar, exclude or waive any claims or actions
whatsoever by the Employer for any breach of any obligations by the
Contractor.

3.

SITE AND PROJECT FACILITIES

3.1

Handover of Site

a)

The Contractor shall be handed-over the Site, in as is where is state as and

when handed over by the Concession Authority to the Employer.

b)

Upon the Site or any part thereof being handed over pursuant to the preceding
clause (a), the Contractor shall, have the right to enter, occupy and commence
Page 16

construction works thereon or part thereof and to make at its cost and
expenses such investigation, developments and improvements in the Site as
may be necessary or appropriate to implement the construction works and to
provide Project Facilities in accordance with the provisions of this Agreement.
Provided that the Contractor shall only have possession use and access to the
Site to the same (and no greater) extent as the Employer has been granted
under the Concession Agreement and upon the same terms granted there
under.
3.2

Rights, Title and Use of the Site

a)

The Contractor shall have the right to the use of the Site in accordance with
the provisions of this Agreement and for this purpose it may regulate the
entry and use of the same by persons other than (i) parties of the other Project
Agreements, and (ii) those expressly permitted to enter and use the Site under
any of the Project Agreements for the purposes specified therein.

b)

The Contractor shall not part with or create any Encumbrances on the whole
or any part of the Site save and except as set forth and permitted under this
Agreement.

c)

The Contractor shall not without the prior written approval of the Employer
use the Site for any purpose other than for the purpose of the works under this
Agreement and purposes incidental or necessary thereto.

d)

The Contractor shall allow access to and use of the Site Facilities for
laying/installing telegraph lines, electric lines or for such other public
purposes as the Concession Authority may specify.
Provided that such access or use shall not result in a Material Adverse Effect
and in the event of any physical damage to the Site/Project Facilities on
account thereof, the Contractor shall be responsible to coordinate with the
Concession Authority to get the Site/Project Facilities promptly restored. The
Contractor will not be eligible for any compensation or any other payment from
the Employer on this account unless the same is received by the Employer
from the Concession Authority or the persons who laid/installed telegraphic
lines etc.

e)

The Contractor shall allow access to the Site/Project Facilities to the

authorized representative of Governmental Authority, Employer, Employers
Representative, Lenders representative, Independent Engineer, Lenders
Engineer and any Governmental Authority having jurisdiction over the
Project, including those concerned with safety, security or environment
protection to inspect the Project and to investigate any matter within their
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authority and upon reasonable notice, the Contractor shall provide such
persons assistance reasonably required to catty out their respective duties and
functions.
f)

The Contractor shall be fully responsible for the presence on or around or

entry to the Project Site or any other interference with or affecting the Site or
design and execution of the Works by or caused by any Protestor or Trespasser
or for any act, omission, or default of any such person during the
Implementation Period. Any such interference shall not be a breach of the
obligations of the Employer to provide access to the Site.

4.

CONTRACTORSS OBLIGATIONS

4.1

Performance of the Works

a)

In consideration of the payments to be made by the Employer to the

Contractor as hereinafter mentioned, the Contractor hereby covenants with
the Employer to execute and complete the Works as per specifications and
remedy any defects therein in conformity with the provisions of this
Agreement and the Concession Agreement.

b)

When completed, the Works shall be in strict compliance with the Project
Requirements and other standards and shall satisfy the requirements and
expectations under the Concession Agreement and be fit for the purpose for
which the Works are intended.

c)

The Works shall include any work, which is necessary to satisfy the Project
Requirements and expectations under the Concession Agreement and all
works, which (although not mentioned in the Agreement) are necessary for
stability, completion and proper operation of the Project Facilities.

d)

The Contractor shall:

(i)

execute the Works with adequate skill, care and diligence which may
reasonably be expected from such qualified and experienced professionals with
experience in similar work, having the similar scope and nature, as is required
under the Agreement;
Engineer and execute the Works using the best engineering principles and
practices; and

(ii)

(iii)

Carryout the Works so that the Project Facilities may be fully, efficiently,
economically and safely used, operated and maintained with minimum
interruption for maintenance and repair and otherwise for the purposes
specified or referred to in the Agreement (and the documents referred to in it).

Page 18

e)

The Contractor agrees that it shall at all times save harmless and indemnify
the Employer from and against all claims, liabilities, expenses, costs and losses
suffered or incurred by the Employer which may arise out of or in connection
with any defect, inadequacy or unsuitability of workmanship or materials or
failure to meet in any or all respects the requirements of the Agreement or the
remedying thereof either by the Contractor or by others employed by the
Contractor.

4.2

Performance Security
Contractor shall not be obliged to provide any performance Bank Guarantee to
the Concessionaire under this agreement; however it has agreed to and has
already extended However the EPC contractor shall be obliged to arrange and
extend Bank guarantee equivalent to DSRA/MMRA requirement for the loan
to the concessionaire for the project, as part of its obligation under the EPC
contract which de-facto shall work as a performance guarantee also. its
Corporate Guarantee to the lender for all the project related risks specified in
the financing Agreements.

4.3

Contractors Project Manager

a)

Upon execution of this Agreement, the Contractor shall propose a competent,

experienced and qualified person to serve as the Contractors representative
for (Contractors Project Manager). The Contractor shall provide the
Employer with a resume detailing the experience of such person. The
Employer agrees to approve or disapprove such person within 15 calendar days
of the receipt of the resume, provided that before the expiration of such 15
calendar days period, the Employer may request supplemental information
regarding such person. If supplemental information is requested, the
Contractor shall supply the requested information within 5 calendar days and
the Employer shall have 5 calendar days after receipt of such information to
approve or disapprove the relevant person, provided, however, that the
Employer shall not unreasonably reject the Contractors proposed personnel.
Failure of the Employer to approve or disapprove the person within the time
periods provided herein shall constitute the Employers approval of such
person. If such person proposed by the Contractor is disapproved by the
Employer, the Contractor shall provide the Employer with the resumes of one
or more alternative persons within a reasonable period of time, and the
procedures set forth above shall apply.

b)

The Contractors Project Manager or his authorized designee as approved by

the IE/ Employer shall be present at the Site during all hours while any Work
is being performed at the Site. During non-working hours, the Contractors
Project Manager or his authorized designee shall be on call and available.

Page 19

b) The Contractor will be fully responsible for the acts or omissions of all his
subordinates, agents, workmen, suppliers, consultants, contractors and any
other persons for whom he is contractually responsible for, as if such acts or
omissions were its own.
4.4

Coordination of the Works

a)

The Contractor and Contractors Project Manager shall co-operate and

coordinate with the Employer, the Employers Representative, and the
Independent Engineer, MPRDC representative and shall act as a single
point contact for the Employer, MPRDC, Independent Engineer, Employers
Representative, and other persons associated or involved with the Project.

b)

The Contractor acknowledges that he is aware of terms and conditions of the

other Project Agreements the Employer has entered into in connection with
the performance of its various obligations under the Concession Agreement.
The Contractor is fully aware of the consequences that may result to the
Employer due to a breach by the Contractor of any of its obligations under this
Agreement. In event of the actions of the Contractor results in a breach by the
Employer of any or all of the other Project contracts and such breach imposes a
liability on the Employer, the Contractor shall: (a) undertake all steps possible
to mitigate or neutralize the liability that has arisen, and (b) indemnify the
Employer against such liability and compensate the Employer to that
extent.Provided in case such breach leads to an event of default as stipulated
under the Project Agreement ; no discharge of obligations under this clause
shall be done by the Contractor in priority to discharge of their obligation
under the Corporate Guarantee and other Project Agreements
c) The Contractor shall be responsible for the co-ordination and adequate
provisioning of the Works, including coordinating with other EPC contractors
including the O&M Contractor for the Project or their respective SubContractors if any appointed.
d) The Contractor shall be responsible for the co-ordination of the Utility shifting
activities and removal of tree as stipulated in Article 5 of the Concession
agreement

4.5

Design, Drawings and Engineering

Contractor shall submit the Detailed Drawings forming part of the Detailed
Project Report along with Technical DPR with CPM PERT CHART and
suggest changes to Independent Engineerand for obtaining their consent as
may be applicable under the provisions of MPRDC.

Page 20

Contractor shall be wholly responsible for the detailed engineering design,

drawings and procurement for the entire construction works at his cost.
Contractor shall be responsible for submitting drawings to the Superintendent
Engineer and or MPRDC as specified in respective schedule of the Concession
Agreement. No additional payment of whatsoever nature will be paid by the
Employer UNDER ANY CIRCUMSTANCES
4.6

Implementation Schedule:

a)

Within 15 calendar days after the Effective Date, the Contractor shall deliver
to the Employer a Works schedule (implementation Schedule) describing
comprehensively and in adequate detail the delivery, procurement, fabrication,
transportation, startup, testing and commissioning activities required to
complete the Works in respect to all the Project Facilities and which shall be
reasonably satisfactory to the Employer in all respects. The Implementation
Schedule shall include the following:

b)

(i)

the order in which and the times by when the Contractor proposes to
carry out the Works (including engineering, placement of purchase
order for all major equipment, raw materials and construction, delivery
at site,) so as to demonstrate that the Works will be completed in
accordance with the Implementation Schedule;

(ii)

All significant engineering; fabrication, procurement and related

activities divided into specific, identifiable tasks according to their
importance;

(iii)

The time(s) of submission and approval of the Contractors Drawings

are required; and

(iv)

The times by which the Contractor requires the Employer (i) to provide
access to the Site, and (ii) to have provided such services and supplies
as are stated in this Agreement as being the responsibility of the
Employer.

The Contractor shall perform the Works in accordance with the

Implementation Schedule. If the progress of the Works does not conform to the
Implementation Schedule, the Employer may instruct the Contractor to
suitably revise the implementation program of the other work items of the
Implementation Schedule. The approval by the Employer of the
Implementation Schedule or to any changes or modifications therein shall not
relieve the Contractor from any obligation under this Agreement.

Page 21

c)

The Contractor shall not without the Employers prior written consent make
any alterations to the Implementation Schedule. Consent by the Employer to
an alteration of the Implementation Schedule shall not relieve the Contractor
of any of its obligations under this Agreement.

d)

The details as to status of performance as per the Implementation Schedule

shall be updated monthly or as otherwise directed by the Employer, and the
Contractor shall provide such updates to the Employer with the monthly
progress reports, or as otherwise reasonably required by the Employer.

4.7

Contractors Documents
The Contractor shall make available to the Employer, the Employers
Representative, the Concession Authority, the Independent Engineer and the
Lenders Engineer all the Contractors Documents as may be necessary for
review, verification, inspection, carrying out Tests and exercising their rights
under this Agreement and the Concession Agreement, as the case may be. The
Contractor shall deliver to the Employer all the Contractors Documents at the
time of obtaining the Completion Certificate and at the end of the Defects
Liability Period. The Works shall not be treated as complete until the
Employer, has received all the Contractors Documents.

5.

CONTRACTORSS OBLIGATIONS DURING IMPLEMENTATION:

5.1

Material and Equipment

a)

The Contractor shall mobilize all Equipment and Materials, consumables,

services of others, supplies and utilities required for the design, engineering,
construction and completion of the construction of Project Road and other
Project Facilities, except as otherwise expressly specified in this Agreement.
All costs incurred and the consequences, if any of delay in the implementation
including as a result of Employers rejection of Equipment and Materials not
conforming to the requirements of this Agreement shall be borne by the
Contractor.

b)

The Contractor shall procure and provide all equipment necessary to complete
the Works. All Contractors equipment shall, when brought on to the Site, be
deemed to be exclusively intended for the execution of the Works.

c)

The Contractor shall ensure that all equipment shall be in a sound operating
condition, safe and fit for its intended purpose.

Page 22

d)

The Contractor shall be responsible for loss or damage to all equipment

including Sub Contractors equipment, materials, tools or other articles used,
or held for use, in connection with the Works. The Employer shall have no
responsibility or liability for such equipment and tools or other articles of the
Contractor or its Sub-Contractors. The Employer shall not, under any
circumstances, be considered a bailee of or otherwise be responsible in any way
for the Contractors or its Sub-Contractors construction equipment, tools or
other articles of the Contractor or its Sub-Contractors.

e)

The Contractor shall be responsible for providing and managing at the Site for
the purposes of the Works such supplies of industrial water, gas, air, sanitary
waste removal, rubbish disposal and other utilities necessary for completion of
the Works. The Contractor confirms that the cost of such utilities including
installation and utilization during the Works and their removal at the
completion of the Works at the direction of the Employer is included in the
Contract Price.

5.2

Reporting of Progress

a)

The Contractor shall submit to the Employer monthly progress reports on or

before the twentieth calendar day of each calendar month with regard to the
progress achieved in the immediately preceding month. The Contractor shall
also provide such other data, reports, and documents or assistance as may be
reasonably requested by the Employer. The Contractor shall employ the
reporting procedure, format and schedule as required by the Employer.

b)

The Contractor shall ensure that all documents, including without limitation
invoices, billings, waivers, certifications, releases, and reports, submitted by
the Contractor to the Employer or any other Person under this Agreement, are
complete, accurate and truly reflect the facts about the activities and
transactions to which they pertain and contain no material misstatements or
omissions. The Contractor acknowledges that the Employer and other
recipients will rely on those documents and reports. Acceptance of such
documents shall not constitute the agreement of the Employer with their
contents.

c)

The Contractor shall conduct a monthly (or more frequently if required by the
Employer) progress meeting with the Employer.

5.3

Rate of Progress

a)

If progress does not match the Implementation Schedule, the Contractor shall
take such steps as may be necessary to remedy or mitigate the likely delay,
including on its own initiative and at its own expense, increasing or
supplementing the supervision, labor force and procurement to such an extent
Page 23

as to restore lost sequence or progress to ensure compliance with the

Implementation Schedule.
b)

If the Employer decides that progress does not match the Implementation
Schedule and that this is not due to a circumstance for which the Contractor is
entitled to an extension of time under this Agreement, the Employer may issue
a notice ordering the Contractor to revise the Implementation Schedule at the
Contractors expense. On receipt of such notice, the Contractor shall revise the
Implementation Schedule to show the modifications necessary to ensure that
the COD occurs in accordance with the Implementation Schedule. If the
Employer issues such a notice, it shall not relieve the Contractor from or
operate as a waiver of its obligations to maintain the rate of progress required
by this Agreement.

c)

If the Contractor fails to take necessary steps to remedy or mitigate the delay
and in the opinion of the Employer, the failure of the Contractor to take such
steps is likely to result in a delay in the Implementation Schedule, the
Employer may take such steps as may be necessary (including taking over and
completing the Works), at the Contractors expense, to remedy the delay in
progress of Works. Notwithstanding the immediately preceding sentence, the
Contractor shall at all times be responsible for the Works, irrespective of
whether the Contractor acts as a result of any advice of or reviews by the
Employer.

5.4

Sub-Contracting

a)

The Contractor may, at its discretion and convenience, sub-contract any part of
the Works. The Contractor shall, however, at the earliest possibility, furnish to
the Employer and the Employers Representative the details of the Works subcontracted and of the Sub Contractor(s)

b)

The Contractor shall ensure that all sub-contracts are made in writing and
awarded if persons/ companies are capable of executing the desired works as
per specifications.

c)

The Contractor shall be responsible for observance by all Sub-Contractors of

all the provisions of the Agreement. The Contractor shall be fully responsible
for the acts or defaults of any Sub-Contractor, its agents or employees as if
these were acts or defaults of the Contractor, its agents or employees.

d)

The Contractor shall obtain, co-ordinate and submit to the Employers

Representative for his information all details (including details of work to be
carried out off the Site) from Sub-Contractors. The Contractor shall be
responsible for the locations of their work or materials, in order to ensure that
Page 24

there is no conflict with the work of other Sub Contractors, the Contractor or
other contractors.
e)

All contracts and arrangements between the Contractor and its SubContractors shall be subject to provisions, which the Contractor shall not
waive, release or impair, giving the Contractor an unrestricted right to assign
to the Employer the relevant sub-contract and all benefits, interests, rights
and causes of action arising under it and provisions whereby the Employer
may subsequently assign the sub-contract as it requires.

f)

The Contractor shall assign to the Employer all the Contractors rights under
the sub- contracts warranties within five (5) calendar days from (i) termination
of the Agreement; and (ii) the date of issuance of the Completion Certificate,
whichever is earlier. Till assignment, the Contractor holds these rights in trust
for itself and the Employer.

g)

Pursuant to any assignment, the Contractor shall inform each relevant SubContractor of the assignment. The Contractor shall also use all reasonable
efforts to ensure and procure that each Sub-Contractor delivers to the
Employer written acknowledgement of the assignment.

h)

Nothing contained in the Agreement shall render the Employer in any way
liable to any Subcontractor or supplier and the Contractor shall indemnify and
keep indemnified the Employer against all and any liabilities to, and costs,
claims and demands of whatsoever nature by any Subcontractor or supplier.

5.5

Suspension of Work

a)

The Employers Representative may at any time instruct the Contractor in

writing to suspend progress of part or all of the Works only in the event of
suspension of construction work or part thereof by the Concession Authority or
the Independent Engineer in accordance with the provisions of the Concession
Agreement. The Employers Representative shall record reasons for ordering
such suspension. During any suspension, the Contractor shall:
(i)

protect, store and secure such part or the Works against any
deterioration, loss or damage;

(ii)

place no further sub-contracts in relation to such part or the Works;

and

(iii)

use all reasonable endeavors to suspend on the most favorable terms

available to the Contractor all sub-contracts and agreements for hire to
the extent affected by the suspension and otherwise to minimize the
Page 25

Cost associated with the suspension, provided that unless instructed

otherwise by the Employers Representative, the Contractor shall
during suspension maintain his staff and the Contractors Equipment
on or near the Site, ready to proceed with the Works upon receipt of
permission or instruction to do so.
b)

After the permission or instruction to re-commence the Works is given, the

Parties shall jointly examine the Works and the Equipment and Materials
affected by the suspension. The Contractor shall make good any deterioration
or defect in or loss of the Works or equipment or Materials, which has occurred
during the suspension. However, the Contractor shall not be entitled to cost in
respect of such remedial work.

c)

If the Contractor suffers delay and/or incurs additional cost in following the
Employers Representatives instructions under Sub-section (a) of this Section
5.5 and in resuming the relevant part of the Works, then the Contractor shall
be entitled to give notice to the Employers Representative, with a copy to the
Employer. Any additional liability on the Employer for extension of time for
completion on account of or arising out of suspension shall be only to the
extent, if any, received by the Employer from the Concession Authority.

5.6

Key Site Personnel

a)

Not later than 15 calendar days prior to commencement of Works at the Site,
the Contractor shall propose the Contractors Site Representative and each
individual to act as Key Site Personnel at the Site. Such personnel shall
possess relevant experience in engineering, construction and project
management of road projects. The Contractor shall propose replacement Key
Site Personnel from time to time as necessary or desirable subject to the
approval procedures set forth below.

b)

In proposing Key Site Personnel, the Contractor shall provide the Employer
with resumes detailing the experience of each of such personnel. Following
such proposal, the prior approval of the Employer shall be required before each
person is assigned and accepted as one of the Key Site Personnel. The
Employer agrees to approve or disapprove any such personnel within 15
calendar days of the receipt of the resumes, provided that before the expiration
of such 15 calendar days period, the Employer may request supplemental
information regarding such personnel. If supplemental information is
requested, the Contractor shall supply the requested information within 5
calendar days and the Employer shall have 5 calendar days after receipt of
such information to approve or disapprove the relevant personnel (which
approval shall not be unreasonably denied). Failure of the Employer to approve
or disapprove any such personnel within the time periods provided shall
Page 26

constitute the Employers approval of such personnel. If any such personnel

proposed by the Contractor are disapproved by the Employer the Contractor
shall provide the Employer with the resumes of one or more alternative
persons within a reasonable period of time, and the procedures set forth above
shall apply.
c)

Key Site Personnel may be transferred, replaced, removed, or changed only

after the Employer has approved the Contractors proposed replacement for
any such Key Site Personnel in accordance with the procedures set forth in
this Section. The Contractor may terminate any Key Site Personnel for cause
and, in the event of any such termination or in the event of the death,
retirement, or resignation of any Key Site Personnel, the Employer shall have
the right to approve the Contractors proposed replacement for any such Key
Site Personnel in accordance with the procedures set forth in this Section.

d)

The Contractor agrees that Key Site Personnel shall be assigned at all
appropriate times solely to the performance of the Contractors obligations
under this Agreement and may not perform any other services for the
Contractor or its direct or indirect shareholders, or otherwise inconsistent
with their primary responsibility to perform the Contractors obligations
under this Agreement. Key Site Personnel shall not be absent from the Site for
business not related to the Works without prior notification to the Employer of
the person who will substitute during such persons absence, and the
Contractor shall obtain the Employers approval if such absence may extend
beyond 7 calendar days.

5.7

Personnel:

a)

The Contractor shall provide all personnel required for the Works. The
Contractor shall hire, discharge and designate the classification of work for
each employee in accordance with its best judgment and Good Industry
Practice. The Contractor shall select and supervise its personnel and SubContractors to maximize productivity and to avoid slow-downs, work stoppages
or other disruptive concerted actions of workers. The Contractor represents
that it has the experience and capability including sufficient competent
technical, supervisory and other personnel to perform the Works and shall
continually furnish such personnel until performance of the Works is
completed.

b)

The Contractor shall provide and maintain such accommodation and

amenities as may be necessary for all its staff and labour employed at the Site,
including all fencing, water supply (both for drinking and other purposes),
electricity supply, sanitation, cookhouses, fire prevention and fire-fighting

Page 27

equipment, air-conditioning, cookers, refrigerators, furniture and other

requirements in connection with such accommodation or amenities.
c)

The Contractor shall at all times take all reasonable precautions to prevent
any unlawful, riotous or disorderly conduct by or amongst its staff and labour
and for the preservation of peace and protection of persons and property in the
neighborhood of the Site against such conduct.

d)

Upon notification from the Employer, the Contractor shall remove from the
Site any of its personnel who do not meet the standards of experience,
competency or comportment, or who in the opinion of the Employer otherwise
may be a detriment to the Works or unacceptable to the Employer, and the
Contractor shall ensure such personnel remain uninvolved with any aspect of
the Works. The Contractor shall provide replacements for such personnel
promptly thereafter in order that the performance of the Works in accordance
with the Implementation Schedule is not affected.

5.8

Site Conditions:

a)

The Contractor shall be fully responsible for removal of all encumbrances,

shifting of utilities, land acquisition and performing all works for making the
Site encumbrance free. Payment to the Contractor shall be made only to the
extent of back to back basis as released by the Concession Authority to the
Employer.

b)

Prior to commencement of Works at the Site, the Contractor shall submit an

Environmental Action Plan including fire prevention and firefighting plan for
the Employers approval.

c)

The Contractor shall at all times during the Works keep the Site in a clean,
safe and workmanlike condition.

d)

The Contractor shall at all times during the Works, keep the Site clear of
construction materials and rubbish caused by the Works and promptly after
completion of the Works at the Site shall remove all remaining materials
(other than materials required to be supplied to the Employer in accordance
with this Agreement) from and about the Project Facilities and shall leave the
Project Facilities safe, clean and ready for use.

e)

The Contractor shall promptly dispose of all waste materials and rubbish in
accordance with Good Industry Practice and Applicable Law. If the Contractor
is notified by the Employer to clean up and remove construction debris or
unsafe materials, tools or equipment, and fails to execute the Employers

Page 28

directive within seven (7) calendar days, the Employer shall have the right, but
not the obligation, to correct the matter at the cost and risk of the Contractor.
5.9
a)

Insurance

The Employer shall at its cost and expenses, purchase and maintain insurance
in respect of the following risks:
i)

Builders /Contractors All Risk insurance

ii)
iii)

Third Party Liability

Loss or damage or destruction of the Project Facilities at replacement
value
Any other insurance that the Project Company may be required to take
out under Indian Law for the whole Project during the Implementation
Period.

iv)

Out of the above policies the Contractor shall reimburse to the Employer the
amount of premium paid by the Employer for the CAR policy or shall have the
option to take the CAR policy in its own name.
b)

i)
ii)
iii)

The Contractor shall at its cost expense, purchase and maintain the following
insurances

Workmens Compensation Insurance

Plant and Equipment insurance
Any other insurance that the Contractor may be required to take out under
Indian Law.
c)

The Employer shall not be liable for or in respect of any damages or

compensation payable to any workmen or other person in the employment of
the Contractor, his agents or personnel. The Contractor shall indemnify & and
keep indemnified the Employer against all damages and compensation
including those for paying to the third parties. The Contractor shall insure
against such liability and shall continue such insurance during the whole of
the Implementation Period.

d)

The Third Party Liability Insurance Policy shall include a cross liability clause
such that the insurance shall apply to the Contractor and the Employer as if
both are separately insured.

e)

The Employer shall procure a comprehensive insurance policy in the joint

names of the Employer, the Contractor and the Lenders in connection with the
Project Facilities for full replacement value on an all risk basis and in
accordance with the level and terms required under the Financing Documents.
Page 29

f)

The Contractor shall promptly provide a copy to the Employer of the

Insurances taken for the Project Facilities.

g)

The Contractor shall:

(i)

Whenever reasonably required by the Employer, produce copies of the

policies or certificates of any insurance which it is required to effect
under the Contract, together with receipts for the premiums;

(ii)

effect all insurances for which the Contractor is responsible with an

insurer approved by the Employer;

(iii)

procure or ensure to be procured each policy of insurance include terms

providing that(a) the insurance will not, as against one named party to the insurance,
be invalidated by any act, breach, omission, neglect or failure of
another named party; and
(b) if the policy is to be cancelled, or to be allowed to lapse or suspended
for any reason, or any change is to be made in the cover/policy which
would adversely affect the interests of the Employer (and/or any
others named as a party to the insurance), the cancellation, lapse,
suspension or change will not be effective as against the Employer
(and those others) for twenty eight (28) days after receipt by the
Employer (and those others) of a written notice from the underwriters
or insurers of the cancellation, lapse, suspension or change;

(iv)

the insurance is primary without right of contribution from any other

insurance taken out by the Employer, or the Contractor (or any others
named as a party to the insurance);
(a) in the case of damage to the Works, to the Contractor when the
part of the Works that has been destroyed or damaged has been
fully reinstated to the satisfaction of the Employers
Representative, and
(b)

(v)

in the case of damage or injury to third party, to the person

entitled;

make no material changes to the terms of any insurance without the

Employers approval;
Page 30

(vi)

in all respects comply with any conditions stipulated in the insurance

policies which the Contractor is required to effect under the Agreement
or which the Employer has effected in relation to the Project Facility
and notified to the Contractor; and

(vii)

allow for an assignment of the insurance policies to the Lenders of the

Employer.

h)

Regardless of the extent of settlement of claims by the underwriters or the

time taken for settlement of claims, the Contractor shall make good any loss or
damage at its own cost promptly.

i)

The Contractor shall provide all assistance to the Employer in the application
for, and finalization of, such comprehensive insurance package.

j)

The Contractor shall pay the Contractors share of the insurance premiums for
insurance premiums allocated under such comprehensive insurance package
policy to the insurances directly to the insurance provider promptly on
demand. In case the Contractor fails to make such payment in time, the
Employer may elect to pay the Contractors share and adjust it against
amounts payable to the Contractor under this Agreement.
In the case of occurrence of any event leading to an insurance claim, the
Contractor shall promptly follow the procedures specified by the insurance
provider, and provide full cooperation and access to the insurance provider or
its representative, to settle the claim expeditiously. In addition, the Contractor
shall keep the Employer and/or the Lenders fully informed and shall promptly
submit all reports and documents as may be requested by the Employer and/or
the Lenders.

k)

i)

The Contractor shall require all the Sub-Contractors providing Equipment

and Materials or services to the Contractor or the Employer to obtain,
maintain and keep in force during the time in which they are involved in the
performance of the Works hereunder insurance coverage consistent with the
Contractors insurance obligations hereunder.

m)

The required insurance coverage and Contractors obligations referred to shall

in no way affect or limit the Contractors liability with respect to its
performance of the Works.

n)

Nothing in this Section 5.9 shall limit or relieve the Contractor of its liabilities
and obligations under this Agreement.

Page 31

5.10

Inspection
The Employer, the Concession Authority, the Independent Engineer and the
Lenders / Lenders Engineer may at all times inspect the Site and the Project
Facilities and the appropriate work records of the Contractor and its SubContractors to ascertain the Contractors compliance with this Agreement.
However, neither the existence nor exercise of such right shall relieve the
Contractor of its responsibility for managing or supervising the Works.

5.11

Health and Safety

a)

The Contractor shall at all times during the Implementation Period, be solely
responsible for the adequacy, stability and safety of its operations of Project
Road. The Contractor shall prior to the commencement of work at the Site,
prepare and submit to the Employer for its approval, a comprehensive set of
safety regulations in connection with the Works. The Contractor shall comply
with and shall ensure that all of its employees, agents and Sub-Contractors of
any tier engaged in work at the Site comply with the provisions of such safety
regulations.

b)

The Contractor shall have on its staff at the Site a person dealing with the
safety and protection against accidents of all staff and labour. This person
shall be appropriately qualified for such work and shall have the authority to
issue instructions and to take protective measures in connection with the
prevention of accidents.

c)

The Contractor shall maintain such records and make such reports concerning
safety, health and welfare of persons at the Site and damage to property at the
Site, as the Employer shall from time to time reasonably require consistent
with Good Industry Practice. The Contractor shall in any event report to the
Employer details of any accident occurring at the Site or, if occurring
elsewhere which causes damage to the Project Facilities, as soon as reasonable
after its occurrence.

d)

The Contractor shall at its own cost take all due precautions to ensure the
health and safety of its staff and labour. In the event of the outbreak of any
illness of an epidemic nature, the Contractor shall comply with and carry out
such regulations, orders and requirements of any Governmental Authority for
the purpose of dealing with and overcoming the same.

e)

If the Contractor becomes aware of any hazardous, unsafe, unhealthy or

unsound conditions, it shall promptly notify to the Employer and other affected
Persons and promptly take appropriate steps and actions to eliminate,
terminate, abate or rectify the condition. Whenever, in the opinion of the
Employer, the Contractor has not taken sufficient precautions for the safety of
Page 32

the public or the protection of the Works or of structures or property on or

adjacent to the Project Facilities creating in the opinion of the Employer an
emergency requiring immediate action, then the Employer may, but shall not
be obligated to, direct the Contractor to take such corrective action as the
Employer deems appropriate. The Contractor shall promptly execute corrective
measures as directed by the Employer, and if it fails to do so the Employer
may, but shall not be obligated to, take such actions at the cost and risk of the
Contractor.
f)

The Contractor shall initiate, maintain and supervise all safety measures and
programs in connection with the Works necessary to properly protect all
persons in the proximity of the Project Facilities from injury and danger to
health and all property from damage or loss. The Contractor shall never
permit a hazardous, unsafe, unhealthy or unsound condition or activity to be
conducted at the Site.

g)

The Contractor shall at all times take all reasonably necessary precautions to
protect all staff and labour employed on the Project Facilities from insect
nuisance, vermin and other pests and reduce the dangers to health and the
nuisance occasioned by the same.

h)

Prior to the commencement of work at the Site, the Contractor shall submit to
the Employer a list of any Hazardous Substances and associated Hazardous
Substances data sheets with respect to any Hazardous Substances that the
Contractor anticipates will be located at the Site, installed or otherwise
incorporated into the Project Facilities, or used in performing the Works. Such
list and data sheets shall be updated by the Contractor as required for the
Employer to have a complete list of such Hazardous Substances actual located
at the Site, installed or otherwise incorporated into the Project Facilities, or
used in performing the Works. The Contractors use and disposal of Hazardous
Substances shall at all times comply with Applicable Law. Except with the
prior written approval of the Employer, the Contractor shall remove all
Hazardous Substances from the Site not later than the COD. The Contractor
shall not use or incorporate into the Project Facilities any materials containing
asbestos.

5.12

Co-ordination of Construction Activities with the Employer:

The Contractor may be continuing the performance of its construction and
testing activities under this Agreement while the Project Facilities are in
commercial operation either in the event of occurrence of Provisional COD
pursuant to issuance of Provisional Certificate, or in the course of defects
rectification during the Defects Liability Period. During such period, the
Contractor shall use its best efforts to minimize any interference with the
Page 33

operations of the Project Facilities and shall coordinate its activities with the
Employer.
5.13

Quality Assurance Program:

a)

The Contractor shall implement and shall ensure that each of its SubContractors implements a quality assurance program that meets acceptable
international standards to provide reasonable assurances that the Works are
completed in accordance with the provisions of this Agreement. The
Contractor shall be fully responsible for reviewing and monitoring quality
assurance programs of its Sub-Contractors to reasonably assure such
programs meet acceptable international standards and are being implemented
in accordance with the terms thereof. The Contractor shall provide
information regarding the implementation of the quality assurance program in
the Contractors monthly reports.

b)

Not later than 60 calendar days following the Effective Date, the Contractor
shall present to the Employer for approval the Contractors detailed quality
assurance program and procedures. At the Employers request, the Contractor
shall provide the Employer with the quality assurance program of SubContractors for the Employers review.

5.14

Compliance with Applicable Law:

a)

The Contractor shall observe and abide by all Applicable Law and the
Contractor shall provide and post as appropriate or required by Applicable
Law all Applicable Permits for the Works.

b)

The Contractor shall defend the Employer against the proposed imposition of
any penalty or liability with respect to alleged failures to observe and abide by
Applicable Law. The Contractor shall defend, indemnify and hold the
Employer harmless (including expenses and legal fees) from any liability or
penalty which may be imposed by reason of the Contractors failure to observe
and abide by Applicable Law, and shall pay all legal fees associated with the
enforcement of the indemnity

5.15

Licenses and Permits:

The Contractor shall at its cost and on behalf of the Employer, in a timely
manner so as to not delay the progress of the Works and in any event before
the time required by Applicable Law, obtain all Applicable Permits for
carrying on the Works.

5.16

Payment of Taxes and Contributions

The Contractor shall pay all Taxes other than works contract tax thereon in
consequence of its obligations under the Agreement including import fees and
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customs duties. All such Taxes of the Contractor shall be deemed included in
the Contract Price as stated in this Agreement. The Contractor shall at its
cost defend, indemnify and hold the Employer harmless from all losses
resulting from the Contractors or its vendors or Sub-contractors failure to
make timely payment or comply with the reporting, filing or other
requirements hereunder or under Applicable Law with respect to Taxes.
Notwithstanding the foregoing and any other provision to the contrary in this
Agreement, in no event shall the Employer be or become liable to pay or
otherwise be responsible for the payment of any Taxes other than Works
Contract tax.
5.17

Environmental Measures:
The Contractor shall, in discharging its responsibilities under this Agreement,
comply with the applicable environmental laws and requirements and shall
also be responsible for adopting measures required to ensure compliance
under environmental laws. The Contractor shall take all reasonable
precautions to avoid pollution or contamination of the air, land, or river and
ground water arising out of the performance of the Works. Should there be a
discharge or escape of any appreciable quantity of pollutants or contaminants
during performance of its obligations under this Agreement which occurs as a
result of activities of the Contractor or its Sub-Contractors, the Contractor
shall immediately take all action necessary to contain, control, recover, or
disperse the substance and to eliminate the safety and environmental risks
and correct the damage resulting there from in compliance with Applicable
Law. All costs associated with compliance with this Section shall be deemed to
be included in the Contract Price.

5.18

Project Funding:
The Contractor will provide reasonable cooperation and assistance to the
Employer in arranging for the overall financing for the Project, including but
not limited to cooperation with the Employer and the execution of documents
as may be required to convey consent with respect to the assignment of this
Agreement to the Lenders as security for the financing. Such consent and
agreement shall contain provisions that are customary for project financings.

5.19

Relics, Fossils, Soil, Timber, and Dismantled Materials

All gold, silver, oil, minerals, precious stones, fossils, coins, articles of value or
antiquity, and structures and other relics or remains, or things of geological or
archaeological interest discovered on the Site shall (as between the Parties) be
the property of the Employer. The Contractor shall take reasonable
precautions to prevent its personnel or other persons from removing or
damaging any such article or thing. The Contractor shall immediately upon
discovery of such article or thing, give notice to the Employers Representative,
Page 35

and shall follow the instructions of the Employers Representative in dealing

with it.
The Contractor shall use in the works or otherwise dispose of the sand, stone,
clay, aggregate, rock, or other substances or materials, timber, brush, or
firewood, usufruct of horticulture, dismantled materials such as stone, brick,
wood steel, etc., or any other material obtained at the Site. As between the
Parties, all such materials shall be the property of the Contractor.
6.

EMPLOYERS OBLIGATION:

6.1

Permits:
The Employer shall obtain all the Applicable Permits required of it. The
Employer shall provide all reasonable assistance to the Contractor for
obtaining all Applicable Permits for carrying on the Works and in dealing with
any Governmental Authority so as to enable the Contractor to commence and
execute the Works. However, the onuses of obtaining all requisite statutory
permits are on the Contractors.

6.2

Employers Representatives:

a)

Upon execution of this Agreement, the Employer shall appoint a person to

serve as the Employers representative (Employers Representative) who
shall be authorized to act on behalf of the Employer to act as a single point of
contact with the Contractor with authority to act on behalf of the Employer for
all purposes in connection with this Agreement, except to the extent otherwise
stated in this Agreement or notified to the Contractor by the Employer from
time to time.

b)

The Employers Representative shall carry out the duties specified in, or
necessarily implied from the Agreement and shall exercise the authority
delegated to him, by the Employer. The Employers Representative shall have
no authority to amend the Agreement, to release the Contractor from any of
his duties, obligations or liabilities under this Agreement nor to create any
estoppels against them or the Project Company in respect thereof nor to waive
any right of the Employer under this Agreement. Unless and until the
Employer notifies the Contractor to the contrary, the Contractor shall take
instruction, notices, communication, decisions and approvals only from the
Employers Representative.

6.3

Independent Engineer
The Contractor agrees that it shall bear the fee payable by the Concessionaire
under the Concession Agreement for the services of the Independent Engineer

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appointed for the Project.

7.

CONTRACT PRICE AND PAYMENT:

7.1

Contract Price:
The Employer hereby covenants to pay the Contractor, in consideration of
execution and completion of the Works and the remedying of defects therein,
at the times and in the manner and subject to the necessary contractual and
statutory deductions, an amount of Rs.153.31 Crores. only in aggregate
(Price), being the fixed and lump sum consideration subject to adjustment
in accordance with the Agreement. This Contract price shall be paid by the
Employer to the Contractor at the times and in the amounts and manner
specified in Annexure 1 (b) - Billing Schedule for Payment along with
format of item wise work executed as certified by the Lenders Engineer. The
Contractor shall bear all Taxes, duties, specified insurance and fees payable
on the Contract Price. The Contractor shall be deemed to have satisfied itself
as to the correctness and sufficiency of the Contract Price. Unless otherwise
specifically stated in the Agreement, the Contract Price shall cover all its
obligations under the Agreement, all risks it has agreed to undertake under
the Agreement, associated with the performance of its obligations under the
Agreement and all things necessary for the provision of the Works.

7.2

Employers Payment Obligation:

As full and complete consideration for the Contractors performance of the
Works and obligations under this Agreement, the Employer shall pay the
Contractor the Contract Price. This being a lump sum contract, there will be
no price variation/escalation in the Contract Price for whatsoever reason.

7.3

Mobilization Advance:
Employer shall pay the Contractor an interest free mobilization advance of
an amount equivalent to15% of the Contract price on a date which shall not
be later than 15 days from receipt of first draw down from the Lenders. This
advance shall be recovered from the monthly running account bills of the
Contractor on a proportionate basis of the certified work done value. The
recovery shall commence after completion of 25% of the total work done in
value terms and shall be completed during the period of construction
hereafter.

7.4

Progress Payments:

a)

The Contractor shall submit to the Employer after the end of each month, no
later than 10th calendar day of the succeeding month, three copies of notice in
Page 37

writing (Request for Payment) requesting payment of the sum which it

considers to be due (Monthly Sum) in respect of the preceding month
(Monthly Period) for the Works executed on the Site in the previous month.
The Request for Payment shall be in a form as agreed with the Employers
Representative and should be accompanied by such supporting documents as
the Employers Representative may require establishing the value of the Work
executed. The Request for Payment should inter-alias include:
i)

The amountswhich the Contractor claims to be payable in respect of the

Works executed in the relevant Monthly Period;

ii)

The Taxes paid on behalf of employer except for taxes which though
have to be paid in the name of employer (but which has to be borne by
the EPC contractor that is on account of project permissions which are
required to be taken for the project by EPC contractor and where such
permissions are given in the name of the principal party only),
demanded of and paid by the Contractor in the relevant Monthly
Period; and

iii)

The cumulative amount of the Monthly Sums certified to date.

iv)

The cumulative amount of the Monthly Sums certified to date that

remains unpaid;

and
v)

Any amounts due under Section 8 (Change of Scope)

Less
i)
ii)
iii)

b)

The cumulative amount of payments previously certified as due

to the Contractor and
the amount to be deducted as Retention which shall be of Nil
value of work done in each RA bill; and
any amounts due and owing from the Contractor to the
Employer pursuant to this Agreement including Liquidated
Damages

Certificate of Payment: Within 7 (Seven) days after the receipt of the Request
for Payment, the Employers Representative shall, subject to the Contractors
compliance with Section 7.3 inspect the relevant part of the Works and consult
with the Lenders Engineer in order to satisfy himself that the Request for
Payment is correct.
If the Employers Representative is so satisfied, he shall issue a Certificate of
Payment certifying what amounts are due to the Contractor pursuant to this
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Section 7.3 subject to the provisions of Sub-Section 7.3 (c) (less any amounts
which are subject to a Dispute) after giving credit to the Employer for any
sums to which the Employer is entitled under this Agreement. All Certificate
of Payment shall specify the amount, which the Employer proposes to pay to
the Contractor and the basis on which that amount was calculated. Such
amount shall become due on the issue of the said Certificate of Payment.
c)

In the event the Employer Representative ascertains that the value of the
Works properly executed in the relevant period is less than the Monthly Sum
for that period, he shall include in the Certificate of Payment, the value of the
works so ascertained by him.

d)

The Employer shall make payments to the Contractor as follows:

7.5

(i)

80% of the amounts mentioned in the Request for Payment within 10

calendar days of submission of the Request for Payment; and

(ii)

Balance after adjustments within 15 calendar days from the date of

issue of the relevant Certificate of Payment.

Charges:

If the Employer incurs costs or expenses:

i.

for a failure of the Contractor to perform Works or to remedy deficient Works;

or

ii. to complete the Works which the Contractor has omitted or failed to properly
perform, and provided the Employer has given notice to the Contractor of such
costs and expenses incurred by the Employer and provided there is reasonable
substantiation of such costs and expenses,
the Contractor shall promptly pay or reimburse the Employer for such costs and
expenses on demand. The payment of Bank charges shall be in addition to any other
amounts required to be paid by the Contractor to the Employer hereunder, including
Liquidated Damages.
7.6

Set off:

The Employer may withhold and set off any amount owed by the Contractor to the
Employer determined strictly in accordance with the terms of this Agreement from
any payment due to the Contractor duly informing the Contractor with proper
reasons.

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7.7

Withholding:

The Employer shall be within its rights to withhold any Taxes which are required to
be withheld prior to making a payment to the Contractor and shall furnish a tax
deduction certificate to the Contractor in respect thereof.
7.8

Mode of Payment:

All payments to the Contractor by the Employer and all payments by the Employer to
the Contractor shall be made by wire transfer to a bank account designated by the
Contractor / Employer as the case maybe or by way of Cheques / Demand Drafts

8.

CHANGE OF SCOPE:

8.1

Consequent upon the exercise of by the Concession Authority its right under
sub-article 16.1 of the Concession Agreement to require changes or additional
works on or about the Project Road which are beyond the scope of the Project
as contemplated by the Concession Agreement (Change of Scope), the
Employer shall have an equivalent right to make the same changes to the
Works by following the procedure set out in Section 8.2. The items and
quantities in the BOQ are indicative and change in BOQ is the responsibility
of the contractor

8.2

Procedure for Change of Scope:

a)

Whenever the Concession Authority issues to the Employer a Change of Scope

Notice (as defined in the Concession Agreement) the Employer shall forward a
Change of Scope Notice to the Contractor.

b)

Upon receipt of such Change of Scope Notice, the Contractor shall provide to
the Employer, the Concession Authority and the Independent Engineer such
information as is necessary and reasonable together with preliminary
documentation in support of the following:
(i)

the impact, if any, which the Change of Scope is likely to have on the
Implementation Schedule if the work is required to be carried out
before the completion of the Works;

(ii)

the cost to the Concessionaire of complying with such Change of Scope

Notice (including, without limitation, material and labour cost
information furnished in accordance with the prevailing market rates
applicable to the works assigned by the Concession Authority to its
contractors, including the premium on such rates); and

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(iii)

The options suggested for implementing the proposed Change of Scope

and the effect, if any, each such option would have on the costs and time
for the implementation thereof including a detailed breakdown by work
classifications.

8.3.

Change in Contract Price:

a)

In the case of Change of Scope results in additional cost, the Employer shall
reimburse such additional cost to the Contractor as approved by the
Independent Engineer and only to the extent received/entitled to be received
from the Concession Authority by the employer.
b) In the case of Change of Scope results in reduction of cost, the Employer shall
be entitled for an adjustment for such amount as certified by the Independent
Engineer.

9.

WORKS COMPLETION AND DEFECTS RECTIFICATION:

9.1

Testing:

a)

For the purposes of determining whether the constructions and works are
being undertaken in accordance with the Design Requirements and
Construction Requirements and to be capable of meeting the O&M
Requirements, the Contractor shall with due diligence carry out all necessary
and periodical Tests in accordance with the instructions and under the
supervision of the MPRDC representative /IE and the Construction
Requirements and the O&M Requirements. The Contractor shall maintain
proper record of such Test and the remedial measures taken to cure the defects
or deficiencies, if any, indicted by the Test results.

b)

All Tests shall be conducted in accordance with Construction Requirements &

O&M Requirements. As per the Concession Agreement the Provisional
Completion Certificate will be issued by the Independent Engineeronly if the
Tests are successful and all parts of Project Road can be safely and reliably
opened for commercial operation. Provided that, notwithstanding certain
works or things forming any part of the Project Road are not complete if
following Tests the Independent Engineer determines that the Project Road
can be safely and reliably opened for operations, the Independent Engineer
may issue Provisional Certificate to the Employer/Contractor. The Provisional
Certificate shall have appended thereto a list of outstanding items signed
jointly by the Independent Engineer, Employers Representative and
Contractor (Punch List). All Punch list items shall be completed by the
Contractor with such time as may be determined by the Independent
Engineer, not exceeding 90 (Ninety) calendar days of the date of issue of the

Page 41

Provisional Certificate/ Provisional COD. The issuance of Completion

Certificate by the Independent Engineershall occur only upon completion of all
Punch list items as referred in the Concession Agreement by the Contractor to
the satisfaction of the Independent Engineer.
c)

If the Contractor fails to complete the Punch List items with the said period of
90 days, the Employer may, without prejudice to any other consequences to
which the Contractor is subject to under this Agreement, have such items
completed at the risk and costs of the Contractor. In such an event, the
Contractor shall reimburse to the Employer, the cost incurred in completing
the Punch List Items, with 30 calendar days from the date of receipt of a claim
in respect thereof from the Employer.

d)

The Independent Engineer, may, by written notice, require the Contractor to

suspend forthwith the whole or any part of the Works if in its reasonable
opinion the same is being carried on in a manner that is not in conformity
with the Construction Requirements.

9.2

Completion:
The Contractor shall adhere to the Construction Requirements to ensure
achievement of the COD on or before the Scheduled Project Completion Date.
The construction works for the Project Road shall be deemed to be complete to
open to the Traffic only when the Provisional Certificate or the Completion
Certificate is issued by the Independent Engineerin accordance with the
provisions hereof and as specifically laid down in the respective clause of CA.

9.3

Defects Notification Period:

In order that the Works and Contractors Documents shall be in the condition
required by this Agreement by the expiry date of the Defects Liability Period
or as soon as practicable thereafter, the Contractor shall complete any work
which is outstanding or required to remedy defects or damage, as may be
notified by the Employer, on or before the expiry date of the Defects
Notification Period. If a defect appears or damage occurs, the Employer shall
notify the Contractor accordingly. The Contractor shall be duty bound to carry
out any Maintenance work required to be done on the Project Road at its own
cost during the defect liability period.

9.4

Cost of Remedying Defects:

All work referred to in Section 9.3, shall be executed at the risk and cost of the
Contractor, if and to the extent that the work is attributable to:

Page 42

(i)

Any Project Facility, Work, part of Work, Equipment and Materials or

workmanship not being in accordance with the Contract;

(ii)

Improper maintenance which was attributable to errors for which the

Contractor is responsible; or

(iii)

Failure by the Contractor to comply with any other obligation.

9.5

Extension of Defects Notification Period:

If any obligations arising under the Defects Notification Period remain
unfulfilled, or any defects in the Works are noticed and/or notified by the
Employer or the Employers Representative on or prior to the end of the
Defects Notification Period, then the Defects Notification Period shall be
extended to such extent as would be necessary for the rectifying of the defects
or fulfillment of the remaining obligations in the rectification of the defect. The
Defects Notification Period shall be extended by a period equal to the sum of
any periods during which the Project Facility or any part of it cannot be used
for the purposes for which it is intended by reason of a defect or by reason of
works being undertaken. In any case the extension of Defects Liability period
cannot be extended beyond one year.

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9.6

Failure to Remedy Defects:

If the Contractor fails to remedy any defect or damage within a reasonable
time, as may be notified by (or on behalf of) the Employer, the Employer may
(at its option):
(i) carry out the work himself or by others, in a reasonable manner and at the
Contractors cost and the Contractor shall pay to the Employer such sums
incurred in remedying the defect or damage, but the Contractor shall have
no responsibility for this work;
(ii) Agree or determine a reasonable reduction in the Contract Price: or
(iii) Terminate the Agreement as a whole or in respect of such major part
which cannot be put to the intended use, if the defect or damage deprives
the Employer of substantially the whole benefit of the Works or any major
part of the Works.
Without prejudice to any other rights, under the Agreement or otherwise,
the Employer shall then be entitled to recover from the Contractor all sums
paid for the Works or for such part (as the case may be), plus financing
costs and the cost of dismantling the same, clearing the Site and returning
Materials to the Contractor.

9.7

Removal of Defective Work:

If the defect or damage cannot be remedied expeditiously on the Site and the
Employer gives consent, the Contractor may remove from the Site for the
purposes of repair such parts of Work or Project Facility as are defective or
damaged. This consent may require the Contractor to increase the amount of
the Performance Security by the full replacement cost of these items, or to
provide other appropriate security.

9.8

Further Tests:
If the work involving the remedying of any defect or damage affects the
performance of the Works, the Employer may require the repetition of any of
the Tests described in the Agreement, including Tests on Completion. The
requirement shall be made by providing notice within fourteen (14) days after
the defect or damage is remedied. These Tests shall be carried out at the risk
and cost of the Contractor.

9.9

Performance Certificate:

a)

Performance of the Contractors obligations shall not be considered to have

been completed until the Employer has issued the Performance Certificate to

Page 44

the Contractor, stating the date on which the Contractor completed its
obligations under the Agreement.
b)

The Employer shall issue the Performance Certificate within Fourteen (14)
days after the latest of the expiry date of the Defects Liability Period for
defects other than those attributable to design of the Works or as soon
thereafter as the Contractor has supplied all the Contractors Documents and
completed and tested all the Works, including remedying any defects.

c)

If the Employer fails to issue the Performance Certificate accordingly, the

Performance Certificate shall be deemed to have been issued on the date
twenty one (21) days after the date by which it should have been issued as
required by Sub. Section 9.9 (b).

d)

Only the Performance Certificate shall be deemed to constitute acceptance of

the Works.

9.10

Unfulfilled Obligations:
After the Performance Certificate has been issued, each Party shall remain
liable for the fulfillment of any obligation, which may have remained
unperformed at that time. For the purposes of determining the nature and
extent of unperformed obligations, the Agreement shall be deemed to remain
in force.

10.

MAINTENANCE:

10.1

Maintenance of Project Road:

Project Road and the other facilities shall be capable of being maintained in
accordance with the Maintenance Requirements during implementation
period and up to end of Defects Liability period.

10.2

Maintenance during the Implementation Period:

a)

The maintenance of the Project Facilities during the Implementation Period

shall be the responsibility of the Contractor and the same shall be in
accordance with Maintenance Requirements.

b)

The Contractor shall be responsible for all traffic management on the existing
road forming and for maintenance of the existing road and the Project
Facilities under construction at the levels necessary to allow smooth flow of
traffic. The traffic levels to be maintained by the Contractor, shall, at no time
be at a level lower than that of the existing road till the time the construction
work is commenced on the existing road for its conversion into the Project
Facilities
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c)

The Contractor shall be responsible for all liabilities arising from the alternate
traffic arrangements, all traffic management and maintenance of the existing
road. The cost of maintenance of the existing road, traffic management,
diversions and maintenance of diversions during construction, markings and
signs, lookout persons, construction of temporary cross-drainage works, and
other similar works during the Implementation Period shall be deemed to have
been included in the Contract Price. The Contractor shall plan, organize and
execute the works in a manner so as to cause least disruption to the flow of
traffic and minimal inconvenience to the users. Such operations which involve
road diversions or any other impediments of like nature shall be made
pursuant to the consent of the Employers Representative, for which adequate
notice shall be given by the Contractor. The Contractor shall liaise with
regulatory authorities and various Governmental Authorities before affecting
the aforementioned steps excluding emergencies.

d)

In the event of emergencies the Contractor shall take adequate corrective

measures and notify the Employer and various government agencies as
applicable, without loss of any time and as soon as notification is practicable,
regarding the emergency event.

e)

Prior to the execution of the Work the Contractor shall have prepared and
obtained the approval thereto of the Employers Representative for a
maintenance plan for the Project during the Implementation Period (the
Maintenance Plan-Implementation Period) which shall inter- alia include:
(i)

A Traffic Management Plan

(ii)

A safety management programme including an emergency response

protocol

(iii)

And shall ensure that the Implementation Plan and the Maintenance
Plan-Implementation period comply with the Project Requirements.

10.3 The Contractor in consultation with the Employer shall prepare and deliver to
the Employer prior to making an application for the Provisional Certificate or
the Completion Certificate (whichever is earlier) the operation and
maintenance manual which provides the Employer with such information as it
requires to operate and maintain the Project Facilities and comply with its
obligations under the Concession Agreement.
11.

LIQUIDITY DAMAGES AND BONUS:

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11.1

b)

Liquidated Damages:

a) The contractor shall pay damages (Liquidated Damages) to the Employer for
delay in completion of the project milestones as defined in the Concession
Agreement and in section 9.2.
If the Contractor fails to comply with the time for completion of the whole
works or part of the works, the contractor shall pay to the employer liquidated
damages for such defaults which shall be equivalent to the liquidated damages
imposed on the Employer by MPRDC for delay in the project, reduced to the
proportion which the length of EPC project Road bears to the Length of the Project
road. The employer may, without prejudice to any other method of recovery, deduct
the amount of such damages from any monies due or to become due to the Contractor.
The payment or deduction of such damages shall not relieve the Contractor from his
obligation to complete the works.
11.2

Bonus:
No Bonus shall be payable due to early completion of the project.

12.

FORCE MAJEURE:

12.1

Definition of Force Majeure:

Force Majeure and Force Majeure Event in respect of the Agreement shall
have the same meaning as given in the Concession Agreement. For the
avoidance of doubt, an event shall be a Force Majeure Event under the
Agreement if it would also constitute a Force Majeure Event under the
Concession Agreement.

12.2

Obligation to Notice:

a)

As soon as practicable and in any case within 28 calendar days of the date of
occurrence of a Force Majeure Event or the date of knowledge thereof, the
Affected Party shall notify the other Party of the Force Majeure Event setting
out, inter alia, the following in reasonable detail:
(i)

The nature and extent of the Force Majeure Event;

(ii)

The estimated Force Majeure period;

(iii)

The nature of and the extent to which, performance of any of its

obligations under this Agreement is affected by the Force Majeure
Event;

Page 47

b)

(iv)

the measures which the Affected Party has taken or proposes to take to
alleviate/mitigate the impact of the Force Majeure Event and to resume
performance of such of its obligations affected thereby; and

(v)

Any other relevant information concerning the Force Majeure Event,

and for the rights and obligations of the Parties under this Agreement.

As soon as practicable and in any case within 28 calendar days of notification

by the Affected Party in accordance with the preceding Sub-Section 12.2 (a),
the Parties shall along with the Employers Representative, meet, hold
discussions in good faith and where necessary conduct physical
inspection/survey of the Site in order to:
(i)

assess the impact of the underlying Force Majeure Event;

(ii)

To determine the likely duration of Force Majeure Period; and

(iii)

To formulate damage mitigation measures and steps to be undertaken

by the Parties for resumption of obligations the performance of which
shall have been affected by the underlying Force Majeure Event.

c)

The Affected Party shall during the Force Majeure Period provide to the other
Party with regular (not less than weekly) reports concerning the matters set
out in the preceding clause (ii) as also any information, details or document,
which the other Party may reasonably require.

12.3

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

(i)

The excuse from performance shall be of no greater scope and of no longer

duration than is necessitated by the Force Majeure Event;

(ii)

the Affected Party shall make all reasonable efforts to mitigate or limit
damage, if any, caused or is likely to be caused to the Project Facilities as a
result of the Force Majeure Event and to restore the Project Facilities, in
accordance with the Good Industry Practice and its relative obligations under
this Agreement;

Page 48

(iii)

The Affected Party shall take all remedial measures including duly
prosecuting and exhausting all such remedies available to the Affected Party
under the Applicable Laws;

(iv)

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

(v)

The Affected Party shall continue to perform such of its obligations which are
not affected by the Force Majeure Event and which are capable of being
performed in accordance with this Agreement.

12.4

Termination due to Force Majeure Event:

a)

Termination:
The Contractors employment shall terminate automatically if the Concession
Agreement is terminated as a result of Force Majeure under provisions of the
Concession Agreement.

b)

Obligation of Parties:
Following the Termination, the Parties shall promptly take all such steps as
may be necessary or required to ensure that:

(i)

the Termination Payment, if any, payable by Employer in accordance with the

following Sub-Section (d) is paid to the Contractor not later than 7 (seven) days
after the Termination Date; and
(ii) The Site/Project Facilities are handed back to Employer by the Contractor
on the Termination Date free from all Encumbrances.

c)

Termination Payment:
Pursuant to Termination of the Agreement under Sub-Section 12.4 (a), the
Contractor shall, subject to the rights (if any, available under the financing
documents) of the Lenders, be entitled to receive from the Employer out of the
insurance proceeds or otherwise by way of Termination Payment an amount
equal to:

(i)

The amounts payable for Works carried out as per specifications up to the
Termination Date less payments made under Section 7.3;

(ii)

The cost of materials ordered for the Works which have been delivered to the
Contractor and/or of which the Contractor is liable to accept delivery, such

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materials shall become the property of (and be at the risk of) the Employer
when paid for by the Employer, and the Contractor shall place the same at the
Employers disposal; and
(iii)

Any other cost or liability, which in the circumstances was reasonably

incurred by the Contractor in the expectation of completing the Works.
Provided, however, in the event of Termination arising out of a Political Event
the amount to be received by the Contractor shall not exceed the amount
accrued due and payable to the Contractor under the Agreement less the
amount already paid by the Employer to the Contractor towards Contract
Price.

12.5

Liability for other losses, damages etc.

Save and except as expressly provided in this Section 12 (Force Majeure)
neither Party hereto 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.

13.

EVENTS OF DEFAULT AND TERMINATION:

13.1

Events of Defaults:
Event of Default means either Contractors Event of Default or Employers
Event of Default or both as the context may admit or require.

a)

Contractors Event of Default:

Any of the following events shall constitute an event of default by the
Contractor (Contractors Event of Default)
(i)

The Contractor has failed to adhere to the Construction Requirements

and in the reasonable estimation of the Independent Engineer such
failure is likely to delay achievement of the COD beyond 120 calendar
days of the Schedule Project Completion Date.

(ii)

The Contractor
Requirements.

(iii)

Any representation made or warranties given by the Contractor under

this Agreement is found to be false or misleading.

(iv)

The Contractor has created any Encumbrance on the Site/ Project

Facilities in favour of any Person save as otherwise expressly permitted
under this Agreement.

is

in

Material

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Breach

of

the

Maintenance

b)

(v)

The Contractor has abandoned the Works

(vi)

The Contractor has repudiated this Agreement or has otherwise

expressed an intention not to be bound by this Agreement.

(vii)

The Contractor has suffered an attachment levied on any of the assets

located or comprised in the Site/Project Facilities, causing a Material
Adverse Affect on the execution of the Works and such attachment has
continued for a period exceeding 70 calendar days.

(viii)

The Contractor has delayed any payment that has fallen due under this
Agreement for 70 calendar days or more.

(ix)

The Contractor has otherwise been in Material Breach of any of its

other obligations under this Agreement.

(x)

A resolution has been passed by the shareholders of the Contractor for

the voluntary winding up of the Contractor

(xi)

Any petition for winding up of the Contractor has been admitted and
liquidator or provisional liquidator has been appointed or the
Contractor has been ordered by Court of competent jurisdiction except
for the purpose of amalgamation or reconstruction with the prior
consent of the Employer.

Employers Event of Defaults:

Any of the following events shall constitute an event of default by Employer
(Employers Event of Default), unless caused by a Contractors Event of
Default or a Force Majeure Event:

(i)

Employer is in breach of any of its obligations under this Agreement except

those for which specific remedy has been provided elsewhere, and has failed to
cure such breach within 45 (forty five) calendar days of receipt of notice thereof
issued by the Contractor.

(ii)

Employer has repudiated this Agreement or otherwise expressed its intention

not to be bound by this Agreement.

(iii)

Employer has delayed payment of any amount that has fallen due in terms of
this Agreement beyond 45 calendar days.

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(iv)

Any representation made or warranties given by the Employer under this

Agreement has been found to be false or misleading.

13.2

Termination due to Events of Default:

a)

Termination for Contractor Event of Default:

(i)

Without prejudice to any other right or remedy which Employer may have in
respect thereof under this Agreement, upon the occurrence of a Contractors
Event of Default, Employer shall be entitled to terminate this Agreement by
issuing Termination Notice.

(ii) If Employer decides to terminate this Agreement pursuant to preceding

Clause (i), it shall in the first instance issue Preliminary Notice to the
Contractor. Within 30 calendar days of receipt of the Preliminary Notice, the
Contractor shall submit to Employer in sufficient detail, the manner in which
it proposes to cure the underlying Event of Default (the Contractors Proposal
to Rectify). In case of non submission of the Contractors Proposal to Rectify
within the said period of 30 calendar days, Employer shall be entitled to
terminate this Agreement by issuing Termination Notice.
(iii) If the Contractors Proposal to Rectify is submitted within the period
stipulated there for, the Contractor shall have further period of 15 calendar
days to remedy cure the underlying Event of Default. If, however the
Contractor fails to remedy/cure the underlying Event of Default within such
further period allowed, Employer shall be entitled to terminate this
Agreement.
b)

Termination for Employer Event of Default:

(i)

Without prejudice to any other right or remedy which the Contractor may have
in respect thereof under this Agreement, upon the occurrence of Employer
Event of Default, the Contractor shall be entitled to terminate this Agreement
by issuing Termination Notice.

(ii)

If the Contractor decides to terminate this Agreement pursuant to preceding

Clause (i) it shall in the first instance issue Preliminary Notice to Employer.
Within 30 calendar days of receipt of Preliminary Notice Employer shall
forward to the Contractor its proposal to remedy/cure the underlying Event of
Default (the Employer Proposal to Rectify In case of non-submission of
Employer Proposal to rectify within the period stipulated there for, the
Contractor shall be entitled to terminate this Agreement by issuing
Termination Notice.

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(iii)

c)

If Employer Proposal to Rectify is forwarded to the Contractor within the

period stipulated there for, Employer shall have further period of 30 calendar
days to remedy/cure the underlying Event of Default. If, however Employer
fails to remedy/cure the underlying Event of Default within such further
period allowed, the Contractor shall be entitled to terminate this Agreement
by issuing Termination Notice.
Termination of Concession Agreement:
Subject to the Substitution Agreement, the Contractors employment under
this Agreement shall, without prejudice to the rights of either party in respect
of any antecedent breach or in respect of any obligation which is expressed to
survive the termination of this Agreement, unless previously terminated in
accordance with its terms stand automatically terminated and shall cease to
be effective on the date of termination of the Concession Agreement and,
where the Concession Agreement terminates due to the Employers breach of
the terms of the Concession Agreement and such breach is caused by or arises
out of the Contractors breach of the terms of this Agreement, the Contractor
shall take all reasonable steps to mitigate the costs, expenses and liabilities of
the Employer arising in relation to the Contractors obligations hereunder as a
direct result of such termination. In the event that the Concession Agreement
terminates as a result of the act, omission or default has been caused or
contributed by the act, omission or default of the Contractor, the Contractor
shall be entitled to no further payment under this Agreement and the
Employer shall be entitled to call upon in respect of all losses and claims
howsoever arising against or incurred by the Employer as a result of such
termination.

d)

Termination Notice:
If a Party having become entitled to do so decides to terminate this Agreement
pursuant to the preceding sub-sections (a) or (b), it shall issue Termination
Notice setting out:

(i)

In sufficient detail the underlying Event of Default;

(ii)

The Termination Date which shall be a date occurring not earlier than 50
calendar days from the date of Termination Notice;

(iii)

The estimated Termination Payment including the details of computation

thereof and

(iv)

Any other relevant information.

e)

Obligation of Parties:
Page 53

Following issue of Termination Notice by either Party, the Parties shall

promptly take all such steps as may be necessary or required to ensure that:
(i)

Until Termination the Parties shall, to the fullest extent possible, discharge
their respective obligations so as to maintain the continuity of services to the
users of the Project Facilities,

(ii)

The Termination Payment, if any, payable by Employer in accordance with the

following Section 13.3 is paid to the Contractor not later than 7 (seven) days
after the Termination Date; and

(iii)

Project Road/Project Facilities are handed over to Employer by the Contractor

on the Termination Date free from any Encumbrance.

f)

Withdrawal of Termination Notice:

Notwithstanding anything inconsistent contained in this Agreement, if the
Party who has been served with the Termination Notice cures the underlying
Event of Default to the satisfaction of the other Party at any time before the
Termination occurs, the Termination Notice shall be withdrawn by the Party
which had issued the same. Provided that the Party in breach shall
compensate the other Party for any direct costs/consequences occasioned by
the Event of Default which caused the issue of Termination Notice.

13.3

Termination Payment

a)

In the case of Contractors Event of Default, the Contractor shall be eligible for
any Termination Payment to that extent due to him till termination.

b)

In the case of Employers Event of Default, the Contractor shall be eligible for
amounts certified as due to him till termination date by the Employers
Representative. Provided that the Employer shall be entitled to deduct from
the Termination Payment any amount due and recoverable by the Employer
from the Contractor as up to the Termination Date.

13.4

Rights of Employer on Termination

a)

Upon Termination of this Agreement for an reason whatsoever, Employer shall

upon payment of the Termination Payment to the Contractor have the power
and authority to enter upon and take possession and control of Site/Project
Facilities forthwith and to prohibit the Contractor and any Person claiming
through or under the Contractor from entering upon the Project Site and/or
dealing with the Project Facilities.

b)

Notwithstanding anything contained in this Agreement, the Employer shall

not, as a consequence of Termination or otherwise, have any obligation
Page 54

whatsoever including but not limited to obligations as to compensation for loss

of employment, continuance or regularization of employment, absorption or reemployment on any ground, in relation to any person in the employment of or
engaged by the Contractor in connection with the works, and the hand back of
the Site/Project Facilities by the Contractor to the Employer shall be free from
any such obligation.
13.5

Right of Parties:
Notwithstanding anything to the contrary contained in this Agreement,
Termination pursuant to any of the provisions of this Agreement shall be
without prejudice to accrued rights of either Party including its right to claim
and recover money damages and other rights and remedies which it may have
in law or contract. The rights and obligations of either Party under this
Agreement, including without limitation those relating to Termination
Payment, shall survive the Termination but only to the extent such survival is
necessary for giving effect to such rights and obligations.

14.

DISPUTE RESOLUTION:

14.1

Amicable Resolution

a)

Save where expressly stated to the contrary in this Agreement, any dispute,
difference or controversy of whatever nature howsoever arising under, out of or
in relation to this Agreement, including non-completion of the Works, between
the Parties and so notified in writing by either Party to the other (the
Dispute) in the first instance shall be attempted to be resolved amicably in
accordance with the conciliation procedure set forth in Sub Section 14.1(b)
below.

b)

In the event of any Dispute between the Parties, either Party may call upon
the Employers Representative to mediate and assist the Parties in arriving at
an amicable settlement thereof. Failing mediation by the Employers
Representative or without the intervention of the Employers Representative,
either Party may require such Dispute to be referred to the CEO of the
Employer and the CEO of the Contractor, for the time being for amicable
settlement. Upon such reference, the CEOs of the Contractor and the
Employer shall meet not later than seven (7) days after the date of such
request to discuss and attempt to amicably resolve the Dispute. If such
meeting does not take place within the said period or the Dispute is not
amicably settled within fifteen (15) days of such meeting between the CEOs,
either Party may refer the Dispute to mediation in accordance with Section
14.2 or arbitration in accordance with the provisions of Section 14.3.

14.2

Mediation
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a)

If the Dispute is not amicably resolved the Employer or the Contractor may
within a period of thirty days (30) days after the periods stipulated in SubSection 14.1 (b), give notice to the other Party of its intention to refer the
Dispute to mediation (hereinafter referred to as the Request for Mediation).

b)

Provided, however, if the Request for Mediation is served after the expiration
of the thirty (30) day time limit stipulated in Sub-Section 14.2 (a), the
recipient shall not be obliged to participate in a mediation and the mediation
shall not proceed further without the recipients written consent.

c)

Upon the Dispute being resolved through mediation, such resolution shall be
recorded in a settlement agreement and the Parties shall give effect to this
Agreement accordingly.

14.3

Arbitration

a)

It shall be a condition precedent to the commencement of arbitration

proceedings under his Section 14.3 that the issues arising in the Dispute shall
have been the subject of a reference to mediation in accordance with Section
14.2. If the Parties fail to achieve any settlement at the mediation, either
Party may refer the Dispute to arbitration and the decision of the arbitration
tribunal shall be final.

b)

The arbitration shall be in accordance with the provisions of the Arbitration

and Conciliation Act 1996 (or any modifications thereto or any re-enactments
thereof as may be in force at the time) by an Arbitration Tribunal consisting of
three (3) arbitrators; one (1) each to be appointed by the Employer and the
Contractor and the third to be appointed by the two (2) arbitrators appointed
by the Employer and the Contractor. The Arbitration Tribunal shall issue a
reasoned Award. The place of arbitration shall be Indore,Madhya Pradesh
or such other place in India as the Parties may mutually agree.

14.4

Pending the submission of and/or decision on a dispute and until the arbitral
award is published; the parties shall continue to perform their respective
obligations under this Agreement, without prejudice to a final adjustment in
accordance with such award.

15.

REPRESENTATIONS AND WARRANTIES, DISCLAIMER

15.1

Representations and Warranties of the Contractor

a)

The Contractor represents that it is a qualified engineer, producer packager

and constructor, experienced in work similar to the Works, and that the

Page 56

information provided to the Contractor is sufficient to permit the performance

of the Works and the access rights granted to the Contractor pursuant to this
Agreement are adequate for the performance of the Works and operation of
the existing road.
b)

The Contractor represents that it has inspected the Site and has reviewed
weather data, marine data and all other data provided by the Employer and as
required for the Contractor to enter into this Agreement. The Contractor
represents that the Site is an acceptable place to perform that portion of the
Works required to be performed at the Site and has sufficient lay down areas
and access.

c)

The Contractor represents that it has satisfied itself with respect to all
conditions and circumstances affecting the Works, including the general and
local conditions; technical information and Maintenance Requirements; access
and egress; disposal, handling, and storage of materials; availability and
conditions of roads and rights-of-way; availability of labour and housing;
climatic conditions and seasons and equipment and facilities needed for
performance of the Works.

d)

The Contractor represents that it is satisfied with the proximity of the existing
road to adjacent facilities and structures as proposed mentioned in the Site
and Project Facilities.

e)

The Contractor represents that it has made a complete examination of the

condition of the waterfront and road, rail road and waterways that may be
required to transport the Equipment and Materials to the Site, including the
conditions affecting transportation, access, disposal, handling, and storage of
materials thereto and the local weather conditions based upon previous
weather data.

f)

The Contractor represents that it has made a complete examination of all

other matters that might affect construction, transportation, startup, testing
and commissioning of the Project Facilities or the Contractors performance of
the Works.

g)

The Contractors failure to acquaint itself with any applicable condition, will
neither relieve it from the responsibility for successfully performing this
Agreement, nor entitle the Contractor to a variation order adjusting the
Contract Price or the time for performance.

h)

Without limiting the generality of the foregoing, before the Contractor

performs any applicable Works the Contractor shall check all specifications
Page 57

and be responsible for the correctness of the Works under this Agreement. No
extra charge or compensation will be allowed for duplication of Works because
of an unverified difference between an actual dimension and the measurement
indicated in the specifications. Any discrepancy shall be submitted in writing
to the Employer for consideration before proceeding with the Works.
i)

The Contractor is a corporation duly organized, validly existing and in good

standing under the laws of its jurisdiction of incorporation or formation, is
qualified to do business in India and in any other jurisdiction where such
qualifications may be necessary to perform the Works; the execution, delivery
and performance of this Agreement has been duly authorized by all requisite
corporate action and will not violate any provision of any Applicable Law, or
violate any provision of its charter or bylaws or any indenture, agreement, or
instrument to which the Contractor is a party or by which the Contractor or
its property may be bound or affected; and this Agreement constitutes the
legal, valid and binding obligation of the Contractor, enforceable in accordance
with its terms.

j)

The Contractor is not in violation of any Applicable Law which for either an
individual violation or for a number of violations in the aggregate would
adversely affect its ability to perform its obligations under this Agreement.

k)

The Contractor is the holder of all national, state, local, or other governmental
consents, licenses, permits, or other governmental authorizations required to
conduct its business.

l)

Except as otherwise disclosed in writing to both the Employer and the

Lenders, the Contractor is not a party to any legal, administrative, arbitral,
investigatorial (to the best of its knowledge), or other proceeding or controversy
pending or, to the best of its knowledge, threatened, which would adversely
affect the Contractors ability to perform under this Agreement.

m)

The Contractor by itself and through its Sub-Contractors possesses the full
experience and proper qualifications to perform the Works and to construct the
Project Facilities, including the requisite knowledge of and experience with the
relevant legal, labour and regulatory conditions in India. The Contractor
asserts that it is experienced in the design and procurement and supply of
equipment to be used in the construction of Project Facilities and that it
realizes that completion and refinement of detailing will occur during
performance of this Agreement

n)

The Contractor has obtained, or has no reason to expect that it will not in due
course and without undue delay obtain all Applicable Permits.
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o)

The Contractor further agrees that it will notify the Employer if at any time
prior to the COD any of the foregoing representations and warranties ceases to
be accurate and complete in any material respect.

15.2

Representation and Warranties of the Employer:

The Employer represents and warrantees to the Contractor that;

a)

The Employer has full power and authority to enter into this Agreement and
perform/disclose their obligations contained therein;

b)

The Employer has taken all necessary action to authorize the execution,
delivery and performance of this Agreement.

c)

This Agreement constitutes the Employers legal, valid and binding obligation
enforceable in accordance with the terms thereof

15.3

Obligation to Notice Change:

In the event that any of the representations of warranties made/given by a
party ceases to be true or stand changed, the Party who had made such
representations or given such warranty shall promptly notify the other of the
same.

16.

EFFECTIVE DATE OF AGREEMENT AND TERMINATION

16.1

Effective Date
This Agreement shall be valid and effective from the date first hereinabove
written.

16.2

Activities prior to Notice to Proceed

The Contractor acknowledges that it may be required to undertake certain
activities prior to Notice to Proceed in order to perform the Works in
accordance with the Implementation Schedule, without any liability on the
part of the Employer if this Agreement is canceled or terminated prior to the
issuance of a Notice to Proceed. Such activities shall include physical works of
site mobilization any part of the Site.

16.3

Notice to Proceed
The Employer may issue the Notice to proceed at any time after it has achieved
Financial Closing for the financing of the Facilities.

16.4

Termination
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Unless otherwise terminated pursuant to the express provisions of this

Agreement, this Agreement shall be deemed to have been completed and
terminated upon the expiration of the Defect Liability Period, provided that all
provisions of this Agreement that expressly continue in force and effect after
the expiration of the warranty period or termination of this Agreement shall
remain in effect and be enforceable following such expiration or termination.
17.

MISCELLANEOUS

17.1

Waiver
The failure of either Party to insist in any one or more instances upon strict
performance of any provisions of this Agreement or the waiver with respect to
any default or any other matter hereunder, shall not be construed as a waiver
with respect to any subsequent performance, default or matter. No waiver of
any of the terms or conditions hereof shall be valid or binding unless made in
writing and duly executed by both the parties.

17.2

Benefit
This Agreement and all rights hereunder are intended solely for the benefit of
the Parties hereto, and to the extent provided hereto, for the benefit of the
persons indemnities, and shall not imply or create any rights on the part of, or
obligations to, any other person.

17.3

Independent Contractor
The Parties are independent. 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.
Neither Party shall have any right, 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, unless expressly
agreed otherwise

17.4

Lenders Approval
The Parties recognize that the terms and conditions of this Agreement would
be subject to the approval of the Lenders and agree to incorporate such
changes as may be required without materially altering the commercial
position agreed hereunder. If, as result of a review by the Lenders, additional
changes are required, the Parties agree to discuss and agree to such changes
in good faith.In case of any contradiction between terms and conditions hereof,
and documents executed with lender(s); terms and conditions as executed with
Lender(s) shall have precedence over the terms and conditions stipulated
hereof.
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17.5

Survival
Cancellation, expiration or earlier Termination of the Agreement (i) shall not
relieve the Contractor or the Employer of any obligations hereunder which
expressly or by implication survive Termination hereof; and (ii) except as
otherwise provided in any provision of the Agreement expressly limiting the
liability of either Party, shall not relieve either Party of any obligations or
liabilities for (x) 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; and (y) warranties, remedies, promises of
indemnity and confidentiality.

17.6

Language
All notices, demands, requests, statements, instruments, certificates,
drawings, documents or other communications given, deli or made by, or on
behalf of, either Party to the other under or in connection with this Agreement
shall be in English. The Contractor shall be responsible for the accuracy of the
translation of any document submitted by it to the Employer.

17.7

Severability
Any provision hereof which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof and
without affecting the validity or enforceability of any provision in any other
jurisdiction.

17.8

Entire Contract
This Agreement, together with all Attachments, appendices and any valid
variation orders and amendments constitutes one contract between the Parties
with respect to the matters set out herein, unless specified otherwise in
separate agreement entered into by parties hereto.

17.9

Other Documents
Each Party agrees to execute and deliver any instruments and to perform any
acts which may be necessary or reasonably requested in order to give full effect
to the intent and purpose of this Agreement.

17.10 Amendments
No amendments, supplements or modifications of this Agreement shall be
valid unless evidenced in writing and signed by duly authorized
representatives of both Parties.

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17.11 Notices
Unless otherwise stated, notices to be given under this Agreement including
but not limited to a notice of waiver of any term, breach of any term of this
Agreement and termination of this Agreement, shall be in writing and shall
be given by hand delivery, recognized international courier, mail, telex or
facsimile transmission and delivered or transmitted to the Parties at their
respective addresses set forth below:

If to Employer:
The Director,
AGROH BIAORA TOLLWAYS PVT. LTD.

Aqua Point Old A B Road,

Umariya MHOW
Dist. Indore (MP)
If to Contractor:
Project Manager
AGROH INFRASTRUCTURE DEVELOPERS PVT. LTD.

Aqua Point Old A B Road,

Umariya MHOW
Dist. Indore (MP)
Or such address or facsimile number as may be duly notified by the respective Parties
from time to time, and shall be deemed to have been made or delivered (i) in the case
of any communication made by letter, when delivered by hand, by recognized
international courier or by mail (registered, return receipt requested) at that address
and (ii) in the case of any communication made by telex or facsimile, when
transmitted properly addressed to such telex number or facsimile number.
17.12 Assignment and Charges
a)

Subject to sub-sections (b) and (c) herein below, neither Party shall assign this
Agreement nor the rights, benefits nor obligations hereunder save and except
with prior consent of the other Party.

b)

Except as provided in Sub-Section (c) herein below, the Contractor shall not
create nor permit to subsist any Encumbrance over or otherwise transfer or
dispose of all or any of its rights and benefits under this Agreement except
with prior consent in writing of Employer, which consent Employer shall be
entitled to decline without assigning any reason whatsoever.

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c)
(i)

Restraint set forth in Sub-Sections (a) and (b) above shall not apply to:
liens/encumbrances arising by operation of law (or by an agreement evidencing
the same) in the ordinary course of business of the Contractor;

(ii)

mortgages/pledges/hypothecation of goods/assets other than Project Site, as

security for indebtedness, in favour of the Lenders and working capital
providers for the Project; and

(iii)

assignment of the Contractors rights and benefits under this Agreement to or

in favour of the Lenders as security for financial assistance provided by them.

17.13 Law
The Agreement shall be construed and interpreted in accordance with and
governed by the laws of India and the Courts in the City of Chittor,Madhya
Pradeshshall have exclusive jurisdiction over all matters arising out of or
relating to the Agreement.
17.14 Counterparts
The Parties hereto may sign the Contract in any number of counterparts, all of
which taken together shall constitute one and the same instrument.

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ANNEXURE 1
A. SCOPE / BOQ OF THE WORK SCOPE OF EPC CONTRACTOR

ABSTRACT OF COST
TWO-LANING OF BIAORA-MP/RAJASTHAN ROAD SECTION OF NH-12 IN
THE STATE OF MADHYA PRADESH
S. No.

Item of Work

Bill No.

Rs

Site Clearances and Dismantling

Bill 1 Total

1434487

Earthwork, Erosion Control and

Drainage

Bill 2 Total

76839506

Granular Base, Sub-Base and

Shoulders

Bill 3 Total

245851530

Bituminious Base and Surface & CC

Pavements

Bill 4 Total

Bridges and Culverts

Bill 5 Total

310902990

Drainage & Protective Works

Bill 6 Total

71006435

Traffic Signs, Marking and Other road

Appurtenance

Bill 7 Total

20357869

Miscellenaous

Bill 8 Total

Maintenance

Bill 9 Total

10

Additional Items

Bill 10 Total

106178354

Total Bare Construction Cost

Say (Rs. In crores)

685779315

1518350486
151.84

Independent Consultant fees (Rs. in

crores)

1.47

TOTAL EPC Cost (Rs. In crores)

153.31

*Cost interse in the heads is not fixed and mandatory and may change within the
total EPC construction cost.

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B. BILLING SCHEDULE OF PAYMENT

Sr.No.

Milestone Events

%age of

Milestone

Contract

Amount (in

value

Crores)

Site Clearances and Dismantling

0.09%

0.14

Earthwork, Erosion Control and

Drainage

5.01%

7.68

Granular Base, Sub-Base and Shoulders

16.04%

24.59

Bituminious Base and Surface & CC

Pavements

44.73%

68.58

Bridges and Culverts

20.28%

31.09

Drainage & Protective Works

4.63%

7.10

Traffic Signs, Marking and Other road

Appurtenance

1.33%

2.04

Miscellenaous

0.00%

0.00

Maintenance

0.00%

0.00

10

Additional Items

6.93%

10.62

96.15%

151.84

0.96%

1.47*

100.00%

153.31

Total Construction Cost

Independent Consultant fees
Total EPC Cost including
preliminaries, design & price and
quantity escalation
*Subject to actual amount paid whichever is lower.

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