contract for independent consultancy services · 2018-08-30 · contract for independent...

CONTRACT FOR INDEPENDENT CONSULTANCY SERVICES

BETWEEN

KERALA ROAD FUND BOARD (KRFB)

(TC 4/1654, Mayooram, No.7, Belhaven Gardens, Kowdiar P.O., Thiruvananthapuram – 03)

&

M/s. ULCCS Calicut City Infrastructure Development Private Limited

(OP/IX/1438, Madapally College P.O, Vatakara, Kozhikode – 673102)

And

For

Independent Engineering Services for O&M of roads under Phase I(A) of “Kozhikode City

Road Improvement Project” (KCRIP) on DBFOT – Annuity mode

……….. September 2018

http://www.krfb.org/content/index2/

Draft Agreement Kerala Road Fund Board

GENERAL CONDITIONS OF CONTRACT

1 . GENERAL PROVISIONS ................................................................... 5

1.1 DEFINITIONS ...................................................................................................................................................... 5

1.2 INTERPRETATION ................................................................................................................................................. 8

1.3 THE AGREEMENT ................................................................................................................................................ 9

1.4 RELATION BETWEEN THE PARTIES ......................................................................................................................... 10

1.5 CORRUPTION AND FRAUD ................................................................................................................................... 10

1.6 COMMUNICATIONS ........................................................................................................................................... 10

1.7 AMENDMENT ................................................................................................................................................... 11

1.8 WAIVER .......................................................................................................................................................... 11

1.9 SEVERABILITY ................................................................................................................................................... 11

1.10 AGREEMENT PERIOD .......................................................................................................................................... 11

1.11 SURVIVAL OF RIGHTS: ........................................................................................................................................ 11

1.12 LAW GOVERNING THE CONTRACT ......................................................................................................................... 12

1.13 LANGUAGE ...................................................................................................................................................... 12

1.14 NOTICES .......................................................................................................................................................... 12

1.15 LOCATION ........................................................................................................................................................ 12

1.16 AUTHORITY OF MEMBER IN CHARGE ..................................................................................................................... 12

1.17 AUTHORISED REPRESENTATIVES ........................................................................................................................... 12

1.18 TAXES AND DUTIES ............................................................................................................................................ 12

2 . COMMENCEMENT, COMPLETION, MODIFICATION AND TERMINATION OF CONTRACT ............................................................ 12

2.1 EFFECTIVENESS OF CONTRACT .............................................................................................................................. 12

2.2 COMMENCEMENT OF SERVICES ............................................................................................................................ 13

2.3 EXPIRATION OF CONTRACT .................................................................................................................................. 13

2.4 ENTIRE AGREEMENT .......................................................................................................................................... 13

2.5 MODIFICATION ................................................................................................................................................. 13

2.6 FORCE MAJEURE ............................................................................................................................................... 13

2.7 SUSPENSION..................................................................................................................................................... 15

2.8 TERMINATION .................................................................................................................................................. 15

3 . OBLIGATION OF THE CONSULTANTS ............................................. 17

3.1 GENERAL ......................................................................................................................................................... 17

3.2 CONFLICT OF INTERESTS ..................................................................................................................................... 17

3.3 CONFIDENTIALITY .............................................................................................................................................. 18

3.4 LIABILITY OF THE CONSULTANTS ........................................................................................................................... 18

3.5 INSURANCE TO BE TAKEN OUT BY THE CONSULTANTS ............................................................................................... 18

3.6 ACCOUNTING, INSPECTION AND AUDITING ............................................................................................................. 19

3.7 CONSULTANTS’ ACTIONS REQUIRING CLIENT’S PRIOR APPROVAL ................................................................................ 20

3.8 REPORTING OBLIGATIONS ................................................................................................................................... 20

3.9 DOCUMENTS PREPARED BY THE CONSULTANTS TO BE THE PROPERTY OF THE CLIENT ...................................................... 20

3.10 EQUIPMENT AND MATERIALS FURNISHED BY THE CLIENT .......................................................................................... 20

3.11 CO-ORDINATION WITH THIRD PARTIES .................................................................................................................. 20

4 . CONSULTANTS’ PERSONNEL ......................................................... 21

4.1 GENERAL ......................................................................................................................................................... 21

4.2 DESCRIPTIONS OF PERSONNEL ............................................................................................................................. 21

4.3 APPROVAL OF PERSONNEL .................................................................................................................................. 22

4.4 WORKINGS HOURS, OVERTIME, LEAVE, ETC. .......................................................................................................... 22

4.5 REMOVAL AND/OR REPLACEMENT OF PERSONNEL ................................................................................................... 22

4.6 DEFAULT BY THE INDEPENDENT ENGINEER.............................................................................................................. 23

5 . OBLIGATIONS OF THE CLIENT ....................................................... 24

5.1 ASSISTANCE AND EXEMPTION .............................................................................................................................. 24

5.2 CHANGE IN THE APPLICABLE LAW ......................................................................................................................... 25

5.3 SERVICES, FACILITIES AND PROPERTY OF THE CLIENT ................................................................................................ 25

6 . PAYMENTS TO THE CONSULTANTS ............................................... 25

6.1 PAYMENT ........................................................................................................................................................ 25

6.2 MODE OF BILLING AND PAYMENT ........................................................................................................................ 26

6.3 HOURS OF WORK FOR KEY PERSONNEL ................................................................................................................. 26

7 . CHANGES ..................................................................................... 27

7.1 CHANGES ........................................................................................................................................................ 27

8 . FAIRNESS AND GOOD FAITH ......................................................... 27

8.1 GOOD FAITH .................................................................................................................................................... 27

8.2 OPERATION OF THE CONTRACT ............................................................................................................................ 28

9 . SETTLEMENT OF DISPUTES ........................................................... 28

9.1 AMICABLE SETTLEMENT ...................................................................................................................................... 28

9.2 DISPUTE SETTLEMENT ........................................................................................................................................ 28

SPECIAL CONDITIONS OF CONTRACT

APPENDICES

Appendix A Description of Services (Work Order, ToR and Addendum to RFP)…………….

Appendix B Reporting Requirements………………………………………………………….

Appendix C Approach & Methodology of the firm …………………………………………...

Appendix D Key Personnel ……………………………………………………………………

Appendix E Commitment from Key Personnel ……………………………………………..

Appendix F Activity (Works) Schedule ………………………………………………………

Appendix G Financial Proposal ……………………………………………………………….

Appendix H Performance Guarantee ………………………………………………………….

Appendix I Letter of Intimation ……………………………………………………………...

Appendix J Minutes of Pre-Bid Meeting …………………………………………………..

Appendix K Memorandum of Understanding …………………………………………………

Appendix L Power of Attorney ……………………………………………………………….

Draft Agreement Kerala Road Fund Board

GENERAL CONDITIONS OF CONTRACT

1 . General Provisions

1.1 Definitions

The following words and expressions shall have the meanings assigned to them except where the

context otherwise requires:

"Additional Services" means any services carried out under the Agreement pursuant to a

Change instructed pursuant to Clause 7.1.

"Administered

Contracts"

1.1.1 means the Concession Contract, the Construction Contracts and, the

Operation and Maintenance Contracts in force during the term of this

Agreement together with any other contracts applicable to the Project

agreed by all the Parties in writing to be administered by the Independent

Engineer, or any one of them as the context may require;

"Appendix

(Appendices)"

means the appendices attached to the Contract Agreement and forming

part of the Agreement.

"Agreement" means this Independent Engineer's Agreement; (Work Order, Annexure-

1 (Terms of Reference), General Conditions of Contract, Special

Conditions of Contract, Request for Proposal of the firm and

Appendices.)

“Agreement Period" mean, subject to the provision of Clause 1.10, the period from the

Commencement Date until the Completion Date.

"Conditions" means the document so titled forming part of the Agreement;

"Change" means any change or amendment to any document constituting the

Agreement or to the Services, which is instructed pursuant to Clause 7.1

“Commencement

Date”

Commencement date for the commencement of services under the

agreement shall be the date of issue of Work Order.

"Completion Date" means the date upon which the Consultant has completed in full the

Services to the KRFB's satisfaction.

"Consultant" means the person, persons, firm or firms identified as the Independent

Engineer in this Agreement and include any other person or persons

taken into partnership or association and means the surviving member or

members of such a partnership or association.

“Consultant‟s

Documents”

means all documents to be provided by the Independent Engineer in

accordance with the Agreement.

“Consultant‟s

Programme”

means the detailed programme which will be submitted by the

Consultant identifying proposed activities, commencement and duration

times needed for the accomplishment of the Services.

“Concessionaire” means M/s ULCCS Calicut City Infrastructure Development Private

Limited, Kozhikode, represented by the Director, or his authorised

delegate.

“Contractor” means any person, persons, firm, company, or other form of juristic

entity, including his legal representatives, successors and assignees

under contract with the KRFB to perform the work in connection with

the TOR.

"Day" means calendar days including weekends and public holidays.

“Determination" means the written decision of the KRFB, pursuant to Clause 7.1, on a

matter of dispute under the Agreement.

"Effective Date" means the date when all conditions pursuant to Clause 1.3.6 are fulfilled.

"Force Majeure" means those circumstances so described in Clause 2.6 as constituting

Force Majeure.

"General Conditions of

Engagement"

means the document so titled forming part of the Agreement.

"GoodDesign,

Engineering and

Construction

Practices"

means the best relevant international practices, standards and methods

approved by MoRTH, with respect to the planning, survey, study,

design, and other services mentioned in the Terms of Reference.

In a sound and workmanlike manner, with reasonable skill, care and

diligence and applying generally accepted engineering, construction

and management practices and procedures;

With due expedition and without unnecessary or unreasonable delay;

and

Using appropriate internationally accepted design standards for

urban roads and workmanship applicable to works having

characteristics comparable to those of the Project.

“KRFB” means the Kerala Road Fund Board, represented by the Chief Executive

Officer or his authorized delegate.

"Key Personnel" means those of the Independent Engineer‟s personnel identified

as key personnel in Clause AppendixD.D.

"Law(s)" means all national or state legislations, statutes, ordinances, rules and

regulations, orders of state Public Works Department, decrees, decisions,

guidelines and rulings applicable to the Government, the Independent

Engineer, the Services and/or the Project as issued within the State of

Kerala.

"Monthly Agreement

Price"

means the agreed amount stated in Clause 6 . of the Agreement, for the

execution of the Services in accordance with the terms of the Agreement.

"Month" means a period of one month according to the Gregorian calendar

commencing with any day of the month;

"Notary Public" means a public official who is legally empowered to do the attestation of

signatures and certification of validity of documents.

"Party" or "Parties" means the parties to this Agreement or any one of them and "third party"

means any other person or entity as the context requires;

"Penalty" means those sums to be paid by the Independent Engineer to the Kerala

Road Fund Board as penalty for failure to complete the services as stated

in the agreement and in the Work Order (Appendix A).

"Performance

Security"

means the performance security to be furnished in terms of Clause 8 of

the Work Order.

"Public Official" means that party as defined in Clause 1.5.2.

"Project" means the project - Design, Engineering, Finance, Procurement,

Construction, Operation and Maintenance of Roads under Phase I (A) of

“Kozhikode City Road Improvement Project (KCRIP)” on Design,

Build, Finance, Operate, Maintain and Transfer (DBFOT-Annuity) Basis

"Schedule" means the schedules attached to the General Conditions of Engagement

and forming part of the Agreement.

“SC” Special Conditions of Contract

"Services" means the services that will be provided by the Independent Engineer as

identified and described in ToR, and in the General Conditions of

Engagement.

“Standards” means those codes, regulations and technical specifications and

standards as per MoRTH, applicable at the Base Date.

"Time for Completion" means the time for completion of the works as stated in the Terms of

Reference (Appendix A) to the General Conditions of Engagement as

may be extended from time to time in accordance with the terms of the

Agreement, calculated from the Commencement Date.

“Works” means all works, whether of a permanent or temporary nature, necessary

for the achievement of the completion of scope of work in connection

with the Agreement.

Words and expressions defined in the Administered Contracts shall have the same meanings and

apply mutatis mutandis to this Agreement unless otherwise defined herein. Where there is any

inconsistency between a definition in the Concession Contract and any other Administered

Contract, the definition in the Concession Contract shall apply.

1.2 Interpretation

Save to the extent that the context or the express provisions of this Agreement otherwise require:

1.2.1 the index to, and the headings in, this Agreement are for information only and are to be

ignored in construing the same;

1.2.2 references to clauses, schedules and appendices are references to clauses, schedules and

appendices to this Agreement;

1.2.3 the recitals, schedules and appendices to this Agreement are integral part of this

Agreement and reference to this Agreement shall include references thereto;

1.2.4 Clauses and Sub-Clauses including the word "agree" or "agreed" require the agreement to

be recorded in writing, and signed by the authorised representatives of both the parties.

1.2.5 Reference to "including" and "in particular" shall not be construed restrictively but shall

mean "including but not limited to" and "in particular but without prejudice to the

generality of the foregoing" respectively.

1.2.6 "Written" or "in writing" means hand-written, type-written, printed or electronically made;

and resulting in a permanent record.

1.2.7 references to agreements, documents or instruments include (subject to all relevant

approvals) a reference to that agreement, document or instrument as amended,

supplemented, substituted, ceded or assigned;

i. reference to any statute, statutory instrument or accounting standard (including CPI) or

any of their provisions shall be construed as a reference to such statute, statutory

instrument or accounting standard as may have been or as may from time to time be

amended, replaced or re-enacted;

ii. words importing the singular shall include the plural and vice versa and words denoting

any gender shall include all genders;

iii. reference to any person shall include the successors and permitted assignees or successors

in title of such person irrespective of whether such assignment or succession occurred

before or after the date of this Agreement;

iv. words importing persons shall include firms, partnerships, corporations and any

organisation having a legal personality and vice versa;

v. references in this Agreement to the Authority, the Concessionaire and the Independent

Engineer shall be deemed to include their respective authorised representatives; and

vi. references to the "Engineer" in any document referred to in this Agreement shall be

deemed to refer the Independent Engineer as the context requires.

1.3 The Agreement

1.3.1 The following documents constitute the Agreement and shall be taken as mutually

explanatory of one another. If there is a conflict between these documents, the order of

precedence shall be as follows:

(i) Work Order

(ii) Request for Proposal submitted by the firm

(iii) General Conditions of Contract

(v) Special Conditions of Contract

1.3.2 The Contract Agreement is the document executed by the Consultant and the

Representatives of KRFB and the Concessionaire. The Appendices to the Contract

Agreement identifies the Agreement specifications.

1.3.3 The General Conditions of Contract set out the terms and conditions governing the rights,

responsibilities, and obligations of the Consultant, Concessionaire and KRFB.

1.3.4 The Agreement is to be executed by:

1.3.4.1 The authorized signatory of the Lead Member of the Independent Engineer, who retains

the lawfully appointed power of attorney to enter into the Agreement on behalf of the

Consultant; and the authorized signatory of Kerala Road Fund Board and the authorised

signatory of Concessionaire, M/s ULCCS Calicut City Infrastructure Development

Private Limited.

1.3.5 The Agreement is to be executed in triplicate and marked: "Original"; "Duplicate 1" and

"Duplicate 2" of which the document marked "Original" shall prevail. KRFB shall retain

the documents marked "Original" andthe Concessionaire shall retain "Duplicate 1" and the

document marked "Duplicate 2" being retained by the Independent Engineer. Each page of

the Agreement shall be initialled by the duly authorised signatories.

1.3.6 The Agreement shall come into full force and become effective on the date the Agreement

is executed subject to the following:

A. The Consultant has provided a Power of Attorney duly notarised by a Notary Public

empowering the signatory to the Agreement to sign on behalf of the Consultant

(Appendix L);

B. Where the Consultant is an association, the Consultant has provided a duly executed copy

of the association agreement(Appendix K);.

C. The Performance Security has been duly executed by the Independent Engineer and

delivered to KRFB (Appendix H);

D. The Consultant has delivered to KRFB, valid certified copies of his registration

certificate(s) (Request for Proposal of Firm).

1.4 Relation between the Parties

Nothing contained herein shall be construed as establishing a relation of master and

servant or of principal and agent as between the Client, Concessionaire and the

Consultants. The Consultants, subject to this Contract, have complete charge of Personnel

performing the Services and shall be fully responsible for the Services performed by them

or on their behalf hereunder.

1.5 Corruption and Fraud

1.5.1 In the performance of their obligations under the Agreement, the Parties, their respective

agents and relevant employees shall comply with all applicable Laws. The Parties hereby

represent, warrant and covenant that they will neither receive nor offer, pay or promise to

pay either directly or indirectly, bribes, gifts, commissions, considerations, inducements or

rewards from or to a Public Official (as defined in Clause 1.5.2hereinafter), or private

property owner in connection with any business opportunities which may, or considered to

without limit, be in connection with the Agreement. Furthermore, in the event that a Party

receives a request from any Public Official requesting payments, bribes, gifts,

commissions, considerations, inducements or rewards that Party shall disclose such to the

other immediately in writing with full particulars.

1.5.2 A Public Official is:

A. Any official or employee of KRFB or a Government owned or controlled enterprise; and

B. Any person performing a public function.

1.5.3 Failure to comply with the requirements of Clause 1.5.1 shall entitle KRFB, pursuant to

Clause 2.8.1, the discretionary power to terminate the Agreement with immediate effect

and without compensation in any form whatsoever.

1.6 Communications

1.6.1 Wherever the Agreement provides for the giving or issuing of approvals, certificates,

consents, notices and requests, these communications shall be:

A. In English; and

B. In writing in accordance with Clause 1.2.6, (against written confirmation of receipt); and

C. Delivered, sent, or transmitted to the address for the recipients as per the General

Conditions of Contract.

1.6.2 Notices served by email or facsimile shall be delivered to the addresses and be confirmed

by the said notice being sent in hard copy to the addresses within three (3) Days of the

transmission date of the email or facsimile. For the avoidance of doubt, it is clarified

thatonly the received hard copy constitutes formal notice pursuant to the requirements of

the Agreement, the contractual date of notice being the date of receipt of the hard copy.

1.7 Amendment

Without prejudice to the provisions of Clause 7 . hereinafter, no modification, amendment, or

change to the Agreement shall be effective or binding, unless made in writing, is dated, expressly

references the Agreement and is signed by the duly authorised representatives of the Parties.

1.8 Waiver

1.8.1 Non-waiver

Subject to the provisions of Clause 1.8.2herein, no relaxation, forbearance or delay by either Party

in enforcing the terms and conditions of the Agreement will prejudice, affect or restrict the rights,

responsibilities, and obligations of that Party nor shall any waiver by either Party of any such

rights, responsibilities, and obligations or of any breach of the Agreement be deemed to be a

waiver of any other right or of any later or continuing breach.

1.8.2 Waiver

Any waiver of a Party's rights, responsibilities, obligations, powers, or remedies under the

Agreement must be in writing, dated and signed by an authorised signatory of the Party granting

such waiver, and must specify the right and the extent to which obligation is being waived.

1.9 Severability

1.9.1 If any provision of the Agreement is held to be illegal, void or unenforceable in whole or

in part be deemed expunged from the Agreement provided that this shall not affect the

validity or enforceability of any other provisions of the Agreement.

1.9.2 Notwithstanding Clause 1.9.1, in the event that any provision or part thereof is held by

any judicial or other competent authority to be illegal, void, or unenforceable, the KRFB

shall issue an instruction pursuant to this agreement.

1.10 Agreement Period

The period of appointment shall be for 24 months from the date of signing of the Contract

Agreement which is extendable depending on the requirement of the project and the performance

of the third party. The term may be extended for a further period of six months at a time and three

years in aggregate.

1.11 Survival of Rights:

1.11.1 The severable provisions of the Agreement which are by their nature intended to survive

the termination, cancellation, completion, or expiration of the Agreement shall continue as

valid and enforceable obligations of the Parties, notwithstanding any such termination,

cancellation, completion, or expiration.

1.11.2 The Agreement constitutes the entire Agreement between the Parties in relation to all

matters contained herein, including all understandings, rights, responsibilities, and

obligations and supersedes all prior arrangements, representations, communications,

negotiations, agreements and contracts (whether written or oral) made between or entered

into by the Parties with respect thereto prior to the date of the Agreement.

1.12 Law Governing the Contract

The Contract, its meaning and interpretation, and the relation between the Parties shall be

governed by the Law of the State of Kerala.

1.13 Language

This Contract has been executed in the English language, which shall be the binding and

controlling language for all matters relating to the meaning or interpretation of this Contract.

1.14 Notices

1.14.1 Any notice, request or consent required or permitted to be given or made pursuant to this

Contract shall be in writing. Any such notice, request or consent shall be deemed to have

been given or made when delivered in person to an authorised representative of the Party

to whom the communication is addressed, or when sent by registered mail or facsimile to

such Party at the address specified in the SC.

1.14.2 A Party may change its address for notice hereunder by giving the other Party notice of

such change.

1.15 Location

1.15.1 The Services shall be performed at location as specified in Annexure I to Work Order

(Appendix A), ToR.

1.16 Authority of Member in Charge

In case the Consultants consist of a joint venture of more than one entity, the Members hereby

authorise the lead member to act on their behalf in exercising the entire Consultants‟ rights and

obligations towards the Client under this Contract, including without limitation the receiving of

instructions and payments from the Client.

1.17 Authorised Representatives

Any action required or permitted to be taken, and any document required or permitted to be

executed, under this Contract by the Client or the Consultants may be taken or executed by the

officials specified in the SC.

1.18 Taxes and Duties

Unless otherwise specified in the SC, the Consultants and its Personnel shall pay such taxes,

duties, fees and other impositions as may be levied under the Applicable Law. Only service taxes

shall be paid extra.

2 . Commencement, Completion, Modification and Termination of Contract

2.1 Effectiveness of Contract

This Contract shall come into force and effect on the date (the “Effective Date”) of the Client‟s

notice to the Consultants instructing the Consultants to begin carrying out the Services. If this

Contract has not become effective within such time period after the date of the Contract signed by

the Parties, either Party may, by not less than four (4) weeks‟ written notice to the other Party,

declare this Contract to be null and void, and in the event of such a declaration by either Party,

neither Party shall have any claim against the other Party with respect hereto.

2.2 Commencement of Services

The Independent Engineer shall begin carrying out the Services at the end of such time period as

specified in the Work Order and Terms of Reference (Appendix A).

2.3 Expiration of Contract

Unless terminated earlier pursuant to Clause 2.8hereof, this Contract shall expire when services

have been completed and all payments have been made at the end of such time period after the

Effective Date as shall be specified in the Agreement.

2.4 Entire Agreement

This Contract contains all covenants, stipulations and provisions agreed by the Parties. No agent or

representative of either Party has authority to make, and the Parties shall not be bound by or be

liable for, any statement, representation, promise or agreement not set forth herein.

2.5 Modification

Modification of the terms and conditions of this Contract including any modification of the scope

of the Services, may only be made by written agreement between the Parties as the case may be,

has been obtained. Pursuant to Clause hereof, however, each Party shall give due consideration to

any proposals for modification made by the other Party.

2.6 Force Majeure

2.6.1 Definition

(a) For the purposes of this Contract, “Force Majeure” means an event which is beyond the

reasonable control of a Party, and which makes a Party‟s performance of its obligations

hereunder impossible or so impractical is reasonable to be considered impossible in the

circumstances, and includes, but is not limited to, war, riots, civil disorder, earthquake, fire,

explosion, storm, flood or other adverse weather conditions, strikes, lockouts or other

industrial action (except where such strikes, lockouts or other industrial action are within the

power of the Party invoking Force Majeure to prevent), confiscation or any other action by

government agencies.

(b) Force Majeure shall not include (i) any event which is caused by the negligence or intentional

action of a party or such Party‟s Sub-Consultants or agents or employees, nor (ii) any event

which a diligent Party could reasonably have been expected to both (A) take into account at

the time of the conclusion of this Contract and (B) avoid or overcome in the carrying out of its

obligations hereunder.

(c) Force Majeure shall not include insufficiency of funds or failure to make any payment

required hereunder.

2.6.2 No Breach of Contract

The failure of a Party to fulfil any of its obligations hereunder shall not be considered to be a

breach of, or default under, this Contract in so far as such inability arises from an event of Force

Majeure, provided that the Party affected by such an event has taken all reasonable precautions,

due care and reasonable alternative measures, all with the objective of carrying out the terms and

conditions of this Contract.

2.6.3 Measures to be Taken

(a) A Party affected by an event of Force Majeure shall take all reasonable measures to remove

such Party‟s inability to fulfil its obligations hereunder with a minimum of delay.

(b) A Party affected by an event of Force Majeure shall notify the other Party of such event as

soon as possible, and in any event not later than fourteen (14) days following the occurrence of

such event, providing evidence of the nature and cause of such event, and shall similarly give

notice of the restoration of normal conditions as soon as possible.

(c) The Parties shall take all reasonable measures to minimise consequences of any event of Force

Majeure.

2.6.4 Extension of Time

Any period within which a Party shall, pursuant to this Contract, complete any action or task, shall

be extended for a period equal to the time during which such Party was unable to perform such

action as a result of Force Majeure.

2.6.5 Payments

During the period of their inability to perform the Services as a result of an event of Force

Majeure, the Consultants shall be entitled to be reimbursed for additional costs reasonable and

necessarily incurred by them during such period for the purposes of the Services and in

reactivating the Services after the end of such period.

2.6.6 Consultation

Not later than thirty (30) days after the Consultants, as the result of an event of Force Majeure,

have become unable to perform a material portion of the Services, the Parties shall consult with

each other with a view to agreeing on appropriate measures to be taken in the circumstances.

2.6.7 Notice of Force Majeure

2.6.7.1 If a Party is or will be prevented from performing any of its obligations under the

Agreement by Force Majeure, then it shall give notice to the other Parties of the event or

circumstances constituting the Force Majeure and shall specify the obligations, the

performance of which is or will be prevented. The notice shall be given within seven (7)

days of the Party became aware, of the relevant event or circumstance constituting Force

Majeure.

2.6.7.2 The Party shall, having given notice, be excused performance of such obligations for so

long as such Force Majeure prevents it from performing them.

2.6.7.3 Notwithstanding any other provision of the Agreement, Force Majeure shall not apply to

obligations of either Party to make payments to the other Party under the Agreement.

2.6.8 Optional Termination, Payment and Release

2.6.8.1 If the execution of substantially all the Services in progress is prevented for a continuous

period of eighty four (84) days by reason of Force Majeure of which notice has been given

under clause 2.6.3, or for multiple periods which total more than one hundred and forty

(140) Days due to the same notified Force Majeure, then either Party may give to the other

Parties a notice of termination of the Agreement. In this event, the termination shall take

effect seven (7) days after the notice is given and the Consultant shall promptly commence

demobilisation.

2.6.8.2 Upon such termination, KRFB and UCCIDPL shall be liable only to pay to the Consultant:

A. the amounts payable for any Services carried out in accordance with the Agreement;

and

B. demobilisation costs, as submitted with substantiation to, and certified by, KRFB, and

no further payments or compensation shall be due.

2.7 Suspension

The Client may by written notice of suspension to the Consultants, suspend all payments to the

Consultants hereunder if the Consultant fail to perform any of their obligations under this Contract,

including the carrying out of the Services, provided that such notice of suspension (i) shall specify

the nature of the failure, and (ii) shall request the Consultants to remedy such failure within a

period not exceeding thirty (30) days after receipt by the Consultants of such notice of suspension.

2.8 Termination

2.8.1 By the Client

The Client may, by not less than thirty (30) days‟ written notice of termination to the Consultants/

Independent Engineer (except in the event listed in paragraph (f) below, for which there shall be a

written notice of not less than sixty (60) days, such notice to be given after the occurrence of any

of the events specified in paragraphs (a) through (h) of this Clause 2.8.1, terminate this Contract.

(a) If the Consultants fail to remedy a failure in the performance of their obligations

hereunder, as specified in a notice of suspension pursuant to Clause 2.7 hereinabove,

within thirty (30) days of receipt of such notice of suspension or within such further period

as the Client may have subsequently approved in writing;

(b) If the Consultants become (or, if the Consultants consist of more than one entity, if any of

their Members become) insolvent or bankrupt or enter into any agreement with their

creditors for relief of debt or take advantage of any law for the benefit of debtors or got

into liquidation or receivership whether compulsory or voluntary.

(c) If the Consultants fail to comply with any final decision reached on result of arbitration

proceedings pursuant to Clause 9 . hereof;

(d) If the Consultants submit to the Client a statement which has a material effect on the

rights, obligations or interests of the Client and which the Consultants know to be false;

(e) If, as the result of Force Majeure, the Consultants are unable to perform a material portion

of the Services for a period of not less than sixty (60) days;or

(f) If the Client, in its sole discretion and for any reason whatsoever, decides to terminate this

Contract.

(g) If the Consultant, in the judgement of the Client has engaged in corrupt or fraudulent

practices in competing for or in executing the Contract. For the purpose of this clause:

“corrupt practice” means the offering, giving, receiving or soliciting of anything of value

to influence the action of a public official in the selection process or in contract execution.

“fraudulent practice” means a misrepresentation of facts in order to influence a selection

process or the execution of a contract to the detriment of the Client, and includes collusive

practice among consultants (prior to or after submission of proposals) designed to establish

prices at artificial non-competitive levels and to deprive the Client of the benefits of free

and open competition.

(h) If Concessionaire represents to KRFB that the Consultant is not discharging his duties in a

fair, efficient and diligent manner and if the dispute remains unresolved, KRFB may

terminate this contract.

2.8.2 By the Consultants

The Consultants may, by not less than thirty (30) days‟ written notice to the Client, such notice to

be given after the occurrence of any of the events specified in the paragraphs (a) through (d) of this

Clause 2.8.2, terminate this Contract:

(a) If the Client fails to pay any money due to the Consultants pursuant to this Contract and

not subject to dispute pursuant to Clause 9 . hereof within forty-five (45) days after

receiving written notice from the Consultants that such payment is overdue;

(b) If the Client is in material breach of its obligations pursuant to this Contract and has not

remedied the same within forty-five (45) days (or such longer period as the Consultants

may have subsequently approved in writing) following the receipt by the Client of the

Consultants‟ notice specifying such breach;

(c) If, as the result of Force Majeure, the Consultants are unable to perform a material portion

of the Services for a period of not less than sixty (60) days; or

2.8.3 Cessation of Rights and Obligations

Upon termination of this Contract pursuant to Clauses 2.1or 2.8 hereof, or upon expiration of this

Contract pursuant to Clause 2.3 hereof, all rights and obligations of the Parties hereunder shall

cease, except;

i. such rights and obligations as may have accrued on the date of termination or expiration;

ii. the obligation of confidentiality set forth in Clause 3.3 hereof;

iii. the Consultants‟ obligation to permit inspection, copying and auditing of their accounts

and records set forth in Clause 3.6 (ii) hereof; and

iv. any right which a Party may have under the Applicable Law.

2.8.4 Cessation of Services

Upon termination of this Contract by notice of either Party to the other pursuant to Clauses

2.8.1and 2.8.2 hereof, the Consultants shall, immediately upon dispatch or receipt of such notice,

take all necessary steps to bring the Services to a close in a prompt and orderly manner and shall

make every reasonable effort to keep expenditures for this purpose to a minimum. With respect to

documents prepared by the Consultants and equipment and materials furnished by the Client, the

Consultants shall proceed as provided, respectively, by Clauses 3.9 or 3.10 hereof.

2.8.5 Payment upon Termination

Upon termination of this Contract pursuant to Clauses 2.8.1 and 2.8.2 hereof, the Client shall

make the following payments to the Consultants (after offsetting against these payments any

amount that may be due from the Consultant to the Client);remuneration pursuant to Clause 6 .

hereof for Services satisfactorily performed prior to the effective date of termination;

2.8.6 Disputes about Events of Termination

If either Party disputes whether an event specified in paragraphs (a) through (e) of Clause 2.8.1 or

in Clause 2.8.2 hereof has occurred, such Party may, within forty-five (45) days after receipt of

notice of termination from the other Party, refer the matter to arbitration pursuant to Clause 9 .

hereof, and this Contract shall not be terminated on account of such event except in accordance

with the terms of any resulting arbitral award.

3 . Obligation of the Consultants

3.1 General

3.1.1 Standard of Performance

The Consultants shall perform the Services (ToR - Appendix A) and carry out their obligations

hereunder with all due diligence, efficiency and economy, in accordance with generally accepted

professional techniques and practices, and shall observe sound management practices, and employ

appropriate advanced technology and safe and effective equipment, machinery, materials and

methods. “The Consultants shall always” act, in respect of any matter relating to this Contract or to

the Services, as faithful advisers to the Client, and shall at all times support and safeguard the

Client‟s legitimate interests in any dealing with Sub-Consultants or Third Parties.

3.1.2 Law Governing Services

The consultants shall perform the Services in accordance with the Applicable Law and shall take

all practicable steps to ensure that all the Personnel of the Consultants comply with the Applicable

Law. The Client shall advise the Consultants in writing of relevant local customs and the

Consultants shall, after such notifications, respect such customs.

3.1.3 Review of documents/ drawings submitted by the Concessionaire

i. The Independent Engineer/ Consultant within fifteen (15) days of receipt of the drawings

shall review the same taking into account, interalia, comments of KRFB, if any, thereon,

and convey its comments/observations to the Concessionaire on the conformity of

drawings/documents with design requirements as per the Concession Agreement.

ii. The Independent/Engineer shall verify the “as built drawings”, if submitted by the

Concessionaire.

3.2 Conflict of Interests

3.2.1 Consultants Not to Benefit from Commissions, Discounts, etc.

The Remuneration of the Consultants pursuant to Clause 6 . hereof shall constitute the

Consultants‟ sole remuneration in connection with this Contract or the Services and, subject to

Clause 3.2.2 hereof, the Consultants shall not accept for their own benefit any trade commission,

discount or similar payment in connection with activities pursuant to this Contract or to the

Services or in the discharge of their obligations hereunder, and the Consultants shall use their best

efforts to ensure that any of its Personnels and agents of either of them, similarly shall not receive

any such additional remuneration.

3.2.2 If the Consultants, as part of the Services, have the responsibility of advising the Client on

the procurement of goods, works or services, the Consultants shall comply with any

applicable procurement guidelines of the Client (KRFB) and or Associates Bank or of the

Association, as the case may be, and other funding agencies and shall at all times exercise

such responsibility in the best interest of the Client. Any discounts or commissions

obtained by the Consultants in the exercise of such procurement responsibility shall be for

the account of the Client.

3.2.3 Consultants and Affiliates Not to engage in Certain Activities

The Consultants agree that, during the term of this Contract and after its termination, the

Consultants and any entity affiliated with the Consultants, shall be disqualified from providing

goods, works or services (other than the Services mentioned in this Contract and any continuation

thereof) for any project resulting from or closely related to this project Services.

3.2.4 Prohibition of Conflicting Activities

The Consultants shall not engage, and shall cause their Personnel not to engage, either directly or

indirectly; during the term of this Contract, any business or professional activities in which would

conflict with the Services assigned to them under this Contract.

3.3 Confidentiality

The Consultants and its Personnel shall not, either during the term or within two (2) years after the

expiration of this Contract, disclose any proprietary or confidential information relating to the

Project, the Services, this Contract or the Client‟s business or operations without the prior written

consent of the Client.

3.4 Liability of the Consultants

Subject to additional provisions, if any, set forth in the SC, the Consultants‟ liability under this

Contract shall be as provided by the Applicable Law.

3.5 Insurance to be Taken Out by the Consultants

The Consultant shall maintain in force the insurances required for their Key Personnel‟s safety

throughout the duration of the Agreement or any other required duration.

The required insurances are described hereunder:

Professional Indemnity Insurance

The Consultant shall provide and maintain a professional indemnity insurance policy in the

name of the Consultant indemnifying the Consultant in relation to all claims, liabilities, loss

or damage however arising under or out of the Services, except those solely attributable

directly to KRFB. The said professional indemnity insurance policy shall be provided from

the Commencement Date and be maintained for the duration of the Services, which shall

include any delay, extension or variation thereto.

Such professional indemnity insurance policy shall be provided with Indian insurer(s). All

costs and expenses incurred, and which may be incurred, in providing this professional

indemnity insurance policy shall be deemed to be included in the Monthly Agreement Price.

The receipts forpayment of all premiums shall be submitted by the Consultant to KRFB in

advance of the premium payment deadline.

It is a precondition to the Agreement coming into effect that the professional indemnity

insurance premiums are paid in advance and the professional indemnity insurance cover is

to come in to force from the Commencement Date.

Prior to the commencement of the Services the Consultant shall submit written evidence that

the professional indemnity insurance policy covers the following:

A. The Services for the Project being carried out by the Consultant under the Agreement;

B. The minimum professional indemnity insurance cover for any one incident and the total

limit for all incidents occurring within the period of professional indemnity insurance, the

said limits shall apply to any periods of Change, delay, extension or variation to the

programme;

C. Any Change, delay, variation and extension to the Services and / or the Project; and

D. The benefits of the professional indemnity insurance policy are available to any party

without restriction.

The Consultant shall maintain the professional indemnity insurance policy in full force and

effect and shall not do, nor permit to be done, any action or inaction which may entitle the

insurer(s) to repudiate the professional indemnity insurance policy or otherwise jeopardize the

right of the Consultant to indemnity according to the professional indemnity insurance policy.

The Consultant shall agree that it is not permitted, nor shall it permit, the professional

indemnity insurance policy to be cancelled or modified in any way or by any person or entity

without the prior written agreement of KRFB.

It shall be the obligation of the Consultant to notify the insurance company of any change,

delay, extension or variation to the nature or extent of the programme for the extent of the

Services or Project and to ensure that the coverage and adequacy of the professional

indemnity insurance is maintained.

The burden of proof for any claim by KRFB under the professional indemnity insurance

policy falls on the Consultant and under no circumstances whatsoever shall the Consultant

delay advancement of such a claim to the insurer(s). The Consultant has an express obligation

to fully pursue said claim(s) with his insurer(s) forthwith.

The Consultant shall maintain in force the insurances required throughout the duration of the

Agreement or any other required duration.

3.6 Accounting, Inspection and Auditing

The Consultants (i) shall keep accurate and systematic accounts and records in respect of the

Services, hereunder, in accordance with internationally accepted accounting principles and in such

form and detail as will clearly identify all relevant time charges and cost, and the bases thereof; (ii)

shall permit the Client or its designated representative periodically, and up to one year from the

expiration or termination of this Contract, to inspect the same and make copies thereof as well as

to have them audited by auditors appointed by the Client; and (iii) shall permit the client to inspect

the Consultant‟s accounts and records relating to the performance of the Consultant and to have

them audited by auditors appointed by the Client.

3.7 Consultants’ Actions Requiring Client’s Prior Approval

The consultants shall obtain the Client‟s prior approval in writing before taking any of the

following actions:

(a) Appointing such members of the Personnel as are listed in TOR .(“Consultants‟ Sub-

Consultants‟ Key Personnel”) merely by title but not by name;

(b) Entering into a subcontract for the performance of any part of the Services, it being

understood (i) that the selection of the Sub-consultant and the terms and conditions of the

subcontract shall have been approved in writing by the Client prior to the execution of the

subcontract, and (ii) that the Consultants shall remain fully liable for the performance of

the Services by the Sub-consultant and its Personnel pursuant to this Contract; and

(c) Any other action under a civil works contract designating the Consultant as “Engineer”,

for which action, pursuant to such civil works contract, the written approval of the Client

as “Employer” is required.

3.8 Reporting Obligations

The consultants shall submit to the Client the reports and documents specified in ToR hereto, in

the form, in the numbers and within the time periods set forth in the said Annexure I to the Work

Order (Appendix A).

3.9 Documents Prepared by the Consultants to Be the Property of the Client

3.9.1 All plans, drawings, specifications, designs, reports, other documents and software

prepared by the Consultants for the Client under this Contract shall become and remain the

property of the Client, and the Consultants shall, not later than upon termination or

expiration of this Contract, deliver all such documents to the Client, together with a

detailed inventory thereof.

3.9.2 The Consultants shall not use these documents for purposes unrelated to this Contract

without prior written approval of the Client.

3.10 Equipment and Materials Furnished by the Client

Equipment and materials made available to the Consultants by the Client if any, or purchased by

the Consultants with funds provided by the Client, shall be the property of the Client and shall be

marked accordingly. Upon termination or expiration of this Contract, the Consultants shall make

available to the Client an inventory of such equipment and materials and shall dispose of such

equipment and materials in accordance with the Client‟s instructions. While in possession of such

equipment and materials, the Consultants, unless otherwise instructed by the Client in writing,

shall insure them at the expense of the Client in an amount equal to their full replacement value.

3.11 Co-ordination with Third Parties

The Consultant shall be responsible for coordinating all matters associated with, and including, the

provision of the Services with any:

A. government department or ministry;

B. utility companies; and

C. others, carrying out services / works / projects on any interfacing contracts, packages or

projects for the resolution of all interfaces between the Services / Works / Project and the

services / works / projects of the interfacing Government departments / ministries, utility

companies and / or consultants. The Consultant shall make arrangements directly with

such other Government departments / ministries, utility companies and other consultants

carrying out such work as appropriate and report his activities to KRFB on a monthly basis

or as otherwise instructed or appropriate. The Consultant shall use his best endeavours as

assisted by the KRFB in accommodating the other consultants to resolve actual or

potential difficulties and mitigate the effects of the same.

4 . Consultants’ Personnel

4.1 General

The Consultants shall employ and provide such qualified and experienced Personnel asrequired to

carry out the Services.

4.2 Descriptions of Personnel

(i) The titles, agreed job descriptions, minimum qualification and estimated periods of

engagement in carrying out of the Services of each of the Consultant‟s Key Personnel

are described in Appendix D. If any of the Key Personnel has already been approved

by the clients his/her name is listed as well. Where Additional Services are to be

performed by personnel other than those already assigned to the Project the KRFB's

prior approval shall be obtained. Such approval shall not relieve the Consultant of his

obligations under the Agreement.

(ii) In the event that any of the Consultant's personnel are found to be incompetent and / or

negligent and / or guilty of serious misconduct and/or fraudulent or corrupt and / or

failing to comply with the Law in discharging their assigned duties, the Consultant

shall upon receipt of the KRFB's written request immediately remove him and within

twenty eight (28) Days provide a suitable replacement person with equivalent

qualifications and competence acceptable to the KRFB. The cost of such replacement

shall be borne entirely by the Consultant. In the event that the Consultant fails to

provide a replacement within the specified time, KRFB shall have the right to make

such replacement or take any necessary action at the expense of the Consultant until

such time as the Consultant provides such replacement.

(iii) If additional work is required beyond this scope of the Services specified in Appendix

A, the estimated periods of engagement of Key Personnel set forth in Appendix D

may be increased by agreement in writing between the Client and the Consultants.

(iv) The Consultant shall ensure that all personnel engaged for the project shall perform

and behave properly in accordance with the highest acceptable standards and practices.

The Consultant shall, at no additional cost to KRFB and UCCIDPL, provide the

replacement of key personnel who are on sick leave exceeding seven (7) Days, or on

annual leave to ensure the continued and proper execution of the works during the

absence of such key personnel. No additional charge to KRFB and UCCIDPL will be

allowed for personnel assigned by the Consultant as temporary replacements for

higher paid personnel.

(v) The Consultant shall appoint their representative and shall give him all authority

necessary to act on behalf of the Consultant under the Agreement. Prior to the

Commencement date the Consultant shall notify the KRFB of the name and particulars

of their representative and shall not, without prior consent, revoke the appointment or

appoint a substitute. The Consultant's representative shall, on behalf of the Consultant,

receive all instructions, notifications, other correspondence, and the like.

4.3 Approval of Personnel

The Key Personnel i.e Professional Staff listed by title as well as by name in Appendix D are

hereby approved by the Client. In respect of other Key Personnel, if required, which the

Consultants propose to use in the carrying out of the Services, the Consultants shall submit to the

client for review and approval a copy of their biographical data. If the Client does not object in

writing (stating the reasons for the objection) within thirty (30) calendar working days from the

date of receipt of such biographical data and (if applicable) such certificate, such Key Personnel

shall be deemed to have been approved by the Client.

4.4 Workings Hours, Overtime, Leave, etc.

(a) Working hours and holidays for Key Personnel are set forth in Clause 6.3 hereto.

(b) The Personnel of all types engaged by Consultant to provide Services on this Contract

shall not be entitled to be paid for overtime not to take paid sick leave or vacation leave

except as specified in Clause 6.3hereto, and except as specified. The Consultants

remuneration shall be deemed to cover these items as mentioned above. All leave to be

allowed to the Personnel is included in the staff months of service set forth in Appendix

D. Any taking of leave by Personnel shall be subject to the prior approval by the Client

and the Consultants shall ensure that absence for leave purposes will not delay the

progress and adequate supervision of the Services.

4.5 Removal and/or Replacement of Personnel

(a) Except as the Client may otherwise agree, no changes shall be made in the Key Personnel.

If, for any reason beyond the reasonable control of the Consultants, it becomes necessary

to replace any of the Personnel, the Consultants shall forthwith provide as a replacement a

person of equivalent or better qualifications.

(b) If the Client (i) finds that any of the Personnel has committed serious misconduct or has

been charged with having committed a criminal action, or (ii) has reasonable cause to be

dissatisfied with the performance of any of the Personnel, then the Consultants shall, at the

Client‟s written request specifying the grounds therefore, forthwith provide as a

replacement a person with qualifications and experience acceptable tot the Client.

(c) Any of the Personnel provided as a replacement under Clauses (a) and (b) above, the rate

of remuneration applicable to such person as well as any reimburse expenditures

(including expenditures due to the number of eligible dependents) the Consultants may

wish to claim as a result of such replacement, shall be subject to the prior written approval

by the Client. Except as the Client may otherwise agree, (i) the Consultants shall bear all

additional travel and other costs arising out of or incidental to any removal and/ or

replacement, (ii) the remuneration to be paid to any of the Key Personnel provided as a

replacement shall be 95% of the monthly remuneration which would have been payable to

the Key Personnel replaced. However, for the reason other than death/ extreme medical

ground, (i) for total replacement upto 33% of Key personnel, remuneration shall be

reduced by 20% (ii) for total replacement upto between 33% to 50% remuneration shall be

reduced by 25% and (iii) for total replacement upto between 50% to 66%, remuneration

shall be reduced by 30% (iv) for total replacements beyond 66% of the key personnel the

client shall initiate action of higher penalty/ termination/ debarment upto 2 years as

considered appropriate.

(d) In order to prevent the tendency of the personnel and consulting firm to submit incorrect

and inflated CV, they should sign every page of CV before submission in order to

authenticate that CV furnished by them is correct. The consulting firm and the personnel

through consulting firm should be informed by KRFB while accepting CV of the new

personnel that if CV is found incorrect and inflated at a later date, the personnel accepted

would be removed from his assignment and debarred from further KRFB works for an

appropriate period to be decided by KRFB and the new proposed personnel in place of

removed personnel would be paid 10% less salary than the original personnel. 15%

reduction in the salary will be imposed as a penalty for submitting the incorrect

information. This penalty will be imposed only once. If the consulting firm submits

incorrect information again second time, necessary action will be taken by KRFB to black-

list the firm.

4.6 Default by the Independent Engineer/ Consultant

4.6.1 If it is required for the Consultant to carry out Services or to repeat Services as a result of

any error, omission, delay, or misjudgment or any other relevant action / inaction by the

Consultant, then the Consultant shall carry out such Services or repeated Services

promptly and shall not be entitled to any additional sums or extension to the Time for

Completion. At any time, the acceptance of the Services provided will not relieve the

Consultant of the responsibility for subsequent correction of any errors and from the

clarification of any ambiguity therein.

4.6.2 If the Consultant fails to complete the Services, due to the reasons solely attributable to the

Consultant, within the time stated in the agreement, or any such extended time thereof as

approved by KRFB, then the Consultant shall pay 0.05 % as penalty for delay for every

day or part of a day which shall elapse between the Time for Completion and the

Completion Date. The maximum Penalty for Delay shall not exceed 10% (Ten percentage)

of the Agreement Price as stated in the Memorandum of Agreement. Penalties for delay

shall be payable by the sole fact of the delay without the need for any notification or

warning or recourse to judicial proceedings and without the need to prove the occurrence

of damage or loss, which will be considered existing in all cases, provided always that the

Consultant shall not be liable where the delay occurs through no fault of the Consultant,

his sub-consultant or agents, which in any event will not infer liability upon KRFB. The

payment or deduction of the penalties for delay shall not relieve the Consultant from his

obligation to complete the Services or from any other of his obligations and liabilities

under the Agreement.

4.6.3 Should the Independent Engineer fail to:

(a) provide the personnel in accordance with the Agreement within Seven days (7) days of the

Commencement Date; and/or

(b) provide the personnel in accordance with the Agreement; then the penalties pursuant to

this Clause shall be payable by the sole fact of failure to provide personnel without the

need for any notification or warning or recourse to judicial proceedings and without the

need to prove the occurrence of damage or loss which will be considered existing in all

cases. Notwithstanding the provisions of Clause 4.6.3(a), the imposition of this penalty

shall not prejudice the KRFB‟s rights to any other remedy arising out of or under the

Agreement.

(c) KRFB shall have the right, without prejudice to any other remedy to set-off the amount of

penalties pursuant to Clause 4.5 from any monies due or which may become due to the

Consultant. The payment or deduction of such penalties shall not relieve the Consultant

from his obligation to complete the works or from any other of his obligations and

liabilities under the Agreement.

(d) If KRFB incurs any loss or expense as a result of errors or negligence by the Independent

Engineer, then KRFB may take action which may include, but may not be limited to the

following:

A. deduction of such loss and expense from any payments due;

B. termination of the Services of the Consultant;

C. de-barring of the Consultant or his employees from any present or future projects; and

D. recourse to legal action.

4.6.4 The Consultant shall not be relieved of any liabilities or obligations arising either under

the Agreement or the Law by any approval, acceptance, or payment by KRFB.

4.6.5 Notwithstanding any penalties that may be enforced against the Independent Engineer

under Law, KRFB shall be entitled to terminate the Services without compensation in any

form whatsoever should the Independent Engineer be deemed by KRFB to have breached

the conditions of the Conflict of Interest.

5 . Obligations of the Client

5.1 Assistance and Exemption

Unless otherwise specified, KRFB shall use its best efforts to ensure that it shall:

(a) Provide the Consultants and its Personnel with work permits and such other documents as

shall be necessary to enable the Consultants or Personnel to perform the Services;

(b) Issue to officials, agents and representatives of the Government all such instructions as

may be necessary or appropriate for the prompt and effective implementation of the

Services;

(c) Assist the Consultants and the Personnel employed by the Consultants for the Services

from any requirement to register or obtain any permit to practice their profession or to

establish themselves either individually or as a corporate entity according to the

Applicable Law;

5.2 Change in the Applicable Law

If, after the date of this Contract, there is any change in the Applicable Law with respect to taxes

and duties which increases or decreases the cost or reimbursable expenses incurred by the

Consultants in performing the Services, then the remuneration and reimbursable expenses

otherwise payable to the Consultants under this Contract shall be increased or decreased

accordingly by agreement between the Parties hereto, and corresponding adjustments shall be

made to the ceiling amounts specified in Clause 6.1 (b).

5.3 Services, Facilities and Property of the Client

The Client shall make available to the Consultants and the Personnel, for the purposes of the

services and free of any charge, the services, facilities and property described in Clause 5.4 at the

times and in the manner specified in said Clause 5.4, provided that if such services, facilities and

property shall not be made available to the Consultants as and when so specified, the Parties shall

agree on (i) any time extension that it may be appropriate to grant to the Consultants for the

performance of the Services, (ii) the manner in which the Consultants shall procure any such

services, facilities and property from other sources.

5.4 Duties of the Client and Concessionaire

i. Access to the quality control laboratory for performing various types of tests, which will

be provided by the Concessionaire including the testing personnel.

ii. To provide Concessionaire‟s RFP, Bid submission, Concession Agreement.

iii. To ensure availability of the Detailed Work Plan and Programme for Design and

Construction of Project roads from Concessionaire.

iv. To ensure availability of the Quality Assurance Plan and Quality Control Procedures from

the Concessionaire.

v. To provide relevant reports and necessary data as per the reporting obligation of

Concessionaire under the Concession Agreement.

6 . Payments to the Consultants

6.1 Monthly Agreement Price

6.1.1 An estimate of the cost of the Services payable in INR is set forth in Appendix G.

6.1.2 The Consultant shall be paid in accordance with the procedure as follows:

A. Payments will be made to the Consultant according to the actual man months of key

personnel deployed for the month and also based on the quantum of expenses incurred by

the consultant towards fixed costs, travel costs etc mentioned in the offer letter.

B. The Consultant shall submit original invoice for each month, together with all supporting

documents, specifying the amount due to KRFB.

C. The Project Manager/ representative of KRFB shall authorise the Consultant's application

for payment to the CEO, KRFB within Seven (7) Days of receipt of such invoice; after

satisfying that the consultant has met the conditions stipulated in the TOR and

D. Within Fourteen (14) Days of receipt of the authorised certificate of payment, KRFB, the

„Client‟ shall release the due payment.

E. Should any discrepancy be found to exist between actual payment and costs authorised to

be incurred by the Consultants, the Client may add or subtract the difference from any

subsequent payments.

F. The Concessionaire shall reimburse 50% of the mutually agreement price paid to the

Consultant to KRFB within 14 days of receipt of intimation.

6.1.3 The currency of payment shall be Indian Rupees.

6.2 Mode of Billing and Payment

6.2.1 All payments under this Contract shall be made to the member in charge of the

Consultants specified in the Clause 1.16 and in the SC.

6.2.2 Subject to Clause 6.1.2, if there is a failure to certify or authorize an application for

payment in accordance with Clause 6.1.2, the Consultant shall be entitled to receive

interest on the delayed payment calculated daily on the amount unpaid during the period of

delay as the sole financial remedy.

6.2.3 The interest shall be calculated at the annual rate of the Reserve Bank of India Per Annum

Minimum Lending Rate calculated on a daily prorate basis from the date the payment falls

due. The Consultant shall be entitled to this payment without prejudice to any other right

or remedy under the Agreement.

6.2.4 The Consultant shall maintain up to date, records/invoice which clearly identifies relevant

time and expenses of travel and other fixed costs mentioned in offer letter and shall make

these available to KRFB on reasonable request.

6.2.5 The final payment under this Clause 6.2shall be made only after the final report and a

final statement, identified as such, shall have been submitted by the Independent Engineer

and approved as satisfactory by the Client.

6.2.6 The services shall be deemed completed and finally accepted by the Client and the final

report and final statement shall be deemed approved by the Client as satisfactory, ninety

(90) calendar days after receipt of the final report and final statement by the Client unless

the Client, within such ninety (90) day period, gives written notice to the Consultants

specifying in detail deficiencies in the Service, the final report or final statement. The

Consultants shall thereupon promptly make any necessary corrections, and upon

completion of such corrections, the foregoing process shall be repeated. Any amount

which the Client has paid or caused to be paid in accordance with this Clause in excess of

the amountpayable in accordance with the provisions of this Contact shall be reimbursed

by the Consultants to the Client within thirty. (30)days after receipt by the Consultants of

notice thereof. Any such claim by the Client for reimbursement must be made within

twelve (12) calendar months after receipt by the Client of a final report and a final

statement approved by the Client in accordance with the above.

6.3 Hours of Work for Key Personnel

6.3.1 The Consultants Key Personnel and all other Professional/Sub Professional/ Support Staff/

personnel shall work 6 days (Monday through Saturday) every week and observe the

Gazetted Holidays of Government of Kerala as Holidays.

6.3.2 The Consultant shall work as per the work program of the Concessionaire. In this context

incase the work plan of the Consultant needs suitable modifications, the same shall be

carried out and submitted to the Client for consideration.

6.3.3 The Consultants hours of work normally shall match with that of the

Concessionaire/Contractor‟s activities on the site.

6.3.4 No extra remuneration shall be claimed or paid for extra hours of work required in the

interest of Project completion.

7 . Changes

The Agreement can be amended on application by either Party by the written agreement of the

Parties in the form of an addendum in the specimen form agreed by both parties.

7.1 Changes

7.1.1 The Consultant shall give immediate effect to any instruction from KRFB unless otherwise

stated within the Agreement. The Consultant shall issue an Impact Assessment to KRFB

within three (3) Days, or any other such time mutually agreed, of receipt of the Instruction

detailing any impact on time, cost or quality. KRFB shall within four (4) Days issue a

Change Addendum. A Change Addendum shall describe KRFB's determination of the

impact of the Change with regards to:

A. Change to the Agreement;

B. Agreement Price impact;

C. Amendment to the Payment Milestone schedule

D. Consultant's Programme impact; and

E. Resource impact: or

F. A statement of no time, cost, or quality impact.

7.1.2 KRFB may, pursuant to the agreement, instruct a request for, and the Consultant shall

submit within seven (7) Days of receipt of such request, or such other period as may be

agreed, a written substantiated Change proposal describing the:

A. Change to the Agreement;

B. Monthly Agreement Price impact;

C. Amendment to the Payment Milestone.

D. Consultant‟s Programme Impact; and

E. Resource Impact; or

F. A statement of no time, cost, or quality impact

7.1.3 Within fourteen (14) Days of receipt of the Consultant's Change proposal the KRFB shall

respond with acceptance, rejection, comments or determination pursuant to Clause 7.1.1.

The preparation of such Change proposal is deemed to be included within the amounts

payable to the Consultant under the Agreement.

8 . Fairness and Good Faith

8.1 Good Faith

The Parties undertake to act in good faith with respect to each other‟s rights under this Contract

and to adopt all reasonable measures to ensure the realization of the objectives of this Contract.

8.2 Operation of the Contract

The Parties recognize that it is impractical in this Contract to provide for every contingency which

may arise during the life of the Contract, and the Parties hereby agree that it is their intention that

this Contract shall operate fairly as between them, and without detriment to the interest of either of

them, and that, if during the term of this Contract either Party believes that this Contract is

operating unfairly, the Parties will use their best efforts to agree on such action as may be

necessary to remove the cause or causes of such unfairness, but no failure to agree on any action

pursuant this Clause shall give rise to a dispute subject to arbitration in accordance with Clause 8 .

hereof.

9 . Settlement of Disputes

9.1 Amicable Settlement

The Parties shall use their best efforts to settle amicably all disputes arising out of or in connection

with this Contract or the interpretation thereof.In case of any dispute/ grievance arising out of this

Contract Agreement, the same shall be mutually discussed and settled, failing which it shall be

referred to Secretary of PWD, Government Secretariat, Thiruvananthapuram.

9.2 Dispute Settlement

If any dispute between the parties cannot be settled as specified in Cl.9.1 it shall be subject to the

decision of the civil court having jurisdiction over Thiruvananthapuram.

Note: This is only a draft agreement. If there is a conflict between RFP and this document,

conditions set forth in RFI shall prevail.