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
Draft Agreement Kerala Road Fund Board
Page 2
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
Page 3
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
Page 4
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
Page 5
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.
Page 6
“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
Page 7
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
Page 8
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;
Page 9
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);
Page 10
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.
Page 11
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.
Page 12
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.
Page 13
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.
Page 14
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
Page 15
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
Page 16
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;
Page 17
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
Page 18
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.
Page 19
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)
Page 20
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
Page 21
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
Page 22
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
Page 23
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
Page 24
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;
Page 25
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.
Page 26
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.
Page 27
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.
Page 28
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.
Page 29