GCC

THE TATA POWER COMPANY LIMITED BHIRA 100MW-AUGMENTATION SCHEME INCLUDING MULSHI LAKE SUB-STORAGE UTILIZATION
Doc. No TCE.5270A-H-112-601
VOLUME: III PART : I
DEFINITIONS OF THE TERMS AND PRELIMINARY CONDITIONS OF CONTRACT

CONTENTS
GENERAL CONDITIONS OF CONTRACT
SHEET i OF viii
SECTION 1.0
TITLE DEFINITIONS OF THE TERMS AND PRELIMINARY CONDITIONS OF CONTRACT
SHEET 1
1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 1.11 1.12 1.13 1.14 2.0 2.1
Definitions Headings and Marginal Notes Interpretation Law, Language and Measurements Stamp Duty and Similar Charges Effective Date of Contract Priority of Documents Documents on Site Communications Provision of Documents Contractor's Use of Owners Documents Confidential Details Contract Co-ordination and Interface Assignment OWNERS OBLIGATIONS Access and Right to use of the Site
1 13 13 14 14 14 14 15 15 16 16 16 17 17 18 18
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SECTION 2.2 2.3 2.4 3.0
TITLE Permits, Licences or Approvals OWNERs/ PROJECT MANAGERs Other Obligations The OWNERs Representative WORK TO BE PERFORMED BY CONTRACTOR AND CONTRACTOR'S OBLIGATIONS.
SHEET 19 19 20 21
3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8
General Engineering and Design Construction and Construction Management Procurement Labour and Personnel Permitting Co-operation Transporting (Shipping), Forwarding, Storage and Related Matters
21 23 28 30 32 37 38 40
3.9
Erection, Pre-operational Testing, Initial Operation, Reliability Operation and Unit Characteristic Tests
43
3.10 3.11
Performance Guarantee Testing Construction Facilities, Construction Power, Construction Water Facilities, Sanitary Facilities, Telecommunication Facilities, Mail Service, Catering, Start-up Spares and Consumables
44 44
3.12
Construction Power Supplies
44
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SECTION 3.13 3.14 3.15 3.16 3.17 3.18 3.19 3.20 3.21 3.22 3.23 3.24 3.25 3.26 3.27 3.28 3.29
TITLE Construction and Drinking Water Facilities Access Office Accomadations Clean-Up and Waste Disposal Real Estate and Contractors Field Operation Reporting Requirements Progress Reports Schedule Taxes, Duties and Levies Taxes on Contractors Account Variation in Tax or Applicable Taxes or Introduction of New Taxes Supply under Guaranties/Warranties Custom Duty Contractors Equipment EXIM-Deemed Export Benefits Sales Tax-Forms Service Tax Withholding taxes Benefit of credit for tax Employee Identification, Plant Site Security and Protection of Plant Site
SHEET 45 45 46 47 49 49 51 52 53 54 55 55 56 56 57 57 58
3.30
Royalties and License Fees
59
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SECTION 3.31 3.32 3.33 3.34 3.35 3.36 3.37 3.38 3.39 3.40 3.41 3.42 3.43 3.44 3.45 3.46 3.47 3.48 3.49
TITLE Commencement of the Work or Supply of Goods Releases and Waivers Further Assurances Standard for Supplies and Performance Compliance with Applicable Laws Fire Protection Contractor's Equipment and Owners rights thereof Access Route Rights of Way and Facilities and Extraordinary Traffic Extraordinary traffic Special Loads Matters Affecting Execution of the Work or Supply of Goods Insurance Schedule of Supply of goods / traffic Priority of Supply of Goods / Works Work and Safety Regulations Safety Programme and Policy Additional Obligations of Supply Contractor Country of Origin
SHEET 60 60 62 62 63 63 64 64 64 65 65 65 66 66 66 67 69 70 70
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SECTION 3.50 3.51 4.0 4.1 4.2 4.3 5.0 5.1 5.2 6.0 6.1 6.2 6.3 7.0 8.0 9.0 9.1 9.2 9.3
TITLE Packing Spares SUB-CONTRACTORS Subcontractors and Suppliers Sub-Contractors and Manufacturer Warranties Review and Approval Non Release of Contrctors Liability INSPECTION AND TESTING Requirements Rejection INSURANCE Offshore Supply Contractor: Insurance of Goods Onshore Service Contractor: Insurance of relevant Package General Insurance Requirements TITLE FOSSILS COMMENCEMENT, DELAYS AND SUSPENSION Notice to Proceed Commencement of the Work / supply of Goods Contractual Time for Completion
SHEET 71 71 74 74 76 79 79 79 82 83 83 83 86 91 92 92 92 92 93
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SECTION 9.4 9.5 9.6 10.0 10.1 10.2 10.3 10.4 10.5 10.6 10.7 10.8 11.0 11.1 11.2 12.0 12.1 12.2 12.3
TITLE Extension of Time for Completion Rate of Progress Suspension of Supply of Goods/ Work TESTS BEFORE TAKE OVER Performance Guarantee Tests and Unit Characteristic Tests Revenue During Tests Performance Test Report Correction of Performance Defects Provisional Performance Acceptance Final Performance Acceptance Final Acceptance Certificate Use of the Unit Prior to OWNERs Acceptance LIQUIDATED DAMAGES Liquidated Damages for Delay Liquidated Damages Responsible WARRANTIES Contractor Warranties Warranty Period Sub-Contractor Warranties
SHEET 93 94 94 95 95 97 97 98 99 100 101 102 102 102 103 103 103 105 106
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SECTION 12.4 12.5 12.6 12.7 12.8 12.9 13.0 13.1 13.2
TITLE Survival of Warranties Emergency Repairs Removal of the Defective Work Further Tests Right of Access Contractor to Search CONTRACT PRICE AND PAYMENT The Contract Price Contract Performance Security or Contract Performance Bank Guarantee
SHEET 106 107 107 107 108 108 108 108 110
13.3 13.4
Terms of Payment Application for Interim Payment Certificates and Claim for Payments
111 119
13.5 13.6 13.7 13.8
Mode of Payment Delayed Payment Deductions from Contractors Bills/Payments Withheld Final Performance Acceptance and Contractors Request for Final Payment
120 121 121 123
13.9 13.10
Punch List Items Effect of Payment
125 126
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SECTION 13.11 14.0 14.1 14.2 14.3 15.0 15.1 15.2 15.3 15.4 16.0 16.1 16.2 16.3 16.4 16.5 17.0 17.1 17.2
TITLE Release CHANGE ORDERS Further Detailing not a Change Order Right to Change Order Change Order Procedure TERMINATION BY THE OWNER Termination for Convenience Termination for Default by Contractor Payment after Termination Bribes DEFAULTS AND REMEDIES Contractors Entitlement to Suspend Work or supply of Goods Termination Notice Right to Cure Cessation of Work and Removal of Contractors Equipment Payment on Termination INDEMNIFICATION General Indemnity Specific Indemnification
SHEET 126 127 127 127 128 129 129 129 132 132 133 133 133 134 134 135 135 135 136
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SECTION 17.3 17.4 17.5 17.6 18.0 19.0 19.1 19.2 19.3 19.4 20.0 20.1 20.2 20.3 20.4 20.5 20.6 21.0 22.0
TITLE Intellectual Property Indemnification Notice and Legal Defence Failure to Defend Action Survival: Expiration of Indemnity CONTRACTORS CARE OF THE WORKS LIMITATION OF LIABILITY No consequential Damages, etc. Limitation of Liability Maximum Liability Exclusive Remedies FORCE MAJEURE Definition of Force Majeure Excused Performance Limitations Effect of Force Majeure Event Payment to Contractor Optional Termination, Payment and Release FINANCING CLAIMS, DISPUTES, MUTUAL SETTLEMENT & ARBITRATION
SHEET 137 138 139 139 140 140 140 141 141 142 142 142 143 144 144 144 145 145 146
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SECTION 22.1 22.2 22.3 23.0 24.0 25.0 25.1 25.2 25.3 25.4 25.5 25.6 25.7 25.8
TITLE Procedure for Claims Mutual Settlement Arbitration ENFORCEMENT OF TERMS REPRESENTATIONS & WARRANTIES MISCELLANEOUS Non-Wavier Severability Survival of Provisions Entire Agreement Amendment Successors and Assigns Counterparts No Benefit to the Third Parties
SHEET 146 147 148 149 149 152 152 152 153 153 153 153 153 154
THE TATA POWER COMPANY LIMITED Volume III BHIRA 100MW-AUGMENTATION SCHEME INCLUDING MULSHI LAKE SUB-STORAGE UTILIZATION PART: I
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1.0 1.1
DEFINITIONS OF THE TERMS AND PRELIMINARY CONDITIONS OF CONTRACT Definitions In the Contract (as defined below), unless the context requires otherwise the words and expressions defined below shall have the meaning hereinafter assigned to them.
1.1.1
Affiliate shall mean an entity controlling, controlled by, or under the common control with, a Party directly or indirectly through ownership of voting securities or by Contract or otherwise.
1.1.2
Annexure means all appendices, annexure and schedules annexed to this Contract or incorporated by reference herein and shall include all amendments and revisions thereto made by mutual agreement of Owner / Project Manager and Contractor in accordance with the provisions contained in this behalf in this Contract.
1.1.3
Applicable Laws means all laws, treaties, ordinances, rules, regulations applicable in India and amendments, re-enactments, revisions, applications, and adaptations thereto made from time to time and in force and effect, judgements, decrees, injunctions, writs and orders of any court, arbitrator or governmental agency or authority, rules, regulations, orders and interpretations of any Governmental Instrumentality, court or statutory or other body having jurisdiction over construction of the Facility on the Facility Site, performance of the Work or supply of Goods, operation and maintenance of the Plant, including Applicable Permits, as may be in effect at the time of performance of work or supply of Goods hereunder by the Contractor, which time would include Latent Defects Period as appropriate, provided, however, that if at any time the Applicable Laws are less stringent than the standards set forth in the Contract hereto, the standard set forth in the contract hereto shall be deemed to be the standards under Applicable Laws.
1.1.4
Applicable Permits & Clearances means any and all Permits, Clearances, authorizations, consents, licenses (including without limitation any import or export licenses), lease, ruling, exemption, filing, agreements, or approvals, required to be obtained or maintained in connection with construction of the Plant on the Site, performance of Work, and the operation of the Plant respectively by the Contractor and the Owner in accordance with the Contract and their maintenance, as may be in effect at the time of Contractors performance of Work or supply of Goods hereunder; which time would include Latent Defects Period as ISSUE R0
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appropriate.
1.1.5
Bid means the tender offer of the Contractor to the Owner / Project Manager in response to the Tender Enquiry as set forth in the Final Proposal.
1.1.6
Relevant Package means, Design, engineering, manufacturing, shop fabrication, assembly, testing and inspection at suppliers work, packing, dispatch, shipping, inland transportation to site, insurance up to time of handing over, delivery at site, receipt, unloading, handling, storage and in-plant transportation at site, installation, testing, commissioning and handing over of Units and other apparatus, appliances, machinery, equipment, components and other Works, together with all auxiliaries, materials, apparatus, appliances, other things whatsoever and related structures as an integrated whole, including all related sub-systems that may be incorporated or installed in or attached to or otherwise become part of Plant or as envisaged in Contract or which otherwise constitutes a part of the Facility and located on Site OR as defined in the Technical Specifications.
1.1.7
Business Day means a day other than a Sunday or public holiday on which banks are open for domestic business in New Delhi / Mumbai.
1.1.8
Cause in relation to the revocation or amendment of any Permit means any fact or circumstance, including without limitation any default, neglect or failure to abide by any of the terms and conditions of such Permit.
1.1.9
Change in Law means the occurrence of any of the following after the Effective Date of this Agreement.
a)
The enactment of any or issuance of any new Indian law that becomes Applicable Law ;
b) c)
The amendment or repeal, or re-enactment of any existing Applicable law; A change in the interpretation or application or enforcement of any Applicable Law by Government instrumentality
d)
The revocation or cancellation of any Applicable Permit unless due to a cause attributable to the Contractor.
e)
For purpose of this definition the law does not include any taxation laws. ISSUE R0
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1.1.10
Change Order means a written order from the Owner to Contractor after Effective Date of Contract requiring a change in any part of Work or supply of Goods that may involve
a) b) c) d)
A change in the Scope of Work or supply of Goods, An additional Work or supply of Goods, The omission of a portion of the Work or supply of Goods as per clause 14.0 or If appropriate, an adjustment in one or more of the (i) Contract Prices, (ii) Guaranteed Completion Dates, (iii) Milestone Payment Schedule, (iv) any of the Performance Guarantees, or (v) any provision of this Contract including any Annexure or Schedule hereto or
e)
Any of the above in combination.
1.1.11
Change Order Notice means a written proposal issued and signed by Owner / Project Manager requesting a change, submitted to Contractor by former pursuant to the terms of clause 14.0 hereof.
1.1.12
Change Order Request means a written notice to Owner issued by Contractor indicating that a change order is required in connection with the performance of the work or supply of goods.
1.1.13
Commissioning shall mean integrated activity covered under Preliminary Operation, Initial Operation and carrying out Performance Guarantee Tests before Taking-over of Unit under the contract.
1.1.14
Contract means the documents as set out in the form of Contract Agreement as may be amended, supplemented or modified from time to time by agreement in Writing between the Parties.
1.1.15
Contract Period means the period from the Effective date up to and including the last day of the Latent Defect Liability Period.
1.1.16
Contract Price means the lump sum fixed price as stated in Contract or such price as may be modified pursuant to clause 14.0 and as payable by Owner to Contractor in consideration of it performing the Work or supply of Goods including all obligations of the Contractor under ISSUE R0
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and in accordance with the provisions of Contract.
1.1.17
Contractors Works shall mean the places which are used by Contractor or any of its subvendor / Sub-Contractor for the manufacture of equipment for the Plant or performance of Work.
1.1.18
Contractors Equipment means all machinery, apparatus, equipment, appliances, Materials, items and other things (other than temporary Works) of whatsoever nature required for the execution and completion of the Works, performance of the Contractors obligations under the Contract including supply of Goods and Work, establishing of Performance Guarantees, and the remedying of any defects and deficiencies, but does not include equipment, apparatus, appliances, machinery, Materials, items and other things of whatsoever nature intended to form or forming part of the Plant.
1.1.19
Contractor means the person whose Bid has been accepted by Owner and the legal successors in title to such person who satisfies the qualification criteria set forth in Tender Documents.
1.1.20
Contractor Permits means all Permits, required by the Contractor from any Government Instrumentality for the performance of his obligations.
1.1.21
Contractors Representative means the person named as such in Contract or other person appointed and from time to time communicated to Owner by Contractor in his place in accordance with the terms of Contract.
1.1.22
Contractual Time for Completion shall mean successful completion of all Performance Tests and of Tests before Taking Over and issuance of Taking Over Certificate by Owner as per clause 0, and 10.5.2 of this Section.
1.1.23
Cost means all expenditure properly incurred (or to be incurred) by Contractor, whether on or off the Site, including overhead and similar charges, for the full complete and proper performance of Work or supply of Goods including discharge of all of Contractors obligations under and in accordance with the Contract which are duly audited and supported but does not include profit.
1.1.24
Consultant shall mean Consulting Engineers appointed by Project Manager for Project and shall include, their duly authorised representatives.
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1.1.25
Day means a calendar Day of 24 (twenty four) hours and Year means 365 (three hundred and sixty five) days.
1.1.26
Documents means and includes all design documents, engineering documents, Drawings, calculations, computer software (programs), computer media, samples, patterns, models, construction documents, erection documents, Operation and Maintenance Manuals, and other manuals, and the like as well as, all other data and information to be submitted by Contractor and shall include without limitation, engineering, design and construction drawings, data sheets, specifications, plans, bills of Materials and estimates.
1.1.27
Drawings shall mean all:
a) b)
Drawings furnished by Owner or Consultant. Supplementary drawings furnished by Owner or Consultant to clarify and to define in greater detail the intent of the Contract.
c)
Drawings submitted by the Contractor with his proposal provided such drawings are acceptable to Owner or the Consultant.
d)
Engineering data and drawings submitted by the Contractor during the progress of the Work under the Contract, provided such engineering data and drawings are acceptable to the Consultant or Owner.
1.1.28
Effective Date or Effective Date of Contract means the date on which Contract comes into force and effect, i.e. From date of issue by Owner of Letter of Intent to Contractor by Owner which ever is earlier if not specifically defined.
1.1.29
Facility or Plant means, collectively, all Units and other apparatus, appliances, machinery, equipment, components and other Works, together with all auxiliaries, Materials, apparatus, appliances others things whatsoever and related buildings as an integrated whole, including without limitation all systems and sub-systems thereof and related facilities, including without limitation any and all appliances, parts, instruments, appurtenances, accessories and other property that may be incorporated or installed in or attached to or otherwise become part of the Plant or as envisaged in Contract or which otherwise constitutes a part of the Facility and located on Site.
1.1.30
Final Acceptance means acceptance by Owner of each of the Unit as a whole in ISSUE R0
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accordance with clause no. 10.6 of General Conditions of Contract.
1.1.31
Final Acceptance Certificate means the acceptance by Owner of RELEVANT Package as a whole in accordance with clause no. 0 of General Conditions of Contract.
1.1.32
Final Payment Certificate means the payment certificate issued by Project Manager or his Representative under clause 13.8 hereof to the Contractor.
1.1.33
Final Proposal shall mean final offer of Bidder incorporating all the amendments and clarifications.
1.1.34
Financing Document means any document relating to the: Debt or equity financing to Owner for provision of funds for the development, design, construction and I or operation of the Plant; or Funds for refinancing part or whole or take-out of any such financing.
1.1.35
Financial Closing Date means the date on which Owner has access to funds pursuant to Financing Documents.
1.1.36
Financing Party means any Person or Persons providing:
a)
Debt or equity financing to Owner (including Owners sister concerns) to provide funds for the development, design, construction and / or operation of the Project;
b)
Interim or long term financing for the construction of the Plant.
1.1.37
Force Majeure Event shall have the meaning set forth in clause no. 20.0 of these Conditions of Contract.
1.1.38
General Conditions of Contract means these Terms and General Conditions of Contract as mutually amended in accordance with the provisions contained in this behalf herein as applicable to scope of supply of Goods or Work.
1.1.39
Goods means all of the equipments, machinery, apparatus, appliances, components and/or other Materials and things, which Contractor is required to supply to Owner under the Contract.
1.1.40
Good Engineering Practices means those practices, methods, acts, techniques and standards as may be followed or employed in the performance of the Work or supply of Goods and discharge of its obligations by the Contractor and which (i) are generally accepted internationally for use in the electric utility industry, taking into account conditions in India, in connection with ISSUE R0
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power stations of the same or similar size and type as the Plant, (ii) are commonly used in prudent electric utility engineering, construction, project management and operations, and (iii) would be expected to result in performance of the Services and completion of Works in a manner consistent with Applicable Laws, Applicable permits, reliability and safety.
1.1.41
Government Instrumentality means Government of India, Government of Maharashtra and any other State, or any political subdivision, ministry, department, agency, corporation, commission or any regional, local or municipal authority or governmental body thereof or any other governmental or statutory body under the direct or indirect control of the Government of India or Government of Maharashtra or of any other State, or of any political subdivision, ministry, department, agency, corporation, commission, or any regional, local or municipal authority or governmental body thereof, and shall include without limitation any other governmental or statutory body having jurisdiction over facility or over the performance of any part of Work or the Works or any obligation of Contractor or Owner under Contract.
1.1.42 1.1.43
Grid means the system of electrical transmission and distribution Guaranteed Completion Date or Guaranteed Completion Dates means, individually or collectively, the Completion Date of the Unit.
1.1.44
Hazardous Materials means (i) hazardous materials, hazardous wastes, hazardous substances, toxic substances or contaminants as those terms are defined under any environmental law or regulation, including, but not limited to, Applicable Laws, and in the regulations adopted or promulgated pursuant thereto; (ii) petroleum and petroleum products including crude oil and any fractions thereof; (iii) any other hazardous, radioactive, toxic or noxious substance, material, pollutant, or solid, liquid or gaseous waste; and (iv) any substance that, whether by its nature or its use, is subject to regulation under any environmental law or with respect to which any applicable environmental law or any Governmental Instrumentality requires environmental investigation, monitoring or remediation.
1.1.45
Initial Operation shall mean all operations undertaken as part of Commissioning after completion of Preliminary Operation and up to commencement of Performance Guarantee Test. It shall be the first integral operation of the complete Plant / system / equipment covered under Contract and shall include first light up / initial equipment rolling, equipment stretch-out, dry-out and operational chemical cleaning, no-load / partial load / full load runs for mechanical / electrical tryout and gathering of operational data; calibration, setting and commissioning of control systems; and shutdown inspection and adjustment after running trials of the Plant / ISSUE R0
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system / equipment covered under the Contract.
1.1.46
Inspector shall mean the authorised representatives appointed by Project Equipment / works / Services.
Manager /
Consultant / Owners Third Party Inspection Agency for purpose of the inspection of materials /
1.1.47
Intellectual Property means copyrights conferred under statute, common law or equity in relation to inventions (including patents) registered and unregistered trademarks and service marks registered and unregistered designs, circuit layouts, confidential information, proprietary information and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
1.1.48
Interim Payment Certificate means any payment certificate other than Final Payment Certificate, issued by the Owner / his Representative pursuant to clause no. 13.0 hereof.
1.1.49
Latent Defect shall be the defects inherently lying within the goods which do not manifest during normal inspections carried out by the OWNER in accordance with O&M manual during the initial Warranty Period.
1.1.50 1.1.51
Latent Defect Liability Period means the liability period as set forth in clause 12.2.2 hereof. Liquidated Damages means the appropriate measures of the damages for such delays or such shortfalls in performance and are neither penalty nor consequential damages sustained by Owner as a result of such delays and / or shortfalls, as set forth in clause 11.0 hereof.
1.1.52
Manuals means all the various instruction manuals to be provided as per the Contract by the Contractor and shall include Manuals described in Specifications or General Conditions of Contract.
1.1.53
Manufacturer means any entity or firm who is the producer and furnisher to the Contractor of any material or designer and fabricator of any equipment / systems which is to be incorporated in or forms part of the Plant / work.
1.1.54
Materials means Goods and other things of all kinds to be provided and incorporated, to be used in the permanent Works / Plant/ Works by Contractor, including Goods purchased by Owner and supplied to Contractor or as a free issue or the supply-only items (if any) which are to be supplied by the Contractor under the Contract.
1.1.55
Mechanical Completion means the completion of all Works by the Contractor including ISSUE R0
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completion of construction, erection, installation and calibration, construction and testing services with respect to all mechanical, electrical, structural, instrumentation and control systems (including equipment) of the RELEVANT Package, and it has achieved a state of readiness for Preliminary Operation. Existence of Punch List items, which do not prevent or adversely affect the Unit, from being in a state of readiness for Preliminary Operation shall not be construed as preventing the Unit, from achieving Mechanical Completion.
1.1.56
Milestone Payment Schedule means the document which sets forth the limits of payments to be released (worked out, inter alia, on the basis of payment terms agreed by the Owner by linking such payment limits (in terms of percentages) with detailed milestones commencing from the date of Notice to Proceed. Such percentages shall be with reference to the Contract Price, more particularly defined in clause 13.1.1 (v).
1.1.57 1.1.58
Month shall mean calendar month or a period of 30 (thirty) days as relevant to the context. Monthly Progress Report or Progress Report means a progress report meeting the requirements set forth in sub clause 3.18 of the Specification hereto.
1.1.59
Notice to Proceed means the written notice to be delivered by Owner to Contractor pursuant to clause no. 9.1 hereof.
1.1.60
Notice in Writing or Written Notice shall mean a notice in writing, typed or printed or hand written characters, sent (unless delivered personally or otherwise proved to have been received) by registered post or by electronic transmission to the last known private or business address or registered office of the addressee and shall be deemed to have been received when in the ordinary course of post or by electronic media it would have been delivered.
1.1.61 1.1.62 1.1.63 1.1.64
Offshore Supply Contractor means a Contractor for supply of Goods from outside India. Onshore Supply Contractor means a Contractor for supply of Goods from within India. Onshore Service Contractor means a Contractor for providing Services from within India. Other Contractor shall mean Contractors engaged by Owner for carrying out civil works and other allied infrastructure facilities required for the Plant.
1.1.65
Owner / Project Manager shall mean Tata Power Company Limited hereinafter T P C L In its capacity as Owner of the Facility and shall include its successors and assigns, as well as ISSUE R0
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authorised officers.
1.1.66
Owners Representative means the person appointed by Owner from time to time and notified as such to the Contractor to act as Owners Representative for the purposes of the Contract. This shall also mean the Project Manager and his representatives and Project Managers Consultant. Owner, wherever used in these documents shall also mean Project Manager .Term Approval, Orders or Directions shall mean written communications, as oral ones have no statutory effect in Contracts. Therefore, both Owner and Contractor, whoever apprehends difference of opinion, interpretation or dispute shall record or always get this reduced to writing, in order to make this legally valid and binding on other party.
1.1.67
Owners Instructions shall mean any drawings, instructions, details, directions and explanations, in Writing issued by Owner or Project Manager or his Consultant from time to time during the subsistence of the Contract.
1.1.68
Owner Permits means the permits, authorisations, consents and approvals required by the Owner to own, posses, operate and maintain the Plant and to generate therein electrical energy.
1.1.69
Party means Owner or Contractor individually and Parties means Owner / Project Manager and Contractor collectively.
1.1.70
Permanent Works means the Permanent Works, equipment and Materials including all electromechanical works to be designed, engineered, manufactured, installed, erected, supplied, executed, commissioned or tested in accordance with the Contract and which form part of the Facility.
1.1.71 1.1.72
Performance Guarantees shall have the meaning set forth in this Section and Vol.III. Performance Test means, with respect to the Plant, the operation of the Plant as an integrated whole by the Contractor in coordination with Other Contractors as applicable, to prove and establish the Performance.
1.1.73
Permit means any valid permit, authorisation, license, registration, approval, consent, waiver, exemption, No-Objection Certificate, Approval, variance, franchise or any similar order of or from any Government Instrumentality, court or other body having jurisdiction over the matter in question.
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1.1.74
Person means any individual, corporation, partnership, association, joint stock Company, trust, unincorporated organisation, Hindu undivided Family, joint venture, government or political subdivision or agency thereof.
1.1.75
Preliminary Operation means all activities undertaken as part of Commissioning after Mechanical Completion upto commencement of Initial Operation and shall include mechanical and electrical checkouts, calibration of instruments and protection devices, Commissioning of sub supporting systems and chemical cleaning of the system/equipment covered under Contract.
1.1.76
Project means Facility and all Works that are necessary for 100 Project at Raigad District, Maharashtra of T P C L in Western India.
MW Bhira Augmentation
1.1.77
Project Documents mean collectively this Contract, the Power Purchase Agreement, the State Implementation and Support Agreement, the Land Lease Agreement, Fuel Supply Agreement, Transportation Agreement and any other contracts entered into or to be entered into by the Owner with Other Contractors in connection with the Project including without limitation any contacts for Related Works.
1.1.78
Project Manager shall mean Project Manager of T P C L, or their duly authorised representatives, who is the Project Manager for the Project.
1.1.79
Provisional Acceptance or Take Over means with respect to each Unit the provisional acceptance by Owner, pursuant to the provisions of clause 10.5 hereof.
1.1.80
Prudent Utility Practices means those practices, methods, equipment specifications and standards of safety and performance, as the same may change from time to time, as are generally accepted for use in electricity generating utilities taking into account conditions in India and commonly used in prudent electricity generation utility engineering and operations including design, engineering construction, erection, installation, Commissioning, testing, operation and maintenance of power generating stations and equipment comprised therein lawfully, safely, efficiently and economically for facilities of type and size similar to Project and that generally conforms to Equipment Manufacturers operation and maintenance guidelines and also any guidelines provided in this regard by any Government or statutory organisation or a Rating agency and the like.
1.1.81
Punch List means the list prepared by Owner at time of Provisional Acceptance and thereafter ISSUE R0
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periodically revised by Owner as necessary, and in any case updated by Owner within 20 (twenty) days following Owners receipt of a Notice of Final Acceptance, in each case with the full co-operation of Contractor, which list shall set forth certain items of Work which remain to be performed by Contractor in order to ensure that RELEVANT Package fully complies with all of standards and requirements set forth in Contract.
1.1.82
Related Works shall mean other than the Work under the Contract performed or to be performed by Owner or Owners Other Contractors in connection with the Project either prior to, concurrently or subsequently with Works within or outside Site with whom Contractor shall coordinate and interface his activities covered by Contract.
1.1.83 1.1.84 1.1.85
Reliability Operation and Trial Operation shall have the same meaning. Schedule shall have the meaning set forth in clause no. 3.19 here of. Site means all those parcels of land owned by Owner on which the RELEVANT Package will be located, as more particularly identified on the site plan and described in Drawings forming part of Contract hereto.
1.1.86
Sub-Contractor means any person named in the Contract as a Sub-contractor, sub-vendor, Manufacturer or supplier for a part of the Works or any person to whom a part of the Works has been subcontracted in accordance with clause no. 4.0 and the legal successors in title to such Person, but not any assignee of such Person.
1.1.87
Take Over or Taking Over shall mean Taking-over of the Unit for the purpose envisaged under the Contract or that for which the Unit is commercially capable, as certified upon completion of Trial Operation and Performance Tests.
1.1.88 1.1.89
Take Over Certificate means the certificate issued under clause no. 10.5.2. Temporary Works means all temporary works of every kind (other than Contractors equipment) required for the execution and completion of the Works and the remedying of any defects.
1.1.90
Tender Documents means the Invitation to Bid with all the Documents in this compilation number No.TCE . 5270 A H 112-601 together with all amendments thereto and clarifications if any issued by Owner or Consultant from time to time in respect thereof.
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1.1.91
Tests means all tests to be undertaken by Contractor under or pursuant to Contract including all the tests set forth in Contract.
1.1.92
Tests before Take Over means the tests prescribed in the Specification, and any other such tests as may be agreed between Owner and Contractor or instructed as a Change Order, which has to be carried out by the Contractor before the Taking Over of the Unit.
1.1.93 1.1.94
Unit shall mean Turbine, generator & other auxiliary systems of the hydro power station. Warranty Period for each Unit shall mean the period of 24 (twenty-four) months beginning
from the date each Unit as a whole is taken over as stated in the Provisional Acceptance Certificate. During this Warranty Period, the Contractor will be liable to rectify defects in the Unit if any arisen.
1.1.95
Works or Services means all the work and obligations of the Contractor under the Contract including without limitation, the Work and services briefly described in Specifications for the RELEVANT Package including permanent works and temporary works as appropriate under the Contract.
1.1.96
Writing shall include any manuscript, typewritten e-mail or printed statement, under or over signature and / or seal of the originator or author as the case may be.
1.2
Headings and Marginal Notes The section headings and marginal notes are not part of these Conditions, and shall not be taken into consideration in their interpretation.
1.3 1.3.1
Interpretation Words importing Persons or Parties shall include related firms and corporations and any organisation having legal capacity. Words importing the singular also include the plural and vice versa where the context requires. Words importing one gender also include other genders.
1.3.2
Unless inconsistent with provisions of Contract, meaning of any shipping terms and the rights and obligations of the parties there under shall be as set forth in latest International Chambers of Commerce (ICC) official rules for interpretation of trade terms as per INCOTERMS 2000.
1.3.3
Term Contractor shall include its Sub-contractor as the context requires. ISSUE R0
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1.4 1.4.1
Law, Language and Measurements Applicable law to this Contract shall be the Indian Law. The respective rights, privileges, duties and obligations of Owner and Contractor under this Contract shall be governed and determined by the Laws of State of Maharashtra and of the Republic of India.
1.4.2
All correspondence and documentation pertaining to this Contract shall be in English language only. Official text of this Contract shall be English, regardless of any translation that may be made for the convenience of the Parties. All correspondence, information, literature, data, manuals, definitive documents, notices, waivers and all other communication, written or otherwise, between the Parties in connection with this Contract shall be in English.
1.4.3 1.5
All measurements shall be in metric system. Stamp Duty and Similar Charges The costs of stamp duties and similar charges imposed by law on the Contract or Agreement or any part thereof shall be borne by the Contractor.
1.6
Effective Date of Contract Contract shall be deemed to have come into force and effect from the date of issue by Owner of Letter of Intent to the Contractor.
1.7
Priority of Documents The following documents shall be deemed to comprise the Contract:
a) b) c) d) e)
This Contract Agreement (including all Schedules and Appendices) Conditions of Contract as they shall apply to this Contract Agreement Owners Letter of Intent to the Contractor Contractors Letter of Acceptance Tender document
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f) g) h) i) j) k)
Minutes of Meetings with the Contractor; Record Notes of Tender Negotiations Contractors Implementation Plan including Contractors Organization and Key Personnel Approved List of Subcontractors & Vendors Responsibility Matrix for Permits, Approvals and Clearances as they shall apply to this Contract Agreement
l)
Contractors Health, Safety and Environment Manual
Contractor is deemed to have full knowledge and understanding of the contents of all the foregoing documents whether contained in or incorporated by reference thereto, and accepted all the terms and conditions contained therein. In the event of any ambiguity or conflict between any of the foregoing Contract Documents, the Contractor shall, prior to commencement of the subcontract supplies, services or work, be deemed to have clarified from the Owner all such ambiguities or conflicts. Order of precedence of the foregoing documents shall be the same as listed herein above.
1.8
Documents on Site Contractor shall keep on the Site one complete set of clause 1.6 and Contract, the Documents, Change
Orders, communications given or issued under various clauses and sub clauses including Documents referred / mentioned in sub-clause 1.7 duly authenticated by Owner, Owners Owners Representative. These Documents shall be either true copies or original documents, the same being verified as true copies by Owners Representative. such Documents at all reasonable times. Representative and his delegates (as referred to in sub-clause 2.4) shall have the right to use
1.9
Communications All certificates, notices, instructions, communications, consents, approvals, orders or determination to be given to Contractor by Owner (in as many copies required) and all notices ISSUE R0
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or communication, to be given to Owner by Contractor, shall be in Writing and may either be delivered by hand against written acknowledgement of receipt, or be sent by airmail or one of the agreed systems of electronic transmission as agreed by Owner. . Addresses for the receipt of such communications shall be as stated in Contract as modified by notice given in accordance with this clause. Contractor shall maintain a separate set of copies of all the inward and outward correspondences which should be produced at any time if need be. Contractor shall act or modify actions only on the basis of valid written communications received from Owner and would need to provide documentary evidence (correspondences received from Owner if required by him.
1.10 1.10.1
Provision of Documents In addition and without prejudice to the foregoing Contractor shall provide to OWNER As built Drawings of the RELEVANT Package consequent to Final Acceptance and only on the Day of delivery of such as built Drawings the Final Acceptance shall take effect.
1.11 1.11.1
Contractors Use of Owners Documents Copyright in Owners requirements and other Documents issued by him to Contractor shall (as between the parties) remain property of Owner. Ownership in all documents provided by the Contractor to Owner pursuant to Contract including design, engineering, Drawings and Works layout (but excluding proprietary information and Manuals provided by vendors of equipment for use of Owner) shall be with Owner. Contractor may, at its Cost, copy, use and communicate any such documents for purposes of Contract. They shall not, without Owners consent, be used, copied or communicated to a third party by the Contractor, except as necessary for the purposes of Contract including performance of Work or supply of Goods
1.11.2
Contractor shall indemnify Owner in case of breach of this clause by Contractor. If these Documents are received by a third party from the Contractor and the third party makes use of these Documents to cause harm or monetary loss to Owner or use these Documents for their personal gain / monetary gain, Contractor shall compensate Owner for the loss suffered as well as for the value of gain derived by third party.
1.12 1.12.1
Confidential Details Contractor shall treat the details of the Contract as private and confidential, except to the extent necessary to carry out his obligations hereunder. Contractor shall not publish, permit to be published, or disclose any particulars of Contract in any trade or technical paper or elsewhere ISSUE R0
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without the previous consent in writing of Owner and at Owners sole discretion.
1.12.2
Contractor shall indemnify Owner in case of breach of this clause. If confidential details relating to this Contract or its contents are received by a third party from Contractor and the third party makes use of these details to cause harm or monetary loss to Owner or use these Documents for their personal gain/ monetary gain, Contractor shall compensate Owner for the loss suffered as well as for the value of gain derived by the third party. Contractor shall not use the confidential details of the Contract for any other purpose except for the strict purpose of this Contract.
1.13 1.13.1
Contract Co-ordination and Interface From fiscal and execution considerations, the Owner intends to enter into independent standalone contracts with one or more Other Contractors for Related Works in connection with the RELEVANT Package tendered by the Owner including (i) Onshore Contract for Civil Works, (ii) Offshore Contract for Supply of Imported Material; (iii) Onshore Contract for Supply of Indigenous Material; (iii) Contract for Installation, Commissioning, Services; and such other contracts. Guarantees and other
1.13.2
Contractor,
with whom any of
above Contracts are entered and interfacing of all
into by
Owner, shall be
responsible for effective co-ordination
his contracting activities and
obligations under Contract with the activities and obligations of the Other Contractors in a seamless manner, irrespective of whether the same is specifically detailed in such Contracts, to ensure that Guaranteed Time Schedule and Performance Guarantees set forth in Contracts are properly fulfilled in a timely manner by all such Other Contractors.
1.13.3
Where one or more of such Contracts are entered into by the Owner with the same Contractor or any of his Affiliates, such Contractor shall be additionally liable to ensure that all such coordination and interfacing of contracting activities under all such Contracts are performed and guaranteed by him on a single point responsibility basis in as much as Owner will only be required to liaise with and look up to only such Contractor for the timely and proper performance of all such Contracts by the Other Contractors.
1.14 1.14.1
Assignment Contractor shall not, without the prior consent of Owner assign to any person any benefit of or obligation under Contract in whole or in part. Such assignment, if approved by Owner, shall not relieve Contractor from any obligations, duty, or responsibility under the Contract. ISSUE R0
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1.14.2
Contractor consents to the creation by Owner of a security assignment of the Contract in favour of any Financing Parties (or a trustee acting on behalf of one or more Financing Parties) and hereby undertakes to execute upon the request of Owner such Documents including those giving effect to this consent of Contractors as may be reasonably required to give effect to any such assignment provided that the Contractor is not subject to any duty, liability or responsibility greater than that under the Contract.
1.14.3
Owner shall not, without the prior consent of the Contractor, assign to any Person any benefit of or obligation under the Contract in whole or in part. However, Owner can assign to its parent companies or subsidiary companies without prior permission of the Contractor. the Contract. Such assignment shall not relieve Owner from any of its obligations, duties or responsibilities under
1.14.4
Any Sub-Contracts entered into by Contractor pursuant to clause no. 4.0 of these Conditions of Contract shall provide that, pursuant to terms that are available on a commercially reasonable basis, the rights and obligations of the Contractor under each such sub-Contract are assignable and delegable to OWNER, its successors and assigns and the Financing Parties and shall be deemed to have been assigned to Owner, or if required by Owner to Financing Parties forthwith upon Owner s written request without any further act, deed or thing and irrespective of termination or otherwise of the Contract.
2.0 2.1
OWNERS OBLIGATIONS Access and Right to use of the Site Owner shall grant Contractor right of access to, and make available the Site to the Contractor in accordance with the terms of Owners property rights within reasonable time after the Effective Date for the performance of the Work or pursuant to and in accordance with the Contract. Such right and use of the Site may not be exclusive to the Contractor. In the execution of the Works, no persons other than Contractor or his duly appointed representative, Sub-contractor and workmen, shall be allowed to do Work on the Site, except by the special permission, in Writing of Owners representative. If during the execution of the works, or at ant time thereafter the Contractor shall receive any claim for which he is liable arising out of the execution of the Works by way of damage or injury to highways, tunnel or bridges, he shall immediately report the same to the Project Manager and thereafter shall negotiate and pay all sums due in respect of such claims. He ISSUE R0
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shall at all times indemnify the Owner in respect of all claims, proceedings, damages, costs, charges and expenses in relation thereto.
2.2 2.2.1
Permits, Licences or Approvals Owner shall, at the request and cost of Contractor assist him in applying for Contractor Permits and other Construction Permits as defined herein. Such requests may also include requests for Owners assistance in applying for any necessary government consent for the export of Contractors equipment when it is removed from the Site.
2.2.2
Owners assistance in applying for Permits, licenses or approvals (for which the Contractor is responsible under the Contract) is not obligatory and the extent of such assistance shall be at the sole discretion and convenience of Owner. In any case, the Contractor shall be responsible for applying and obtaining all the Permits, licenses or approvals as required to be obtained by Contractor for carrying out and completion of the Works and operation of the Plant, in time as per the Schedule agreed in Contract irrespective of the manner, outcome and extent of assistance from Owner. All necessary fees and any incidental charges required to be paid for obtaining all Contract permits shall be borne by and be the liability of the Contractor. Owner shall be responsible for obtaining only those permits / approvals and other incidental approvals relating to investment.
2.3
Owners/ PROJECT Managers Other Obligations Owner / Project Manager shall
a)
Designate a person as Owners Representative to be the contact for Contractor with respect to the performance of the Works and Contractors obligation under the Contract, and shall be authorised to act for and on behalf of Owner and administer this Contract on Owners behalf, agree up on procedures for co-ordinating Owners efforts with those of Contractor and as appropriate, make information available to Contractor.
b)
Provide at its expense fuel and electricity as reasonably required during Commissioning and during Performance Tests before Take-Over including Reliability Operation, Performance Test, Unit Characteristic Tests and other tests as set forth in respective Volumes.. Provisions of fuel and electricity as required for other activities and Work of Contractor including those as per Sub-clause No. 3.11 of Conditions of Contract shall, however, be by Contractor at its cost and expense. ISSUE R0
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c)
Provide, at its own expense, the Operation and Maintenance (O&M) personnel to operate the Plant under the direction, guidance and supervision of the Contractor prior to Provisional Performance Acceptance, but nevertheless after successful Trial Operation and Reliability Tests.
d)
Pay in a timely manner in accordance with Terms of Payment, subject to fulfilment of milestones and provided the Contractor is not in breach of Contract, the Contract Price and all other sums, if any, required to be paid by it to Contractor pursuant to the Contract.
2.4
The Owners Representative Owners Representatives Duties and Authority Owner will provide project management consultancy services for the Project. TPC shall act as an Owners Representative to exercise the rights and carry out the duties of Owner under the Contract. Owners representative shall also include Consultant / Consulting Engineer or Third Party Inspection Agency as required or deemed appropriate or authorised by Owner. Any act, instruction or decision of Owners representative shall be as if this was an act, instruction or decision of Owner.
2.4.1
Except as expressly stated in the Contract, Owners Representative shall have no authority to (a) amend, alter, modify or waive any provision or term of the Contract, or (b) relieve the Contractor of any of his duties, obligations or responsibilities under the Contract. Any proposal, inspection, examination, testing, consent, approval or similar act by Owners Representative (including absence or disapproval) shall not relieve or absolve in any manner whatsoever, the Contractor from any responsibility, liability or obligation under the Contract, including responsibility and liability for his errors, omissions, discrepancies, and non-compliance with the Specifications and any provisions of the Contract. Owners Representatives instructions Contractor shall comply with written decision instruction or order given by the Owners Representatives in accordance with the Contract. Right to Examine and copy Owners Representative shall have the right, at any time on reasonable notice and at the ISSUE R0
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premises of Contractor or any Sub-contractors, to examine Drawings or Documents which have been prepared by Contractor or any Sub-contractor for purpose of Contract (including manufacturing Drawings of items not manufactured exclusively for the purpose of Works but which are normally intended for disclosures to purchasers), except Drawings or Documents containing proprietary manufacturing know-how which is confidential to its proprietor.
2.4.2
Further,
Owner is also free (subject to the rights
Contractor himself has) to copy, use,
reproduce all designs, Drawings, models, plans, Specifications, design details, photographs, CAD Materials, and any other material as supplied by Contractor in connection with Facility or Works for completion, repair, reconstruction, modification, maintenance etc. Owners Representative may also allow third parties to use, copy and reproduce the same.
3.0 3.1
WORK TO BE PERFORMED BY CONTRACTOR AND CONTRACTORS OBLIGATIONS. General Owner has engaged Contractor relying upon the representations, assurances and Warranties made by the Contractor including the representation that Contractor has the experience, skill and resources to perform the Work or supply Goods and to design, engineer, supply, erect, construct, install, build and complete in all respects the RELEVANT Package fit for the purpose and deliver the same to Owner in accordance with Contract, and Contractor acknowledges such reliance by Owner and acceptance of Contractor for such engagement.
3.1.1
Without prejudice to the foregoing, except as otherwise expressly set forth in the Contract as within the scope of Owners obligations under the Contract, Contractor shall supply the Goods and / or perform or cause to be performed all Work and Services required in connection with the design, engineering, supply of equipment, procurement (including, without limitation, all transportation services in connection therewith), construction, erection, start-up, commissioning, testing including conducting of Performance Tests and other works and services up to Final Acceptance of the RELEVANT Package by Owner and in connection therewith provide all Materials, equipment, machinery, tools, labour, transportation, administration and other services and items required to complete the RELEVANT Package in all respects upto the Final Acceptance and having demonstrated the performance as guaranteed under the Contract by the Contractor on a total fixed price basis and otherwise in accordance with this Contract. If there are any supplies, Work and Services required in connection with the design, engineering, procurement, manufacture, supply, transportation to site, fabrication, construction, ISSUE R0
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erection, testing, commissioning and upto Final Acceptance of the RELEVANT Package which are not specifically mentioned in the Contract or which are not under the Contract expressly stated to be outside the Contractors Scope of Work or Supply described in the Contract, but which are necessary to complete, commission and efficiently operate the Plant as per Prudent Utility Practices, and have the performance as guaranteed under the Contract by the Contractor including for normal, safe and continuous operation of the Plant, the Contractor shall provide or cause the same to be provided as part of its obligations under the Contract. The Work to be performed or Goods to be supplied by the Contractor under the Contract shall, without prejudice to the generality of the foregoing include but not be limited to the following:
a)
All engineering and design services including necessary investigations required for a completely engineered RELEVANT Package including necessary documentation;
b)
Provision of all equipment, systems and materials as per Volume- II of the specification that will be merchantable, new and of first class quality, Contractors Equipment, Temporary Works and all other items, whether of a temporary or permanent nature including those required for the design, execution, completion, testing up to Taking Over and remedying of defects during Warranty Period including Latent Defect Period;
c)
Transportation to works from Port of entry and import clearance and handling services in and into India and inland transportation from the relevant points of delivery required in connection with the completion of the RELEVANT Package, and the performance of the other Work;
d)
Receipt of the management;
above at site including preservation during storage and stores
e) f)
Project management. Mechanical, electrical and instrumentation, installation, erection and installation services; Mechanical Completion, testing and commissioning, start-up, Preliminary Operation, Initial Operation, Reliability Operation, Unit Characteristics Tests and conducting of Performance Tests and proving of Performance Guarantees before Take Over of the Units including obtaining of all Applicable Permits, with Contractor having responsibility for overall co-ordination of licenses and permits under this Contract and all training activities;
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g)
Provision of all necessary superintendence, labour, construction fuels and construction materials and other Contractors Equipment, chemicals, utilities, tools, supplies and other consumables and services and Work;
h)
Rectification of defects and deficiencies including replacement to achieve Performance Guarantees and / or remedying of defects and deficiencies discovered or occurring during Warranty Period including the Latent Defect Liability Period; and
i)
Provide training to Owners operation & maintenance personnel.
Further, it is acknowledged by Contractor that he himself shall be primarily responsible for successful execution of all deliverables as specified in Contract clauses.
3.2
Engineering and Design Contractor shall provide all design and engineering services necessary for design, engineering, erection, supply of equipment, installation, testing and completion of the RELEVANT Package in accordance and conformity with the Contract, Good Engineering Practices and Prudent Utility Practices including:
a)
Preparation and submission of (i) (ii) (iii) The conceptual design including the design basis of RELEVANT Package and auxiliaries; and
The engineering and design necessary to describe and detail the Works and the Project.
b)
Modelling of RELEVANT Package using proven software packages for performance evaluation.
c)
Provision of criteria for the detailed design by other suppliers of Equipment/ system/ structures for incorporation into the RELEVANT Package.
d)
Preparation of design, engineering Drawings, plans, bill of material, schedule and estimates for the RELEVANT Package and the Project and the performance by Contractor of its obligations hereunder so that the Works constructed and commissioned by the Contractor is capable of meeting the Performance Guarantees and will be such as ISSUE R0
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could be legally, safely and reliably placed in commercial operation by Owner in accordance with Prudent Utility Practices. Contractor acknowledges the fact that Owner has agreements with the fuel suppliers, other Contractors, off takers and other third parties. Contractor shall co-operate with all these parties in the design, engineering, procurement, fabrication, supply, delivery, construction, Commissioning, start-up, testing, Take-over, operation, maintenance and repair efforts, and accommodate their reasonable interface and interconnection requirements within the limitations of Contractors design and scope of Work or Goods or other obligations hereunder. Design / Construction Documents
a)
Contractor shall prepare documents of Specification in sufficient detail to satisfy and comply with, all Applicable Permits including regulatory approvals, to provide suppliers and construction personnel sufficient instruction to execute the Works, and to describe the operation and maintenance of the completed Works. Owners Representative shall have the right to review and inspect the preparation of design and construction Documents.
b)
Each of the design and construction documents shall, when considered ready for use, be submitted to the Owners Representative for pre-construction review. In this sub-clause, review period means the period required by Owners Representative, which shall not exceed 15 (fifteen) Days, calculated from the date on which the Owners Representative receives a design / construction document and the Contractors notice that it is considered ready, both for a pre-construction review in accordance with this sub-clause and for use thereof. If Owners Representative, within such review period, notifies the Contractor that such design / construction document fails (to the extent stated) to comply with Owners requirements, it shall be rectified, resubmitted and again reviewed in accordance with this sub-clause, at the Contractors cost. Any such notification by Owners Representative or their failure to so notify shall not, however, relieve or absolve Contractor in any manner whatsoever of its obligations, Performance Guarantees and Warranties under Contract.
c)
For each part of the RELEVANT Package, and except to the extent that the prior consent of Owners Representative shall have been obtained: Construction and erection shall not commence prior to the expiry of the review periods for the design / construction documents, which are relevant to the design and construction of such part. Construction shall be in accordance with such construction documents; and ISSUE R0
(i)
(ii)
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(iii)
If the Contractor wishes to modify any design or Document which has previously been submitted for such preconstruction review, the Contractor shall subsequently submit revised Documents to the Owner / Owners Representative for preconstruction review.
d)
If
Owners Representative instructs that further design / construction documents are
necessary for carrying out either pre-construction review or the Works, Contractor shall upon receiving Owner / his Representatives instructions prepare such design / construction documents at no extra cost.
e)
Contractor at his cost shall rectify errors, omissions, ambiguities, inconsistencies, inadequacies and other defects.
f)
Manuals Contractor shall submit to Owner, as they become available from time to time during their preparation, all Contractor specifications and Documents including data sheets, plans and drawings, and other information and documents required for the RELEVANT Package of specification. In addition, Contractor shall provide the following:
(i)
Operation & Maintenance Manual: Owner and Contractor shall work together to agree, at the earliest practicable date on a preliminary outline of the form and content of, and not later than 8 (eight) Months after the Notice to Proceed is issued, Owner and Contractor shall agree on the final form and content of complete equipment and system, instructions for the start-up, operation and maintenance of the Plant (the Operating Manual). Not later than 12 (twelve) Months after the Notice to Proceed is issued, Contractor shall prepare in individually numbered bound volumes and deliver to Owner 10 (Ten) sets of the Operating Manual in English language. The Operating Manual shall incorporate relevant technical details, procedures and sequences in respect of RELEVANT Package including all sub-systems. Contractor shall consult with Owner in the preparation of the Operating Manual and OWNER will be permitted to make recommendations as to the final form and substance of the Operating Manual. Subsequent to such delivery, Contractor shall update and revise the Operating Manual, as required, in order to reflect changes in Contractor or Sub-contractor recommended operating or maintenance ISSUE R0
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procedures, improvements in the original Operating Manual, or revisions requested by Owner, until the first anniversary of first Unit Completion. Contractor shall obtain all instruction Manuals and special directions required for preparation of the Operating Manual from equipment Manufacturers or vendors or shall itself provide any such written instructions when they are not available from such Manufacturers or vendors. The Operating Manual shall be based on a generally accepted standard of professional care, skill, diligence and competence applicable to engineering and operating practices, shall be consistent with Prudent Utility Practices, and shall be prepared so that operation of the Units in accordance with the Operating Manual shall, under anticipated operating conditions, result in operation of the Project at the capacity, efficiency, reliability, safety and maintainability levels contemplated by the Contract and shall in no way impair any Warranty or Guarantee on equipment, Materials or Services relating to the Project including those being furnished by Contractor or Sub-contractors under the Contract. For the purpose of Operating Manual the Contractor shall comply with an approved standard system of Equipment Codification. The Contractor shall also develop Codification of Equipment in respect of the sub system, auxiliary plants and facilities delivered / furnished by others. The final Operating manual shall be submitted in softcopy. The O&M manual shall be indexed so that the navigation to the O&M manuals of all the sub-Contractors is possible from the main menu.
(ii)
Procedure Manual: Contractor shall, within 30 (thirty) Days after receipt of the Notice to Proceed, deliver to Owner a manual which provides the guidelines by which the normal working relationships will be conducted between Owner and its representatives and Contractor and between Contractor and Sub-contractors (the Procedure Manual). The Procedure Manual will contain, among other materials, an organisational chart, correspondence procedures, a Project filing system, procedures for the review of the design Documents and Project progress, and verification procedures to be implemented for the Project. The Procedure Manual shall be discussed and agreed with Owner. The Contractor shall deliver the final agreed Procedure Manual to Owner within sixty (60) days from date of NTP.
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(iii)
Quality Control Manual: Contractor shall, within 30(thirty) Days after receipt of the Notice to Proceed, deliver to Owner a manual prepared by Contractor conforming to the Quality Assurance Program , which Contractor shall adhere to, in order to ensure that the manufacturing and engineering methods and standards to be employed by Contractor under Contract are achieved ( Quality Control Manual). This Clause no 3.2 is to be read with para 10 of SCC at Part 3, Section III of this Volume.
3.2.1
Contractors Undertaking The Contractor undertakes that the execution of the Contract and the performance will be in accordance with the Applicable Laws.
3.2.2
Technical Standards and Regulations The design, engineering, manufacturing, procurement, supply, erection, installation, testing, commissioning of RELEVANT Package shall comply with
a) b) c)
Indian National Standards and Codes; Bureau Of Indian Standards, ASME etc. Technical and environmental regulations and Codes; Regulations and Codes applicable to the electrical energy being generated at the Facility, as also to the Facility and the standards specified in Owners Specification/the Contract.
d)
European Union Environmental Standards and where more stringent with the applicable Indian Environmental Standards of Central Pollution Control Board and Maharashtra Pollution Control Board; not withstanding what is stated in (a) to (c) above or elsewhere in the Specifications.
The Contractor shall also ensure due compliance of Indian Electricity Grid Code covering all aspects. Complete text of the Code is available on the web site www.cercind.com
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References in Contract to such specifications and other matters shall be understood to be references to the edition applicable on Effective Date of Contract, unless stated otherwise. In case of any conflict between provisions of codes and design criteria / specification the provisions that are more stringent shall be complied with. If substantially changed or new applicable national specifications, technical standards or regulations come into force after Effective Date of Contract, Contractor shall submit proposals for compliance to Owners Representative. In event latter determines that such proposals constitute a Change Order, he shall then initiate a Change Order in accordance with clause no. 14. Metric Units shall be used in all data/ documentation / drawings covered under this Contract.
3.3
Construction and Construction Management Contractor shall develop a construction plan and shall carry out, oversee, co-ordinate and ensure the expeditious design, engineering, procurement, fabrication, construction, Commissioning, start-up and testing of the RELEVANT Package in accordance with Specification and other provisions of Contract consistent with Guaranteed Time Schedules. Contractor shall supply all material and construction equipment required in the performance of the Work. All components of the RELEVANT Package including special tools shall be brand new equipment other than Contractors special tools used in the construction of the Plant. In case of usage of Owners special tools, they shall be refurbished before handing over.
3.3.1
Contractor shall perform and cause its Sub-Contractors to perform all design, engineering, procurement, fabrication, construction, erection, Commissioning, start-up, testing, operation and maintenance up o Take-over in accordance with Good Engineering Practices and Prudent Utility Practices so that RELEVANT Package shall operate in accordance therewith all Applicable Laws and all Applicable Permits and in a manner as not to void or diminish any manufacturers Warranty or any Insurance coverage with respect to the Project. Contractor shall inspect or cause to be inspected all equipment and shall reject those items not in compliance with the Specification, or approved Quality Assurance Plans. Contractor also shall carry out and oversee (a) the manner of incorporation of the equipment into RELEVANT Package and workmanship with which such equipment is incorporated and (b) the performance of the Work. Contractor shall establish and track Project management controls systems and provide design, engineering, procurement, fabrication, erection, Commissioning, start-up, testing and construction management services in accordance with the Standards of Performance set forth in the Specification and the Contract ISSUE R0
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The Contractor shall keep Owners Representative informed in advance regarding his field activity plans and schedules for carrying out each part of the Work. Any review of such plan or Schedule or method of Work by Owners Representative shall not relieve the Contractor of any of his responsibilities towards the field activities. Such reviews shall also not be considered as an assumption of any risk or liability by Owners Representative and no claim of the Contractor will be entertained because of the failure or inefficiency of any such plan or Schedule or method of Work reviewed. The Contractor shall be solely responsible for the safety, adequacy and efficiency of RELEVANT Package and equipment and his erection methods. Field activities of the Contractors working at site will be co-ordinated by Owners Representative and his decision shall be final in resolving any disputes or conflicts between the Contractor and other Contractors and tradesman of the Owner regarding scheduling and co-ordination of Work. Such decision by Owners Representative shall not be a cause for extra compensation or extension of time for Contractor. Owners Representative shall hold weekly meeting or daily meeting if required of all the Contractors working at Site, at a time and place to be designated by Owners Representative. Contractor shall attend such meetings and take notes of discussions during the meeting and the decisions of Owners Representative and shall strictly adhere to those decisions in performing his Works. In addition to the above weekly meetings, the Owners Representative may call for other meetings either with individual Contractors or with selected number of Contractors and in such case the Contractor, if called, will also attend such meetings. Time is the essence of Contract and Contractor shall be responsible for performance of his Works in accordance with the specified construction Schedule. If at any time, the Contractor is falling behind the Schedule, he shall take necessary action to make good for such delays by increasing his work force or by working overtime or otherwise reduce such delays by increasing his work force or by working overtime or otherwise accelerate the progress of the Work to comply with the Schedule and shall communicate such actions in writing to Owners Representative, satisfying that his action will compensate for the delay. Contractor shall not be allowed any extra compensation for such action.
3.4
Procurement Sourcing As part of the Work, Contractor shall procure and pay for, in Contractors name as an ISSUE R0
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independent Contractor and not as agent for OWNER except as otherwise indicated, all Contractor and sub-contractors labour, Materials, equipment, supplies, soil, cement, sand, gravel, paints and similar Materials and manufacturing, fabrication and related services (whether on or off the Site) for construction of and incorporation in the RELEVANT Package or which are otherwise required for completion of the Work in accordance with the Specification and the Contract and are not explicitly specified to be furnished by OWNER pursuant to the terms and provisions of the Contract including Specification. This would also include provision of:
a)
An inventory of spare parts (including maximum usage of standard items and engineering products as spare parts) that is required for efficient and cost effective operation of RELEVANT Package.
(i)
For start-up and Commissioning upto Take-Over of RELEVANT Package (startup and Commissioning spares) and
(ii)
For the three (3) year period subsequent to such Take-Over period (Essential spares as per Contract), each in accordance with applicable laws and governmental approvals,
b)
Contractor shall procure all equipments, instruments, accessories and auxiliaries from Sub Vendors listed at Volume VII, Part 4, Section 4.7. However, in case Contractor suggests alternative Sub Vendors not coved in above, the Sub vendors shall be approved Vendors of high repute who will supply these Goods manufactured by reputed approved Manufacturers. Contractor shall submit to the Owner a list of proposed alternative Sub vendors and/or Manufacturers separately for such Equipments, components, instruments, accessories, auxiliaries and other Materials proposing adequate plurality of Vendors and suppliers with their details of experience and proof of their supplies having stood test of the time in similar application earlier. Owner shall select among the list of Vendors/Manufacturers proposed by the contractor more than one approved Vendor/Manufacturer. Contractor shall procure the corresponding Plant, equipments, instruments, accessories and auxiliaries only from approved Vendor/Manufacturers.
c)
Prior to Owners acceptance of Unit, all materials including lubricants, chemicals and other consumables, reasonably necessary or appropriate for operation of such Unit. Upon Owner Final Acceptance of RELEVANT Package, Owner has a first right of refusal to purchase any unused Materials at Contractors procurement cost. If any of ISSUE R0
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the Owners spare parts or Materials are utilised during any Warranty Period to fulfil Contractors obligations hereunder, Contractor shall promptly replace such materials and spare parts at its own cost.
d)
In connection with its procurement work, Contractor shall be responsible for the shipping, transportation and delivery to site of all items fabricated, manufactured, constructed or procured as set forth in the Specification and the Contract. All such items and equipment, Materials and supplies to be provided by the Contractor or procured on behalf of Owner pursuant to the Contract shall be new and of utility-grade quality, free from improper workmanship or defects and properly warranted or guaranteed in accordance with the Contract. Any apparent omission or error in the equipment specifications will be corrected by the Contractor to the extent required by the Contract including Specifications.
e)
Contractor shall ensure that all construction equipment shall be of the most suitable grade of their respective kinds for the purposes and uses intended and construction equipment including rented construction equipment shall be maintained in a good state of repair and working condition.
f)
When required by the Contract including Specification or where equipment / systems is referred to as equal any particular standard, Contractor shall furnish to Owner full information concerning the equipment / systems establishing compliance with the Contract which it contemplates incorporating in or using in connection with the RELEVANT Package. Should any such equipment required to be so submitted for approval under this paragraph be installed or used by Contractor or a Sub-Contractor without approval by Owner, they may subsequently be rejected, and the cost thereof, including the Cost of all services and labour relating thereto, shall be to the account of Contractor and not reimbursable.
Co-ordination with Owner / Owners Representative / Other Contractors
a)
Owner through the Onshore Service Contractor shall arrange for expediting, clearing of all imported Goods at the port of destination and transportation to Site on his behalf and in his name. The Goods so imported would be issued to the Onshore Service Contractor as a free issue at the Site for safe custody and use in erection, installation, commissioning and testing. The Onshore Service Contractor will be responsible for receiving, inspection, unloading/loading, transportation at Site, storage and handling, ISSUE R0
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preservation, inspection, documentation and storage of Work and all Materials received at Site.
b)
Onshore Service Contractor shall be responsible for
completing all clearance
formalities in respect of all imported equipment, standard spare parts, maintenance tools and tackles and other materials used in connection with the supply of Goods or performance of the Work imported in the name of Owner on Owners behalf.
c)
Onshore Service Contractor shall arrange and ensure the security of all the foregoing items while in handling, transport or storage, and the safe delivery of the same to the plant Site and the incorporation of the same into the RELEVANT Package. In the event any such materials, equipment, supplies or other items are damaged, lost, stolen, destroyed or otherwise impaired, Onshore Service Contractor shall at its own cost and expense restore or replace such items.
d)
Since the Contractor shall co-ordinate and follow up with Owner / Owners Representative and Other Contractors, except as may be expressly excused in the Contract including Specification, no delay or failure to perform on the part of Owner (or its vendors, Other Contractors and I or sub-suppliers) shall excuse Contractor from the timely performance of its obligations under the Contract.
3.5
Labour and Personnel The Contractor shall make his own arrangements for the engagement of all staff and labour, local or otherwise, and for their payment, housing, feeding and transport. provide all labour and personnel required in connection with Work, including: Contractor shall
a)
Professional engineers licensed in accordance with any applicable licensing requirements in India or by any other governmental instrumentality to perform engineering services pursuant to the Contract;
b)
Project team of necessary engineers from various disciplines including, construction manager, Project engineer and lead structural, mechanical, electrical, instrumentation and control, cost, scheduling, procurement, construction, start-up and training supervisors, all of whom shall follow Good Engineering Practices and shall have had extensive Plant experience in facilities of similar technology and magnitude and shall be proficient in the English language and have knowledge of Prudent Utility Practices, Applicable Laws and Applicable Permits. ISSUE R0
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c)
A Project Coordinator or other Representative, who shall be fully acquainted with the Project, shall be proficient in the English language and shall have the authority to administer this Agreement on behalf of Contractor. He shall give his whole time to directing the preparation of all documents required for the construction, erection and execution of the Works. Except as otherwise stated in the Contract, the Contractors Representative shall receive (on behalf of the Contractor) all notices, instructions, consents, approvals, certificates, determinations and other communications under the Contract. Whenever the Contractors Representative is to be absent from the site, a suitable replacement person shall be appointed, and the Owner/ his Representative shall be notified accordingly.
d)
Quality assurance personnel, all of whom shall report directly to Contractors home office managers and not to the Project personnel located at the Site.
The Contractor shall employ (or cause to be employed) only persons who are careful and appropriately qualified, skilled and experienced in their respective trades or occupations. The Contractor shall give preference for appointment of local labourers in unskilled, semi-skilled and skilled categories if such suitable labourers are available. Upon Owners request, Contractor shall provide Owner with the resumes of, and arrange for the interview by Owner of, any or all personnel described in clauses (a), (b) & (c) of this Section 3.5.1. In addition, Owner will have the right to approve those individuals who will hold the positions described in clauses (a), (b) & (c) of this Section 3.5.1 and any other key Project personnel employed by Contractor, and Owner will be afforded the opportunity to choose among candidates for the positions of Project Manager, Project Engineer and Construction Manager. Contractor shall not remove any Project personnel described in clauses (a), (b) & (c), of this Section 3.5.1 or any other individual in a supervisory or lead position without the prior consent of Owner, which consent shall not be unreasonably withheld Removal of Staff and Labour The Owner may require the Contractor by notice in Writing to remove (or cause to be removed) any person employed on the Site or Works, including the Contractors Representative, who in the opinion of the Owner / his Representative:
a)
Persists in any misconduct,
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b) c) d)
Persists in any conduct which is prejudicial to safety, health, or the protection of the environment; or
e)
Other good and sufficient reasons.
3.5.1
Rates of Wages and Conditions of Labour Contractor shall ensure that he pays all his personnel and shall ensure and procure that his Sub-contractors pay to their personnel regularly their wages, overtime and other compensations. Attendance register and the wage register shall be submitted to Owner for verification at regular intervals. Contractor shall also furnish to Owner at regular intervals as governed by Applicable Laws including local statutes but not less than Monthly intervals, certificates that he has paid to his Sub-contractors and workmen and caused his subcontractors to pay all the dues to his Sub-contractor workmen. In case such payment is not made regularly by Contractor or his Sub-contractors, Owner will be in his right to make such payments and deduct the same from the Contractors progress payments. In case Owner becomes liable to pay any wages or dues to the labour or to any Government agency under any of the provisions of the Minimum Wages Act, Workmens Compensation Act or any other Applicable Law due to act or omission of the Contractor, Owner may make such payments and shall recover the same from the Contractors bills. Persons in the Service of Others The Contractor or any of his Sub-contractors shall not recruit, or attempt to recruit, his staff and labour from amongst persons in the service of the Owner or other Contractors and agencies engaged by the Owner or his Representative. Labour Laws The Contractor shall comply with and shall ensure that he/his Sub-contractors comply with all the relevant labour laws applicable to his/ his Sub-contractors employees, and shall duly pay and afford and cause his Sub-contractors to pay and afford to them all their legal rights. The Contractor shall require all such employees to obey all Applicable Laws and regulations concerning safety at Work. ISSUE R0
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Contractor shall be responsible for all labour relation matters relating to the Work or Supply of Goods and shall at all times use its best efforts to maintain harmony among the personnel employed in connection with the Work or supply of Goods whether by the Contractor or his Subcontractors and shall enter into all necessary labour agreements with such personnel. Contractor and his Sub-contractors shall at all times comply with all Applicable Permits and Applicable Laws relating to employment including but not limited to Contract labour regulations, Workmen Compensation Act, Employee State Insurance and Provident Fund regulations, retrenchment Compensation etc. and labour welfare and use its best efforts and judgement as an experienced Contractor to adopt and implement policies and practices to avoid Work stoppages, slowdowns, disputes, strikes, lockouts and other labour strife and disagreement. Working Hours No work shall be carried out on the Site outside the normal working hours or on the locally recognised Days of rest or local festivals / holidays, unless:
a) b)
Contract so provides, Work is unavoidable, or necessary for the saving of life or property or for the safety of the Works, in which case the Contractor shall immediately advise the Owner / his Representative,
c) d)
Owner / his Representative gives his consent, Extended working hours/shift working is essential for achieving Project
progress/milestones at no extra cost to the Owner. Facilities for Staff and Labour Contractor shall provide and maintain all necessary accommodation and welfare facilities for his (and his Sub-Contractors) staff and labour. He shall also provide the facilities specified in the Contract including Specifications, for Owner / his Representatives personnel. He shall not Permit any of his or his Sub-contractors employees to maintain any temporary or permanent living quarters within the structures forming part of the Works or Plant Site. Contractor shall make his own arrangements to procure and construct adequate labour housing outside the Plant Site and colony battery limits. No areas inside Owners land and Plant Site shall be used as labour colony. No workers/labourers/supervisors or other Contractors or Sub Contractors ISSUE R0
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personnel should be allowed to stay within the Owners land area after his duty hours. Similarly no workers / labourers / supervisors or other Contractors or Sub-Contractors personnel shall be allowed to enter the Owners land area before the start of their respective duty time.
3.5.2
Foreign Staff and Labour Contractor or Sub contractors may subject to Applicable Laws import and employ such staff, artisans, and labourers as are required in order to execute the Works. He shall ensure that all such staff and labour are provided with the required residence visa and Work permits as governed by the relevant Applicable Laws from time to time and to keep them in full force. He shall be responsible for the return of all such staff and labour to the place where they were recruited or to their domicile. The Contractor shall submit to the Owners Representative, a complete list of foreign personnel (including necessary data as may be required by Owners Representative) as may be required for the performance of the Works in India. The Contractor, Sub-contractors and their expatriate personnel shall not in any way interfere with Indian political and religious affairs. Such expatriate personnel shall work and live in close cooperation and co-ordination with their co-workers and the community and shall not engage themselves in any other employment neither part time nor full time nor shall they take part in any local politics
3.5.3
Health and Safety Precautions shall be taken by the Contractor to ensure the health and safety of his and his SubContractors staff and labour. The Contractor shall, in collaboration with and according to the requirements of the local health authorities, ensure that medical staff, first aid facilities, sick bay and ambulance service are available at the accommodation and on the Site at all times, and that suitable arrangements are made for all necessary welfare and hygiene requirements and for the prevention of epidemics. Contractor shall maintain records and make reports concerning health, safety and welfare of Persons, and damage to property, as Owners Representative may reasonably require. Contractor shall be responsible for the medical treatment / hospitalisation of his and his Sub-Contractors staff / labour. The Contractor shall appoint a member of his staff at the Site to be responsible for maintaining ISSUE R0
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the safety, and protection against accidents, of all personnel on the Site. This person shall be qualified for his Work and shall have the authority to issue instructions and take protective measures to prevent accidents. The Contractor shall send, to the Owners Representative, details of any accident as soon as possible after its occurrence as well as notify the concerned Government authorities and attend to affected persons with due care and attention promptly and immediately.
3.5.4
Contractors Superintendence The Contractor shall provide all necessary superintendence during the design, engineering, construction, erection and execution of the Works, and as long thereafter as Owners Representative may consider necessary for the proper fulfilling of the Contractors obligations under Contract. Such superintendence shall be given by the sufficient persons having adequate knowledge of the operations to be carried out (including the methods and techniques required, the hazards likely to be encountered and methods of preventing accidents) for satisfactory and safe execution of Works.
3.6 3.6.1
Permitting Contractor shall obtain and maintain in effect all Applicable Contractor Permits including other permits as per sub clause 2.2 of this Section required in connection with Contractors performance of its obligations hereunder, including supply of Goods or performance of the Work including (a) licenses to permit Contractor to do business in the jurisdictions where the Work is to be performed, (b) design, engineering, procurement, fabrication; construction; erection, testing and commissioning; start-up testing; Tests before Taking-over; (c) export; import, other Applicable Permits necessary to move, transport and deliver construction equipment (including parts of the Plant and the Project) to and from the Site and into and out of India, and (d) all building Permits, construction permits and other Permits required to be obtained with respect to the supply of Goods or performance of the Work and discharging all other obligations under the Contract. Contractor shall also obtain in the name of OWNER at the appropriate stage of construction those Applicable Permits listed in Table at the end of this section.
3.6.2
Contractor and Construction Permits Contractor shall obtain all necessary Contractors and Construction permits. If Contractor at any time becomes aware, whether as a result of notice from Owner or otherwise, of any applicable permit not obtained by him, Contractor shall promptly give notice thereof to Owner and ISSUE R0
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Contractor shall be responsible for obtaining such Applicable Permit. Contractor shall indemnify and hold the Owner and his indemnified parties harmless from any damages and penalty arising from and out of the securing of, or failure to secure, such permits and non compliance of statutory provisions by Contractor. This point is again repeated in the context of Safety matters in para 31 titled Penalty at Part 2 of this Volume ..
3.6.3
Support to OWNER for Permits In case Owner is responsible for the permits, Contractor shall provide support to Owner in obtaining all Owner Permits. Such Contractor support shall include: Attendance at meetings with Owner and third parties designated by Owner; Assistance in Preparation of Permit applications or, as applicable, application to transfer permits to the Owner; Assistance in preparation of responses to inquiries by Governmental Instrumentalities / agencies; Assistance in presentations at hearing of Governmental Instrumentalities / agencies and Provision of all available information and Documents required by Owner in connection with obtaining any Owner Permits;
3.7 3.7.1
Co-operation Contractor shall, as specified in the Specification, afford all reasonable opportunities for carrying out their respective Work to: Any other contractors employed by the Owner and their workmen, The workmen of the Owner, and The workmen of any legally constituted public authorities who may be employed in the execution on or near the site of any work not included in the Contract, which the OWNER may require to complete the Project.
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3.7.2
Contractor shall not hinder the work of other contractors and sub-contractors of Owner, if any employed by or on behalf of Owner at the Plant Site or the Project Site, to introduce and store Materials in those areas of the Plant Site and the Project Site under Owners direct control and shall cooperate to help them perform their respective services without hindrance or disruption. The Contractor shall also acknowledge that he works in congruence with requirements of lenders, other contractors, Project off takers and other related parties, and provide them appropriate information as and when required by them and not act as to harm the interests of any of them.
3.7.3
Miscellaneous Liabilities in Co-operation with Other Contractors The Contractor shall also so arrange to perform his Work as to minimize to the maximum extent possible interference with the work of Other Contractors and their workmen. Any injury or damage that may be sustained by the employees of the Other Contractors or the OWNER, due to the Contractors Work shall promptly be made good at contractors expense. The Owners representative shall determine the resolution of any difference or conflict that may arise between the Contractor and Other Contractors or between the Contractor and the workmen of Owner in regard to their work. If the Works of the Contractor is delayed because of any acts of omission of another Contractor, the Contractor shall have no claim against the Owner on this account other than an extension of time for completing his Works, provided the cumulative effect of such delays does not exceed 60 (sixty) Days. If such delays exceed 60 (sixty) Days, the financial and time implications, if any, shall be mutually discussed. The Owners Representative shall be notified promptly by the Contractor of any defects in the Other Contractors Works that could affect the Contractors Works. The Owners Representative shall determine the corrective measures if any, required to rectify this situation after inspection of the Works and such decisions by Owners Representative shall be binding on the Contractor.
3.8 3.8.1
Transporting (Shipping), Forwarding, Storage and Related Matters Promptly after issuance of the Notice to Proceed, Contractor shall submit for Owners approval the detailed list of equipment and materials to be shipped, and, a reasonable time after the ISSUE R0
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Notice to Proceed, an overall shipping and forwarding plan for all equipment and other items to be shipped from abroad to India in connection with the supply of Goods or performance of the Work. Contractor agrees that any material variation there from shall require the written consent of Owner. Contractor shall select the reputed shipping companies for the transportation and delivery of the equipment. Contractor shall ship the Goods in classed vessels which are not more than 15 (fifteen) years old and which is unconditionally seaworthy and so declared by a reputed maritime agency as on the date of travel and for the travel to its destination. Contractor shall give preference to Indian Flag Vessels. Owner will be the named importer of goods forming part of the Plant and its spares and the rights and title therein shall pass to Owner outside India in accordance with clause no. 7.0 hereof.
3.8.2
At least three (3) days prior to the delivery of Goods to Transporter or embarkation for India of each shipment of equipment or maintenance tools / tackles or spares (other than Contractors Equipment) where Owner is to be named Importer, Contractor shall send a tele fax to Owner setting forth the following information concerning each such shipment:
a) b)
A reference to the date, parties and subject matter of the Specification A description of the equipment and I or construction equipment contained in such shipment or transport
c) d) e) f) g) h) i) j)
The date of transportation/ embarkation and departure The port or place of origin The means of shipment or transportation (land air or sea) The estimated date of arrival in India/Site. The port of entry in India The value of the shipment/transportation. The approximate weight and volume (gross and net) The name, flag and owner of the vessel if shipment is by sea or the designation of aircraft if shipment is by air and
k)
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3.8.3
Within three (3) days after embarkation for India of each shipment or before the Goods are received at the site in case of onshore Goods, as in sub-clause 3.8.2 above, Contractor shall send to Owner by courier (or by certified airmail if Owner following documents: so agrees) for information, the
a)
Delivery note, Railway Receipt or Lorry Receipt or Shipping documents consisting of full set clean onboard (i) bill of lading, freight prepaid CIF Indian Port of entry for goods dispatched by sea or (ii) airway bill, freight prepaid CIF Indian port of entry for Goods despatched by air; (5 copies each). Bill of lading to indicate Consignee as Owner and Onshore Service Contractor as person to be notified.
b)
Declaration made by Contractor by fax in such form as shall be specified by Owner to insurer providing the marine cargo Insurance specified stating that such equipment is covered by such Insurance; (3 copies)
c) d) e)
Commercial invoice with itemised prices duly signed by Contractor. (6 copies) Packing lists for each separate package;(6 copies) Statement of Contractor that the equipment is in accordance with the technical specifications and having attached all previously issued certificates and Test certificates concerning the equipment being shipped;(3 copies)
f) g) h) i)
Certificate of origin;(3 copies) Export license, if any; (3 copies) Certificate of Insurance (3 copies) Inspection Certificate, issued by the nominated inspection agency, and the Supply Contractors factory inspection report.
j)
Any other Documents needed for import clearance.
3.8.4
No part of the equipment shall be shipped to the Plant Site without Owners prior written approval. Each application for approval shall include a complete list of the contents of each ISSUE R0
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shipment and shall indicate the anticipated date of delivery and the serial number for each component to be used for identification.
3.8.5
The Contractor shall be responsible for the timely clearance through customs of any part of the RELEVANT Package or Works for all necessary documentation and procedural matters associated therewith. The Contractor shall be responsible for meeting the agreed contractual time not withstanding any customs delays and will not be entitled to extend the time for completion, it being the Contractors responsibility to allow sufficient time for clearance through customs and the like.
3.8.6
The Contractors Scope of Work shall include obtaining all customs clearance, completing all clearance formalities and handling at all ports of all equipment and material of nonIndian origin including those where Owner is named importer, transportation to Site and transit insurance in India from the respective Indian ports of disembarkation and / or the respective Manufacturers Works upto the Project Site, receipt, handling, and storage of all equipment and Material at Project Site and other items necessary or desirable for the Project or the performance of the Work.
3.8.7
Contractor shall be responsible for examining all the shipment and notify the Owners Representative immediately of any damage, shortage, discrepancy, etc. for the purpose of Owners Representatives information only. The Contractor shall submit to the Owners Representative every week a report detailing all the receipts during the week. However, the Contractor shall be solely responsible for any shortages or damage in transit, handling and/or in storage and erection / Commissioning of the equipment at Site till the RELEVANT Package is finally accepted by the Owner.
3.8.8
All demurrage, wharfage and other expenses incurred due to delayed clearance of the material or any other reason shall be to the account of the Contractor.
3.8.9
Contractor shall warehouse or otherwise provide appropriate storage in India (in accordance with Manufacturers recommendation and taking into account climatic and other relevant conditions at the warehousing site) for all equipment and construction equipment and shall take preservation measures where necessary.
3.8.10
All equipment / systems, maintenance tools and tackles and spares which are stored at a location other than on the plant site shall be
a)
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b)
Properly tagged and identified for the plant and segregated from other Goods (to the extent reasonably possible).
c)
Duly insured for such storage against all risks.
However, such approval of location by the Owner shall not absolve the Contractor of his obligations under the Contract.
3.8.11
All equipment shall be labelled with permanently affixed durable nameplates, which will include the Manufacturers, name, equipment model number, equipment serial number and all appropriate design parameters.
3.8.12
Contractor shall arrange and be responsible on a continuous basis (i.e. not limited to normal working hours) for safety and security of all items and equipment to be incorporated in or forming part of the RELEVANT Package or are required to be delivered to the Owner under the Contract, while in clearing, transport or storage or during erection/Commissioning or in his custody prior to delivery / Take Over by the Owner. In the event any equipment or item is damaged, lost, stolen, destroyed or otherwise impaired while in storage or transit or during erection/Commissioning or in his custody, the Contractor shall at its own expense and cost, restore or replace such affected equipment or item before Taking-Over by Owner.
3.9
Erection, Pre-operational Testing, Initial Operation, Reliability Operation and Unit Characteristic Tests Work shall include the erection, Commissioning of components I systems, calibration of controls and equipment, tuning, start-up, all functional and verification Tests, and all other Commissioning, Testing and Initial Operations prior to Reliability Operation, and Unit Characteristic Tests. At all times during the performance of the Work, Contractor shall avoid wasteful consumption (consistent with Prudent Utility, Good Engineering Practices and the terms of the Contract) of fuels, utilities, supplies, Materials, equipment, consumables, waste disposal services, electricity, water and chemicals.
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3.10 3.10.1
Performance Guarantee Testing Contractor shall perform, and re-perform if required, the Performance Tests in accordance with the Contract, in order to demonstrate achievement of the Performance Guarantees for the Unit. If the Unit does not meet the Performance Guarantees, the Contractor shall at no extra cost to OWNER redesign, modify, remedy repair or replace the Unit or any part or section thereof including any component, equipment or system with one which meets the requirements and again demonstrate achievement of the Performance Guarantees for the Unit as set forth in the Contract. This is further dealt with at Article 10.0 of this GCC.
3.11
Construction Facilities, Construction Power, Construction Water Facilities, Sanitary Facilities, Telecommunication Facilities, Mail Service, Catering, Start-up Spares and Consumables
3.11.1
During the Contract Period, the Contractor shall arrange and pay for construction fuel necessary for the performance of the Work. However, Plant start-up power and fuel for Commissioning, start-up, Initial Operation, Reliability Operation, Performance Tests and other Tests before Take-Over of the Unit, will be arranged by the OWNER. Contractor shall arrange and pay for lubricants, chemicals, and other consumables in sufficient quantities, and the disposal of sewage and Other Contractor generated and Sub-contractor generated wastes, as necessary, to enable Contractor and each Sub-Contractor to perform the Work until takeover of the Unit.
3.12 3.12.1
Construction Power and water Supplies Construction power and water would be made available at the proposed sites at 11kV level within the plant boundary at one point each at Dongarwadi, Police Chowki and Bhira. The Contractor shall make his own arrangements for further distribution and shall be responsible for the maintenance of his distribution system. Contractor shall be responsible for payment of Energy Bills of such Construction Power till issue of Final Acceptance Certificate. The Construction Power system by its design and nature shall be a temporary system and not part of the permanent power supply. Quantum of power and water shall be metered at source.
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3.12.2
Contractor shall be responsible for making its own assessment of the quantum of Construction Power required and shall furnish the information. Contractor acknowledges that electricity sourced from TPC may be subject to disturbances, and its interruption or non-availability for any reason shall not constitute a condition for claim of extra time or costs on part of Contractor. He shall make adequate provision for D.G. sets as a stand by power source for all the activities/process, which requires uninterrupted power.
3.13 3.13.1
Construction and Drinking Water Facilities Contractor has to make its own arrangement to tap sub surface water by drilling bore wells. Installation of bore wells, water pumping, storage and its distribution to required places shall be arranged by Contractor. However, the location of the bore well shall be approved by Owner before starting of bore well activity. The ground water to be used for construction purpose shall satisfy necessary codal provisions.
3.13.2
Cost of all connected Works such as, but not limited to, pumps, pipeline, ground water reservoir etc are to be borne by the Contractor.
3.13.3
Contractor will provide water supply and where required potable water to the Owners facilities at the Project Site if required by Owner and latter shall pay for the same accordingly.
3.14 3.14.1
Access: Office Accommodations Contractor shall provide Owner and its designees (including Owner / his Representative and the Financing parties) with reasonable access to Contractors home office and Contractors offices at the Site and at all design, engineering, fabrication, manufacturing, construction and other premises of Contractor and its Sub-Contractors where activities relating to Works is carried on at all times upon reasonable prior notice, including access to design, engineering, fabrication, and testing, construction facilities, Drawings, Documents sufficient to permit Owner / hiss representatives to inspect Work being performed and to monitor compliance by Contractor and the Sub-contractors with the terms of the Contract and directions of Contractor.
3.14.2
Contractor shall provide to Owner / his representatives as and when required appropriate office facility at the home office of Contractor.
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3.15 3.15.1
Clean-Up and Waste Disposal The Contractor shall be responsible for keeping the entire area allocated to him clean and free from accumulation of waste Materials, rubbish/debris/etc. at all times during the period of Contract.
3.15.2
The Contractor shall employ enough number of specialised personnel to thoroughly clean his Work area at least once a Day and dispose of the rubbish. All such rubbish and scrap material shall be scrapped or disposed in a place to be identified by the Owners Representative.
3.15.3
Materials and stores shall be so arranged as to permit easy cleaning of the area. In areas where equipment might drip oil and cause damage to the floor surface a suitable protective cover of flame resistant, oil proof sheet shall be provided to protect the floor from such damage. Also spillage of oil and its soaking into soil shall be prevented. In case garbages are found disposed in areas other than allotted to the contractor, then the same shall be cleared by Owner and the charges debited to the concerned Contractor.
3.15.4
Contractors labour camp and housing colony shall be maintained to the good standards of hygiene and shall be kept reasonably free of debris, litter and mal-odour.
3.15.5
Similarly the labour colony, offices and residential areas of Contractors employees and workmen shall be kept clean and neat to the entire satisfaction of the Owners Representative. Proper sanitary arrangements shall be provided by the Contractor in the Work areas, office and residential areas of the Contractor.
3.15.6
Contractor shall cause all Sub-contractors, at all times to keep the Site reasonably clean and otherwise free from accumulation of waste materials, rubbish, other debris resulting from performance of the Work.
3.15.7
On or before Acceptance of RELEVANT Package or the earlier termination of the Contract or, if earlier, upon Owner taking custody and control of the RELEVANT Package, Contractor shall use its reasonable efforts to remove, but in any event prior to Final Performance Acceptance or earlier termination, from the Site all petroleum, waste materials, rubbish, other debris and Hazardous materials, as well as all construction equipment and other surplus material and substances to which Owner does not hold title, and shall leave the Site in a neat, clean and usable condition. ISSUE R0
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3.15.8
Contractor shall remove, transport and dispose of any hazardous material transported onto the Site by Contractor or any Subcontractors, or created, used or handled as part of Contractors or any Sub-contractors construction activities at the Site.
3.15.9
Contractor shall notify Owner immediately upon the discovery of presence of any hazardous material on, or the release of hazardous material on or from, the Site and shall promptly and forthwith take steps to remove such hazardous material or curtail the ill effects that may be caused by such release of hazardous material. All clean up and disposal activities are in the scope of Contractors obligations under this Contract (including the transportation) and shall be at the Contractors own cost and expense.
3.15.10
Owner and Contractor also recognize that the creation of dust is inevitable in construction of a Project of this nature. The Contractor shall take reasonable steps to ensure, by watering and such other temporary means as are necessary, that dust caused by the Works is minimised.
3.16 3.16.1
3.16.1.1
Real Estate and Contractors Field Operation Real Estate Contractor has reviewed the Site real estate as delineated on the Site Plan enclosed with Specification (Real Estate) and acknowledges that it does not require rights to use any real estate, including without limitation any easements or access rights for other property, which are not included in the Real Estate, in order to perform the Work or supply of Goods.
3.16.1.2
If Contractor at any time after the Commencement Date becomes aware that it requires the use of any real estate that is not included in the Real Estate, Contractor shall immediately give notice thereof to Owner, and Contractor shall be responsible for obtaining rights to use such additional real estate at its own expense and shall indemnify, save harmless and defend Owner from and against all damages, loss, action, proceedings, claims, cost and expense arising out of securing of rights to use such real estate or the failure to secure such right of use of such real estate by the Contractor; provided, however, that, without limiting the foregoing, Owner shall apply for rights to use such additional real estate from the Person from whom such right is to be secured if such right is of the type customarily obtained by Owner of similar Project and is in Owners opinion, justified.
3.16.2
Contractors Field Operation
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3.16.2.1
The Contractor shall keep Owners Representative informed in advance regarding his field activity plans and schedules for carrying out each part of the Works. Any review of such plan or Schedule or methods of Work by Owners Representative shall not relieve the Contractor of any of his responsibilities towards the field activities.
3.16.2.2
Such reviews shall also not be considered as an assumption of any risk or liability by Owners Representative and no claim of the Contractor will be entertained because of inefficiency of any such plan or Schedule or method of Work reviewed. failure or
3.16.2.3
The Contractor shall confine all his field operations to those Works which can be performed without subjecting the equipment and Materials to adverse effects during inclement weather conditions, like monsoon, storms, etc., and during other unfavourable construction conditions.
3.16.2.4
No field activities shall be performed by the Contractor under conditions which might adversely affect the quality and efficiency thereof, unless special precautions or measures are taken by the Contractor in a proper and satisfactory manner in the performance of such Work and with the concurrence of Owners Representative. Such unfavourable construction conditions will in no way relieve the Contractor of his responsibility to perform the Work or supply of Goods as per the Schedule.
3.16.2.5
After the completion of the Works, the Contractor shall remove from the Site under the direction of the Owners Representative the Materials such as construction equipment, erection tools and tackles, scaffolding, etc., not forming part of such Works, with the written permission of the Owners Representative. If the Contractor fails to remove such Materials, within 7 (seven) days of issue of notice by Owners Representative to do so then Owners Representative shall have the liberty to dispose of such Materials and credit the proceeds thereof to the account of the Contractor.
3.17 3.17.1
Reporting Requirements Prior to Effective Date, Contractor shall deliver to Owner / his Representative a computer-based network Schedule in hard copy as well as a soft copy (licensed software in one computer of Owner) in accordance with the Contract.
3.17.2
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a)
Ensuring that performance of the Work proceeds in accordance with the network Schedule and
b)
Co-ordinating the activities of all Sub-contractors.
3.17.3
In the event of a disruption (other than suspension by Owner) to the Schedule and Contractor asserts that it is not the responsibility of Contractor or any Sub-contractor and that Contract entitles Contractor to additional compensation and I or other relief from Owner, Contractor shall notify the Owner within twenty four (24) hours and provide a written report (to the best of Contractors knowledge at the time) of the disruption within 72 (Seventy Two) Hours of Contractors learning of the disruption and such report shall be supplemented on a prudent, informative and timely basis thereafter not later than 14 (Fourteen) Days from date of Contractors first learning of such disruption. In such an event the Contractor may modify and resubmit for approval to Owner / his Representative computer based network schedule and modifications if any required to the Schedule.
3.18 3.18.1
Progress Reports Monthly progress reports shall be prepared by the Contractor and distributed as per Document Distribution Schedule. First report shall cover the period up to the end of the calendar Month in which the Commencement Date occurred and subsequent reports shall be submitted Monthly thereafter, each within 4 (four) Days of the last Day of the period to which it relates. Reporting shall continue until the Contractor has supplied all the Goods and / or completed all Works, which is known to be outstanding at the completion date stated in the Take-Over Certificate for the Works. Each progress report shall include:
a)
Photographs and detailed descriptions of progress including each stage of design, procurement, Manufacture, delivery at Site, construction, erection, testing and Commissioning;
b)
Charts showing the scheduled and actual status of design/ construction Documents, purchase orders, Manufacture, receipt at Site construction, erection, testing and commissioning. A detailed description of the milestones achieved and the Work/ Services performed as well as the details of Goods supplied or in transit prior to date of the Monthly Progress Report and the extent to which Scheduled Payments therefore have been received. Appropriate weightage system for percentage progress shall be developed by Contractor and submitted to Owner / his Representative for its approval ISSUE R0
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no later than 30 (thirty) Days of Commencement Date and upon approval with or without modification by the Owner / his Representative, the same shall be binding on and be followed by Contractor and shall not be modified save and except with prior consent of Owner.
c)
A description of the current status (the name of Manufacturer, manufacture location, percentage progress, and the actual or expected dates of commencement of manufacture, Contractors inspections, Tests and delivery) of supplies and Equipment and of Contractors and all Major Sub-contract activities and engineering, manufacturing, construction and installation progress as compared with the Project Schedule (and, at the request of Owner / his Representative, an updated schedule),
d)
Records of personnel and Contractors equipment on Site and details of equipment in working condition,
e)
Copies of quality assurance reports including Test results (i) from the manufacturing and fabrication facilities of all Sub-contractors and (ii) with respect to all construction activity at the Facility Site,
f)
Safety statistics required under Applicable Laws, including details of any hazardous incidents and activities relating to environmental aspects and public relations,
g)
Comparisons of actual and planned progress, with details of any aspects which may jeopardise the completion in accordance with the Contract, including Project Schedule and the measures / catch-up plan being (or to be) adopted to overcome such aspects. It shall include a clear identification and evaluation of problems and deficiencies in the Services (including but not limited to, an evaluation of any factors which are anticipated to have a material effect on the quality of Work and Project Schedule),
h)
Certification that all amounts due to all Sub-Contractors prior to the date of the Monthly Progress Report have been paid,
i)
All other information reasonably requested by Financing Parties and Owner/ his representative,
j)
A man power status to the OWNERs Representative, on the first Day of every Month, a manpower Schedule for the Month detailing the man hours scheduled for the Month, skill wise and area wise. ISSUE R0
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3.19 3.19.1
Schedule Contractor shall provide to Owner for approval within the time stated in clause 3.18.1 the programme for the execution of the contract, showing (a) the sequence and timing of activities by which the contractor proposes to carry out the work and (b) the times by which the Contractor requires the Owner to furnish his inputs as set forth in the specifications, which as and when approved shall form the Schedule.
3.19.2
Without prejudice and in addition to the foregoing the Contractor shall prepare and furnish to OWNER updated monthly schedules of the Work to be performed or Goods to be supplied, including a critical path schedule.
3.19.3
Contractor shall be responsible for ensuring and performing the Work and supplying the Goods in conformity with the Schedule as updated from time to time. Schedule shall be updated on a fortnightly basis as the Work and supply of Goods progresses and shall include delay and acceleration analyses where appropriate together with steps being taken as per sub clause 9.5 of this section.
3.19.4
Contractor acknowledges and agrees that payments on account of Contract Price shall be subject to the limits of the Milestone Payment Schedule.
3.19.5
Schedule that is updated on a Monthly basis shall be done
from the basic schedules which
together with the updated monthly Schedule shall be available in a computer system to which Owner / his Representative will have access to facilitate Owner to drill down to the various levels to independently analyse the relevant information. This, however, does not take away the responsibility of the Contractor to fulfil all his obligations under the Contract, including informing Owner / his Representative about the delays as also the expected delays and the actual plans to overcome such delays.
3.20
Taxes, Duties and Levies Taxes on Contractors Account
(i)
Except as otherwise specifically provided in the Contract irrespective of the mode of Contracting, the Contractor shall bear and pay all taxes, duties, levies, charges, interest and penalties and the like levied and /or assessed on the Contractor, its Subcontractors, or their employees, by all municipal, local bodies, state or national government authorities or any other Government Instrumentality in connection with the Work and Supply of Goods in and outside of the Country. ISSUE R0
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In case of all Offshore Supplies by the Contractor, all duties, taxes, levies, charges, interest and penalties and the like levied and / or assessed, etc. outside India are to be borne by the Contractor and are to be included in the fixed Contract Price and no variation shall be allowed on this account. The Contractor shall be responsible for timely and prompt filing of all returns, Documents, accounts etc which are complete and accurate in accordance with laws.
(ii)
Each Party hereto, hereby agrees to indemnify and keep indemnified and saved harmless at all times the other Party against any loss, Cost, expenses or damages suffered or incurred by it, by reason of its failure to pay taxes, duties, etc which it is obliged to pay pursuant to the provisions of this clause and / or arising out of its failure to comply with its obligations under this clause.
(iii)
The OWNER shall recover from the Contractor and / or adjust from the Contract Price all taxes, duties, levies, charges, interest and penalties and the like leviable and / or assessable on the Contractor, its Sub-contractors or their employees but levied and / or assessed on the OWNER as a representative assessee / agent of the Contractor, its Sub-contractors or their employees, by all municipal, local, state or national government authorities or any other Government Instrumentality in connection with the Work and supply of Goods in and outside of the Country.
(iv)
Further the Owner shall recover from the Contractor and / or adjust from the Contract Price, simple interest at the rate of Short term Prime lending Rate of State Bank of India from the date of payment of all taxes, duties, levies, charges, interest and penalties and the like leviable and / or assessable on the Contractor, its Sub-contractors or their employees but levied and / or assessable on Owner as a representative assessee / agent of the Contractor, its Sub-contractors or their employees, by all municipal, local, state or national government authorities or any other Government Instrumentality in connection with the Work and supply of Goods in and Outside of the Country where the Site is located till the date of recovery and / or adjustment by the Owner.
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3.21
Variation in Tax or Applicable Taxes or Introduction of New Taxes
(i)
Any statutory variation in rate of applicable Indian taxes, duties, levies etc. Schedule of Prices or any variation in applicable taxes or interpretation/enforcement of the same or introduction of new taxes or the introduction/amendment of any exemptions (other than Direct taxes i.e. Income Tax, corporate tax etc), levied in India, starting from 15 (fifteen) Days prior to the Closing Date for submission of Bid but within Guaranteed Completion Date of Works, shall be to the account of Owner. Such adjustment shall be limited to direct transactions between Owner and Contractor and no amounts shall be payable on account of variation on taxes, duties and levies between vendors/Sub-contractors/suppliers. Contractor and its sub
(ii)
Any statutory variation on account of aforementioned factors shall be reimbursed by Owner to Contractor or by Contractor to Owner as the case may be, against submission of documentary evidence in support thereof. However, in case of delay, from the originally prepared network Schedule, Schedule and Guaranteed Completion Dates as may be relevant for the computation thereof, due to reasons not attributable to Owner, any statutory variation adverse to Owner over and above those specified under Clause 3.19 & 3.20 and Schedule of Prices including Sales tax during the delayed period shall be to Contractors account. Owner shall not be liable for same in any manner whatsoever.
(iii)
Contractor is obligated to keep Owner / his
Representative notified of the aforesaid
statutory variations within 15(fifteen) days of such variation coming into effect.
(iv)
Contract Price and other prices given in Schedule Schedule of Prices are based on applicable tariff as indicated by Contractor in Schedule of Prices. In case this information subsequently proves wrong, incorrect or misleading, Owner shall have no liability to reimburse/pay to the Contractor the excess taxes, fees etc; if any finally levied/imposed under the statutes except as provided in this clause. Owner shall be entitled to recover the difference from Contractor. However, if taxes/fee levied/imposed are lower than the amount indicated in Schedule of Prices,
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3.22 3.22.1
Supply Under Guaranties/Warranties Not withstanding anything to the contrary contained in these General Conditions of Contract, any taxes, duties and levies including the stamp duty levied by Government of India or any State Government in India or local authorities or any Government Instrumentality or outside India on the equipment and Materials to be provided by Contractor in pursuance of any Guarantees/Warranties under Contract including any replacements and / or repairs to be carried out under such Guarantee / Warranty, which Contractor is required to supply free of Cost to Owner, shall be to Contractors account.
3.23 3.23.1
Custom Duty Contractors Equipment All custom duties and other levies, if any payable in India including any state thereof or outside India, in respect of Contractors equipment which may be imported by the Contractor for performing any portion of the scope of Work, to be done in India and which are not envisaged to become the property of the OWNER as per the terms of the Contract, shall be to the Contractors account and the OWNER shall not be liable for the same in any manner whatsoever.
3.24
EXIM-Deemed Export Benefits
(i)
In accordance with the Export Import Policy of the Government of India (EXIM Policy), Deemed Export benefits are available to Indian Suppliers for supplies made to the Power Project in India under the International Competitive Bidding (ICB) procedure. The same shall be considered by the Contractor in his price Bid. Further in the course of performance of the Contract, if additional benefits are declared by the Government of India, the same shall be availed by the Contractor and the benefits shall be passed on to Owner.
(ii)
Contractor acknowledges that it has ascertained availability of Deemed Export Benefits as per current EXIM Policy and acknowledges that it shall be solely responsible for obtaining such benefits and that Owner shall not be liable to the Contractor for the failure of the Contractor to receive the same in any manner whatsoever.
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(iii)
The Contractor shall furnish to Owner within 15 (fifteen) Days of the Commencement Date, all information required for organising Project Authority/ Payment Certificate in terms of EXIM Policy. Project Authority/Payment Certificate will be organised on this basis only and no subsequent change will be permitted. Owner shall not be liable to reimburse the Contractor any excise duty in the event of the failure of the Contractor to provide the OWNER the information pursuant to this clause. In addition, where the OWNER organises such certificate, excise duty and sales tax on such excise duty will not be reimbursed by Owner to Contractor.
(iv)
It is expressly understood and agreed that no deviation to the instructions given in this clause is permissible and in such an event OWNER shall not be responsible or liable for any sales tax paid on excise duty.
(v)
Contractor shall disclose the import content in respect of supply of Goods for which Deemed Export Benefits shall be availed as part of Schedule of Prices.
(vi)
Owner shall not be responsible or liable in any manner whatsoever for payment to the Contractor of any excise duty, if not applicable, on Goods procured from within India by the Contractor and the excise duty shall not form part of the sale price with respect to transaction between Contractor and Owner and as such no sales tax will also be payable on the excise duty component by Owner.
(vii)
Owners responsibility shall be limited to the organising of necessary Project Authority Certificate provided the Contractor has furnished to Owner information to above and making of claims under duty drawback or refund of terminal excise duty and obtaining the benefits thereof shall be the sole responsibility of the Contractor/Sub-contractor and Owner shall not be liable in any manner whatsoever.
3.25 3.25.1
Sales Tax-Forms Owner will issue in accordance with relevant legislations, the requisite sales tax declaration forms to the Contractor in order to get the benefit of any concession in the rate of sales tax. Further, in case of all Goods identified by the Contractor and Owner to be dispatched directly to the Site from the vendors Work situated in the State different from the State where the Site is located, the Contractor will effect sale in transit in Owners name.
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3.26 3.26.1
Service Tax In case any taxable service is provided by any Contractor who is a non-resident or who does not have an office in India, then notwithstanding the fact that Owner may be the Person liable to pay Service tax, the Contractor shall undertake to appoint a representative to whom monies would be remitted by the Contractor to effect payment of such Service tax.
3.26.2
On the basis of documentary proof of such payment of tax, Owner would be entitled to declare the particulars thereof in his service tax return.
3.26.3
Value of such Services as set forth in the Schedule of Prices and Delivery shall be deemed to be inclusive of such Service tax.
3.27 3.27.1
Withholding taxes The Owner shall pay, out of the Contract Price, any withholding tax charged by any Government Instrumentality including the Government of India or any Indian State Government on the Contract or the performance of the Work or supply of Goods pursuant to or under the Contract. The OWNER shall furnish to the Contractor appropriate documentation / certificates/ challans evidencing payment of any such withholding tax.
3.27.2
Should any tax benefit accrue to the Contractor in Country of the Contractor / or Owner by way of deduction as expenses or as tax credit or otherwise against its tax liability, or on account of any taxes paid in India by Owner pursuant to the Contract or any Applicable Law on account of this Contract, the Contractor shall forthwith pay the same to the Owner. The Contractor agrees and undertakes to furnish to Owner every year till the end of the period during which the Contractor is entitled to any tax benefit in India or elsewhere pursuant to this clause or completion of its tax assessment whichever, is later, a Certificate from its independent Auditors or an independent certified public accountant acceptable to Owner, the quantum of such tax benefit, if any, and basis for arriving at such tax benefits.
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3.28 3.28.1
Benefit of credit for tax If, as a result of any agreement, whether existing or modified or signed in future on avoidance of double taxation between the Government of India and the Government of the Contractors Country or under any law, any tax benefit shall accrue to the Contractor in Country of the Contractor or by way of deduction as expenses or as tax credit or refund or otherwise against its tax liability or on account of taxes, which are paid in India by Owner pursuant to this Contract, the benefit of such credit, deduction as expense or refund along with details shall be passed on to the OWNER within 15 (fifteen) days of the receipt of such credit / refund/deduction as expense or otherwise by the Contractor/expatriate. The Contractor/its expatriates shall take immediate and appropriate action for obtaining the admissible credit or refund from such Countrys authorities and payment of the same to Owner. from an independent Chartered Accountant confirming: Contractor shall keep Owner informed about the same at all times. Contractor shall furnish on an annual basis, a certificate
a)
The amount of credit or refund or deduction as expense or otherwise that may be due, if any, to it on account of tax paid by the OWNER in India in respect of payments under the Contract to the Contractor; and
b)
Amount of credit or refund that may be obtained or deduction as expense that may be permissible, if any, during the relevant period.
3.28.2
No such annual certificate is required with regard to expatriates tax credit or refund. However, Contractor will inform Owner of all such credits or refunds obtained by its expatriates as aforesaid.
3.29 3.29.1
Employee Identification, Plant Site Security and Protection of Plant Site Contractor shall provide a method which shall be subject to the reasonable approval of OWNER, of checking the employees of Contractor, Subcontractors, Owner and the Contract. his other suppliers and Contractors in and out of the areas in which the Work is to be performed under
3.29.2
Contractors employees shall wear identification badges provided by Owners Representative while on Work at Site.
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3.29.3
Contractor shall be responsible for the security of the RELEVANT Package and the Site at all times and the Goods therein while the Work is being performed or Goods are being supplied up to the earliest of:
a) b)
Final Acceptance of RELEVANT Package The transfer of care, custody and control of the RELEVANT Package as a whole to OWNER with the concurrence of the OWNER, or
c)
Termination of the Contract;
3.29.4
Contractor shall do all things necessary or expedient to protect any and all parallel, converging and intersecting electric lines and poles, highways, access or other roads, bridges, waterways, railroads, sewer lines, natural gas pipelines, drainage ditches, culverts, fences, walls, and water lines, power or communication cables or lines and any and all physical property of others, from damage resulting directly or indirectly from performance of the Work or in supply and transport of Goods. Without limiting the generality of the foregoing, Contractor shall maintain the access roads to the Site and all access roads within the Site, in good repair and passable at all times as well as proper drainage system. In the event that any such physical property is damaged or destroyed in the course of the performance of the Work or in supply and transport of Goods, Contractor at his cost shall rebuild, restore or replace such damaged or destroyed physical property to full satisfaction of Owner/.
3.29.5
Contractor shall provide, and shall ensure that its Sub-contractors provide, proper and ample protection from damage or loss to the RELEVANT Package, the Site, equipment and construction equipment during its performance of the Work.
3.29.6
In the event that any of the Units are damaged or destroyed for any reason prior to acceptance of such Units, Contractor shall rebuild, restore or replace the Units or such items, subject to and in accordance with the Contract including Specifications. All costs irrespective of reimbursement of claims from Insurance shall be to Contractors account.
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3.30 3.30.1
Royalties and License Fees Contractor shall pay all required royalties and license fees with respect to proprietary rights, intellectual property licenses and agreements, and shall procure, as required, the appropriate proprietary rights, intellectual property licenses and agreements, for Materials, methods, processes, systems and Services incorporated into the RELEVANT Package or the Project or otherwise relating to the performance of the Work and thereafter for the purpose of operation & maintenance of the Plant.
3.30.2
In performing the Work, Contractor shall not incorporate into the RELEVANT Package, or use in connection with the RELEVANT Package or the performance of the Work, any Materials, methods, processes, systems or service that involve the use of any confidential information, intellectual property or proprietary rights that OWNER does not have the right to use or incorporate or which may result in claims or suits against OWNER, Contractor or any subcontractor arising out of claims of infringement of any third party domestic or foreign patent rights, copyrights, other proprietary rights, or intellectual property rights, licenses or agreements, or applications for any thereof, or rights of use of confidential information.
3.31 3.31.1
Commencement of the Work or Supply of Goods Subject to the provisions of this section, Contractor shall commence the Work or supply of Goods on the date as per sub-clause 9.2.
3.32 3.32.1
Releases and Waivers At the time of each Scheduled Payment or portion thereof as per the payment terms of Contract subject to Milestone Payment Schedule under the Contract, the Contractor shall:
a)
Certify and provide to OWNER sufficient documentation (including, without limitation, an interim lien waiver and release) in the form prescribed by the OWNER to establish that all Materials and equipment that comprise or will comprise as part of the RELEVANT Package, and all property of OWNER, are free from any and all claims, liens, security interests or encumbrances in the nature of mechanics, labour or Material or otherwise, arising out of or in connection with performance by Contractor, or any Sub-contractor, of the Work or supply of Goods under or pursuant to the Contract, and
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b)
Provide, if requested by the Financing Parties prior to disbursement of funds required to make such Scheduled Payments, copies of such releases and waivers from Subcontractors under Sub-contracts each of value more than the amount specified by the OWNER as are necessary to support Contractors certificate.
3.32.2
If any claim, lien, security interest or encumbrance is filed or notification of withholding money for labour or material furnished under the Contract is served on Owner or any Party providing Real Estate for the Project, OWNER may withhold (without being liable to Contractor in any manner whatsoever) from any Scheduled Payment or any other amount payable to Contractor under the Contract or otherwise, an amount sufficient to discharge any or all such liens or claims and, after 30 (thirty) Days from time a lien is filed or otherwise attaches or after 180 (one hundred eighty) Days from the time a claim is made, may discharge such lien or claim with the moneys withheld, whereupon for purposes of Contract such moneys shall be deemed to have been paid to Contractor under the Contract on account of the next Scheduled Payment to become due and payable.
3.32.3
In addition, Contractor shall deliver to Owner a copy of a final release, assignment and waiver of all liens, in the form prescribed by Owner from each Sub-contractor that would otherwise have had the right to place a lien or encumbrance on any Materials and equipment that comprise or will comprise a part of the RELEVANT Package, or any property of OWNER, on the payment date next following the date on which final payment to such Sub-contractor is made.
3.32.4
Further more prior to final acceptance / Take-over, Contractor shall provide to OWNER final releases and waivers in the appropriate form acceptable to the OWNER of all liens, charges and encumbrances of whatever nature, legal and equitable, against OWNER, the RELEVANT Package, the Project, the Site and all other Project property and equipment arising out of or in connection with the Work performed or Goods supplied under the Contract.
3.32.5
Notwithstanding anything to the contrary contained herein above, if Contractor fails to deliver any required release or waiver whether of the Contractor or a Subcontractor, Contractor may provide to OWNER, in lieu thereof, a bond or stand by letter of credit in form and content acceptable to OWNER, to fully indemnify OWNER against any loss resulting from claims, liens or other interests of the Contractor or such Sub-contractor, and Owner shall draw on such bond or stand by letter of credit as the case may be to satisfy Contractors or such Sub-contractors claim, lien or other interest prior to exercising Owners set-off rights under the Contract.
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3.33 3.33.1
Further Assurances Contractor shall execute and deliver all further Documents and instruments, and provide such further assistance, including assistance to Owner in filing a notice of completion with the appropriate state and local and other Government Instrumentalities and recording offices, that may be necessary or desirable in the reasonable opinion of Owner to complete performance of the Work or supply of Goods or to effectuate the purposes or intent of the Contract.
3.33.2
Any item not specifically described in the contract shall be provided by the Contractor if the providing of such additional item is necessary in order for Contractor to satisfy Performance Guarantees and the Warranties and to make the plant complete in all respects and to make the Plant safely and reliably operable and capable of performing efficiently and smoothly as specified in the Contract. Work undertaken and additional items provided pursuant to this subclause shall not give rise to any adjustment in the Contract Price.
3.34 3.34.1
Standard for Supplies and Performance Without limiting any other provision of Contract including Specifications, Contractor shall
perform the Work and cause his Sub-contractors to manufacture and supply or perform their Work hereunder in accordance with Good Engineering Practices and standards of professional care, skill, diligence and competence generally accepted in the independent power industry applicable to engineering and construction and Project management practices for power stations of similar size and type as the Plant that are intended to have a 30 (thirty) year useful life when operated in accordance with the Operating Manuals, all Applicable Laws, all Applicable Permits, Prudent Utility Practices, all Manufacturers and vendors guarantees and Warranties, all applicable insurance policies, the safety precautions set forth in this section and the provisions of Contract including Specifications.
3.34.2
Contractor shall arrange and ensure that all design, engineering, fabrication, manufacture, construction, installation, commissioning, start-up and testing work requiring certification from any Government Instrumentality are properly certified.
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3.35 3.35.1
Compliance with Applicable Laws Contractor shall comply with and require the Sub-contractor to comply with and shall cause the RELEVANT Package and all components thereof (including the design, engineering, procurement, manufacture, fabrication, supply, erection, construction, commissioning, start-up, testing, operation, maintenance and repair of the RELEVANT Package) and the performance of the Work or supply of Goods, to comply, or be capable of complying, including after Final Acceptance, with all Applicable Laws and Applicable Permits as they may be in effect from time to time during Contractors performance of Work under the Contract up to date of Final Acceptance, assuming OWNER has met his obligations, and thereafter if and so long as Contractor shall have obligations under the Contract.
3.36 3.36.1
Fire Protection Work procedures that have to be used during erection shall be those, which minimize fire hazards to the extent practicable. Combustion materials, combustible waste and rubbish shall be collected and removed from the Site at least once each Day. Fuels, oils and volatile of flammable Materials shall be stored away from the construction and equipment and material storage areas in safe containers. Untreated canvas, paper, plastic or other flammable flexible Materials shall not at all be used at Site for any other purpose unless otherwise specified. If any such Materials are received with the equipment at Site, the same shall be removed and replaced with acceptable material before moving into the construction or storage area.
3.36.2
Similarly corrugated paper fabricated cartons, etc. will not be permitted in the construction area either for storage or for handling of Materials. All such Materials used shall be of waterproof and flame resistant type. All other Materials such as working Drawings, plans, etc. which are combustible but are essential for the Works to be executed shall be protected against combustion resulting from welding sparks, cutting flames and other similar fire sources.
3.36.3
Contractors supervisory personnel and workers shall be trained for fire fighting and shall be assigned specific fire protection duties. Enough of such trained personnel must be available at the Site during the entire period of the Contract.
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3.36.4
The Contractor shall provide enough fire protection equipment of the types and in enough numbers for the ware-houses, office, temporary appropriate structures, labour colony area, etc. Access to such fire protection equipment, shall be easy and be kept open at all times.
3.37 3.37.1
Contractors Equipment and Owners rights thereof Contractor shall provide all Contractors equipment necessary to perform the Work and complete the Works. All Contractors equipment shall, when brought on to the Site, be deemed to be exclusively intended for the execution of the Works and performance of Services. Contractor shall not remove from the Site any such Contractors Equipment without the consent of Owner / his representative. Nevertheless he shall be solely liable and responsible for any loss or destruction thereof and damage thereto.
3.37.2
Owner shall have lien on such goods for any sum or sums, which may at any time, be due or owing to him by the Contractor, under, in respect of or by reasons of the Contract. After giving a fifteen (15) Days Notice in Writing of his intention to do so, Owner shall be at liberty to sell and dispose of any such goods, in such manner as he shall think fit including public auction or private treaty and to apply the proceeds in or towards the satisfaction of such sum or sums due as aforesaid.
3.38 3.38.1
Access Route Contractor shall be deemed to have satisfied himself as to the suitability and availability of the access routes he chooses to use. Contractor shall (as between the Parties) be responsible for maintenance of access routes. He shall provide any signs or directions, which he may consider necessary for the guidance of his staff, labour and others. Contractor shall obtain any permission that may be required from the relevant authorities for the use of such routes, signs and directions.
3.38.2
Owner will not be responsible for any claims which may arise from the use or otherwise of any access route. He does not guarantee the suitability or availability of any particular access route, and will not entertain any claim and shall not be liable for any non-suitability or non-availability for continuous use during construction of any such route.
3.39
Rights of Way and Facilities and Extraordinary Traffic
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3.39.1
The Contractor shall bear all costs and charges for special or temporary rights-of-way required by him for access to the Site. The Contractor shall also provide, at his own cost, any additional facilities outside the Site required by him for the purposes of the Works or Services. Contractor shall carry out a detailed route survey for assessment of transportation of heavy and large equipment to Site.
3.39.2
Contractor shall, whenever required by Owner, provide in Writing a detailed description of arrangements and methods, which he proposes to adopt for supply of Goods, execution of Works and performance of Services.
3.40 3.40.1
Extraordinary traffic Contractor shall use all reasonable endeavours to prevent damage to any of the highways or bridges on the routes to the Site by any traffic of Contractor or its Subcontractors. If and to extent that such damage is caused to any highway or bridges by Contractor or its Subcontractors, the Contractor shall immediately take remedial measures to make good such damages/losses at its own expense.
3.41 3.41.1
Special Loads Should the Contractor consider that the moving of one or more loads of RELEVANT Package or Contractors Equipment is likely to damage any highway or bridge unless special protection or strengthening is carried out, then the Contractor shall before moving the load submit to the relevant competent authority its proposals as to moving the load, including details of the weight and other particulars of the load to be moved and execute its proposal for protecting or strengthening and shall obtain permission from such authorities for such movement.
3.42
Matters Affecting Execution of the Works or Supply of Goods The Contractor shall be deemed to have satisfied himself as to the correctness and sufficiency of the Contract Price. Unless otherwise expressly agreed or provided in the Contract, the Contract Price shall cover performance of all of the Contractors obligations, supply of Goods and Work under the Contract (including those under provisional sums, if any) and all things necessary or required for correct engineering the proper design, execution and completion of the Works in all respects and the remedying of defects and deficiencies, if any in accordance with Good Engineering Practices and Prudent Utility Practices. ISSUE R0
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3.43
Insurance Contractor shall obtain and maintain all insurance required to be obtained by Contractor as per the Contract including clause no. 6.0 hereof.
3.44
Schedule for supply of Goods / Work Milestones Time is of the essence and those obligations of Contractor referred to as "Milestones" herein shall be accomplished on or before the dates fixed there for in the milestone / Schedule as proposed by the Contractor in Overall Time Schedule and approved by OWNER or in the event only a Month is specified there for, on or before the last day of such Month. If any major milestone is not completed on or before the respective date or last Day of the respective Month indicated, as the case may be, then, and in addition to any other rights which OWNER may have under this Contract, Owner shall be excused from making any further payments to Contractor of the Contract Price until such time as all milestones which have not been completed on the Date required have been properly completed. If Contractor believes that any milestone may not be or has not been completed by the date required it shall forthwith give Written Notice thereof to OWNER specifying the reason thereof and what remedial action Contractor proposes to take. The Contractor guarantees to Owner that Contractor shall supply Goods or perform the Work and complete the Works in a timely manner so that Units achieve Provisional Performance Acceptance on or before Guaranteed Completion Dates under the Contract.
3.45
Priority of Supply of Goods / Work The designation herein of certain obligations of Contractor as milestones shall not reduce or in any way or manner dilute the responsibility of Contractor to complete the Work in the shortest practicable time. To this end, Contractor shall give the supply of Goods / Work the highest priority; that is, no other job of Contractor shall take precedence over the Supply of Goods or Work nor shall Contractor make any allocation of its resources, which would have the effect of delaying the timely performance of the Work or supply of Goods.
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3.46
Work and Safety Regulations The Contractor shall notify well in advance to Owners Representative of his intention to bring to the Site Container filled with liquid or gaseous fuel or explosive or petroleum substance or such chemicals, which may involve hazards. Owners Representative shall have the right to prescribe the conditions, under which such container is to be stored, handled and used during the performance of the Work and the Contractor shall strictly adhere to and comply with such instructions. Owners Representative shall have the right at his sole discretion to inspect any such container or such construction plant/equipment for which Material in the Container is required to be used and if in his opinion, its use is not safe, he may forbid its use. No claim due to such prohibition shall be entertained by the Owner and he shall not entertain any claim of the Contractor towards additional safety provisions / conditions to be provided for / constructed as per Owners Representatives Instructions. Where it is necessary to provide and / or store petroleum products or petroleum mixtures and explosives, the Contractor shall be responsible for carrying out such provision and / or storage in accordance with the rules and regulations laid down in Petroleum Act 1934, Explosives Act 1948, and Petroleum and Carbide of Calcium Manual Published by the Chief Inspector of Explosives of India as well as other relevant and Applicable Laws, rules and regulations. All such storage shall have prior approval of the Owners Representative. In case, any approvals are necessary from the Chief Inspector (Explosives) or any statutory authorities, the Contractor shall be responsible for obtaining the same. All equipment used in construction and erection by Contractor or his Sub contractors shall meet Indian and International Standards of safety and where such standards do not exist, the Contractor shall ensure these to be absolutely safe. All equipment shall be strictly operated and maintained by the Contractor or his Sub contractors in accordance with Manufacturers operation manual and safety instructions and as per Guidelines and Rules of the OWNER in this regard.
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Periodical Examinations and all Test for all lifting/hoisting equipment and tackles shall be carried out in accordance with the relevant provisions of Factories Act 1948, Indian Electricity Act 2003 and all relevant Law/Rules in force from time to time. A register of such examinations and Test shall be properly maintained by the Contractor and will be promptly produced as and when desired by Owners Representative or by the Person authorised by him. Where explosives are to be used, the same shall be used under the direct control and supervision of an expert, experienced, qualified and competent Person strictly in accordance with the Code of Practices/Rules framed under relevant laws, rules and regulations not restricted to Indian Explosives Act pertaining to handling, storage and use of explosives. The Contractor shall provide safe working conditions to all workmen and employees at the Site including safe means of access, railings, stairs, ladders, scaffoldings, etc. The scaffoldings shall be erected under the control and supervision of and experienced and competent Person. For erection, good and standard quality of material only shall be used by the Contractor. Contractor or his Sub contractors shall not interfere or disturb electric fuses, wiring and other electrical equipment belonging to Owner other Contractors under any circumstance, whatsoever, unless expressly permitted in Writing by Owner handle such fuses, wiring or electrical equipment. No repair work shall be carried out on any live equipment. The equipment shall/must be
declared safe by Owners Representative and a permit to Work shall be issued by Owners Representative before any repair work is carried out by the Contractor or his Sub contractors. While working on electric lines/equipments whether live or dead, suitable type and sufficient quantity of tools will have to be provided by Contractor or his Subcontractors to electricians/workmen/officers. Contractor employing more workmen than specified under Factories Act 1948 whether temporary, casual, probationer, regular or permanent or on Contract, shall employ at least required numbers of full time officers exclusively as Safety Officer to supervise the safety aspects of the equipment and workmen who will coordinate with the Project Safety Officer and Owners Representative. In case of Work being carried out through Sub-contractors, the Subcontractors workmen/employees will also be considered as the Contractors workmen/employees for above purpose.
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The name and address of such Safety Officers of Contractor will be promptly informed in Writing to Owners Representative with a copy to Safety officer-in-charge before he starts Work or immediately after any change of the incumbent is made during currency of the Contract. In case any accident occurs during the construction/ erection or other associated activities undertaken by the Contractor thereby causing any minor, major or fatal injuries to his employees due to any reason, whatsoever, it shall be the responsibility of the Contractor to promptly inform the same to the Owners Representative in prescribed form and also to all the authorities envisaged under the Applicable Laws. Owners Representative shall have the right at his sole discretion to stop the Work or supply of Goods, if in his opinion the Work or supply of Goods is being carried out in such a way that it may cause accidents and endanger the safety of the persons and/or property, and/or equipment. In such cases, the Contractor shall be informed in Writing about the nature of hazards and possible injury/accident and he shall comply with the instructions of Owners Representative including removal of shortcomings promptly. The Contractor after stopping the specific Work or supply of Goods, can, if felt necessary, appeal against the order of stoppage of Work within 3 (three) Days of such stoppage of Work and Owners decision in this respect shall be conclusive and binding on the Contractor. The Contractor shall not be entitled for any damages/compensation for stoppage of Work or supply of Goods due to safety reasons and the period of such stoppage of Work will not be taken as an extension of time for completion of Work or supply of Goods and will not be the ground for waiver of levy of Liquidated Damages,
3.47
Safety Programme and Policy Contractor shall, and shall cause all Sub-contractors to, implement and administer a safety program for the RELEVANT Package, subject to the approval of the OWNER (which shall not be unreasonably withheld), which shall include:
a) Development of a safety manual (the Safety Manual) establishing safety guidelines and
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b) Conducting of weekly safety meetings with the employees and agents of OWNER,
Contractor, Sub-contractor and OWNERs other Contractors and their Sub-contractors;
c) Development, implementation and enforcement of procedures for advising employees and

agents of OWNER, Contractor, Sub-contractor and OWNERs other Contractors and their Sub-contractors of, and correction of, safety violations and deficiencies;
d) Taking of all other actions necessary to provide a safe Work environment in accordance
with Applicable Laws and Applicable Permits. injury or loss to: Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to avoid damage,
(i) All persons employed by Owner, Contractor and its Sub-contractors and other
Contractors and their Sub-contractors in connection with the Work or supply of Goods or OWNER and its Contractors and Sub-contractors (whether in the performance of their obligations under the Contract or otherwise) and all other persons who may be affected by the performance of the Work or supply of Goods or any of such persons.
(ii) All supplies used in connection with the RELEVANT Package and all equipments to be
incorporated into the RELEVANT Package; whether in storage on or off the Site under the care, custody or control of OWNER, Contractor, any Sub-contractor or Owners other Contractors and their Sub-contractors. At all times (including during Commissioning, start-up, testing and Initial Operation, shall require all Sub-contractors working on or supplying equipments or construction equipment to the Site to comply with all safety requirements in effect at all such times and of all Applicable Laws and Applicable Permits. Contractor shall, and shall cause the SubContractors to, comply with all Applicable Laws and Applicable Permits.
e) Reliability Operation and Tests before Take Over including Performance Tests) Contractor
3.48
Additional Obligations of Supply Contractor The Supply Contractor shall fulfil the following additional obligations:
3.49
Country of Origin All Goods supplied under the Contract shall have their origin in the eligible countries and territories. ISSUE R0
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For purposes of this Clause, origin means the place where the Goods where mined, grown, produced or manufactured and from where services are supplied. Goods are produced when, through manufacturing, processing, or substantial and major assembly of components, a commercially recognised new product results that is substantially different in basic characteristics or in purpose or utility from its components. The origin of Goods is distinct from the nationality of the Supply Contractor.
3.50
Packing The Supply Contractor shall provide such packing of the Goods as is required to prevent their damage or deterioration during transit to Site, as indicated in the Contract. The packing shall be sufficient to withstand, without limitation, rough handling during transit and exposure to extreme temperatures, salt and precipitation during transit, and open storage. Packing case size and weights shall take into consideration, where appropriate, the remoteness of the Goods final destination and the absence of heavy handling facilities at all points in transit. The packing, marking, and documentation within and outside the packages shall comply strictly with such special requirements as shall be expressly provided for in the Contract, including additional requirements, if any, in any subsequent instructions ordered by the OWNER. Contractor wherever applicable shall, after proper painting, pack and create all equipment for sea shipment in a manner suitable for export to a tropical, humid climate region in accordance with internationally accepted export practices and in such manner so as to protect it from damage and deterioration in transit by road, rail and or sea and during storage at the Site till the time of erection. Contractor shall be held responsible for all damages due to improper packing.
3.51
Spares
(i)
All the spares for the equipment under the Contract provided by the Supply Contractor will strictly conform to the Specifications and Documents and will be identical to the corresponding main equipment/components supplied under the Contract and shall be fully interchangeable among the Units.
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(ii)
All the mandatory (essential) spares covered under the Contract shall be delivered by the target date for completion of delivery of the mandatory spares at Project Site as per agreed despatch schedule but in no case earlier than 1 (ONE) Month prior to scheduled Date of completion of Unit.
(iii)
All erection and Commissioning spares shall be delivered at the Site at least three (3) Months prior to Schedule of erection of the Unit or equipment.
(iv)
The quality plan and the inspection requirement finalised for the main equipment will also be applicable to the corresponding spares. The Supply Contractor will provide the OWNER with the manufacturing Drawings, catalogues, assembly drawings and any other information document required by the OWNER so as to enable the OWNER to identify the recommended spares and identify the quality thereof. Such details will be furnished to the OWNER as soon as they are prepared but in any case not later than 6 (six) months prior to commencement of manufacture of the corresponding main equipment and within 30 (thirty) days from the date of the request by the OWNER. The OWNER will have access to manufacturing drawings to determine the need and quality of spares. The offer for recommended spares shall be valid upto 12 (twelve) Months after receipt of above information / Documents. The delivery for recommended spares will be effected by the Supply Contractor in line period of those spares.
(v)
(vi)
(vii) with the Specifications, provided the order is placed by the OWNER within such validity
The Supply Contractor will provide the OWNER with all the addresses and particulars of covered under the Contract and will further ensure with his vendors that the OWNER, if so desires, will have the right to place order for spares directly on them mutually agrees terms based on offers of such vendors
(viii) his Sub-suppliers while pa\lacing the order on vendors for items/components/equipment
(ix)
Warranty for Spares
a) That all spares supplied will be new and in accordance with the Contract Document
and will be free from defects in design, Material and workmanship and shall further Guarantee as under:
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b) In case of any failure in the original component/equipments due to faulty designs,

Materials and workmanship, the corresponding spare parts if any, supplied will be replaced without any extra cost to the OWNER unless a joint examination and analysis by the OWNER and the Supply Contractor of such spare parts prove that the defect found in the original part that failed can safely be assured not to be present in spare parts.
c) In addition to the spares recommended by the Supply Contractor, if Owner further

identifies certain particular items of spares the Supply Contractor will submit the prices and delivery quotation for such spares within thirty (30) Days of receipt of such request with a validity period of 6 (Six) Months for consideration by Owner and placement of order for additional spares if Owner so desires.
d) The long term availability of spares to Owner for full life of equipment covered
under Contract and that before going out of production of spare parts of the equipment covered under the Contract, he and his Sub Contractors shall give Owner at least 12(Twelve) Months advance notice so that the latter may order his bulk requirements of spares, if he so desires. Same provision will also be applicable to Sub-contractors. Further, in case of discontinuance of manufacture of any spares by the Supply Contractor or his Sub-contractors, the Supply Contractor or his Subcontractors, will provide Owner, 2 (two) years in advance, with full manufacturing Drawings, material specifications and technical information required by Owner for purpose of manufacture of such items and also the right to manufacture such spares for his own requirements.
e) Further in case of discontinuance of supply of spares by the Supply Contractor or

his Sub-contractors, the Supply Contractor will provide the OWNER with full information for replacement of such spares with other equivalent makes, if so required by Owner.
f)
Notwithstanding the above, the Contractor shall be responsible for supply of spares for the lifetime of the RELEVANT Package at reasonable prices.
(x)
Supply Contractor will indicate the delivery period the spares, which OWNER may procure in accordance with this issue.
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(xi)
In case of emergency requirements of spares, the Supply Contractor would make every effort to expedite the manufacture and delivery of such spares on the basis of mutually agreed time Schedule. In case the Supply Contractor fails to supply the mandatory, recommended or long term
(xii) spares on the terms stipulated above, Owner shall be entitled to purchase the same
from alternate sources at eh risk and the cost of Supply Contractor and recover from Supply Contractor, the excess amount paid by Owner over the rates as per Contract. In event of such risk purchase by Owner, purchases will as per the Works and procurement policy of Owner prevalent at time of such purchase and Owners at his option may include a representative from Supply Contractor in finalising the purchases.
(xiii) It is expressly understood that the final settlement between the parties in terms of
relevant clauses of the Tender Document shall not relieve the Supply Contractor of any of his obligations under the provision of long term availability of spares and such provisions shall continue to be enforced till the expiry of 30 (thirty) years period reckoned from the scheduled date of completion of Trial Operation of the last Unit and equipment unless otherwise discharged expressly in writing by the Owner.
4.0 4.1 4.1.1
SUB-CONTRACTORS Subcontractors and Suppliers All vendors, suppliers, and Sub-contractors providing equipment, Materials, construction equipment, or Services to Contractor under a Subcontract purchase order or similar purchase form or arrangement with Contractor for the performance of the Work or supply of Goods under this Contract are herein referred as "Sub-contractors", and any such sub-contracts, purchase orders and similar purchase forms and arrangement entered into by or on behalf of Contractor with Sub-contractors are herein referred to as "Subcontracts" provided under the Contract of the Contractor. that none of OWNER's other Contractors or their subcontractors shall be deemed to be subcontractors
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Contractor shall be obligated to select Subcontractors it retains in connection with the performance by Contractor of the Work or supply of Goods from a subcontractors list, which would be finalised and approved by the OWNER on or before issue of Notice to Proceed by the OWNER to the Contractor. OWNER and Contractor may by mutual agreement add to or delete from such list from time to time and approve any successor or replacement of any person listed on such list or any other vendor, supplier, material-man, Consultant or Subcontractor. Also prior approval of the OWNER has to be taken before subcontracting major Work (in the Electrical, instrumentation & control and mechanical areas) with regard to construction, installation, erection and commissioning activities.
4.1.2
The Contractor shall be solely liable for the performance of the subcontract work by his Subcontractors, for any and all liabilities arising there from and shall hold the Owner/Project Manager indemnified and harmless there against. None of the subcontractors of the Contractor shall have any contractual relationship with the Owner, nor shall they be entitled to prefer any claims against the Owner/Project Manager. All the subcontracts of the Contractor shall be subject to assignment to the Owner upon his written request.
4.1.3
Contractor shall provide to Owner unpriced copy of all Sub Contracts and other such information concerning the Subcontractors as Owner may from time to time reasonably request and shall ensure that each Subcontract contains provisions in all material respects not less stringent than the provisions of the Contract and shall include terms and provisions required to be included pursuant to the Contract. In the event of termination of the Contract under clause no. 15.2 or clause no. 16.2, Contractor shall forthwith deliver to Owner a copy of each Subcontract.
4.1.4
Each Subcontract shall contain a price list (which shall be binding to the extent reasonably feasible for a period of three years from the date of Take-over) covering all recommended spare parts and replacement parts pertaining to the subject matter of such Subcontract. Each Subcontract shall contain a certification by the Subcontractor analogous to Contractor's specific indemnification and patent and copyright indemnification as per clause no. 17.2 and 17.3.
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4.1.5
Contractor shall supervise and direct the Work of all Subcontractors and shall be responsible for all supply of Goods, design; engineering; procurement; manufacturing; transportation; delivery; fabrication; construction; erection; installation; commissioning; start-up, Initial Operation, Reliability Operation and Tests before Taking over including Performance Tests; maintenance, repair; methods; techniques; sequences and procedures of and for co-ordinating the work of Subcontractors.
4.1.6
If Contractor fails to correct, or commence to correct and execute the correction with due diligence of deficient or defective Work performed by any Subcontractor within 7 (seven) days, after receipt by Contractor of a notice from Owner with respect thereto, Owner may (but shall not be obligated to), after 7 (seven) days following receipt by Contractor of an additional notice, and without prejudice to any other right or remedy take all reasonable steps to remedy such defective or deficient Work at risk and Cost of Contractor.
4.1.7
Contractor shall require all Subcontractors to perform the Subcontracts in accordance with the relevant requirements of the Contract including Specification, all Applicable Laws, Applicable Permits, Prudent Utility Practice, Good Engineering Practices, and all Warranties of Vendors and Manufacturers and all insurance policies relating to the RELEVANT Package or the supply of Goods or the Work.
4.1.8
Contractor shall be solely responsible for paying each Subcontractor and any other Person to whom any amount is due from Contractor for Services, equipment, construction, equipment, Materials or supplies otherwise related to or in connection with the RELEVANT Package or the Work or supply of Goods. Contractor shall take all reasonable steps and actions to ensure that such Services, equipment, construction equipment, Materials and supplies and the like have been or will be received, inspected and approved and that such Services have been or will be properly performed.
4.2
Sub-Contractors and Manufacturer Warranties
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4.2.1
Contractor shall, for the protection of OWNER, obtain from all Subcontractors, including all vendors, and Manufacturers of equipment, all the required Warranties on all Goods and other items used in connection with the performance of the Work or incorporated in or forming part of the RELEVANT Package (other than minor items), and such Warranties shall not be amended, modified or otherwise discharged without the prior written consent of Owner. Warranties shall be in the joint names of OWNER and Contractor. Such Warranties shall nevertheless and at all times meet the minimum requirements stipulated in the Contract. Also the liability on account of Latent Defects, which are applicable to the Contractor, shall be similarly applicable to all the Sub-contractors of Contractor.
4.2.2
Contractor shall obtain from each of approved Subcontractor and each Subcontractor that is a party to, a Subcontract pursuant to which engineered equipment is to be provided, Warranties, which cover a period of not less than 24 (twenty four) Months from the date of Take-over of each Unit. Contractor shall obtain additional Warranties if required by the Contract including Specifications.
4.2.3
Contractor shall obtain from each Subcontractor who is party to a Subcontract pursuant to which off-the shelf equipment is to be supplied or purchased (whether or not such equipment is engineered equipment), the best Guarantee or Warranty commercially available.
4.2.4
OWNER shall be entitled to receive all benefits and proceeds (including damages and rebates) paid by or on behalf of any subcontractor pursuant to any Warranty. Neither Contractor nor its Subcontractors, nor any person under the control of either thereof, shall take any action which could release, void, impair or waive any Warranty on equipment, Materials, items, Goods or Services relating to the RELEVANT Package or the Work.
4.2.5
Nothing in this clause shall derogate from the obligations of Contractor to provide the Guarantees and Warranties described in, and to comply with the provisions of clause no. 11.0 and 12.0 of these General Conditions of Contract.
4.2.6
Contractor shall, on its part based on, professional judgement enforce all Warranties provided by the Subcontractors to the fullest extent thereof till such time they are transferred to the OWNER pursuant to sub-clause 4.2.7 below.
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4.2.7
Upon the expiration or termination of any of the Warranties provided by Contractor pursuant to the Contract or termination of the Contract for any reason whatsoever, the Contractor shall assign, and hereby assigns, effective as of such date, or otherwise make available, to Owner all of Contractor's rights under all such Subcontractor Warranties (except to the extent Contractor has therefore provided Warranty services to Owner and is enforcing Contractor's rights with respect to such Services under the applicable Subcontractor Warranty) and shall deliver to Owner copies of all Contracts providing for such Warranties.
4.2.8
Contractor, in accordance with Contract, shall require all Subcontractors to be covered by insurance specified in Contract, during time in which they are engaged in performing Services.
4.2.9
Contractor shall require all Subcontractors to release and waive any and all rights of recovery against OWNER, the Financing Parties and each of their promoters (including the directors, officers and shareholders of each such promoter), affiliates, subsidiaries, employees, successors, permitted assigns, insurers and underwriters, and against Contractor and all other Subcontractors which the releasing Subcontractor may otherwise have or acquire, in or from or in any way connected with any loss covered by policies of insurance maintained or required to be maintained pursuant to this the Contract (other than third party liability insurance policies) or because of deductible clauses in or inadequacy of limits of any such policies of insurance. Contractor shall further require all Subcontractors to include in all policies of insurance maintained by the Subcontractors clauses providing that each underwriter shall release and waive all of its rights of recovery, under subrogation or otherwise, against OWNER, the Financing Parties and each of their promoters, affiliates, subsidiaries, employees, successors, permitted assigns, insurers and underwriters, and against Contractor and all other Subcontractors.
4.2.10
Owner shall not be deemed by virtue of the Contract to have any contractual obligation to or relationship with any Subcontractor.
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4.3 4.3.1
Review and Approval - Non Release of Contractor' Liability s The review by and approval and consent of, Owner as to the approved Subcontractors list or as to Contractor entering into any subcontract with any approved Subcontractor or as to any Work done or supply made or Services provided by any such approved Subcontractor shall not relieve Contractor of any of his duties, liabilities or obligations under this Contract, and Contractor shall be liable hereunder to the same extent as if any such sub-contract had not been entered into. Any inspection review or approval by Owner of any Work or Goods or of any Work in progress by Contractor or Sub-contractors or participation by Owner in any Test conducted by or under the direction or supervision of Contractor or any Sub-contractor shall not relieve Contractor of any of its Work, duties, liabilities or obligations under the Contract. Owner shall not be deemed by virtue of Contract to have any contractual obligation or liability to, or relationship with, any Sub-contractor.
5.0 5.1 5.1.1
INSPECTION AND TESTING Requirements Contractor shall perform all inspection, expediting and quality surveillance as may be required for performance of the Services. Contractors responsibilities under this sub-clause shall include, without limitation, inspecting all supplies, Materials and equipment that comprise or will comprise the RELEVANT Package or that are to be used in performance of the work.
5.1.2
Contractor shall carry out the inspection and quality control aspects as set out in Technical Specification. In the event Owner establishes that the Contractor is not carrying out all such inspection and quality control aspects, Owner has the right to appoint at Contractors cost third party inspection agencies (such as Lloyds Register of Shipping / Bureau Veritas).
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5.1.3
Contractor / Contractors third party inspection agency shall perform such detailed inspection of all work in progress at intervals appropriate to the stage of design, engineering, procurement, fabrication, construction, erection, testing, Commissioning, start-up or Tests before Provisional Acceptance as is necessary to ensure that such work is proceeding in accordance with Contract, Documents, Applicable Laws, Applicable Permits, Good Engineering Practices and Prudent Electricity Industry Practice and to Owner against defects and deficiencies in such work (including any which would diminish or void the ability of Owner or Contractor to realise upon any manufacturers or suppliers warranty or under any applicable insurance coverage). On the basis of such inspections, Contractor shall keep Owner continuously informed of the progress and quality of all work, whether performed by Contractor or any Sub-contractor, and shall provide Owner with Written reports which shall contain notwithstanding anything to the contrary contained herein defects and deficiencies revealed through such inspections and of measures proposed by Contractor to remedy such defects and deficiencies. Owner or his Representative shall have the option, at Owners expense, of being present at all such inspections and Contractor shall give notice of all such inspections agreed.
5.1.4
In the event that the progress and quality of
work is not proceeding in accordance with
Contract, Owner shall be entitled to make recommendations to Contractor or any Sub-contactor for purpose of remedying such failure and any such defects and deficiencies or variances. Any inspection performed or not performed by Owner hereunder shall not be a waiver of any of Contractors obligations under the Contract or be construed as an approval or acceptance of any of work or Services hereunder or absolve responsibilities and obligations under the Contract. Contractor in any manner of its liabilities,
5.1.5
Contractor shall, where required give due notice to Owner / his Representative whenever such work is ready before covering up or putting out of view. Owners Representative shall then either carry out the inspection, examination, measurement or testing or notify Contractor that it is considered unnecessary.
5.1.6
Owners Representative shall have the right to re-inspect any work though previously inspected and approved by him at the Site, before and after the same are erected. If by the above inspection the Owners Representative rejects any work, the Contractor shall make good for such rejections either by replacement or modifications/ repairs as may be necessary to the satisfaction of the Owners Representative.
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5.1.7
The Owner and his Representative shall be entitled, during design, engineering, manufacture, fabrication and preparation at any places where work is being carried out, to inspect, examine and test the materials and workmanship, and to check progress in the performance of the work at no extra cost to Owner.. Contractor shall give all reasonable facilities and assistance, including access to Documents to carry out such inspection, examination, measurement and testing. All inspection and tests shall be in line with approved Inspection & Test Plans and Owner / his Representative shall carry out necessary inspection as per the Contract. Should any inspected work or service fail to conform to the Contract, Owner may reject such work or service and the Contractor shall either replace or make alterations necessary to meet Contract requirements free of cost to Owner. Owners right to inspect, test, and where necessary, reject the work or service shall in no way be limited or waived by reason of any part of the work having previously been inspected, tested and passed by Owner / his Representative.
5.1.8
Contractor shall give sufficient advance notice to attend the tests. If Owner is not satisfied with the tests and calibration certificates, Contractor shall arrange to get the concerned instrument(s) recalibrated to the satisfaction of Owner / his Representative.
5.1.9
If Owners Representative does not attend at the time and place agreed, or if Contractor and Owners representative agree that Owners Representative shall not attend, the Contractor may proceed with the Tests, unless Owners Representative instructs the Contractor otherwise. Participation by Owner / his Representative in or their absence from or failure to participate in any Tests (other than the Performance Tests) shall not relieve or absolve the Contractor from any Guarantee or Warranty or obligations of Services under or in pursuance of the Contract.
5.1.10
Contractor shall promptly forward to the Owner / his Representative duly certified reports of the Tests.
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5.1.11
If the Owner / his Representative require such equipment, materials, design or workmanship to be re-tested, the Tests shall be repeated under the same terms and conditions. Contractor shall undertake an additional testing of any material, equipment or the work, if Owner / his Representative believe the results of earlier Tests are not accurate or do not establish the true condition to specification of equipment, material or work being tested. If such retesting demonstrate that the work, equipment or material being so tested conforms to the requirements of Contract, then Owner shall bear the cost of such additional Test and the cost of any required uncovering and covering the Goods or Services and shall grant the extension of time for completion, if necessary. If however such retesting confirms Owners conclusion and cause Owner to incur additional costs, such costs shall be recoverable from the Contractor by Owner and may be deducted by Owner from any monies due, or to become due, to Contractor. Neither the failure by Owner / his Representative to discover defects, nor any payment to Contractor in respect of the Tests, shall prejudice the rights of Owner thereafter to require and obtain from Contractor the performance of the Services in accordance with the Contract herewith. OWNER shall not be deemed to have accepted any Services as a result of any additional testing.
5.2 5.2.1
Rejection If, as a result of inspection, examination or testing, the Owner / his Representative decides that any equipment, system, materials, design or workmanship has failed in such inspection, examination or tests or is defective or otherwise not in accordance with the Contract, the Owners Representative may reject such equipment, system, materials, design or workmanship and shall notify Contractor promptly, stating his reasons. Contractor shall then promptly correct or replace, such item or portion so as to pass retesting and otherwise meet and conform to such requirements. Following any such rejection, all expenses reasonably incurred by the Owner in consequence of such re-testing or inspection shall be borne by the contractor. No changes to project schedule or increase in the contract price shall be granted with respect to such additional testing. Contractor shall solely bear any cost resulting there from.
6.0 6.1
INSURANCE Offshore Supply Contractor: Insurance of Goods
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Offshore Supply Contractor shall, at its sole cost, on behalf of and in the name of OWNER, take Insurance cover for 110 (one hundred and ten) % of the full replacement value (including all taxes, duties, levies and all other costs) against Marine and all other risks (including terrorists act, water and mine, SRCC) from Free on Board at the port of despatch upto unloading at the port of destination in India in respect of all Offshore supplies.
6.2 6.2.1
Onshore Service Contractor: Insurance of RELEVANT Package
(i)
The Onshore Service Contractor shall:
a)
In respect of all Material including Goods, equipment received at Site and to be handed over to the Contractor in his capacity as bailee of such Materials from the time of receipt at site until Take Over.
b)
In respect of Work done by him and his Sub-contractors up to Take Over be liable for all risks relating to the aforesaid and shall at his own cost obtain Insurance to cover all such risks (including terrorists act, war and mine, SRCC) for 110 (one hundred and ten)% of the replacement value (including all taxes, duties, levies and all other costs) in respect of aforesaid Materials or Works in the joint names of himself and Owner.
(ii)
Onshore Service Contractor shall also arrange for Insurance against transit and all risks (including terrorists act, war and mine, SRCC) in the name of Owner in respect of off-shore Materials including Goods and equipment from unloading at port of destination in India until delivery and receipt at site including off-site storage of the Materials on Owners behalf for 110 (one hundred and ten)% of the replacement value (including all taxes, duties, levies and all other costs).
(iii)
Onshore Service Contractor shall also arrange for Insurance against transit and all risks (including terrorists act, war and mine, SRCC) in name of Owner in respect of 110 (one hundred and ten)% of the value of onshore supplies from Ex-works until delivery and receipt to site.
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(iv)
At least 3 (three) days before despatch of Onshore supplies, the Onshore supply contractor shall intimate the Onshore Service Contractor and Owner of relevant details of the consignment to enable the Onshore Service Contractor to obtain necessary insurance cover. Any liability arising due to default in fulfilling this obligation by the Onshore Supply Contractor will be to the Onshore Supply Contractors account.
(v)
At least 7 (Seven) days before despatch of Offshore supplies, the Offshore supply contractor shall intimate the Onshore Service Contractor and Owner of the relevant details of the consignment to enable the Onshore Service Contractor to obtain necessary insurance cover. Offshore Supply Contractors account. Any liability arising due to default in fulfilling this obligation by the Offshore Supply Contractor will be to the
6.2.2
Rented Equipment All construction equipment shall be brought to and kept at the Site at the sole cost, risk and expense of Contractor, and Owner shall not be liable for any loss or damage thereto, except to the extent any such loss or damage is caused solely by Owner. Contractor, at his sole discretion, may maintain adequate, appropriate and prudent insurance with respect to such construction equipment. Any Insurance policy carried by the Contractor, any Sub-contractor or any third party on or in respect of any construction equipment shall provide for waiver of the underwriter's right to subrogation against Owner, the Financing parties, their assignees, subsidiaries, parent companies, affiliates, employees, insurers and underwriters. Contractor shall obtain adequate insurance to cover all construction equipment rented or leased from third parties.
6.2.3
Statutory Insurance Benefits Contractor shall maintain with respect to the Work to be done under the Contract, in each applicable jurisdiction, all statutory insurance benefits and other insurance required by law including, without limitation, unemployment Insurance.
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6.2.4
Third Party Insurance Contractor shall at its sole expense, in the joint names of Owner and Contractor prior to the commencement of any Work on the Site, pursuant to the Contract, obtain adequate insurance, against liability for damage or death of or personal injury occurring before Final Performance Acceptance to any Person (including any employee of the insured parties) or to any property (other than property forming part of the RELEVANT Package) due to or arising out of the performance or non performance of the Work by Contractor or any Sub-contractors and other third party liabilities on account of obstruction, loss of amenity, trespass, nuisance or advertising pursuant to the Contract.
6.2.5
Automobile Liability Insurance Contractor shall, at its sole expense and in the joint names of OWNER and Contractor, shall maintain automobile liability insurance covering all owned, non-owned and hired automobiles, trucks and other vehicles used by Contractor or its Subcontractors in connection with the Work.
6.2.6
Insurance against Accident, etc. to Workmen and Other Insurances Contractor shall, at its sole expense, insure and shall maintain Insurance as required by Indian and all other Applicable Laws for all actions, suits, claims, demands, costs, charges and expenses arising in connection with the death of or injury to any person employed by Contractor or its Subcontractors for the purpose of the performance of the Work or supply of Goods. In addition, Contractor shall obtain and maintain all other Insurances required to be obtained and maintained by it for fulfilling all his obligations under the Contract including Insurances against damages to designs and the like arising out of Services.
6.3
General Insurance Requirements All insurance obtained by Contractor shall be maintained with an insurer approved by the OWNER.
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On or prior to the Commencement Date of Contract, Contractor shall furnish to the Financing Parties and Owner certificates of Insurance (or if one of the Financing parties, Owner / his Representative so directs, copies of the actual insurance policies signed by an authorised Representative of the insurer) from each Insurance carrier showing that the above required Insurance is in force, the amount of the carrier's liability there under, and further providing that the Insurance will not be cancelled, changed or not renewed until the expiration of at least 90 (ninety) Days (to the extent obtainable under commercially reasonable terms) after written notice of such cancellation, change or non-renewal has been received by Owner and the Financing Parties and Contractor. All policies and certificates of Insurance affected in accordance with this clause shall be in form and content acceptable to Owner and Financing Parties.
6.3.1
Remedy on Failure to Insure If Contractor fails to effect and keep in force the Insurance for which he is responsible under Contract including clause no. 6.0 hereof, Owner may effect and keep in force any such Insurance, and pay such premiums as may be necessary for that purpose and from time to time, after issuance of a reimbursement request there for accompanied by relevant supporting documentation, deduct amount paid by him from any amounts due or which may become due to Contractor under Contract.
6.3.2
Subcontractors Insurance and Subcontractors Waiver.
a) Unless Contractor's insurance covers its Subcontractors, Contractor shall require all such
Subcontractors providing equipment, construction equipment or Services to Contractor or the Project to obtain, maintain and keep in force during the time in which they are involved in the performance of the Work or supply of Goods hereunder, coverages consistent with Contractor's insurance obligations hereunder.
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b) Contractor shall require all Subcontractors to release and waive any and all rights of
recovery against OWNER, the Financing Parties, and each of their parent companies and affiliated companies and subsidiaries and their respective officers, directors, employees, successors, permitted assigns, insurers and underwriters, and against Contractor and all other Sub-contractors, which the releasing Subcontractor may otherwise have or acquire, in, from or in any way connected with any loss, injury or damage covered by policies of insurance maintained or required to be maintained pursuant to this Contract (other than third party liability Insurance policies) or because of deductible clauses in or inadequacy of limits of, any such policies of Insurance.
c) Contractor shall further require all Subcontractors to include in all policies of Insurance
maintained by Subcontractors clauses providing that each underwriter shall release and waive all of its rights of recovery, under subrogation or otherwise, against OWNER, the Financing Parties, and each of their parent companies, affiliated companies and subsidiaries and their respective officers, directors, employees, successors, permitted assigns, insurers and underwriters, and against Contractor and all other Subcontractors.
6.3.3
Descriptions not Limitations The Insurance coverage referred to in this clause no. 6.0 shall be set forth in full in the respective policy forms, and the foregoing descriptions of such policies are not intended to be complete, nor to alter or amend any provision of the actual policies and in matters, if any, in which the said description may be conflicting with such instruments, the provisions of the policies of the Insurance mutually agreed by the Parties shall govern; provided, however, that neither the content of any Insurance policy or certificate nor Owners approval thereof shall relieve the Contractor of any of its obligations under the Contract.
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6.3.4
Risk of Loss of Damage
a) Between the date hereof and the earlier of (i) Final Performance Acceptance and (ii) the
Date of Termination of this Agreement and provided Owner has Taken Over the Unit / RELEVANT Package, Contractor shall bear the complete risk of loss, destruction or damage (including deterioration in quality) of or to the equipment or RELEVANT Package, and all equipment and components thereof (including all temporary equipment, Materials and other items and including equipment, construction equipment and other items that are purchased for permanent installation in or for use during construction of the RELEVANT Package or equipment regardless of whether Owner has title thereto or otherwise in connection with the performance of the Work or supply of Material), arising from any cause whatsoever; provided, however, that Contractor regardless of anything stated herein shall bear such risk of loss, destruction or damage with respect to any Unit, any common component of the Units or the RELEVANT Package as a whole after such Take Over for any period during which such Unit, any common component or the RELEVANT Package, as the case may be, control thereof of which is delivered to Contractor because of the testing, Commissioning or start-up of any Unit, any common component or the RELEVANT Package as a whole.
b) At all times after the Take Over, Owner shall bear the complete risk of loss, destruction or
damage (including deterioration in quality) of or to the RELEVANT Package, and all components thereof, arising from any cause whatsoever save and except where covered by any Guarantee and Warranty and Latent Defects and clause (a) above.
c) In the event of loss, destruction or damage (including deterioration in quality) of or to the

RELEVANT Package, or any component thereof (including all equipment, construction equipment and other items including temporary Materials and other items that are purchased for permanent installation in or for use during construction of the RELEVANT Package, regardless of whether OWNER has title thereto or otherwise in connection with the performance of the Work), prior to such Take Over, Contractor will be obliged to repair or replace the Work or Material which has suffered loss, damage or destruction or which has deteriorated provided that any proceeds of Insurance required to be maintained pursuant to this clause 6.0 with respect to such loss, damage or destruction (other than third party liability Insurance), if received by the OWNER, where relevant, are paid to or on behalf of Contractor. ISSUE R0
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d) Not withstanding anything to the contrary contained in the Contract, the Costs and
expenses any loss, destruction or damage of or to RELEVANT Package or any equipment or component forming part thereof will be borne by Owner to extent Owner bears the risk of loss pursuant to the preceding sub-clause (b) and such costs and expenses will be borne by Contractor to the extent that Contractor bears the risk of loss pursuant to the sub-clauses (a) and (c) above. Contractor shall bear the complete risk of loss, destruction or damage to the RELEVANT Package till the date of Take-Over and in respect of all equipments, Materials, and other items provided Ex-works at the relevant factory gate and in respect of all Work / Services as they are done, provided that any proceeds of Insurance required to be maintained pursuant to this clause no. 6.0 with respect to such loss, damage or destruction (other than third party liability insurance) if received by Owner, where relevant, are paid to or on behalf of Contractor.
6.3.5
Waiver of Subrogation All insurance policies supplied or arranged on Owners behalf by Contractor shall include a waiver of any right of subrogation of the insurers there under against OWNER, the Financing Parties and their respective assigns, subsidiaries, affiliates, parent companies, employees, insurers and underwriters, and of any right of such insurers under such Contractor policies to any set-off or counterclaim or any other deduction, whether by attachment or otherwise, in respect of any liability of any such Person insured under any such policy.
6.3.6
Contractor' Waiver s Contractor further releases, assigns and waives any and all rights or recovery against OWNER, the Financing Parties and their respective assigns, subsidiaries, affiliates, parent companies, employees, insurers and underwriters, and against other contractors of OWNER and their subcontractors which Contractor may otherwise have or acquire in or from or in any way connected with any loss covered by the policies of Insurance maintained or required to be maintained by Contractor pursuant to this Contract (other than third party liability insurance policies) or because of deductible clauses in, or inadequacy of limits of, any such policies of Insurance.
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6.3.7
Additional Insured Except to the extent prohibited by law and except for Insurance coverage described in clause no. 6.2.2 above, all Insurance coverages referred to in this clause no. 6.0 shall name OWNER, the Financing parties and their respective assignees, subsidiaries, affiliates and parent companies as additional named insured and sole loss payees, as their respective interests may appear.
6.3.8
No Limitation of Liability The required coverage referred to and set forth in this clause no. 6.0 shall in no way affect or limit Contractor's liability with respect to performance of the Work or any obligation under the Contract. Notwithstanding the extent of Insurance cover and the amount of claim available from the underwriters the Contractors shall be liable to make good the full replacement / rectification value of all equipment / Materials to ensure the availability as per Project requirements.
6.3.9
Contractor shall bear the risk of loss pursuant to clause 6.3.4 hereof.
However all the
Insurance policy mentioned in this clause shall be administered and managed by the Contractor and shall be effected from the Commencement Date of contract and thereafter shall operate from the time the relevant property leaves the premises of the manufacturers in the country of origin, and shall continue during the ordinary course of transit and during storage on or off the Plant Site, if any, erection and Commissioning until the date on which Owner takes over the care, custody and control of the RELEVANT Package, to the exclusion of Contractor. Owner retains the right to take any or all the above Insurance covers at his own cost. In case Owner exercises his option of taking the above Insurance covers in his own name, the price quoted by the Bidder against such insurance covers included in Schedule of Prices shall be deducted from the Contract Price.
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6.3.10
Irrespective of Insurance cover taken by OWNER or Contractor, the Contractor shall be responsible for preference of all claims and make good for the Material loss or damage or loss by way of repairs and / or replacement of operation of Works damaged / lost. The transfer of title shall not in any way relieve the Contractor of above responsibilities during the period of Contract.
6.3.11
For supply of goods, erection, Commissioning, testing, Trial Operation and other allied Services during the Contract Period, if any derived liability occurs to OWNER, all the Contractors shall make necessary arrangements for indemnifying such liability on joint and several basis without any limits. However it may be advisable for the Contractors to take appropriate and suitable Insurance cover for such contingencies.
6.3.12
The amount of claim shall be paid to the OWNER. settlement of claims related to repairs / replacement.
The OWNER at his discretion may
authorise the underwriters to pay the same directly to the Contractors from time to time for
6.3.13
The Contractor shall include the names of Financing Parties as indicated and required by OWNER in the respective Insurance coverage mentioned above.
7.0 7.1
TITLE Notwithstanding anything to the contrary in the Contract, ownership of the Goods to be imported into the Country where the site is located shall be transferred to the OWNER and vest with the OWNER upon loading onto the mode of transport at the port of shipment to be used to convey the Goods from the Country of origin on FOB basis to that country after necessary inspection and verification and quality clearances.
7.2
Ownership of the Goods procured in the country where the Site is located shall be transferred to the OWNER when the Goods are despatched by the Supply Contractor thereof after the necessary inspection and verification and quality clearances subject to the following:
a) FOR despatch On handing over the Goods to the carrier against a receipt and such
receipt having been received by Owmer.
b) In case the Goods are procured by the Contractor from vendors, on receipt of duly endorsed
documents of title to the Goods.
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7.3
Ownership in respect of Goods supplied by the Contractor for incorporation in Permanent Works for execution of Civil Construction shall pass on to completion certificate. Owner on date of issue of
7.4 7.5
Title to services shall pass as the Services are performed. Transfer of property in the Goods shall be without prejudice to any Warranty or liability of the Contractor as to the quality, suitability or performance of the Goods. This Transfer of Title shall not be construed to mean the acceptance of quality and adequacy and the consequent Take over of Goods, equipment and Materials. Contractor shall continue to be responsible for the Quality and performance of Goods, equipment, Materials and Services and for their compliance with Specifications until Take Over and the fulfilment of Guarantee provisions of this Contract.
8.0
FOSSILS All fossils, coins, articles of value or antiquity, and structures and other remains or things of geological or archaeological interest discovered on the Site shall (as between the parties) be the property of OWNER. Contractor shall take reasonable precautions to prevent his staff, labour or other persons from removing or damaging any such article or thing. Contractor shall, immediately upon discovery of such article or thing, advise Owner / his Representative.
9.0 9.1
COMMENCEMENT, DELAYS AND SUSPENSION Notice to Proceed Contractor shall commence Performance of Work or supply of Goods on the date which the Owner specifies ( Commencement Date) in Notice to Proceed ( Notice to Proceed) delivered for commencement of the Work or supply of Goods, which shall not be earlier than the date of issue of the Notice to Proceed.
9.2
Commencement of the Work / supply of Goods Contractor will commence the Work / supply of Goods as indicated in the Notice to Proceed.
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9.3
Contractual Time for Completion Each Unit shall be completed and shall have successfully passed the Tests before Take Over within the time for completion as set forth in the specification. Failing which Contractor shall pay for such delay in Unit Completion ( Delay Liquidated Damages). Payment of any Delay Liquidated Damages shall not affect or prejudice in any way or manner Owners right to terminate the Contract nor shall any termination of Contract prejudicially affect the Owners right to recover any accrued Delay Liquidated Damages or release Contractor from any obligation for payment thereof.
9.4 9.4.1
Extension of Time for Completion The Contractor may apply for an extension of the time for completion if he is or will be delayed before the time for completion by any of the following causes:
a) A Change Order (unless an adjustment to the time for completion is agreed under clause
no. 14 of these General Conditions of Contract);
b) A Force Majeure event (as defined in sub-clause 20.1 of these General Conditions of
Contract)
c) A cause of delay giving an entitlement to extension of time under a sub-clause of this

clause no. 9.4, unless the Contractor has not complied with such sub-clause; or
d) Any delay, impediment or prevention by Owner of his failure to fulfil any of its obligations
set forth in the Contract.
9.4.2
As per the requirement of sub-clause 3.16.2 (or such other period as may be agreed by the Owner / his Representative), the Contractor shall submit an application with full supporting details together with any other notice required by the Contract and relevant to such cause. Except that, if the Contractor cannot submit all relevant details within such period because the cause of delay continued for a period exceeding 5 (five) Days, the Contractor shall submit interim details at intervals of not more than 5(five) Days (from the first Day of such delay) and full and final supporting details in support of his application within 7 (seven) Days of the date of ceasure of such delay.
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Owner / his Representative shall proceed to agree or determine either prospectively or retrospectively such extension of the time for completion as may be due. Owner / his Representative shall notify the Contractor accordingly. When determining each extension of time, Owner / his Representative shall review his previous determinations and may revise the total extension of time.
9.5 9.5.1
Rate of Progress If, at any time, the Contractor's actual progress falls behind the Schedule in any manner or it becomes apparent that it will so fall behind, the Contractor shall submit to Owner a revised programme taking into account the prevailing circumstances. The Contractor shall, at the same time, notify Owner of steps being taken to expedite progress, so as to achieve completion within the time for completion stipulated under the Contract, including in particular the Schedule and Guaranteed Completion Dates. The Contractor may also be asked to modify the plan, as a result of the changed circumstances due to delay, in order to complete the Work in time.
9.5.2
If any steps taken by the Contractor in meeting his obligations under this sub clause no. 9.5 cause Owner to incur any additional costs, such costs shall be recoverable from Contractor by Owner, and may be deducted by from any monies due, or that may become due, to Contractor under Contract or otherwise.
9.6 9.6.1
Suspension of Supply of Goods/ Work Owner may at any time instruct the Contractor to suspend progress of part or all of the Work or supply of Goods. During suspension, the Contractor shall protect, store and secure such part or all of the Work or Goods against any deterioration, loss or damage or other losses.
9.6.2
If Contractor suffers delay and / or incurs Cost in following Owner / his Representative's instructions under clause no. 9.6 hereto and in resumption of the Work or supply of Goods, the Contractor shall give notice to the Owner / his representative, with a copy to Owner. After receipt of such notice the Owner / his Representative shall proceed to agree or determine:
a) Any extension of time to which the Contractor is entitled under the Contract including clause
no. 9.4 of these General Conditions of Contract; and
b) The amount of such Cost, which shall be added to the Contract Price,
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and shall notify the Contractor accordingly. Provided, however, notwithstanding anything to the contrary contained in these General Conditions of Contract, the Contractor shall not be entitled to such extension and payment of Cost if the suspension is due to a cause attributable to the Contractor.
9.6.3
Contractor shall not be entitled to extension of time for, or payment of costs incurred in, making good any deterioration, defect or loss caused by faulty design, workmanship or Materials, or by Contractor's failure to take the measures specified in clause no. 9.6.1 of these General Conditions of Contract.
9.6.4
Prolonged Suspension If suspension under clause no. 9.6.1 of these G CC continues for more than 180 (one hundred and eighty) Days in case of a single event and 365 (three hundred and sixty five) Days in case of cumulative events, and the suspension is not due to a cause attributable to the Contractor, the Contractor may by notice to the Owner / his Representative require permission within 30 (Thirty) Days to proceed. If permission is not granted within the said 30(thirty) Days period by Owner, Contractor may treat the suspension as an omission of the affected part of the Work under clause no. 14.0 of these G CC.. If such suspension affects the whole of the Work, Contractor may terminate his employment, under clause no. 16.2 of these G CC subject to clause no. 16.3.
9.6.5
Resumption of Supply of Goods/ Work After receipt of permission or of an instruction to proceed, the Contractor shall, after notice to the Owner and together with his Representative, examine the Works and the RELEVANT Package and Materials affected by the suspension. Contractor shall make good any deterioration or defect in or loss of the Works or RELEVANT Package or Materials, which has occurred during the suspension. proceed. The Work or supply of Goods after resumption shall be started by the Contractor within 7 (seven) Days of receipt of permission or an instruction to
10.0
TESTS BEFORE TAKE OVER The Tests before Provisional Acceptance shall be conducted at Site after the Unit has attained stable operation at the end of Reliability Operation. ISSUE R0
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10.1 10.1.1
Performance Guarantee Tests and Unit Characteristic Tests Requirements Contractor shall undertake, perform and conduct in the presence of Owner and his
Representative, the Unit Characteristic Tests and other required Tests of Unit in accordance with the procedures and protocol set forth in the Contract, the Applicable Laws, the Applicable Permits at no additional cost or expense except as otherwise expressly provided in Contract and in accordance with Performance Test codes as set forth in Schedule of Performance Guarantee to prove and establish satisfactory achievement of Performance Guarantees including Noise guarantees as set forth in Contract.
10.1.2
Contractor shall give at least 30 (thirty) Days' prior notice to Owner of the anticipated Schedule for undertaking of the Performance Tests and other tests of Unit so that they may designate and make available representatives to observe the preparations for and conduct thereof. Such Schedule for the Performance Tests shall be subject to approval of Owner / his Representative.
10.1.3
Contractor shall not perform or undertake any Performance Tests or other Tests of the Unit if any of the following exists:
a) All conditions and requirements that must be fulfilled under the Contract hereunder prior to
commencement of such Performance Tests or other Tests have not been duly fulfilled or
b) OWNER/PROJECT MANAGER gives advance notice to Contractor that Work necessary

for the safe performance of such Performance Test or other Tests has not been performed or is incomplete or defective.
10.1.4
During Performance Tests equipment/systems shall be operated within the limits set by Operation & Maintenance Manual and the Contract and in accordance with the Prudent Electricity Industry Practices and Good Engineering Practices.
10.1.5
During the Performance Tests, the Contractor shall demonstrate that the Unit meets under the design conditions stipulated in the Technical Specification at least the Minimum Performance Standards for the Output and efficiency of turbine and generator and the auxiliary power consumption, and Noise Guarantees as set forth in the Contract.
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10.1.6
If Unit fails to meet the conditions for Provisional Acceptance as set forth in the Clause 10.5 of these General Conditions of Contract, the Contractor shall at no extra cost to OWNER rectify, or modify, the deficient Unit or component thereof as appropriate that enables the conditions for Provisional Acceptance to be met.
10.1.7
If Unit fails to meet the Output, efficiency and Noise Guarantees as set forth in the Technical Specification during any such Performance Test, OWNERs remedy for such failure shall include the right to require Contractor to redesign, repair or modify the deficient Unit at no extra cost to OWNER until the Unit meets the Guarantees.
10.1.8
OWNER shall have right to suspend or delay any Performance Test of the Unit if it is anticipated that the electrical output demanded from the Facility by the Grid during any part of such Performance Test may be less than the Gross Electrical Output Guarantee under the Contract. For any such suspension or delay by OWNER, the Contractor would be entitled to an extension of time as appropriate under the Contract.
10.2
Revenue During Tests Any output of electricity during Tests and all proceeds from the sale thereof shall be the property of Owner and latter shall be entitled to receive and retain for its own use all revenues generated or earned by Unit during the Commissioning and stabilisation of operation, Tests before Take Over and other Tests, whether or not OWNER has assumed the occupancy or possession of the Unit.
10.3 10.3.1
Performance Test Report
(i) On completion of Performance Test, and other Tests, Contractor shall deliver to OWNER
a report ("Performance Guarantee Test Report") setting forth the results thereof calculated in accordance with agreed Performance Test code, procedures, criteria and formulae set forth in the Contract. The OWNER / OWNER's Representative shall inform Contractor after the receipt of the Report stating whether:
a)
the Performance Test, or other Tests were performed in accordance with the procedures and protocol set forth in this Contract
b)
the Performance Guarantees as applicable, are satisfied; and
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DEFINITIONS OF THE TERMS AND PRELIMINARY CONDITIONS OF CONTRACT c)

The Performance Test Report is correct and complete.
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(ii) If the Performance Test Report is incorrect or incomplete Owner shall specify in what
respects the Performance Test Report was insufficient, incomplete or incorrect and the Contractor shall promptly provide such additional information required by Owner. If in the opinion of Owner / his Representative the additional information provided does not satisfactorily remedy the incompleteness or incorrectness, the Performance Test Report shall be withdrawn and the Contractor shall re-issue the Performance Test Report.
(iii) If in the opinion of Owner the Performance Test was not performed in accordance with the
procedures and the protocols set forth in the Contract, the Owner shall specify in what respect the Performance Test was not carried out properly and the Contractor shall carryout the re-test.
(iv) If the Performance Guarantees are not satisfied, the OWNER/PROJECT MANAGER shall
inform the Contractor that the Performance Guarantee Test is unsuccessful with reasons.
10.3.2
If the Unit does not achieve the Performance Guarantees, the Contractor shall submit a remedial plan setting forth Contractor's proposed rectification plan and schedule for satisfaction of Performance Guarantees within fifteen (15) Days from the date of the unsuccessful Tests. On completion of rectification, retesting pursuant to the Contract including this clause no. 10.3 of these General Conditions of Contract shall be carried out by Contractor at its cost. written notice to Owner / his Representative. Any retesting pursuant to this clause no. 10.3 shall not occur without at least 15 (fifteen) Days
10.4
Correction of Performance Defects At any time during and promptly after completion (whether or not successful) of the Performance Tests (or any rerun of such Tests, whether pursuant to this clause or otherwise), Contractor shall advise Owner / his representative in writing of any defects in the Unit thereof that were discovered or that occurred during such Tests. Contractor shall promptly commence and complete corrective measures to remedy such defects including redesigning, reengineering, repairing or replacing any defective Materials at Contractor's sole cost and expense.
10.5
Provisional Performance Acceptance
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10.5.1
Provisional Performance Acceptance shall occur with respect to the Unit if and only if:
a) Performance Guarantee tests is successfully completed, b) A Performance Test Report prepared after Performance Test before Take Over and
accepted by OWNER in accordance with the Contract including clause no. 10.3 of these General Conditions of Contract demonstrates that while satisfying the Output, efficiency and Noise Guarantees the Unit as specified in Section C2, Part 1, Volume V of the bid document.
c) The Unit is in accordance with all Applicable Laws and all government approvals, Prudent
Utility Practices and Good Engineering Practices.
d) Owner / his Representative determine that the Unit is complete and can be legally, safely
and reliably placed in commercial operation with a normal compliment of spares and personnel,
e) All Permits required to operate and maintain the Unit, which are to be obtained by
Contractor, have been obtained,
f)
OWNER has received from Contractor:
(i)
All Documents required under the Contract for OWNER to start-up, operate and maintain the Unit,
(ii)
All essential and ordered recommended spare parts necessary to operate the Unit in a safe, efficient and effective manner; and
(iii) All special tools and other maintenance tools and tackles as per Contract;
g) Contractor has delivered to Owner a completion certificate certifying each of the foregoing
and Owner has accepted the same.
10.5.2
Owner shall issue a Take Over Certificate (TOC) to Contractor certifying the date of achievement of the last of the condition under above clause upon which Provisional Acceptance has occurred. Any Liquidated Damages for delay accruing pursuant to the Contract for failure of the Unit to achieve Provisional Acceptance by its Guaranteed Completion Date shall stop accruing as of the date specified in TOC. ISSUE R0
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10.5.3
On issuance of TOC for a Unit, Contractor shall handover to Owner such Unit operating in its normal, steady-state, automatic operating mode at the level of the Performance Guarantees achieved at the most recent Performance Test. Thereafter Owner shall be responsible, for the care, custody and operational control of the Unit. Contractors obligations towards Warranty and Latent Defects shall commence from the date of TOC of Unit.
10.6 10.6.1
Final Performance Acceptance Final Performance Acceptance of the Unit shall occur if and only if
(i) Performance Guarantee Test has been concluded including any retest in which the Unit
demonstrates achievement of all the Performance Guarantees for meeting the Minimum Performance Standards and the Contractor has opted to pay the Liquidated Damages for the shortfall in performance ;
(ii) Contractor has completed all the Work including completion of the Punch List items in
accordance with the Contract, (including the obligations during the Warranty period)
(iii) Provisional Performance Acceptance of the Unit has occurred or occurs concurrently with
Final Performance Acceptance;
(iv) Final Documents for start-up, operation and maintenance including As built drawings are
provided by the Contractor to the OWNER as per the contract and
(v) Contractor has delivered to Owner a completion certificate certifying each of the foregoing
and Owner has accepted the same.
10.6.2
Upon Owner's reasonable determination that conditions for Final Acceptance set forth in subclause 10.6.1 are satisfied, Owner shall provide Written Notice to Contractor certifying the date upon which Final Performance Acceptance occurred.
10.6.3
At Final Performance Acceptance, Contractor shall leave the relevant Unit operating in its automatic normal operating mode at the level of the Performance Guarantees achieved at the most recent Performance Test.
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10.7
Final Acceptance Certificate In order to achieve Owner s final acceptance, Contractor must certify to the satisfaction of Owner / his Representative that:
a) All the Contractor's and Sub-contractor's personnel, supplies, unused Materials, waste,
rubbish and temporary facilities located at or near such RELEVANT Package have been removed,
b) Final Performance Acceptance has occurred for Units and all other provisions of and all
items required by this Contract have been performed or delivered, as the case maybe, in accordance with this Contract and in a manner satisfactory to Owner.
c) All Sub-contractors have been paid the dues by the Contractor and no due certificates
received from such Sub-contractor.
d) All statutory or legal liabilities on account of the work performed under the contract have
been duly calculated and paid by the Contractor. Upon certification by Contractor of satisfactory completion of sub-clauses 10.7 (a) through 10.7(d), OWNER shall issue a Final Acceptance Certificate certifying such matters within 120 (one hundred and twenty) Days.
10.8
Use of the Unit Prior to OWNERs Acceptance OWNER reserves the right to take possession of and use for any intended purpose, any portion or all of any handed over but as yet unaccepted Unit. The taking of possession at any time or use of any of such portion of Unit shall not be deemed to be an acknowledgement of OWNER acceptance of Unit and shall not relieve Contractor from his obligations under the Contract in this respect, until OWNERs acceptance of the Unit, has occurred. Owner shall provide Contractor with reasonable and timely access to complete its obligations hereunder. It is the expectation of the Parties that any such modifications or repairs will be accomplished by Contractor with minimal interference with operation of the Unit, and that reductions in and shutdowns of Unit operations will be required only when necessary. The Contractor shall, however, keep the RELEVANT Package and Works duly insured as per clause 6.0 against various applicable risks until the Provisional Acceptance. ISSUE R0
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11.0 11.1 11.1.1
LIQUIDATED DAMAGES Liquidated Damages for Delay If Provisional Performance Acceptance does not occur on or before the Guaranteed Completion Date of Unit, Contractor shall pay Liquidated Damages to Owner for such delay for each and every week or part thereof which elapses after the Guaranteed Completion Date for the Unit until the earlier of (i) Provisional Performance Acceptance, or (ii) Final Performance Acceptance in case Provisional Performance Acceptance occurs concurrently with Final Performance Acceptance or (iii) the Day on which Contractor has paid to the Owner the maximum amount of Liquidated Damages for delay pursuant to the Contract.
11.1.2
Liquidated Damages payable by Contractor to
Owner for delay in achieving Provisional
Performance Acceptance by the Guaranteed Completion Date of each Unit which is 0.5% of the Contract Price for every week or part thereof with a overall limit of 10% of the contract value (the Liquidated Damages for Delay).
11.1.3
Notwithstanding the foregoing, no Liquidated Damages for Delay shall be payable for period of delay in achieving Provisional Performance Acceptance beyond Guaranteed Completion Date of Unit to the extent such delay is solely on account of Force Majeure Event and Contractor has been granted an extension of time pursuant to clause no. 20.0 hereof is granted.
11.1.4 11.1.5
Clause Not used Within fifteen (15) days of achieving Provisional Performance Acceptance, the Contractor shall pay to Owner the Liquidated Damages for Delay calculated by Owner pursuant to the contract failing which same shall be adjusted from any sum due or payable by Owner to Contractor or recovered from performance and other securities provided by the Contractor.
11.2
Liquidated Damages Responsible The Parties acknowledge that
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a)
Damages for Contractor's failure to meet any Guaranteed Completion Date and Contractors failure to achieve the Performance Guarantee, are difficult to determine and that the Liquidated Damages set forth in Contract including clause no. 11.0 of these GC C are appropriate measures of the damages for such delays or such shortfalls in performance and are neither penalty nor consequential damages sustained by Owner as a result of such delays and / or shortfalls. Payment of all Liquidated Damages pursuant to this clause no. 11.0 shall be subject to the limitation on liability in respect thereof set forth in clause no. 19.2 of these General Conditions of Contract.
b)
Contractor waives any defence to non performance of its obligation to pay Liquidated Damages pursuant to the Contract including this clause no. 11.0 on the ground of alleged invalidity or unenforceability of provisions relating to payment of Liquidated Damages based on any theory or law or otherwise.
c)
Amount of Liquidated Damages specified herein represent the projected commercial losses of the Owner, are fair and reasonable, are not penalties and reflect the Parties assessment and estimate of such financial losses and damages of the Owner.
11.3
In view of the foregoing, the Contractor accepts and agrees to such Liquidated Damages as liquidated damages and shall not dispute such Liquidated Damages in any proceedings under the Contract.
12.0 12.1
WARRANTIES Contractor Warranties Contractor warrants to OWNER with respect to the Performance of Work or supply of Goods that (i) all equipment and materials comprising the RELEVANT Package will be new and free from defective workmanship and (ii) the design and engineering of the RELEVANT Package shall be free from deficiencies. If OWNER notifies Contractor in Writing with adequate detail of any defects with respect to (i) above or deficiencies with respect to (ii) above in any Unit or the RELEVANT Package discovered during the applicable Warranty Period therefore, Contractor shall (a) re-perform any of the work hereunder to correct any errors, omissions, defects or deficiencies in the Unit or RELEVANT Package, and (b) in the case of any defective equipment or materials, at Contractors option either repair or replace at its Cost. ISSUE R0
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Contractor warrants to OWNER that:
a)
Adherence to the Operations Manual shall allow operation and maintenance of the Units in accordance with manufacturer's guidelines with performance at a level at least as favourable to Owner as the Performance Guarantees and such operation will not impair any Warranty in respect of Work including equipment and materials;
b)
Units supplied for the RELEVANT Package will incorporate all such modifications and improvements as their respective Manufacturer(s) may have decided to incorporate in similar generating Units as of the date of Taking-Over and the end of the Warranty Period, provided that the incorporation of such modifications and improvements may take place at such time during the Warranty Period as the parties may agree;
c)
He shall inform the Owner in Writing of the substantive information contained in all reports prepared by or credible reports received by it (Or its affiliates) or occurrences known to it (or its affiliates) prior to Bid submission and prior to the date hereof and during the Contract Period including the Latent Defects Period on operating failure or other design, operating or maintenance problem or condition with equipment using technology of the type supplied for the Main Equipment which defect, failure or condition, has had or could be expected to have adverse impact on the availability or performance of such equipment being shut down or ceasing operation for a period of at least 48 (forty eight ) hours. Contractor covenants to furnish the OWNER promptly all such further reports and information regarding occurrences of such defects, failures, problems or condition.
d)
All information, averments and data submitted, starting from the Bid and upto end of Contract Period, to Owner is correct and true. If at any later date, any of the aforesaid information, averment and data submitted is found to be false or incorrect, in part or in whole, the Contractor would be treated as a Contractor in Default as per Clause 15.0 and all consequences shall apply accordingly. The OWNER would also be entitled to recover any cost or damages from Contractor including through encashment/forfeiture of Contract Performance Bank Guarantee and deductions from amounts payable to Contractor.
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12.2 12.2.1
Warranty Period Warranty Period for each Unit shall be twenty four (24) Months from date of Provisional Acceptance of the Unit. Any parts or components of Goods or Services forming the Unit having defects which is warranted and corrected by Contractor either by way of repair or replacement shall be further warranted by Contractor for a period of twenty four (24) Months from the date such correction is effected and accepted by Owner s Representative. Notwithstanding the above, in no event shall the warranty on any part or component exceed forty eight (48) Months from the date of Provisional Acceptance (the Sun-set Date). Notwithstanding the Sun-set Date, where a recurring defect of any particular part or component results in the failure of such part or component more than twice within the appropriate Sun-set Date, such part or component shall be replaced or repaired by the Contractor until such time that such part or component has operated without failure for a period of twenty four (24) months from the date of installation of such replaced / repaired part. The above Warranties are however subject to the provision that should any scheduled inspection of a particular item of Unit/RELEVANT Package fall due within the above Warranty Periods and any part or component thereof is scheduled to be refurbished or replaced in accordance with the Operation and Maintenance Manual, then such parts are warranted only up to the date of such scheduled replacement or refurbishment. The refurbished or newly replaced parts shall thereafter be covered for under the terms and conditions agreed by the Parties with respect to such replaced or refurbished parts.
12.2.2
Latent Defects Liability Period The Latent Defects Liability Period for each Unit shall be thirty-six (36) months from the expiry of the Warranty Period for such Unit, or sixty (60) months from the date of Provisional Acceptance of each such Unit, whichever is earlier. Any such Latent Defects identified during the appropriate Latent Defect Liability Period shall be corrected and made good by the Contractor at his sole Cost.
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Should any scheduled inspection of a particular item of the Unit fall due within the Latent Defects Liability Period and any part or component thereof is scheduled to be refurbished or replaced in accordance with the Operation and Maintenance Manuals, then the warranty for such parts shall be limited up to the date of such scheduled replacement or refurbishment. The refurbished or newly replaced parts shall from this point onwards be covered for under the terms and conditions agreed by the Parties with respect to such replaced or refurbished parts.
12.2.3
OWNER shall give notice of observed defects promptly following such observation. Such notice must be given at the latest within thirty (30) Days from the end of the appropriate Warranty Period or Latent Defect Liability Period as applicable.
12.2.4
Contractors obligation to effect repairs or replacement based on Contractors Warranties shall not extend to failure caused by:
a) b) c)
normal wear and tear; failure to adhere to the Operation and Maintenance Manual; or any repair or modification initiated or undertaken by OWNER during the Warranty Period without the proper recourse to Contractor and without the Contractors knowledge or consent, which consent shall not be denied unreasonably.
12.3
Sub-Contractor Warranties No warranty obtained from any Sub-contractor shall be deemed to reduce or limit Contractors Warranties or Latent Defects liability set forth in this clause no. 12.0 or Contractors obligation to supply Goods or perform corrective work.
12.4
Survival of Warranties Warrantees and Latent Defect Liability under the contract shall survive any termination of the Contract in respect of any part of the work for which OWNER has paid Contractor.
12.5
Emergency Repairs
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In the event of an emergency where Contractor's personnel is not available on Site or cannot be on Site within an acceptable period of time and if in the judgement of OWNER the delay from giving formal notice would cause serious loss or damage which could be prevented by immediate action, defects may be corrected by OWNER or a third party designated by OWNER at the Contractors cost and expense, without giving prior notice to Contractor. In the event such action is taken by OWNER, Contractor will be notified promptly and shall assist wherever possible in undertaking the necessary corrections. The above emergency repairs shall not relieve the Contractor from liability under the terms and General Conditions of Contract.
12.6
Removal of the Defective Work If the defect or damage is such that it cannot be remedied expeditiously at the Site, Contractor may, with the consent of Owner / his Representative, remove from Site for the purposes of repair any part of the Works which is defective or damaged. If the value of part or material removed from the Site is substantial (value to be finalised at appropriate stage) as determined by the Owner/ his Representative, the Contractor shall provide security in the form of bank guarantee for a value as determined by the Owner / his Representative. In case of defective parts which are not repairable at Site but are essential for commercial operation of the equipment, Contractor and Owners Representative shall mutually agree to a program of replacement or renewal which will minimise interruptions to the maximum extent, in the operation of the equipment and the Unit/RELEVANT Package and the Contractor shall expeditiously provide necessary parts for replacement before shut down planned. The cost of any special or general overhaul rendered necessary during the warranty period due to defects in the Unit/RELEVANT Package or defective Work carried out by the Contractor, the same shall be borne by the Contractor.
12.7
Further Tests If the remedying of any defect or damage is such that it shall affect the performance of the Unit/RELEVANT Package, the OWNER may require that Tests before Take Over to be repeated to the extent necessary. The requirement shall be made by notice within 30 (thirty) Days after the defect or damage is remedied. Such Tests shall be carried out in accordance with procedures set forth in clause no. 10.0 of the General Conditions of Contract. ISSUE R0
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12.8
Right of Access The Contractor shall have the right of access to all parts of the Unit/ RELEVANT Package and to records of the working and performance of the Unit/ RELEVANT Package, except as may be inconsistent with any reasonable security restrictions imposed by the OWNER.
12.9
Contractor to Search The Contractor shall, search for the cause of any defect, under the direction of the Owner / his Representative at Contractors cost.
13.0 13.1 13.1.1
CONTRACT PRICE AND PAYMENT The Contract Price Contract Price for the entire scope of Work and supplies in line with Tender Documents shall be fixed, on lump sum basis and will remain firm throughout Contract Period. It will not vary with the change in period for Notice to Proceed. However, in case of delay in execution, the Liquidated Damages pursuant to Clause 11.1 will be recovered from the Contractor.
(i)
Contract Price for Offshore Supply Contractor shall be CIF Price of supplies from outside the Owners Country and shall be inclusive of, inter alia, design and detailed engineering which are integral to these items and their performance, essential (Mandatory) spares, special erection tools & tackles, maintenance tools and tackles, marine Insurance, freight, packing and forwarding and all taxes, duties and other statutory levies in respect thereof as detailed in the Tender Documents subject to clause no. 3.20 of General Conditions of Contract.
(ii)
Contract Price for the Onshore Supply Contract shall include the Ex Works price of supplies including essential spares, special erection tools & tackles, maintenance tools and tackles from the Owners Country and shall be inclusive of, inter alia, transportation, packing and forwarding and all taxes duties and other statutory levies and the like payable in respect thereof as detailed in the Tender Documents subject to clause no. 3.20 of General Conditions of Contract.
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(iii)
Contract Price for the Onshore Services Contract shall be inclusive of clearing unloading/loading, transportation, transit Insurance and custom clearance of offshore supplies, receiving at Site of all Goods, unloading, storage, preservation, Insurance in respect of onshore supplies from Ex Works to Site and for Works up to Take Over of Units, training, erection, testing, installation, Commissioning, Reliability Operation and satisfactory completion of the Tests before and upto the date of Take Over within Owners Country and all taxes, duties and other statutory levies and the like payable in respect thereof as detailed in the Tender Documents subject to clause no. 3.20 of GCC.
(iv)
The rates of taxes and duties as applicable as on 15 (fifteen) Days prior to closing date for submission of Price Bid shall be considered for the purpose. Contract Price of different Contracts is to be given separately for each Unit. Where common costs are involved in regard to Units, the nature of such costs, the method of allocation of such costs between the Units shall be as described by way of supporting notes annexed to the Schedule.
(v)
Total price is the sum of all the prices of aforementioned Contracts and this total price shall be in respect of supplies, work forming part of Works, and all other obligations including Warranties, Guarantees, Performance Guarantees, Insurance covered in the Specifications subject to other terms and conditions in the Contract and particularly clause no. 3.20
13.1.2
Contract describes Contractors obligation in respect of design, engineering, manufacture, supply, construction, erection, testing, installation, Commissioning and Tests before Take-Over of the Unit, but shall not relieve or derogate Contractor from obligation to take all measures necessary to deliver the Unit to OWNER in accordance with the Performance Guarantees and the intent of Tender Documents and to do and deliver and perform all such other and further Work and supplies as are necessary for completion of Unit in all respects or incidental thereto and for the Unit to meet the Performance Guarantees and the Specifications within the lump sum total price described in sub clause 13.1.1
13.1.3
Contract Price is not subject to any escalation and variation in price except as otherwise provided, it being a fixed price Contract. Any variation in Foreign Exchange during Contract Period will be to Contractors account.
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13.1.4
Contractor shall pay all taxes, duties and levies in consequence of his obligations under the Contract, and the Contract Price shall not be adjusted for such Costs, taxes, duties and levies except as may otherwise be expressly stated in clause no. 3.20 of GCC..
13.2 13.2.1
Contract Performance Security or Contract Performance Bank Guarantee Contractor shall furnish to OWNER within 14 (fourteen) Days from the date of issue of Letter of Intent (LOI) by the OWNER, a Contract Performance Bank Guarantee (the Performance Security) as a Performance Security for due and faithful performance of its obligations under Contract, as mentioned in Instructions to Bidders in format of Information Form CP, issued by Indian Nationalised Banks (or their foreign branch), scheduled bank, or issued by a reputed Foreign Bank for an amount equivalent to 15 (fifteen) % of the Contract Price. Validity of the Performance Security shall be up to end of Warranty Period plus claim period of six Months. The charges for Performance Security shall be borne by and be to Contractors account.
13.2.2
In case Contractor fails to fulfil its obligations under Contract, the proceeds of Performance Security may be appropriated by Owner as part compensation for any loss resulting from Contractor's failure to perform and fulfil the various obligations concerning supply of Goods and Work under Contract without prejudice to any of the rights or remedies to which Owner may be entitled under the Contract or otherwise in law.
13.2.3
The Performance Security shall be denominated proportionately in the currencies of the Contract.
13.2.4
Contractor shall extend the validity of the Performance Security suitably, if it is required, due to delay in Acceptance of Unit/ RELEVANT Package for reasons attributable to Contractor, at its own cost well in time and in any case at least 60 (sixty) days before the expiry of the period of validity thereof.
13.2.5
Performance Security shall also be extended suitably at least 60 (sixty) days before expiry of period of validity thereof in the event of repair / replacement of any equipment or any part thereof during Warranty Period to take care of Extended Warranty Period of repaired / replaced equipment or its part. The value of the performance security during Extended Warranty Period shall be 10 (ten) percent of cost of such repaired / replaced equipment or its part.
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13.2.6
Performance Security shall be discharged by Owner within 30 (thirty) days of the date of completion of all of Contractor's obligations including Warranty Period obligations under the Contract.
13.3
Terms of Payment Terms of payment for design, engineering, manufacture, supply, construction, erection, installation, testing and Test before Take-Over, other Services, spares and special tools and tackles etc., are detailed hereunder:
13.3.1
Advance Payment Initial advance in respect thereof in accordance with the provisions set forth in the Contract in this behalf will be paid on fulfilment of all of the following:
a) b) c)
Signing of Contract Agreement; Issue of Notice to Proceed but after obtaining statutory and regulatory approvals Submission of an unconditional Performance Security as per clause no. 13.2 of the General Conditions of Contract;
d)
Submission of a detailed Network Schedule/PERT network indicating detailed milestones based on the Work schedule and its approval by the OWNER.
e) f)
Detailed break-up of FOB / Ex-Works price of equipment components / systems; Detailed activity wise price break up for all Services including erection, commissioning, installation, testing etc and
g)
Documentation and Bank Guarantee for advance as per clause no. 13.3.2 below.
13.3.2
Documentation and Bank Guarantee for Advance Payment shall include:
a)
Ln voice for amount of advance in original and five (5) copies.
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b)
Bank Guarantee equivalent to the advance payment with 1 (one) copy of original Bank Guarantee valid upto Final Performance Acceptance of Plant issued by Indian Nationalised Banks (or their Foreign branch) or issued by a foreign Bank and counter guaranteed by Indian Nationalised Bank (or its Foreign Branch). The charges for counter guarantee/ confirmation, if any, will be to Contractors account.
c)
Bank Guarantee for advance payment shall be denominated in the currencies of Contract.
13.3.3 13.3.4
All further payments under the Contract shall be made as stipulated in the Contract. Offshore Supply Contract General Terms For supply of Goods, payments shall be linked with the despatch of Materials and shall only be made after production of all despatch Documents in case of supplies of non Indian origin as per relevant Contract conditions which will, inter alia, include 3 original Bills of Lading for CIF supplies and the equipment Material Despatch Clearance certificate issued by Owner / his Representative after inspection if applicable.
a)
Item No. 1.0 Initial advance
Supply price component for each Unit shall be paid as follows: % Component FOB Condition to be fulfilled
Time of Payment
10 (Ten) %
As per clauses 13.3.1 and 13.3.2 of these Contract. General Conditions of
2.0
Despatch
of
Goods, from
60 (Sixty) % (of relevant Goods, system price) equipment,
Production of invoices in line with approved of billing and and dispatch of Schedule and satisfactory evidence shipment submission Material Despatch Clearance
equipment/system Manufacturers Works
Certificate and Inspection Certificate to be issued by competent authority, as per Quality Manual. ISSUE R0
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of viz Offshore Goods, 15(Fifteen) relevant equipment, price) % (of Goods, system
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3.0
Receipt supplies
Verification and certification by the Owner/ his Representative of the equipment / system / Goods received and stored at Site. Certification of successful completion of commissioning/ operation of plant.
equipment, supplies
4.0
Successful Completion of Commissioning / Operation
5 (Five) %
5.0
Successful completion of Performance tests
5 (Five) %
Take-over of the Unit.
6.0
Acceptance and Issuance of Final Acceptance by OWNER.
5 (Five) %
Issuance by Owner.
of
Final
Acceptance
certificate for RELEVANT Package
b)
Ocean Freight Marine Insurance Charges shall be paid to Contractor on pro-rata basis to the FOB price of component shipped on evidence of activities having been carried out. Wherever equipment wise above mentioned charges have been identified in Contract the payment of such charges shall be based on such charges identified in Contract against evidence of activity having been carried out. However the aggregate of all such pro-rata payment shall not exceed the total amount identified in Contract Price.
13.3.5
Onshore Supply Contract; General Terms For supply of Goods, the payment shall be linked with the despatch of Materials and shall only be made after production of all despatch Documents and Material Despatch Clearance Certificate issued by Owner / his Representative after inspection if applicable.
a)
Item No.
Supply price component for each Unit shall be paid as follows: % Component Ex-Works Price Condition to be fulfilled
Time of Payment
1.0
Initial advance
10 (Ten) %
As per clauses
13.3.1 and 13.3.2 of
these General Conditions of Contract.
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2.0
Despatch
of
Goods
60 (Sixty) % (of relevant equipment, system price) Goods,
Production of invoices in line with approved billing and despatch Schedule and satisfactory evidence of shipment and submission of Material despatch Clearance Certificate and Inspection Certificate to be issued by competent authority as per Quality Manual.
equipment/system
3.0
Receipt of Onshore supplies viz Goods, equipment, supplies
15 (Fifteen) % of relevant equipment, system price) Goods,
Verification and certification by Owner / his Representative of site. equipment / system / Goods received and stored at
4.0
Successful
Completion
of
5 (Five) %
Certification of successful completion of commissioning / operation of plant by Owner.
commissioning/Operation
5.0
Successful completion of Performance tests
5 (Five) %
Take-over of the Unit
6.0
Acceptance and Issuance of Final Acceptance by OWNER.
5 (Five) %
Issuance
of
Final
Acceptance
Certificate for RELEVANT Package.
b)
Freight Charges shall be paid to Contractor on pro-rata basis to the Ex Works price of component transported on evidence of activities having been carried out. Wherever equipment wise above mentioned charges have been identified in Contract the Payment of such charges shall be based on such charges identified in Contract against evidence of activity having been carried out. Contract Price. However, the aggregate of all such pro-rata payment shall not exceed the total amount identified in
13.3.6
Onshore Service Contract - General Terms ISSUE R0
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DEFINITIONS OF THE TERMS AND PRELIMINARY CONDITIONS OF CONTRACT a)

Design and Detailed Plant Engineering :
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Design and detailed Plant Engineering price for each Unit will be paid as per detailed break-up as set forth in the Contract after issue of certification of completion of same by Service Contractor to Owner and acceptance thereof by Owner / his Representative in following instalments:
(i)
10 (Ten)% of Design and detailed Engineering as initial advance on fulfilment of conditions in sub- clauses 13.3.1 and 13.3.2
(ii)
30 (Thirty)% of Design and detailed Engineering on submission of design engineering documentation, Process and Instrumentation Drawings, plot plan of RELEVANT Package, General arrangement Drawings, single line diagram, design criteria and sizing calculations, investigation reports etc. List shall be prepared by Contractor and approved by OWNER/Owners Consultant..
(iii) 10 (Ten)% of Design and detailed Engineering on submission of design

engineering documentation, as final documentation of (ii) above, including soft copies and progressive submission of piping Drawings, motor list, instrument list, pipeline reference list, sub-vendor Drawings, etc.
(iv) 15 (Fifteen)% of Design and detailed Engineering on submission of design

engineering documentation, instrumentation logic diagrams including set points, etc., erection and Commissioning Manuals and balance documentation..
(v)
10 (Ten)% of Design and detailed Engineering on submission of all O&M Manuals complete in all respects.
(vi) 10 (Ten)% of Design and detailed Engineering on final approval of all

documentation and submission of all necessary documentation to make the documentation complete.
(vii) 5 (Five)% of Design and detailed Engineering on certification of successful

completion of Reliability Operation of the Unit.
(viii) 5 (Five)% of Design and detailed Engineering on Take over of the Unit.
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(ix) 5 (Five)% on Acceptance and Issuance of Final Acceptance Certificate for

RELEVANT Package i.e. comprising all Units Service Contractor acknowledges that certification or its acceptance by Owners Representative shall not, however relieve or absolve in any way or manner the Contractor from the performance of Work and other obligations under the Contract including Guarantee and Warranty obligations under the Contract. Note: Payment shall be made based on detailed billing schedule prepared by Contractor and approved by Owner for (ii), (iii), (iv), (v) and (vi) above
b)
The clearing and forwarding of Offshore Supplies: Insurance and transportation from port to Site of Offshore Supplies, Insurance of Onshore Supplies upto Site shall be paid to Contractor on pro-rata basis to the FOB/Ex Works price of component transported on evidence of activities having been carried out. Wherever equipment wise above mentioned charges have been identified in Contract, the payment of such charges shall be based on such charges identified in Contract against evidence of activity having been carried out. However the aggregate of all such pro-rata payment shall not exceed the total amount identified in Contract Price.
c)
Erection, installation and Commissioning. In case of erection, installation and Commissioning progress payments for each Unit shall only be made after the issue of Certificates by Owner / his Representative, as detailed under:
(i)
10 (Ten)% of total erection, installation, Commissioning and other residuary Services price as initial advance and fulfilment of conditions in sub-clauses 13.3.1 and 13.3.2 above and on establishment of Site office by the Contractor at Site.
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(ii)
75 (Seventy five)% of the erection, installation, Commissioning and other residuary Services price will be made as progressive payments against progressive erection, installation, Commissioning and other residuary Services for mechanical, electrical and instrumentation equipment and systems based on detailed billing schedule prepared by Contractor and approved by OWNER. Progress payments shall only be made after the issue of Certificates by Owner, one for the quantum of Work completed and the other by the Field Quality Surveillance representative for the successful completion of quality check points involved in the quantum of Work billed.
(iii)
5 (Five)% of erection, installation, Commissioning and other residuary Services price on successful commissioning of Unit.
(iv)
5 (Five)% of erection, installation, commissioning and other residuary Services on Final Acceptance and Take over of the Unit
(v)
5 (Five)% on Acceptance and Issuance of Take over Certificate by Owner for Entire RELEVANT Package i.e. comprising of Unit.
13.3.7
Essential spares, recommended spares and maintenance tools and tackles price.
a)
The Total Price of essential spares, recommended spares and maintenance tools and tackles shall be paid as indicated below:
(i)
75 (Seventy five) % of price component for essential spares, recommended spares and maintenance tools and tackles after submission of Material Despatch Clearance to be issued in line with the agreed despatch schedule and inspection certificate issued by the competent authority, despatch to Site and submission of shipping Documents.
(ii)
25 (Twenty five)% of price component for essential spares, recommended spares and maintenance tools and tackles on receipt and storage at Site and physical verification by the Owner / his Representative.
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13.3.8
Schedule of Payments. Based on the terms of payment as per clause 13.3 and agreed Work and supply schedule prepared in line with detailed network schedule, payment of Contract Price shall be subject to limits of Milestone Payment Schedule and the following in respect thereof.
a)
Milestone Payment Schedule may be modified by Owner / his Representative if progress is not as scheduled.
b)
Later of (i) accomplishment of a milestone and (ii) the date fixed for accomplishment of such a milestone as set out in the Milestone Payment Schedule.
c) d)
Submission of documentation / data to Owner / his Representative for approval. Submission of Monthly Progress Reports and updated Network Schedule
13.4
Application for Interim Payment Certificates and Claim for Payments ( In this subject, please see paras 1.0 to 3.0 of Section XII Part 1 of Volume IV under Chapter Programme of Work )
13.4.1
Contractor shall submit a statement, " Interim Payment Certificate", in six copies to the Owner / his Representative after the end of each month before the tenth day of the next month, in a form approved by Owner / his Representative, showing the amounts to which the Contractor considers himself to be entitled, together with supporting Documents which shall include the detailed report on the progress during the month in accordance with clause no. 3.19. The statement shall include the following items, as applicable, which shall be expressed in the currencies in which the Contract Price is payable, in sequence listed:
a)
Estimated Contract value of the design and construction Documents produced and the Works executed up to the end of the month (including variations but excluding items described in sub-paragraphs (d) to (f) below);
b)
Certification from Owner / his representative that the applicable Work or supply of Goods has been performed and that the quality of Goods or Work described in the Interim Payment Certificate is in line with Contract;
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c)
If there is any pending or threatened dispute, regarding Goods or Work covered by such request or payment as a result of which Contractor intends to withhold payment from such Sub-Contractor, a report detailing such dispute and circumstances thereof;
d)
Any amounts to be added and deducted for Change in Law or variation in tax as per clause 0.
e)
Any other additions or deductions which may have become due in accordance with Contract (including those under clause no. 22.0 of these General Conditions of Contract), other than those under clause no. 11.0 above; and
f) g)
Deduction of the amounts certified in all previous Interim Payment Certificates. Any other information that the Owner / his Representative may reasonably request.
13.4.2 13.5 13.5.1
Contractor shall raise its consolidated invoices / bills only once a month. Mode of Payment Mode of payment to the Contractor shall be mutually agreed to after approval of financing plan by the Lenders.
13.5.2
Owner shall pay the amount certified in each Interim Payment Certificate within 30 days from the date on which Owner / his Representative received the Contractor's statement and supporting Documents and Owner shall pay the amount certified in the Final Payment certificate within 120 days from the date of issue of Take-over certificate.
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13.5.3
Pursuant to this clause no. 13.0, if the commercial banks are closed due to a public holiday, period as above shall be extended to the first business day after the end of the period concerned. In addition, unless the parties otherwise agree Owner shall not be obligated to pay, in respect of any request for payment, any amount in excess of amount anticipated to be paid for Work or supply of Goods completed in such date. If any request for payment does not comply in all Material respects with this clause no. 13.0, Owner shall inform Contractor about the same within 15 days following the receipt of such request for payment, and Contractor shall re-submit such request for payment. If less than the full amount is paid, Owner shall state in writing the reasons for paying such lesser sum. Any dispute shall be dealt with under clause no. 22.0 below and shall not be a basis for withholding payment of any undisputed amount. Any dispute regarding Owner's payment of a lesser sum than that set forth in a request for payment must be raised by Contractor within 30 days of receipt of such payment, or Contractor's right to dispute such payment is waived. During pendency of any such Dispute and the resolution thereof, Contractor shall continue to perform the Work in accordance with the provisions set forth herein.
13.6
Delayed Payment If payment of any sum payable is delayed beyond additional 60 days for reasons solely attributable to Owner, the Contractor shall be entitled to receive simple interest charges on the amount unpaid during the period of delay. These interest rates shall be calculated at the rate of one percentage points above the short term Prime Lending rates of State Bank of India. The Contractor shall be entitled to such payment without formal Notice and without prejudice to any other right or remedy.
13.7
Deductions from Contractors Bills/Payments Withheld
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13.7.1
All costs, damages or expenses, which Owner may have paid, for which under the Contract the Contractor is liable, will be claimed by Owner. All such claims shall be billed by Owner to Contractor regularly as and when they fall due. Such bills shall be supported by appropriate and certified vouchers or explanations, to enable the Contractor properly identify such claims. Such claims shall be paid by the Contractor within 15 (fifteen) Days of the receipt of the corresponding bills and if not paid by Contractor within said period, Owner may the deduct Contractor under amount, from any monies due or becoming due by him to Contract or may be recovered by actions of Law or otherwise, if
Contractor fails to satisfy Owner of such claims.
13.7.2
Owner shall have the right to withhold from any payment due to Contractor, including the final payment, such amounts as Owner reasonably deems necessary or appropriate to protect it because of any one or more of the following reasons:
a)
Defects in any Work, which might affect Owner's ability to operate Unit or RELEVANT Package as contemplated herein, whether or not payment has been made there for;
b)
The filing of any vendor / tradesmans lien or similar encumbrance in respect of the Work or the RELEVANT Package (or any portion thereof);
c)
A dispute as to the accuracy or completeness of any request for payment received by OWNER pursuant to this clause no. 13.0 within 90 Days of receipt thereof or payment made there under;
d)
Contractor's failure to deliver any Performance Securities to Owner as contemplated by clause no. 13.2
e)
Any requirement in accordance with Applicable Laws to withhold any Taxes payable by Contractor in respect of the Goods/Work or any part thereof;
f)
Contractor's failure to make payments to Sub-contractors or Workers for Work or supply of Goods or to any statutory & Regulatory authority including amounts withheld by Contractor because of disputes between Contractor and such Persons.
g)
Any legal cases, litigations pending against
Contractor or against
Owner but
relating to the Works or Contractors obligations under the Contract. ISSUE R0
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Any breach of warranties contained in the Contract
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h)
13.7.3
In addition to the provisions of this clause no. 13.7 which relates to the recovery by Owner of any amounts that Owner may have paid, for which Contractor is liable under Contract, Owner shall also be entitled to recover all the dues in terms of Contract including Liquidated Damages for delay, Liquidated Damages for the shortfall in guaranteed performance parameters, etc., by way of deductions from the payments due to Contractor or that may become due to Contractor in future or from any securities / guarantees under the Contract and / or otherwise.
13.7.4
Notwithstanding any dispute that Contractor may have, and regardless of the basis thereof or grounds there for, Contractor agrees that it will, for so long as the Contract has not been terminated diligently prosecute the Work up to Final Performance Acceptance and Takeover of RELEVANT Package, all in accordance with the terms of the Contract.
13.7.5
Any payment due to Owner by the Contractor and remaining unpaid beyond the stipulated date shall be liable to interest payment at the rate of 1(one) percentage point above the short term Prime Lending Rate of State Bank of India from the date of due to Owner to date of receipt of dues from Contractor by Owner.
13.8 13.8.1
Final Performance Acceptance and Contractor' Request for Final Payment s Prior to Final Performance Acceptance of RELEVANT Package, Contractor shall submit to Owner / his Representative, a final Request for Payment. Contractor shall, prior to or concurrently with that request,
a)
Provide certification to Owner / his
Representative that every liability to Sub-
Contractors, Workers and other Persons incurred by or for Contractor on account of the supply of Goods or performance of the Work of such RELEVANT Package has been duly paid, discharged or waived, together with releases and waivers of liens effective under Applicable Law and in form and substance satisfactory to Owner from all the foregoing (to the extent such releases and waivers have not already been delivered to Owner);
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b)
Provide Certificate to Owner that all statutory and regulatory liabilities have been settled with regard to supply or Work in respect of the Contractor and Sub-Contractor and there are no claims or demands pending from such authorities. The Contractor further undertakes that in the event of unpaid liability or unsettled claim, the Contractor shall pay the same.
c)
Furnish to Owner / his Representative a sworn statement setting forth in reasonable detail each liability to Sub-contractors and other Persons which are disputed by Contractor and which Contractor knows or has reason to believe may thereafter be disputed on account of the performance of the Work of such RELEVANT Package;
d) e)
Furnish to OWNER the documents required by Sub-clause 0 and Prepare with Owner / his representative a Punch List of all items, which remain to be finished, corrected or otherwise performed. Promptly after preparation of the Punch List Items, Owner / his Representative shall mutually agree on the amount of money due on account of the pending items of the Punch List to be withheld from the payment due to Contractor and date of completion shall be as per clause no. 0 above. Punch List reserve shall in no event exceed 150 (one hundred and fifty) % of the aggregate value of Punch List Items, as reasonably determined by Owner / his Representative.
Any final request for payment which does not satisfy all of the conditions set forth above does not constitute a valid and proper final request for payment and OWNER shall not have any obligation to make any payment there under.
13.8.2
Within 120 (One hundred and twenty) Days following the Final Performance Acceptance of RELEVANT Package and issue of Final Acceptance certificate, and Owners receipt of a valid final request for Payment, Owner shall pay the Contract Price then unpaid plus all other net amounts then owed by Owner RELEVANT Package, less to Contractor in connection with such
a)
The Punch List reserve,
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b)
Such amount as Owner deems reasonably necessary to pay each liability then outstanding against Contractor on account of the Supply of Goods or Performance of Work of such RELEVANT Package, together with any amounts withheld from the Final Payment pursuant to clause no. 13.8 above (collectively, the Claims reserve) and
c)
The amount of any Liquidated Damages payable and paid determined in accordance with clause 11.0 above.
The Claims Reserve shall be held by the OWNER until Contractor provides OWNER with:
(i)
Satisfactory evidence that each of the foregoing underlying liabilities has been duly paid, discharged or waived or
(ii)
A letter of credit satisfactory in amount, form and substance to OWNER to indemnify OWNER against the same or otherwise a Bank Guarantee in a format acceptable to OWNER from a bank as prescribed for Contract Performance Guarantee.
13.8.3
All payments made during be Final Payment.
Contract including
Final payments shall be on account
payments only till release of Contract Performance Guarantee, which shall be construed to Final Payment will be made on completion of all the Works and of fulfilment of all obligations under Contract by Contractor.
13.8.4
The Final payments to the Contractor on successful completion of performance and Guarantee Tests shall be subject to the Contractor having cleared all his dues to the OWNER under the Contract as also all of his Sub-Contractor/Sub-vendors and having paid all the statutory liabilities.
13.8.5
All payments to be made by Owner under the Contract shall be subject to compliance by the Contractor of all statutory requirements as may be applicable.
13.9
Punch List Items
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Contractor shall perform all Work required or appropriate for all Punch List Items within a Schedule to be mutually determined by Contractor and Owner after submission of the Final Request for Payment in accordance with clause no. 13.8 above. Such Schedule shall provide for completion of all Punch List Items as soon as practicable following determination of the completion schedule, but no later than the date set forth in clause no. 10.6 above. Upon completion of the Punch List Items, Contractor may submit to Owner and his Representative a request for release of the Punch List Reserve and shall furnish with such a request a certificate that all Punch List Items have been completed. Unless Owner disputes a charge or statement in such request or certificate, Owner shall release the Punch List Reserve to Contractor within 30 (thirty) Days after receipt of Contractor's request therefore given in accordance with the foregoing sentence of this clause no. 13.9.
13.10 13.10.1
Effect of Payment No payment and no partial or entire use or occupancy of RELEVANT Package by Owner shall:
a) b)
Be deemed a representation that OWNER has inspected the RELEVANT Package; Constitute or be deemed an acceptance, in whole or in part, of any portion of the Work or the RELEVANT Package; or
c)
Operate to release Contractor from any obligations or Liabilities under the Contract.
13.10.2
Final Payment shall be deemed to release Contractor from all obligations hereunder except those in respect of Owner acceptance of such RELEVANT Package, Contractor's Guarantees and Warranties regarding the RELEVANT Package, the indemnification and any other obligations under the Contract, which by their terms can be deemed to survive beyond the Final Payment.
13.11
Release
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The acceptance by Contractor of payment pursuant to clause no. 13.8 above shall, to the fullest extent permitted by law, operate as a release by Contractor to Owner of all liability of Contractor and any Sub-contractor or any other Person who supplied the Goods or performed Work or cause the Goods to be supplied or Work to be performed, directly or indirectly, on behalf of Contractor and from any further payment for all things done or furnished in connection with the Work, except for and to the extent of (i) amounts withheld under clause no. 13.8.2 above or (ii) any unresolved payment disputes between Contractor and Owner which have not been resolved prior to receipt of the Final Payment.
14.0
CHANGE ORDERS A Change Order shall be issued by the Owner / Project Manager in accordance with this clause 14.0, when either latter or Contractor proposes to make any change in the Services, Contract Price, the Performance Guarantees and/or the Schedule.
14.1
Further Detailing not a Change Order Contractors performance of Services shall be subject to further detailing from time to time and Contractor shall receive no additional compensation for such detailing to the extent that such detailing does not constitute a Change Order.
14.2 14.2.1
Right to Change Order Change Orders may be initiated by Owner / his Representative at any time during the Contract Period, either by instruction or by a request (the Change Order Notice) to the Contractor to submit a proposal. If Owner requests Contractor to submit a proposal and subsequently elects not to proceed with change, Contractor shall not be reimbursed for Cost incurred for proposal.
14.2.2
Contractor shall not make any alteration and/or modification of Services unless and until Owner / his Representative instructs or approves a Change Order in Writing.
14.2.3
Change Orders may be requested by Contractor ( Change Order Request) (i) in case his performance of Services is affected by any Change in Laws or any act or omission of Owner, his Representative or Other contractors, or (ii) to propose any change which in Contractors opinion will reduce cost of constructing, maintaining or operating the RELEVANT Package or otherwise be of benefit to OWNER. ISSUE R0
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14.3 14.3.1
Change Order Procedure If Owner/ his Representative issues a Change Order Notice, the Contractor shall submit a proposal addressing the following, within fifteen (15) Days or any other period as mutually agreed:
a)
a description of the proposed design and/or work to be performed, and a programme for its execution together with supporting details and calculations;
b) c)
Contractors proposal for any necessary modifications to the Schedule; Contractors proposal for any adjustment to Contract Price, Guaranteed Completion Dates, Performance Guarantees and/or modifications to the Contract.
14.3.2
If Contractor seeks a Change Order Request, he shall submit a proposal addressing the following:
a) b)
the reasons for the request with supporting details / documents; a description of the design and/or work affected or proposed to be performed, together with programme for execution and other supporting details / calculations;
c) d)
the Contractors proposal for any necessary modifications to the Schedule; the Contractors proposal for any adjustment to Contract Price, Guaranteed
Completion Dates, Performance Guarantees and/or modifications to the Contract.
14.3.3
Owner / his Representative shall respond with approval, rejection or comments within a period to be mutually agreed after receipt of such proposals.
14.3.4
If Owner / his Representative instructs or approves in Writing a Change Order, he shall proceed with adjustments to Contract Price, Schedule of Payments, Performance Guarantees and/or Guaranteed Time for Completion.
14.3.5
Contractor shall not suspend performance of this Contract during review and negotiation of any Change Order, except as may be directed by Owner or required by Applicable Law
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14.3.6
Payment in respect of the approved Change Orders shall be released by Owner to the Contractor on satisfactory completion of such Change Order and its certification by the Owners Representative in the same manner as applicable to corresponding milestone payments under the Contract.
15.0 15.1
TERMINATION BY THE OWNER Termination for Convenience Owner shall be entitled to terminate the Contract at Owner/s convenience, at any time by giving thirty (30) Days prior notice to the Contractor. Such notice of termination shall specify that termination is for Owners convenience and the date upon which such termination becomes effective. Upon receipt of such notice, the Contractor shall proceed as follows:
(i)
cease all further work, except for such work as may be necessary and instructed by Owner / his Representative for the purpose of making safe or protecting those parts of the Services already executed, and any work required for leaving the Site in a clean and safe condition;
(ii)
stop all further sub-contracting or purchasing activity, and terminate Sub-contracts;
(iii) handover all Documents, equipment, materials and spares relating to the
RELEVANT Package prepared by the Contractor or procured from other sources up to the date of termination for which the Contractor has received payment equivalent to the value thereof;
(iv) handover those parts of the RELEVANT Package executed by Contractor up to the
date of termination; and
(v)
remove all Contractors Equipment, which is on Site and repatriate all his staff and labour from the Site.
15.2 15.2.1
Termination for Default by Contractor Notice to Correct
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If the Contractor fails to carry out any of his obligations, or if the Contractor does not execute the Services in accordance to the Contract, the Owner / his s Representative may give notice to the Contractor requiring him to make good such failure. The Contractor shall remedy the same or take reasonable action to remedy the same within fifteen (15) Days from date of such notice. If the Contractor:
a) b) c)
fails to comply with a notice under sub-clause 15.2.1, or abandons or repudiates the Contract, or without reasonable excuse fails to commence or proceed with the Services in accordance with the Contract, or
d)
becomes bankrupt or insolvent, goes into liquidation, has a receiving or administration order made against him, compounds with his creditors, or carries on business under a receiver, trustee or manager for the benefit of his creditors, or if any act is done or event occurs which (under any Applicable Law) has a similar effect to any of these acts or events, or
e) f) g)
assigns the Contract without the required consent of Owner, or fails to comply with Applicable Laws and/or Applicable Permits, or is in material breach of the Contract,
Then Owner may, without prejudice to any other right or remedy Owner may have under the Contract after having given thirty (30) Days notice to the Contractor, terminate the Contractors employment under the Contract, should Contractor fail to rectify within such notice period or commence to rectify the defaults within fifteen (15) Days of receipt of such notice from Owner; provided always that in the case of paragraph (d) above, the termination shall become effective on Owner issuing the notice of termination.
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Upon termination, Owner shall automatically without the necessity of any further action by the Contractor stand subrogated to the interests of Contractor in or under any Subcontracts. Owner shall succeed Contractor in all Sub-contracts and Owner shall compensate the Sub-contractors under such Sub-contracts compensation becoming due and payable under their agreements with Contractor from and after the date Owner decides to succeed to the interests of the Contractor. Contractor shall simultaneously deliver all Documents relating to RELEVANT Package prepared by Contractor or procured from other sources up to the date of termination to Owner. Upon termination, if requested by Owner, Contractor shall withdraw from the Site and shall remove as directed by Owner any debris or waste materials (including any hazardous substances) generated by Contractor in performance of the Services. Owner may take possession of any and all materials, documents, purchase orders, correspondence and schedules that Owner deems necessary to complete RELEVANT Package. Owner is also free to take possession of and use Contractors Equipment at Site free of any cost. Rights and authorities conferred on Owner / his Representative by Contract shall not be affected by such termination. Contractor shall not be released from any of his obligations or liabilities accrued under the Contract. For the avoidance of doubt, the termination of Contract in accordance with this clause shall neither relieve Contractor of his accrued obligations for Warranty or Latent Defects or his accrued liability to pay Liquidated Damages for Delay and/or Performance nor shall entitle him to reduce the value of Contract Performance Security.
15.2.2
Owner may upon such termination complete the RELEVANT Package himself and/or by employing any other contractor. Owner or such other contractor may use for such Contractor, Contractors completion such of the Documents made by or on behalf of
Equipment, Temporary Works, plant and materials as he or they may think proper. Upon completion of the Services, or at such earlier date as Owner / his Representative thinks appropriate, Owner / his Representative shall give notice that the Contractors Equipment and Temporary Works will be released to Contractor at or near Site. Contractor shall remove or arrange removal of the same from such place without delay and at his cost.
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15.2.3
Upon termination, if Owner is of the opinion that he is not able to complete RELEVANT Package himself or with help of other Contractors, he may reject such incomplete Works. In such event, Owner shall recover all money paid to Contractor for the incompleted /rejected parts of RELEVANT Package. Contractor shall also dismantle and dispose off the rejected/incomplete Works and also clear the Site at his cost. If he fails to do so, Owner will dismantle and dispose off the rejected incomplete RELEVANT Package and clear the Site at Contractors Cost and risk and recover all expenses incurred in this regard from Contractor.
15.3 15.3.1
Payment after Termination After termination under clause no. 15.2 above, Contractor shall not be entitled to any
further payment under the Contract, except that, if Owner completes RELEVANT Package and the costs of completion are less than the Contract Price, Owner shall pay Contractor an amount properly allocable to Services fully performed by Contractor prior to termination for which payment was not made to Contractor or a Sub-contractor, upon completion of the RELEVANT Package by Owner.
15.3.2
Owner shall be entitled to recover from Contractor the extra costs, if any, of completing Works. In addition, Owner shall be entitled to exercise any rights or remedies available to Owner hereunder or at law or in equity.
15.4
Bribes If Contractor, or any of his Sub-Contractors, agents or servants gives or offers to give or promises to give to any Person any bribe, gift, gratuity or commission as an inducement or reward:
a) b)
For doing or forbearing to do any action in relation to the Contract, or For showing favour or disfavour to any Person in relation to the Contract
then Owner may, after having given 15 (fifteen) Days' Notice to Contractor, terminate Contractor's employment under this Contract and also expel him from the Site. Effects of termination contained in clause 15.2 above shall apply mutatis mutandis to termination under this clause. In addition he will also be subjected to any criminal liability, which it may incur, and payment of loss or damage to Owner resulting from any cancellations. ISSUE R0
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16.0 16.1 16.1.1
DEFAULTS AND REMEDIES Contractors Entitlement to Suspend Work or supply of Goods If Owner fails to certify a payment or pay Contractor the amount due and fails to explain why the Contractor is not entitled to such amount, within 120(One hundred and twenty) Days after the expiry of time stated in clause no. 13.0 above within which payment is to be made, except for any deduction that Owner is entitled to make under Contract, Contractor may suspend Work or supply of Goods or reduce the rate of Work after giving not less than 60 (sixty) Days' prior Notice to 16.2 below. Owner. Such action shall not prejudice Contractor's entitlements to payment under clause no. 13.0 above and to terminate under clause no.
16.1.2
If the Contractor suspends Work or supply of Goods or reduces the rate of Work, and the OWNER subsequently pays the amount due, the Contractor's entitlement under clause no. 16.2below shall lapse in respect of such delayed payment, unless Notice of termination has already been given, and Notice period of 60 (sixty) Days has expired and the Contractor shall resume Work.
16.2
Termination If Owner:
a)
Fails to pay Contractor the amount due within 180 (One Hundred and Eighty) Days after the expiry of the time stated in clause no. 13.0 above within which payment is to be made (except for any deduction that Owner is entitled to make under Contract or any disputed amount), or
b)
Becomes bankrupt or insolvent, goes into liquidation, has a receiving or administration order made against him, compounds with his creditors, or carries on business under a receiver, trustee or manager for the benefit of his creditors, or if any act is done or event occurs which (under any applicable law) has a similar effect to any of these acts or events, or
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c)
If a prolonged suspension affects the whole of the Works as described in clause no. 9.6 above, then the Contractor may terminate his employment under Contract by giving Notice in Writing to Owner, and Financing parties subject to clause no. 16.3 below.
16.3 16.3.1
Notice of Right to Cure Notwithstanding anything to the contrary in this Contract, Contractor shall not be entitled to terminate this Contract unless:
a)
Contractor gives Written Notice to Owner and Financing parties which specifies the default and
b)
Owner or Financing parties shall within 120 (One Hundred and Twenty) Days after such Notice fail to cure any such default, other than the default mentioned clause 16.2 (a) above in which case the termination shall become effective on Contractor issuing the notice for termination.
16.3.2
Cure by Financing parties may include:
a) b) c)
Causing OWNER to cure; or Curing themselves Seeking foreclosure of all or part of the Plant.
16.4 16.4.1
Cessation of Work and Removal of Contractor' Equipment s After termination under clause 16.2 above, the Contractor shall:
a)
Cease all further Work, except for such Work as may be necessary and instructed by the Owner / his Representative for the purpose of making safe or protecting those parts of the Works already executed, and any Work required to leave the Site in a clean and safe condition,
b)
Handover all Design Documents, Construction Documents, Manuals, equipment, Materials and spares for which the Contractor has received payment,
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c)
Hand over those other parts of the Works executed by the Contractor upto the date of termination, and
d)
Remove all Contractor's equipment, which is on the Site and repatriate all his staff and labour from the Site.
16.4.2 16.5 16.5.1
Any such termination shall be without prejudice to any other right of Contractor.. Payment on Termination After termination under clause no. 15.1 or clause 16.2 above, Owner shall return the initial Advance Bank Guarantee and Contract Performance Security, (except to extent required for the surviving obligations of the Contractor) and shall pay Contractor an amount calculated and certified in accordance with clause no. 20.6 and sub contractor cancellation charges.
16.5.2
Survival of Obligations Notwithstanding anything to the contrary contained herein, any termination of this Contract shall not relieve:
a)
Either Party of its obligations with respect to confidentiality as set forth in this Contract,
b)
Either Party of any obligations hereunder which expressly survives termination hereof, and
c)
Either Party of its obligations or liabilities for loss or damage to the other party arising out of or caused by acts or omissions of such First party prior to the effectiveness of such termination or arising out of such terminations and shall not relieve Contractor of its obligations and liabilities for portions of the Work already performed prior to the date of termination.
17.0 17.1
INDEMNIFICATION General Indemnity
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17.1.1
Contractor shall fully indemnify, save harmless and defend Owner, his shareholders, Representative, Directors, agents and employees (the Owner Indemnified Parties) from and against any and all claims, including reasonable legal costs, (collectively Damages) by third parties in respect of death or bodily injury or in respect to loss or damage to any property (other than Plant or part thereof not yet taken over) which arises out of or in consequence of Services whilst Contractor has responsibility for care of works to extent resulting from Contractors or any Sub-Contractors or their agents or employees intentional act, negligence, or strict liability or omission in performance of hereunder; provided t the foregoing obligation shall not apply to extent Owner Indemnified Parties are contributory negligent or strictly liable or to extent such damages are caused by the intentional acts or omissions of Owner Indemnified Parties. Services
17.1.2
Owner shall fully indemnify, save harmless and defend Contractor and its shareholders and the directors, agents and employees of Contractor (the Contractor Indemnified Parties), from and against any and all claims, including reasonable legal costs, (collectively Damages) by third parties in respect of death or bodily injury or in respect to loss or damage to any property which arises out of or in consequence of execution of Project to the extent caused by Owners or his other contractors strict liability, intentional act or omissions or negligence; provided that the foregoing obligation shall not apply to extent Contractor Indemnified Parties are contributory negligent or strictly liable or to the extent such damages are caused by Indemnified Parties. intentional acts or omissions of Contractor
17.2 17.2.1
Specific Indemnification Contractor shall fully indemnify, save harmless OWNER Indemnified Parties from and against any claim, demand, liability, action, proceedings, cost or expense in favour of any third party with respect to:
a)
Failure of Contractor, any Sub-Contractor or any of their respective SubContractors to comply with Applicable Laws and Applicable Permits, Prudent Utility Practices and Good Engineering Practices.
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b)
Failure of Contractor to make payments of taxes relating to Contractor's, any SubContractor's income or other taxes required to be paid by Contractor pursuant to this Contract irrespective of whether they are reimbursable or to be compensated under the terms of this Contract.
c)
Any Hazardous Materials Contractor or any of his Sub-Contractors has at any time brought on and caused the release thereof on or from the Site or for which any of them is responsible by law or in the Contract.
17.2.2
Owner shall fully indemnify, save harmless and Contractor Indemnified Parties from and against Damages in favour of any third party with respect to:
a)
Failure of Owner or any of its Other Contractors to comply with Applicable Laws and Applicable Permits.
b)
Any Hazardous Materials of Owner, or any of its Other Contractors (other than Offshore Supply Contractor, Onshore Supply Contractor, and Onshore Services Contractor, and the Sub-Contractors) has brought on and caused the release thereof from the Project Site.
17.3 17.3.1
Intellectual Property Indemnification In performing the Services, Contractor shall not incorporate into the RELEVANT Package, or use in connection with the RELEVANT Package or the performance of the work, any materials, methods, processes, systems or service that involve the use of any confidential information, intellectual property or proprietary rights that Contractor does not have the right to use or incorporate or which may result in claims or suits against OWNER, Contractor or any Sub-contractor arising out of claims of infringement of any third party, domestic or foreign patent rights, copyrights, other proprietary rights, or intellectual property rights, licenses or agreements, or applications for any thereof, or rights of use of confidential information.
17.3.2
Contractor shall provide Owner with royalty free license for the sole purpose to operate and maintain the RELEVANT Package.
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17.3.3
Contractor shall fully indemnify and save harmless and defend Owner Indemnified Parties from and against any and all Damages that Owner Indemnified Parties may suffer, incur or pay by reason of any claims or suits arising out of claims of infringement of any patent rights, copyrights or other intellectual property, proprietary or confidentiality rights with respect to equipment, designs, techniques, processes and information designed or used by Contractor or any sub-Contractor in performing the Work or supply of Goods hereunder or under the Sub-Contracts in any way incorporated in or related to the Project other than any such equipment, designs, techniques, processes and information provided by Owner Indemnified Parties.
17.3.4
If, in any suit or claim relating to the foregoing, a temporary restraining order or preliminary injection is granted, Contractor shall make every effort to secure the suspension of the injunction or restraining order. If, in any such suit or claim or any part, combination or process thereof, is finally held to constitute an infringement and its use is permanently enjoined, Contractor shall promptly make every reasonable effort to secure for Owner a license, at no Cost to Owner, authorising continued use of the infringing Goods or Work. If Contractor is unable to secure such license within a reasonable time, Contractor shall, at its own expense and without impairing performance requirements, either replace the affected Goods or Work, or part, combination or process thereof with non-infringing components or parts or modify the same so that they become noninfringing.
17.3.5
Final payment to Contractor by Owner will not be made while any such suit or claim remains unsettled.
17.4 17.4.1
Notice and Legal Defence Promptly after receipt by a party of any claim or Notice of the commencement of any action, administrative or legal proceeding, or investigation as to which the indemnities provided may apply, such Party shall notify the other Party in Writing of such fact provided that the failure of a Party to give any such Notice promptly shall not excuse the indemnifying party from its indemnification obligations hereunder except to the extent any such failure actually prejudices the indemnifying Party in the defence of such matters.
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17.4.2
The indemnifying Party shall assume on behalf of the indemnified Party and conduct with due diligence and in good faith the defence thereof with counsel reasonably satisfactory to the indemnified Party; provided that the indemnified Party shall have the right to be represented therein by advisory counsel of its own selection and at its own expense; and provided, further, that if the defendants in any such action include both the indemnifying Party and the indemnified Party and the indemnified Party shall have reasonably concluded that there may be legal defences available to it which are different from or additional to, or inconsistent with, those available to the indemnifying Party, the indemnified Party shall have the right to select separate counsel to participate in the defence of such action on its own behalf at the indemnifying Party's expense.
17.4.3
Indemnified Party shall, at request of indemnifying Party, provide all reasonably available assistance in the defence or settlement of any such claim, action, proceeding or investigation, and all reasonable costs and expenses incurred by the indemnified Party in connection with the defence or settlement of any such claim, action, proceeding or investigation shall be reimbursed by indemnifying Party promptly upon demand thereof. Indemnified Party shall not settle or compromise any claim, action or proceeding without the prior Written consent of indemnifying Party such consent not to be unreasonably with held.
17.5
Failure to Defend Action If any claim, action, proceeding or investigation arises as to which the indemnities provided may apply, and the indemnifying Party fails to assume the defence of such claim, action, proceeding or investigation, then the indemnified Party may at the indemnifying Party's expense contest or settle such claim.
17.6
Survival: Expiration of Indemnity
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shall survive final acceptance or
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Provision of this Clause 17.0
termination of this
Contract; provided that neither Party shall have any indemnity obligations pursuant to this for any claim arising out of or resulting from events or circumstances occurring after the termination of this Contract or after the expiration of Latent Defect Liability Period; and provided further that neither Party shall have any indemnity obligation pursuant to this Clause unless notice of any such claim for indemnity by either Party is received by indemnifying Party prior to date that is three (3) years after expiration of Latent Defect Liability Period.
18.0 18.1
CONTRACTOR' CARE OF THE WORKS S Contractor shall take full responsibility for the care of Works from the Notice to Proceed until the date of issue of Certificate of Take Over when responsibility shall pass to Owner. If latter's Representative issues a Certificate of Take Over for part of Works, Contractor shall cease to be responsible for the care of that part from Certificate of Take Over when responsibility shall pass to Owner.. date of issue of such
18.2
Contractor shall take responsibility for care of any outstanding Work or obligations which is required to be completed/ fulfilled prior to the expiry of Contract Period, until Owner's Representative confirms in Writing that such outstanding Work or obligation has been completed/fulfilled.
18.3
If any loss or damage happens to relevant Package, during period for which Contractor is responsible, he shall rectify such loss or damage, at his cost, so that the Works conform with Contract. He shall also be liable for any loss or damage to Works caused by operations carried out by him after date of issue of Certificate of Take Over until the expiry of Contract Period in so far as such loss or damage is not covered under Insurance to be taken by Owner for operation of Plant.
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19.0 19.1
LIMITATION OF LIABILITY No consequential Damages, etc. Except for any specific liability which may be identified in Contract and which may be payable hereunder, Contractor shall not be liable for any special, incidental, indirect, or consequential Damages or any loss of business Contracts, revenues or other financial loss (or equivalents thereof no matter how claimed, computed or characterised) arising out of or in connection with the Performance of the Work or supply of Goods unless caused by Contractors negligence or wilful misconduct. In addition, Owner shall have no liability or any special, incidental, indirect or consequential Damages for any loss of business Contracts, revenues or other financial loss arising out of this Contract.
19.2 19.2.1
Limitation of Liability Contractors liability under the Contract shall be limited as below :
(i)
With respect to delay in achieving the Guaranteed Completion Dates, the Liquidated Damages for Delay sub-cap for Unit in aggregate shall be ten percent (10%) of the Contract Price.
(ii)
the overall cap on Liquidated Damages (for Delay, and Performance) for all Units in the aggregate shall be twenty per cent (20%) of the Contract Price;
19.2.2
Other than those specific remedies stated in this Contract, L D shall be Owners sole remedy for (i) Contractors delay or (ii) shortfall in Performance Guarantees.
19.2.3
Payment of the above Delay Liquidated Damages shall not affect or prejudice in any way or manner Owners right to terminate the Contract nor shall any termination of Contract prejudicially affect Owners right to recover any accrued Delay Liquidated Damages or release Contractor from any obligation for payment thereof. In this subject see also Article 11.2 of this GCC.
19.3
Maximum Liability
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Contractors aggregate liability under or arising out of or in connection with this Contract, its performance or breach shall be limited to Contract Price. This shall, however, exclude his liability for Liquidated Damages for Delay and Performance pursuant to Clause 19.2 and any and all third party liabilities or indemnities including Intellectual Property Indemnification pursuant to Clause 17.0 and other provisions of the Contract.
19.4
Exclusive Remedies Owners and Contractors remedies and liabilities that are identified in this Contract shall be the sole and exclusive remedies available to the Parties in respect of matters to which they are said to relate in this Contract irrespective of any rights and remedies which might be available at common law, in tort (including negligence), by statute or otherwise.
20.0 20.1
FORCE MAJEURE Definition of Force Majeure In this Clause, Force Majeure reasonable control of Owner or shall mean an event or circumstance beyond the Contactor which could not have been foreseen,
prevented or mitigated by such Party using its reasonable diligence and which makes it impossible for such Party to perform whole or in part its obligations under Contract, including but not limited to:
a) b)
Act of God; An act of war, (whether declared or undeclared) hostilities invasion, armed conflict or an act of foreign enemies, blockade, embargo, revolution, military action, or sabotage.
c)
Contamination by radio-activity from any nuclear fuel, or form any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive, or other hazardous properties.
d)
Riot, civil commotion, terrorism or disorder, unless solely restricted to employees of the Contractor or of his Sub-contractors.
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e)
Natural or regional industrial disputes or targeted disputes which are part of national or regional campaign and which is not reasonably within the powers of a Party to prevent, or which is not specific to the Party or any of his Contractors or Subcontractors.
f)
Operation of the forces of nature such as earthquake, hurricane, lightning, tidal wave, tsunami, typhoon or volcanic activity.
20.2
Excused Performance If either Party is rendered wholly or partially unable to perform its obligations under this Contract because of a Force Majeure event, that party will be excused from whatever performance is affected by the Force Majeure event to the extent so affected provided that:
a)
Affected Party gives the other Party Written Notice of the occurrence of the Force Majeure Event as soon as practicable after the occurrence of the Force Majeure Event and also gives the other Party Written Notice describing in reasonable detail the particulars of such occurrence, including an estimation of its expected duration and probable impact on the performance of such Party's obligations hereunder, and thereafter continues to furnish thereto timely regular reports with respect to continuation of the Force Majeure Event;
b)
The suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure.
c)
No liability of either Party which arose before the occurrence of the Force Majeure Event causing the suspension of performance shall be excused as a result of the occurrence.
d)
The affected Party shall exercise all reasonable efforts to mitigate or limit Damages to the other Party.
e)
The affected Party shall use its best efforts to continue to perform its obligations hereunder and to correct or cure the event or condition excusing performance;
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f)
When the affected Party is able to resume performance of its obligations under this Contract, that Party shall give the other Party Written Notice to that effect and shall promptly resume performance hereunder.
20.3
Limitations Anything in this Contract to the contrary notwithstanding.
a)
Any act, event, or occurrence listed above or asserted as a Force Majeure Event that results materially from the negligence or intentional acts of the affected party (including in the case of Contractor or any Sub-contractor thereof) shall not constitute a Force Majeure Event; and
b)
The affected Party shall not be relieved from obligations under this Contract to the extent that the negligence or wilful misconduct of the affected Party (or in the case of Contractor or any Sub-Contractor thereof) contributes to or aggravates the Force Majeure Event.
20.4
Effect of Force Majeure Event Neither Owner nor Contractor shall be considered in default or in Contractual breach to extent that performance of obligations is prevented by a Force Majeure Event, which arises after Effective Date. Except as otherwise provided in a Change Order, an extension of time shall be granted to Contractor only to extent Contractor proves to Owner;
a)
Performance of Work or supply of Goods is actually and necessarily delayed by an event of Force Majeure and
b)
Effect of such event of Force Majeure could not have been prevented or avoided or removed despite exercise of reasonable due diligence whether before, after or during the event of Force Majeure.
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20.5
Payment to Contractor If, in consequence of Force Majeure, the Plant or any part thereof shall suffer loss or damage, the Contractor shall be entitled to claim and receive payment for the cost of Work or supply of Goods executed in accordance with the Contract, prior to the event of Force Majeure.
20.6
Optional Termination, Payment and Release Irrespective of any extension of time, if a Force Majeure event occurs and its effect continues for a continuous period of 270 (two hundred and seventy) Days or have been delayed for a cumulative period in excess of 365 (Three hundred and sixty five) Days, either of the parties may terminate the Contract. If the Contract is terminated under this clause or clause no. 15.1 or 16.2 Owner shall determine work done and pay to Contractor.
a)
Amounts payable for any Work or supply of Goods carried out for which a Price is stated in the Contract;
b)
Cost of RELEVANT Package and Materials ordered for Works which have been delivered to Contractor, or of which the Contractor is liable to accept delivery: such Plant and Materials shall become the property of (and be at the risk of) Owner against payment therefore by Owner, and Contractor shall place same at Owner's disposal promptly upon receipt of request in respect thereof from Owner.
21.0 21.1 21.2
FINANCING Contractor must submit a breakdown of their equipment and Services by country of origin. Contractor acknowledge that Owner will seek financing from a variety of sources. Contractor
a)
Shall comply with the applicable sourcing rules and environmental requirements of the Financing Parties.
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b)
Acknowledges that the Financing Parties may comment on the Contract and the terms and conditions thereof, and shall negotiate in good faith with OWNER and / or the Financing Parties regarding changes requested by the Financing Parties.
c)
Acknowledges that Financing Parties will appoint a Lender's Independent Engineer to represent the Financing Parties in connection with the financing of Works. Lenders Independent Engineers duty will include monitoring, checking, inspecting/witnessing the carrying out of Works and Witnessing the Tests before Take-over.
d)
Acknowledges that Plant and Materials of Works will have to be secured/ hypothecated and secured with lenders/financers and he shall co-operate with them and provide them all information required by them from time to time.
21.3
Contractor shall seek performance solely from Owner to satisfy under this Contract.
Owners obligations
21.4
Contractor agrees, upon Lenders request, to enter into a Direct Agreement with the Lenders in the form reasonably required by the Lenders.
22.0 22.1 22.1.1
CLAIMS, DISPUTES, MUTUAL SETTLEMENT & ARBITRATION Procedure for Claims If Contractor or Owner intends to claim any additional payment under any clause of these conditions, the Party claiming shall give Notice to other Party as soon as possible and in any event within 30 (thirty) Days of the start of the event giving rise to claim.
22.1.2
Within 30 (thirty) Days of such Notice, or such other time as may be agreed, the Party claiming shall send to the other Party an account, giving detailed particulars of the amount and basis of the claim along with the necessary supporting documentation. Where the event giving rise to the claim has a continuing effect, such account shall be considered as interim. The Party claiming shall then, at such intervals as the other Party may reasonably require, send further interim accounts giving the accumulated amount of the claim and any further particulars. Where interim accounts are sent to the other Party, the Party claiming shall send a final account within 15 Days of the end of the effects resulting from the event. ISSUE R0
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22.1.3
If the Party claiming fails to comply with this clause no. 22.1.2, he shall not be entitled to any additional claim and shall be deemed to have waived the same.
22.2 22.2.1
Mutual Settlement Any disputes or differences arising out of or in connection with the Contract shall, to the extent possible, be settled amicably between the Parties.
22.2.2
If any dispute or difference of any kind whatsoever shall arise between Owner and Contractor, arising out of Contract for the performance of the Works whether during the progress of Works or after its completion or whether before or after termination, abandonment or breach of Contract, it shall, in the first place be referred to and settled by Owners Representative, who within a period of 30 (thirty) Days on request by either Party to do so, shall give Written Notice of his decision to Owner and Contractor. Save as hereinafter provided, such decision in respect of every matter so referred shall be final and binding upon the Parties until the completion of the entire Works and shall forthwith be given effect to by Owner and / or Contractor, as applicable, who shall comply with all such decisions with all due diligence. If Owners Representative has given Written Notice of his decision to Parties and no claim to arbitration has been communicated to him by either Party within 30 (Thirty) Days from receipt of such notice, the said decision shall become final and binding on Parties. In the event of Owners Representative failing to notify his decision as foresaid within 30 (Thirty) Days after being requested as aforesaid, or in the event of either of the parties being dissatisfied with any such decision, as the case may be, within 30 (Thirty) Days after the expiry of first mentioned period of 30 (Thirty) Days, as the case may be, either Party may require that the matter in dispute be referred to arbitration as hereinafter provided.
22.2.3
All disputes or differences in respect of which the decision, if any, of
Owners
Representative has not become final or binding as aforesaid, shall be referred within next thirty (30) days, for resolution by the intervention of the Managing Director's or CEO's of the respective Parties within next thirty (30) days through Adjudication. In this subject, see Article 5.1.9 of GCC.
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22.3 22.3.1
Arbitration If the disputes or differences under Clause 22.2.3 herein above are still not resolved, the same shall be referred for arbitration in accordance with the Indian Arbitration & Conciliation Act, 1996, or any statutory modification or enactment thereof for the time being in force.
22.3.2
Contractor and Owner will continue to perform their respective obligations under the Contract during Arbitration proceedings unless such performance itself relates to the dispute referred to Arbitration pursuant to this sub-clause.
22.3.3
Arbitrator Panel shall consist of 3 (Three) arbitrators, one to be appointed by Owner and Contractor respectively and a third one to be appointed by the two arbitrators so appointed by Owner and Contractor and third arbitrator shall be appointed in accordance with the provisions of the Indian Arbitration and Conciliation Act, 1996. It is to be noted that when one party appoints an Arbitrator, the other party should appoint their Arbitrator within 30 Days. Arbitration shall be held in Mumbai and the courts in Mumbai shall have jurisdiction on any matter connected with any Arbitration under this clause no. 22.2.
22.3.4
Arbitration shall be sole and exclusive remedy between the Parties regarding the dispute referred to Arbitration and any claims, counterclaims issues or accountings presented or plead to the arbitrators in connection with such dispute.
22.3.5
Award rendered in any Arbitration commenced hereunder shall be final and conclusive. Award should be implemented and promptly paid.
22.3.6
Arbitrators shall have full powers to review or revise the decisions, opinions, certifications or valuations of the Owners Representative. He and Contractor hereby undertake to carry out the award without delay. Expenses of Arbitration shall be paid as may be determined by the arbitrators. They may from time to time, with the consent of the Parties, enlarge the time for making the award. In case of aforesaid arbitrators dying, neglecting, resigning or being unable to act for any reason, it will be lawful for Parties to nominate another arbitrator with mutual consent of both the parties.
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22.3.7
No decision of Owners Representative in accordance with a foregoing provisions shall disqualify him as being called as a witness or giving evidence before the arbitrators on any matter whatsoever relevant to the dispute or difference referred to arbitrators as foresaid.
22.3.8
This clause shall remain in full force and effect notwithstanding any lawful termination of the Contract where either Arbitration has already commenced or the liabilities between Owner and Contractor have not been fully determined.
23.0 23.1
ENFORCEMENT OF TERMS Failure of either Party to enforce at any time any of the provisions of this Contract or any rights in respect thereto or to exercise any option therein provided, shall in no way be construed to be a waiver of such provisions, rights or options or in any way to effect the validity of Contract.
23.2
Exercise by either Party of any of its rights herein shall not preclude or prejudice either Party from exercising the same or any right it may have hereunder.
24.0
REPRESENTATIONS & WARRANTIES Each Party hereby represents and warrants to the other Party that:
24.1
Organization, Power and Authority. It is duly organized and validly existing under the laws of its jurisdiction of incorporation and is qualified to do business in India/.. (specify any other country), and in all other jurisdictions in which the nature of the business conducted by it makes such qualification necessary, and has all requisite legal power and authority to carry on its business and to execute this Contract and to perform the terms, conditions and provisions hereof.
24.2
Authorization. Execution, delivery and performance by such Party of this Contract have been duly authorized by all requisite corporate action.
24.3
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This Contract constitutes the legal, valid and binding obligation of such Party, enforceable in accordance with the terms hereof.
24.4
No Conflict. Neither execution nor delivery nor performance by such Party of this Contract, nor
consummation of transactions contemplated hereby, will result in a violation of, or a conflict with, any provision of the organizational documents of such Party; a contravention or breach of, or a default under, any term or provision of any indenture, contract, agreement or instrument to which such Party is a party or by which such Party or its property may be bound, or a violation by such Party of any Law.
24.5
No Violation of Law. It is not in violation of any Law, which violations, individually or in aggregate, could reasonably be expected to have an adverse effect on it or its performance of any obligations hereunder.
24.6
Litigation. There is no action, suit or proceeding now pending or (to its best knowledge) threatened against it (or any Subcontractor, in the case of Contractor) before any court or administrative body or arbitral tribunal that could reasonably be expected to adversely affect the ability of such Party (or any Subcontractor, in the case of the Contractor) to perform its obligations hereunder (or under any Subcontract) other than those notified to Project Company in writing by Contractor.
24.7
Contractors Representations and Warranties. Contractor represents and warrants that:
24.7.1
He has and will be the holder of all Permits required to allow it to operate or conduct its business as contemplated hereby;
24.7.2
He has thoroughly examined this Contract, Technical Specification and all applicable Laws and has become familiar with their terms;
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24.7.3
It has, and its Subcontractors have, full experience and proper qualifications to manufacture Equipment and perform the Work and to construct the RELEVANT Package under the Contract . It has ascertained the nature and location of all Work to be performed at Site, the
character and accessibility of the Site and its surrounding areas, availability of lay-down areas for Equipment and tools, the existence of obstacles to construction (including any reasonably identifiable underground obstacles, if any, referred to in this Contract), the availability of facilities and utilities, the location and character of existing or adjacent work or structures, the conditions of roads, waterways and railroads in the vicinity of the Site and in the State of Maharashtra in India, including the conditions affecting shipping and transportation (such as the limitations of bridges and tunnels), access, disposal, handling and storage of materials, the surface conditions and other general and local conditions, including labour, safety, weather, environmental conditions, geological conditions, if any, noted in this Contract, water supply, water quality, waste water capacity of existing municipal systems and all other matters that might affect its performance of the Work or its costs or the construction of RELEVANT Package
24.7.4
He
is familiar with all necessary facilities for delivering, handling and storing all
Equipment and other parts of the Work and is familiar with all labour conditions and agreements relating to the performance of the Work;
24.7.5
He shall design Equipment and Work for RELEVANT Package so that the useful life thereof may reasonably be expected to thirty (30) years;
24.7.6
He has satisfied himself as to the means of communication with and access to and through the Site and accommodations he may require and the precautions and times and methods of working necessary to prevent any Contractor Person from creating any nuisance or interference, whether public or private, which might give rise to any law and order problems within or outside Site.
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25.0 25.1
MISCELLANEOUS Non-Waiver. Neither Party shall be deemed to have waived any right under this Contract unless such Party shall have delivered to the other Party a written waiver signed by such waiving Party. No failure or successive failure by either Party to enforce any covenant or agreement, and no waiver or successive waivers by either party of any condition of this Contract, shall operate as a discharge of such covenant, agreement or condition, or render the same invalid, or impair such Party's right to enforce the same in the event of any subsequent breach thereof by the other Party.
25.2
Severability. For the avoidance of doubt, this Contract is not intended to confer any legally enforceable rights on any Person other than Parties, their successors in title and their permitted assignees, whether pursuant to Contracts (Rights of Third Parties) Act 1999 or otherwise.
If any of terms, covenants or conditions hereof or the application of any such term, covenant or condition shall be held invalid or unenforceable as to either Party or as to any circumstance by any court or arbitrator having jurisdiction, the remainder of such terms, covenants or conditions shall not be affected thereby, shall remain in full force and effect and shall continue to be valid and enforceable in any other jurisdiction. In such event, the Parties shall negotiate in good faith to substitute a term, covenant or condition in this Contract to replace the one held invalid or unenforceable by a mutually agreed amendment with a view toward achieving a valid and enforceable legal and economic effect as similar as is then reasonably possible to that originally provided.
25.3
Survival of Provisions. In order that the Parties may fully exercise their rights and perform their obligations hereunder arising from the performance of the Work, such provisions of this Contract that are required to insure such exercise or performance shall survive the termination of this Contract for any cause whatsoever.
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25.4
Entire Agreement. This Contract constitutes the entire agreement and contains all of the understandings and agreements of whatsoever kind and nature existing between the Parties, and supersedes, to the extent permitted by Indian law, all prior written or oral agreements, commitments, representations, communications and understandings between the Parties.
25.5
Amendment. No amendment, waiver or consent relating to this Contract shall be effective unless it is in writing and signed by the Parties.
25.6
Successors and Assigns. All of the terms and provisions of this Contract shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Indemnities and is not for the benefit of any other Person. This Contract is for the sole benefit of the Parties, and to the extent provided herein,
25.7
Counterparts. This Contract may be executed in one or more counterparts, each of which shall be deemed to be an original and all such counterparts shall together constitute one and the same contract.
25.8
No Benefit to the Third Parties For the avoidance of doubt, this Contract is not intended to confer any legally enforceable rights on any Person other than the Parties, their successors in title and their permitted assignees, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
ISSUE R0

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THE TATA POWER COMPANY LIMITED BHIRA 100MW-AUGMENTATION SCHEME INCLUDING MULSHI LAKE SUB-STORAGE UTILIZATION

VOLUME: III PART : I

DEFINITIONS OF THE TERMS AND PRELIMINARY CONDITIONS OF CONTRACT

GENERAL CONDITIONS OF CONTRACT

TITLE DEFINITIONS OF THE TERMS AND PRELIMINARY CONDITIONS OF CONTRACT

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DEFINITIONS OF THE TERMS AND PRELIMINARY CONDITIONS OF CONTRACT

GENERAL CONDITIONS OF CONTRACT

SECTION 2.2 2.3 2.4 3.0

3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8

Construction Power Supplies

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GENERAL CONDITIONS OF CONTRACT

SHEET iii OF viii

Royalties and License Fees

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GENERAL CONDITIONS OF CONTRACT

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GENERAL CONDITIONS OF CONTRACT

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GENERAL CONDITIONS OF CONTRACT

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13.5 13.6 13.7 13.8

120 121 121 123

Punch List Items Effect of Payment

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SHEET viii OF viii

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GENERAL CONDITIONS OF CONTRACT

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GENERAL CONDITIONS OF CONTRACT

DEFINITIONS OF THE TERMS AND PRELIMINARY CONDITIONS OF CONTRACT

GENERAL CONDITIONS OF CONTRACT

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Any of the above in combination.

DEFINITIONS OF THE TERMS AND PRELIMINARY CONDITIONS OF CONTRACT

GENERAL CONDITIONS OF CONTRACT

and in accordance with the provisions of Contract.

DEFINITIONS OF THE TERMS AND PRELIMINARY CONDITIONS OF CONTRACT

GENERAL CONDITIONS OF CONTRACT

Drawings shall mean all:

DEFINITIONS OF THE TERMS AND PRELIMINARY CONDITIONS OF CONTRACT

GENERAL CONDITIONS OF CONTRACT

accordance with clause no. 10.6 of General Conditions of Contract.

Financing Party means any Person or Persons providing:

Interim or long term financing for the construction of the Plant.

DEFINITIONS OF THE TERMS AND PRELIMINARY CONDITIONS OF CONTRACT

GENERAL CONDITIONS OF CONTRACT

DEFINITIONS OF THE TERMS AND PRELIMINARY CONDITIONS OF CONTRACT

GENERAL CONDITIONS OF CONTRACT