XIV USE AND DEVELOPMENT OF THE SITE

14.1 NHAI hereby grants to the Concessionaire for the Development Period access to the Site for carrying out such surveys, investigations and soil tests as the Concessionaire may deem necessary at Concessionaire’s cost, expense and risk without causing disruption in the traffic on the existing lanes of the Project Highway.

14.2 NHAI hereby grants to the Concessionaire for the Concession Period the right and licence to enter upon all real estate comprised in the Site as briefly described in Schedule ‘A’ and to survey design, engineer, procure, construct, operate and maintain the Project Highway including the Project Facilities in accordance with the provisions of this Agreement.

14.3 The Site shall be made available to the Concessionaire pursuant hereto by NHAI free from all Encumbrances and occupations and without the Concessionaire being required to make any payment to NHAI on account of any costs, expenses and charges for the use of such Site for the duration of the Concession Period save and except as otherwise expressly provided in this Agreement. NHAI shall procure for the Concessionaire access to the Site, free of Encumbrances, not later than 150 (one hundred and fifty) days from the date of this Agreement. Provided, however, that if NHAI does not enable such access to any part or parts of the Site for any reason other than a Force Majeure Event or breach of this Agreement by the Concessionaire, NHAI shall pay to the Concessionaire Damages at the rate of Rs.1000 (Rupees one thousand) per month per 1000 (one thousand) sq. meters or part thereof if such area is required by the Concessionaire for Construction Works. Such Damages shall be raised to Rs.2000 (Rupees two thousand) per month after COD if such area is essential for the smooth and efficient operation of the Project Highway. Provided further that the Completion Certificate or the Provisional Certificate, as the case may be, for the Project Highway shall not be affected or delayed as a consequence of such parts of the Site remaining under construction even after the Scheduled Project Completion Date;

14.4 On or after the Appointed Date, the Concessionaire shall commence, undertake and complete all Construction Works on the Project Highway in accordance with this Agreement;

14.5 Construction of the Project Highway shall be undertaken by the Concessionaire in conformity with the Project Completion Schedule ‘H’ and the Project milestones set forth in Schedule ‘H’ for completion of the Project Highway on or before the Scheduled Project Completion Date. If the Concessionaire fails to achieve any such Project milestone other than Project Completion, within a period of 90 (ninety) days from the date set forth in Schedule ‘’H’ then it shall pay Damages to NHAI at the rate of Rs.1,000,000 (Rs. One million) per day until as such milestone is achieved. NHAI may either recover such Damages from the Performance Security or demand payment thereof from the Concessionaire. The Concessionaire shall make such payment within 7 (seven) days of receiving such demand from NHAI and any delay in making such payment shall attract interest @ SBI PLR plus two per cent. If the Concessionaire fails to achieve project completion as per the scheduled Project Completion date as set forth in Schedule ‘H’, then it shall pay damages to NHAI as per Clause XVI.

XV.1 During the Construction Period, the Concessionaire shall furnish to NHAI and the Independent Consultant monthly progress reports of actual progress of the Construction Works comprised in the Project Highway and shall give all such other relevant information as may be required by NHAI and/or the Independent Consultant.

XV.2 The Independent Consultants shall inspect the Construction works and the Project Highway at least once a month during the Construction Period and make out an Inspection Report of such inspection (the "Inspection Report"). It shall send a copy of its Inspection Report to NHAI and the Concessionaire. The Concessionaire shall take necessary action to remedy the lapses, if any, stated in the Inspection Report for ensuring compliance with the provisions of this Agreement. Such inspection or submission of Inspection Report by the Independent Consultant shall not relieve or absolve the Concessionaire of its obligations and liabilities hereunder in any manner whatsoever.

XV.3 For the purposes of determining that Construction Works are being undertaken in accordance with Specifications and Standards and Good Industry Practice, the Independent Consultant shall require the Concessionaire to carry out such tests at such time and frequency and in such manner as may be necessary in accordance with Good Industry Practice for quality assurance. The Concessionaire shall with due diligence carry out, or cause to be carried out, all such tests in accordance with the instructions of the Independent Consultant and furnish the results of such tests forthwith to the Independent Consultant. The Concessionaire shall promptly carry out such remedial measures as may be necessary to cure the defects or deficiencies, if any, indicated in such test results and furnish a report to the Independent Consultant in this behalf.

XV.4 If the Independent Consultants or NHAI shall reasonably determine that the rate of progress of the construction of the Project Highway is such that the Project Completion is not feasible on or before the Scheduled Project Completion Date by the Concessionaire, it shall so notify the Concessionaire about the same and the Concessionaire shall within 15 (fifteen) days thereof notify the NHAI and the Independent Consultants about the steps it proposes to take to expedite progress and the period within which it shall achieve COD.

XV.5 (a) Upon recommendation of the Independent Consultant or suo-moto, NHAI may by written notice require the Concessionaire to suspend forthwith the whole or any part of the Construction Works if in the reasonable opinion of the NHAI such work is being carried on in a manner which threatens the safety of the works of the users of the Project Highway.

(b) The Concessionaire shall upon, instructions of the NHAI pursuant to sub-clause (a) above suspend the Construction Works or any part thereof for such time and in such manner as may be specified by NHAI and subject to sub-clause (c) below, the costs incurred during such suspension to properly protect and secure the Construction Works or such part thereof as is necessary in the opinion of the Independent Consultants ("Preservation Costs"), shall be borne by the Concessionaire.

If the suspension pursuant to Sub-clause (a) above, is caused by:

any reason other than default or breach of this Agreement by the Concessionaire including breach of any of the obligations of the Concessionaire under this Agreement or pursuant to Article XXXII, the Preservation Costs shall be borne by NHAI;

reason of default or breach of this Agreement by NHAI the Preservation Costs shall be borne by NHAI; or

reason of any Force Majeure Event, the Preservation Costs shall be borne by the Concessionaire save and except to the extent otherwise expressly provided in Article XXXII.

If suspension of Construction Works is for reasons not attributable to the Concessionaire, the Independent Consultant shall determine any extension to the Project Completion Schedule, the Scheduled Project Completion Date and the Concession Period, to which the Concessionaire is reasonably entitled and shall notify NHAI accordingly. NHAI shall extend the Project Completion Schedule, the Scheduled Project Completion Date and the Concession Period in accordance with the recommendations of the Independent Consultant.

The Project shall be deemed to be complete only and only

16.1 The Project shall be deemed to be complete and open to traffic only when the Completion Certificate or the Provisional Certificate is issued in accordance with the provisions of Article XVII (the "Project Completion").

16.2 COD of the Project shall be the date on which the Independent Consultant has issued the Completion Certificate or the Provisional Certificate, as the case may be, under this Agreement and the Concessionaire shall not levy and collect any Fee until it has received such Completion Certificate or the Provisional Certificate.

16.3 The Concessionaire guarantees that the Project Completion shall be achieved in accordance with the provisions of this Agreement on a date not later than 30 (thirty) months from the Appointed Date ("Scheduled Project Completion Date").

16.4 If the Project Completion is not achieved by the Scheduled Project Completion Date for any reason (other than conditions constituting Force Majeure or for reasons attributable to NHAI, the Concessionaire shall pay to NHAI as weekly Damages for delay in the achievement of the COD, an amount calculated at the rate of 0.01% (point zero one per cent) of the Total Project Cost per week or part thereof.

16.5 If the COD does not occur within 12 (twelve) months from the Scheduled Project Completion Date, NHAI shall be entitled to Terminate this Agreement in accordance with the provisions of Clause 35.2.

XVII TESTS

17.1 At least 30 (thirty) days prior to the likely completion of the Project Highway, the Concessionaire shall notify the Independent Consultant and NHAI of the same and shall give notice of its intent to conduct Tests. The Concessionaire shall give to NHAI and the Independent Consultants at least 10 (ten) days’ prior notice of the actual date on which it intends to commence the Tests and at least 7 (seven) days’ prior notice of the commencement date of any subsequent Tests.

17.2 All Tests shall be conducted in accordance with Schedule ‘J’ and the Applicable Laws and Applicable Permits. The Independent Consultants shall have the right to suspend or delay any test if it is reasonably anticipated or determined during the course of the Test that the performance of the Project Highway or any part thereof does not meet the Specifications and/or Standards. NHAI shall designate a NHAI Representative to witness and observe the Tests. All Tests shall be held in accordance with the schedule notified by the Concessionaire to the Independent Consultant and the NHAI Representative who may either witness the Tests themselves or designate their representatives for this purpose.

17.3 The Independent Consultants shall monitor the results of the Tests to determine the compliance of the Project Highway with the Specifications and Standards. The Concessionaire shall provide to the Independent Consultants and the NHAI with copies of all Test data including detailed Test results.

17.4 Upon the Independent Consultants determining the Tests to be successful, the Independent Consultants shall forthwith issue to the Concessionaire and NHAI a Certificate substantially in the form set forth in Schedule ‘K’ (the "Completion Certificate").

17.5 Independent Consultants may at the request of the Concessionaire issue a provisional certificate of completion ("Provisional Certificate") if the Tests are successful and all parts of Project Highway can be legally, safely and reliably placed in commercial operation though certain works or things forming part thereof are not yet complete. In such an event such Provisional Certificate shall have appended thereto a list of outstanding items signed jointly by the Independent Consultants and the Concessionaire ("Punch List"). All Punch List items shall be completed by the Concessionaire within 120 (one hundred twenty) days of the date of issue of such Provisional Certificate. Subject to payment of Damages equal to Rs.200,000 (Rs. Two hundred thousand) per week or part thereof on account of any delay beyond the aforesaid period of 120 (one hundred twenty) days, the Concessionaire shall be entitled to a further period of upto 180 (one hundred eighty) days for completion of Punch List items. Upon completion of all Punch List items to the satisfaction of the Independent Consultant, the Independent Consultant shall issue the Completion Certificate to the Concessionaire. Failure to complete the Punch List items in the manner set forth in this Clause 17.5 shall entitle NHAI to Terminate this Agreement in accordance with the provisions of Clause 35.2.

17.6 If the Independent Consultants certify to NHAI and the Concessionaire that it is unable to issue the Completion Certificate or Provisional Certificate because of events or circumstances which excuse the performance of the Concessionaire’s obligations in accordance with this Agreement and as a consequence thereof the Tests could not be held or had to be suspended, the Concessionaire shall re-schedule the Tests and hold the same as soon as reasonably practicably.

17.7 Upon receipt of a report from the Independent Consultant or after conducting its own review or inspection, if NHAI is not satisfied with the results of any Tests, it shall within 7 (seven) days thereof notify the Concessionaire of its reasons to conclude that the Completion Certificate should not be issued, in which case the Concessionaire shall promptly take such action as will achieve such satisfaction. Such procedure shall be repeated as necessary after rectification and remedy of reasons/ causes by the Concessionaire on account of which the Tests were unsuccessful, until the Completion Certificate or Provisional Certificate has been issued in accordance with this Agreement by the Independent Consultant.

17.8 The Concessionaire shall bear all the expenses relating to Tests under this Agreement. Provided, however, that if the NHAI Representative requires any Test to be conducted which is not specified in this Agreement and such Test is not necessary in the opinion of the Independent Consultant, then the expenses on such Test shall be reimbursed by NHAI to the Concessionaire.

XVIII CHANGE OF SCOPE

18.1 NHAI may, notwithstanding anything to the contrary contained in this Agreement, require provision of such additional works and services on or about the Project Highway which are beyond the scope of the Project as contemplated by this Agreement ("Change of Scope"), Provided such changes do not require expenditure exceeding 5% (five per cent) of the Total Project Cost. All such changes shall be made by NHAI by an order (the "Change of Scope Order") issued in accordance with the procedure set forth Schedule ‘S’.

 

18.2 Procedure for Change of Scope

NHAI shall whenever it desires provision of additional works and services referred to in Clause 18.1, issue to the Concessionaire a notice of change of scope (the "Change of Scope Notice").

upon receipt of such Change of Scope Notice, the Concessionaire shall provide to NHAI such information as is necessary and reasonable together with preliminary documentation in support of the following:

the impact which the Change of Scope is likely to have on the Project Completion Schedule if the work is required to be carried out before COD, and

the cost to the Concessionaire of complying with such Change of Scope Notice (including, without limitation, material and labour cost information furnished in accordance with the current schedule of rates applicable to the works assigned by NHAI to its contractors.

NHAI will review the impact of the change of scope with respect to the financial model and any compensation will be determined according to a financial balancing clause contained in Schedule ‘S’.

18.3 A change of Scope Order will be effective and binding upon issuance of a confirmation of such Order by NHAI. Notwithstanding a dispute regarding cost and time for implementation of such Order, the Concessionaire shall proceed with the performance of such Order promptly following NHAI’s confirmation pursuant to Clause 18.2(c). Pending resolution of such dispute, NHAI shall pay to the Concessionaire an amount equal to the costs that are certified by the Independent Consultant to be reasonable with final adjustments to be made in accordance with the resolution of dispute under the Dispute Resolution Procedure.

18.4 All claims by the Concessionaire pursuant to this Article XVIII shall be supported by such documentation as is reasonably sufficient for NHAI to determine the accuracy thereof, including invoices from Contractors and Subcontractors and certification of such claims by the Statutory Auditors.

XIX OPERATION AND MAINTENANCE

19.1 The Concessionaire shall operate and maintain the Project Highway by itself, or through O&M Contractors and if required, modify, repair or otherwise make improvements to the Project Highway to comply with Specifications and Standards, and other requirements set forth in this Agreement, Good Industry Practice, Applicable laws and Applicable Permits and manufacturer’s guidelines and instructions with respect to toll systems, and more specifically:

permitting smooth and uninterrupted flow of traffic during normal operating conditions;

charging, collecting and retaining the Fees in accordance with this Agreement;

Minimizing disruption to traffic in the event of accidents or other incidents affecting the safety and use of the Project Highway by providing a rapid and effective response and maintaining liaison procedures with emergency services;

Undertaking routine maintenance including prompt repairs of potholes, cracks, concrete joints, drains, line marking, lighting and signage;

Undertaking major maintenance such as resurfacing of pavements, repairs to structures, repairs and refurbishment of tolling system and hardware and other equipment;

Carrying out periodic preventive maintenance to Project Highway including tolling system;

Preventing with the assistance of concerned law enforcement agencies unauthorised entry to and exit from the Project Highway;

Preventing with the assistance of the concerned law enforcement agencies encroachments on the Project Highway including Site and preserve the right of way of the Project Highway;

Maintain a public relations unit to interface with and attend to suggestions from users of the Project Highway, the media, Government Agencies, and other external agencies.

Adherence to the safety standards set out in Schedule ‘B1’.

19.2 The Concessionaire shall in consultation with the Independent Consultants evolve not later than 180 (one hundred and eighty) days before the Scheduled Project Completion Date, the repair and maintenance manual (the "Maintenance Manual") for the regular and preventive maintenance, and shall ensure and procure that at all times during the Operations Period, the Project Highway is maintained in a manner that at all times it complies with the Specifications and Standards. The Concessionaire shall supply, at least two months before the COD, 10 (ten) copies of the Maintenance Manual to NHAI and 3 (three) copies each to the GOI, STG and Independent Consultants. Copies of the Maintenance Manual shall also be made available by the Concessionaire for public inspection during office hours at a conspicuous place adjacent to each toll plaza on the Project Highway.

19.3 Not later than forty five (45) days before the beginning of each Accounting Year, the Concessionaire shall provide to NHAI and the Independent Consultants, its proposed programme of preventive and other scheduled maintenance of the Project Highway subject to the minimum maintenance requirements set forth in Schedule ‘L’ necessary to maintain the Project Highway at all times in conformity with the Specifications and Standards (the "Maintenance Programme"). Such Maintenance Programme shall include but not be limited to the following:

intervals and procedures for the carrying out of inspection of all elements of the Project Highway;

criteria to be adopted for deciding maintenance needs;

preventive maintenance schedule;

intervals at which the Concessionaire shall carry out periodic maintenance; and

intervals for major maintenance and the scope thereof;

19.4 Maintenance shall include replacement of equipment/consumables, horticultural maintenance and repairs to equipment, pavements, bridges, structures and other civil works. Maintenance shall not include the extension of any existing pavements, bridges, structures and other civil works unless part of the Project.

19.5 The Concessionaire shall keep the carriageways, rest areas and other Project Facilities and toll plazas in a clean, tidy and orderly condition free of litter and debris.

19.6 During the Operations Period, the Concessionaire shall not carry out any material modifications to the Project Highway save and except where such (i) modification is required by Good Industry Practice; or (ii) modification is necessary for the Project Highway to operate in conformity with the Specifications and Standards prescribed under this Agreement. Provided that the Concessionaire shall notify NHAI of the proposed modifications along with details thereof at least fifteen days before commencing work on such modifications and shall reasonably consider such suggestions as NHAI may make within 15 (fifteen) days of receipt of such details by NHAI.

19.7 The Concessionaire shall be responsible for the maintenance of the approach roads to and underpasses and overpasses upto 100 mtrs from the Project Highway in accordance with Good Industry Practice.

19.8 Safety, Vehicle Breakdown and Accident

19.8.1 In the case of unsafe conditions, vehicle breakdowns and accidents, the Concessionaire shall follow the relevant operating procedures, which shall include the setting up of temporary traffic cones and lights as well as the removal of obstruction and debris expeditiously. Such procedures shall be in accordance with Applicable Laws, Applicable Permits and provisions of this Agreement.

19.8.2 The concessionaire shall ensure that any diversion or interruption of traffic is remedied without delay. The Concessionaire’s responsibility for rescue operations on the Project Highway shall be limited to the removal of vehicles or debris or any other obstruction, which may endanger or interrupt the smooth traffic flow on the Project Highway.

19.9 Emergency De-commissioning

19.9.1 If, in the reasonable opinion of the Concessionaire there exists an emergency which warrants decommissioning and closure to traffic of whole or any part of the Project Highway, the Concessionaire shall be entitled to de-commission and close the whole or the relevant part of the Project Highway to Traffic for so long as such emergency and the consequences thereof warrant, Provided however that such emergency decommissioning will be notified to NHAI promptly. NHAI may issue directions to the Concessionaire for dealing with such situations and the Concessionaire shall abide by such directions.

19.9.2 The Concessionaire shall re-commission the Project Highway or the affected part thereof as quickly as practicable after the circumstances leading to its de-commissioning and closure have ceased to exist.

19.10 The Concessionaire shall not close any lane of the Project Highway for undertaking maintenance or repair works except with the prior written approval of the NHAI which may delegate its authority to the Independent Consultant. Such approval shall be sought by the Concessionaire through a written request to be made at least 7 (seven) days before the proposal closure of lane and shall be accompanied by particulars indicating the nature and extent of repair works, the length and section required to be closed and the period of closure. The Concessionaire shall also furnish particulars indicating the minimum time required for completing such repair works. Within 5 (five) days of receiving such request, NHAI or the Independent Consultant, as the case may be, shall grant permission with such modifications as it may deem necessary. Upon receiving such permission, the Concessionaire shall be entitled to close the lane in accordance with such permission and re-open it within the period stipulated in such permission. For any delay in re-opening such lane, the Concessionaire shall pay Damages to NHAI calculated at the rate of Rs.10,000 (Rs. Ten thousand) per day or part thereof for every stretch of 100 (one hundred) meters or part thereof in each lane until such time the stretch has been re-opened for traffic. Provided, however, that these provisions shall not apply to closure of any lane for a period not exceeding four hours in a day or Emergency decommissioning under Clause 19.9.

19.11 Save and except as otherwise be expressly provided in this Agreement, if the Project Highway including Construction Works or any part thereof shall suffer any loss or damage during the Concession Period, from any cause whatsoever, the Concessionaire shall, at its cost and expense rectify and remedy such loss or damage in a manner so as to make the Project Highway conform in every respect to the Specifications, Standards, quality and performance as prescribed by this Agreement.

19.12 In the event the Concessionaire does not maintain and/ or repair the Project Highway or a part thereof upto and in accordance with the Specifications and Standards and/or in accordance with the Maintenance Programme or the Maintenance Manual, and shall have failed to commence remedial works within 30 (thirty) days of receipt of notice in this behalf from NHAI or the Independent Consultant, or the O&M Inspection Report, as the case may be, NHAI shall, without prejudice to its rights under this Agreement, including Termination thereof, be entitled to undertake the repair and maintenance of the Project Highway at the risk and cost of the Concessionaire and to recover the same from the Concessionaire. In addition to recovery of the aforesaid cost of repair and maintenance by NHAI, a sum equal to 25% (twenty five per cent) of such cost shall also be recovered by NHAI from the Concessionaire as Damages. NHAI shall have the right and the Concessionaire hereby expressly grants to NHAI the right to recover the same directly from the Escrow Account and for that purpose the Concessionaire hereby expressly authorises NHAI and hereby gives irrevocable instructions to the Escrow Bank to make payment from the Escrow Account in accordance with the instructions of NHAI under this Clause.

19.13 In the event NHAI does not exercise its option to undertake the required repair and maintenance after expiry of the 30 (thirty) days period stipulated in Clause 19.12 it shall recover Damages from the Concessionaire for default in operating and maintaining the Project Highway in conformity with this Agreement. Such Damages shall be payable after the aforesaid period of 30 (thirty) days and until the default is cured. The amount of Damages shall be calculated for each day of default at the higher of the following, namely (a) Rs.10,000 (Rs. Ten thousand), and (b) 0.1% (zero point one per cent) of the cost of such repair as estimated by the Independent Consultant. Recovery of such Damages shall be without prejudice to the rights of NHAI under this Agreement, including Termination thereof.

19.14 If the Concessionaire commences any works for curing any defects or deficiencies in the Project Highway, it shall complete such works expeditiously in accordance with Good Industry Practice. If such works are carried out in a manner that results in a delay of more than 30 (thirty) days as compared to the time required in accordance with Good Industry Practice, NHAI shall recover Damages from the Concessionaire as if a default had occurred under Clause 19.13.

19.15 The Concessionaire shall not be considered in breach of its obligations under this Agreement if any part of the Project Highway is not available to traffic after the COD on account of any of the following for the duration thereof:

an event of Force Majeure;

measures taken to ensure the safe use of the Project Highway except when unsafe conditions on the road occurred because of failure of the Concessionaire to perform its obligations under this Agreement; or

compliance with a request from NHAI or the directions of any Governmental Agency the effect of which is to close all or any part of the Project Highway.

Notwithstanding the above, the Concessionaire shall keep all unaffected parts of the Project Highway open to traffic and use provided they can be safely operated and kept open to traffic.

XX. MONITORING AND SUPERVISION DURING OPERATIONS

20.1 The Concessionaire shall undertake periodic (at least once every calendar month but once every week during monsoons) inspection of the Project Highway to determine the condition of the Project Highway including its compliance or otherwise with the Maintenance Manual, the Maintenance Programme, Specifications and Standards and the maintenance required and shall submit reports of such inspection ("Maintenance Reports") to NHAI and the Independent Consultants.

20.2 The Independent Consultants shall review the Maintenance Reports and inspect the Project Highway at least once a month during the Operations Period and make out an Inspection Report of such inspection (the "O&M Inspection Report"). The Independent Consultant shall send a copy of its O&M Inspection Report to NHAI and the Concessionaire. The Concessionaire shall within 30 (thirty) days of the receipt of the O&M Inspection Report remedy the defects and deficiencies, if any, set forth in such O&M Inspection Report and submit its Report in respect thereof to the Independent Consultant and NHAI within the said 30 (thirty) days period. Where the remedying of such defects or deficiencies is likely to take more than 30 (thirty) days in accordance with Good Industry Practice, the Concessionaire shall undertake the works in accordance with such Practice and submit progress reports of such works every fortnight. The O&M Inspection Report may also require the Concessionaire to undertake such tests as may be specified by the Independent Consultant for the purpose of determining that the Project Highway is at all times in conformity with the Specification and Standards. The Concessionaire shall undertake such tests without any delay and furnish a copy of the results thereof to the Independent Consultant and NHAI along with a written statement specifying in reasonable detail the measures, if any, that it proposes to undertake for curing the defaults or deficiencies indicated in such results. Such inspection or submission of O&M Inspection Report by the Independent Consultants or submission of O&M Inspection Compliance Report by the Concessionaire shall not relieve or absolve the Concessionaire of its obligations and liabilities hereunder in any manner whatsoever.

20.3 NHAI may inspect the Project Highway at any time for a review of the compliance by the Concessionaire with its maintenance obligations under this Agreement.

20.4 The Concessionaire shall furnish to NHAI within 7 (seven) days of completion of each calendar month during the Operations Period, a statement of Fees in the form set forth in Schedule ‘M’ (the "Monthly Fee Statement").

XXI. UTILITIES, ASSOCIATED ROADS ETC.

XXI.1 The Concessionaire shall be responsible for ensuring that:

any existing utilities on, under or above the Site are kept in continuous satisfactory use, if necessary, by the use of suitable temporary or permanent diversions with the authority of the controlling body of that utility; and

any existing roads or right of ways are kept in continuous satisfactory use; if necessary, by the use of suitable temporary or permanent diversions with the authority of the controlling body of that road or right of way. For any diversion or construction, of temporary roads, NHAI will assist the Concessionaire in acquiring the right of way;

XXI.2 The Concessionaire shall bear all costs and charges for special or temporary rights of way required by it in connection with access to the Site. The Concessionaire shall obtain at its cost such facilities on or outside the Site as may be required by it for the purposes of the Project Highway and the performance of its obligations under this Agreement.

XXII INDEPENDENT CONSULTANTS

22.1 NHAI shall appoint a consulting engineering firm or body corporate out of the 3 (three) names proposed by the Concessionaire from the panel of 5 (five) consultants selected by NHAI in accordance with the selection process set forth in Schedule ‘N’ to be the Independent Consultants to undertake and perform the duties, work, services and activities set forth in Schedule ‘O’.

22.2 The appointment of the Independent Consultant pursuant to Clause 22.1 shall initially be for a period of four years from the date of its appointment. The date of such appointment shall be no later than 120 (one hundred twenty) days from the date of this Agreement. After the expiry of the aforesaid appointment, NHAI shall appoint for a term of 3 (three) years as Independent Consultant such person as it may deem appropriate from the list drawn in accordance with Schedule ‘N’ as amended from time to time by mutual consent of NHAI and the Concessionaire and who may or may not be the same person, who was Independent Consultant during the initial term. NHAI may in its discretion thereafter renew such appointment or appoint another person out of the list determined pursuant to Schedule ‘N’, as NHAI may deem appropriate to be the Independent Consultant for a term of three years at a time.

22.3 The Independent Consultants shall report to NHAI about their work, services, and activities pursuant hereto through regular periodic reports (at least once every month) as the situation may warrant. Such report of Independent Consultants shall include but not be limited to the matters and things set forth in said Schedule ‘O’.

22.4 The remuneration, cost and expenses of the Independent Consultant shall be paid by NHAI. One-half of such remuneration, cost and expenses shall be reimbursed by the Concessionaire to NHAI within 15 (fifteen) days of receiving a statement of expenditure from NHAI.

22.5 NHAI may terminate the appointment of the Independent Consultants at any time subject to appointment of their replacement by another Independent Consultants in accordance with this Article XXII.

22.6 If the Concessionaire has reason to believe that the Independent Consultant is not discharging its duties in a fair, excellent and diligent manner, it may make a written representation to NHAI, stating its reasons in detail, seeking termination of the appointment of the Independent Consultant. Upon receipt of such representation, NHAI shall hold a tripartite meeting with the Concessionaire and Independent Consultant for amicable resolution of the dispute. If the dispute remains unresolved, it shall be resolved in accordance with the Dispute Resolution Procedure. In case the appointment of Independent Consultant is terminated under this Clause, it shall be replaced by another Independent Consultant in accordance with this Article XXII.

22.7 If either party disputes any advice, instruction or award of the Independent Consultant, the dispute shall be resolved in accordance with the Dispute Resolution Procedure.

XXIII TRAFFIC SAMPLING