1444440/2020/Highways Section wh” 2280 oS OD” wremler (Mu) |F rouse Eisenia Sete rash No.NH-24028/14/2014-H (Vol.ll) Member (P) cP Pair de Conn ne Government of India ae az Ministry of Road Transport and Highways —_Menaber (MK (Highways Section) Memter\ Tee) Transport Bhawan, 1, Parliament Street, New Delhi 10001 Dated: 10" November, 2020 & Office Memorandum cen cams) Subject: Changes in the Model Concession Agreement (MCA) of Hybrid Annuity Model 9 OY “45 (HAM) Projects- reg. = Gr Reference is invited to the inter Ministerial Committee (IMC) meetings held on the above subject. AS per the consensus/decisions arrived in the INC meetings, revised MCA of HAM 1 incorporating the changes along with Deviation Statement indicating the existing clauses and revised formulations thereof are attached herewith. (v4 2. The changes in the Model Concession Agreement ofthe Hybrid Annuity Model are effective from the date of issue of the same. l Encl: As above (RarRendeep Chowdhary) Deputy Secretary to the Government of India < Telephone No.23718575 ‘ To 1. DG (RD) & SS, RTAH 2. Chairman, NHAI 3. Managing Director, NHIDCL 5. Director (NIC), MORTH for uploading the above documents on website of this Ministry. Copy for information: Department of Economic Affair [kind attn: Shri Baldeo Purushartha, JS(IPF)] Department of Financial Services (kind attn:Shri Anand Machukar, 05D) Department of Legal Affairs (kind attn: Smt. Anju Rathi Rana, JS & Legal Adviser) NITI Aayog (kind attn: Shri S. K. Saha, Adviser Transport) Sr. PPS to Secretary (RTH) 6. Sr. PPS to JS(H)1438362/2020/Mighways Section 4 a ig 7 72 (ed sal at no me undertake or erm any Change In Ownersipexceatin atcordarce with the provisions of Cavse 53 and thatthe (setecteebisaer/ Consortium | Members} together with ts ther Assocaes, ld not less ran 51% (fFy-one percent fs sued ane pad up Equity asonthe cate of mis Agreement; ar that exch CConsostiom Member whose teenie’ an Snare came wa evaluated forthe purpose pe {ualfcaton and shorting response tote Request {or Propose sal old a ast 2% (ewan per eat) ‘of Equity uring the Construction Period and two years _thereaferalong with is Associates; 7 112: The Concessonaire shal, subject Apoleabie awe nd with asetanee ofthe Authority, onderake siting of any sty nclusng elect nes, water pipes {and tolephone cables, oan appropriate location oF Blignrent wits or outset Stef and ony such lity causes or shaleause a mater adverse elec 24 ‘the construction, operation or maintenance of the Projet The cont of such iting sal be bare by the Authority ery the ently owning sue tity, the ‘Authoritysottecis and nthe evertof any delay in shifting there, the Concessorate shal be excuse for faut perform ay of ts obigatons hereunder such ‘alurele drect consequence of eit on the par of te ent owning such ele lines, wate pipes or telephone ables, a5 the ease maybe Changes in HAM MCA, {shal at note undertake or pert any Change in Ownership except inaccordance with the provions of Clune 5.3 ane tht the (eectes ‘er Consorume Members) together with ts th) Associates, hols nat ess han 51% fFy-one percent of it sued an pid up Equty aon the date ofthis Agreement and that each Consortium ‘emer whore technica rane capacity wae evaliated fhe Durpotes of pre-quaifetion an shoring vespers othe Requestor Proposals shal hold teas 26% (wert sie ent of Equty curing the Construction Ptiod ae sx months terest sone tite eset ~The Canaesionaire shal, subject Apple Lawe and with aeatance ofthe Authority, undertake siting of any uty (nelsing elec lines, water pipes and eiephone cables), oan appreprate zation oF algnment sien tity or obstruction adverssy affects the execution ff Workzor Maintenance ofthe Proje: ghar in secordonce wh this Agreement a pec the cope ven in Schedule Bord inaccrdence ‘ith appleale anders nd speceations of cncerned ity omnng ‘nti The cont of sing of uch, incest ir Sehedle- Bi able to the Concessions as prt of Bi Project Cos. Ces of Shing utiles not ineluced inthe Senedule-8 any, shal be ested 28 Change of Scope. The Authority wl prove assistance tothe Coneessonare for obtaring the estimates for Sting a such wits ‘rom the ently owning suc lee lines, water ppesor telephone bles, athe case maybe. the Concessionae shal exeeue such ily shitting works unce the superson of tty owning gency a6 Indegendent Engineer (I) in atcorance wi he provion of preement. The supervision charges only sale pai by the Authority tothe tity Ouring ty, Inte event of any aay mshiing tere, the Conces.onave tal be esperile fa fallure to pvlorm any of a“ 228+143836212020/Mighways Section 3 # | Gaga Wartenanes During Construction Paviod 1241 During the Construction Period, the CConcesinsire shall maintain, at Its cost, the exiting | Project Wighway to ensure thatthe rove isin pothole fee ‘ondtion fe maintained , and shal undertake the ecessay reper and. maiterance works for this purpose. provided tat the Concessonaire may, atts fort iterupt ad iver he Users another pesons if Such internustion and diversion is necessary forthe tse progress of Construction Works and conforms to Sood! incisry Practice, prowced further that such Interution and aversion shall Be undertake” by the Concessanaite ony withthe por wten approval ihe Independent Engineer which approval shall not be \meesonably withheld. For he avoidance of doubt, k's | Sereed thatthe Concessinaite shall 3t all times be ‘esponsbie for ensrng ste ezeration ofthe Poet. ligations Fore undef auch falar nota ert corsnquenee of] “slay on the porto the entity auming sch elec ln, water pipes © | teleahone abies, asthe case maybe | Se dsmarted material/scrap of extngUsity to be | shited/ismaned shal belong the Conesssonaire who would be {ree to spose off the darted material as deemed by ther, ‘The workof siting of ules canbe takan up bythe Concessonae anytene ater sigingofthe Agreement. 124.1 Maintenance Ouring Construction Paiod 1241 during the Consiuction Period, the Concesionare shal rant, at cos the existing Projet ghway ensure that he oad | Fin pothole tee concion ie rrainaied , and shal undertabe the necessary repair and maintenance works fr hs purpose; rovided that the Conceuionive may, at ost, nterupt and det the Uses end ther persons if such interruption and sverson is recesary forthe ict progress cl Construction Worts ane convormsto Good Insy Practice, provided further tht such rtetrupton and diversion sal be Cnderaken bythe Conceaionaie any wth the pr written approval hehe Independent Engineer whieh approrl shal pot be unressonaby Wwihhel Furher, in coro the Scheduled Completion Date gets Trtended due to delay stibutable solely to the Authorty. the Concessonaire shal be lable to maintain the Projet Mighay fr sich txcended perodand shall be ented to recive reimbursement of cost Stmolntenane for uch extended period athe at speciiedin Cause {621 For the avoidance of daub, ti apres tat the Concessonare | | hall ata tines be response for ensuing sfe operation of the BELLA The Coneaonaie harebysgrees ord underaket thot it shal achieve Final Core win 150 one hundred and fy days ftom the date of this ‘ateeent Inte evert of day in achieving the Fanci Close the Cocessonae shal be ented to's frtherpaiod not encexing 120 ane hurdreé | _twenty) day subject to payment Damages tothe | 3211 The Conceorae hereby agrees and undertakes Bat t sal) chow Pnancal lve for an amount ot lower than eer: 4 Total reject Cost or fi. 10% os than (Estimated Project Cost minus 40% of Bd Project cost). (per cert] of the Percentage of Completion Cost femalning wo be paid on & the provsians of ase 2362, 754 Inerest shall be due and payable on the reducing bance of Complation Cot at an interotrate equal to the average of one Ye [MUR of top § Scheduled Commercial Sank” plus 125 pereent Such | Interest shall be dve and payasi laraly alongwith each rstainent speed in Cause 2363, For the avoidance of doubt ae by way of Iastration, the Parties agree that interest on the Completion Cost ernaring te be pei, ealeulated from COD ané uth the 180th [one hundred an eieth) doy of COD, shall be due and payable to the Concesennire ong with te ist Annuity Pyrent ane intereston "4 | (ft percent] of th Pereantage of Compiction Cost remaining ote paié ‘9 COD, ealelated fom Fst Anwity payment cate and unl the Ast {fest anniversary of COD, shal be due ard payable along withthe second robe inated on he bao te oxtatnding Compton Cost any punt tothe payment of" Annuly 3: proviedin he Arty payentachesie ype Atha sha le he et of op 8 Schad September very alent ys team the tlc sheet i 3 ac 9 ‘her snncal ropa. Tae year MEAN eto Seedne commer bas shal ba ten 3 Hest every gua ‘Mote mnataed on ihe bss of he outstnaingCarseten Cont hana prunnt tthe ayes" Rly 5 poise he Army payment che utnorty shall mate Tarmination Payment othe Coneessonare an amount equal (in aes termination occurs pio to COO: {01 Debs Due payment ealcuites ae per te tab bol as Insurance (Gover proviee that fanyineuranee aims torming pat of te insurance Cover ate not admitted ana paid, then BO [elghty per cet} of sch Lipid cle shallbe included inthe camutation of Debt Due Further ‘the Debt Due weule be ealeloted as per he table proved bolow: ‘Basis oF calculation for termination payment | Payment Mlesone a a 21341498962/2020!Highways Section Taran Te [baht anon |] ic fayaead | Ba anor oa | ‘ceteris tiene tos ic z | sore Tndtaynest [De ur Low 8d Paee | TE Faynend [Bat bua jLimteaone [east iheriione Mietone” | oturoec con | nttorrex—[oeiebue or soo Fiee | | | Scares wer imtsone Coats wich tower | ‘anapagmet——~)Se eo 0 Tiktaymen’ [bik ue 10s0mt Baa Mietore” | otadoroec tot, iiledene "| onto lower | steerer ster [tomentose of aR Sha Payment Bab Dor 1930 iMtecine "| on whew lowe | | aexone ctaisrje ton, @ fame Dek uso ISORt BaF sheer swe? | ttetne Cawiaactee | | | axpaymeat Bebe or 38755] 3 tome] | Meare cteisPe on, taiedmne | opt (fsseaea| | chr’ ulver tame’ Debtovee SDK BSP | sin aymeat Das 0 oO | tntetane co ein tines | ete ete Se | sachs wer tion tat utcher lover | 1G Farrand bet Sus or SO OZ PaE| (210% onehunded ar tenprceni tthe Ate | iteone Cocwncheerioeer | auity; (ih in cote Termination oceuts on or after COD, theo} 2105 (one undres anton por ent) afte Adjusted Equity ‘Authority shall make » Termination Payment to the (i) incase Termination occurs on rafter COD, the Authority shat make Concessionare_ in an amount equal to 90% (riety | Termination Payment tothe Concessonlre fan amovet equal S05 percent) o Annuity Payments remaining unpse for ne in (ninety percent) af Annuity Payments remaining. unpaid fer end in Fespect of the remsining Concesion Pelod,incluig | respect of te raining Concession Pere, inciting interest thereon Ingres thereon upto the Transfer Date | upto he easter ate as 73.3.2 Notwithstanding tothe pravsone of Cauve 3131 /31.32 Notwahstancing to the provisions of Cawse 313 upon | Goon Termination an acount of Concessionare Default Termination en account of Concessonare Default dung. the turing the Construction Perio, tne Termination Payment |Constucion Period, the Termination Paynens shall be baiet onthe Sholl be bosed onthe Payment Milestone achieved which | Payment Milestone achieved whieh In terms ofthe Physi Progress is in torms of the Phytsl Progress made. by the | made bythe Cncessonaioin the Project and the Termination Payment | Concesionate in the Projet_and the Terminton corresponding he acived Payment Miestne sale fll 7“ 27135143836212020/Mighways Section J Payment” corresponding to the “achieved Payment | lestne sale solos: Payment milestone | ertemonten | | peprnre=__| iitPemet NT wierore | | nsPanment SOR ORB Due ar Iiewore Sma ree tui ‘owe! aarent be babar Meroe iron oie swhienever i lower "72 ef Debt Due oF “ath Payment Milestone | zancorsia Praiect Com, whichever is ‘ih Payment 20% of Debt Due or Milestone 32% of Bid Poject | cost wines termination happening in between twa Payment Iilerones forthe purpose of cleltion of Termination Paymant, the milestone acniaved would only be conidered. 53.3.3 Upon Termination on eccount ofan Athorty way of Termination Payment amour equal 0: (hn cae the terminatien ocuts rie to COO [ Payment stone [payment TR estore 2 Payment iiesone Sha Pane Miesone Payment Muesone [Baperest | stone 8 Payment iletone ilestone 10" Payrent milestone For the svoidane of doubt, it eared that i case of termination haposning In Betwaen two Payment Milestones, forthe oupase of forthe avoidance of doubt, i is lari! that in ase of ealeltion of Termination Payment, the mietone achiw | be conidres 31.33 Upon Termination on azaunt ofa thority Dol the Detetytne autor saipay tothe Concenone, by | toca pny tothe Conessonae, by wayeFTematon aur of cation Torterminaton | ir 7 cb of Debt Due oF 9.00% ef Project Cost wnihever slower | 15% of Dabt Due o 12 58% of Project ost, wmihever lowe 70% of Geb Do 160% of A Project Cost, whichever lower 75% of Debt Du o 2.38% oF Droject Cont, whichever ower 80% of Debt Du o 26.40% of rooct Cost, whichever's ower 5% of Debt Due or 1.86% of BG Project Cost, whichever Slower Per ananeent nl | lnc he tanton are rors cO9 a fou enty 2186ast 143836212020/Highways Section Ta) Debt De pavventealeated ws pr be table Blow | 7 Deb Due paynentcalalated a pes the able below les Isuraret less insurance Cover: provided that lary iaurance Claims | Cover; rowcedthat an nsurence ims forming prtofhelnsurance forming prt ofthe insurance Cover arent admitted and | Cover are not edmitted nd pal, tren O% (lghty por cer) of seh pu then (eign percent) of sch unpaid cainsshal | ungad cams sal be include in the computation of Debt Doe. Further | be included in the computation of GeotOue, Further the | the Debt Due woul be clues as per the abe provided below | Debt due woul be calcite 25 per the table provided | ie Basia caetion for termination | tele Payment stone | eee eee eee eee |__| payment avmentiesone Basso elon Foyer’ be bue or 07ST BA PoE forterination Mestre Cost whenever ower pee ‘ 2d Payment DebtOve or sat BA ORT Ta Payrent Debt ove ot Miestone Cot whe a Milestone ‘of Bid Project Cost , ‘dnd Payment Debt Due or 6.00% of Bid Project | tichereris ower | iestre ort eaves iloner Fad Payment Debt Ove 10.30% | hPayment "eat eo 1050 0 aR Miesore ot aidProjet cos. letone Eon ceverisiower | a hicheveis ewer Sih Poymer be Ove o 15.0080 | araayment ——Deot due o 19305) imsestone Con wicherer lower sestone of aidProject cost Gtfaymant best due 8 0% of Bd Prost sicher ewer fmuestone Gon weer ower “A Faymane Debt Dae oF 387355 [Persrest |p 2 Pe Merona id Project Cost, estone Con wcheve er i _ whichever wer |g Payment | Debt Oue or 28 50% of Be Project | Sih Payment beat be or 50% an hihver | estore of Proctor, ‘Prrayment Dest Sue or 300% of 8a Fae | poe tthicheers twee store eat hihovr lower | 10" Payment Dest due 037 Sal Bd FoR | For the avoidance of doubt, itis cierified that in case of | | Milestone | cost , whichever is lower termination happening ia between to Payment Milestones, fo the puroose af calculation of Det Ove, | ror the avoidance of doubt, tlre thatin case of termination {he milestoneachievedwould ony te considered nd appeningin between two Payment Milestones, fr the purpose (2) 250% [one hundred and fityper cen of the Adjusted | eaetation of Debt Due, the milestone achieved woul oly be aut considered ane ____101180% fone hu ae anieeintorsiavanteentene: |1438362/2020/Mighways Section Tl ease The Termination occa on oF ae? €OD, ta | Vinca he termination oes on or afar COD, he Autry shal pay tothe Concessions, byway of Termination Pays, an amount ual Termination Payment an amount equalto sum afAnuity to sum of Annuity Payments remaining ungaé for andi respect ofthe Payments remaining unpaid for and in respec ef the | Concesian Period, aug interest thereon up the Trarster Date ‘anorty shat pay tothe Concasionae, by way of Concession “Tranter Dee, od, including intrest thereon up to the Dispute reslution fay cspute, liference of controversy of (7 wnatever nature howsoever arising under or out tar n elation to ths Agrement(neluting is Interpretation) between the Parties, and. so notified in writing by sither Party to the other Party tne “Diupute) sal nthe st instance, bo tempted tobe elves amcaby inaccoréarse ttn the canciationprocesure set forth in Cause ana. 28:12 The Parties agree to ute their best efforts fer resolving all lsputes arising under or in respect of this dareement prompt, equtsbly and in good fath, 2nd further agree to provide each other with reasonable access during normal business hour toa non preg record, information ana data pertaining to ary Dspute Dispute relation Balt sana aaa In the event of any dispute, difeerce or controversy of whatever nature howsoever arsing unde eu fo in relation to tus Agreement [including its interpretation) between the Parties, ae so noted in wing Dy eter Paty to the oer Party (he "Ospute", etter Fary may call upon the Independent Engineer, to mediate and asst the Parties Io sreving stan ameable setement there he Paves agree to ute ther bere efor for resolving all Disptesarking under orn respect ofthis Aereement arnt ‘nuteby and in good faith, and further agree to prove each other with reasonable tzes uring normal business nowstoa fom pried records, information and oats petalang to any Dispute. Dispute Resolution Board (ORS) Failing. medissen by the Independent Enginecr ov without the Intererion ef the independent Engineer, ether arty may require sth Dispute to be refered to the Dispute Resolution Soar ("ORS") accordance mith he procedure st frth in edule Sto the Concession Zereerent, The deosenfs) of the Ospute Resokion Boaré shall be | binding on both parses who shal promot gieefect io uniss and vt the sane i revised modified, as hereinafter povided ina Conlon ‘tata buna. ee | 38.1. Dispute Resolution Board (ORB) Faling mediation ay the Independent Engncer or without the “rogue suey Dispite to be rfere tothe DsputeResauton | a 21881438362/2020!Highways Section io 382 Condllation Inthe event of ary Dispute between the Parties, cher Party may cal upon the independent Engineer tomedste {nd asst the Paresinarvngat an arvcable settlement ‘thereat Fang mediaton bythe lrdependent Engineer or ‘athout the intervention af the independent Engrce, ‘ther ary ma fequresuch DSputeiobereferred othe Ichatmar} of the Authorty and the Charman of the Board of Directors of the Concesionaire ‘ar amicable settlement, and upon such flerenc, the sald persors Shall meet no ater than 7 seven) days ro the date of feforence to circus ane ater to amnaiy resove the Diep. auch meting doesnot take place within the 7 (seven) days pri or he Dispute i not arab sted thin 5 teen) days of the meeting or the Disputes rot resohed as evidence bythe signing often terms. GF seslemert within 30 (hit! daye ofthe eaten a Jnvng seerred to in Cayes 384.1 oF sh longer pies ‘may bematally aproedby the Parties ether Party may ‘afer the Dispute to arotration in aezordance with the ‘rovisions of Cause 38-3. Boncd (CORB) ih acordance with the procedure sat form Schedule § othe Concession Agreerert. The decsion() of the | Dispute Reson Board shall be binding on beth pats who | stall prompsly ge effect to uness and utlthe sareis revised ‘modified, a hereafter provided, In 2 Conliation) Abita “onclation Hfether Party ested wth any deesion ofthe DA, andar tye ORB zurabinto resove elspa, ether Party may refer the Dispute to eration in accordanea with the prowsns of ‘Clouse 283 but bslre resorting to suehaitation, the pares tree to exglore concliaton bythe Conclation Committees of Independent Exper oct up by the Authority accardance with the provedure deve by the panel of such experts andres by the Authorty on is webste Itdudng its subsequent amendments. nthe evert ofthe collation proceedings Bing Suecessul the partie 1 the dspute would sgn the wien fettlament agreement andthe cneliat's woul avthentaie the sare, Sich sete ayement woul then be bing on te pate interns of Section 73 the Rrbivaion Act. nexse flue ofthe coneation process even at te level ofthe Cancion Committe, etme aunty may reer the Dispute fo srtraton i accordance with ie pros of Cause 383. EIS Ths Agreement and the rights and obligations oF 3833, the Paris shal remain In ful force and ee, bending the Awarin any arbiatonproceecgs hereunder {ny dapute between them each pay ‘is Agreenientand te igh and oblgatonsef ihe Panes shal ‘remain in full force and elect, ponding the Award in any fsrbscaion proceedings hereunder. Further, the partis ‘nconatioaly axnowledge and age that notwithstanding proceed withthe2140 1438362/2020/Mighways Section Berman i pave sbanons, erin rsauon a Bipute nsecordanco wih hs Ate ay "Changs ia Ownerhip” wears a tonal of he Greet andor a peti: ] "Change in Ownership" means 2 wansfer ofthe rect and/or iniect Tega or bone ‘umership of eny sare, or secures convertible | into shoes, hat causes the aparegate naling of the (elected bidder? Consortium Membersogether with fs/tet) Associates, in ‘the tora Equty to decine below shy one per ‘ent thereof during Construction Pero an two years thereafter, proved that any mater anton {es compares to the representations rade by the Coneestionire dune the Ding processor he purposes of meeting teria onal of elgbity oF for evaluation of Fs application or bid, 28 the case may be) inthe proportion ofthe equtyneeing of the selected Bidder! any Consortium Member} to the total Equlty fit oceurs prior to completion ofa period tava yrs after COD, shal conritte Change Ownership; "paragraph 9 of Rave Schedule F 14 ‘he Guarantee shall ease to be In force and effet on |The Guarantee sal ceese oben fore and effect on | PROBA eae incvet egal benef ownership of any shares or scrtios, Convertible inta shares, tat eases the aggregate hosing the [selects bier/Conertxm Members tagether wth ifthe Associates, nthe total cautytedeline blow 51 (ty one par Cent) there during. Corstuction Pertad and two. year? therefor, provided that any material variation (5 compared te the fepesertalors made by the Concesionare during the Dang process for the purposes of meeting the misimam condone of ele or fr evaluation of ts apoicaton a i, {a5 the case maybe, Inthe groportion ofthe equlty hong oF {the selecies tscer/ ary Consortiom Merber) fo the tt guy, ft ecers prior to completion of» eto ix months ‘ter COD, shall constitute Charge Ownership: "less demanior calm under ths Guarantee | 2 demand or dam under ths Guarantee made in wing or before is made in writing o7 oF Before the aforesaid date, the | the aforesaeé date, the Eank shall be discharged ar i Vabies | Gane sal be aicharges rm its anes hereunder. | hereunder. | | ° nti the valsty shal be 6 days aftr the expected | cae forth payment milestone mentioned in dase 25.4 eltheAyeenent = nina the vali shal be 6 days ater the expected date fr tenth | payment miestone mentioned in cause 234 af the Agrcerert. the aneessionir subs the Goaeantee which hs ably petog WN Yyaa 1438362/2020/Highways Section [ethan ta spider then te Concessonae ake pv [Slant tothe Auto whch states tht he cocestonare Shaiet nev ofthe Gunrante extendas hat he Guarance | vl in azardonce wants footnote J2743 1438362/2020/Highways Section Additional Schedule: Dispute Resolution Board S: Procedure for Dispute Resolution Board The parties to the Concession Agreement mutually agree as follows: (1) The Board shall comprise of three Members having experience in the field of construction or have been involved in the Works related to construction and with the interpretation of contractual documents, One Member shall be selected by each of the Authority and the Concessionaire from the list maintained by NHAI hosted an its website (www.nhai.gov.in). In the event the parties fail to select the member within 28 days of the date of the signing of Concession Agreement, In that eventuality, upon the request of either or both parties such Member shall be selectad by SAROD within 14 days. The third Member shall be selected by the other two members from the same list. if the two Members selected by or on behalf of the parties fail to select the third Member within 14 days after the later of their selections, then upon the request of elther or both parties such third Member shall be selected by SAROD within 14 days. The third Member shall serve as Chairman of the Board. (2) The Board shall be constituted when each of the three Board Members has signed a Board Member's declaration of Acceptance as required by the DRB's rules and procedures (which, along with the declaration of acceptance form, are attached as Annexure herewith] (3) In the event of death, disability, or resignation of any Member, such Member shall be replaced in the same manner as the Member being replaced was selected. if for any other reason, a Member fails or is unable to serve, the Chairman (or failing the action of the Chairman then either of the other Members) shall inform the Parties and such non-serving ‘Member shall be replaced in the same manner as the Member being replaced was selected Any replacement made by the parties shall be completed within 28 days after the event giving rise to the vacancy on the Board, failing which the replacement shall be made by SAROD in the same manner as described above. Replacement shall be considered complete when the new Member signs the Board Member's Declaration of Acceptance. Throughout any replacement process, the Members not being replaced shall continue to serve and the Board shall continue to function and its activities shall have the same force and effect as if ‘the vacancy had not occurred, provided, however, that the Board shall not conduct a hearing, nor issue a decision until the replacement is completed, (4 If either the Authority or the Concessionaire is dissatisfied with any decision of the Board, and/or if the Board fails to issue its decision within 56 days after receipt of all the pleadings (along with the supporting documents) of the parties by the Chairman of the Board or any extension mutually agreed upon by the Employer and the Concessionaire, in such a case, a1438362/2020/Highways Section cither the Employer or the Concessionaire may, within 28 days after his receipt of the decision, or within 28 days after the expiry of the said period, as the case may be, give notice to the other party, with a copy for information to the Independent Engineer, of his intention to refer the matter to the Conciliation Committee of Independent Experts (CCIE) of the Authority for Conciliation/amicable settlement. It is mandatory to refer all the disputes to ORB before issuance of completion certificate and satisfactory completion of punch list items. No dispute shall be entertained after completion of aforementioned date. (5) If the Board has issued a decision to the Authority and the Concessionaire within the said 56 days or any extension mutually agreed upon by the Authority and the Concessionaire and no notice of intention to commence Conciliation by the Conciliation Committee of Independent Experts (CCIE) of the Authority for Conciliation/amicable settlement as to such dispute has been given by either the Authority or the Concessionaire within 28 days after the parties received such decision from the Board, the decision shall become final and binding upon the employer and Concessianaire (7) Whether or not it has become final and binding upon the Authority and the Concessionaire, a decision shall be admissible as evidence in any subsequent dispute resolution procedure, including any arbitration or litigation having any relation to the dispute to which the decision relates. (6 All decision of ORB which have become final and binding or till they have been reversed in subsequent conciliation/Arbitration process shall be implemented by the parties forthwith Such implementation shall also include any relevant action of the Independent Engineer. (3) (9) If during the Concession Period, the Authority and the Concessionaire are of the opinion that, the Disputes Resolution Board is not performing its functions properly, the Authority and the Concessionaire may together disband the Disputes Resolution Board and reconstitute it. In that case, a new board shall be selected in accordance with the provisions applying to the selection of the original Board as specified above, except that words “within 28 days after the signing of this Concession Agreement” shall be replaced by the words “within 28 days after the date on which the notice disbanding the original Board became effective”. (10) The Employer and the Concessionaire shall jointly sign a notice specifying that the Board shall stand disbanded with effect from the date specified in the notice. The notice shall be posted by email to each Member of the Board. A Member shall be deemed to have received the email even if he refuses to have received the same, (11) All other terms and conditions of the original Concession Agreement shall remain unaltered/unaffected and the parties shall remain bound by terms and conditions as contained therein. e 274:1438362/2020/Highways Section 1 Annexure to Schedule [S] Disputes Resolution Board’s Rules and Procedures Except for providing the services required hereunder, the Board Members shall not give any advice to either party or to the Independent Engineer concerning conduct of the Works. The Board Members: fa) (b) () (a) fe) a) (e) Shall have no financial interest in any party to the Contract, or the Independent Engineer, or a financial interest in the contract, except for payment for services on the Board. Shall have had no previous employment by, or financial ties to, any party to the Concession Agreement, or the Independent Engineer, except for fee based consulting services/advisers on other projects, and/or be Retired Government Officers (not connected in whale or part with the project), all of which must be disclosed in writing to both parties prior to appointment to the Board. Shall have disclosed in writing to both parties prior to appointment to the Board any and all recent or close professional or personal relationships with any director, officer, or employee of any party to the Contract, or the Independent Engineer, and any and all prior involvement in the project to which the Contract relates; Shall not, while Board member, be employed whether as a consultant or adviser or otherwise by either party to the Contract, or the Independent Engineer, except as a Board Member, without the prior consent of the parties and the other Board Members; Shall not, while a Board Member, engage in discussion or make any agreement with any party to the Contract, or with the Independent Engineer, regarding employment whether as a consultant or otherwise whether after the Contract is completed or after service as a Board Member is completed. Shall remain and be impartial and independent of the parties and shall disclose in writing to the Employer, the Concessionaire and one another any fact or circumstance which might be such as to cause either the Employer or the Concessionaire to question the continued existence of the impartiality and independence required of Board Members; and Shall be fluent in the language of the Contract. “ 27a1438362/2020/Highways Section Except for its participation in the Boards activities as provided in the Concession Agreement ‘and in this Agreement none of the Authority, the Concessionaire, and or the Independent Engineer shall solicit advice or consultation from the Board or the Board Members on matters dealing with the conduct of the Works. The Concessionaire shall (a) Furnish to each Board member one copy of all documents which the Board may request including Concession Agreement, progress reports and other documents pertinent to the performance of the Concession Agreement. (b) In cooperation with the Authority, coordinate the site visits of the Board, including conference facilities, and secretarial and copying service. ‘The Board shall begin its activities following the signing of a Board Member's Declaration of Acceptance by all three Board Members, and it shall terminate these activities as set forth below (a) The Board shall terminate its regular activities when either (i) issuance of completion certificate and completion of punch list items or (ii) the parties have terminated the contract and when, in either case, the Board has communicated to the parties and the Independent Engineer its decision on all disputes previously referres to i. (b) Once the Board has terminated its regular activities as provided by the previous paragraph, the Board shall remain available to process any dispute referred to it by either party. In case of such a referral, Board Members shall receive payments as provided in paragraphs 7(a)(i), (i) and (iv). Board Members shall not assign or subcontract any of their work under these Rules and Procedures. ‘The Board Members are Independent and not employees or agents of either the Authority or the Concessionaire. Payments to the Board Members for their services shall be governed by the following provisions (a) Each Board Member will receive payments as follows |. A retainer fee per calendar month as specified in the schedule of fee made part of ‘this Schedule and its revision from time to time. This retainer fee shall be considered as payment in full for 27a1438362/2020/Highways Section (b) {c) (a) (A) Being available, on 7 days’ notice, for all hearings, Site Visits, and other meetings of the Board. (8) Being conversant with all project developments and maintaining relevant files. (C) All offices and overhead expenses such as secretarial services, photocopying and office supplies (but not include telephone calls, faxes and telexes) incurred in connection with the duties as a Board Member. ii. Adaily fee as specified in the schedule of fee in respect of fee for site visit & meeting, fee for meeting/ hearing not at site and extra charges for days (max. of 02 days for travel on each occasion) other than hearing / meeting days. il, Expenses, in addition to the above, all reasonable and necessary travel expenses {including economy class air fare, subsistence, and other direct travel expenses). Receipts forall expenses in excess of [Rs. 2000/- (Rupees Two Thousand only)} shall be provided iv, Reimbursement of any taxes that may be levied on payments made to the Board Member pursuant to this paragraph 7. ‘The retainer fee and other fees shall remain fixed for the period of each Board Member's, term until revised by NHA. Phasing out of monthly retainer fee. Beginning with the next month after the completion certificate (or, if there are more than one, the one issued last] has been issued, the Board members shall receive only one-third of the monthly retainer fee till next one year. Beginning with the next month after the Board has terminated its regular activities, pursuant to paragraph 4(a) above, the Board members shall no longer receive any monthly retainer fee. Payments to the Board Members shall be shared equally by the Authority and the Concessionaire. The concerned Project Implementation Unit (PIU) of Authority shall pay members’ invoices within 30 calendar days after receipt of such invoices and shall invoice the Concessionaire for one-half of the amounts of such invoices. The Concessionaire shall pay such invoices within 30 days’ time period after receipt of such invoices. & Board Site Visits : (a) The Board shall visit the Site and meet the representatives of the Authority, the Concessionaire and the Independent Engineer at regular intervals, at times of critical construction events, at the written request of either party, and in any case not less than 6 times in any period of 12 months. The timing of Site visits shall be as agreed among the oe 2746274i 1438362/2020/Highways Section ‘Authority, the Concessionaire and the Board, but failing agreement shall be fixed by the Board. {b) Site visits shall include an informal discussion of the status of the construction of the ‘Works. Site visits shall be attended by personnel from the Authority, the Concessionaire and the Independent Engineer. (c} At the conclusion of each Site visit, the Board shall prepare a report covering its activities during the visit and shall send copies to the parties and to the Independent Engineer. 9. Procedure for Dispute Referral to the Board (a} if either party objects to any action or inaction of the other party or the Independent Engineer, the objecting party may file @ written Notice of Dispute to the other party with a copy to the Independent Engineer stating that itis given pursuant to the Agreement and state clearly and in details the basis ofthe dispute. (b) The party receiving the Notice of Dispute will consider it and respond to it in writing within 14 days after receipt. (c]_ This response shall be final and conclusive on the subject, unless @ written appeal to the response is filed with the responding party within 10 days after receiving the response and call upon independent Engineer to mediate and assist the parties in arriving an amicable settlement thereof. Both parties are encouraged to pursue the matter further, to attempt to settle the dispute. (d) If the Independent Engineer receiving the Notice of Dispute fails to provide a written response within 14 days after receipt of such Notice or failing mediation by Independent Engineer, either party may require such dispute to be referred to the Board, either party may refer the dispute to the Board by written Request to the Board. The Request for decision shall state clearly and in full detail the specific issues of the dispute (s) to be considered by Board and shall be addressed to the Chairman of the Board, with copies to the other Board Members, the other party, and the independent Engineer, and it shall state that itis made pursuant to this Agreement. (e) When a dispute is referred to the Board, and the Board is satisfied that the dispute requires the Board's assistance, the Board decide when to conduct a hearing on the dispute. The Board may request that written documentation and arguments from both parties be submitted to each Board Member before the hearing begins. The parties shall submit insofar as possible agreed statements of the relevant facts. ~K1438362/2020/Highways Section 10. 1 (f) During the hearing, the Concessionaire, the Authority, and the Independent Engineer shall each have ample opportunity to be heard and to offer evidence. The Board's decision for resolution of the dispute will be given in writing to the Authority, the Concessionaire and the Independent Engineer as soon as possible, and in any event not more than 56 days or any mutually extended period between the Authority and the Concessionaire. The time period of $6 days of issuance of ORB decision will reckon/start from the day of first hearing that begins after submission of complete pleadings (including supporting documents, if any) by the parties Conduct of Hearings : (a) Normally hearings will be conducted at the Site, but any location that would be more convenient and still provide all required facilities and access to necessary documentation may be utilized by the Board, Private session of the Board may be held at any cost effective location convenient to the Board. Video recordings of all hearings shall invariably be made. (b} The Authority, the Independent Engineer and the Concessionaire shall be given ‘opportunity to have representatives at all hearings. Parties should restrain to bring any Advocate/Law Firm during DRB hearings. During the hearings, no Board Member shall express any opinion concerning the merit of the respective arguments of the parties. (d) After the hearings are concluded, the Board shall meet privately to formulate its decision. The private meeting (s) of the Board shall not exceed 3 sittings. All Board deliberations shall be conducted in private, with all Members’ individual views kept strictly confidential. The Board's decisions, together with an explanation of its reasoning. shall be submitted in writing to both parties and to the Independent Engineer. ‘The decision shall be based on the pertinent contract provisions, applicable laws and regulations and the facts and circumstances involved in the dispute. {e) The Board shall make every effort to reach a unanimous decision. If this proves impossible the majority shall decide and the dissenting Member may prepare a written minority report together with an explanation of its reasoning for submission to both parties and to the Independent Engineer. In all procedural matters, including the furnishing of written documents and arguments relating to disputes, site visits and conduct of hearings, the Board shall have full and the final authority. If 2 unanimous decision on any such matter proves impossible, the majority shal prevail Ke 2748274¢ 1438362/2020/Highways Section 12. After having been selected and where necessary approved each Board Member shall sign two copies of the following declaration and make one copy available each to the Employer and to the Concessianaire,1438362/2020/Highways Section “BOARD MEMBER'S DECLARATION OF ACCEPTANCE” WHEREAS (a) A Concession Agreement (the Concession) for the project [fill in the name of project] has been signed on {fill in date] between [name of Authority] and [name of Concessionaire) (the Concessionaire).; (b) The provisions of Agreement and Dispute Resolution Board's rules and procedure provided for establishment and operation of Dispute Resolution Board (ORB). {c)__ The undersigned has been selected to serve as a Board Member on said Board; NOW THI he undersigned Board Member hereby declares as follows : 1. | accept the selection as a Board Member and agree to serve on the Board and to be bound by the provisions of Concession Agreement and rules and procedure provided for establishment and operation of Dispute Resolution Board (DRB), 2. With respect to paragraph 1 of Dispute Resolution Board's Rules and Procedure. said 3. Annex A, | declare (a) that | have no financial interest of the kind referred to in subparagraph (a): [b) that | have had no previous employment nor financial ties of the kind referred to in subparagraph (b); and [c)_ that | have made to both parties any disclosures that may be required by sub- paragraphs (b) and (c). [declare that [have __no. of Arbitrations (list enclosed) and _no. of DRBs (list. enclosed) in progress and that I will give sufficient time for the current assignment, BOARD MEMBER 27561438362/2020/Highways Section Date: 2751438362/2020/Highways Section Schedule of expenses and fees payable to the Member (s) of Dispute Resolution Board The fee and other expenses pavable to the Members af DRB shall by as wander "AMOUNT PAYBLE PARTICULAR He ‘ainer-ship fee, —_sccretarial | (Rs. 50,000/- per month for one package and assistance and incidental charges | maximum of Rs, 75,000/- per month (Celephone, fax, postage etc.) for 2 or more packages) ‘ee for site visit or ite 3 | Traveling expenses Economy class by air, AC first class by train and AC taxi by road 4 | Lodging & Boarding] [Rs-15,000/- per day (Metro Cities) yor | Rs. 5,000/- per day (own arrangement)] Extra charges for days other than | [Rs.5,000/-] hearing/meeting days (travel days maximum of 2 days on cach occasion) 6 | Local conveyance TERS: as auiciaa) | | | | | | Rs, 10,000/- per day (in other cities); or | | Notes: (i) Lodging, boarding and travelling expenses will be allowed only for thase members who are residing 100 kms away from the place of meeting, (ii) Delhi, Mumbai, Chennai, Kolkata, Bangalore and Hyderabad shall be considered as Metro Cites. lili) The above schedule of fee and expenses shalll be applicable on or after the date of issue of this circular. {iv) The expenses are to be shared equally by the parties i.e. Authority and Concessionaire. aK