This agreement made on this 4th day of May in the year 2001 between Kamal Ahmad s/o Mazharul Haq r/o Nai Bazar Karma, Allahabad, hereinafter called the contractor (which expression shall include the heirs, successors, executors and administrators) and the Governor of Uttar Pradesh hereinafter called the Governor (which expression shall include the successors-in-office and assigns).
Whereas the governor had plans to construct a colony in Lucknow under a scheme called Indira Avas Yojna (hereinafter described as the works) consisting of one room flats meant for the weaker section of the society more particularly described in the annexed specifications and drawings.
And whereas the governor had also invited tenders from contractors registered with the Public Works Department of the State and also from the contractors registered with any other agency carrying on business of construction of buildings and like works and such contractor has been required by the said governor to provide necessary material like bricks, element, iron etc. with reference to the drawings and specifications and furnish rates of such materials.
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And whereas the contractor delivered the tender complying with the terms and the conditions of the tender expressing his willingness to execute the works and provide the materials required therefor.
And whereas the tender of the contractor has been accepted by the governor subject to the terms and conditions set forth in the conditions of the contract annexed hereto.
Now this indenture executed between the parties witnesses the following :
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1. That the contractor does hereby covenant with the Governor that he shall supply all the materials required in the execution of the works. The execution of the works shall be carried on in sound and workman like manner and completed within the stipulated period. The contractor has also agreed to maintain the works for a specific period more particularly provided in the conditions of the contract annexed hereto. That the consideration for which the execution of works has been accepted by the contractor, has been set out in the conditions of the contact which has been properly explained to him and which he has understood with reference to the drawings, specifications, requirements, stipulations and other related matters in respect of the works.
2. That the governor has been pleased to covenant with the contractor to pay to the contractor for execution, completion and maintenance of the works more particularly described in specifications annexed hereto, the considerations money in the manner and to the extent of as provided in the annexed conditions of the contract. The manner and mode of payment and the sum payable in terms of the conditions of the contract may vary subject to any addition, alteration or deletion in the plan and also subject to deductions set out in the said conditions of the contract.
3. That the parties do hereby declare that the conditions, drawings specifications and schedule of rate as detailed in the conditions of the contract and as given in the specifications annexed hereto shall be binding on the contractor and the governor.
In witness whereof the parties aforementioned have signed this deed on the date aforementioned in presence of the witnesses undersigned.
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1. Witness
2. Witness
Signature of the parties :
1. Contractor
2. For and on behalf of the Governor
Designated Officer
Annexure
Conditions of the Contract
1. General.—In this agreement and also in these conditions and annexed specifications the expression “Chief Engineer” shall means the Chief Engineer, Local Self Government Engineering Department, Government of Uttar Pradesh.
The expression Superintending Engineer means the Superintending Engineer Local Self Government Engineering Department, Government of Uttar Pradesh.
The expression Executive Engineer means the Executive Engineer Local Self Government Engineering Department Government of Uttar Pradesh, and
The word “works” means the work to be executed by the contractor which has been the subject matter of the tender and the agreement entered into by the parties whether original or amended by way of any alteration, deletion, addition or
2. Time for completion of works—The works shall be executed by the contractor within 36 calender months which shall be computed from the date of execution of the agreement by the parties. The contractor shall be issued written order to commence the work and the contractor shall commence the same within seven days of receipt of such order and shall also inform the Chief Engineer regarding such commencement of work in writing within seven days of receipt of the said order.
3. The contractor has agreed to complete the works within 36 calender months. A specific time plan has been worked out in the specifications annexed hereto and the contractor shall have to adhere to such time plan and complete the works in accordance with the said plan. It has been specifically agreed by the parties that the time is essence of the contract. Where the contractor is found lacking behind the schedule of time and any part of the works is not commenced by the due time or is not completed by the given time, the contractor shall be liable to pay compensation an amount equal to one per cent or such other smaller amount fixed by the Chief Engineer in relation to the value of uncommenced works or unfinished work as the case may be. The purpose of provision of such compensation is obviously to ensure timely completion of the works and with that end in view, to ensure good progress of the execution of the works. It has been specifically agreed by the contractor that where the progress of execution of the works is not satisfactory, the contractor may be declared by the Chief Engineer as liable for breach of contract and in that event the contractor may have to suffer as detailed in the next para hereto. It is made clear that for the purpose of determination of the fact whether the execution of the work by the contractor is proceeding satisfactorily or not the decision of the Chief Engineer shall be final and binding on the contractor.
4. Where the contractor is found liable for breach of the contract under any provision of this agreement or conditions and specifications annexed thereto, the Governor shall have option to take any or all measures against the contractor :
(i) to rescind the contract but before doing that the contractor shall be given a notice in writing under the signature of the Chief Engineer to show cause why the contract in question be not rescinded and he shall also be provided an opportunity of being heard in person. If the contractor fails to show any reasonable cause the contract may rescinded.
(ii) to determine the contract and award it to some other contractor on such terms and conditions as agreed between the governor and the such other contractor. Where the contract is rescinded or determined as aforesaid, the contractor shall forfeit the security money deposited by him with the governor and may further be liable to pay compensation to the governor. In any case the contractor shall have no right to claim for compensation from the governor in respect of any loss suffered by him on account of rescinding of the contract or to determination thereof. In case the contractor is rescinded, the contractor shall not be paid any sum for any work actually performed under the contract except for the work for which a certificate has already been issued by the Superintending Engineer and specifying the value payable to the contractor in this respect.
5. Where the contractor desires extension of time for completion of the contract work, he may do so by moving an application for the purpose of the Chief Engineer showing reasons for such extension and on consideration of facts stated in the application the Chief Engineer may extend such time as he deems fit. In case the reasons shown by the contractor are not good according to the Chief Engineer, he shall give the contractor an opportunity of being heard personally before rejecting the application.
6. The Executive Engineer shall furnish a certificate of completion of the works after inspecting the entire construction and taking necessary measurement in presence of the contractor. For this purpose the Executive Engineer shall cause to be served a notice to the contractor specifying the date and time of the inspection and taking measurements and if the contractor does not turn up on the given date, the Executive Engineer shall complete the inspection and taking measurement and such measurement shall be binding on the contractor. Immediately, after such measurement the contractor shall get all his scaffoldings, rubbish and unutilized and surplus material from the site and clear it in all respects so as to make the colony habitable. In case the contractor fails to remove the scaffoldings, rubbish and unutilized and surplus material within seven days of taking measurement by the Executive Engineer, the later shall cause the same to be removed and the expenses incurred therein shall be deducted from the final bill of the contractor.
7. The Chief Engineer shall ensure interim payment on weekly basis. For this purpose the works done from Monday to Sunday shall be measured on following Monday and bill shall be drawn payment whereof shall be made on the next Tuesday. However, the Chief Engineer shall deduct a sum equal to 1% of the amount of such bills which shall be held in deposit as an additional security for the performance of the contract. Such payments may be with held by the Chief Engineer where the progress of the works being executed by the contractor is found unsatisfactory or where the defects pointed out to the contractor, if any, have not been removed. All payment in respect of such weekly bills shall be treated as advance paid to the contractor which shall be adjusted from the final bill. The final bill shall be submitted by the contractor within one month of the date of completion of the works or the extended date of completion of the works whichever is later. Such final bill shall be drawn immediately after the measurements have been taken by the Executive Engineer and a copies of such measurements are made available to the contractor. The total amount worked out on basis of such measurement shall be final and binding on the contractor and payment of such amount shall be made to him within 60 days of submission of such final bill subject to deductions and adjustments which ever is applicable.
8. The bills shall be prepared strictly in accordance with the rates given in the schedule forming part of the condition of the contract. Such bills shall be drawn on prescribed form proforma where of may be had from the office of the Executive Engineer. Where the contractor has executed an extra work, he shall be paid for that in addition to payments made to him for works completed in accordance with the specifications and drawing referred to herein above.
9. Any material not available in the open market may be supplied to the contractor by the governor on request of the contractor and latter shall be responsible to pay for the same at a rate given in the schedule of rates annexed hereto. The price of such material shall be deducted at the rate given in the schedule from the bills of the contractor.
10. The works shall be executed by the contractor in most befitting and workman like manner using quality material and employing skilled and expert workmen strictly in accordance with the specifications and drawings and following written instructions of the Executive Engineer.
11. The drawings and specifications may be changed by making additions, alterations or deletions by the Executive Engineer who shall inform the contractor regarding such changes in writing and also well in advance of the execution of the works and the contractor shall be obliged to follow the instructions of the Executive Engineer in letter and spirit. Changes introduced in the drawings and specifications shall be deemed to be part of the works and shall be carried out by the contractor in the same manner and on the same terms and conditions as that of the original drawings and specifications. Any class of work taken up by the contractor which is found uncovered by the schedule of rates agreed upon by the parties hereto, the rates prevailing in the Central Public Works Department shall be applicable whether or not a particular work is covered by the scheduled rates agreed upon by the parties hereto shall be decided by the Chief Engineer whose decision shall be final and binding on the contractor.
12. All machinery, tools and building material brought at the site by the contractor shall be deemed to be property of the Governor and shall not be removed by the contractor without written permission of the Executive Engineer.
13. Where progress of work or execution thereof is not found satisfactory and the contract is rescinded or determined, the Chief Engineer may take over the unused building material from the contractor at the rate on which the same was purchased by the later and in such event the contractor shall also be paid freight and expenses incurred in bringing the material upto the site of the works. However, the Chief Engineer may take over such material partly and the contractor shall not have any claim in respect of the balance quantity of the material which can be lifted away by the contractor.
14. Where any change is introduced in the drawings and specifi cation by way of deletion of any part of the building plan or omission thereof from the original plan, the contractor shall not carry out execution of such part and consequently shall not be paid for such omitted part. The contractor shall have no right to have any claim on account of reduction in the works and shall not be entitled to any compensation for having been not allowed to execute full works as per original drawings and specifications.
15. Where the Executive Engineer has given instructions in writing to the contractor to demolish such part of the construction which has been executed without using quality material or with imperfect and unskilled workmanship, the contractor shall rectify, remove, demolish and reconstruct that part of the works as per drawings and specifications to the satisfaction of the Executive Engineer within the time allowed therefor.
16. The execution of works and material being used by the contractor shall always open to inspection of the Executive Engineer or his subordinates during the progress of the work. There shall be no need of giving any notice to the contractor regarding intention to the Executive Engineer or his subordinate to inspect the execution of works and use of the material but instruction given by the Executive Engineer after such inspection shall always be in writing and shall be duly served on the contractor or his agent present at the site of the works.
17. Where any construction is going to be covered up or going beyond the reach for measuring up, the contractor shall give notice to the Executive Engineer in writing intimating him regarding need of urgent measuring of such construction and on receipt of such notice the Executive Engineer shall cause to be measured such construction as soon as it is possible to facilitate further construction by the contractor.
18. The contractor has agreed to indemnify the Governor in respect of any loss of person or property in execution of the works due to any injury on account of any accident or otherwise.
19. If the contractor or his workmen, during the period of execution of works break, destroy, deface or damage any buildingfence, road or construction including standing crops and trees and the person suffering loss on that account claims any compensation, the contractor shall be liable to make good the loss at his own expense. In case of his failure to do so, the Executive Engineer shall cause the same to be made good and expenses incurred in such process shall be deducted from the bill of the contractor.
20. All the skilled and unskilled labour and material needed in execution of the works shall be supplied by the contractor. Likewise all tools, appliances, implements, scaffoldings shuttering and machines required for use in execution of the works shall be managed by the contractor. Necessary fencing shall be done by the contractor. He shall also provide for guards and watchmen for safety of the material lying at the site of the works. The contractor shall manage availability of power and water at the site of works and for this purpose obtain necessary power and water connections from the appropriate authorities. All provisions of law shall be observed by the contractor while executing the works particularly the law relating to environment.
21. The contractor has agreed not to employ any child labour in execution of the works.
22. It has been specifically agreed between the parties that no part of the works shall be assigned or sublet to any other person except with written consent of the governor.
23. Execution of works shall be done by the contractor under the direct supervision and direction of the Executive Engineer.
24. The contractor has paid a security money of Rs……………….. to the Governor receipt whereof has been acknowledged by the Governor.
25. That in case any dispute arises between the parties hereto in regard to interpretation of specifications and drawings or any other matter, it shall be referred to arbitration. Each party hereto shall appoint one arbitrator. The arbitrators so appointed shall appoint one person to act as Umpire. The award of the umpires shall be final and binding on the parties.
In witness whereof the parties hereto have signed this agreement on the date aforementioned at Allahabad in presence of the witnesses undersigned.
Witnesses :
1. ……………………
2. ……………………
Signature of the parties :
1. Signature of the contractor
2. Signature of the designated official for and
on behalf of the Governor of Uttar Pradesh