1
EXHIBIT 10(LLL)
ARTICLES OF AGREEMENT made the day of 2000 between CERPROBE
CORPORATION, whose registered office is situated at 0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000 XXX. PENANG, MALAYSIA or its assignee
(hereinafter called "the Employer") of the one part and BUILD-TEC MANAGEMENT
SDN, BHD, whose place of business is situated at 00-0, XXXXXX XXXXXXX, 00000
XXXXXX, XXXXXXXX, (hereinafter called "the Contractor") of the other part.
Should CERPROBE CORPORATION ("the Employer") form a registered in Malaysia
subsidiary this agreement shall automatically be assigned to said Malaysian
registered subsidiary who thereafter shall be the Employer.
WHEREAS
A. The Employer is desirous of obtaining the construction of the PROPOSED
RENOVATION WORKS TO AN EXISTING FACTORY ON XXXX 00 (X.X.X.) XXXXX 0, XXXXX
LEPAS, for which works he has issued to the Contractor his requirements
(hereinafter referred to as "the Employer's Requirements").
B. The Contractor has submitted proposals for carrying out the works referred
to in the First Recital (hereinafter referred to as "the Contractor's
Proposals") which include the statement of the sum which he will require
for carrying out that which is necessary for completing all such works in
accordance with the Conditions (which is the Contract Sum stated in Article
2) and has also submitted an analysis of that sum (hereinafter referred to
as "the Contract Sum Analysis") which is annexed to the Contractor's
Proposals.
C. The Employer has examined the Contractor's Proposals and the Contract Sum
Analysis and, subject to the Conditions hereinafter contained, is satisfied
that they appear to meet the Employer's Requirements.
NOW IT IS HEREBY AGREED AS FOLLOWS
ARTICLE 1
Upon and subject to the conditions, the Contractor will, for the consideration
mentioned in Article 2, both complete the design for the Works and carry out
and complete the construction of the Works.
1
2
ARTICLE 2
The Employer will pay to the Contractor the sum of Ringgit $1,338,000
(hereinafter referred to as the "the Contract Sum") or such other sum as shall
become payable hereunder at the times and in the manner specified in the
Conditions.
ARTICLE 3
XX XXXX or such other person as the Employer shall nominate in his place for the
purpose shall be the Employer's Agent referred to in clauses 5.4 and 11 and,
save to the extent which the Employer may otherwise specify by written notice to
the Contractor, for the receiving or issuing of such applications, consents,
instructions, notices, requests or statements or for otherwise acting for the
Employer under any other of the Conditions.
ARTICLE 4
The Employer's Requirements, the Contractor's Proposal and the Contract sum
Analysis have been signed by the Parties and are identified in Appendix 3 to the
Conditions.
ARTICLE 5
If any dispute or difference as to the construction of this Contract or any
matter or thing of whatsoever nature arising hereunder or in connection
therewith shall arise between the Employer and the Contractor either during the
progress or after the completion or abandonment of the Works it shall be and is
hereby referred to arbitration in accordance with clause 39.
AS WITNESS THE HAND OF THE PARTIES HERETO
Signed by /s/ XX Xxxx
for and on behalf of the
Employer in the presence of [J Xxxxxxx]
Signed by
for and on behalf of the
Contractor in the
presence of:
2
3
CONDITIONS
1. INTERPRETATION, DEFINITIONS, ETC.
1.1 Unless otherwise specifically stated a reference in the Articles of
Agreement, the Conditions or the Appendices to any clause means that clause
of the Conditions.
1.2 The Articles of Agreement, the Conditions and the Appendices are to be read
as a whole and the effect or operation of any article or clause in the
Conditions or item in or entry in the Appendices must therefore unless
otherwise specifically stated be read subject to any relevant qualification
or modification in any other article or any of the clauses in the
Conditions or item in or entry in the Appendices.
1.3 Unless the context otherwise requires or the Articles or the Conditions or
an item in or entry in the Appendices specifically otherwise provides, the
following words and phrases in the Articles of Agreement, the Conditions
and the Appendices shall have the meanings given below or as ascribed in
the article, clause or Appendix item to which reference is made:
WORD OR PHRASE MEANING
All Risks Insurance : See clause 22.2
Appendix 1 or 2 or 3 : Appendix 1 or 2 or 3 to the Conditions
as completed by the parties.
Appendices : Appendix 1 and 2 and 3 to the
Conditions as completed by the parties.
Arbitrator : The person appointed under CLAUSE 39 to
be the Arbitrator.
Articles or Articles of : The Articles of Agreement to which the
Agreement Conditions are annexed, and references to
any recital are to recitals set out before
the Articles.
Base Date : The date stated in Appendix 1.
Change in Employer's : See CLAUSE 12.1
Requirements or Change
3
4
Completion Date: the Date for Completion as fixed and stated
in Appendix 1 or any date fixed under CLAUSE
25.
Conditions: the clauses 1 to 39.
Contractor: the person named as Contractor in the
Articles of Agreement.
Contractor's Proposals: see the Second RECITAL.
Contract Sum: the sum named in ARTICLE 2.
Contract Sum Analysis: the analysis of the Contract Sum to have been
prepared by the Contractor for the purposes
of this Contract as referred to in the SECOND
RECITAL.
Date of Completion: the date fixed and stated in Appendix 1.
Date of Possession: the date stated in Appendix 1 under the
reference to CLAUSE 23.1
Defects Liability Period: the period named in Appendix 1 under the
reference to CLAUSE 16.2
Development Control Requirements: any statutory provisions and any decision of
a relevant authority thereunder which control
the right to develop the site.
Employer: the person named as Employer in the Articles
of Agreement.
Employer's Agent: see ARTICLE 3.
Employer's Requirement: see the FIRST RECITAL.
Excepted Risks: Ionising radiations or contamination by
radioactivity from any nuclear fuel or from
any nuclear waste from the combustion of
nuclear fuel.
4
5
Excepted Risks (continue) Radioactive toxic explosive or other hazardous
properties of any explosive nuclear assembly or
nuclear component, thereof, pressure waves
caused by aircraft or other aerial devices
travelling at sonic or supersonic speeds.
Final Account and Final Statement: see CLAUSE 30.5.
Interim Payment: any one of the payments to which CLAUSE 30.1 and Appendix 2 refers.
Joint Names Policy: a policy of insurance which includes the Contractor and the Employer
as the insured.
Notice of Completion of Making Good Defects: see CLAUSE 16.4.
Practical Completion: see CLAUSE 16.1.
Relevant Event: any one of the events set out in CLAUSE 25.4.
Retention Percentage: see CLAUSE 30.4.1.1. and any entry in Appendix 1 under the reference
to CLAUSE 30.4.1.1.
Site Materials: see CLAUSE 22.2.
Specified Perils: fire, lightning, explosion, xxxxx, xxxxxxx, flood,
bursting or overflowing of water tanks, apparatus
or pipes, earthquake, aircraft and other aerial
devices or articles dropped therefrom, riot and civil
commotion, but excluding Excepted Risks.
Statutory Requirements: see CLAUSE 6.1.1.2.
Works: the works briefly described in the FIRST RECITAL
and referred to in the Employer's Requirement and the
5
6
Contractor's Proposals and including any
changes made to those works in
accordance with this Contract.
2. CONTRACTOR'S OBLIGATIONS
2.1 The Contractor shall upon and subject to the Conditions carry out and
complete the Works referred to in the Employer's Requirements, the
Contractor's Proposals (to which the Contract Sum Analysis is annexed),
the Articles of Agreement, these Conditions and the Appendices in
accordance with the aforementioned documents and for that purpose shall
complete the design for the Works including the selection of any
specifications for any kinds and standards of the materials and goods and
workmanship to be used in the construction of the Works so far as not
described or stated in the Employer's Requirement or Contractor's
Proposals.
2.2 Nothing contained in the Employer's Requirement or the Contractor's
Proposals or the Contract Sum Analysis shall override or modify the
application or interpretation of that which is contained in the Articles
of Agreement, the Conditions and the Appendices. Should CERPROBE
CORPORATION ("the Employer") form a registered in Malaysia subsidiary
this agreement shall automatically be assigned to said Malaysian
registered subsidiary who thereafter shall be the Employer.
2.3.1 Any divergence between the Employer's Requirements and the definition of
the site boundary to be given by the Employer as provided in clause 7
shall be corrected by an instruction issued by the Employer which
instruction shall be deemed to be a Change to which the provisions of
clauses 12.4, 12.5 and 12.6 apply.
2.3.2 If the Employer or the Contractor finds any such divergence as is
referred to in clause 2.3.1 he shall immediately give the other written
notice specifying the divergence.
2.4.1 Where there is a discrepancy within the Employer's Requirements (including
any Change issued in accordance with clause 12.2) the Contractor's
Proposals shall prevail (subject always to compliance with the Statutory
Requirements) without any adjustment of the Contract Sum. Where the
Contractor's Proposals do not deal with any discrepancy within the
Employer's Requirements (including any Change issued in accordance with
clause 12.2) the Contractor shall inform the Employer in writing of his
proposed amendment to deal with the discrepancy and the Employer shall
either agree to the proposed amendment or himself decide how the
discrepancy shall be dealt with; such agreement or decision shall be
notified in writing to the Contractor and such notification shall be
treated as a Change in the Employer's Requirement.
6
7
2.4.2. Where there is a discrepancy within the Contractor's Proposals the
Contractor shall inform the Employer in writing of his proposed
amendment to remove the discrepancy; and (subject always to compliance
with Statutory Requirements) the Employer shall decide between the
discrepant items or otherwise may accept the Contractor's proposed
amendment and the Contractor shall be obliged to comply with the
decision or acceptance by the Employer without cost to the Employer.
2.4.3. If the Contractor or the Employer find any such discrepancy as is
referred to in clause 2.3.1 or 2.4.2 he shall immediately give the
other written notice specifying the discrepancy.
2.5.1. Insofar as the design of the Works is comprised in the Contractor's
Proposals and in what the Contractor is to complete under clause 2 and
in accordance with the Employer's Requirements and the Conditions
(including any further design which the Contractor is to carry out as
a result of a Change in the Employer's Requirements), the Contractor
shall have in respect of any defect or insufficiency in such design
the like liability to the Employer, whether under statute or
otherwise, as would an architect or, as the case may be, other
appropriate professional designer holding himself out as competent to
take on work for such design, who acting independently under a
separate contract with the Employer, had supplied such design for or
in connection with works to be carried out and completed by a building
contractor not being the supplier of the design.
2.5.2. (deleted)
2.5.3. (deleted)
2.5.4. Any references to the design which the Contractor has prepared or
shall prepare or issue for the Works shall include a reference to any
design which the Contractor has caused or shall cause to be prepared
or issued by others.
3. CONTRACT SUM - ADDITIONS OR DEDUCTIONS - ADJUSTMENT - INTERIM PAYMENTS
Where in the Conditions it is provided that an amount is to be added
to or deducted from the Contract Sum or dealt with by adjustment of
the Contract Sum, then as soon as such amount is ascertained in whole
or in part such amount shall be taken into account in the computation
of the next Interim Payment following such whole or partial
ascertainment.
7
8
4. EMPLOYER'S INSTRUCTIONS
4.1.1 The Contractor shall (subject to clauses 4.2, 4.3 and 12.2) forthwith
comply with all instructions issued to him by the Employer in regard to
any matter in respect of which the Employer is expressly empowered by
the Conditions to issue instructions: save that where such instruction
is one requiring a Change within the meaning of clause 12.1 the
Contractor need not comply to the extent that he makes reasonable
objection in writing to the Employer to such compliance.
4.1.2 If within 7 days after receipt of a written notice from the Employer
requiring compliance with an instruction the Contractor does not comply
therewith, then the Employer may employ and pay other persons to
execute any work whatsoever which may be necessary to give effect to
such instruction and all costs incurred in connection with such
appointment may be deducted by him from any monies due or to become due
to the Contractor under this Contract or may be recoverable from the
Contractor by the Employer as a debt.
4.2 Upon receipt of what purports to be an instruction issued to him by the
Employer the Contractor may request the Employer to specify in writing
the provision of the Conditions which empowers the issue of the said
instruction. The Employer shall forthwith comply with any such request
and if the Contractor shall thereafter comply with the said instruction
(neither party before such compliance having given to the other a
written request to concur in the appointment of an Arbitrator under
clause 39 in order that it may be decided whether the provision
specified by the Employer empowers the issue of the said instruction),
then the issue of the same shall be deemed for all the purposes of this
Contract to have been empowered by the provision of the Conditions
specified by the Employer in answer to the Contractor's request.
4.3.1 All instructions issued by the Employer shall be issued in writing.
4.3.2 If the Employer purports to issue an instruction otherwise than in
writing it shall be of no immediate effect, but shall be confirmed in
writing by the Contractor to the Employer within 7 days, and if not
dissented from in writing by the Employer to the Contractor within 7
days from receipt of the Contractor's confirmation, shall take effect as
from the expiration of the latter said 7 days.
Provided always
4.3.2.1 that if the Employer within 7 days of giving such an instruction
otherwise than in writing shall himself confirm the same in writing,
then the Contractor shall not be obliged to confirm as aforesaid, and
the said instruction shall take effect as from the date of the
Employer's confirmation; and
8
9
4.3.2.2 that if neither the Contractor nor the Employer shall confirm such an
instruction in the manner and at the time aforesaid but the Contractor
shall nevertheless comply with the same, then the Employer may confirm
the same in writing at any time prior to the Final Account and Final
Statement becoming conclusive as to the balance due between the
parties by agreement or by the operation of clause 30.5.5, and the
said instruction shall thereupon be deemed to have taken effect on the
date on which it was issued otherwise than in writing by the Employer.
5. CUSTODY AND SUPPLY OF DOCUMENTS
5.1 The Employer's Requirements and the Contractor's Proposals (to which
is annexed the Contract Sum Analysis) shall remain in the custody of
the Employer so as to be available at all reasonable times for the
inspection of the Contractor.
5.2 Immediately after the execution of this Contract the Employer without
charge to the Contractor shall provide him (unless he shall have been
previously so provided) with one copy each, certified on behalf of the
Employer, of the Articles of Agreement, the Conditions and the
Appendices, the Employer's Requirements and the Contractor's Proposals
(including the Contractor Sum Analysis).
5.3 The Contractor without further charge to the Employer shall provide
the Employer with two copies of the drawings, specifications, details,
levels and setting out dimensions which the Contractor prepares or
uses for the purposes of the Works.
5.4 The Contractor shall keep one copy of the Employer's Requirements, one
copy of the Contract Sum Analysis, one copy of the Contractor's
Proposals and one copy of the drawings and other documents referred to
in clause 5.3 upon the site so as to be available to the Employer's
Agent at all reasonable times.
5.5 Before the commencement of the Defects Liability Period the Contractor
shall without further charge to the Employer supply for the retention
and use of the Employer such drawings and information showing or
describing the Works as built, and concerning the maintenance and
operation of the Works, including any installations comprised in the
Works, as may be specified in the documents named in clause 5.1.
5.6 Neither party shall divulge or use except for the purpose of this
Contract:
5.6.1 any of the documents mentioned in clause 5.1 or 5.3 which the other
party supplies to him; or
9
10
5.6.2 any confidential information of the other party
save that the Employer may use in connection with the maintenance,
use, repair, advertisement, letting or sale of the Works any of the
documents supplied by the Contractor.
6. STATUTORY OBLIGATIONS, NOTICES, FEES AND CHARGES
6.1.1.1 Clause 6.1.1.2 shall apply except to the extent that the relevant part
or parts of the Employer's Requirements state specifically that the
Employer's Requirements comply with Statutory Requirements.
6.1.1.2 The Contractor shall comply with, and give all notices required by,
any Act of Parliament, any instrument, rule or order made under any
Act of Parliament, or any regulation or bylaw of any local authority
which has any jurisdiction with regard to the Works or with whose
systems the same are or will be connected including Development
Control Requirements (all requirements to be so complied with being
referred to in these Condition as "the Statutory Requirements") and
the Contractor shall pass to the Employer all approvals received by
the Contractor in connection therewith.
6.1.2 If the Contractor or the Employer finds any divergence between the
Statutory Requirements and either the Employer's Requirements
(including any Change) or the Contractor's Proposals he shall
immediately give to the other written notice specifying the
divergence; the Contractor shall inform the Employer in writing of his
proposed amendment for removing the divergence, and with the
Employer's consent (which shall not be unreasonably delayed or
withheld) the Contractor shall entirely at his own cost save as
provided in clause 6.3 complete the design and construction of the
Works in accordance with the amendment and the Employer shall note the
amendment on the documents referred to in clause 5.1
6.1.3.1 If in any emergency compliance with clause 6.1.1 requires the
Contractor to supply materials or execute work before receiving the
Employer's consent under clause 6.1.2 the Contractor shall supply such
limited materials and execute such limited work as are reasonable
necessary to secure immediate compliance with the Statutory
Requirements.
6.1.3.2 The Contractor shall forthwith inform the Employer of the emergency
and of the steps that he is taking under clause 6.1.3.1
6.2 The Contractor shall pay, and indemnify the Employer against liability
in respect of, any fees or charges (including any rates or taxes)
legally demandable under any Act of Parliament, any instrument, rule
or order made under any act of Parliament, or any regulation or bylaw
of any
10
11
local authority in respect of the Works. No adjustment shall be made to
the Contract Sum in respect of the amount of any such fees or charges
(including any rates or taxes) unless they are stated by way of a
provisional sum in the Employer's Requirements, in which case clause
30.5.3 shall apply.
6.3.1 If after the Base Date there is a change in the Statutory Requirements
affecting the Works which necessitates some amendment to the
Contractor's Proposals, such amendment shall be treated as if it were
an instruction of the Employer under clause 12.2 effecting a Change in
the Employer's Requirement.
6.3.2 If any amendment to the Contractor's Proposals becomes necessary for
conformity with the terms of any permission or approval made by a
decision of the relevant authority after the Base Date for the purposes
of Development Control Requirements such amendment shall be treated as
if it were an instruction of the Employer under clause 12.2 effecting a
Change in the Employer's Requirement provided that such treatment is
not precluded in the Employer's Requirements.
6.3.3 If any amendment to that part or parts of the Employer's Requirements
to which clause 6.1.1.1 refers become necessary for conformity with
Statutory Requirements the Employer shall issue an instruction
effecting a Change in the Employer's Requirements.
7 SITE BOUNDARIES
The Employer shall define the boundaries of the site.
8 WORK, MATERIAL AND GOODS
8.1.1 All materials and goods shall so far as procurable be of the respective
kinds and standards described in the Employer's Requirements, or, if
not therein specifically described, in the Contractor's Proposals or
specifications referred to in clause 5.3; provided that the Contractor
shall not substitute anything so described without the Employer's
consent in writing, which consent shall not be unreasonably delayed or
withheld. No such consent shall relieve the Contractor of his other
obligations.
8.1.2 All workmanship shall be of the standard described in the Employer's
Requirements, or, to the extent that no such standards are therein
specifically described, in the Contractor's Proposals or specifications
referred to in clause 5.3. If no such standards are so described the
workmanship shall be of a standard appropriate to the Works.
8.1.3 All work shall be carried out in a proper and workmanlike manner.
11
12
8.2 The Contractor shall upon the request of the Employer provide him with
documents to prove that the materials and goods comply with clause 8.1.1.
8.3 The Employer may issue instructions requiring the Contractor to open up
for inspection any work covered up or to arrange for or to carry out any
test of any materials or goods (whether or not already incorporated in
the Works) or of any executed work, and the cost of such opening up or
testing (together with the cost of making good in consequence thereof)
shall be added to the Contract Sum unless provided for in the Employer's
Requirements or in the Contractor's Proposals or unless the inspection or
test shows that the work, materials or goods are not in accordance with
this Contract.
8.4 If any work, materials or goods are not in accordance with this Contract
the Employer without prejudice to the generality of his powers, may:
8.4.1 issue instructions requiring the removal from the site or rectification
of all or any of such work, materials or goods; and/or
8.4.2 after consultation with the Contractor issue such instructions requiring
a Change (to which the proviso in clause 12.2 shall apply) as are
reasonably necessary as a consequence of such an instruction under clause
8.4.1 and to the extent that such instructions are so necessary and
notwithstanding clauses 12.5, 25 and 26 no addition to the Contract Sum
shall be made and no extension of time shall be given; and/or
8.4.3 issue such instructions under clause 8.3 to upon up for inspection or to
test as are reasonable in all the circumstances to establish to the
reasonable satisfaction of the Employer the likelihood or extent, as
appropriate to the circumstances, of any further similar non-compliance.
To the extent that such instructions are so reasonable, whatever the
results of the opening up for inspection or test and notwithstanding
clauses 8.3 and 26, no addition to the Contract Sum shall be made. Clause
25.4.5.2 shall apply unless as stated therein the inspection or test
showed that the work, materials or goods are not in accordance with this
Contract.
8.5 Where there is any failure to comply with clause 8.1.3 in regard to the
carrying out of the work in a proper and workmanlike manner the Employer,
without prejudice to the generality of his powers, may, after
consultation with the Contractor, issue such instructions whether
requiring a Change or otherwise as are reasonably necessary as a
consequence thereof. To the extent that such instructions are so
necessary and notwithstanding clauses 12.4, 25 and 26 no addition to the
Contract Sum shall be made and no extension of time shall be given in
respect of compliance by the Contractor with such instruction.
12
13
8.6 The Contractor shall before carrying out the relevant work and/or
ordering the relevant goods or materials provide the Employer with
such samples of the standard of workmanship or the quality of the
goods or materials which the Contractor intends to provide as are
specifically referred to in the Employer's Requirements or in the
Contractor's Proposals.
9. COPYRIGHT, ROYALTIES AND PATENT RIGHTS
9.1 All royalties or other sums payable in respect of the supply and use
in carrying out the Works of any patented articles, processes or
inventions or in respect of the supply and use for the Works of
drawings, or models of buildings the subject of copyright other than
drawings or models provided by the Employer shall be deemed to have
been included in the Contract Sum, and the Contractor shall indemnify
the Employer from and against all claims, proceedings, damages, costs
and expenses which may be brought or made against the Employer or to
which he may be put by reason of the Contractor infringing or being
held to have infringed any patent rights in relation to any such
articles, processes, and inventions or infringing or being held to
have infringed copyright.
9.2 Provided that where in compliance with the Employer's instructions the
Contractor shall supply and use in carrying out the Works any patented
articles, processes or inventions, the Contractor shall not be liable
in respect of any infringement or alleged infringement of any patent
rights in relation to any such articles, processes and inventions and
all royalties, damages or other monies which the Contractor may be
liable to pay to the persons entitled to such patent rights shall be
added to the Contract Sum.
10 PERSON-IN-CHARGE
The Contractor shall constantly keep upon the site a competent
person-in-charge and any instructions given to him by the Employer
shall be deemed to have been issued to the Contractor.
11 ACCESS FOR EMPLOYER'S AGENT ETC. TO THE WORKS
The Employer's Agent and any person authorised by the Employer or the
Employer's Agent shall at all reasonable times have access to the
Works and to the workshops or other places of the Contractor where
work is being prepared for this Contract, and when work is to be so
prepared in workshop or other places of a sub-contractor the
Contractor shall by a term of the sub-contract so far as possible
secure a similar right
13
14
of access to those workshops or places for the Employer and his
representatives and shall do all things reasonably necessary to make
such right effective. Access in accordance with clause 11 may be
subject to such reasonable restrictions of the Contractor or of any
sub-contractor as are necessary to protect any proprietary right of
the Contractor or of any sub-contractor in the work referred to in
clause 11.
12 CHANGES IN THE EMPLOYER'S REQUIREMENTS AND PROVISIONAL SUMS
12.1 The term 'Change in the Employer's Requirements' or 'Change' means:
12.1.1 a change in the Employer's Requirements which makes necessary the
alteration or modification of the design, quality or quantity of the
Works, otherwise than such as may be reasonably necessary for the
purpose of rectification pursuant to clause 8.4, including:
12.1.1.1 the addition, omission or substitution of any work;
12.1.1.2 the alteration of the kind or standard of any materials or goods to be
used in the Works;
12.1.1.3 the removal from the site of any work executed or materials or goods
brought thereon by the Contractor for the purposes of the Works other
than work materials or goods which are not in accordance with this
Contract;
12.1.2 the imposition by the Employer of any obligations or restrictions in
regard to the matters set out in clause 12.1.2.1 to 12.1.2.4 or the
addition to or alteration or omission of any such obligations or
restrictions so imposed or imposed by the Employer in the Employer's
Requirements in regard to;
12.1.2.1 access to the site or use of any specific parts of the site;
12.1.2.2 limitations of working space;
12.1.2.3 limitations of working hours;
12.1.2.4 the execution or completion of the work in any specific order.
12.2 The Employer may subject to the proviso hereto and to the Contractor's
right of reasonable objection set out in clause 4.1.1 issue
instructions effecting a Change in the Employer's Requirements. No
Change effected by the Employer shall vitiate this Contract. Provided
that the Employer may not effect a Change which is, or which makes
necessary, an alteration or modification in the design of the Works
without the consent of the Contractor which consent shall not be
unreasonably delayed or withheld.
14
15
12.3 The Employer shall issue instructions to the Contractor in regard to the
expenditure of provisional sums (if any) included in the Employer's
Requirements.
12.4 The valuation of Changes and of work executed by the Contractor for
which a provisional sum is included in the Employer's Requirements
shall, unless otherwise agreed, be made in accordance with the
provisions of clause 12.5. Such valuation shall include allowance for
the addition or omission of the relevant design work.
12.5.1 The valuation of additional or substituted work shall be consistent
with the values of work of a similar character set out in the Contract
Sum Analysis making due allowance for any change in the conditions under
which the work is carried out and/or any significant change in the
quantity of the work so set out. Where there is no work of similar
character set out in the Contract Sum Analysis a fair valuation shall be
made.
12.5.2 The valuation of the omission of work shall be in accordance with the
values in the Contract Sum Analysis.
12.5.3 Any valuation of work under clauses 12.5.1 and 12.5.2 shall include
allowance for any necessary addition to or reduction of the provision of
site administration, site facilities and temporary works.
12.5.4 (deleted)
12.5.5 If compliance with the instruction effecting a Change or the instruction
as to the expenditure of a provisional sum in whole or in part
substantially changes the conditions under which any other work is
executed, then such work shall be treated as if it had been the subject
of an instruction effecting a Change under clause 12.2 which shall be
valued in accordance with the provisions of clause 12.5.
12.5.6 To the extent that the valuation does not relate to the execution of
additional or substituted work or the omission of work or to the extent
that the valuation of any work or liabilities directly associated with a
Change cannot reasonably be effected in the valuation by the application
of clause 12.5.1 to 12.5.5 a fair valuation thereof shall be made.
Provided that no allowance shall be made under clause 12.5 for any
effect upon the regular progress of the Works or for any other direct
loss and/or expense for which the Contractor would be reimbursed by
payment under any other provision in the Conditions.
12.6 Effect shall be given to clause 12.5 by addition or deduction from the
Contract Sum.
15
16
13 CONTRACT SUM
The Contract Sum shall not be adjusted or altered in any way whatsoever
otherwise than in accordance with the express provisions of the Conditions.
14 SERVICE TAX
Any reference in these Conditions to "Contract Sum" shall be regarded as
such Sum exclusive of any service tax and recovery by the Contractor from
the Employer of any service tax properly chargeable on the Contractor under
or by virtue of the Service Tax Xxx 0000 or any amendment thereof on the
supply of goods and services under this Contract shall be prohibited.
15 UNFIXED MATERIALS AND GOODS
Unfixed materials and goods delivered to, placed on or adjacent to the
Works and intended therefor shall not be removed except for use upon the
Works unless the Employer has consented in writing to such removal which
consent shall not be unreasonably withheld. Where the value of any such
materials or goods has been included in any Interim Payment, such materials
and goods shall become the property of the Employer, but the Contractor
shall remain responsible for loss or damage to the same.
16 PRACTICAL COMPLETION AND DEFECTS LIABILITY PERIOD
16.1 When the Works have reached Practical Completion the Employer shall give
the Contractor a written statement to that effect, which statement shall
not be unreasonably delayed or withheld, the Practical Completion of the
Works shall be deemed for all purposes of this Contract to have taken place
on the day named in such statement. Should CERPROBE CORPORATION ("the
Employer") form a registered in Malaysia subsidiary this agreement shall
automatically be assigned to said Malaysian registered subsidiary who
thereafter shall be the Employer.
16.2 Any Defects, shrinkages or other faults which shall appear within the
Defects Liability Period and which are due to failure of the Contractor to
comply with his obligations under this Contract shall be specified by
instruction of the Employer in a Schedule of Defects which he shall
deliver to the Contractor as an instruction of the Employer not later than
14 days after the expiration of the said Defects Liability Period, and
within a reasonable time after receipt of such Schedule of defects,
shrinkages and other faults therein specified shall be made good by the
Contractor at no cost to the Employer unless the Employer shall otherwise
instruct; and if the Employer does so otherwise instruct then an
appropriate deduction in
16
17
Respect of any such defects, shrinkage or other faults not made good
shall be made from the Contract Sum.
16.3 Notwithstanding clause 16.2 the Employer may whenever he considers it
necessary so to do, issue instructions requiring any defect, shrinkage
or other fault which shall appear within the Defects Liability Period
and which is due to failure of the Contractor to comply with his
obligations under this Contract to be made good and the Contractor
shall within a reasonable time after receipt of such instructions
comply with the same at no cost to the Employer unless the Employer
shall otherwise instruct; and if the Employer does so otherwise
instruct then an appropriate deduction in respect of any such defects,
shrinkages or other faults not made good shall be made from the
Contract Sum.
16.4 When any defects, shrinkages or other faults which the Employer may
have required to be made good under clauses 16.2 and 16.3 shall have
been made good he shall issue a notice to that effect, which notice
shall not be unreasonably delayed or withheld and completion of making
good defects shall be deemed for all the purposes of this Contract to
have taken place on the day named in such notice ("the Notice of
Completion of Making Good Defects").
17. PARTIAL POSSESSION BY EMPLOYER
17.1 If at any time or times before practical Completion of the Works the
Employer wishes to take possession of any part or parts of the Works
and the consent of the Contractor (which consent shall not be
unreasonably withheld) has been obtained, then notwithstanding
anything expressed or implied elsewhere in this Contract the Employer
may take possession thereof. The Contractor shall thereupon issue to
the Employer a written statement identifying the part or parts of the
Works taken into possession and giving the date when the Employer took
possession (in clauses 17 and 20.3 referred to as "the relevant part"
and "the relevant date" respectively).
17.1.1 For the purposes of clauses 16.2, 16.3 and 30.4.1.2 Practical
Completion of the relevant part shall be deemed to have occurred and
the Defects Liability Period in respect of the relevant part shall be
deemed to have commenced on the relevant date.
17.1.2 When any defects, shrinkages or other faults in the relevant part
which the Employer may have required to be made good under clause 16.2
or clause 16.3 shall have been made good he shall issue a notice to
that effect.
17
18
17.1.3 As from the relevant date the obligation of the Contractor under
clause 22A to insure shall terminate in respect of the relevant part
but not further or otherwise.
17.1.4 In lieu of any sum to be paid or allowed by the Contractor under
clause 24 in respect of any period during which the Works may remain
incomplete occurring after the relevant date there shall be paid or
allowed such sum as bears the same ratio to the sum which would
be paid or allowed apart from the provisions of clause 17 as the
Contract Sum less the amount contained therein in respect of the
relevant part bears to the Contract Sum.
18 ASSIGNMENT AND SUB-CONTRACTS
18.1.1 Neither the Employer nor the Contractor shall, without the written
consent of the other, assign this Contract.
18.1.2 Where clause 18.1.2 is stated in Appendix 1 to apply then, in the
event of transfer by the Employer of his freehold or leasehold
interest in, or of a grant by the Employer of a leasehold interest
in, the whole of the premises comprising the Works, the Employer may
at any time after Practical Completion of the Works assign to any
such transferee or lessee the right to bring proceedings in the name
of the Employer (whether by arbitration or litigation) to enforce any
of the terms of this Contract made for the benefit of the Employer
hereunder. The assignee shall be stopped from disputing any
enforceable agreements reached between the Employer and the
Contractor and which arise out of and relate to this Contract
(whether or not they are or appear to be a derogation from the rights
assigned) and made prior to the date of any assignment.
18.2.1 The Contractor shall not without the written consent of the Employer
(which consent shall not be unreasonably delayed or withheld)
sub-contract all or any portion of the Works. Provided that it shall
be a condition in any sub-contracting which may occur that the
appointment of the sub-contractor under the sub-contract shall
determine immediately upon the determination (for any reason) of the
Contractor's appointment under this Contract.
18.2.2 The Contractor shall remain wholly responsible for carrying out and
completing the Works in all respects in accordance with clause 2.1
notwithstanding the sub-contracting of all or any portion of the
Works.
18.2.3 The Contractor shall not without the written consent of the Employer
(which consent shall not be unreasonably delayed or withheld)
sub-contract the design for all or any portion of the Works. Where
the Employer consents to any sub-contracting under
18
19
clause 18.2.3 such consent shall not affect in any way the obligation
of the Contractor under clause 2.5.
18.3 It shall be a condition in any sub-contracting to which clause 18.2.1
refers that:
18.3.1 the appointment of the sub-contractor under the sub-contract shall
determine immediately upon the determination (for any reason) of the
Contractor's appointment under this Contract; and
18.3.2 the sub-contract shall provide that:
18.3.2.1 subject to clause 15 of these Conditions (in clauses 18.3.2.2 to
18.3.2.3 called "the Main Contract Conditions"), unfixed materials and
goods delivered to, placed on or adjacent to the Works by the
sub-contractor and intended therefor shall not be removed except for
use on the Works unless the Contractor has consented in writing to such
removal, which consent shall not be unreasonably withheld;
18.3.2.2 where, in accordance with clause 30.2A or clause 30.2B of the Main
Contract Conditions, the value of any such materials or goods has been
included in the amount due as an Interim Payment and that Interim
Payment has been discharged by the Employer in favour of the
Contractor, such materials or goods shall be and become the property of
the Employer and the sub-contractor shall not deny that such materials
or goods are and have become the property of the Employer;
18.3.2.3 provided that if the Contractor shall pay the sub-contractor for any
such materials or goods before the value therefore has, in accordance
with clause 30.2A or clause 30.2B of the Main Contract Conditions, been
included in the amount due as an Interim Payment and before that
Interim Payment has been discharged by the Employer in favour of the
Contractor, such materials or goods shall upon such payment by the
Contractor be and become the property of the Contractor.
19 (number not used)
20 INJURY TO PERSONS AND PROPERTY AND INDEMNITY TO EMPLOYER
20.1 The Contractor shall be liable for, and shall indemnify the Employer
against, any expense, liability, loss, claim or proceedings whatsoever
arising under any statute or at common law in respect of personal
injury to or the death of any person whosoever arising out of or in the
course of or caused by the carrying out of the Works, except to the
extent that the same is due to any act or neglect of the Employer or of
any
19
20
person for whom the Employer is responsible including the persons
employed or otherwise engaged by the Employer to whom clause 29 refers.
20.2 The Contractor shall, subject to clause 20.3, be liable for, and shall
indemnify the Employer against, any expense, liability, loss, claim or
proceedings in respect of any injury or damage whatsoever to any
property real or personal in so far as such injury or damage arises out
of or in the course of or by reason of the carrying out of the Works,
and to the extent that the same is due to any negligence, breach of
statutory duty, omission or default of the Contractor, his servants or
agents or of any person employed or engaged upon or in connection with
the Works or any part thereof, his servants or agents or of any other
person who may properly be on the site upon or in connection with the
Works or any part thereof, his servants or agents, other than the
Employer or any person employed, engaged or authorised by him or by any
local authority executing work solely in pursuance of its statutory
rights or obligations.
20.3.1 Subject to clause 20.3.2 the reference in clause 20.2 to "property real
or personal" does not include the Works, work executed and/or Site
Materials up to and including the date of issue of the statement by the
Employer setting out the date of Practical Completion or up to and
including the date of determination of the appointment of the
Contractor (whether or not the validity of that determination is
disputed) under clause 27 or clause 28.
20.3.2 If clause 17 has been operated then, in respect of the relevant part,
and as from the relevant date such relevant part shall not be regarded
as "the Works" or "work executed" for the purpose of clause 20.3.1.
21 INSURANCE AGAINST INJURY TO PERSONS OR PROPERTY
21.1.1.1 Without prejudice to his obligations to indemnify the Employer under
clause 20 the Contractor shall take out and maintain insurance which
shall comply with clause 21.1.1.2 in respect of claims arising out of
his liability referred to in clauses 20.1, and 20.2.
21.1.1.2 For all claims to which clause 21.1.1.1 applies the insurance cover
shall be not less than the sum stated in Appendix 1 for any one
occurrence or series of occurrences arising out of one event.
21.1.2 As and when he is reasonably required to do so by the Employer the
Contractor shall send to the Employer for inspection by the Employer
documentary evidence that the insurance required by clause 21.1.1.1
have been taken out and are being maintained, but at any time the
Employer may (but not unreasonably or vexatiously) require to have sent
for his inspection the relevant policy or policies and premium receipts
therefor.
20
21
21.1.3 If the Contractor defaults in taking out or in maintaining insurance
as provided in clause 21.1.1.1 the Employer may himself insure against
any liability or expense which he may incur arising out of such
default and a sum or sums equivalent to the amount paid or payable by
him in respect of premiums therefor may be deducted by him from any
monies due or to become due to the Contractor under this Contract or
such amount may be recoverable by the Employer from the Contractor as
a debt.
21.2.1 Where it is stated in the Employer's Requirements that the insurance
to which clause 21.2.1 refers is required the Contractor shall take
out and maintain a Joint Names Policy for such amount of indemnity as
is stated in Appendix 1 in respect of any expense, liability, loss,
claim or proceedings which the Employer may incur or sustain by reason
of damage to any property other than the Works and Site Materials
caused by collapse, subsidence, heave, vibration, weakening or removal
of support or lowering of ground water arising out of or in the course
of or by reason of the carrying out of the Works excepting damage:
21.2.1.1 for which the Contractor is liable under clause 20.2;
21.2.1.2 attributable to errors or omissions in the designing of the Works;
21.2.1.3 which can reasonably be foreseen to be inevitable having regard to the
nature of the work to be executed or the manner of its execution;
21.2.1.4 (deleted)
21.2.1.5 arising from war risks or the Excepted Risks.
21.2.2 Any such insurance as is referred to in clause 21.2.1 shall be placed
with insurers to be approved by the Employer, and the Contractor shall
deposit with him the policy or policies and the premium receipts
therefor.
21.2.3 If the Contractor defaults in taking out or in maintaining the Joint
Names Policy as provided in clause 21.2.1 the Employer may himself
insure against any risk in respect of which the default shall have
occurred and may deduct a sum or sums equivalent to the amount paid or
payable in respect of premiums from any monies due or to become due to
the Contractor or such amount shall be recoverable by the Employer
from the Contractor as a debt.
21.3 Notwithstanding the provisions of clauses 20.1, 20.2 and 21.1, the
Contractor shall not be liable either to indemnify the Employer or to
insure against any personal injury to or the death of any person or
any damage, loss or injury caused to the Works or Site Materials, work
executed, the site, or any property, by the effect of any Excepted
Risk.
21
22
22 INSURANCE OF THE WORKS
22.1 (deleted)
22.2 In clause 22A and, so far as relevant, in order clauses of the
Conditions the following phrases shall have the meanings given below:
All Risks Insurance : Insurance which provides cover against any
physical loss or damage to work executed and
Site Materials but excluding the cost necessary
to repair, replace or rectify:
1 property which is defective due to:
.1 wear and tear;
.2 obsolescence;
.3 deterioration, rust or mildew;
2 any work executed or any Site Materials lost
or damaged as a result of its own defect in
design, plan, specification, material or
workmanship or any other work executed which
is lost or damaged in consequence thereof
where such work relied for its support or
stability on such work which was defective;
3 loss or damage caused by or arising from:
.1 any consequence of war, invasion, act of
foreign enemy, hostilities (whether war be
declared or not), civil war, rebellion,
revolution, insurrection, military or usurped
power, confiscation, commandeering,
nationalization or requisition or loss or
destruction of or damage to any property by
or under the order of any government de jure
or de facto or public municipal or local
authority;
22
23
.2 disappearance or shortage if such
disappearance or shortage is only revealed
when an inventory is made or is not traceable
to an identifiable event;
.3 an Excepted Risk (as defined in clause 1.3);
.4 civil commotion;
.5 any unlawful, wanton or malicious act
committed maliciously by a person or persons
acting on behalf of or in connection with an
unlawful association; "unlawful association"
shall mean any organisation which is engaged
in terrorism: "terrorism" means the use of
violence for political ends and includes any
use of violence for the purpose of putting
the public or any section of the public in
fear.
Site Materials : All unfixed materials and goods delivered to,
placed on or adjacent to the Works and intended
for incorporation therein.
22.3 The Contractor shall ensure that the Joint Names Policy referred to in
clause 22A.1 or 22A.3 shall in respect of each sub-contractor to whom
clause 18.2.1 refers.
EITHER provide for the recognition of each sub-contractor as an insured
under the Joint Names Policy
OR include a waiver by the relevant insurers of any rights of
subrogation which they may have against any such sub-contractor
in respect of loss or damage by the Specified Perils to the Works and
Site Materials; and that this recognition or waiver shall continue up
to and including the date of issue of any certificate or other document
which states that the sub-contract works are practically complete or
the date of determination of the appointment of the Contractor (whether
or not the validity of that determination is contested) under clause 27
or clause 28 or clause 28A. The provisions of clause 22.3 shall apply
also in respect of any Joint Names Policy taken out by the Employer
under clause 22A.2.
23
24
22A ALL RISKS INSURANCE OF THE WORKS BY THE CONTRACTOR
22A.1 The Contractor shall take out and maintain a Joint Names Policy for
All Risks Insurance for cover no less than that defined in clause 22.2
for the full reinstatement value of the Works (plus the percentage, if
any, stated in Appendix 1 to cover any professional fees incurred by
the Employer) and shall (subject to clause 17.1.3) maintain such Joint
names Policy up to and including the date of issue of the statement by
the Employer setting out the date of Practical Completion or up to and
including the date of determination of the appointment of the
Contractor under clause 27 or clause 28 or clause 28A (whether or not
the validity of that determination is contested) whichever is the
earlier.
22A.2 The Joint Names Policy referred to in clause 22A.1 shall be taken out
with insurers approved by the Employer and the Contractor shall
deposit with him that Policy and the premium receipt therefor and also
any relevant endorsement or endorsement or endorsements thereof as
may be required to comply with the obligation to maintain that Policy
set out in clause 22A.1 and the premium receipts therefor. If the
Contractor defaults in taking out or in maintaining the Joint Names
Policy as required by clauses 22A.1 and 22A.2 the Employer may himself
take out and maintain a Joint Names Policy against any risk in respect
of which the default shall have occurred and a sum or sums equivalent
to the amount paid or payable by him in respect of premiums therefor
may be deducted by him from any monies due or to become due to the
Contractor under this Contract or such amount may be recoverable by
the Employer from the Contractor as a debt.
22A.3.1. If the Contractor independently of his obligations under this Contract
maintains a policy of insurance which provides (inter alia) All Risks
Insurance for cover no less than that defined in clause 22.2 for the
full reinstatement value of the Works (plus the percentage, if any,
stated in Appendix 1 to cover any professional fees incurred by the
Employer) then the maintenance by the Contractor of such policy shall,
if the policy is a Joint Names Policy in respect of the aforesaid
Works, be a discharge of the Contractor's obligation to take out and
maintain a Joint Names Policy under clause 22A.1. If and so long as
the Contractor is able to send for inspection by the Employer as and
when he is reasonably required to do so by him documentary evidence
that such a policy is being maintained then the Contractor shall be
discharged from his obligation under clause 22A.2 to deposit the
policy and the premium receipt with the Employer but on any occasion
the Employer may (but not unreasonably or vexatiously) require to have
sent to him for inspection the policy to which clause 22A.3.1 refers
and the premium receipts therefor. The annual renewal date, as
supplied by the Contractor, of the insurance referred to in clause
22A.3.1 is stated in Appendix 1.
24
25
22A.3.2 The provisions of clause 22A.2 shall apply in regard to any default in
taking out or in maintaining insurance under clause 22A.3.1.
22A.4.1 If any loss or damage affecting work executed or any part thereof on
any Site Materials is occasioned by any one or more of the risks
covered by the Joint Names Policy referred to in clause 22A.1 or
clause 22A.2 or clause 22A.3 then, upon discovering the said loss or
damage, the Contractor shall forthwith give notice in writing to the
Employer of the extent, nature and location thereof.
22A.4.2 The occurrence of loss or damage shall be disregarded in computing any
amounts payable to the Contractor under or by virtue of this Contract.
22A.4.3 After any inspection required by the insurers in respect of a claim
under the Joint Names Policy referred to in clause 22A.1 or clause
22A.2 or clause 22A.3 has been completed the Contractor with due
diligence shall restore work damaged, replace or repair any such Site
Materials which have been lost or damaged, remove and dispose of any
debris and proceed with the carrying out and completion of the Works.
22A.4.4 The Contractor, for himself and for all sub-contractors who are,
pursuant to clause 22.3, recognised as an insured under the Joint
Names Policy referred to in clause 22A.1, clause 22A.2 or clause
22A.3, shall authorise the insurers to pay all monies from such
insurance in respect of the loss or damage referred to in clause
22A.4.1 to the Employer. The Employer shall pay all such monies (less
only the percentage, if any, stated in Appendix 1 to cover any
professional fees incurred by the Employer) to the Contractor by
installments in accordance with clause 30 Alternative B even if
Alternative A is applicable to all other payments under the Contract.
22A.4.5 The Contractor shall not be entitled to any payment in respect of the
restoration, replacement or repair of such loss or damage, and (when
required) the removal and disposal of debris other than the monies
received under the aforesaid insurance.
23 DATE OF POSSESSION, COMPLETION AND POSTPONEMENT
23.1.1 On the Date of Possession possession of the site shall be given to the
Contractor who shall thereupon begin the construction of the Works and
regularly and diligently proceed with the same and shall complete the
same on or before the Completion Date.
23.1.2 Where clause 23.1.2 is stated in Appendix 1 to apply the Employer may
defer the giving of possession for a period not exceeding 6 weeks, or
such lesser period stated in Appendix 1, calculated from the Date of
Possession.
25
26
23.2 The Employer may issue instructions in regard to the postponement of
any design or construction work to be executed under the provisions of
this Contract.
23.3.1 For the purposes of the Works insurances the Contractor shall retain
possession of the site and the Works up to and including the date of
issue of the statement by the Employer setting out the date of
Practical Completion, and, subject to clause 17, the Employer shall not
be entitled to take possession of any part or parts of the Works until
that date.
23.3.2 Notwithstanding the provision of clause 23.3.1 the Employer may, with
the consent in writing of the Contractor, use or occupy the site or the
Works or part thereof whether for the purposes of storage of his goods
or otherwise before the date of issue of the statement by the Employer
setting out the date of Practical Completion. Before the Contractor
shall give his consent to such use or occupation the Contractor or the
Employer shall notify the insurers under clause 22A and obtain
confirmation that such use or occupation will not prejudice the
insurance. Subject to such confirmation the consent of the Contractor
shall not be unreasonably withheld.
23.3.3 Where clause 22A.2 or clause 22A.3 applies and the insurers in giving
the confirmation referred to in clause 23.3.2 have made it a condition
of such confirmation that an additional premium is required the
Contractor shall notify the Employer of the amount of the additional
premium. If the Employer continues to require use or occupation under
clause 23.3.2 the additional premium required shall be added to the
Contract Sum and the Contractor shall provide the Employer, if so
requested, with the additional premium receipt therefor.
24 DAMAGES FOR NON-COMPLETION
24.1 If the Contractor fails to complete the construction of the Works by
the Completion Date the Employer shall issue a notice in writing to the
Contractor to that effect. In the event of a new Completion Date being
fixed after the issue of such a notice in writing such fixing shall
cancel that notice and the Employer shall issue such further notice in
writing under clause 24.1 as may be necessary.
24.2.1 Subject to the issue of any notice under clause 24.1 the Contractor
shall as the Employer may require in writing not later than the date
when the Final Statement (or, as the case may be, the Employer's Final
Statement) becomes conclusive as to the balance due between the parties
by agreement or by the operation of clause 30.5.5, pay or allow to the
Employer liquidated and ascertained damages at the rate
26
27
stated in Appendix 1 (or at such lesser rate as may be specified in
writing by the Employer) for the period between the Completion Date
and the date of Practical Completion and the Employer may deduct the
same from any monies due or to become due to the Contractor under
this Contract (including any balance stated as due to the Contractor
in the Final Statement or, as the case may be, in the Employer's Final
Statement) or the Employer may recover the same from the Contractor's
as a debt.
24.2.2 If, under clause 25.3.3. the Employer fixed a later Completion Date,
the Employer shall pay or repay to the Contractor any amounts
recovered or paid under clause 24.2.1 for the period up to such later
Completion Date.
24.2.3 Notwithstanding the issue of any further notice under clause 24.1 any
requirement of the Employer which has been previously stated in
writing in accordance with clause 24.2.1 shall remain effective
unless withdrawn by the Employer.
25 EXTENSION OF TIME
25.1 In clause 25 any reference to delay, notice or extension of time
includes further delay, further notice or further extension of time.
25.2.1 If and whenever it becomes reasonably apparent that the progress of
the Works is being or is likely to be delayed the Contractor shall
forthwith give written notice to the Employer of the material
circumstances including the cause or causes of the delay and identify
in such notice any event which in his opinion is a Relevant Event.
25.2.2 In respect of each and every Relevant Event identified in the notice
given in accordance with clause 25.2.1 the Contractor shall, if
practicable in such notice, or otherwise in writing as soon as
possible after such notice;
25.2.2.1 give particulars of the expected thereof; and
25.2.2.2 estimate the extent, if any, of the expected delay in completion of
the Works beyond the Completion Date resulting therefrom whether or
not concurrently with delay resulting from any other Relevant Event.
25.2.3 The Contractor shall give such further written notice to the Employer
as may be reasonably necessary for keeping up-to-date the particulars
and estimate referred to in clauses 25.2.2.1 and 25.2.2.2 including
any material change in such particulars or estimate.
25.3.1 If:
27
28
25.3.1.1 any of the events which are stated by the Contractor to be caused of
the delay is a Relevant Event; and
25.3.1.2 the completion of the Works is likely to be delayed thereby beyond
the Completion Date
the Employer upon receipt of any notices, particulars and estimate
under clauses 25.2.1 and 25.2.2 shall make in writing to the
Contractor such extension of time, if any, for completion of the
Works beyond the Completion Date as is then fair and reasonable, by
fixing a later date as the Completion Date. The Employer shall, in
making such extension of time, state:
25.3.1.3 which of the Relevant Events he has taken into account; and
25.3.1.4 the extent, if any, to which he has had regard to any instruction
under clause 12.2 requiring the omission of any work issued since the
fixing of the previous Completion Date.
and shall, if reasonably practicable having regard to the sufficiency
of the aforesaid notice, particulars and estimates, fix such new
Completion Date not later than 12 weeks from receipt of the notice
and of reasonably sufficient particulars and estimates, or, where the
period between receipt thereof and the Completion Date is less than 12
weeks, not later than the Completion Date.
If upon receipt of any such notice, particulars and estimate it is
not fair and reasonable for the Employer to fix a later date as a new
Completion Date, the Employer shall, if reasonably practicable having
regard to the sufficiency of the aforesaid notice, particulars and
estimate, so notify the Contractor in writing not later than 12 weeks
from receipt of the notice, particulars and estimate, or, where the
period between receipt thereof and the Completion Date is less than
12 weeks, not later than the Completion Date.
25.3.2 After first making an extension of time under clause 25.3.1, the
Employer may fix a Completion Date earlier than that previously fixed
under clause 25 if the fixing of such earlier Completion Date is fair
and reasonable having regard to the omission of any work or
obligation instructed by the Employer under clause 12 after the last
occasion of which the Employer made an extension of time.
25.3.3 After the Completion Date, if this occurs before the date of
Practical Completion, the Employer may, and not later than the expiry
of 12 weeks after the date of Practical Completion, shall in writing
to the Contractor either:
28
29
25.3.3.1 fix a Completion Date later than that previously fixed if the fixing
of such later Completion Date is fair and reasonable having regard to
any of the Relevant Events, whether upon reviewing a previous decision
or otherwise and whether or not the Relevant Event has been specially
notified by the Contractor under clause 25.2.1; or
25.3.3.2 fix a Completion Date earlier than that previously fixed under clause
25 if the fixing of such earlier Completion Date is fair and
reasonable having regard to any instructions of the Employer effecting
a Change requiring the omission of any work issued under clause 12.2
where such issue is after the last occasion on which the Employer made
the extension of time; or
25.3.3.3 confirm to the Contractor the Completion Date previously fixed.
25.3.4 Provided always:
25.3.4.1 the Contractor shall use constantly his best endeavours to prevent
delay in the progress of the Works, howsoever caused, and to prevent
the completion of the Works being delayed or further delayed beyond
the Completion Date; and
25.3.4.2 the Contractor shall do all that may reasonably be required to the
satisfaction of the Employer to proceed with the Works.
25.3.4.5 No decision of the Employer under clause 25.3 shall fix a Completion
Date earlier than the Date for Completion stated in Appendix 1.
25.4 The following are the Relevant Events referred to in clause 25:
25.4.1 force majeure;
25.4.2 exceptionally adverse weather conditions;
25.4.3 loss or damage occasioned by any one or more of the Specified Perils;
25.4.4 civil commotion, local combination of workmen, strike or lock-out
affecting any of the trade employed upon the Works or any of the
trades engaged in the preparation, manufacture or transportation of
any of the goods or materials required for the Works, or any person
engaged in the preparation of the design of the Works;
25.4.5 compliance with the Employer's instructions:
25.4.5.1 under clause 2.3.1, 12.2, 12.3 or 23.2; or
25.4.5.2 in regard to the opening up for inspection of any work covered up or
the testing of any of the work, material or goods in accordance with
clause
29
30
8.3 (including making good in consequence of such opening up or
testing) unless the inspection or test showed that the work,
materials or goods were not in accordance with this contract.
25.4.6 the Contractor not having received in due time necessary
instructions, decisions, information or consent from the Employer
which the Employer is obliged to provide or give under the Conditions
including a decision under clause 2.4.2 for which he specifically
applied in writing provided that such application was made on a date
which having regard to the Completion Date was neither unreasonably
distant from nor unreasonably close to the date on which it was
necessary for him to receive the same;
25.4.7 delay in receipt of any necessary permission or approval of any
statutory body which the Contractor has taken all practicable steps
to avoid or reduce;
25.4.8.1 the execution of work not forming part of this Contract by the
Employer himself or by persons employed or otherwise engaged by the
Employer as referred to in clause 29 or failure to execute such work;
25.4.8.2 the supply by the Employer of materials and goods which the Employer
has agreed to provide for the Works or the failure so to supply;
25.4.9 the exercise after the Base Date by the Government of any statutory
power which directly affects the execution of the Works by
restricting the availability or use of labour which is essential to
the proper carrying out of the Works, or preventing the Contractor
from or delaying the Contractor in, securing such goods or materials
or such fuel or energy as are essential to the proper carrying out of
the Works:
25.4.10.1 the Contractor's inability for reasons beyond his control and which
he could not reasonably have foreseen at the Base Date to secure such
labour as is essential to the proper carrying out of the Works; or
25.4.10.2 the Contractor's inability for reasons beyond his control and which
he could not reasonably have foreseen at the Base Date to secure such
goods or materials as are essential to the proper carrying out of the
Works;
25.4.11 the carrying out by a local authority of work in pursuance of its
statutory obligations in relation to the Works, or the failure to
carry out such work;
25.4.12 failure of the Employer to give in due time ingress from the site of
the Works or any part thereof through or over any land, buildings,
way or passage adjoining or connected with the site and in the
possession and control of the Employer, in accordance with the
Employer's Requirements after receipt by the Employer of such notice,
if any, as the Contractor is required to give, or failure of the
Employer to give such ingress or egress as otherwise agreed between
the Employer and the Contractor;
30
31
25.4.13 Delay which the Contractor has taken all practicable steps to avoid or
reduce consequent upon a change in the Statutory Requirements after the
Base Date which affect the Works as referred to in clause 6.3.1. or an
amendment to the Contractor's Proposals to which clause 6.3.2 applies;
25.4.14 Where clause 23.1.2 is stated in Appendix 1 to apply, the deferment by
the Employer of giving possession of the site under clause 23.1.1.
26 LOSS AND EXPENSE CAUSED BY MATTERS AFFECTING REGULAR PROGRESS OF THE
WORKS
26.1 If the Contractor makes written application to the Employer stating
that he has incurred or is likely to incur direct loss and/or expense
in the execution of this Contract for which he would not be reimbursed
by a payment under any other provision in this Contract due to
deferment of giving possession of the site under clause 23.1.1 where
clause 23.1.2 is stated in the Appendix to be applicable or because the
regular progress of the Works or any part thereof has been or is likely
to be materially affected by any one or more of the matters referred to
in clause 26.2 the amount of such loss and/or expense which has been or
is being incurred by the Contractor shall be added to the Contract Sum;
provided always that;
26.1.1 the Contractor's application shall be made as soon as it has become or,
should reasonably have become, apparent to him that the regular
progress of the Works or of any part thereof has been or was likely to
be affected as aforesaid; and
26.1.2 the Contractor shall in support of his application and in respect of
the amount of the loss and/or expense provide upon request by the
Employer such information and details as the Employer may reasonably
require.
26.2 The following are the matters referred to in clause 26.1:
26.2.1 the opening up for inspection of any work covered up or the testing of
any of the work materials or goods in accordance with clause 8.3
(including making good in consequence of such opening up or testing),
unless the inspection or test showed that the work, materials or goods
were not in accordance with this Contract; or
26.2.2 delay in receipt of any permission or approval for the purposes of
Development Control Requirements necessary for the Works to be carried
out or proceed, which delay the Contractor has taken all practicable
steps to avoid or reduce; or
31
32
26.2.3.1 the execution of work not forming part of this Contract by the
Employer himself or by persons employed or otherwise engaged by
the Employer as referred to in clause 29 or the failure to execute
such work; or
26.2.3.2 the supply by the Employer of materials and goods which the
Employer has agreed to provide for the Works or the failure so to
supply; or
26.2.4 Employer's instructions issued under clause 23.2 in regard to the
postponement of any work to be executed under the provisions of
this Contract; or
26.2.5 failure of the Employer to give in due time ingress to or egress
form the site of the Works or any part thereof through or over any
land, buildings, way or passage adjoining or connected with the
site and in the possession and control of the Employer, in
accordance with the Employer's Requirements after receipt by the
Employer of such notice, if any, as the Contractor is required to
give, or failure of the Employer to give such ingress or egress as
otherwise agreed between the Employer and the Contractor; or
26.2.6 Employer's instructions issued under clause 12.2 effecting a
Change or under clause 12.3 in regard to the expenditure of
provisional sums: or
26.2.7 the Contractor not having received in due time necessary
instructions, decisions, information or consents from the Employer
which the Employer is obliged to provide or give under the
Conditions including a decision under clause 2.4.2 and for which
he specifically applied in writing provided that such application
was made on a date which having regard to the Completion Date was
neither unreasonably distant from nor unreasonably close to the
date on which it was necessary for him to receive the same.
26.3 Any amount from time to time ascertained under clause 26 shall be
added to the Contract Sum.
26.4 The provisions of clause 26 are without prejudice to any other
rights and remedies which the Contractor may possess.
27 DETERMINATION BY EMPLOYER
27.1 Without prejudice to any other rights and remedies which the
Employer may possess, if the Contractor shall make default in any
one or more of the following respects, that is to say;
if without reasonable cause he wholly suspends the carrying out of
the design or construction of the Works before completion thereof;
or
32
33
27.1.2 if he fails to proceed regularly and diligently with the performance
of his obligations under this Contract; or
27.1.3 if he refuses or neglects to comply with a written notice from the
Employer requiring him to remove defective work or improper materials
or goods and by such refusal or neglect the Works are materially
affected; or
27.1.4 if he fails to comply with the provisions of clause 18
then the Employer may give to him a notice by registered post or
delivery by hand specifying the default. If the Contractor either
shall continue such default for 14 days after receipt of such notice
or shall at any time thereafter repeat such default (whether
previously repeated or not), then the Employer may within 10 days
after such continuance or repetition by notice by registered post or
delivery by hand forthwith determine the appointment of the Contractor
under this Contract; provided that such notice shall not be given
unreasonably or vexatiously.
27.2 In the event of the Contractor becoming bankrupt or making a
composition or arrangement with his creditors or having a winding up
order made or (except for purposes of amalgamation or reconstruction)
a resolution for voluntary winding up passed or having a provisional
liquidator, receiver or manager of his business or undertaking duly
appointed, or having possession taken, by or on behalf of the holders
of any debentures secured by a floating charge, of any property
comprised in or subject to the floating charge, the appointment of the
Contractor under this Contract shall be forthwith automatically
determined but the said appointment may be reinstated and continued if
the Employer and the Contractor, his trustee in bankruptcy,
liquidator, provisional liquidator, receiver or manager as the case
may be shall so agree.
27.3 The Employer shall be entitled to determine the appointment of the
Contractor under this or any other contract, if the Contract shall
have offered or given or agreed to give to any person any gift or
consideration of any kind as an inducement or reward for doing or
forbearing to do or for having done or forborne to do any action in
relation to the obtaining or execution of this or any other contract
with the Employer, or for showing or forbearing to show favour or
disfavour to any person in relation to this or any other contract with
the Employer, or if the like acts shall have been done by any person
employed by the Contractor or acting on his behalf (whether with or
without the knowledge of the Contractor).
27.4 In the event of the appointment of the Contractor under this Contract
being determined under clauses 27.1, 27.2 or 27.3 and so long as it
has not been reinstated and continued, the following shall be the
respective rights and duties of the Employer and the Contractor:
33
34
27.4.1 for the purposes referred to in clause 5.5. the Contractor shall
provide the Employer with 2 copies of, and the Employer may retain,
all such drawings or details or descriptions as the Contractor has
prepared or previously provided and drawings and information relating
to the Works completed before determination of the Contractor's
appointment;
27.4.2 the Employer may employ or pay other persons to carry out and complete
the design and construction of the Works and he or they may enter upon
the works and use all temporary buildings, plant, tools, equipment,
goods and materials intended for, delivered to and placed on or
adjacent to the Works, and may purchase all materials and goods
necessary for the carrying out and completion of the Works;
27.4.3.1 except where the determination occurs by reason of the bankruptcy of
the Contractor or of his having a winding up order made or (other than
for the purposes of amalgamation or reconstruction) a resolution for
voluntary winding up passed, the Contractor shall if so required by
the Employer within 14 days of the date of determination, assign to
the Employer without payment the benefit of any agreement for the
supply of materials or goods and/or for the execution of any work for
the purposes of this Contract but on the terms that a supplier or
sub-contractor shall be entitled to make any reasonable objection to
any further assignment thereof by the Employer.
27.4.3.2 unless the exception to the operation of clause 27.4.3.1 applies the
Employer may pay any supplier or sub-contractor for any materials or
goods delivered or works executed for the purposes of this Contract
(whether before or after the date of determination) in so far as the
price thereof has not already been paid by the Contractor;
27.4.4 the Contractor shall as and when required in writing by the Employer
so to do (but not before) remove from the Works any temporary
buildings, plant, tools, equipment, goods and materials belonging to
or hired by him. If within a reasonable time after any such
requirement has been made the Contractor has not complied therewith,
then the Employer may (but without being responsible for any loss or
damage) remove and sell any such property of the Contractor, holding
the proceeds less all costs incurred to the credit of the Contractor;
27.4.5 the Contractor shall allow or pay to the Employer in the manner
hereinafter appearing the amount of any direct loss and/or damage
caused to the Employer by the determination. Until after completion of
the Works under clause 27.4.2 the Employer shall not be bound by any
provision of this Contract to make any further payment the Contractor,
but upon such completion and the verification within a reasonable time
of the accounts therefor the Employer shall state the amount of
expenses properly incurred by the employer and the amount of any
direct loss and/or damage caused to the Employer by the determination
and, if such
34
35
amounts when added to the monies paid to the Contractor before the
date of determination exceed the total amount which would have been
payable on due completion in accordance with this Contract, the
difference shall be a debt payable to the Employer by the Contractor,
and if the said amounts when added to the said monies be less than the
said total amount, the difference shall be a debt payable by the
Employer to the Contractor.
28 DETERMINATION BY CONTRACTOR
28.1 Without prejudice to any other rights and remedies which the
Contractor may possess, if:
28.1.1 the Employer does not pay to the Contractor any interim amount
properly due under clause 30.1 within 14 days and continues such
default for 7 days after receipt by registered post or delivery by
hand of a notice from the Contractor stating that notice of
determination under clause 28 will be served if payment is not made
within 7 days from receipt thereof
28.1.2 (deleted)
then the Contractor may thereupon by notice by registered post or
delivery by hand to the Employer forthwith determine the appointment
of the Contractor under this Contract; provided that such notice shall
not be given unreasonably or vexatiously.
28.2 Upon such determination, then without prejudice to the accrued rights
or remedies of either party or to any liability of the classes
mentioned in clause 20 which may accrue either before the Contractor
or any sub-contractor shall have removed his temporary buildings,
plant, tools, equipment, goods or materials or by reason of his or
their so removing the same, the following shall be the respective
rights and liabilities of the Contractor and the Employer;
28.2.1 the Contractor shall with all reasonable dispatch and in such manner
and with such precautions as will prevent injury, death or damage of
the classes in respect of which before the date of determination he
was liable to indemnify the Employer under clause 20 remove from the
site all temporary buildings, plant, tools, equipment, goods and
materials and shall give facilities for his sub-contractors to do the
same, but subject always to the provisions of clause 28.2.3.4;
28.2.2 for the purposes referred to in clause 5.5, the Contractor shall
provide the Employer with 2 copies of, and the Employer may retain,
all such drawings or details or descriptions as the Contractor has
prepared or previously provided and drawings and information relating
to the Works completed before determination of the Contractor's
appointment;
35
36
28.2.3 after taking into account amounts previously paid under this Contract
the Contractor shall be paid by the Employer;
28.2.3.1 the total value of work (including design work) completed at the date
of determination;
28.2.3.2 the total value of work (including design work) begun and executed but
not completed at the date of determination, the value being
ascertained in accordance with clause 12.4 as if such work were a
Change effected under clause 12.2 but after taking account of any
amounts referred to in clauses 28.2.3.3 to 28.2.3.6;
28.2.3.3 any amount in respect of direct loss and/or expense under clause 26;
28.2.3.4 the cost of materials or goods properly ordered for the Works for
which the Contractor shall have paid or for which the Contractor is
legally bound to pay, and on such payment by the Employer any
materials or goods so paid for shall become the property of the
Employer;
28.2.3.5 the reasonable cost of removal under clause 28.2.1;
28.2.3.6 any direct loss and/or expense caused to the Contractor by the
determination except where the ground for determination is that set
out in clause 28.1.2.5.
28A DETERMINATION BY EMPLOYER OR CONTRACTOR
(deleted)
29 EXECUTION OF WORK NOT FORMING PART OF CONTRACT
29.1 Where the Employer's Requirement in regard to any work not forming
part of this Contract and which is to be carried out by the Employer
himself or by persons employed or otherwise engaged by him, provide
such information as is necessary to enable the Contractor to carry out
and complete the Works in accordance with the Conditions, the
Contractor shall permit the execution of such work.
29.2 Where the Employer's Requirement do not provide the information
referred to in clause 29.1 and the Employer requires the execution of
work not forming part of this Contract by the Employer himself or by
persons employed or otherwise engaged by the Employer, then the
Employer may, with the consent of the Contractor (which consent shall
not be unreasonably withheld) arrange for the execution of such work.
36
37
29.3 Every person employed or otherwise engaged by the Employer as
referred to in clauses 29.1 and 29.2 shall for the purpose of clause
20 be deemed to be a person for whom the Employer is responsible and
not to be a sub-contractor.
30 PAYMENTS
30.1.1 Interim Payments shall be made by the Employer to the Contractor in
accordance with clauses 30.1 to 30.4 and whichever of the
Alternatives A or B in Appendix 2 applies to this Contract.
30.1.2 The amount due as an Interim Payment shall be the gross valuation as
referred to in clause 30.2A or clause 30.2B whichever is applicable,
less:
301.2.1 any amount which the Employer may deduct and retain as provided in
clause 30.4 (in the Conditions called "the Retention") and
30.1.2.2 the sum of the amounts paid in previous Interim Payments.
30.2A The gross valuation for the purposes of Interim Payments in
accordance with Alternative A is the total of the amounts referred to
in clause 30.2A.1 and of the amounts referred to in clause 30.2A.2
less the amount referred to in clause 30.2A.3.
30.2A.1 The following amounts are subject to Retention:
30.2A.1.1 the cumulative value at the relevant stage;
30.2A.1.2 the amount of any valuation of Changes or of instructions by the
Employer in regard to the expenditure of provisional sums (clause
12.2 or clause 12.3) relevant to the Interim Payment;
30.2A.1.3 (deleted)
30.2A.2 The following amounts are not subject to Retention:
30.2A.2.1 any amounts payable in accordance with clause 3 by the Employer as a
result of payments made or costs incurred by the Contractor under
clauses 8.3, 9.2, 16.2 or 16.3;
30.2A.2.2 any amounts due under clause 26;
30.2A.2.3 (deleted)
30.2A.3 The following amount is not subject to Retention:
30.2A.3.1 any amount deductible under clauses 16.2 or 16.3
37
38
30.2A.4 (deleted)
30.2B The gross valuation for the purposes of Interim Payments in
accordance with Alternative B is the total of the amounts
referred to in clause 30.2B.1 and of the amounts referred to in
clause 30.2B.2 less the amount referred to in clause 30.2B.3.
30.2B.1 The following amounts are subject to Retention:
30.2B.1.1 the total value of work properly executed including any design
work carried out by the Contractor and any work so executed to
which clause 12.2 and clause 12.3 refer;
30.2B.1.2 the total value of the materials and goods delivered to or
adjacent to the Works for incorporation therein by the Contractor
but not so incorporated, provided that the value of such
materials and goods shall only be included as and from such times
as they are reasonably, properly and not prematurely so delivered
and are adequately protected against weather and other
casualties;
30.2B.1.3 the total value of any materials and goods other than those to
which clause 30.2B.1.2 refers where the Employer in the exercise
of his discretion as referred to in Alternative B in Appendix 2
has decided that such total value be included in an Interim
Payment;
30.2B.1.4 (deleted)
30.2B.2 The following amounts are not subject to Retention:
30.2B.2.1 any amounts payable in accordance with clause 3 by the Employer
as a result of payments made or costs incurred by the Contractor
under clause 8.3, 9.2, 16.2 or 16.3;
30.2B.2.2 any amount due under clause 26;
30.2B.2.3 (deleted)
30.2B.3 The following amount is not subject to Retention:
30.2B.3.1 any amount deductible under clauses 16.2 or 16.3.
30.3.1 The contractor shall make Applications for Interim Payment as
follows:
30.3.1.1 where Alternative A applies, Application for Interim Payment
shall be made on completion of each stage set out in Alternative
A in Appendix 2 and after the expiration of the Defects Liability
Period named in Appendix 1 or on the issue of
38
39
the Notice of Completion of Making Good Defects (whichever is the
later);
30.3.1.2 where Alternative B applies, Application for Interim Payment shall be
made at the Period for Applications for Interim Payment stated in
Alternative B in Appendix 2 up to and including the end of the Period
during which the day named in the Statement of Practical Completion
occurs. Thereafter Application for Interim Payment shall be made as
and when further amounts are due to the Contractor and after the
expiration of the Defects Liability Period named in Appendix 1 or on
the issue of the Notice of Completion of Making Good Defects
(whichever is the later) provided that the Employer shall not be
required to make any Interim Payment within one calendar month of
having made a previous Interim Payment.
30.3.2 Each application for Interim Payment shall be accompanied by such
details as may be stated in the Employer's Requirements.
30.3.3 Subject to clause 30.3.4 the Employer shall pay the amount stated as
due in the Application for Interim Payment within 14 days of the issue
of each Application for Interim Payment.
30.3.4 If on receipt of any Application for Interim Payment the Employer
considers that the amount stated as due in the Application is not in
accordance with this Contract he shall forthwith issue to the
Contractor a notice with reasons to that effect and shall pay at the
same time as the issue of that notice such amount as he considers to
be properly due as an Interim Payment.
30.3.5 The payment by the Employer of the amount referred to in clause 30.3.4
shall be without prejudice to the rights of the Contractor in respect
of any amount which he considers has been improperly withheld by the
Employer or in respect of any payment by the Employer which he
considers was not in accordance with this Contract.
30.4.1 The Retention which the Employer may deduct and retain as referred to
in clause 30.1.2 is such percentage of the total amount included under
clause 30.2A.1 or clause 30.2B.1 whichever is applicable as arises
from the operation of the following rules:
30.4.1.1 the percentage referred to in the Conditions and Appendix 1 as "the
Retention Percentage" shall be 5 per cent unless a lower rate shall
have been agreed between the parties and specified in Appendix 1 as
the Retention Percentage;
30.4.1.2 (deleted)
30.4.1.3 (deleted)
39
40
30.4.2 The Retention shall be subject to the following rules:
30.4.2.1 the Employer's interest in the Retention is fiduciary as trustee for
the Contractor (but without obligation to invest);
30.4.2.2 to the extent that the Employer exercises his right under clause 30.4
and if the Contractor then so requests, the Employer, at the time of
each Interim Payment, shall place the Retention in a separate banking
account (so designated as to identify the amount as the Retention held
by the Employer on trust as provided in clause 30.4.2.1) and inform the
Contractor in writing that such amount has been so placed. The Employer
shall be entitled to the full beneficial interest in any interest
accruing in the separate banking account and shall be under no duty to
account for any such interest to the Contractor.
30.4.3 Notwithstanding the fiduciary interest of the Employer in the Retention
as stated in clause 30.4.2.1 the Employer is entitled to exercise any
right under this Contract of deduction from monies due or to become due
to the Contractor against any amount otherwise due whether or not any
Retention is included in that amount by the operation of clause 30.
30.5.1 Within 3 months of Practical Completion the Contractor shall submit the
Final Account and the Final Statement referred to in clause 30.5.4 for
agreement by the Employer and the Contractor shall supply the Employer
with such supporting documents as the Employer may reasonably require.
30.5.2 The Contract Sum shall be adjusted in accordance with the Conditions
and the Final Account shall set out the Contract Sum together with the
adjustments set out in clause 30.5.3.
30.5.3 There shall be deducted from the Contract Sum:
30.5.3.1 all provisional sums included in the Employer's Requirements;
30.5.3.2 any deduction by way of adjustment under clauses 2.3.2 and 6.3;
30.5.3.3 the amount of any valuation of the omission of work in accordance with
an instruction of the Employer affecting a Change together with any
amount in respect of any other work as referred to in clause 12.5.5
which is to be valued under clause 12.5;
30.5.3.4 any amount deducted or deductible under clauses 16.2 or 16.3;
30.5.3.5 any other amount which is required by this Contract to be deducted from
the Contract Sum.
There shall be added to the Contract Sum:
40
41
30.5.3.6 any addition by way of adjustment under clauses 2.3.2 and 6.3;
30.5.3.7 any amounts paid or payable by the Employer to the Contractor as a
result of payments made or costs incurred by the Contractor under
clauses 8.3, 9.2, 16.2 or 16.3;
30.5.3.8 the amount of the valuation under clause 12.5 of any Change including
the value of other work as referred to in clause 12.5.5 other than the
valuation of any omission under clause 12.5.2;
30.5.3.9 the amount of the valuation of work executed by, or the amount of any
disbursements by, the Contractor in accordance with instructions by
the Employer as to the expenditure of provisional sums included in the
Employer's Requirements;
30.5.3.10 any amount ascertained under clause 26;
30.5.3.11 (deleted)
30.5.3.12 (deleted)
30.5.3.13 any other amount which is required by this Contract to be added to the
Contract Sum.
30.5.4 The Final Statement shall set out:
30.5.4.1 the amount resulting from the operation of clauses 30.5.2 and 30.5.3;
and
30.5.4.2 the sum of amounts already paid by the Employer to the Contractor
and the difference (if any) between the two sums shall be expressed as
a balance due to the Contractor from the Employer or to the Employer
from the Contractor as the case may be.
30.5.5 If nothing in the Final Account or in the Final Statement as submitted
by the Contractor in accordance with clause 30.5.1 is disputed by the
Employer within 1 month from the end of the Defects Liability Period
stated in Appendix 1 or from completion of making good defects under
clause 16 or within 1 month of the submission of the Final Account and
the Final Statement to the Employer by the Contractor, whichever is
the later, the Final Account and the Final Statement so submitted
shall be conclusive as to the balance due between the parties in
accordance therewith.
30.5.6 If the Contractor does not submit the Final Account and the Final
Statement
41
42
within the 3 months referred to in clause 30.5.1 the Employer may on
the expiry of the said 3 months give notice in writing to the
Contractor that if the Final Statement and Final Account are not
submitted by the Contractor within 2 months from the date of the
written notice the Employer may himself prepare or have prepared a
Final Account and Final Statement 'Employer's Final Account' and
'Employer's Final Statement').
30.5.7 The Employer's Final Account shall set out the Contract Sum together
with such adjustments as are referred to in clause 30.5.3 and such
other adjustments which are in accordance with the Conditions as the
Employer, on the information in his possession, can make. The
Employer's Final Statement shall set out:
30.5.7.1 the amount stated in the Employer's Final Account; and
30.5.7.2 the sum of amounts already paid by the Employer to the Contractor
and the difference (if any) between the two sums shall be expressed
as a balance due to the Contractor from the Employer or to the
Employer from the Contractor as the case may be.
30.5.8 If nothing in the Employer's Final Account or in the Employer's Final
Statement are sent to the Contractor in accordance with clause 30.5.6
is disputed by the Contractor within 1 month from the end of the
Defects Liability Period stated in Appendix 1 or from completion of
making good defects under clause 16 or from the sending of the
Employer's Final Account and the Employer's Final Statement to the
Contractor by the Employer, whichever is the later, the Employer's
Final Statement so sent shall be conclusive as to the balance due
between the parties in accordance therewith.
30.6 Subject to any deductions authorised by the Conditions any balance
properly stated in the Final Statement in accordance with clause
30.5.4 or stated in the Employer's Final Statement in accordance with
clause 30.5.6 shall, as from the 28th day after the Final Statement is
agreed or by the operation of clause 30.5.5 becomes conclusive as to
the balance due between the parties or as from the 28th day after the
Employer's Final Account by the operation of clause 30.5.8 becomes
conclusive as to the balance due between the parties, be a debt
payable as the case may be by the Employer to the Contractor or by the
Contractor to the Employer.
30.7 Where the Employer exercises any right of deduction from monies due
or to become due to the Contractor he shall inform the Contractor in
writing of the reason for that deduction.
30.8.1 The Final Account and Final Statement, when they are agreed or become
conclusive as to the balance due between the parties in accordance
with clause
42
43
30.5.5 or the Employer's Final Account and Employer's Final Statement
when they become conclusive as to the balance due between the parties
in accordance with clause 30.5.8 shall, except as provided in clauses
30.8.2 and 30.8.3 (and save in respect of fraud), have effect in any
proceedings arising out of or in connection with this Contract
(whether by arbitration under article 5 or otherwise):
30.8.1.1 as conclusive evidence that where it is stated in the Employer's
Requirements that the quality of materials or the standards of
workmanship are to be to the reasonable satisfaction of the Employer
the same are to such satisfaction; and
30.8.1.2 conclusive evidence that all and only such extension of time, if any,
as are due under clause 25 have been given; and
30.8.1.3 conclusive evidence that the reimbursement of direct loss and/or
expense, if any, to the Contractor pursuant to clause 26.1 is in
final settlement of all and any claims which the Contractor has or
may have arising out of the occurrence of any of the matters referred
to in clause 26.2 whether such claim be for breach of contract, duty
of care, statutory duty or otherwise.
30.8.2 If any arbitration or other proceedings have previously been
commenced by either party the Final Account and Final Statement or
the Employer's Final Account and Employer's Final Statement as the
case may be, shall have effect as aforesaid after either:
30.8.2.1 such proceedings have been concluded, whereupon the Final Account and
Final Statement or the Employer's Final Account and Employer's Final
Statement as the case may, shall be subject to the terms of any award
or judgement in or settlement of such proceedings; or
30.8.2.2 a period of 12 months during which neither party has taken any
further step in such proceedings, whereupon the Final Account and
Final Statement or the Employer's Final Account and Employer's Final
Statement as the case may be, shall be subject to any terms agreed in
partial settlement, whichever be the earlier.
30.8.3 If any arbitration or other proceedings have been commenced by either
party within 28 days after the Final Account and Final Statement or
the Employer's Final Account and Employer's Final Statement as the
case may be, would otherwise become conclusive by the operation of
clause 30.5.5 or clause 30.5.8, the Final Account and Final Statement
or the Employer's Final Account and Employer's Final Settlement as
the case may be, shall have effect as such conclusive evidence save
only in respect of all matters to which these proceedings relate.
43
44
30.9 Save as aforesaid no payment by the Employer shall of itself by
conclusive evidence that any design, works, materials or goods to
which it relates are in accordance with this Contract.
31 CERTIFICATE OF FITNESS FOR OCCUPATION
31.1 The Contractor shall apply for the issuance of the Certificate of
Fitness for Occupation from the Appropriate Authority and shall at
his own cost and expense duly comply with all the requirements of the
appropriate authority which are necessary for the issuance of such
Certificate in respect of the Works.
31.2 The Contractor shall cause or procure the issuance of the Certificate
of Fitness for Occupation by the Completion Date.
32-38 (numbers not used)
39 SETTLEMENT OF DISPUTES - ARBITRATION
39.1 When the Employer or the Contractor require a dispute or difference
as referred to in Article 5 to be referred to arbitration then either
the Employer or the Contractor shall give written notice to the other
or such effect and such dispute or difference shall be referred to
the arbitration and final decision of a person to be agreed between
the parties as the Arbitrator.
39.2 Such reference, except:
39.2.1 on the questions;
whether or not the issue of an instruction is empowered by the
Conditions; or
whether or not a payment has been improperly withheld; or
whether a payment is not in accordance with the Conditions; or
whether either party has withheld or delayed a consent or statement
where such consent or statement is not to be unreasonably withheld or
delayed; or
39.2.2 on any dispute or difference under clause 4.1.1 in regard to a
reasonable objection by the Contractor, under clause 8.4, under clause
8.5, under clause 18.2.1 or under clause 18.2.3 in regard to a
withholding of consent by the Employer, under clause 17.1 or clause
23.3.2 in regard to a withholding of consent by the Contractor and
under clause 25.
44
45
shall not be opened until after Practical Completion or alleged
Practical Completion of the Works or termination or alleged
termination of the Contractor's appointment under this Contract or
abandonment of the Works, unless with the written consent of the
Employer and the Contractor.
39.3 Subject to the provisions of clauses 4.2 and 30.8 the Arbitrator
shall, without prejudice to the generality of his powers, have power
to rectify the contract so that it accurately reflects the true
agreement made by the Employer and the Contractor, to direct such
measurements and/or valuations as may in his opinion be desirable in
order to determine the rights of the parties and to ascertain and
award any sum which ought to have been the subject of or included in
any payment and to open up, review and revise any account, opinion,
decision, requirement or notice and to determine all matters in
dispute which shall be submitted to him in the same manner as if no
such account, opinion, decision, requirement or notice had been given.
39.4 Subject to clause 39.5 the award of such Arbitration shall be final
and binding on the parties.
39.5 The parties herby agree and consent that either party;
39.5.1 may appeal to the High Court on any question of law arising out of an
award made in an arbitration under this Arbitration Agreement; and
39.5.2 may apply to the High Court to determine any question of law arising
in the course of the reference.
and the parties agree that the High Court should have jurisdiction to
determine any such question in law.
39.6 Whatever the nationality, residence or domicile of the Employer, the
Contractor, any sub-contractor or supplier or the Arbitrator, and
wherever the Works or any part thereof are situated, the law of
Malaysia shall be the proper law of this Contract and in particular
(but not so as to derogate from the generality of the forgoing) the
provisions of the Arbitration Xxx 0000 shall apply to any arbitration
under this Contract wherever the same, or any part of it, be
conducted.
39.7 If before making his final award the Arbitrator dies or otherwise
ceases to act as the Arbitrator, the Employer and the Contractor
shall forthwith appoint a further Arbitrator, or, upon failure so to
appoint within 14 days of any such death or cessation, then either
the Employer or the Contractor may request the person
45
46
Named in Appendix 1 to the Conditions to appoint such further Arbitrator.
Provided that no such further Arbitrator shall be entitled to disregard any
direction of the previous Arbitrator or to vary or revise any award of the
previous Arbitrator with the agreement of the parties and/or by the operation of
law.
46
47
APPENDIX 1
Clause etc.
Base Date 1.3 _______
Date for Completion 1.3 _______
Defects Liability Period 16.2, 17 and 30 12 months
(if none other stated is
6 months from day named in
the statement as to
Practical Completion of the
Works).
Assignment by Employer of 18.1.2 Clause 18.1.2 applies
benefits after Practical
Completion.
Insurance cover for any one 21.1.1 Nil
occurrence or series of
occurrences arising out of
one event.
Insurance-liability of 21.2.1 Nil
Employer.
Percentage to cover 22A Nil
professional fees
Annual renewal date of 22A.3.1 Not Applicable
insurance supplied by
Contractor
Date of Possession 23.1.1. ______
Deferment of the Date of 23.1.2 Clause 23.1.2 does not apply
possession 25.4.14
26.1
Liquidated and ascertained 24.2 At the rate of RM 500.00
damages per day
Retention Percentage 30.4.1.1 2.5% (whereby 1.25% shall be
released to the Contractor 6
months from the day named in
the statement as to Practical
Completion and the balance
1.25% shall be released 12
months from the day named in
the statement as to Practical
Completion)
47
48
APPENDIX 2: METHOD OF PAYMENT - ALTERNATIVES
Clause 30.1 : Interim Payments shall be made in accordance with clause 30 and:
- by stages in accordance with Alternative A below and clause 30.2B
shall not apply
- periodically in accordance with Alternative B and clause 30.2A
shall not apply.
ALTERNATIVE A: STAGE PAYMENTS
The stages referred to in clause 30.3.1.1 are:
Not Applicable.
ALTERNATIVE B: PERIODIC PAYMENTS
The period for Applications for Interim Payment referred to in clause 30.3.1.2
is:
monthly payments as set out on a separate sheet attached referred to as PROPOSED
PAYMENT SCHEDULE.
48
49
APPENDIX 3
THE EMPLOYER'S REQUIREMENTS are comprised in the following document(s)
(including any drawings) signed by or on behalf of the parties hereto:
As per drawings attached.
THE CONTRACTOR'S PROPOSALS are comprised in the following document(s) (including
any drawings) signed by or on behalf of the parties hereto:
Attached.
THE CONTRACT SUM ANALYSIS are comprised in the following document(s) (including
any drawings) signed by or on behalf of the parties hereto:
Attached.
49