EXHIBIT 4.13
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THE ASIA SATELLITE TELECOMMUNICATIONS COMPANY LTD.
CONTRACT AGREEMENT
Made this 4th day of March, 2002
BETWEEN
1. The Asia Satellite Telecommunications Company Limited whose
registered office is at 00/X Xxxx Xxxxxxxx Xxxxx, 00 Xxxxxxxx Xxxx,
Xxxx Xxxx ("The Employer") and
2. Leighton Contractors (Asia) Limited whose registered office is at
00/X Xxx Xxxx Xxx Xxxxxx, 00 Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx ("The
Contractor").
WHEREAS
A. The Employer wants to have designed and built a new satellite earth
station in Taipo, New Territories, Hong Kong and has caused the Employer's
Requirements to be prepared.
B The Contractor has offered to carry out the design and construction of the
new satellite earth station, in accordance with the Employer's
Requirements, the Tender and the Letter of Intent, for the Contract Sum.
IT IS NOW HEREBY AGREED AS FOLLOWS:
1. The Contractor will carry out and complete the design and construction of
the new satellite earth station, in accordance with the Employer's
Requirements, the Tender reference RFG/PE/js/H2118R/01/344 dated 19
November 2001, The Contractor's letter reference JFN/KM/js/H2118R/01/345
and the Letter of Intent dated 26 November 2001, for the Contract Sum. At
present the Contract Sum consists of two options as follows:-
OPTION A OPTION B
Piled Solution Raft Solution
D&C Package HK$112.0M
HK$101.8M
Contingencies and Provisional Sums HK$ 7.7M HK$ 7.7M
TOTAL HK$ 119.7M HK$ 109.5M
The two options will be proceeded with in parallel and a decision made as
to which option will be finally adopted at a time suitable to the
programme so as not to cause any delay to the Works.
2. The Contractor further agrees to manage the contingency and provisional
sums for the stated amounts in both options whereby the sum can rise to a
maximum
of HK$20M without attracting any additional overheads or profit.
3. This Agreement adopts the definitions set out in the General Conditions.
In witness whereof the Parties have executed this Agreement on the date first
written above.
SIGNED BY the Chief Executive Officer)
for and on behalf of ASIA SATELLITE )
TELECOMMUNICATIONS )
COMPANY LIMITED )
_____________________________
Xxxxx Xxxxxxx
in the presence of:
_____________________________
Name of Witness : Xxxxxxxxx Xxxxx
SIGNED BY the )
for and on behalf of LEIGHTON )
CONTRACTORS (ASIA) LIMITED ) _____________________________
Print Name :
In the presence of:
_____________________________
Name of Witness :
PROPOSED SATELLITE XXXXX XXXXXXX
XX XXX XX XXXXXXXXXX XXXXXX DESIGN GENERAL CONDITIONS OF CONTRACT
AND BUILD TENDER DOCUMENTS
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2. GENERAL CONDITIONS
General Conditions of Contract
for
Proposed Satellite Earth Station at
Tai Po Industrial Estate
3
GENERAL CONDITIONS
CONTENTS
1. GENERAL PROVISIONS....................................................7
1.1 Definitions...........................................................7
1.2 Interpretation.......................................................11
1.3 Communications.......................................................11
1.4 Law and Language.....................................................12
1.5 Priority of Documents................................................12
1.6 Contract Agreement...................................................12
1.7 Assignment...........................................................12
1.8 Care and Supply of Documents.........................................13
1.9 Confidentiality......................................................13
1.10 Employer's Use of Contractor's Documents.............................13
1.11 Contractor's Use of Employer's Documents.............................14
1.12 Confidential Details.................................................14
1.13 Compliance with Laws.................................................15
1.14 Joint and Several Liability..........................................15
2.EMPLOYER....................................................................15
2.1 Right of Access to the Site..........................................15
2.2 Permits, Licences or Approvals.......................................16
2.3 Employer's Personnel.................................................16
2.4 Not Applicable.......................................................16
2.5 Employer's Claims....................................................16
3. THE EMPLOYER'S ADMINISTRATION........................................17
3.1 The Employer's Representative........................................17
3.2 Other Employer's Personnel...........................................17
3.3 Delegated Persons....................................................18
3.4 Instructions.........................................................18
3.5 Determinations.......................................................18
3.6 Good Faith...........................................................19
4. THE CONTRACTOR.......................................................19
4.1 Contractor's General Obligations.....................................19
4.2 Guarantee............................................................19
4.3 Contractor's Representative..........................................20
4.4 Subcontractors.......................................................20
4.5 Nominated Subcontractors.............................................20
4.6 Co-operation.........................................................20
4.7 Setting Out..........................................................21
4.8 Safety Procedures....................................................21
4.9 Quality Assurance....................................................22
4.10 Site Data............................................................22
4.11 Verification and Interpretation of Site Data.........................22
4.12 Latent Physical Conditions and Unforeseeable Difficulties............22
4.13 Rights of Way and Facilities.........................................23
4.14 Avoidance of Interference............................................23
4.15 Access Route.........................................................23
4.16 Transport of Goods...................................................24
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4.17 Contractor's Equipment...............................................24
4.18 Protection of the Environment........................................24
4.19 Electricity, Water and Gas...........................................24
4.20 Employer's Equipment and Free-Issue Material.........................25
4.21 Progress Reports.....................................................25
4.22 Security of the Site.................................................26
4.23 Contractor's Operations..............................................26
4.24 Fossils..............................................................27
5. DESIGN...............................................................27
5.1 General Design Obligations...........................................27
5.2 Contractor's Documents...............................................28
5.3 Contractor's Undertaking.............................................29
5.4 Technical Standards and Regulations..................................29
5.5 Training.............................................................29
5.6 As-Built Documents...................................................30
5.7 Operation and Maintenance Manuals....................................30
5.8 Design Error.........................................................30
6. STAFF AND LABOUR.....................................................30
6.1 Engagement of Staff and Labour.......................................30
6.2 Rates of Wages and Conditions of Labour..............................31
6.3 Persons in the Service of Others.....................................31
6.4 Labour Laws..........................................................31
6.5 Working Hours........................................................31
6.6 Facilities for Staff and Labour......................................31
6.7 Health and Safety....................................................31
6.8 Contractor's Superintendence.........................................32
6.9 Contractor's Personnel...............................................32
6.10 Records of Contractor's Personnel and Equipment......................33
6.11 Disorderly Conduct...................................................33
7. PLANT, MATERIALS AND WORKMANSHIP.....................................33
7.1 Manner of Execution..................................................33
7.2 Samples..............................................................33
7.3 Inspection...........................................................33
7.4 Testing..............................................................34
7.5 Rejection............................................................35
7.6 Remedial Work........................................................35
7.7 Ownership of Plant and Materials.....................................36
7.8 Royalties............................................................36
8. COMMENCEMENT, DELAYS AND SUSPENSION..................................36
8.1 Commencement of Works................................................36
8.2 Time for Completion..................................................37
8.3 Programme............................................................37
8.4 Extension of Time for Completion.....................................38
8.5 Delays Caused by Authorities.........................................39
8.6 Rate of Progress.....................................................39
8.7 Delay Damages........................................................39
8.8 Suspension of Work...................................................40
8.9 Consequences of Suspension...........................................40
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8.10 Payment for Plant and Materials in Event of Suspension...............41
8.11 Prolonged Suspension.................................................41
8.12 Resumption of Work...................................................41
8.13 Suspension at Contractor's Request...................................41
9. TESTS ON COMPLETION..................................................41
9.1 Contractor's Obligations.............................................41
9.2 Delayed Tests........................................................42
9.3 Retesting............................................................42
9.4 Failure to Pass Tests on Completion..................................43
10. EMPLOYER'S TAKING OVER...............................................43
10.1 Taking Over of the Works and Sections................................43
10.2 Taking Over of Parts of the Works....................................44
10.3 Interference with Tests on Completion................................44
11. DEFECTS LIABILITY....................................................44
11.1 Completion of Outstanding Work and Remedying Defects.................44
11.2 Cost of Remedying Defects............................................44
11.3 Extension of Defects Notification Period.............................45
11.4 Failure to Remedy Defects............................................45
11.5 Removal of Defective Work............................................45
11.6 Further Tests........................................................46
11.7 Right of Access......................................................46
11.8 Contractor to Search.................................................46
11.9 Performance Certificate..............................................46
11.10 Clearance of Site....................................................46
12. TESTS AFTER COMPLETION...............................................47
12.1 Procedure for Tests after Completion.................................47
12.2 Delayed Tests........................................................47
12.3 Retesting............................................................48
12.4 Failure to Pass Tests after Completion...............................48
13. VARIATIONS AND ADJUSTMENTS...........................................48
13.1 Right to Vary........................................................48
13.2 Value Engineering....................................................49
13.3 Variation Procedure..................................................49
13.4 Not Applicable.......................................................50
13.5 Not Applicable.......................................................50
13.6 Adjustments for Changes in Legislation...............................50
13.7 Adjustments for Changes in Costs.....................................50
14. CONTRACT PRICE AND PAYMENT...........................................50
14.1 The Contract Price...................................................50
14.2 Advance Payment......................................................51
14.3 Application for Interim Payments.....................................51
14.4 Schedule of Payments.................................................51
14.5 Timing of Payments...................................................51
14.6 Delayed Payment......................................................51
14.7 Retention Money......................................................52
14.8 Statement at Completion..............................................52
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14.9 Application for Final Payment........................................52
14.10 Discharge............................................................53
14.11 Final Payment........................................................53
14.12 Cessation of Employer's Liability....................................53
14.13 Currencies of Payment................................................53
15. DEFAULT..............................................................53
15.1 Preservation of Other Rights.........................................53
15.2 Contractor's Default.................................................53
15.3 Employer's Notice to Show Cause......................................54
15.4 Principal's Rights...................................................54
15.5 Completion of Works Taken Out........................................54
15.6 Adjustment on Completion of Work Taken Out...........................55
15.7 Employer's Entitlement to Termination................................55
15.8 Employer's Default...................................................55
15.9 Contractor's Notice to Show Cause....................................56
15.10 Contractor's Rights..................................................56
15.11 Termination..........................................................57
16. INSOLVENCY...........................................................57
17. RISK AND RESPONSIBILITY..............................................58
17.1 Indemnities..........................................................58
17.2 Contractor's Care of the Works.......................................59
17.3 Employer's Risks.....................................................59
17.4 Consequences of Employer's Risks.....................................60
17.5 Intellectual and Industrial Property Rights..........................60
17.6 Limitation of Liability..............................................61
18. INSURANCE............................................................61
18.1 General Requirements for Insurance's.................................61
18.2 Insurance for Works and Contractor's Equipment.......................63
18.3 Insurance against Injury to Persons and Damage to Propert............64
18.4 Insurance for Contractor's Personnel.................................65
19. FORCE MAJEURE........................................................65
19.1 Definition of Force Majeure..........................................65
19.2 Notice of Force Majeure..............................................66
19.3 Duty to Minimise Delay...............................................66
19.4 Consequences of Force Majeure........................................66
19.5 Force Majeure affecting Subcontractor................................66
19.6 Optional Termination, Payment and Release............................67
19.7 Release from Performance under the Law...............................67
20. CLAIMS, DISPUTES AND ARBITRATION.....................................67
20.1 Contractor's Claims..................................................67
20.2 Disputes.............................................................68
20.3 Amicable Settlement..................................................69
20.4 Arbitration..........................................................69
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GENERAL CONDITIONS
1. GENERAL PROVISIONS
1.1 DEFINITIONS
In the Conditions of Contract ("these Conditions"), which
include Particular Conditions and these General Conditions,
the following words and expressions shall have the meanings
stated. Words indicating persons or parties include
corporations and other legal entities, except where the
context requires otherwise.
1.1.1 THE CONTRACT
1.1.1.1 "CONTRACT" means the Contract Agreement, these
Conditions, the Employer's Requirements, the Tender,
and the further documents (if any) which are listed
in the Contract Agreement.
1.1.1.2 "CONTRACT AGREEMENT" means the instrument of
agreement executed by the Parties to which these
Conditions are attached, including any annexed
memoranda.
1.1.1.3 "EMPLOYER'S REQUIREMENTS" means the document entitled
"Employer's Requirements", as included in the
Contract, and any additions and modifications to such
document in accordance with the Contract. Such
document specifies the scope, quality and/or design
and/or other functional and/or technical
requirements, for the Works.
1.1.1.4 "TENDER" means the Contractor's signed offer for the
Work and all other documents which the Contractor
submitted therewith (other than these Conditions and
the Employer's Requirements, if so submitted), if and
to the extent listed in the Contract Agreement.
1.1.1.5 "PERFORMANCE GUARANTEES" and "SCHEDULE OF PAYMENTS"
mean the documents so named (if any), included in the
Contract.
1.1.2 PARTIES AND PERSONS
1.1.2.1 "PARTY" means the Employer or the Contractor, as the
context requires.
1.1.2.2 "EMPLOYER" means the person named as employer in the
Contract Agreement and the legal successors in title
to this person.
1.1.2.3 "CONTRACTOR" means the person(s) named as contractor
in the Contract Agreement and legal successors in
title to this person(s).
1.1.2.4 "EMPLOYER'S REPRESENTATIVE" means the person named by
the Employer in the Contract or appointed from time
to time by the Employer under Sub-Clause 3.1 [The
Employer's Representative], who acts on behalf of the
Employer.
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1.1.2.5 "CONTRACTOR'S REPRESENTATIVE" means the person named
by the Contractor in the Contract or appointed from
time to time by the Contractor under Sub-Clause 4.3
[Contractor's Representative], who acts on behalf of
the Contractor.
1.1.2.6 "EMPLOYER'S PERSONNEL" means the Employer's
Representative, the assistants referred to in
Sub-Clause 3.2 [Other Employer's Personnel] and all
other staff, labour and other employees of the
Employer and of the Employer's Representative; and
any other personnel notified to the Contractor, by
the Employer or the Employer's Representative, as
Employer's Personnel.
1.1.2.7 "CONTRACTOR'S PERSONNEL" means the Contractor's
Representative and all personnel whom the Contractor
utilises on Site, who may include the staff, labour
and other employees of the Contractor and of each
Subcontractor; and any other personnel assisting the
Contractor in the execution of the Works.
1.1.2.8 "SUBCONTRACTOR" means any person named in the
Contract as a subcontractor, or any person appointed
by the Contractor as a subcontractor, to perform part
of the Works or a nominated Subcontractor; and the
legal successors in title to each of these persons.
1.1.3 DATES, TESTS, PERIODS AND COMPLETION
1.1.3.1 "BASE DATE" means the date stated in the Particular
Conditions.
1.1.3.2 "COMMENCEMENT DATE" means the date notified under
Sub-Clause 8.1 [Commencement of Works], unless
otherwise stated in the Particular Conditions.
1.1.3.3 "TIME FOR COMPLETION" means the time for completing
the Works or a Section (as the case may be) under
Sub-Clause 8.2 [Time for Completion], as stated in
the Particular Conditions (with any extension under
Sub-Clause 8.4 [Extension of Time for Completion]).
1.1.3.4 "TESTS ON COMPLETION" means the tests which are
specified in the Contract or agreed by both Parties
or instructed as a Variation, and which are carried
out under Clause 9 [Tests on Completion] before the
Works or a Section (as the case may be) are taken
over by the Employer.
1.1.3.5 "TAKING-OVER CERTIFICATE" means a certificate issued
under Clause 10 [Employer's Taking Over].
1.1.3.6 "TESTS AFTER COMPLETION" means the tests (if any)
which are specified in the Contract and which are
carried out under Clause 12 [Tests after Completion]
after the Works or a Section (as the
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case may be) are taken over by the Employer.
1.1.3.7 "DEFECTS NOTIFICATION PERIOD" means the period for
notifying defects in the Works or a Section (as the
case may be) under Sub-Clause 11.1 [Completion of
Outstanding Work and Remedying Defects], as stated in
the Particular Conditions (with any extension under
Sub-Clause 11.3 [Extension of Defects Notification
Period]), calculated from the date on which the Works
or Section is completed as certified under Sub-Clause
10.1 [Taking Over of the Works and Sections]. If no
such period is stated in the Particular Conditions,
the period shall be one year.
1.1.3.8 "PERFORMANCE CERTIFICATE" means the certificate
issued under Sub-Clause 11.9 [Performance
Certificate].
1.1.3.9 "DAY" means a calendar day and `YEAR" means 365 days.
1.1.4 MONEY AND PAYMENTS
1.1.4.1 "CONTRACT PRICE" means the agreed amount stated in
the Particular Conditions for the design, execution
and completion of the Works and the remedying of any
defects, but subject to:
(a) adjustments (if any) in accordance with the
Contract;
(b) adjustments (if any) for valid claims by the
Contractor in respect of the Works due to an
act or omission on the part of the Employer
or Employer's Personnel; and
(c) adjustments (if any) for valid claims by the
Employer in respect of the Works due to an
act or omission on the part of the
Contractor or Contractor's Personnel.
1.1.4.2 "COST" means all expenditure reasonably incurred (or
to be incurred) by the Contractor, whether on or off
the Site, including overhead and similar charges, but
does not include profit.
1.1.4.3 "FINAL STATEMENT" means the statement defined in
Sub-Clause 14.9 [Application for Final Payment].
1.1.4.4 Not Applicable.
1.1.4.5 "REASONABLE PROFIT" means profit on Costs calculated
at the percentage nominated in the Particular
Conditions.
1.1.4.6 "RETENTION MONEY" means the accumulated retention
moneys which the Employer retains and pays under
Sub-Clause 14.7 [Retention Money].
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1.1.4.7 "STATEMENT" means a statement submitted by the
Contractor as part of an application for payment
under Clause 14 [Contract Price and Payment].
1.1.5 WORKS AND GOODS
1.1.5.1 "CONTRACTOR'S EQUIPMENT" means all apparatus,
machinery, vehicles and other things required for the
execution and completion of the Works and the
remedying of any defects. However, Contractor's
Equipment excludes Temporary Works, Employer's
Equipment (if any), Plant, Materials and any other
things intended to form or forming part of the
Permanent Works.
1.1.5.2 "GOODS" means Contractor's Equipment, Materials,
Plant and Temporary Works, or any of them as
appropriate.
1.1.5.3 "MATERIALS" means things of all kinds (other than
Plant) intended to form or forming part of the
Permanent Works, including the materials (if any) to
be supplied by the Contractor under the Contract.
1.1.5.4 "PERMANENT WORKS" means the permanent works to be
designed and executed by the Contractor under the
Contract.
1.1.5.5 "PLANT" means the apparatus, machinery and vehicles
intended to form or forming part of the Permanent
Works.
1.1.5.6 "SECTION" means a part of the Works specified in the
Particular Conditions as a Section (if any).
1.1.5.7 "TEMPORARY WORKS" means all temporary works of every
kind (other than Contractor's Equipment) required on
Site for the execution and completion of the
Permanent Works and the remedying of any defects.
1.1.5.8 "WORKS" mean the Permanent Works and the Temporary
Works, or either of them as appropriate.
1.1.6 OTHER DEFINITIONS
1.1.6.1 "CONTRACTOR'S DOCUMENTS" means the calculations,
computer programs and other software, drawings,
manuals, models and other documents of a technical
nature supplied by the Contractor under the Contract;
as described in Sub-Clause 5.2 [Contractor's
Documents].
1.1.6.2 "COUNTRY" means the country in which the Site (or
most of it) is located, where the Permanent Works are
to be executed.
"EMPLOYER'S EQUIPMENT" means the apparatus, machinery
and vehicles (if any) made available by the Employer
for the use of the Contractor in the execution of the
Works, as stated in the
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Employer's Requirements; but does not include Plant
which has not been taken over by the Employer.
1.1.6.3 "FORCE MAJEURE" means an exceptional event or
circumstance as defined in Clause 19 [Force Majeure].
1.1.6.4 "LAWS" means all national (or state) legislation,
statutes, ordinances and other laws, and regulations
and by-laws of any legally constituted public
authority in the country or jurisdiction stated in
the Particular Conditions.
1.1.6.5 "GUARANTEE" means the guarantee to be provided by
under Sub-Clause 4.2 [Guarantee].
1.1.6.6 "SITE" means the places where the Permanent Works are
to be executed and to which Plant and Materials are
to be delivered, and any other places as may be
specified in the Contract as forming part of the
Site.
1.1.6.7 "UNFORESEEABLE" means not reasonably foreseeable by
an experienced contractor by the Base Date.
1.1.6.8 "VARIATION" means any change to the Employer's
Requirements or the Works, which is instructed or
approved as a variation under Clause 13 [Variations
and Adjustments].
1.2 INTERPRETATION
In the Contract, except where the context requires otherwise:
(a) words indicating one gender include all genders;
(b) words indicating the singular also include the plural and
words indicating the plural also include the singular;
(c) provisions including the word "agree", "agreed" or
"agreement" require the agreement to be recorded in writing;
and
(d) "written" or "in writing" means hand-written, type-written,
printed or electronically made, and resulting in a permanent
record.
The headings shall not be taken into consideration in the
interpretation of these Conditions.
1.3 COMMUNICATIONS
Wherever these Conditions provide for the giving or issuing of
approvals, certificates, consents, determinations, notices and
requests, these communications shall be:
(a) in writing and delivered by hand (against receipt), sent by
mail or courier, or transmitted using any of the agreed
systems of electronic transmission as stated in the Particular
Conditions; and
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(b) delivered, sent or transmitted to the address for the
recipient's communications as stated in the Contract; and
(c) if the recipient gives notice of another address,
communications shall thereafter be delivered accordingly; and
(d) if the recipient has not stated otherwise when requesting an
approval or consent, it may be sent to the address from which
the request was issued.
Approvals, certificates, consents and determinations shall not be
unreasonably withheld or delayed.
1.4 LAW AND LANGUAGE
The Contract shall be governed by the law of the country (or other
jurisdiction) stated in the Particular Conditions.
If there are versions of any part of the Contract which are written in
more then one language, the version which is in the ruling language
stated in the Particular Conditions shall prevail.
The language for communications shall be that stated in the Particular
Conditions. If no language is stated there, the language for
communications shall be the language in which the Contract (or most of
it) is written.
1.5 PRIORITY OF DOCUMENTS
The documents forming the Contract are to be taken as mutually
explanatory of one another. For the purposes of interpretation, the
priority of the documents shall be in accordance with the following
sequence:
(a) the Contract Agreement;
(b) the Particular Conditions;
(c) these General Conditions;
(d) the Employer's Requirements;
(e) the Tender and any other documents forming part of the Contract.
1.6 CONTRACT AGREEMENT
The Contract shall become into full force and effect on the date
stated in the Contract Agreement.
1.7 ASSIGNMENT
Neither Party shall assign the whole or any part of the Contract or
any benefit or interest in or under the Contract. However, either
Party:
(a) may assign the whole or any part with the prior agreement of the
other Party, at the sole discretion of such other Party, and
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(b) may, as security in favour of a bank or financial institution,
assign its right to any moneys due, or to become due under the
Contract.
1.7 CARE AND SUPPLY OF DOCUMENTS
Each of the Contractor's Documents shall be in the custody and
care of the Contractor, unless and until taken over by the
Employer. Unless otherwise stated in the Employer's Requirements,
the Contractor's shall supply to the Employer six copies of each
of the Contractor's Documents.
The Contractor shall keep a copy of the Contract, publications
named in the Employer's Requirements, the Contractor's Documents,
and Variations and other communications given under the Contract.
The Employer's Personnel shall have the right of access to all
these documents at all reasonable times.
If a Party becomes aware of an error or defect of a technical
nature in a document which was prepared for use in executing the
Works, the Party shall promptly give notice to the other Party of
such error or defect. The Parties shall then confer in good faith
with a view to resolving the error or defect.
If the Contractor suffers delay and/or incurs Costs in performing
any additional work arising out of a change in scope of the Works
which is necessary to resolve any error or defect in the
documents, the Contractor shall give notice to the Employer and
shall be entitled subject to Sub-Clause 20.1 [Contractor's
Claims] to:
(a) an extension of time for any such delay, if completion is or will
be delayed, under Sub-Clause 8.4 [Extension of Time for
Completion]; and
(b) payment of any such Cost, which shall be added to the Contract
Price;
where, and to the extent that, the error or defect is comprised
in, or arose as a result of the incorrectness of, portions of the
Employer's Requirements for which the Employer is responsible
under Sub-Clause 5.1 [General Design Obligations].
After receiving this notice, the Employer shall proceed in
accordance with Sub-Clause 3.5 [Determinations] to agree or
determine these matters.
1.9 CONFIDENTIALITY
Both Parties shall treat the details of the Contract as private and
confidential, except to the extent necessary to carry out obligations
under it or to comply with applicable Laws. The Contractor shall not
publish, permit to be published, or disclose any particulars of the
Works in any trade or technical paper or elsewhere without the
previous agreement of the Employer.
1.10 EMPLOYER'S USE OF CONTRACTOR'S DOCUMENTS
As between the Parties, the Contractor shall retain the ownership,
copyright
14
and other intellectual property rights in the Contractor's Documents
and other design documents made by (or on behalf of) the Contractor.
The Employer agrees that it does not have a right of ownership or
other proprietary interest in the Contractor's Documents or in any
intellectual property of the Contractor or which the Contractor is
licensed to use except as provided for in this Contract.
Subject to payment to the Contractor of the Contract Price, the
Contractor shall give to the Employer a non-terminable transferable
non-exclusive royalty-free licence to copy, use and communicate the
Contractor's Documents, including making and using modifications of
them, for the purposes permitted under this Sub-Clause. This licence
shall:
(a) apply throughout the actual or intended working life (whichever
is longer) of the relevant parts of the Works,
(b) entitle any person in proper possession of the relevant part of
the Works to copy, use and communicate the Contractor's Documents
for the purposes of completing, operating, maintaining, altering,
adjusting, repairing and demolishing the Works, and
(c) in the case of Contractor's Documents which are in the form of
computer programs and other software, permit their use on any
computer on the Site and other places as envisaged by the
Contract, including replacements of any computers supplied by the
Contractor.
The Contractor's Documents and other design documents made by (or
on behalf of) the Contractor shall not, without the Contractor's
consent, be used, copied or communicated to a third party by (or
on behalf of) the Employer for purposes other than those
permitted under this Sub-Clause.
1.11 CONTRACTOR'S USE OF EMPLOYER'S DOCUMENTS
As between the Parties, the Employer shall retain the ownership,
copyright and other intellectual property rights in the Employer's
Requirements and other documents made by (or on behalf of) the
Employer. The Contractor may, at his cost, copy, use, and obtain
communication of these documents for the purposes of the Contract.
These documents shall not, without the Employer's consent, be copied,
used or communicated to a third party by the Contractor, except as
necessary for the purposes of the Contract.
1.12 CONFIDENTIAL DETAILS
The Contractor shall not be required to disclose, to the Employer, any
information which the Contractor described in the Tender as being
confidential. The Contractor shall disclose any other information
which the Employer may reasonably require in order to verify the
Contractor's compliance with the Contract. The Employer may, however,
require the Contractor to disclose any information necessary for
completing, operating, maintaining, altering, adjusting, repairing and
15
demolishing the Works. Confidential information disclosed on such
basis should strictly be confined for the purposes stated above.
1.13 COMPLIANCE WITH LAWS
The Contractor shall, in performing the Contract, comply with
applicable Laws. Unless otherwise stated in the Particular Conditions:
(a) the Employer shall have obtained (or shall obtain), and shall
provide copies to the Contractor of, the planning, zoning or
similar permission for the Permanent Works, and any other
permissions described in the Employer's Requirements as having
been (or being) obtained by the Employer; and the Employer shall
indemnify and hold the Contractor harmless against and from the
consequences of any failure to do so; and
(b) the Contractor shall give all notices, pay all taxes, duties and
fees, and obtain all permits, licences and approvals, as required
by the Laws in relation to the design, execution and completion
of the Works and the remedying of any defects; and the Contractor
shall indemnify and hold the Employer harmless against and from
the consequences of any failure to do so.
1.14 JOINT AND SEVERAL LIABILITY
If the Contractor constitutes (under applicable Laws) a joint venture,
consortium or other unincorporated grouping of two or more persons,
these persons shall:
(a) be deemed to be jointly and severally liable to the Employer for
the performance of the Contract;
(b) notify the Employer as soon as reasonably practicable of their
leader who shall have authority to bind the Contractor and each
of these persons; and
(c) the Contractor shall not alter its composition or legal status
without the prior consent of the Employer (such consent not to be
unreasonably withheld).
2. THE EMPLOYER
2.1 RIGHT OF ACCESS
The Employer shall give the Contractor right of access to, and
possession of, all parts of the Site within the time (or times) stated
in the Particular Conditions. The right and possession may not be
exclusive to the Contractor. If, under the Contract, the Employer is
required to give (to the Contractor) possession of any foundation,
structure, plant OR means of access, the Employer shall do so in the
time and manner stated in the Employer's Requirements.
If no such time is stated in the Particular Conditions, the Employer
shall give the Contractor right of access to, and possession of, the
Site with effect from the Commencement Date.
If the Contractor suffers delay and/or incurs Cost as a result of a
failure by the Employer to give any such right or possession within
16
such time, or to maintain such right or possession, the Contractor
shall give notice to the Employer and shall be entitled subject to
Sub-Clause 20.1 [Contractor's Claims] to:
(a) an extension of time for any such delay, if completion is or will
be delayed, under Sub-Clause 8.4 [Extension of Time for
Completion]; and
(b) Co) payment of any such Cost plus Reasonable Profit, which shall
be added to the Contract Price.
After receiving this notice, the Employer shall proceed in accordance
with Sub-Clause 3.5 [Determinations] to agree or determine these
matters.
However, if the Employer's failure was caused by any error or delay by
the Contractor, including an error in, or delay in the submission of,
any of the Contractor's Documents, the Contractor shall not be
entitled to such extension of time, Cost or Reasonable Profit.
2.2 PERMITS, LICENCES OR APPROVALS
The Employer shall (where he is in a position to do so) provide
reasonable assistance to the Contractor at the request of the
Contractor:
(a) by obtaining copies of the Laws which are relevant to the
Contract but are not readily available;
(b) for the Contractor's applications for any permits, licences or
approvals required by the Laws;
Which the Contractor is required to obtain under Sub-Clause 1.13
[Compliance with Laws], for the delivery of Goods, including clearance
through customs, and for the export of Contractor's Equipment when it
is removed from the Site.
2.3 EMPLOYER'S PERSONNEL
The Employer shall be responsible for ensuring that the Employer's
Personnel and the Employer's other contractors on the Site:
(a) co-operate with the Contractor's efforts under Sub-Clause 4.6
[Co-operation], and
(b) take actions similar to those which the Contractor is required to
take under sub-paragraphs (a), (b) and (c) of Sub-Clause 4.8
[Safety Procedures] and under Sub-Clause 4.18 [Protection of the
Environment].
2.4 NOT APPLICABLE
2.5 EMPLOYER'S CLAIM
If the Employer considers himself to be entitled to any payment under any
Clause of these Conditions or otherwise in connection with the Contract,
and/or to any extension of the Defects Notification Period, he shall give
notice and particulars to the Contractor. However, notice is not required
for payments due under Sub-Clause
17
4.19 [Electricity, Water and Gas], under Sub-Clause 4.20 [Employer's
Equipment and Free Issue Material], or for other services requested by the
Contractor.
The notice shall be given as soon as practicable after the Employer became
aware of the event or circumstances giving rise to the claim. A notice
relating to any extension of the Defects Notification Period shall be given
before the expiry of such period.
The particulars shall specify the Clause or other basis of the claim, and
shall include substantiation of the amount and/or extension to which the
Employer considers himself to be entitled in connection with the Contract.
The Employer shall then proceed in accordance with Sub-Clause 3.5
[Determinations] to agree or determine (i) the amount (if any) which the
Employer is entitled to be paid by the Contractor, and/or (ii) the
extension (if any) of the Defects Notification Period in accordance with
Sub-Clause 11.3 [Extension of Defects Notification Period].
The Employer may deduct this amount from any moneys due, or to become due,
to the Contractor. The Employer shall only be entitled to set off against
or make any deduction from an amount due to the Contractor, or to otherwise
claim against the Contractor, in accordance with this Sub-Clause.
3. THE EMPLOYER'S ADMINISTRATION
3.1 THE EMPLOYER'S REPRESENTATIVE
The Employer may appoint an Employer's Representative to act on his
behalf under the Contract. In this event, he shall give notice to the
Contractor of the name, address, duties and authority of the
Employer's Representative.
The Employer's Representative shall carry out the duties assigned to
him, and shall exercise the authority delegated to him, by the
Employer. Unless and until the Employer notifies the Contractor
otherwise, the Employer's Representative shall be deemed to be
responsible to discharge all the duties of the Employer under the
Contract, except to pay the Contract Price, and to have the full
authority of the Employer under the Contract, except in respect of
Clause 15 [Default].
If the Employer wishes to replace any person appointed as Employer's
Representative, the Employer shall give the Contractor not less than
14 days' notice of the replacement's name, address, duties and
authority, and of the date of appointment.
3.2 OTHER EMPLOYER'S PERSONNEL
The Employer or the Employer's Representative may from time to time
assign duties and delegate authority to assistants, and may also
revoke such assignment or delegation. These assistants may include a
resident engineer, and/or independent inspectors appointed to inspect
and/or test items of Plant and/or Materials. The assignment,
delegation or revocation shall not take effect until a copy of it has
been received by the Contractor.
Assistants shall be suitably qualified persons, who are competent to
carry out these duties and exercise this authority, and who are fluent
in the language for
18
communications defined in Sub-Clause 1.4 [Law and Language]. If the
Contractor makes a reasonable objection to the appointment of an
assistant pursuant to this Sub-Clause, the Employer shaI1 terminate
the appointment.
3.3 DELEGATED PERSONS
All these persons, including the Employer's Representative and
assistants, to whom duties have been assigned or authority has been
delegated, shall only be authorised to issue instructions to the
Contractor to the extent defined by the delegation. Any approval,
check, certificate, consent, examination, inspection, instruction,
notice, proposal, request, test, or similar act by a delegated person,
in accordance with the delegation, shall have the same effect as
though the act had been an act of the Employer. However:
(a) 00 unless otherwise stated in the delegated person's
communication relating to such act, it shall not relieve the
Contractor from any responsibility he has under the Contract,
including responsibility for errors, omissions, discrepancies and
non-compliances;
(b) any failure to disapprove any work, Plant or Materials shall not
constitute approval, and shall therefore not prejudice the right
of the Employer to reject the work, Plant or Materials; and
(c) if the Contractor questions any determination or instruction of a
delegated person, the Contractor may refer the matter to the
Employer, who shall promptly confirm, reverse or vary the
determination or instruction.
3.4 INSTRUCTIONS
The Employer may issue to the Contractor instructions which may be
necessary for the Contractor to perform his obligations under the
Contract. Each instruction shall be given in writing and shall state
the obligations to which it relates and the Sub-Clause (OR other term
of the Contract) in which the obligations are specified. If any such
instruction constitutes a Variation, Clause 13 [Variations and
Adjustments] shall apply.
The Contractor shall take instructions from the Employer, or from the
Employer's Representative or an assistant to whom the appropriate
authority has been delegated under this Clause.
3.5 DETERMINATIONS
Whenever these Conditions provide that either Party shall proceed in
accordance with this Sub-Clause 3.5 to agree or determine any matter,
both Parties shall consult with each other in good faith in an
endeavour to reach agreement. If agreement is not achieved, the
Employer shall make a fair determination in accordance with the
Contract, taking due regard of all relevant circumstances.
The Employer shall give notice to the Contractor of each agreement or
determination, with supporting particulars. Each Party shall give
effect to each agreement or determination unless the Contractor gives
notice, to the Employer, of his dissatisfaction with a determination
within 14 days of receiving it. Either Party may
19
then refer the matter to dispute in accordance with Clause 20 herein..
3.6 GOOD FAITH
The Parties warrant that they shall act and perform their respective
obligations in good faith. The Employer will ensure that the
Employer's Representative acts in good faith in the discharge of his
duties and exercise of his authority under the Contract. Similarly,
the Contractor will ensure that the Contractor's Representative acts
in good faith in the discharge of his duties and exercise of his
authority under the Contract.
Acting in good faith includes:
(a) being fair, reasonable and honest;
(b) acting within the time prescribed in the Contract, or where no
time is prescribed, within a reasonable time;
(c) doing all things reasonably expected by the other Party in
accordance with the Contract; and
(d) not impeding or restricting the other Party's performance.
4. THE CONTRACTOR
4.1 CONTRACTOR'S GENERAL OBLIGATIONS
The Contractor shall design, execute and complete the Works in
accordance with the Contract, and shall, subject to Clause 11 [Defects
Liability], remedy any defects in the Works. When completed, the Works
shall conform with the Contractor's Documents.
The Contractor shall provide the Plant and Contractor's Documents
specified in the Contract, and all Contractor's Personnel, Goods,
consumables and other things and services, whether of a temporary or
permanent nature, required in and for this design, execution,
completion of and remedying of defects in the Works.
The Works shall include only work which is necessary to satisfy the
Employer's Requirements.
The Contractor shall be responsible for the adequacy, stability and
safety of all Site operations, of all methods of construction and of
all the Works. The Contractor shall, whenever reasonably required by
the Employer, submit details of the arrangements and methods which the
Contractor proposes to adopt for the execution of the Works. No
significant alteration to these arrangements and methods shall be made
without this having previously been notified to the Employer.
4.2 PERFORMANCE SECURITY
The Contractor shall if so required under the Contract, deliver the
Guarantee to the Employer within 28 days after both Parties have
signed the Contract Agreement. The Guarantee shall be issued from
within a country (or other jurisdiction) approved by the Employer, and
shall be in the form (if any) annexed to the Particular Conditions
20
or in another form approved by the Employer and accepted by the
Contractor.
The Contractor shall ensure that the Guarantee is valid and
enforceable until the Contractor has executed and completed the Works
and a Performance Certificate has been, or is deemed to have been,
issued under Sub-Clause 11.9 [Performance Certificate].
The Employer shall return the Guarantee to the Contractor within 21
days after the Contractor has become entitled to receive the
Performance Certificate.
4.3 CONTRACTOR'S REPRESENTATIVE
The Contractor shall appoint the Contractor's Representative and shall
give him all authority necessary to act on the Contractor's behalf
under the Contract.
Unless the Contractor's Representative is named in the Contract, the
Contractor shall, prior to the Commencement Date, submit to the
Employer for consent the name and particulars of the person the
Contractor proposes to appoint as Contractor's Representative. If
consent is withheld, or if the appointed person fails to act as
Contractor's Representative, the Contractor shall similarly submit to
the Employer for consent the name and particulars of another suitable
person for such appointment.
The Contractor's Representative shall, on behalf of the Contractor,
receive instructions under Sub-Clause 3.4 [Instructions].
The Contractor's Representative may delegate any powers, functions and
authority to any competent person, and may at any time revoke the
delegation. Any. delegation or revocation shall not take effect until
the Employer has received prior notice signed by the Contractor's
Representative, naming the person and specifying the powers, functions
and authority being delegated or revoked.
4.4 SUBCONTRACTORS
The Contractor shall be responsible for the acts or defaults of any
Subcontractor, his agents or employees, as if they were the acts or
defaults of the Contractor.
4.5 NOMINATED SUBCONTRACTORS
In this Sub-Clause, "nominated Subcontractor" means a Subcontractor
whom the Employer, under Clause 13 [Variations and Adjustments],
requests the Contractor to employ as a Subcontractor. The Contractor
shall not be under any obligation to employ a nominated Subcontractor
and the Contractor shall advise by notice to the Employer as soon as
practicable of the Contractor's decision not to employ a nominated
Subcontractor.
4.6 CO-OPERATION
The Contractor shall, as specified in the Contract or as instructed by
the Employer, allow appropriate opportunities for carrying out works
by:
(a) the Employer's Personnel;
(b) any other contractors employed by the Employer; and
21
(c) the personnel of any legally constituted public authorities.
who may be employed in the execution on or near the Site of any work
not included in the Contract.
Any such instruction shall constitute a Variation if and to the extent
that it causes the Contractor to incur Cost and Clause 13 [Variations
and Adjustments] shall apply. Services for these personnel and other
contractors may include the use of Contractor's Equipment, Temporary
Works or access arrangements which are the responsibility of the
Contractor.
The Contractor shall be responsible for his construction activities on
the Site, and shall co-ordinate his own activities with those of other
contractors to the extent (if any) specified in the Employer's
Requirements.
If, under the Contract, the Employer is required to give to the
Contractor possession of any foundation, structure, plant or means of
access in accordance with Contractor's Documents, the Contractor shall
submit such documents to the Employer in the time and manner stated in
the Employer's Requirements.
4.7 SETTING OUT
The Contractor shall set out the Works in relation to original points,
survey marks, lines and levels of reference specified in the Contract.
The Contractor shall be responsible for the correct positioning of all
parts of the Works.
If the Contractor discovers an error in relation to original points,
survey marks, lines or levels of reference specified in the Contract,
the Contractor shall notify the Employer's Representative. The
Employer's Representative shall issue instructions for the
rectification of the error.
If the Contractor suffers delay and/or incurs Cost in performing any
additional work arising out of instructions issued by the Employer's
Representative pursuant to this Sub-Clause, the Contractor shall give
notice to the Employer and shall be entitled subject to Clause 20.1
[Contractor's Claims] to:
(a) an extension of time for any such delay, if completion is or will
be delayed, under Sub-Clause 8.4 [Extension of Time for
Completion]; and
(b) payment of any such Cost, which shall be added to the Contract
Price.
Where, and to the extent that, the error or defect is comprised
in, or arose as a result of the incorrectness of, portions of the
Employer's Requirements for which the Employer is responsible
under Sub-Clause 5.1 [General Design Obligations].
After receiving this notice, the Employer shall proceed in
accordance with Sub-Clause 3.5 [Determinations] to agree or
determine these matters.
4.8 SAFETY PROCEDURES
The Contractor shall:
22
(a) comply with all applicable safety regulations;
(b) take care for the safety of all persons entitled to be on the
Site;
(c) use reasonable efforts to keep the Site and Works clear of
unnecessary obstruction so as to avoid danger to these persons;
and
(d) provide fencing, lighting, guarding and watching of the Works
until completion and Taking-Over Certificate has, or has been
deemed to be issued under Clause 10 [Employer's Taking Over], and
provide any Temporary Works (including roadways, footways, guards
and fences) which may be necessary, because of the execution of
the Works, for the use and protection of the public and of owners
and occupiers of adjacent land.
4.9 QUALITY ASSURANCE
The Contractor shall institute a quality assurance system to
demonstrate compliance with the requirements of the Contract. The
system shall be in accordance with the details stated in the Contract.
The Employer shall be entitled to audit any aspect of the system.
Details of all procedures and compliance documents shall be submitted
to the Employer for information 7 days in advance before each design
and execution stage is commenced. When any document of a technical
nature is issued to the Employer, evidence of the prior approval by
the Contractor himself shall be apparent on the document itself.
Compliance with the quality assurance system shall not relieve the
Contractor of any of his duties, obligations or responsibilities under
the Contract.
4.10 SITE DATA
The Employer shall have made available to the Contractor for his
information, prior to the Base Date, all relevant data in the
Employer's possession on subsurface and hydrological conditions at the
Site, including environmental aspects. The Employer shall similarly
make available to the Contractor all such data which comes into the
Employer's possession after the Base Date.
4.11 VERIFICATION AND INTERPRETATION OF SITE DATA
The Contractor shall be responsible for verifying and interpreting all
data made available by the Employer pursuant to Sub-Clause 4.10 [Site
Data].
4.12 LATENT PHYSICAL CONDITIONS AND UNFORESEEABLE DIFFICULTIES
In this Sub-Clause, "physical conditions" means natural physical
conditions and manmade and other physical conditions, obstructions and
pollutants, which the Contractor encounters at the Site or the Site's
surroundings when executing the Works, including sub-surface and
hydrological conditions, hazardous wastes or historical or
archaeological artifacts but excluding climatic conditions.
If the Contractor encounters adverse physical conditions which he
considers to have
23
been Unforeseeable, the Contractor shall give notice to the Employer
as soon as practicable.
This notice shall describe the physical conditions, so that they can
be inspected by the Employer, and shall set out the reasons why the
Contractor considers them to be Unforeseeable. The Contractor shall
continue executing the Works, using such proper and reasonable
measures as are appropriate for the physical conditions, and shall
comply with any instructions which the Employer may give. If an
instruction constitutes a Variation, Clause -13 [Variations and
Adjustments] shall apply.
If and to the extent that the Contractor encounters physical
conditions which are Unforeseeable, gives such a notice, and suffers
delay and/or incurs Cost due to these conditions, the Contractor shall
be entitled subject to Sub-Clause 20.1 [Contractor's Claims] to:
(a) an extension of time for any such delay, if completion is or will
be delayed, under Sub-Clause 8.4 [Extension of Time for
Completion]; and
(b) payment of any such Cost, which shall be added to the Contract
Price.
After receiving such notice and inspecting and/or investigating these
physical conditions, the Employer shall proceed in accordance with
Sub-Clause 3.5 peterminations] to agree or determine (i) whether and
(if so) to what extent these physical conditions were Unforeseeable,
and (ii) the matters described in subparagraphs (a) and (b) above
related to this extent.
The Employer may take account of any evidence of the physical
conditions foreseen by the Contractor when submitting the Tender,
which may be made available by the Contractor, but shall not be bound
by any such evidence.
4.13 RIGHTS OF WAY AND FACILITIES
The Contractor shall bear all costs and charges for special and/or
temporary rights of way which he may require, including those for
access to the Site. The Contractor shall also obtain, at his risk and
cost, any additional facilities outside the Site which he may require
for the purposes of the Works.
4.14 AVOIDANCE OF INTERFERENCE
The Contractor shall not interfere unnecessarily or improperly with:
(a) the convenience of the public; or
(b) the access to and use and occupation of all roads and footpaths,
irrespective of whether they are public or in the possession of
the Employer or of others.
4.15 ACCESS ROUTE
The Contractor shall be deemed to have been satisfied as to the
suitability and availability of access routes to the Site. The
Contractor shall use reasonable efforts to prevent damage to property
by the Contractor's traffic or by the Contractor's Personnel. These
efforts shall include the proper use of appropriate vehicles and
24
routes.
Except as otherwise stated in these Conditions:
(a) the Contractor shall (as between the Parties) be responsible for
any maintenance which may be required for his use of access
routes;
(b) the Contractor shall provide all necessary signs or directions
along access routes, and shall obtain any permission which may be
required from the relevant authorities for his use of routes,
signs and directions;
(c) the Employer shall not be responsible for any claims which may
arise from the use or otherwise of any access route;
(d) the Employer does not guarantee the suitability or availability
of particular access routes; and
Subject to Sub-Clause 2.1 [Right of Access to the Site], Costs due to
non-suitability or non-availability, for the use required by the
Contractor, of access routes shall be borne by the Contractor.
4.16 TRANSPORT OF GOODS
Unless otherwise stated in the Particular Conditions:
(a) the Contractor shall give the Employer not less than 2 1 days'
notice of the date on which any Plant or a major item of other
Goods will be delivered to the Site; and
(b) the Contractor shall be responsible for packing, loading,
transporting, receiving, unloading, storing and protecting all
Goods and other things required for the Works.
4.17 CONTRACTOR'S EQUIPMENT
The Contractor shall be responsible for all Contractor's Equipment.
When brought on to the Site, Contractor's Equipment shall be deemed to
be exclusively intended for the execution of the Works.
4.18 PROTECTION OF THE ENVIRONMENT
The Contractor shall take all reasonable steps to protect the
environment (both on and off the Site) and to limit damage and
nuisance to people and property resulting from pollution, noise and
other results of his operations.
The Contractor shall ensure that emissions, surface discharges and
effluent from the Contractor's activities shall not exceed the values
indicated in the Employer's Requirements, and shall not exceed the
values prescribed by applicable Laws.
4.19 ELECTRICITY, WATER AND GAS
The Contractor shall, except as stated below, be responsible for the
provision of all
25
power, water and other services he may require.
The Contractor shall be entitled and be responsible for the charges up
to the date when the Taking-Over Certificate has been issued, or
deemed to have been issued for the use for the purposes of the Works
such supplies of electricity, water, gas and other services as may be
available on the Site and of which details and prices are given in the
Employer's Requirements. The Contractor shall, at his risk and cost,
provide any apparatus necessary for his use of these services and for
measuring the quantities consumed.
The Contractor shall pay these amounts to the Employer on a monthly
basis. If the Contractor disputes the quantities consumed and the
amounts due for such services, the Contractor shall proceed to agree
or determine the matter in accordance with Sub-Clause 3.5
[Determinations].
4.20 EMPLOYER'S EQUIPMENT AND FREE-ISSUE MATERIAL
The Employer shall make the Employer's Equipment (if any) available
for the use of the Contractor in the execution of the Works in
accordance with the details, arrangements and prices stated in the
Employer's Requirements.
Unless otherwise stated in the Employer's Requirements, the Contractor
shall only be responsible for the Employer's Equipment, whilst in the
Contractor's or Contractor's Personnel's control, possession or
custody.
The appropriate quantities and the amounts due (at such stated prices)
for the use of Employer's Equipment shall be agreed or determined in
accordance with Sub-Clause 2.5 [Employer's Claims] and Sub-Clause 3.5
[Determinations]. The Contractor shall pay these amounts to the
Employer.
The Employer shall supply, free of charge, the "free-issue materials"
(if any) in accordance with the details stated in the Employer's
Requirements. The Employer shall, at his risk and cost, provide these
materials at the time and place specified in the Contract. The
Contractor shall then visually inspect them, and shall promptly give
notice to the Employer of any shortage, defect or default in these
materials. Unless otherwise agreed by both Parties, the Employer shall
immediately rectify the notified shortage, defect or default.
After this visual inspection, the free-issue materials shall come
under the care, custody and control of the Contractor. The
Contractor's obligations of inspection, care, custody and control
shall not relieve the Employer of liability for any shortage, defect
or default not apparent from a visual inspection.
4.21 PROGRESS REPORTS
Unless otherwise stated in the Particular Conditions, monthly progress
reports shall be prepared by the Contractor and submitted to the
Employer in six copies. The first report shall cover the period up to
the end of the first calendar month following the Commencement Date.
Reports shall be submitted monthly thereafter, each within 7 days
after the last day of the period to which it relates.
Reporting shall continue until the Contractor has completed all work
which is known
26
to be outstanding at the completion date stated in the Taking-Over
Certificate for the Works.
Each report shall include but not be limited to:
(a) charts and detailed descriptions of progress, including each
stage of design, Contractor's Documents, procurement,'
manufacture, delivery to Site, construction, erection, testing,
commissioning and trial operation;
(b) photographs showing the status of manufacture and of progress on
the Site;
(c) for the manufacture of each main item of Plant and Materials, the
name of the manufacturer, manufacture location, percentage
progress, and the actual or expected dates of:
(i) commencement of manufacture;
(ii) Contractor's inspections;
(iii) tests; and
(iv) shipment and arrival at the Site;
(d) the details described in Sub-Clause 6.10 [Records of Contractor's
Personnel and Equipment];
(e) copies of quality assurance documents, test results and
certificates of Materials;
(f) list of Variations, notices given under Sub-Clause 2.5
[Employer's Claims] and notices given under Sub-Clause 20.1
[Contractor's Claims];
(g) safety statistics, including details of any hazardous incidents
and activities relating to environmental aspects and public
relations; and
(h) comparisons of actual and planned progress, with details of any
events or circumstances which may jeopardise the completion in
accordance with the Contract, and the measures being (or to be)
adopted to overcome delays.
4.22 SECURITY OF THE SITE
Unless otherwise stated in the Particular Conditions:
(a) The Contractor shall be responsible for keeping unauthorised
persons off the Site.
(b) Authorised persons shall be limited to the Contractor's Personnel
and the Employer's Personnel; and to any other personnel notified
to the Contractor, by (or on behalf of) the Employer, as
authorised personnel of the Employer's other contractors on the
Site.
(c) Employees and agents of each Party shall, while on the premises
of the other or its subcontractors, comply with all plant rules
and governmental regulations.
4.23 CONTRACTOR'S OPERATIONS
The Contractor shall confine his operations to the Site, and to any
additional areas
27
about the Site which may be obtained by the Contractor and agreed by
the Employer as working areas. The Contractor shall take all necessary
precautions to keep Contractor's Equipment and Contractor's Personnel
within the Site and these additional areas, and to keep them off
adjacent land. During the execution of the Works, the Contractor shall
keep the Site free from all unnecessary obstruction, and shall dispose
of any surplus materials outside the areas of the Site and not cause
any nuisance to neighbours around the Site. The Contractor shall clear
away and remove from the Site any wreckage, rubbish and Temporary
Works which are no longer required.
Within 14 days after the issue of the Taking-Over Certificate for the
Works, the Contractor shall clear away and remove all Contractor's
Equipment, surplus material, wreckage, rubbish and Temporary Works.
The Contractor shall leave the Site and the Works in a clean and safe
condition. However, the Contractor may retain on Site, during the
Defects Notification Period, such Goods as are required for the
Contractor to fulfil obligations under the Contract.
4.24 FOSSILS
All valuable minerals, fossils, coins, articles of value or antiquity,
and structures and other remains or items of geological,
anthropological or archaeological interest found on the Site shall be
placed under the care and authority of the Employer. The Contractor
shall take reasonable precautions to prevent Contractor's Personnel or
other persons from removing or damaging any of these findings.
The Contractor shall, upon discovery of any such finding, promptly
give notice to the Employer, who shall issue instructions for dealing
with it. If the Contractor suffers delay and/or incurs Cost from
complying with the instructions, the Contractor shall give a further
notice to the Employer and shall be entitled subject to Sub-Clause
20.1 [Contractor's Claims] to:
(a) an extension of time for any such delay, if completion is or will
be delayed, under Sub-Clause 8.4 [Extension of Time for
Completion]; and
(b) payment of any such Cost, which shall be added to the Contract
Price.
After receiving this further notice, the Employer shall proceed in
accordance with Sub-Clause 3.5 [Determinations] to agree or determine
these matters.
5. DESIGN
5.1 GENERAL DESIGN OBLIGATIONS
The Contractor shall be deemed to have scrutinised, prior to the Base
Date, the Employer's Requirements (including design criteria and
calculations, if any). The Contractor shall be responsible for the
design of the Works in accordance with the Employer's Requirements
(including design criteria and calculations), except as stated below.
The Contractor shall be deemed to have satisfied himself of the
adequacy of the Employer's Requirements to enable the Contractor to
prepare the Contractor's Documents, and any other documents necessary
to instruct the Contractor's Personnel, in accordance with the
Contract.
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Any data or information received by the Contractor, from the Employer
or otherwise, shall not relieve the Contractor from his responsibility
for the design and execution of the Works, except as stated below. The
Employer shall be responsible for the correctness of the following
portions of the Employer's Requirements and of the following data and
I information provided by (or on behalf of) the Employer:
(a) portions, data and information which are stated in the Employer's
Requirements as being immutable or the responsibility of the
Employer;
(b) definitions of intended purposes of the Works or any parts
thereof;
(c) criteria for the testing and performance of the completed Works;
and
(d) portions, data and information which cannot be verified by the
Contractor, except as otherwise stated in the Employer's
Requirements.
5.2 CONTRACTOR'S DOCUMENTS
The Contractor's Documents shall comprise the technical documents
specified in the Employer's Requirements, documents required to
satisfy all regulatory approvals, and the documents described in
Sub-Clause 5.6 [As-Built Documents] and Sub-Clause 5.7 [Operation and
Maintenance Manuals]. Unless otherwise stated in the Employer's
Requirements, the Contractor's Documents shall be written in the
language for communications defined in Sub-Clause 1.4 [Law and
Language].
The Contractor shall prepare all Contractor's Documents, and shall
also prepare any other documents necessary to instruct the
Contractor's Personnel.
If the Employer's Requirements describe the Contractor's Documents
which are to be submitted to the Employer for review, they shall be
submitted accordingly, together with a notice as described below. In
the following provisions of this Sub-Clause, (i) "review period" means
the period required by the Employer for review, and (ii) "Contractor's
Documents" exclude any documents which are not specified as being
required to be submitted for review.
Unless otherwise stated in the Employer's Requirements, each review
period shall not exceed 7 days, calculated from the date on which the
Employer receives a Contractor's Document and the Contractor's notice.
This notice shall state that the Contractor's Document is considered
ready, both for review in accordance with this Sub-Clause and for use.
The notice shall also state that the Contractor's Document complies
with the Employer's Requirements, or the extent to which it does not
comply.
The Employer may, within the review period, give notice to the
Contractor that a Contractor's Document fails (to the extent stated)
to comply with the Employer's Requirements. If a Contractor's Document
so fails to comply, it shall be rectified, resubmitted and reviewed in
accordance with this Sub-Clause, at the Contractor's cost. This clause
is without prejudice to the Employer's right to claim under Sub-Clause
2.5. If the Employer does not, within the review period, give notice
to the Contractor that a Contractor's Document fails to comply with
the Employer's Requirements, then the Contractor's Document submitted
by the Contractor shall be deemed to have been agreed to by the
Employer.
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For each part of the Works, and except to the extent that the Parties
otherwise agree:
(a) execution of such part of the Works shall not commence prior to
the expiry of the review periods for all the Contractor's
Documents which are relevant to its design and execution;
(b) execution of such part of the Works shall be in accordance with
these Contractor's Documents, as submitted for review; and
(c) if the Contractor wishes to modify any design or document which
has previously been submitted for review, the Contractor shall
immediately give notice to the Employer. Thereafter, the
Contractor shall submit revised documents to the Employer in
accordance with the above procedure.
Any such agreement (under the preceding two paragraphs) or any review
(under this Sub-Clause or otherwise) shall not relieve the Contractor
from any obligation or responsibility.
5.3 CONTRACTOR'S UNDERTAKING
The Contractor undertakes that the design, the Contractor's Documents,
the execution and the completed Works will be in accordance with:
(a) the Laws in the Country; and
(b) the documents forming the Contract, as altered or modified by
Variations.
5.4 TECHNICAL STANDARDS AND REGULATIONS
The design, the Contractor's Documents, the execution and the
completed Works shall comply with the Country's technical standards,
building, construction and environmental Laws, Laws applicable to the
product being produced from the Works, and other standards specified
in the Employer's Requirements applicable to the Works or defined by
the applicable Laws.
All these Laws shall, in respect of the Works and each Section, be
those prevailing when the Works or Section are taken over by the
Employer under Clause 10 [Employer's Taking Over]. References in the
Contract to published standards shall be understood to be references
to the edition applicable on the Base Date, unless stated otherwise.
If changed or new applicable standards come into force in the Country
after the Base Date, the Contractor shall give notice to the Employer
and (if appropriate) submit proposals for compliance. In the event
that:
(a) the Employer determines that compliance is required; and
(b) the proposals for compliance constitute a variation.
Then the Employer shall initiate a Variation in accordance with Clause
13 [Variations and Adjustments].
5.5 TRAINING
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The Contractor shall carry out the training of Employer's Personnel in
the operation and maintenance of the Works to the extent specified in
the Employer's Requirements. If the Contract specifies training which
is to be carried out before taking-over, the Works shall not be
considered to be completed for the purposes of taking-over under
Sub-Clause 10.1 [Taking Over of the Works and Sections] until this
training has been completed.
5.6 AS-BUILT DOCUMENTS
The Contractor shall prepare, and keep up-to-date, a complete set of
"as-built" records of the execution of the Works, showing the as-built
locations, sizes and details of the work as executed. These records
shall be used exclusively for the purposes of this Sub-Clause. Two
copies shall be supplied to the Employer prior to the commencement of
the Tests on Completion.
In addition, the Contractor shall supply to the Employer as-built
drawings of the Works, showing all Works as executed, and submit them
to the Employer for review under Sub-Clause 5.2 [Contractor's
Documents]. The Contractor shall obtain the consent of the Employer as
to their size, the referencing system, and other relevant details.
Prior to the issue of any Taking-Over Certificate, the Contractor
shall supply to the Employer the specified numbers and types of copies
of the relevant as-built drawings, in accordance with the Employer's
Requirements. The Works shall not be considered to be completed for
the purposes of taking-over under Sub-Clause 10.1 [Taking Over of the
Works and Sections] until the Employer has received these documents.
5.7 OPERATION AND MAINTENANCE MANUALS
Prior to commencement of the Tests on Completion, the Contractor shall
supply to the Employer provisional operation and maintenance manuals
in sufficient detail for the Employer to operate, maintain, dismantle,
reassemble, adjust and repair the Plant not less than 7 days in
advance.
The Works shall not be considered to be completed for the purposes of
taking-over under Sub-Clause 10.1 [Taking Over of the Works and
Sections] until the Employer has received final operation and
maintenance manuals in such detail, and any other manuals specified in
the Employer's Requirements for these purposes.
5.8 DESIGN ERROR
If errors, omissions, ambiguities, inconsistencies or inadequacies are
found in the Contractor's Documents, they and the Works shall, subject
to `Sub-Clause 1.8 [Care and Supply of Documents], be corrected at the
Contractor's cost.
This clause is without prejudice to the Employer's right under
Sub-Clause 2.5 [Employer's Claim].
6. STAFF AND LABOUR
6.1 ENGAGEMENT OF STAFF AND LABOUR
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Except as otherwise stated in the Employer's Requirements, the
Contractor shall make arrangements for the engagement of all staff and
labour, local or otherwise, and for their payment, housing, feeding
and transport.
6.2 RATES OF WAGES AND CONDITIONS OF LABOUR
The Contractor shall pay rates of wages, and observe conditions of
labour, which are not lower than those established for the trade or
industry where the work is carried out. If no established rates or
conditions are applicable, the Contractor shall pay rates of wages and
observe conditions which are not lower than the general level of wages
and conditions observed locally by employers whose trade or industry
is similar to that of the Contractor.
6.3 PERSONS IN THE SERVICE OF OTHERS
The Contractor shall not recruit, or attempt to recruit, staff and
labour from amongst the Employer's Personnel.
6.4 LABOUR LAWS
The Contractor shall comply with all the relevant labour Laws
applicable to the Contractor's Personnel, including Laws relating to
their employment, health, safety, welfare, immigration and emigration,
and shall allow them all their legal rights.
The Contractor shall require his employees to obey all applicable
Laws, including those concerning safety at work.
6.5 WORKING HOURS
No work shall be carried out on the Site on locally recognised days of
rest, or outside normal working hours, unless:
(a) otherwise stated in the Contract;
(b) the Employer gives consent;
(c) the work is unavoidable, or necessary for the protection of life
or property or for the safety of the Works, in which case the
Contractor shall immediately advise the Employer; or
(d) the work is necessary to ensure completion of the Works by the
Time for Completion, in which case the Contractor shah
immediately advise the Employer.
6.6 FACILITIES FOR STAFF AND LABOUR
Except as otherwise stated in the Employer's Requirements, the
Contractor shall provide and maintain all necessary accommodation and
welfare facilities for the Contractor's Personnel. The Contractor
shall also provide facilities for the Employer's Personnel as stated
in the Employer's Requirements.
32
The Contractor shall not permit any of the Contractor's Personnel to
maintain any temporary or permanent living quarters within the
structures forming part of the Permanent Works.
6.7 HEALTH AND SAFETY
The Contractor shall at all times take all reasonable precautions to
maintain the health and safety of the Contractor's Personnel. In
collaboration with local health authorities, the Contractor shall
ensure that medical staff, first aid facilities, sick bay and
ambulance service are available at all times at the Site and at any
accommodation for Contractor's and Employer's Personnel, and that
suitable arrangements are made for all necessary welfare and hygiene
requirements and for the prevention of epidemics.
The Contractor shall appoint an accident prevention officer at the
Site, responsible for maintaining safety and protection against
accidents. This person shall be qualified for this responsibility, and
shall have the authority to issue instructions and take protective
measures to prevent accidents. Throughout the execution of the Works,
the Contractor shall provide whatever is required by this person to
exercise this responsibility and authority.
The Contractor shall send, to the Employer, details of any accident as
soon as practicable after its occurrence. The Contractor shall
maintain records and make reports concerning health, safety and
welfare of persons, and damage to property, as the Employer may
reasonably require.
6.8 CONTRACTOR'S SUPERINTENDENCE
Throughout the design and execution of the Works, and as long
thereafter as is necessary to fulfil the Contractor's obligations, the
Contractor shall provide all necessary superintendence to plan,
arrange, direct, manage, inspect and test the work.
Superintendence shall be given by a sufficient number of persons
having adequate knowledge of the language for communications (defined
in Sub-Clause 1 .4 (Law and Language)) and of the operations to be
carried out (including the methods and techniques required, the
hazards likely to be encountered and methods of preventing accidents),
for the satisfactory and safe execution of the Works.
6.9 CONTRACTOR'S PERSONNEL
The Contractor's Personnel shall be appropriately qualified, skilled
and experienced in their respective trades or occupations. The
Employer may require the Contractor to remove (or cause to be removed)
any person employed on the Site or Works, including the Contractor's
Representative if applicable, who:
(a) persists in any misconduct or lack of care;
(b) carries out duties incompetently or negligently;
(c) fails to conform with any material provisions of the Contract; or
(d) persists in any conduct which is prejudicial to safety, health,
or the protection of
33
the environment.
If appropriate, the Contractor suitable shall then appoint (or cause
to be appointed) a suitable replacement person within 14 days after
the Employer's request for removal has been made.
6.10 RECORDS OF CONTRACTOR'S PERSONNEL AND EQUIPMENT
The Contractor shall submit, to the Employer, details showing the
number of each class of Contractor's Personnel and of each type of
Contractor's Equipment on the Site. Details shall be submitted each
calendar month until the Contractor has completed all work which is
known to be outstanding at the completion date stated in the
Taking-Over Certificate for the Works.
6.11 DISORDERLY CONDUCT
The Contractor shall at all times take all reasonable precautions to
prevent any unlawful, riotous or disorderly conduct by or amongst the
Contractor's Personnel, and to preserve peace and protection of
persons and property on and near the Site.
7. PLANT, MATERIALS AND WORKMANSHIP
7.1 MANNER OF EXECUTION
The Contractor shall carry out the manufacture of Plant, the
production and manufacture of Materials, and all other execution of
the Works:
(a) in the manner (if any) specified in the Contract;
(b) in a proper workmanlike and careful manner, in accordance with
recognised good practice; and
(c) with properly equipped facilities and Materials of merchantable
quality, except as otherwise specified in the Contract.
7.2 SAMPLES
The Contractor shall submit samples of Materials to the Employer, for
review in accordance with the procedures for Contractor's Documents
described in Sub-Clause 5.2 [Contractor's Documents], as specified in
the Contract and at the Contractor's cost. Each sample shall be
labelled as to origin and intended use in the Works, and with such
other particulars as specified in the Employer's Requirements.
7.3 INSPECTION
The Employer's Personnel shall at all reasonable times:
(a) have full access to all parts of the Site and to all places from
which natural Materials are being obtained; and
(b) during production, manufacture and construction (at the Site and,
to the extent specified in the Contract, elsewhere), be entitled
to examine, inspect, measure and
34
test the Materials and workmanship, and to check the progress of
manufacture of Plant and production and manufacture of Materials.
The Contractor shall give the Employer's Personnel full opportunity to
carry out these activities, including providing access, facilities,
permissions and safety equipment. No such activity shall relieve the
Contractor from any obligation or responsibility.
The Employer shall ensure that the Contractor is not impeded in the
execution of the Works by the Employer's Personnel whilst exercising
the right of access conferred by this Sub-Clause.
The Employer may, under Clause 13 [Variations and Adjustments] direct
the Contractor not to cover up or make inaccessible work under the
Contract for the purposes of enabling the Employer's Personnel to
examine, inspect, measure and/or test that work pursuant to this
Sub-Clause. The Contractor shall give notice to the Employer when the
work specified in such a direction is ready and before it is covered
up or made inaccessible. The Employer shall then either carry out the
examination, inspection, measurement or testing without unreasonable
delay, or promptly give notice to the Contractor that the Employer
does not require to do so. If the Contractor fails to give the notice,
he shall, if and when required by the Employer, uncover the work and
thereafter reinstate and make good the work, all at the Contractor's
cost.
If the Contractor suffers delay and/or incurs Cost from complying with
a direction given under this Sub-Clause or as a result of delay for
which the Employer is responsible, the Contractor shall give notice to
the Employer and shall be entitled subject to Sub-Clause 20.1
[Contractor's Claims] to:
(a) an extension of time for any such delay, if completion is or will
be delayed, under Sub-Clause 8.4 [Extension of Time for
Completion]; and
(b) payment of any such Cost plus Reasonable Profit, which shall be
added to the Contract Price.
After receiving this notice, the Employer shall proceed in accordance
with Sub-Clause 3.5 [Determinations] to agree or determine these
matters.
Notwithstanding the foregoing, the Costs incurred by the Contractor in
relation to the carrying out of any examination, inspection,
measurement or testing (including consequential delay) shall be borne
by the Contractor where the examination, inspection, measurement or
testing shows that the relevant work is not in accordance with the
Contract.
7.4 TESTING
This Sub-Clause shall apply to all tests specified in the Contract,
other than the Tests after Completion (if any).
The Contractor shall provide all apparatus, assistance, documents and
other information, electricity, equipment, fuel, consumables,
instruments, labour, materials, and suitably qualified and experienced
staff, as are necessary to carry out the specified tests efficiently.
The Contractor shall agree, with the Employer, the time and place for
the specified testing of any Plant, Materials and other parts of the
Works.
35
The Employer may, under Clause 13 [Variations and Adjustments], vary
the location or details of specified tests, or instruct the Contractor
to carry out additional tests. If these varied or additional tests
show that the tested Plant, Materials or workmanship is not in
accordance with the Contract, the cost of carrying out this Variation
shall be borne by the Contractor, notwithstanding other provisions of
the Contract.
The Employer shall give the Contractor not less than 7 days notice of
the Employer's intention to attend the tests. If the Employer does not
attend at the time and place agreed, the Contractor may proceed with
the tests, unless otherwise instructed by the Employer, and the tests
shall then be deemed to have been made in the Employer's presence.
If the Contractor suffers delay and/or incurs Cost from complying with
these instructions or as a result of a delay for which the Employer is
responsible, the Contractor shall give notice to the Employer and
shall be entitled subject to Sub Clause 20.1 [Contractor's Claims] to:
(a) an extension of time for any such delay, if completion is or will
be delayed, under Sub-Clause 8.4 [Extension of Time for
Completion]; and
(b) payment of any such Cost plus Reasonable Profit, which shall be
added to the Contract Price.
After receiving this notice, the Employer shall proceed in accordance
with Sub-Clause 3.5 [Determinations] to agree or determine these
matters. The Contractor shall promptly forward to the Employer duly
certified reports of the tests. When the specified tests have been
passed, the Employer shall endorse the Contractor's test certificate,
or issue a certificate to him, to that effect. If the Employer has not
attended the tests, he shall be deemed to have accepted the readings
as accurate.
7.5 REJECTION
If, as a result of an examination, inspection, measurement or testing,
any Plant, Materials, design or workmanship is found to be not in
accordance with the Contract, the. Employer may reject the Plant,
Materials, design or workmanship by giving notice to the Contractor,
with reasons. The Contractor shall then, subject to or in accordance
with any instruction of the Employer under Sub-Clause 7.6 [Remedial
Work], promptly make good such non-compliance and ensure that the
rejected item complies with the Contract at the cost of the
Contractor.
Alternatively, the Employer may elect to accept the Plant, Materials,
design or workmanship by giving notice to the Contractor,
notwithstanding that it is found to be defective or otherwise not in
accordance with the Contract, and agree or determine a reasonable
reduction in the Contract Price in accordance with Sub-Clause 3.5
[Determinations]. If the Employer requires this Plant, Materials,
design or workmanship to be re-tested, the tests shall be repeated
under the same terms and conditions at the cost of the Contractor.
7.6 REMEDIAL WORK
36
Notwithstanding any previous test or certification, the Employer may
instruct the Contractor to:
(a) remove from the Site and replace any Plant or Materials which is
not in accordance with the Contract; and
(b) remove and re-execute any other work which is not in accordance
with the Contract, and execute any work which is urgently
required for the safety of the Works, whether because of an
accident, unforeseeable event or otherwise.
If the Contractor fails to comply with any such instruction, which
complies with Sub-Clause 3.4 [Instructions], the Employer shall be
entitled to employ and pay other persons to carry out such work.
Except to the extent that the Contractor would have been entitled to
payment for the work, the Contractor shall subject to Sub-Clause 2.5
[Employer's Claims] pay to the Employer all costs arising from this
failure.
7.7 OWNERSHIP OF PLANT AND MATERIALS
Each item of Plant and Materials shall, to the extent consistent with
the Laws of the Country, become the property of the Employer and title
and ownership shall pass to the Employer at whichever is the earlier
of the following times, free from liens and other encumbrances:
(a) when it is delivered to the Site; and
(b) when the Contractor is entitled to payment of the value of the
Plant and Materials under Sub-Clause 8.10 [Payment for Plant and
Materials in Event of Suspension].
Risk of damage to or loss of the Plant and Materials shall remain with
the Contractor until the Taking-Over Certificate has been issued under
Clause 10. The Contractor shall be the Employer's fiduciary agent,
bailee and trustee of the Plant and Materials and stored, protected
and insured and identified as the Employer's property until the
Taking-Over Certificate has been issued.
7.8 ROYALTIES
Unless otherwise stated in the Employer's Requirements, the Contractor
shall pay all royalties, rents and other payments for:
(a) natural Materials obtained from outside the Site; and
(b) the disposal of material from demolitions and excavations and of
other surplus material (whether natural or man-made).
8. COMMENCEMENT, DELAYS AND SUSPENSION
8.1 COMMENCEMENT OF WORKS
Unless otherwise stated in the Contract Agreement:
37
(a) the Employer shall give the Contractor not less than 7 days'
notice of the Commencement Date; and
(b) the Commencement Date shall be within 42 days after the date on
which the Contract comes into full force and effect under
Sub-Clause 1.6 [Contract Agreement].
The Contractor shall commence the design and execution of the Works as
soon as is reasonably practicable after the Commencement Date, and
shall then proceed with the Works with due expedition and without
delay.
8.2 TIME FOR COMPLETION
The Contractor shall complete the whole of the Works, and each Section
(if any), within the Time for Completion for the Works or Section (as
the case may be), including:
(a) achieving the passing of the Tests on Completion; and
(b) completing all work which is stated in the Contract as being
required for the Works or Section to be considered to be
completed for the purposes of taking over under Sub-Clause 10. 1
[Taking Over of the Works and Sections].
8.3 PROGRAMME
If a time programme has not been included as part of the executed
Contract, then the Contractor shall submit a time programme to the
Employer within 28 days after the Commencement Date. If the Contractor
fails to comply with the milestones as stated in the time programme,
the Employer may withhold any scheduled payments due until the
milestone as stated in the original time programme has been met. The
Contractor shall also submit a revised programme whenever the previous
programme is inconsistent with actual progress or with the
Contractor's obligations as soon reasonably practicable. Unless
otherwise stated in the Contract, each programme shall include:
(a) the order in which the Contractor intends to carry out the Works,
including the anticipated timing of each major stage of the
Works;
(b) the sequence and timing of completion and submission to the
Employer of Contract Documents for review under Sub-Clause 5.2
[Contractor's Documents];
(c) the periods for reviews under Sub-Clause 5.2 [Contractor's
Documents];
(d) the sequence and timing of inspections and tests specified in the
Contract; and
(e) a supporting report which includes:
(i) a general description of the methods which the Contractor
intends to adopt for the execution of each major stage of
the Works; and
(ii) the approximate number of each class of Contractor's
Personnel and of
38
each type of Contractor's Equipment for each major stage.
Unless the Employer, within 21 days after receiving a programme, gives
notice to the Contractor stating the extent to which it does not
comply with the Contract, the Contractor shall proceed in accordance
with the programme, subject to his other obligations under the
Contract. The Employer's Personnel shall be entitled to rely upon the
programme when planning their activities.
The Contractor shaI1 promptly give notice to the Employer of specific
probable future events or circumstances which may adversely affect or
delay the execution of the Works. In this event, or if a programme
fails to comply with the Contract or to be consistent with actual
progress and the Contractor's stated intentions and the Employer gives
notice to the Contractor of such failure or inconsistency, the
Contractor shall submit a revised programme to the Employer in
accordance with this Sub-Clause.
8.4 EXTENSION OF TIME FOR COMPLETION
The Contractor shall be entitled subject to Sub-Clause 20.1
[Contractor's Claims] to an extension of the Time for Completion if
and to the extent that completion for the purposes of Sub-Clause 10.1
[Taking Over of the Works and Sections] is or will be delayed by any
of the following causes:
(a) a Variation (unless an adjustment to the Time for Completion has
been agreed under Sub-Clause 13.3 [Variation Procedure]);
(b) a cause of delay giving an entitlement to extension of time under
a Sub-Clause of these Conditions;
(c) any delay, impediment, prevention or negligent act or omission
caused by or attributable to the Employer, the Employer's
Personnel, or the Employer's other contractors on the Site;
(d) inclement weather and conditions resulting from inclement
weather, as recorded in the daily site reports;
(e) an industrial dispute; or
(f) any claim, action, proceeding or dispute with any landowners
whose lands either adjoin the Site or are required to be made
available to the Contractor under Sub-Clause 4.13 [Rights of Way
and Facilities] or otherwise for performance of the work under
the Contract, or the occupants of such lands (except where such
claim, action, proceeding or dispute is caused by the negligent
act or omission of the Contractor).
If the Contractor considers himself to be entitled to an extension of
the Time for Completion, the Contractor shall give notice to the
Employer in accordance with Sub- Clause 20.1 [Contractor's Claims].
When determining each extension of time under Sub-Clause 20.1
[Contractor's Claims], the Employer shall review previous
determinations and may increase, but shall not decrease, the total
extension of time.
Where the Contractor is entitled under this Sub-Clause to an extension
of the Time
39
for Completion due to delay attributable to one or more of the causes
listed in paragraph (c) of this Sub-Clause, and the Contractor incurs
a Cost as a result of that delay, the Contractor shall give notice to
the Employer and shall be entitled subject to Sub-Clause 20.1
[Contractor's Claims] to payment of any such Cost plus Reasonable
Profit, which shall be added to the Contract Price.
Nothing in this Sub-Clause shall oblige the Employer to pay extra
Costs for delay which have already been included in the value of a
Variation or any other payment under the Contract. 8.5 DELAYS CAUSED
BY AUTHORITIES
If the following conditions apply, namely:
(a) the Contractor has diligently followed the procedures laid down
by the relevant legally constituted public authorities in the
Country;
(b) these authorities delay or disrupt the Contractor's work; and
(c) the delay or disruption was not reasonably foreseeable by an
experienced contractor by the Base Date;
then this delay or disruption will be considered as a cause of delay
under sub-paragraph (b) of Sub-Clause 8.4 [Extension of Time for
Completion].
8.6 RATE OF PROGRESS
If, at any time:
(a) actual progress is too slow to complete within the Time for
Completion; and/or
(b) progress has fallen (or will fall) behind the current programme
under Sub-Clause 8.3 [Programme];
other than as a result of a cause listed in Sub-Clause 8.4 [Extension
of Time for Completion], then the Employer may instruct the Contractor
to submit, under Sub-Clause 8.3 [Programme], a revised programme and
supporting report describing the revised methods which the Contractor
proposes to adopt in order to expedite progress and complete within
the Time for Completion.
Unless the Employer notifies otherwise, the Contractor shall adopt
these revised methods, which may require increases in the working
hours and/or in the numbers of Contractor's Personnel and/or Goods, at
the risk and cost of the Contractor. This is without prejudice to the
Employer's right to claim delay damages under Sub-Clause 8.7 [Delay
Damages]. The Employer shall also be entitled to withhold scheduled
payments under Sub-Clause 8.3 and for damages under Sub-Clause 15.2
[Contractor's Default], if any.
8.7 DELAY DAMAGES
If the Contractor fails to comply with Sub-Clause 8.2 [Time for
Completion], the Contractor shall subject to Sub-Clause 2.5
[Employer's Claims] pay delay damages to the Employer for this
default. These delay damages shall be the sum stated in the
40
Particular Conditions, which shall be paid for every day which shall
elapse between the relevant Time for Completion and the date stated in
the Taking Over Certificate. However, the total amount due under this
Sub-Clause shall not exceed the maximum amount of delay damages stated
in the Particular Conditions.
These delay damages shall be the only damages due from the Contractor
for such default, other than in the event of termination under
Sub-Clause 15.1 [Preservation of Others Rights] and Sub-Clause 15.2
[Contractor's Default] prior to completion of the Works. These damages
shall not relieve the Contractor from his obligation to complete the
Works, or from any other duties, obligations or responsibilities which
he may have under the Contract.
8.8 SUSPENSION OF WORK
The Employer may at any time instruct the Contractor to suspend
progress of part or all of the Works:
(a) where this is necessary for the protection or safety of any
person or property or to comply with a proper order of any
legally constituted public authorities having jurisdiction in the
Country; or
(b) necessary because of an act or omission of the Employer, the
Employer's Personnel or the Employer's other contractors on the
Site; or
(c) where this is necessary because of an act or omission of the
Contractor, the Contractor's Personnel or a Subcontractor.
During such suspension, the Contractor shall protect, store and secure
such part or the Works against any deterioration, loss or damage.
The Contractor shall not be entitled to an extension of time for, or
to payment of the Cost incurred in, making good the consequences of
the Contractor's faulty design, workmanship or materials, or of the
Contractor's failure to protect, store or secure in accordance with
this Sub-Clause. The Employer is also entitled to withhold scheduled
payments under Sub-Clause 8.3. The Employer may also claim delay
damages under Sub-Clause 8.7 and damages under Sub-Clause 15.2 [
Contractor's Default].
The Employer may also notify the cause for the suspension. If and to
the extent that the cause is notified and resulted from an act or
omission of the Contractor, the Contractor's Personnel or a
Subcontractor, the following Sub-Clauses 8.9 [Consequences of
Suspension], 8.10 [Payment for Plant and Materials in Event of
Suspension] and 8.11 [Prolonged Suspension] shall not apply.
8.9 CONSEQUENCES OF SUSPENSION
If the Contractor suffers delay and/or incurs Cost from complying with
the Employer's instructions under Sub-Clause 8.8 [Suspension of Work]
and/or with respect to protecting, storing and securing the Works
and/or from resuming the work, the Contractor shall give notice to the
Employer and shall be entitled subject to Sub-Clause 20.1
[Contractor's Claims] to:
(a) an extension of time for any such delay, if completion is or will
be delayed,
41
under Sub-Clause 8.4 [Extension of Time for Completion]; and
(b) payment of any such Cost plus Reasonable Profit, which shall be
added to the Contract Price.
After receiving this notice, the EmpIoyer shall proceed in accordance
with Sub-Clause 3.5 [Determinations] to agree or determine these
matters.
8.10 PAYMENT FOR PLANT AND MATERIALS IN EVENT OF SUSPENSION
The Contractor shall be entitled to payment of the value (as at the
date of suspension) of Plant and/or Materials which have not been
delivered to Site, if:
(a) the work on Plant or delivery of Plant and/or Materials has been
suspended for more than 28 days, if the suspension was not caused
by the Contractor's faulty design, workmanship and materials; and
(b) the Contractor has marked the Plant and/or Materials as the
Employer's property in accordance with the Employer's
instructions.
8.11 PROLONGED SUSPENSION
If the suspension under Sub-Clause 8.8 [Suspension of Work] has
continued for more than 84 days, the Contractor may request the
Employer's permission to proceed. If the Employer does not give
permission within 28 days after being requested to do so, the
Contractor may, by giving notice to the Employer, treat the suspension
as an omission under Clause 13 [Variations and Adjustments] of the
affected part of the Works. If the suspension affects the whole of the
Works, the Contractor may give notice of termination under Sub-Clause
15.10 [Contractor's Rights].
8.12 RESUMPTION OF WORK
As soon as the Employer becomes aware that the reason for any
suspension no longer exists, the Employer shall direct the Contractor
to recommence progress of the Works affected by the suspension under
Sub-Clause 8.8 [Suspension of Work].
8.13 SUSPENSION AT CONTRACTOR'S REQUEST
If the Contractor wishes to suspend progress of part or all of the
Works, other than under Clause 15.10 [Contractor's Rights], then the
Contractor shall obtain the prior written approval of the Employer.
The Employer may approve of the suspension and may impose conditions
of approval. If progress of part or all of the Works is suspended
pursuant to this Sub-Clause, the Contractor may recommence work on the
whole or any part of the Works affected by the suspension at any time
after having given notice to the Employer.
9. TESTS ON COMPLETION
9.1 CONTRACTOR'S OBLIGATIONS
The Contractor shall carry out the Tests on Completion in accordance
with this
42
Clause and Sub-Clause 7.4, [Testing] after providing the documents in
accordance with Sub-Clause 5.6 [As-Built Documents] and Sub-Clause 5.7
[Operation and Maintenance Manuals].
The Contractor shall give to the Employer not less than 21 days'
notice of the date after which the Contractor will be ready to carry
out each of the Tests on Completion. Unless otherwise agreed, Tests on
Completion shall be carried out within 14 days after this date, on
such day or days as the Employer shall instruct. Unless otherwise
stated in the Particular Conditions, the Tests on Completion shall be
carried out in the following sequence:
(a) pre-commissioning tests, which shall include the appropriate
inspections and ("dry" or "cold") functional tests to demonstrate
that each item of Plant can safely under-take the next stage;
(b) commissioning tests, which shall include the specified
operational tests to demonstrate that the Works or Section can be
operated safely and as specified, under all available operating
conditions; and
(c) trial operation, which shall demonstrate that the Works or
Section perform reliably and in accordance with the Contract.
During trial operation, when the Works are operating under stable
conditions, the Contractor shall give notice to the Employer that the
Works are ready for any other Tests on Completion, including
performance tests to demonstrate whether the Works conform with
criteria specified in the Employer's Requirements and with the
Performance Guarantees.
Trial operation shall not constitute a taking-over under Clause 10
[Employer's Taking Over]. Unless otherwise stated in the Particular
Conditions, the Employer wil1 provide any raw materials or supplies
necessary to conduct the trial operation of the Works and any product
produced by the Works during trial operation shall be the property of
the Employer.
In considering the results of the Tests on Completion, appropriate
allowances shall be made for the effect of any use of the Works by the
Employer on the performance or other characteristics of the Works. As
soon as the Works, or a Section, have passed each of the Tests on
Completion described in sub-paragraph (a), (b) or (c), the Contractor
shall submit a certified report of the results of these Tests to the
Employer.
9.2 DELAYED TESTS
If the Tests on Completion are being unduly delayed by the Employer,
Sub-Clause 7.4 [Testing] (fifth paragraph) and/or Sub-Clause 10.3
[Interference with Tests on Completion] shall be applicable.
If the Tests on Completion are being unduly delayed by the Contractor,
the Employer may by notice require the Contractor to carry out the
Tests within 14 days after receiving the notice. The Contractor shall
carry out the Tests on such day or days within that period as the
Contractor may fix and of which he shall give notice to the Employer.
43
If the Contractor fails to carry out the Tests on Completion within
the period of 14 days, the Employer's Personnel may proceed with the
Tests at the risk and cost of the Contractor. This is without
prejudice to the Employer's right to withhold scheduled payments under
Sub-Clauses 8.7 [Delay Damages] and 15.2 [Contractor's Default]. These
Tests on Completion shall then be deemed to have been carried out in
the presence of the Contractor and the results of the Tests shall be
accepted as accurate.
9.3 RETESTING
If the Works, or a Section, fail to pass the Tests on Completion, the
Employer or the Contractor may require the failed Tests, and Tests on
Completion on any related work, to be repeated under the same terms
and conditions.
9.4 FAILURE TO PASS TESTS ON COMPLETION
If the Works, or a Section, fail to pass the Tests on Completion
repeated under Sub-Clause 9.3 [Retesting], the Employer shall be
entitled to:
(a) order further repetition of Tests on Completion under Sub-Clause
9.3 [Retesting];
(b) accept the Works or Section and issue a Taking-Over Certificate
in which event the Employer shall have the same remedies as are
provided in sub paragraph (b) of Sub-Clause 11.4 [Failure to
Remedy Defects].
In the event of sub-paragraph (b), the Contractor shall proceed in
accordance with all other obligations under the Contract.
10. EMPLOYER'S TAKING OVER
10.1 TAKING OVER OF THE WORKS AND SECTIONS
Except as stated in Sub-Clause 9.4 [Failure to Pass Tests on
Completion], the Works shall be taken over by the Employer when (i)
the Works have been completed in accordance with the Contract,
including the matters described in Sub-Clause 8.2 [Time for
Completion] and except as allowed in sub-paragraph (a) below, and (ii)
a Taking-Over Certificate for the Works has been issued, or is deemed
to have been issued in accordance with this Sub-Clause.
The Contractor may apply by notice to the Employer for a Taking-Over
Certificate not earlier than 14 days before the Works will, in the
Contractor's opinion, be complete and ready for taking over. If the
Works are divided into Sections, the Contractor may similarly apply
for a Taking-Over Certificate for each Section.
The Employer shall, within 42 days after receiving the Contractor's
application:
(a) issue the Taking-Over Certificate to the Contractor, stating the
date on which the Works or Section were completed in accordance
with the Contract, except for any minor outstanding work or
defects which will not substantially affect the use of the Works
or Section for their intended purpose (either until or while this
work is completed); or
44
(b) reject the application if the Works have not been completed in
accordance with the Contract (except as allowed in sub-paragraph
(a) above), giving reasons and specifying the work required to be
done by the Contractor to enable the Taking-Over Certificate to
be issued. The Contractor shall then complete this work before
issuing a further notice under this Sub-Clause.
If the Employer fails either to issue the Taking-Over Certificate or
to reject the Contractor's application within 42 days after the Test
on Completion has been carried out, and if the Works or Section (as
the case may be) are substantially in accordance with the Contract,
the Taking-Over Certificate shall be deemed to have been issued on the
last day of that period.
10.2 TAKING OVER OF PARTS OF THE WORKS
Parts of the Works (other than Sections) shall not be taken over or
used by the Employer, except as may be stated in the Particular
Conditions or as may be agreed by both Parties.
10.3 INTERFERENCE WITH TESTS ON COMPLETION
If the Contractor is prevented, for more than 14 days, from carrying
out the Tests on Completion by a cause for which the Employer is
responsible, the Contractor shall carry out the Tests on Completion as
soon as practicable.
If the Contractor suffers delay and/or incurs Cost as a result of this
delay in carrying out the Tests on Completion, the Contractor shall
give notice to the Employer and shall be entitled subject to
Sub-Clause 20.1 [Contractor's Claims] to:
(a) an extension of time for any such delay, if completion is or will
be delayed, under Sub-Clause 8.4 [Extension of Time for
Completion]; and
(b) payment of any such Cost plus Reasonable Profit, which shall be
added to the Contract Price.
After receiving this notice, the Employer shall proceed in accordance
with Sub-Clause 3.5 [Determinations] to agree or determine these
matters.
11. DEFECTS LIABILITY
11.1 COMPLETION OF OUTSTANDING WORK AND REMEDYING DEFECTS
In order that the Works and Contractor's Documents, and each Section,
shall be in the condition required by the Contract (fair wear and tear
excepted) by the expiry date of the relevant Defects Notification
Period or as soon as practicable thereafter, the Contractor shall:
(a) complete any work which is outstanding on the date stated in a
Taking-Over Certificate, within such reasonable time as is
instructed by the Employer; and
(b) execute all work required to remedy defects, as may be notified
by the Employer on or before the expiry date of the Defects
Notification Period for the Works or Section (as the case may
be).
45
If a defect appears, the Employer shall notify the Contractor
accordingly.
11.2 COST OF REMEDYING DEFECTS
All work referred to in sub-paragraph (b) of Sub-Clause 11.1
[Completion of Outstanding Work and Remedying Defects] shall be
executed at the risk and cost of the Contractor, if and to the extent
that such work is attributable to:
(a) the design of the Works;
(b) Plant, Materials or workmanship not being in accordance with the
Contract;
(c) improper operation or maintenance which was attributable to
matters for which the Contractor is responsible under Sub-Clauses
5.5 [Training] and 5.7 [Operation and Maintenance Manuals]; or
(d) failure by the Contractor to comply with any other obligation
under this Contract.
If and to the extent that such work is attributable to any other
cause, the Employer shall give notice to the Contractor accordingly,
and Sub-Clause 13.3 [Variation Procedure] shall apply.
11.3 EXTENSION OF DEFECTS NOTIFICATION PERIOD
The Employer shall be entitled subject to Sub-Clause 2.5 [Employer's
Claims] to an extension of the Defects Notification Period for the
Works or a Section if, to the extent that and for the same duration as
the Works, Section or a major item of Plant (as the case may be, and
after taking over) cannot be used for the purposes for which they are
intended by reason of a defect. However, a Defects Notification Period
shall not be extended by more than one year.
If delivery and/or erection of Plant and/or Materials was suspended
under Sub-Clause 8.8 [Suspension of Work] (other than under Sub-Clause
8.8(c) or Sub-Clause 15.10 [Contractor's Rights], the Contractor's
obligations under this Clause shall not apply to any defects occurring
more than one year after the Defects Notification Period for the Plant
and/or Materials would otherwise have expired.
11.4 FAILURE TO REMEDY DEFECTS
If the Contractor fails to remedy any defect within a reasonable time,
a date may be fixed by (or on behalf of) the Employer, on or by which
the defect is to be remedied. The Contractor shall be given reasonable
notice of this date.
If the Contractor fails to remedy the defect by this notified date and
this remedial work was to be executed at the cost of the Contractor
under Sub-Clause 11.2 [Cost of Remedying Defects], the Employer may
(at his option):
(a) carry out the work himself or by others, in a reasonable manner
and at the Contractor's cost, but the Contractor shall have no
responsibility for this work; and the Contractor shall subject to
Sub-Clause 2.5 [Employer's Claims] pay to the Employer the costs
reasonably incurred by the Employer in remedying the
46
defect or damage; or
(b) accept the defect and agree or determine a reasonable reduction
in the Contract Price in accordance with Sub-Clause 2.5
[Employer's Claims] and Sub-Clause 3.5 [Determinations].
11.5 REMOVAL OF DEFECTIVE WORK
If the defect cannot be remedied expeditiously on the Site and the
Employer gives consent, the Contractor may remove from the Site for
the purposes of repair such items of Plant as are defective and repair
such items as soon as is reasonably practicable.
11.6 FURTHER TESTS
If the work of remedying of any defect may affect the performance of
the Works, the Employer may require the repetition of any of the tests
described in the Contract, including Tests on Completion and/or Tests
after Completion. The requirement shall be made by notice within 28
days after the defect or damage is remedied.
These tests shall be carried out in accordance with the terms
applicable to the previous tests, except that they shall be carried
out at the risk and cost of the Party liable, under Sub-Clause 11.2
[Cost of Remedying Defects], for the cost of the remedial work.
11.7 RIGHT OF ACCESS
Until the Performance Certificate has been issued, the Contractor
shall have the right of access to all parts of the Works and to
records of the operation and performance of the Works, except as may
be inconsistent with the Employer's reasonable security restrictions.
11.8 CONTRACTOR TO SEARCH
The Contractor shall, if required by the Employer, search for the
cause of any defect, under the direction of the Employer. Unless the
defect is to be remedied at the cost of the Contractor under
Sub-Clause 11.2 [Cost of Remedying Defects], the Cost of the search
plus Reasonable Profit shall be agreed or determined in accordance
with Sub-Clause 3.5 [Determinations] and shall be added to the
Contract Price.
11.9 PERFORMANCE CERTIFICATE
Performance of the Contractor's obligations shall not be considered to
have been completed until the Employer has issued the Performance
Certificate to the Contractor, stating the date on which the
Contractor completed his obligations under the Contract.
The Employer shall issue the Performance Certificate within 28 days
after the latest of the expiry dates of the Defects Notification
Periods, or as soon thereafter as the Contractor has supplied all the
Contractor's Documents and completed and tested all the Works,
including remedying ANY defects. If the Employer fails to issue the
Performance Certificate accordingly, the Performance Certificate shall
be deemed
47
to have been issued on the date 28 days after the date on which it
should have been issued, as required by this Sub-Clause.
Only the Performance Certificate shall be deemed to constitute
acceptance of the Works.
11.10 CLEARANCE OF SITE
Upon receiving the Performance Certificate or if the Performance
Certificate has been deemed to be issued in accordance with Sub-Clause
11.9 [Performance Certificate], the Contractor shall remove any
remaining Contractor's Equipment, surplus material, wreckage, rubbish
and Temporary Works from the Site.
If all these items have not been removed within 28 days after the
Employer issues the Performance Certificate, the Employer may sell or
otherwise dispose of any remaining items. The Employer shall be
entitled to be paid the costs incurred in connection with, or
attributable to, such sale or disposal and restoring the Site.
Any balance of the moneys from the sale shall be paid to the
Contractor. If these moneys are less than the Employer's costs of
selling or otherwise disposing of the remaining items, the Contractor
shall pay the outstanding balance to the Employer.
12. TESTS AFTER COMPLETION
12.1 PROCEDURE FOR TESTS AFTER COMPLETION
If Tests after Completion are specified in the Contract, this Clause
shall apply, unless otherwise stated in the Particular Conditions:
(a) the Employer shall provide all electricity, fuel and materials
and make the Employer's Personnel and Plant available;
(b) the Contractor shall provide any other plant, equipment and
suitably qualified and experienced staff, as are necessary to
carry out the Tests after Completion efficiently; and
(c) the Contractor shall carry out the Tests after Completion in the
presence of such Employer's and/or Contractor's Personnel as
either Party may reasonably request.
The Tests after Completion shall be carried out as soon as is
reasonably practicable after the Works or Section have been taken over
by the Employer. The Employer shall give to the Contractor 21 days'
notice of the date after which the Tests after Completion will be
carried out. Unless otherwise agreed, these Tests shall be carried out
within 14 days after this date, on the day or days determined by the
Employer.
The results of the Tests after Completion shall be compiled and
evaluated by the Contractor, who shall prepare a detailed report
within 7 days after the tests have been carried out. Appropriate
account shall be taken of the effect of the Employer's prior use of
the Works.
12.2 DELAYED TESTS
48
If the Contractor incurs Cost as a result of any unreasonable delay by
the Employer to the Tests after Completion, the Contractor shall (i)
give notice to the Employer and (ii) be entitled subject to Sub-Clause
20.1 [Contractor's Claims] to payment of any such Cost plus Reasonable
Profit, which shall be added to the Contract Price.
After receiving this notice, the Employer shall proceed in accordance
with Sub-Clause 3.5 [Determinations] to agree or determine this Cost
and profit.
If, for reasons not attributable to the Contractor, a Test after
Completion on the Works or any Section cannot be completed during the
Defects Notification Period (or any other period agreed upon by both
Parties), then the Works or Section shall be deemed to have passed
this Test after Completion.
12.3 RETESTING
If the Works, or a Section, fail to pass the Tests after Completion:
(a) sub-paragraph (b) of Sub-Clause 11.1 [Completion of Outstanding
Work and Remedying of Defects] shall apply; and
(b) either Party may then require the failed Tests, and the Tests
after Completion on any related work, to be repeated under the
same terms and conditions.
If and to the extent that this failure and retesting are attributable
to any of the matters listed in sub-paragraphs (a) to (d) of
Sub-Clause 11.2 [Cost of Remedying Defects] and cause the Employer to
incur additional costs, the Contractor shall subject to Sub-Clause 2.5
[Employer's Claims] pay these costs to the Employer.
12.4 FAILURE TO PASS TESTS AFTER COMPLETION
If the Works, or a Section, fail to pass a Test after Completion and
the Contractor proposes to make adjustments or modifications to the
Works or such Section, the Contractor may be instructed by (or on
behalf of) the Employer that right of access to the Works or Section
cannot be given until a time that is convenient to the Employer. The
Contractor shall then remain liable to carry out the adjustments or
modifications and to satisfy this Test, within a reasonable period of
receiving notice by (or on behalf of) the Employer of the time that is
convenient to the Employer. However, if the Contractor does not
receive this notice during the relevant Defects Notification Period,
the Contractor shall be relieved of this obligation and the Works or
Section (as the case may be) shall be deemed to have passed this Test
after Completion.
If the Contractor incurs additional Cost as a result of any
unreasonable delay by the Employer in permitting access to the Works
or Plant by the Contractor, either to investigate the causes of a
failure to pass a Test after Completion or to carry out any
adjustments or modifications, the Contractor shall (i) give notice to
the Employer and (ii) be entitled subject to Sub-Clause 20.1
[Contractor's Claims] to payment of any such Cost plus Reasonable
Profit, which shall be added to the Contract Price.
After receiving this notice, the Employer shall proceed in accordance
with Sub-Clause 3.5 [Determinations] to agree or determine this Cost
and profit.
49
13. VARIATIONS AND ADJUSTMENTS
13.1 RIGHT TO VARY
Variations within the general scope of the Contact may be initiated by
the Employer at any time prior to issuing the Taking-Over Certificate
for the Works, either by an instruction or by a request for the
Contractor to submit a proposal. A Variation shall not comprise the
omission of any work which is to be carried out by others.
The Contractor shall execute and be bound by each Variation, unless
the Contractor promptly gives notice to the Employer stating (with
supporting particulars) that:
(a) the Contractor cannot readily obtain the Goods required for the
Variation;
(b) it will or may reduce the safety of the Works, or
(c) it will or may result in the Works failing to satisfy any
functional or technical requirements specified in the Employer's
Requirements.
Upon receiving this notice, the Employer shall cancel, confirm or vary
the instruction.
13.2 VALUE ENGINEERING
The Contractor may, at any time, submit to the Employer a written
Variation proposal which (in the Contractor's opinion) will, if
adopted, (i) accelerate completion, (ii) reduce the cost to the
Employer of executing, maintaining or operating the Works, (iii)
improve the efficiency or value to the Employer of the completed
Works, or (iv) otherwise be of benefit to the Employer.
The Variation proposal shall be prepared at the cost of the Contractor
and shall include the items listed in Sub-Clause 13.3 [Variation
Procedure].
13.3 VARIATION PROCEDURE
If the Employer requests a Variation proposal, prior to instructing a
Variation, the Contractor shall respond in writing as soon as
practicable, either by giving reasons why he cannot comply (if this is
the case) or by submitting:
(a) a description of the proposed design and/or work to be performed
and a programrne for its execution;
(b) the Contractor's proposal for any necessary modifications to the
programme according to Sub-Clause 8.3 [Programme] and to the Time
for Completion; and
(c) the Contractor's proposal for adjustment to the Contract Price.
A Variation shall not become effective unless and until the Contract
Price adjustment, the terms and schedule of payment and the extension
of time and all other terms have been mutually agreed upon by the
Parties (and the Parties shall act reasonably and in good faith in
connection with all such terms) and such Variation is signed by an
authorised representative of each Party. Each Variation shall be
incorporated as an amendment to the Contract.
50
The adjustment to the Contract Price for a Variation shall represent
the Cost of the Variation and, except in the case of Variations
omitting or decreasing any part of the work under the Contract,
Reasonable Profit.
Should one or other of the Parties wish to accelerate the Variation
process for reasons of time and provided that both Parties agree in
writing that the Variation shall be executed prior to the agreement of
the Contract Price adjustment, the terms and schedule of payment and
the extension of time and any other terms which are required to be
mutually agreed upon by the Parties, then the Employer shall issue in
writing confirmation that the Contractor has an entitlement to a
Variation and the Parties shall negotiate in good faith all the
Contract Price adjustment, the terms and schedule of payment and
extension of time and other terms as expeditiously as reasonably
possible, in accordance with Sub-Clause 3.5 (Determinations).
13.4 NOT APPLICABLE
13.5 NOT APPLICABLE
13.6 ADJUSTMENTS FOR CHANGES IN LEGISLATION
The Contract Price shall be adjusted to take account of any increase
or decrease in Cost resulting from a change in the Laws of the Country
(including the introduction of new Laws and the repeal or modification
of existing Laws) or in the judicial or official governmental
interpretation of such Laws, made after the Base Date, which affect
the Contractor in the performance of obligations under the Contract.
If the Contractor suffers (or will suffer) delay and/or incurs (or
will incur) additional Cost as a result of these changes in the Laws
or in such interpretations, made after the Base Date, the Contractor
shall give notice to the Employer and shall be entitled subject to
Sub-Clause 20.1 [Contractor's Claims] to:
(a) an extension of time for any such delay, if completion is or will
be delayed, under Sub-Clause 8.4 [Extension of Time for
Completion]; and
(b) payment of any such Cost, which shall be added to the Contract
Price.
After receiving this notice, the Employer shall proceed in accordance
with Sub-Clause 3.5 [Determinations] to agree or determine these
matters.
13.7 ADJUSTMENTS FOR CHANGES IN COSTS
If the Contract Price is to be adjusted for rises or falls in the cost
of labour, goods and other inputs to the Works, the adjustments shall
be calculated in accordance with the provisions in the Particular
Conditions.
14. CONTRACT PRICE AND PAYMENT
14.1 THE CONTRACT PRICE
Unless otherwise stated in the Particular Conditions:
51
(a) Payment for the Works shall be made on the basis of the lump sum
Contract Price, subject to adjustments in accordance with the
Contract and adjustments (if any) for valid claims by the
Contractor in respect of the Works due to an act or omission on
the part of the Employer or Employee's Personnel.
(b) The Employer shall pay all taxes (except for those for the
Contractor's own operations), duties and fees, and the Contract
Price shall not be adjusted for any of these costs, including the
circumstances as stated in Sub-Clause 13.7 [Adjustments for
Changes in Legislation].
(c) Should the Employer receive any notices from governmental
agencies or regulatory bodies that any taxes, duties and fees are
due for payment by the Contractor, the Employer shall give 3 days
notice requesting the Contractor to rectify the position. If the
Contractor still fails to make good such payments within the
stipulated time, the Employer shall proceed in accordance with
Clause 3.5 [Determinations] to resolve the issue and exercise its
rights of set-off from any amount due, or become due to the
Contractor.
14.2 ADVANCE PAYMENT
The Employer shall make an advance payment as stated in the Particular
Conditions.
14.3 APPLICATION FOR PAYMENTS
The Contractor shall submit a Statement in six copies to the Employer
after the end of the period of payment stated in the Particular
Conditions (if not stated, after the end of each month).
14.4 SCHEDULE OF PAYMENTS
The Employer shall pay the Contractor in accordance with the Schedule
of Payments contained in the Contract subject to the Employer's
entitlement to delay scheduled payment in accordance with Sub-Clause
8.3, the set-off right under Sub-Clause 1.13 and 3.5, and the
Employer's right to claim under Sub-Clause 15.2 [Contractor's
Default].
14.5 TIMING OF PAYMENTS
Except as otherwise stated in Sub-Clause 2.5 [Employer's Claims],
Sub-Clause 8.3 to delay for scheduled payment and the Employer's right
to claim under Sub-Clause 15.2 [Contractor's Default], the Employer
shall pay the Contractor in accordance with the Contract Particulars
and the Schedule of Payments. The Employer shall pay to the
Contractor:
(a) the Advance Payment amount identified in the Schedule of Payments
immediately upon execution of the Contract Agreement in order for
works to begin immediately.
(b) the Contract Price instalments as defined in the Schedule of
Payments within 21 days of the end of each period of payment
stated in the Particular Conditions (if not stated, after the end
of each calendar month).
52
Payment of the amount due shall be made into the bank account,
nominated by the Contractor.
14.6 DELAYED PAYMENT
If the Contractor does not receive payment in accordance with
Sub-Clause 14.5 [Timing of Payments], the Contractor shall be entitled
to receive financing charges compounded monthly on the amount unpaid
during the period of delay.
Unless otherwise stated in the Particular Conditions, these financing
charges shall be calculated at the annual discount rate of the central
bank in the country of the currency of payment, and shall be paid in
such currency.
14.7 RETENTION MONEY
Each Contract Price instalment as stated in the Schedule of Payments
shall be subject to the percentage of retention stated in the
Particular Conditions. Any amount to be deducted for retention shall
be included in the Statement to be submitted pursuant to Sub-Clause
14.3.
The first half of the Retention Money shall be paid to the Contractor
after the Taking-Over Certificate has been issued for the Works, and
the Works have passed all specified tests (including the Tests after
Completion, if any).
The balance of the Retention Money shall be paid to the Contractor
after the latest of the expiry dates of the Defects Notification
Periods.
However, if any work remains to be executed under Sub-Clause 11
[Defects Liability] or Sub-Clause 12 [Tests after Completion], the
Employer shall be entitled to withhold the estimated cost of such work
until it has been executed.
14.8 STATEMENT AT COMPLETION
Within 42 days after receiving the Taking-Over Certificate for the
Works, the Contractor shall submit to the Employer six copies of a
Statement at completion with supporting documents.
The Employer shall then make payment in accordance with Sub-Clause
14.5 [Timing of Payments].
14.9 APPLICATION FOR FINAL PAYMENT
Within 42 days after receiving the Performance Certificate, the
Contractor shall submit, to the Employer, six copies of a draft final
statement with supporting documents showing in detail:
(a) the value of all work done in accordance with the Contract; and
(b) any further sums which the Contractor considers to be due to him
under the Contract or otherwise.
If the Employer disagrees with or cannot verify any part of the draft
final statement,
53
the Contractor shall submit such further information as the Employer
may reasonably require and shall make such changes in the draft as may
be agreed between them. The Contractor shall then prepare and submit
to the Employer the final statement as agreed. This agreed statement
is referred to in these Conditions as the "Final Statement".
However if, following discussions between the Parties and any changes
to the draft final statement which are agreed, it becomes evident that
a dispute exists, the Employer shall pay the agreed parts of the draft
final statement in accordance Sub-Clause 14.5 [Timing of Payments].
Thereafter, if the dispute is finally resolved under Sub-Clause 20.3
[Amicable Settlement], the Contractor shall then prepare and submit to
the Employer a Final Statement.
14.10 DISCHARGE
When submitting the Final Statement, the Contractor shall submit a
written discharge which confirms that the total of the Final Statement
represents full and final settlement of all moneys due to the
Contractor on account of the Contract Price under or in connection
with the Contract. This discharge may state that it becomes effective
when the Contractor has received outstanding balance of this total, in
which event the discharge shall be effective on such date.
14.11 FINAL PAYMENT
In accordance with Sub-Clause 14.5 [Timing of Payments], the Employer
shall pay to the Contractor the amount which is finally due as set out
in the Final Statement, less all amounts previously paid by the
Employer and any deductions in accordance with Sub-clause 2.5
[Employer's Claims] and Sub-Clause 14.1 [The Contract Price].
14.12 CESSATION OF EMPLOYER'S LIABILITY
Upon payment of the amount which is finally due as set out in the
Final Statement, the Employer shall not be liable to the Contractor
for any further payment on account of the Contract Price under or in
connection with the Contract.
However, this Sub-Clause shall not limit the Employer's liability in
any case of fraud, deliberate default or reckless misconduct by the
Employer.
14.13 CURRENCIES OF PAYMENT
The Contract Price shall be paid in the currency named in the
Particular Conditions.
15. DEFAULT
15.1 PRESERVATION OF OTHER RIGHTS
If a Party breaches (including repudiates) the Contract, nothing in
this Clause shall prejudice the right of the other Party to recover
damages or exercise any other right to remedy.
15.2 CONTRACTOR'S DEFAULT
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If the Contractor commits a substantial breach of the Contract, the
Employer may, by hand or by certified post, give the Contractor a
written notice to show cause.
Substantial breaches include, but are not limited to:
(a) failing to comply with Sub-Clause 4.2 [Guarantee];
(b) wrongful suspension of the Works;
(c) failing to commence and then proceed with the Works with due
expedition and without delay in accordance with Sub-Clause 8.1
[Commencement of Works];
(d) material failure to design and execute the Works in accordance
with the Contract;
(e) subcontracting the whole of the Works or assigning the Contract
without the required agreement under Sub-Clause 1.7 [Assignment];
or
(f) giving or offering to give (directly or indirectly) to any person
any bribe, gift, gratuity, commission or other thing of value, as
an inducement or reward:
(i) for doing or forbearing to do any action in relation to the
Contract; or
(ii) for showing or forbearing to show favour or disfavour to
any person in relation to the Contract;
(g) perform a material obligation of the Contractor in accordance
with the Contract;
other than lawful inducements and rewards.
15.3 EMPLOYER'S NOTICE TO SHOW CAUSE
A notice under Sub-Clause 15.2 [Contractor's Default] shall state:
(a) that it is a notice under Sub-Clause 15.2 [Contractor's Default]
of the Contract;
(b) the alleged substantial breach;
(c) that the Contractor is required to show cause in writing why the
Employer should not exercise a right referred to in Sub-Clause
15.4 [Principal's Rights]; and
(d) the date and time by which the Contractor must show cause (which
shall not be less than 7 days after the notice is received by the
Contractor).
15.4 EMPLOYER'S RIGHTS
If the Contractor fails to show reasonable cause by the stated date
and time, the Employer may:
(a) by giving written notice to the Contractor, take out of the
Contractor's hands
55
the whole or part of the work under the Contract remaining to be
completed and suspend payment until it becomes due and payable
pursuant to Sub-Clause 15.6 [Adjustment on Completion of Work
Taken Out]; or
(b) by giving 14 days written notice to the Contractor terminate the
Contract.
15.5 COMPLETION OF WORKS TAKEN OUT
The Employer shall complete work taken out of the Contractor's hands
and may:
(a) without payment of compensation to the Contractor take possession
of, and use Goods and other things on the Site intended for work
under the Contract;
(b) contract with Subcontractors and consultants; and
(c) take possession of the Contractor's Documents;
which are reasonably required by the Employer to facilitate completion
of the Works.
If the Employer takes possession of Goods or other things, the
Employer shall maintain them and, subject to Sub-Clause 15.6
[Adjustment on Completion of Work Taken Out], on completion of the
Works, shall return such of them as are surplus.
The Employer shall keep records of the cost of completing the Works.
15.6 ADJUSTMENT ON COMPLETION OF WORK TAKEN OUT
When work taken out of the Contractor's hands has been completed, the
Employer shall proceed in accordance with Sub-Clause 3.5
[Determinations] to agree or determine the cost incurred by the
Employer in that regard and the sum payable to or by the Contractor
with reference to the' difference between that cost and the amount and
quality of work which has been done by the Contractor prior to taken
out.
If the Contractor is indebted to the Employer, the Employer may retain
Goods or other things taken under Sub-Clause 15.5 [Completion of Works
Taken Out] until the debt is satisfied. If after reasonable notice,
the Contractor fails to pay the debt, the Employer may sell the Goods
or other things and apply the proceeds to the satisfaction of the debt
and the costs of sale. Any balance of the proceeds shall be paid to
the Contractor.
15.7 EMPLOYER'S ENTITLEMENT TO TERMINATION
The Employer shall be entitled to terminate the Contract, at any time
for the Employer's convenience, by giving notice of such termination
to the Contractor. The termination shall take effect 28 days after the
date on which the Contractor receives this notice. The Employer shall
not terminate the Contract under this Sub-Clause in order to execute
the Works himself or to arrange for the Works to be executed by
another contractor.
After this termination, the Contractor shall be paid in accordance
with Sub-Clause 19.6 [Optional Termination, Payment and Release].
56
15.8 EMPLOYER'S DEFAULT
If the Employer commits a substantial breach of the Contract, the
Contractor may, by hand or by certified post, give the Employer a
written notice to show cause.
Substantial breaches include, but are not limited to failing to:
(a) comply with Sub-Clause 1.7 [Assignment];
(b) give the Contractor right of access to, and possession of, all
parts of the Site in accordance with Sub-Clause 2.1 [Right of
Access to the Site];
((c) Not Applicable);
(d) make the advance payment in accordance with Clause 14 [Contract
Price and Adjustment];
(e) make a payment when due and payable pursuant to the Contract on
any undisputed sum; or
(f) perform a material obligation of the Employer in accordance with
the Contract.
15.9 CONTRACTOR'S NOTICE TO SHOW CAUSE
A notice given under Sub-Clause 15.8 [Employer's Default] shall state:
(a) that it is a notice under Sub-Clause 15.8 [Employer's Default] of
the Contract;
(b) the alleged substantial breach;
(c) that the Employer is required to show cause in writing why the
Contractor should not exercise a right referred to in Sub-Clause
15.10 [Contractor's Rights]; and
(d) the date and time by which the Employer must show cause (which
shall not be less than 7 days after the notice is received by the
Employer.
15.10 CONTRACTOR'S RIGHTS
If the Employer fails to show reasonable cause by the stated date and
time, the Contractor may, by written notice to the Employer, suspend
the whole or any part of the work under the Contract.
The Contractor shall remove the suspension if the Employer remedies
the breach.
The Contractor may, by written notice to the Employer, terminate the
Contract:
(a) if within 7 days of the date of suspension under this Sub-Clause,
the Employer fails:
(i) to remedy the breach; or
57
(ii) if the breach is not capable of remedy, to make other
arrangements to the reasonable satisfaction of the
Contractor;
(b) if a prolonged suspension affects the whole of the Works as
described in Sub-Clause 8.11 [Prolonged Suspension].
If the Contractor suffers delay and/or incurs Cost as a result of
suspending work (or reducing the rate of work) in accordance with this
Sub-Clause, the Contractor shall give notice to the Employer and shall
be entitled subject to Sub-Clause 20.1 [Contractor's Claims] to:
(c) an extension of time for any such delay, if completion is or will
be delayed, under Sub-Clause 8.4 [Extension of Time for
Completion]; and
(d) payment of any such Cost plus Reasonable Profit, which shall be
added to the Contract Price.
After receiving this notice, the Employer shall proceed in accordance
with Sub-Clause 3.5 [Determinations] to agree or determine these
matters.
15.11 TERMINATION
If the Contract is terminated pursuant to Sub-Clause 15.4(b) or 15.10
[Contractor's Rights], the Parties' remedies, rights and liabilities
shall be the same as they would have been under the law governing the
Contract had the defaulting Party repudiated the Contract and the
other Party elected to treat the Contract as at an end and recover
damages.
Without limiting the foregoing, the Employer shall promptly:
(a) pay the Contractor in accordance with Sub-Clause 19.6 [Optional
Termination, Payment and Release]; and
(b) pay to the Contractor the amount of any loss of profit or other
loss or damage (excluding consequential loss or damage) sustained
by the Contractor as a result of termination;
where the Contract is terminated pursuant to Sub-Clause 15.10
[Contractor's Rights].
16. INSOLVENCY
If:
(a) a Party informs the other in writing, or creditors generally,
that the Party is insolvent or is financially unable to proceed
with the Contract;
(b) execution is levied against a Party by a creditor;
(c) a Party is an individual person or a partnership including an
individual person, and if that person:
(i) commits an act of bankruptcy;
58
(ii) has a bankruptcy petition presented against him or her or
presents his or her own petition;
(iii)is made bankrupt;
(iv) makes a proposal for a scheme of arrangement or a
composition; or
(v) has a deed of assignment or deed of arrangement made,
accepts a composition, is required to present a debtor's
petition, or has a sequestration order made under the law
governing the Contract; or
(d) in relation to a Party being a corporation:
(i) notice is given of a meeting of creditors with a view to the
corporation entering a deed of company arrangement;
(ii) the corporation enters a deed of company arrangement with
creditors;
(iii)a controller or administrator is appointed;
(iv) a application is made to a court for its winding up and not
stayed within 14 days;
(v) a winding up order is made in respect of the corporation;
(vi) the corporation resolves by special resolution that it be
wound up voluntarily (other than for a member's voluntary
winding up); or
(vii) a mortgagee of any of the corporation's property takes
possession of that property;
then, where the other Party is:
- the Employer, the Employer may, without giving a notice to show
cause, exercise the termination right under Sub-Clause 15.4(b);
or
- the Contractor, the Contractor may, without giving a notice to
show cause, exercise the termination right under Sub-Clause 15.10
[Contractor's Rights].
The rights and remedies given by this Sub-Clause are additional to any
other rights and remedies. They may be exercised notwithstanding that
there has been no breach of Contract.
17. RISK AND RESPONSIBILITY
17.1 INDEMNITIES
The Contractor shall indemnify the Employer against:
(a) claims in respect of personal injury or death;
(b) claims in respect of damage to or loss of any property (other
than property of the Employer or the Works);
(c) damage to or loss of property of the Employer;
59
arising out of or as a consequence of the design, execution and
completion of the Works except to the extent that the act or omission
of the Employer, the Employer's Personnel or any of their respective
consultants, agents or other contractors caused or contributed to the
injury, death, damage or loss.
The indemnity in this Sub-Clause shall not apply:
(a) to the extent that another provision of the Contract limits the
Contractor's liability;
(b) to things for the care of which the Contractor is not responsible
under Sub-Clause 17.2 [Contractor's Care of the Works]; or
(c) to claims in respect of the Employer's right to have the work
under the Contract carried out.
The Employer shall indemnify the Contractor against:
(a) claims in respect of personal injury or death which is
attributable to any negligence, willful act or breach of the
Contract by the Employer, the Employer's Personnel, or any of
their respective consultants, agents, employees or other
contractors;
(b) the matters for which liability may be excluded from insurance
cover, as described in sub-paragraphs (d)(i), (ii) and (iii) of
Sub-Clause 18.3 [Insurance Against Injury to Persons and Damage
to Property]; and
(c) claims in respect of the Employer's right to have the work under
the Contract carried out.
17.2 CONTRACTOR'S CARE OF THE WORKS
Subject to Sub-Clause 17.3 [Employer's Risks] the Contractor shall
take full responsibility for the care and risks of the Works and Goods
from the Commencement Date until the Taking-Over Certificate is issued
(or is deemed to be issued under Sub-clause 10.1 [Taking Over of the
Works and Sections]) for the Works, when responsibility for the care
and risks of the Works shall pass to the Employer. If a Taking-Over
Certificate is issued (or is so deemed to be issued) for any Section
of the Works, responsibility for the care of the Section shall then
pass to the Employer.
After responsibility and risks have accordingly passed to the
Employer, the Contractor shall take responsibility for the care of any
work which is outstanding on the date stated in a Taking-Over
Certificate, until this outstanding work has been completed.
If any loss or damage happens to the Works, Goods or Contractor's
Documents during the period when the Contractor is responsible for
their care, from any cause not listed in Sub-Clause 17.3 [Employer's
Risks], the Contractor shall rectify the loss or damage at the
Contractor's risk and cost, so that the Works, Goods and Contractor's
Documents conform with the Contract.
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17.3 EMPLOYER'S RISKS
The risks referred to in Sub-Clause 17.4 [Consequences of Employer's
Risks] are:
(a) war, hostilities (whether war be declared pr not), invasion, act
of foreign enemies;
(b) rebellion, terrorism, revolution, insurrection, military or
usurped power, martial law or confiscation by order of any
government or public authority, or civil war;
(c) riot, commotion or disorder within the Country by persons other
than the Contractor's Personnel and other employees of the
Contractor and Subcontractors;
(d) munitions of war, explosive materials, ionising radiation or
contamination by radio-activity; except as may be attributable to
the Contractor's use of such munitions, explosives, radiation or
radio-activity;
(e) pressure waves caused by aircraft or other aerial devices
travelling at sonic or supersonic speeds;
(f) any negligent act or omission of the Employer, the Employer's
Personnel, or any of their respective consultants, agents,
employees or other contractors;
(g) any risk excepted elsewhere in the Contract;
(h) use or occupation of any part of the work under the Contract by
the Employer, the Employer's Personnel or their respective
consultants, agents, employees or other contractors; and
(i) defects in the design of work under the Contract arising as a
result of the incorrectness of any portion of the Employer's
Requirements for which the Employer is responsible under Clause
5.1 [General Design Obligations].
17.4 CONSEQUENCES OF EMPLOYER'S RISKS
If and to the extent that any of the risks listed in Sub-Clause 17.3
[Employer's Risks] ("Employer's risks") results in loss or damage to
the Works, Goods or Contractor's Documents (whether or not in
combination with other risks), the Contractor shall promptly give
notice to the Employer and shall rectify this loss or damage to the
extent required by the Employer.
If the Contractor suffers delay and/or incurs Cost from rectifying
this loss or damage, the Contractor shall give a further notice to the
Employer and shall be entitled subject to Sub-Clause 20.1
[Contractor's Claims] to:
(a) an extension of time for any such delay, if completion is or will
be delayed, under Sub-Clause 8.4 [Extension of Time for
Completion]; and
(b) payment of any such Cost (or an appropriate proportion of such
Cost where the
61
loss or damage is caused by a combination of Employer's risks and
other risks), which shall be added to the Contract Price.
After receiving this further notice, the Employer shall proceed in
accordance with Sub-Clause 3.5 /Determinations] to agree or determine
these matters.
17.5 INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS
In this Sub-Clause, "infringement" means an infringement (or alleged
infringement) of any patent, registered design, copyright, trade xxxx,
trade name, trade secret or other intellectual or industrial property
right relating to the Works; and "claim" means a claim (or proceedings
pursuing a claim) alleging an infringement.
Whenever a Party does not give notice to the other Party of any claim
within 28 days of receiving the claim, the first Party shall be deemed
to have waived any right to indemnity under this Sub-Clause.
The Employer shall indemnify and hold the Contractor harmless against
and from any claim alleging an infringement which is or was:
(a) an unavoidable result of the Contractor's compliance with the
Employer's Requirements; or
(b) a result of any Works being used by the Employer:
(i) for a purpose other than that indicated by, or reasonably to
be inferred from, the Contract; or
(ii) in conjunction with any thing not supplied by the
Contractor, unless such use was disclosed to the Contractor
prior to the Base Date or is stated in the Contract.
The Contractor shall indemnify and hold the Employer harmless against
and from any claim alleging an infringement which arises out of or in
relation to (i) the Contractor's design, manufacture, construction or
execution of the Works; (ii) the use of Contractor's Equipment; or
(iii) the proper use of the Works.
If a Party is entitled to be indemnified under this Sub-Clause, the
indemnifying Party may (at its cost) conduct negotiations for the
settlement of the claim, and any litigation or arbitration which may
arise from it. The other Party shall, at the request and cost of the
indemnifying Party, assist in contesting the claim. This other Party
(and its Personnel) shall not make any admission which might be
prejudicial to the indemnifying Party, unless the indemnifying Party
failed to take over the conduct of any negotiations, litigation or
arbitration upon being requested to do so by such other Party.
17.6 LIMITATION OF LIABILITY
Neither Party shall be liable to the other Party for loss of use of
any Works, loss of profit, loss of any contract or for any indirect or
consequential loss or damage which may be suffered by the other Party
in connection with the Contract, other than under Sub-Clause 15.11
[Termination] and Sub-Clause 17.1 [Indemnities].
62
The total liability of the Contractor to the Employer, under or in
connection with the Contract other than under Sub-Clause 4.19
[Electricity, Water and Gas], Sub-Clause 4.20 [Employer's Equipment
and Free-Issue Material 1, Sub-Clause 17.1 [Indemnities] and
Sub-Clause 17.5 [Intellectual and Industrial Property Rights], shall
not exceed the sum stated in the Particular Conditions or (if a sum is
not so stated) the Contract Price stated in the Contract Agreement.
This Sub-Clause shall not limit liability in any case of fraud,
deliberate default or reckless misconduct by the defaulting Party.
18. INSURANCE
18.1 GENERAL REQUIREMENTS FOR INSURANCE'S
In this Clause, "Insuring Party" means, for each type of insurance,
the Party responsible for effecting and maintaining the insurance
specified in the relevant Sub-Clause.
Wherever the Contractor is the Insuring Party, each insurance shall be
effected with insurers and in terms approved by the Employer, such
approval not to be unreasonably withheld. These terms shall be
consistent with any terms agreed by both Parties before they signed
the Contract Agreement. This agreement of terms shall take precedence
over the provisions of this Clause.
Wherever the Employer is the Insuring Party, each insurance shall be
effected with insurers and in terms consistent with the details
annexed to the Particular Conditions.
If a policy is required to indemnify joint insured, the cover shall
apply separately to each insured as though a separate policy had been
issued for each of the joint insured. If a policy indemnifies
additional joint insured, namely in addition to the insured specified
in this Clause, (i) the Contractor shall act under the policy on
behalf of these additional joint insured except that the Employer
shall act for Employer's Personnel, (ii) the additional joint insured
shall not be entitled to receive payments directly from the insurer or
to have any other direct dealings with the insurer, and (iii) the
insuring Party shall require all additional joint insured to comply
with the conditions stipulated in the policy.
Each policy insuring against loss or damage shall provide for payments
to be made in the currencies required to rectify the loss or damage.
Payments received from insurers shall be used for the rectification of
the loss or damage.
The relevant insuring Party shall, within the respective periods
stated in the Particular Conditions (calculated from the Commencement
Date), submit to the other Party:
(a) evidence that the insurances described in this Clause have been
effected; and
(b) copies of the policies for the insurances described in Sub-Clause
18.2 [Insurance of Works and Contractor's Equipment] and
Sub-Clause 18.3 [Insurance against Injury to Persons and Damage
to Property].
When each premium is paid, the Insuring Party shall submit evidence of
payment to
63
the other Party.
Each Party shall comply with the conditions stipulated in each of the
insurance policies. The Insuring Party shall keep the insurers
informed of any relevant changes to the execution of the Works and
ensure that insurance is maintained in accordance with this Clause.
Neither Party shall make any material alteration to the terms of any
insurance without the prior approval of the other Party. If an insurer
makes (or attempts to make) any alteration, the Party first notified
by the insurer shall promptly give notice to the other Party.
If the Insuring Party fails to effect and keep in force any of the
insurance's it is required to effect and maintain under the Contract,
or fails to provide satisfactory evidence and copies of policies in
accordance with this Sub-Clause, the other Party may (at its option
and without prejudice to any other right or remedy) effect insurance
for the relevant coverage and pay the premiums due. The Insuring Party
shall pay the amount of these premiums to the other Party, and the
Contract Price shall be adjusted accordingly.
Nothing in this Clause limits the obligations, liabilities or
responsibilities of the Contractor or the Employer, under the other
terms of the Contract or otherwise. Any amounts not insured or not
recovered from the insurers shall be borne by the Contractor and/or
the Employer in accordance with these obligations, liabilities or
responsibilities. However, if the Insuring Party fails to effect and
keep in force an insurance which is available and which it is required
to effect and maintain under the Contract, and the other Party neither
approves the omission nor effects insurance for the coverage relevant
to this default, any moneys which should have been recoverable under
this insurance shall be paid by the Insuring Party.
Payments by one Party to the other Party shall be subject to
Sub-Clause 2.5 [Employer's Claims] or Sub-Clause 20.1 [Contractor's
Claims], as applicable.
18.2 INSURANCE FOR WORKS AND CONTRACTOR'S EQUIPMENT
The Insuring Party shall insure the Works, Plant and Materials for not
less than the full reinstatement cost including the costs of
demolition, removal of debris and professional fees. This insurance
shall be effective from the date by which the evidence is to be
submitted under sub-paragraph (a) of Sub-Clause 18.1 [General
Requirements for Insurance's], until the date of issue of the
Taking-Over Certificate for the Works.
The Insuring Party shall insure the Contractor's Equipment for not
less than the full replacement value, including delivery to Site. For
each item of Contractor's Equipment, the insurance shall be effective
while it is being transported to the Site and until it is no longer
required as Contractor's Equipment.
Unless otherwise stated in the Particular Conditions, insurance's
under this Sub-Clause:
(a) shall be effected and maintained by the Contractor as Insuring
Party;
64
(b) shall be in the joint names of the Parties; who shall be jointly
entitled to receive payments from the insurers, payments being
held or allocated between the Parties for the sole purpose of
rectifying the loss or damage if the Employer instructs the
Contractor to rectify the damage;
(c) shall cover all loss and damage from any cause not listed in
Sub-Clause 17.3 [Employer's Risks];
(d) shall also cover loss or damage from the risks listed in
sub-paragraph (c) of Sub-Clause 17.3 [Employer's Risks], with
deductibles per occurrence of not more than the amount stated in
the Particular Conditions (if an amount is not so stated, this
sub-paragraph (d) shall not apply); and
(e) may however exclude damages for delay in completing the Works,
consequential loss and loss of, damage to, and reinstatement of:
(i) a part of the Works which is in a defective condition due to
a defect in its design, materials or workmanship (but cover
shall include any other parts which are lost or damaged as a
direct result of this defective condition and not as
described in sub-paragraph (ii) below);
(ii) a part of the Works which is lost or damaged in order to
reinstate any other part of the Works if this other part is
in a defective condition due to a defect in its design,
materials.or workmanship;
(iii) a part of the Works which has been taken over by the
Employer, except to the extent that the Contractor is liable
for the loss or damage;
(iv) goods while they are not in the Country; and
(v) a part of the Works that deteriorated through fair wear and
tear.
If, more than one year after the Base Date, the cover described in
sub-paragraph (d) above ceases to be available at commercially
reasonable terms and rates, the Contractor shall (as Insuring Party)
give notice to the Employer, with supporting particulars. The Employer
shall then:
(a) be entitled subject to Sub-Clause 2.5 [Employer's Claims] to
payment of an amount equivalent to such amount as the Contractor
should have expected to have paid for such cover on commercially
reasonable terms; and
(b) be deemed, unless he obtains the cover on commercially reasonable
terms, to have approved the omission under Sub-Clause 18.1
[General Requirements for Insurance's] of the cover described in
sub-paragraph (d) above.
18.3 INSURANCE AGAINST INJURY TO PERSONS AND DAMAGE TO PROPERTY
The Insuring Party shall insure against each Party's liability for any
loss, damage, death or bodily injury which may occur to any physical
property (except things insured under Sub-Clause 18.2 Insurance for
Works and Contractor's Equipment]) or to any person (except persons
insured under Sub-Clause 18.4 [Insurance for Contractor's Personnel]),
which may arise out of the Contractor's performance of the
65
Contract and occurring before the issue of the Performance
Certificate.
This insurance shall be for a limit per occurrence of not less than
the amount stated in the Particular Conditions, with no limit on the
number of occurrences. If an amount is not stated in the Particular
Conditions, this Sub-Clause shall not apply.
Unless otherwise stated in the Particular Conditions, the insurance's
specified in this Sub-Clause:
(a) shall be effected and maintained by the Contractor as Insuring
Party;
(b) shall be in the joint names of the Parties;
(c) shall be extended to cover liability for all loss and damage to
the Employer's property (except things insured under Sub-Clause
18.2 [Insurance for Works and Contractor's Equipment]) arising
out of the Contractor's performance of the Contract; and
(d) may however exclude liability to the extent that it arises from:
(i) the Employer's right to have the Permanent Works executed
on, over, under, in or through any land, and to occupy this
land for the Permanent Works;
(ii) damage which is an unavoidable result of the Contractor's
obligations to execute the Works and remedy any defects; and
(iii) a cause listed in Sub-Clause 17.3 [Employer's Risks], except
to the extent that cover is available at commercially
reasonable terms.
18.4 INSURANCE FOR CONTRACTOR'S PERSONNEL
The Contractor shall effect and maintain insurance against liability
for claims, damages, losses and expenses (including legal fees and
expenses) arising from injury, sickness, disease or death of any
person employed by the Contractor or any other of the Contractor's
Personnel.
The Employer shall also be indemnified under the policy of insurance,
except that this insurance may exclude losses and claims to the extent
that they arise from any act or neglect of the Employer or of the
Employer's Personnel.
The insurance shall be maintained in full force and effect during the
whole time that these personnel are assisting in the execution of the
Works. For a Subcontractor's employees, the insurance may be effected
by the Subcontractor, but the Contractor shall be responsible for
compliance with this Clause.
19. FORCE MAJEURE
19.1 DEFINITION OF FORCE MAJEURE
In this Clause, "Force Majeure" means an exceptional event or
circumstance:
66
(a) which is beyond a Party's control;
(b) which such Party could not reasonably have provided against
before entering into the Contract;
(c) which, having arisen, such Party could not reasonably have
avoided or overcome; and
(d) which is not substantially attributable to the other Party.
Force Majeure may include, but is not limited to, exceptional events
or circumstances of the kind listed below, so long as conditions (a)
to (d) above are satisfied:
(i) war, hostilities (whether war be declared or not), invasion,
act of foreign enemies;
(ii) rebellion, terrorism, revolution, insurrection, military or
usurped power, martial law or confiscation by order of any
government or public authority or civil war;
(iii) riot, commotion, disorder, strike or lockout by persons
other than the Contractor's Personnel and other employees of
the Contractor and Subcontractors;
(iv) munitions of war, explosive materials, ionising radiation or
contamination by radio-activity, except as may be
attributable to the Contractor's use of such munitions,
explosives, radiation or radio-activity; and
(v) natural catastrophes such as earthquake, hurricane, typhoon
or volcanic activity.
19.2 NOTICE OF FORCE MAJEURE
If a Party is or will be prevented from performing any of its
obligations under the Contract by Force Majeure, then it shall give
notice to the other Party of the event or circumstances constituting
the Force Majeure and shall specify the obligations, the performance
of which is or will be prevented. The notice shall be given within 14
days after the Party became aware, or should have become aware, of the
relevant event or circumstance constituting Force Majeure.
The Party shall, having given notice, be excused performance of such
obligations for so long as such Force Majeure prevents it from
performing them.
Notwithstanding any other provision of this Clause, Force Majeure
shall not apply to obligations of either Party to make payments to the
other Party under the Contract.
19.3 DUTY TO MINIMISE DELAY
Each Party shall at all times use all reasonable endeavours to
minimise any delay in the performance of the Contract as a result of
Force Majeure.
A Party shall give notice to the other Party when it ceases to be
affected by the Force Majeure.
67
19.4 CONSEQUENCES OF FORCE MAJEURE
If the Contractor is prevented from performing any of his obligations
under the Contract by Force Majeure of which notice has been given
under Sub-Clause 19.2 [Notice of Force Majeure], and suffers delay
and/or incurs Cost by reason of such Force Majeure, the Contractor
shall be entitled subject to Sub-Clause 20.1 [Contractor's Claims] to:
(a) an extension of time for any such delay, if completion is or will
be delayed, under Sub-Clause 8.4 [Extension of Time for
Completion];
(b) if the event or circumstance is of the kind described in
sub-paragraphs (i) to (iv) of Sub-Clause 19.1 [Definition of
Force Majeure] and, in the case of sub paragraphs (ii) to (iv),
occurs in the Country, payment of any such Cost.
After receiving this notice, the Employer shall proceed in accordance
with Sub-Clause 3.5 [Determinations] to agree or determine these
matters.
19.5 FORCE MAJEURE AFFECTING SUBCONTRACTOR
If any Subcontractor is entitled under any contract or agreement
relating to the Works to relief from force majeure on terms additional
to or broader than those specified in this Clause, such additional or
broader force majeure events or circumstances shall not excuse the
Contractor's non-performance or entitle him to relief under this
Clause.
19.6 OPTIONAL TERMINATION, PAYMENT AND RELEASE
If the execution of substantially all the Works in progress is
prevented for a continuous period of 84 days by reason of Force
Majeure of which notice has been given under Sub-Clause 19.2 [Notice
of Force Majeure], or for multiple periods which total more than 140
days due to the same notified Force Majeure, then either Party may
give to the other Party a notice of termination of the Contract. In
this event, the termination shall take effect 7 days after the notice
is given.
Upon such termination, the Employer shall pay to the Contractor:
(a) the amounts payable for any work carried out for which a price is
stated in the Contract;
(b) the Cost of Plant and Materials ordered for the Works which have
been delivered to the Contractor, or of which the Contractor is
liable to accept delivery: this Plant and Materials shall become
the property of (and be at the risk of) the Employer when paid
for by the Employer, and the Contractor shall place the same at
the Employer's disposal; and (c) any other Cost or liability
which in the circumstances was reasonably incurred by the
Contractor in the expectation of completing the Works.
19.7 RELEASE FROM PERFORMANCE UNDER THE LAW
Notwithstanding any other provision of this Clause, if any event or
circumstance outside the control of the Parties (including, but not
limited to, Force Majeure) arises
68
which makes it impossible or unlawful for either or both Parties to
fulfil its or their contractual obligations or which, under the law
governing the Contract, entitles the Parties to be released from
further performance of the Contract, then upon notice by either Party
to the other Party of such event or circumstance:
the Parties shall be discharged from further performance, without
prejudice to the rights of either Party in respect of any previous
breach of the Contract; and
the sum payable by the Employer to the Contractor shall be the same as
would have been payable under Sub-Clause 19.6 [Optional Termination,
Payment and Release] if the Contract had been terminated under
Sub-Clause 19.6.
20. CLAIMS DISPUTES AND ARBITRATION
20.1 CONTRACTOR'S CLAIMS
If the Contractor considers himself to be entitled to any extension of
the Time for Completion and/or any additional payment, under any
Clause of these Conditions or otherwise in connection with the
Contract, the Contractor shall give notice to the Employer, describing
the event or circumstance giving rise to the claim. The notice shall
be given as soon as practicable after the Contractor became aware, or
should have become aware, of the event or circumstance.
The Contractor shall also submit any other notice(s) which is required
by the Contract, and supporting particulars for the claim(s), all as
relevant to such event or circumstance.
The Contractor shall keep such contemporary records as may be
necessary to substantiate any claim, either on the Site or at another
location acceptable to the Employer. The Contractor shall permit the
Employer to inspect all these records, and shall (if instructed)
submit copies to the Employer.
Within 28 days after the Contractor became aware of the event or
circumstance giving rise to the claim, or within such other period as
may be proposed by the Contractor and approved by the Employer, the
Contractor shall send to the Employer a fully detailed claim which
includes full supporting particulars of the basis of the claim and of
the extension of time and/or additional payment claimed. If the event
or circumstance giving rise to the claim has a continuing effect:
(a) this fully detailed claim shall be considered as interim;
(b) the Contractor shall send further interim claims at monthly
intervals, giving the accumulated delay and/or amount claimed,
and such further particulars as the Employer may reasonably
require; and
(c) the Contractor shall send a final claim within 28 days after the
end of the effects resulting from the event or circumstance, or
within such other period as may be proposed by the Contractor and
approved by the Employer.
The Employer shall proceed in accordance with Sub-Clause 3.5
[Determinations] to agree or determine (i) the extension (if any) of
the Time for Completion (before or after its expiry) in accordance
with Sub-Clause 8.4 [Extension of Time for
69
Completion], and/or (ii) the additional payment (if any) to which the
Contractor is entitled under the Contract.
Within 28 days after receiving a claim or any further particulars
supporting a previous claim, or within such other period as may be
proposed by the Employer and approved by the Contractor, the Employer
shall respond with approval, or with disapproval and detailed
comments. He may also request any necessary further particulars, but
shall nevertheless give his response on the principles of the claim
within such time.
Each payment under Clause 14 [Contract Price and Payment] shall
include such amounts for any claim as have been substantiated as due
under the relevant provision of the Contract. Unless and until the
particulars supplied are sufficient to substantiate the whole of the
claim, the Contractor shall only be entitled to payment for such part
of the claim as he has been able to substantiate at the time such
payment is to be made in accordance with Sub-Clause 14.5 [Timing of
Payments].
The requirements of this Sub-Clause are in addition to those of any
other Sub-Clause which may apply to a claim. If the Contractor fails
to comply with this or another Sub-Clause in relation to any claim,
any extension of time and/or additional payment shall take account of
the extent (if any) to which the failure has prevented or prejudiced
proper investigation of the claim.
20.2 DISPUTES
If a dispute (of any kind whatsoever) arises between the Parties in
connection with, or arising out of, the Contract or the execution of
the Works, as to any certificate, determination, instruction, opinion
or valuation of the Employer a Notice of Dispute shall be issued.
20.3 AMICABLE SETTLEMENT
"Any dispute or difference arising out of or in connection with this
contract shall first be referred to mediation at Hong Kong
International Arbitration Centre (HKIAC) and in accordance with its
Mediation Rules.
20.4 ARBITRATION
If the mediation is abandoned by the mediator or is otherwise
concluded without the dispute or difference being resolved, then such
dispute or difference shall be referred to and determined by
arbitration at HKIAC and in accordance with its Domestic Arbitration
Rules."
70
3. PARTICULAR CONDITIONS
Particular Conditions of Contract
for
Proposed Satellite Earth Station at
Tai Po Industrial Estate
71
PARTICULAR CONDITIONS
Employer: Asia Satellite Telecommunications Company Limited
Contractor: Leighton Contractors (Asia) Limited
Project: Proposed Satellite Earth Station at Tai Po Industrial Estate
The following are the Particular Conditions of Contract, in respect of this
project.
1.1.3.1 Base Date 8 January 2002
-------------- ------------------------------------- ---------------------------------------------------
1.1.3.2 Commencement Date 15 January 2002
-------------- ------------------------------------- ---------------------------------------------------
1.1.3.3 Time for Completion All works shall be completed by 14 June 2003.
-------------- ------------------------------------- ---------------------------------------------------
1.1.3.7
&11.1 Defects Notification Period Twelve (12) months from the effective date of the
Taking-over Certificate.
-------------- ------------------------------------- ---------------------------------------------------
1.1.4.1 Contract Price As per Contract Agreement
-------------- ------------------------------------- ---------------------------------------------------
1.1.4.5 Percentage for Profit 10%
-------------- ------------------------------------- ---------------------------------------------------
1.1.5.6 Sections Not Applicable.
-------------- ------------------------------------- ---------------------------------------------------
1.1.6.2 Country HKSAR
-------------- ------------------------------------- ---------------------------------------------------
1.3 Agreed system of Electronic By facsimile and e-mail
Transmission
-------------- ------------------------------------- ---------------------------------------------------
1.4 Law of Country Hong Kong
Language of Contract English
Language of Communications English
-------------- ------------------------------------- ---------------------------------------------------
2.1 Date(s) for access to the site Commencement Date
-------------- ------------------------------------- ---------------------------------------------------
4.16 Transport of Goods As per General Conditions
-------------- ------------------------------------- ---------------------------------------------------
4.21 Progress Reports Monthly
-------------- ------------------------------------- ---------------------------------------------------
8.7 Delay Damages 0.01% of the Contract Price/day to a maximum of
(amount and maximum) 5% of the Contract Price
-------------- ------------------------------------- ---------------------------------------------------
10.2 Taking Over of Parts of the Works Not Applicable
-------------- ------------------------------------- ---------------------------------------------------
13.7 Provisions for Cost Adjustment Not Applicable
-------------- ------------------------------------- ---------------------------------------------------
14.1 Basis of Contract Price Lump Sum
-------------- ------------------------------------- ---------------------------------------------------
14.2 Advance Payment 10% of Contract Price
-------------- ------------------------------------- ---------------------------------------------------
14.3 Frequency of Payments End of each Calendar Month, subject to Clause 8.6
-------------- ------------------------------------- ---------------------------------------------------
14.6 Financing Charges Not Applicable
-------------- ------------------------------------- ---------------------------------------------------
14.7 Retention Money Contract Price instalments subject to 10%
retention up to maximum of 5% of Contract
Price
-------------- ------------------------------------- ---------------------------------------------------
14.12 Currency of Payment Hong Kong Dollars
-------------- ------------------------------------- ---------------------------------------------------
18.1 General Requirements (a) Insurance to be provided by the Contractor:
for Insurances Workmen's Compensation and Plant insurance
(b) Period for provision of evidence of
insurance: The Contractor shall at all times
maintain, and upon request, the Contractor shall
furnish the Employer with certificates, or other
reasonable evidence, that the Contractor is
maintaining the required insurance (other than as
required to comply with any statutory insurance
requirements)
-------------- ------------------------------------- ---------------------------------------------------
18.2 Insurance for Works and Contractors All Risks including Third Party's
Contractor's Equipment Liability is provided by the Contractor(premium
to be reimbursed by Employer).
-------------- ------------------------------------- ---------------------------------------------------
18.3 Insurance Against Injury Limit per occurrence for insurance of Workmen's
to Persons and Damage to Compensation and Employer's Liability Insurance:
Property
Not less than
US$2,000,000 for any one
incident or series of
incidents arising from
one event or such higher
limit as may be required
by the laws of any
jurisdiction covering
the officers and
employees of the
Contractor for all
compensation or other
benefits required of the
Contractor by the laws
of any nation or
political sub-division
thereof to which the
Contractor and its
operations under this
Contract are subject in
respect of injury or
death of any such
employee.
Limit per occurrence
for insurance of
Commercial General or
Public, Liability:
Personal injury and/or
property damage, with
combined single limits
of US$1,500,000 for
claims of injury or
death of any persons or
loss of, or damage to
property resulting from
any one accident.
72
CONTRACT
for
Proposed Satellite Earth Station at
Tai Po Industrial Estate
73
CONTENTS
THIS CONTRACT COMPRISES THE FOLLOWING :
1. Contract Agreement;
2. General Conditions of Contract;
3. Particular Conditions of Contract;
4. Employer's Requirements :
a) General Requirements
b) General Conditions of Contract (See (2) above)
c) Particular Conditions of Contract (See (3) above)
d) Design Brief
5. Tender including Leighton's signed offer for work and documents referred
to in Clause 1 of the Contract Agreement, namely
i) Leighton's signed offer for work dated 28 September 2001;
ii) Leighton's letter Ref. RFG/PE/js/H2118R/01/344 dated 19 November
2001;
iii) Leighton's letter Ref. JFN/KM/js/H2118R/01/345 dated 19 November
2001; and
iv) Letter of Intent dated 26 November 2001.
6. Sample form of bond;
7. Schedule of Payments; and
8. Time Programme.
