[Project Name] NZTA Contract No. [Contract Number] Conditions of Contract

Transcription

1 [Project Name] NZTA Contract No. [Contract Number]

2 <<This page is to be left blank.>> DOCUMENT CHANGE FORMAT CODES This proforma document provides the basis for the development of physical works contract documents for the Transport Agency s Measure and Value, and Lump Sum construct only contracts. The purpose of the proforma is to provide consistency throughout the Transport Agency s regional operations and to ensure that an appropriate level of detail is provided in tender documentation. Black Black text is mandatory and may not be changed without approval prior to issue by the Transport Agency s Project Manager, who will consult with the Transport Agency s Project Services Team on all material changes made. Red Red text is used for data which requires fields to be updated or at least considered for each contract and marked at the beginning with [ and the end with ]. Text can also be used as is, modified or replaced. All red text adjustments must have the Transport Agency s Project Manager s approval. Red text must be converted to Black text, prior to tender document release. Blue Blue text is used for optional clauses which can be included as is or deleted in full and must be converted to Black text, prior to tender document release. Purple Purple text is used for prequalification clauses which are to be included for prequalification tenders only. For most contracts the Transport Agency require that Prequalification is used. Prequalification clause details must be prior approved with the Project Manager. Purple txt must be converted to Black text, prior to tender document release. <<Guidance Notes>> Blue text with yellow highlighting and marked at the beginning with << and the end with >> are guidance notes for the Tender Document creator. Guidance notes must be removed prior to tender document release. SM031 App A8 Issue 14: March 2015

3 CONTENTS <<Guidance note: Ensure the Table of Contents is updated once the final revisions have been undertaken as page numbers may have changed. Highlight the TOC right click update field update entire table >> CONTRACT AGREEMENT 3 GENERAL CONDITIONS 5 SCHEDULES TO THE GENERAL CONDITIONS OF CONTRACT 6 SCHEDULE 1 SPECIAL CONDITIONS OF CONTRACT SPECIFIC CONDITIONS OF CONTRACT 6 Schedule 2 Special Other 21 Schedule 3 Form of Contractor s performance bond 27 Schedule 4 Form of Principal s bond 29 Schedule 5 Form of Contractor s bond in lieu of retentions 30 Schedule 6 Form of Producer Statement - Construction 32 Schedule 7 Information on Contractor arranged construction insurance 33 Schedule 8 Information on Contractor arranged Plant insurance 35 Schedule 9 Information on public liability insurance 37 Schedule 10 Information on Contractor arranged motor vehicle insurance 39 Schedule 11 Information on Contractor arranged professional indemnity insurance 41 Schedule 12 Information on Principal arranged construction insurance 42 Schedule 13 Form of Contract (or Subcontractor) warranty 45 Schedule 14 Agreement for off-site Materials 46 Schedule 15 Practical Completion Certificate 51 Schedule 16 Final Completion Certificate 52 Schedule 17 Cost fluctuations 53 Page 1 of 54

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5 Contract Agreement CONTRACT FOR CONTRACT NUMBER THIS AGREEMENT is made on 20 BETWEEN ( the Contractor ) AND The a Crown entity, established on 1 August 2008 by Section 93 of the Land Transport Management Act 2003 ( the Principal ) IT IS AGREED as follows: 1. The Contractor shall carry out the obligations imposed on the Contractor by the Contract. 2. The Principal shall pay the Contractor the sum of $ or such greater or less sum as shall become payable under the Contract together with goods and services tax at the times and in the manner provided in the Contract. 3. Each party agrees to the terms and conditions as set out in the Contract. 4. The Contract comprises the following documents: (a) (b) (c) This Contract Agreement; The notification of acceptance of tender or award of Contract; The following post-tender documents <<Guidance note: identify any agreed posttender documents to be included, for example correspondence or minutes of pre-let meetings dealing with tender tags etc>> (d) Notices to Tenderers <<guidance note: give details with dates>>: (e) (f) (g) (h) (i) (j) (k) Schedule 1: Special Specific Schedule 2: Special Other The General NZS3910: 2013 (including other Schedules); Specifications issued prior to the Date of Acceptance of Tender; Drawings issued prior to the Date of Acceptance of Tender; The Schedule of Prices <<Delete if not applicable>> The Contractor s tender; Page 3 of 54

6 (l) (m) (n) The Schedule to the Conditions of Tendering; The Conditions of Tendering; and The following additional documents: <<Identify any additional documents to be included for example agreed correspondence>> 5. This Contract shall constitute the entire agreement between the parties. This Contract supersedes all prior negotiations, representations, and warranties, except insofar as the same are expressly incorporated herein. SIGNED BY Authorised Signatory of Contractor SIGNED BY Authorised Signatory of Principal Page 4 of 54

7 General Conditions The General shall be those included in NZS 3910: 2013 Conditions of Contract for Building and Civil Engineering Construction and the following clauses. <<Important Guidance note: When preparing any part of this tender, document, if there are sections/schedules that you do not require e.g. Schedule 17 - Cost Fluctuations within the,, DO NOT DELETE these schedules and ensure that you insert text at top of page This Section Not Used >>. Page 5 of 54

8 Schedules to the General Conditions of Contract Schedule 1 Special Specific (Clause numbers refer to General Conditions) Contract for: [Contract Number, Contract Name] Clause in General Conditions Title and subject matter Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) 1 INTERPRETATION 1.2 Definitions The Principal is: of: The Principal is: the Transport Agency, a Crown entity, established on 1 August 2008 by Section 93 of the Land Transport Management Act 2003 Click to enter street address 1.2, 10.2 Separable Portions Are there any Separable Portions in this Contract? Select yes or no If yes, the Separable Portions are as follows and as further defined in the Contract. 2 THE CONTRACT Click to enter reference 2.1 Type of Contract This Contract is a: (select one to apply, (a) or (b)) (a) Lump sum contract governed by 2.2 (b) Measure and value contract governed by Local authority contracts in public places, and road contracts Is this Contract a local authority contract to which applies Is this Contract a contract in a public place to which B1 and B2 of Appendix B apply? Is this Contract a road contract to which Appendix B applies? If yes, the allowance under B3 shall be: No Yes Yes Refer to Schedule 2 Special Conditions of Contract - Other, Clause Evidence of Contract How is the Contract Agreement executed? (a) As stated in Documents prepared by the Engineer or Principal Page 6 of 54

9 Clause in General Conditions Title and subject matter Copies of the Contract shall be supplied without charge to the Contractor in the following electronic format: Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) pdf 2.8 Documents prepared by the Contractor Copies of the documents referred to in shall be supplied without charge to the Engineer: Number of hard copy sets: Click to enter number In the following electronic form: pdf 3. BONDS 3.1 Contractor s Bond Is a Contractor s Bond required? Note - Bonds are accepted in principle from those insurance companies and bond companies who hold a minimum interactive S&P rating of A. Select yes or no If yes, the amount of the Contractor s Bond shall be: Click to enter value ($) or % Contract Price <<Guidance note: refer to section of the Transport Agency s Contract Procedures Manual (SM021) for guidance on the bonding policy>> 3.2 Principal s Bond Is a Principal s Bond required? No 5. GENERAL OBLIGATIONS 5.4 Possession of the Site The Contractor shall be given possession of the Site (select one to apply, (a) or (b)) (a) 10 Working Days after the Date of Acceptance of Tender: (b) On the following date: Limits on the Contractor s right of entry to adjoining properties are: 5.5 Separate Contractors Click to enter a date Nil or As detailed in the Specification Separate Contractors who may be carrying out work on the Site concurrently with the Contract Works are: Contract Number, Contract Name [Contractor to be named] Are facilities for Separate Contractors required? Select yes or no If yes, details of facilities required are: Click to enter text 5.6 Care of works and Site 5.6.6(g) Further risks specifically excepted are: Nil 5.10 Programme Is the programme required to be a Comprehensive Programme? <<Guidance note: default is NIL. Risk and Insurance sub-vac should be consulted if you wish to change from the default>> Yes Page 7 of 54

10 Clause in General Conditions (e) Title and subject matter If yes, other requirements for the Comprehensive Programme are: Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) Click to enter text The Comprehensive Programme shall e the following software: Updates of the Comprehensive Programme shall be provided at the following intervals: Click to enter text <<e.g. MS Project Version X>> Click to enter text <<To be determined based on the nature of the work e.g. fortnightly, monthly>> 5.11 Compliance with laws Exceptions to the Principal s obligations to obtain licences under are: Exceptions to the Contractor s obligations to give notices and obtain other licences under are: Nil <<Default is Nil unless Principal feels that the Contractor is best to obtain certain licences.>> Nil 5.17 Safety plan Is a Site-specific safety plan required to be prepared by the Contractor? Yes 5.18 Quality plan Is a quality plan required to be prepared by the Contractor? Select yes or no 5.19 Traffic management plan Is a traffic management plan required to be prepared by the Contractor? Select yes or no 5.20 As-built drawings and operation and maintenance manuals (a) (b) Are as-built drawings required to be prepared by the Contractor, as set out in the project specification? Are operation and maintenance manuals required to be prepared by the Contractor, as set out in the project specification? Select yes or no Select yes or no 6. THE ENGINEER 6.1 Appointment of the Engineer The Engineer is: Name, Company, Street Address Whose professional qualification is: Click to enter text The Principal will recover the cost for reinspection, remeasuring or retesting at the following rates: Engineer or other professional [$220.00] per hour (exclusive of GST) Other personnel [$150.00] per hour (exclusive of GST) Vehicle running [$1.00] per km (exclusive of GST) Sub-consultant invoices Cost plus [5%] 8. INSURANCES 8.1 General Page 8 of 54

11 Clause in General Conditions Title and subject matter Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) The party identified below shall arrange the following insurances referred to in the following clauses 8.3 or 8.8 Construction Select Contractor or Principal <<Guidance note: Select Principal for all contracts with a base estimate of less than $100 million (PAI) >> 8.8 Existing structure(s) and contents Select Principal if insurance is required <<Guidance note: Approval for insurance levels by risk and assurance sub-vac is required for any contract where construction work is contemplated on significant strategic parts of the Transport Agency asset, e.g., the Auckland Harbour Bridge, Newmarket Flyover, Thorndon Elevated Motorway, Christchurch Lyttleton Road Tunnel. While the Transport Agency does not insure any aspect of the roading network, bridges or tunnels, in such cases it is possible that the Transport Agency may need to insure the asset being worked on. Note that this would only apply to contracts where the structure supporting the asset was being worked upon and there might be a risk of physical collapse.>> 8.4 Plant Contractor <<Guidance note: Default is Contractor >>. 8.5 or 8.9 Public liability Select Contractor or Principal <<Guidance note: Select Principal for all contracts with a base estimate of less than $100 million (PAI) >> Motor Vehicle Contractor 8.6 Professional Indemnity Not required The following forces of nature shall be specifically insured under 8.3 or 8.8 as applicable: (a) Landslip (b) Earthquake (c) Tsunami (d) Tornado (e) Cyclone (f) Storm (g) Flood (h) Lightning strike <<Guidance note: Default is not required however if there is an element of design that the Contractor is required to do e.g. design of a retaining wall, then they should be required to insure. The value of the level of insurance is stated in below.>> <<Guidance note: Select yes on all items under if PAI is used, otherwise yes or no, as appropriate given the location of the site, for Volcanic, Hydrothermal and Geothermal Activity.>> Yes Yes Yes Yes Yes Yes Yes Yes Page 9 of 54

12 Clause in General Conditions Title and subject matter (i) Volcanic activity (j) Hydrothermal activity (k) Geothermal activity Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) Select yes or no Select yes or no Select yes or no 8.3, 8.8 Construction insurance (These items are required to be completed whether the Contractor or the Principal is the insuring party (see 8.1 above) 8.3.2, 8.8 The following shall have their respective interests noted in the construction insurance policy: <<Guidance Note: list any third parties interests that need to be a named Insured in the insurance policy>> 8.3.3, 8.8 Where construction insurance is required (see 8.1 above), the amount of insurance to be effected for the Contract Works and Materials shall be for not less than the sum of the Contract Price, after acceptance of the tender or other offer, plus the following allowances: (a) An allowance for the Cost of demolition, disposal and preparation for replacement work, equal to: (i) The amount in the right hand column: (ii) The percentage of the Contract Price adjusted as above, stated in the right hand column: (b) An allowance for professional services fees including the Cost of clerks of works and inspectors, equal to: (i) The amount in the right hand column: (ii) The percentage of the Contract Price adjusted as above, stated in the right hand column: (c) An allowance for items to be incorporated in the Contract Works, the Cost of which is not included in the Contract Price, equal to: (i) The amount in the right hand column: (ii) The percentage of the Contract Price adjusted as above, stated in the right hand column: (d) An allowance for an increase in the Contract Price due to Variations, equal to: (i) The amount in the right hand column: (ii) The percentage of the Contract Price adjusted as above, stated in the right hand column: (e) An allowance for increased construction Costs due to inflation, equal to: (i) The amount in the right hand column: (ii) The percentage of the Contract Price adjusted as above, stated in the right hand column: (Select one to apply, (i) or (ii)) [$xxxxx] [5%] (Select one to apply, (i) or (ii)) [$xxxxx] [5%] (Select one to apply, (i) or (ii)) [$xxxxx] [5%] (Select one to apply, (i) or (ii)) [$xxxxx] [5%] (Select one to apply, (i) or (ii)) [$xxxxx] The insurance shall make provision for automatic change of cover for items (a) and (e) above, to provide insurance for any additions to or deductions from the Contract Price which occur after acceptance of the tender or other offer. [5%] Page 10 of 54

13 Clause in General Conditions Title and subject matter Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) 8.4 Contractor arranged Plant insurance Where Plant is required to be insured (see 8.1 above): (a) The Contractor shall insure the following items of Plant on Site for the amounts stated: (b) The Contractor shall insure each item of Plant on the Site having a current market value of more than: (Select one to apply, (a) or (b)) [list specific items] <<Guidance note: List any items of plant of an exceptional nature and specifically critical to the timely completion of the Contract Works>> $200,000 <<Guidance note: default is $200k if required, otherwise choose Not required >> 8.5 Contractor arranged public liability insurance Where required (see 8.1 above), public liability insurance shall be effected by the Contractor for an amount not less than: [$5,000,000] Such public liability insurance may include sub limits: For liability arising out of vibration, weakening or removal of support, of not less than: For liability under the Forest and Rural Fires Act 1977, of not less than: [$250,000.00] <<Guidance note: For any contract in an urban or built up area, cover shall be increased to the full minimum limit of $5M. Ensure your sublimits match those listed within Schedule 9>> [$250,000.00] <<Guidance note: For any contract in forested area or vineyard, cover shall be increased to the full minimum limit of $5M. Ensure your sub-limits match those listed within Schedule 9>> Where required (see 8.1 above), motor vehicle third party liability insurance shall be effected for an amount not less than: [$5,000,000] 8.6 Contractor arranged professional indemnity insurance <<Guidance Note: For low risk contracts the PI level should be calculated at 5 x the design fee at a minimum amount of $500k and maximum of $2M. For high risk project specific contracts Insurance Levels must be reviewed and approved by the Risk and Insurance Sub VAC via Appendix XXIII of SM021 Manual (insurance@nzta.govt.nz). Contracts are considered high risk where: 1) the contract period is greater than 3 years, OR 2) the contract value is greater than $50M, OR 3) bridge construction or retaining walls or other structures with a cost greater than $10M OR 4) the contract involves works generally considered to be of a high risk nature e.g. particularly challenging geology, or a significant amount of work in a tidal zone.>> Where required (see 8.1 above), professional indemnity insurance for design by the Contractor shall be effected for an amount not less than: For any one claim: [$XXXXX] And for an amount in the aggregate of: [$XXXXX] Sub limits of liability for design of parts of the Contract Works by Subcontracts shall not be less than: [List specific parts] or [Not required] <<Guidance note: list specific part(s) of Page 11 of 54

14 Clause in General Conditions Title and subject matter Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) Contract Works and applicable $ sub-limits for any one claim and for an amount in the aggregate, or state if not required>> 8.8 Principal arranged construction insurance (refer also to 8.3) <<Guidance note: For use on contracts with a base estimate of less than $100 million>> In accordance with 8.7.2, the insurance policy wording title for and (a), (b), and (c) is: In accordance with 8.7.2, the extraordinary exclusions, conditions, warranties or endorsements to the policy for and (a), (b) and (c) are: The as Principal and its Contractors and their Sub Contractors for their respective rights and interests Specific policy wording applicable to this contract can be read at the following website: Where the Principal is required to effect construction insurance (see 8.1 above). The lead insurer is: Address of lead insurer: Great Lakes Corporate Branch, UK The Nominal Deductibles are: Original Estimated Contract Value >0 to 10m >10m to 20m >20m Each loss except as below: $10,000 $25,000 $50,000 Major Perils $25,000 $50,000 $100,000 Wet Work Contracts Tunnelling Contracts (including excavations / underpasses >100m) LEG 3/06 Defects Claims $300,000 $300,000 $300,000 $300,000 $300,000 $300,000 $250,000 $250,000 $500, (a) The existing structures are: N/A For this contract, the Original Estimate Contract Value is in the range Select value <<Guidance note: Consultant to ensure the above deductibles table is consistent with the Transport Agency s latest and current PAI policy wording at the time of tender close>> <<Guidance note: default position is that this is Page 12 of 54

15 Clause in General Conditions Title and subject matter 8.8.2(b) Other structures in the vicinity are: N/A 8.8.2(c) Contents insurance are: N/A 8.9 Principal s option to insure public liability Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) not relevant to Transport Agency projects. If unsure insurance@nzta.govt.nz for project specific guidance>> <<Guidance note: default position is that this is not relevant to Transport Agency projects. If unsure insurance@nzta.govt.nz for project specific guidance>> <<Guidance note: default position is that this is not relevant to Transport Agency projects. If unsure insurance@nzta.govt.nz for project specific guidance>> <Guidance note: For use on contracts with a base estimate of less than $100 million (PAI)>> Where required (see 8.1 above), the Principal shall effect public liability insurance for an amount not less than: The lead insurer is: Address of lead insurer: Select an option Vero Liability New Zealand Ltd / Lloyd s of London <<Guidance note: leave this blank>> The Nominal Deductibles are: Original Estimated Contract Value >0 to 5m >5m to 10m >10m Each occurrence (including Maintenance Contracts) $10,000* $20,000* $25,000* *Including costs and expenses For this contract, the Original Estimate Contract Value is in the range Select value In accordance with 8.7.2: <<Guidance note: Consultant to ensure the above deductibles table is consistent with the Transport Agency s latest and current PAI policy wording at the time of tender close>> The policy wording title is: Specific policy wording applicable to this contract can be read at the following website: Extraordinary exclusions, conditions, warranties, or endorsements to the policy are: Specific policy wording applicable to this contract can be read at the following website: Page 13 of 54

16 Clause in General Conditions Title and subject matter Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) Such public liability insurance may include sub-limits for: (specify as applicable or state not applicable ) Liability arising out of vibration, weakening or removal of support $250,000 <<Guidance note: For any contract in an urban or built up area, cover shall be increased to the full minimum limit of $5M. Ensure your sublimits match those listed within Schedule 9>> Liability under the Forest and Rural Fires Act 1977: $250, VARIATIONS <<Guidance note: For any contract in forested area or vineyard, cover shall be increased to the full minimum limit of $5M. Ensure your sub-limits match those listed within Schedule 9>> <<Guidance note: this should be consistent with the approach selected under the IFT (Schedule of Conditions of Tendering 105.3(e))>> 9.3 Valuation of Variations For On-site Overheads: (select one to apply, (a) or (b)) (a) The prices and rates in the Schedule of Prices are inclusive of full allowance for On-site Overheads; (b) The prices and rates in the Schedule of Prices are (select one to apply, (i), (ii), (iii), or (iv)) exclusive of On-site Overheads and the allowances for On-site Overheads to be added in accordance with is: (i) Agreed percentage: [XX%] (ii) As nominated in the Schedule of Prices. (iii) As nominated in the Contractor s tender. (iv) A reasonable percentage. <<Guidance note: This is the preferred default, although (iii) may be adopted with the Transport Agency s Project Manager s approval>> For Off-site Overheads and Profit: (select one to apply, (a) or (b)) (a) The price and rates in the Schedule of Prices are inclusive of full allowance for Off-site Overheads and Profit; (b) The prices and rates in the Schedule of Prices are (select one to apply, (i), (ii), (iii), or (iv)) exclusive of Off-site Overheads and the allowances for Off-site Overheads and Profit to be added in accordance with is: (i) Agreed percentage: [XX%] (ii) As nominated in the Schedule of Prices. (iii) As nominated in the Contractor s tender. (iv) A reasonable percentage. <<Guidance note: This is the preferred default, although (iii) may be adopted with the Transport Agency s Project Manager s approval>> Page 14 of 54

17 Clause in General Conditions Title and subject matter Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) For time related Cost, the Working Day rate in compensation for time-related On-site Overheads and Off-site Overheads and Profit in relation to an extension of time to be applied in accordance with is: (a) Agreed percentage: (b) As nominated in the Schedule of Prices. (select one to apply, (a), (b), (c,) or (d)) [XX%] (c) As nominated in the Contractor s tender. (d) Reasonable compensation For processing of Variations, the percentage to be paid in accordance with is: (a) Agreed percentage: (b) As nominated in the Schedule of Prices. <<Guidance note: This is the preferred default, although (c) may be adopted with the Transport Agency s Project Manager s approval>> (select one to apply, (a), (b), (c,) or (d)) [XX%] (c) As nominated in the Contractor s tender. (d) A reasonable Cost of processing the Variations. <<Guidance note: This is the preferred default, although (c) may be adopted with the Transport Agency s Project Manager s approval>> 10. TIME FOR COMPLETION 10.2 Due Date for Completion The periods to be used for calculating the Due Date for Completion are: (a) For the Contract Works: (b) For any Separable Portions: (c) In respect of the Contract Works the Number of Weeks nominated by the Contractor in their Tender Submission (select one to apply, (a), (b)or (c)) Click to enter number of Working Days (Working Days) Click to enter number of Working Days (Working Days) Click to enter details Nil <<Guidance note: Only used where the tenderer nominated duration process is used in the IFT>> 10.4 Practical Completion Certificate Prior to issue of the Practical Completion Certificate: (select one to apply, (a), (b) or (c)) (a) Producer Statements in the form of Schedule 6 are required; (b) Producer Statements as set out in the following parts of the Contract are required: (c) Producer Statements are not required. <<Default>> [Project Specification Section X] 10.5 Damages for late completion <<Guidance note: Where liquidated damages are provided for, the amount must be a genuine pre- Page 15 of 54

18 Clause in General Conditions Title and subject matter Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) estimate of the likely loss that would result from delay of completion. Where liquidated damages are provided for Separable Portions it may be necessary to provide different rates for each Separable Portion. Where liquidated damages are not provided, the Principal can recover and the Contractor will be liable only for such actual loss as the Principal can prove has resulted from the late completion, being loss of a kind reasonably foreseeable to the parties at the time the contract was made as being likely to result Liquidated damages shall be applied as follows: In respect of the Contract Works: In respect of the Separable Portions: 10.6 Bonus for early completion Is a bonus to be payable? Yes or no [$XXX] per Working Day [$XXX] per Working Day for each Separable Portion If yes, the bonus for the Contract Works is: [$XXXX] per Working Day If yes, bonuses for any Separable Portions are: [$XXXX] per Working Day 11. DEFECTS LIABILITY 11.1 Defects Notification Period The Defects Notification Period shall be: (3 Months unless otherwise stated) In respect of the Contract Works: [52] weeks In respect of the Separable Portions: [52] weeks 11.3 Final Completion Certificate Prior to issue of the Final Completion Certificate: (select one to apply, (a), (b) or (c)) (a) Producer Statements in the form of Schedule 6 are required; (b) Producer Statements as set out in the following parts of the Contract are required: (c) Producer Statements are not required. <<Default>> [Project Specification Section X] 11.5 Warranties (select one to apply, (a) or (b)) (a) No warranties are required; (b) The Contractor shall provide warranties as set out in the Contract for the following items of work: <<Default>> [State the items] 11.6 Guarantees , (select one to apply, (a) or (b)) (a) No guarantees are required; (b) The Contractor shall provide guarantees in the following form: <<Default>> [State form] 12. PAYMENTS Page 16 of 54

19 Clause in General Conditions Title and subject matter Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) 12.1 Contractor s payment claims (b) (iii) Advances for Materials delivered to the Site (select one to apply, (a) or (b)) (a) Advances for Materials delivered to the Site but which have yet to be incorporated in the Contract Works shall not be made; (b) Advances for Materials delivered to the Site but which have yet to be incorporated in the Contract Works shall be made, subject to the following conditions: <<Guidance note: This is the default. The Transport Agency s Project Manager s approval is required if option (b) below is selected>> [state any conditions] (b) (iv) Advances for Temporary Works or Plant (select one to apply, (a) or (b)) (a) Advances for Temporary Works or Plant shall not be made. (b) Advances for Temporary Works or Plant shall be made, subject to the following conditions: [state any conditions] (b) (iv) Advances for Materials not yet on Site (select one to apply, (a) or (b)) (a) Advances for Materials not yet on Site shall not be made. (b) Advances for Materials not yet on Site shall be made, subject to the following conditions: <<Guidance note: This is the default. The Transport Agency s Project Manager s approval is required if option (b) below is selected>> (a) The Contractor agrees to execute an Agreement in respect of off-site materials in the form as set out in the Fourteenth Schedule of these. (b) The Contractor shall ensure that at all times the Materials are fully insured in accordance with the provisions of section 8. of the General Conditions of Contract (as appropriate), and supply evidence of same to the Principal. (c) The Contractor shall keep the Principal indemnified against loss, damage costs, claims, expenses or liability incurred by the Principal in respect to any loss of, or damage to, or defect in all or part of the Materials to the extent that the Principal is not so indemnified under section 7 of the General (d) The Contractor undertakes to keep the stored materials in good order, maintenance and condition. The Contractor warrants that in relation to such Materials, those Materials when incorporated into the Contract Works will be fit for their purpose as required under the Contract Document. The Engineer shall be given reasonable access to inspect the relevant Materials. (e) Following payment to the Contractor ownership of the Materials shall vest in the Principal as legal and beneficial owner free of all charges and encumbrances of any nature Page 17 of 54

20 Clause in General Conditions Title and subject matter 12.3 Retention monies , The percentage to be retained from each progress payment and the limit of the total sums retained shall be in accordance with the following: (a) For the Contract Works, a total retention of: 10% on the first $200,000, and 5% on the next $800,000, and 1.75% on amounts in excess of $1,000,000, and With a maximum total retention when aggregated of $200,000, and With a defects liability retention of half the total retention. (b) For the Contract Works, the retention scale in the right hand column: Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) whatsoever. The Contractor shall ensure that all secured creditors of the Contractor are given written notice of the existence of the Principal s ownership of the Materials and of the conditions of the relevant advance. Should any portion of the Materials no longer be required for the Contract Works, the Contractor shall be responsible for all costs of storage, handling and disposal of the surplus Materials. The Contractor shall only dispose of such surplus Materials following a written instruction from the Engineer. Ownership of such surplus Materials shall re-vest in the Contractor as the Contractor disposes of such surplus Materials. The Principal shall recover the value of disposed material from subsequent progress payments, at the same rates as paid to the Contractor for the Materials stored off site. (f) The advance payment for the Materials, shall be recovered progressively by deduction from progress payments as such Materials are incorporated into the Contract Works (select one to apply, (a) or (b), and (c)) <<Default >> A total retention of: [XX%] on the first [$xxx,xxx], plus [x%] of the next [$xxx,xxx], plus [x%] on amounts in excess of [$xxx,xxx], and With a maximum total retention of [$xxx,xxx] when aggregated, and With a defects liability retention of 50 % of total retention <<Guidance note: for large construction contracts over $20Million, the capped retention limit needs to be approved via the Risk and Page 18 of 54

21 Clause in General Conditions Title and subject matter (c) For Key Personnel Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) Insurance Sub VAC>> Refer to Schedule 2 Special Conditions of Contract - Other, Clause 5.22 The amount to be retained in respect of the Contract Works in accordance with this clause shall not be reduced, until all Asset Register (RAMM) information, all as-built drawings and all operations and maintenance manuals required to be submitted at or before Practical Completion, have been submitted to the Engineer. The retention monies shall not be reduced, until all RAMM information, all as-built drawings and all operations and maintenance manuals required to be submitted at or before the end of the Defects Notification Period have been submitted to the Engineer <<Guidance Note: Project Specification to detail all RAMM information required from the Contractor for RAMM updates.>> Bond in lieu of retention (select one to apply, (a) or (b)) (a) The Contractor may provide a bond in lieu of retentions. The percentage to be retained from each progress payment and the limit of the total sums retained shall be nil if the Contractor provides a Bond in Lieu of Retentions (Schedule 5). The value of the bond shall be the applicable retention amount plus a further 10% (b) The Contractor may not provide a bond in lieu of retentions 12.8 Cost fluctuations (select one to apply, (a), (b) or (c)) (a) Cost fluctuations shall not be paid; (b) Cost fluctuations shall be paid in accordance with Appendix A; (c) Cost fluctuations shall be paid in accordance with the method described in Schedule 17 <<Guidance note: choose this option when contract period exceeds 52 weeks>> Goods and services tax Payment Schedules provided by the Engineer: (select one to apply, (a) or (b)) (a) Shall not be in the form of a tax invoice; (b) Shall be in the form of a buyer created tax invoice and the parties agree not to issue any other tax invoice for items covered by the Payment Schedule. 13. DISPUTES 13.4 Arbitration If required, the arbitrator shall be nominated by the following Person: [Name, Position] <<Guidance noted: default is Engineer to the Contract>> 15. SERVICE OF NOTICES For the purposes of service of written notice: (a) The address of the Principal is: Postal address: Page 19 of 54

22 Clause in General Conditions Title and subject matter Delivery address: Mark the attention of: address: Other agreed means of electronic communication and address detail: (b) The address of the Contractor is: Postal address: Delivery address: Mark the attention of: address: Other agreed means of electronic communication and address detail: (c) The address of the Engineer is: Postal address: Delivery address: Mark the attention of: address: Other agreed means of electronic communication and address detail: Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) Page 20 of 54

23 Schedule 2 Special Other These conditions amend and supplement the General Conditions. Clause numbers refer to NZS 3910:2013. Section 1 INTERPRETATION In addition to 1.2 Definitions, add in the following definitions: KEY PERSONNEL means the Contractor s personnel nominated for the positions under the relevant skills Form C in the Contractor s Tender and any other persons identified by the Principal as key personnel with the Contractor s prior approval. UNDERGROUND SERVICES means existing pipework, cables, conduits, conveying services such as electricity, gas, water, waste and electronic communications, located below the existing ground. WINTER PERIOD means the period [31 May] through [31 August] inclusive. <<Guidance Note: the Consultant shall consider the appropriate Winter Period for sealing exclusion, noting that this will vary with the location of the works. If uncertain the consultant shall consult with the Transport Agency s National Pavement Manager.>> Section 5 GENERAL OBLIGATIONS A new clause is added as follows: During the term of the contract the Contractor must advise the Engineer to the Contract of any potential or actual conflicts of interest with any individual or organisation engaged to complete any of the contract works. This includes individuals and organisation s engaged in any subcontractor or other supply arrangement. The Contractor must advise the Engineer to the Contract the means that they intend to use to remove or mitigate such conflicts of interest. The Engineer must inform the Principal of any conflicts of interest notified to the Engineer by the Contractor in accordance with this clause, and the Engineer will, in discussion with the Principal and taking into account (but not bound by) the Contractor s intended action, decide the appropriate action required to remove or mitigate any actual or potential conflict of interest. The Engineer must ensure the Contractor implements such required action. A new clause 5.22 Key Personnel is added as follows: The Contractor must use all reasonable endeavours to: a) Supply and retain the Key Personnel and not remove the Key Personnel from their position without the prior written approval of the Principal or Project Management Board. b) Replace any of the Key Personnel if they are unable to undertake work due to termination of employment, resignation, illness, disability or death or other circumstances reasonably beyond the control of the Contractor. The parties acknowledge that the Contractor s primary focus is to ensure the continuity and quality of the performance of its obligations. Consequently, the Contractor must: (i) Promptly advise the Principal or Project Management Board if it is necessary to replace Key Personnel; and (ii) Provide a suitable replacement or substitute during the period of unavailability that has at least the same or better status, skills, qualifications, expertise and experience as the Key Personnel to be replaced; and Page 21 of 54

24 (iii) Consult with the Principal or Project Management Board in relation to any proposed replacement; and (iv) If requested by the Principal or Project Management Board, provide details of the proposed replacement to the Principal or Project Management Board. c) Ensure that each of the Key Personnel is available at the times set out in the Contractor s Tender or as otherwise required to ensure the completion of such portion of the services as are assigned to them If any Key Personnel are not available to perform the role and responsibilities required of that Key Personnel because of an act or omission of the Contractor, and the Contractor does not within a period acceptable to the Principal and Project Management Board replace the relevant Key Personnel with a person of equivalent skills and experience, the Principal reserves the right to withhold [20%] of the value of the next contract progress payment due until such time as a suitable replacement has been made and notified to the Principal and Project Management Board. The monies retained, shall be paid to the Contractor by payment as part of the progress payment due after the replacement has been made. Section 8 INSURANCES A new clause is added as follows: Responsibility for pursing any claim under any insurance policy shall rest with the party bearing the deductible or excess. Where the Contractor is pursuing a claim, the Contractor is required to advise the Engineer of the outcome of the claim and provide the Engineer with information in relation to the claim on request. A new clause (c) is added as follows: (c) The actions of one insured shall not affect the rights of any other insured. A new clause (d) is added as follows: (d) Public Liability Insurance shall include liability arising out of damage to Underground Services and will be for a sub limit amount not less than $250, <<Guidance note: For any contract where works are taken out above Underground Services of significant economic importance cover shall be increased to the full minimum limit of $5M. Ensure your sub-limits match those listed within Schedule 9.>> Section 10 TIME FOR COMPLETION New clause is added as follows: No sealing operations shall take place over the Winter Period without the prior written approval of the Engineer. Clause (b) is deleted and replaced with the following: <<Guidance Note: the Consultant is reminded of the importance of specifying an accurate allowance for wet weather. This should be done on the basis of a robust assessment of the period to be allowed by the contractor, based on historical wet weather records appropriate to the area and to the site. The Consultant should be aware of the different risk allocations associated with the options and select the one option appropriate to the project.>> (b) Allowance for inclement weather [consultant to nominate] Working Days in the [consultant to nominate duration] -month contract period. << Guidance note: to be used where practical to use an independent station>> Page 22 of 54

25 This allowance is based on automatic weather station [identify weather station reference (eg NIWA NRC Station No. A547338) and physical location], records from [date] to [date]: The Wet days are determined from the average over the [XX] year record; A Wet day is defined as a day in which the rainfall is [5] mm or greater. Any of the two (2) immediately following days on which rainfall is [1] mm or greater shall also qualify as Wet days. Wet Working Day is defined as a Wet Day occurring on a Working Day All rainfall shall be measured at the [Identify rainfall station] above; An extension of time for inclement weather will be granted when the total number of Wet Working days is greater than the allowance in the contract. The Contractor shall provide copies of the rainfall records in support of their Wet days claim at their own expense. No extension of time will be granted for Wet days lost due to inclement weather in the period [Date] to [Date] for earthworks operations, or [Date] to [Date] for surfacing works. Other activities such as bridge construction may be granted extension of time for Wet days if the affected work item is on the critical path. <<OR>> (b) Allowance for inclement weather [consultant to nominate] Working Days in the [consultant to nominate duration] -month contract period. << Guidance note: to be used where impractical to use an independent station due to location or cost>> This allowance is based on the average number of working days that can be worked on site in conventional earthworks operations from [Date] to [Date], and surfacing works from [Date] to [Date]. A Wet day is defined as a day in which the rainfall is [5] mm or greater. Any of the two (2) immediately following days on which rainfall is [1] mm or greater shall also qualify as Wet days. Wet Working Day is defined as a Wet Day occurring on a Working Day The rain gauge will be located [location], and constructed in accordance with New Zealand meteorological standards Measurement of daily rainfall will be carried out by the [Contractor/Consultant]. Rainfall data will be reported to the [Contractor/Consultant] on a weekly basis. A Wet day must be claimed in writing by the contractor within two (2) days of the date of occurrence this will be verified by the Engineer within two (2) days of being notified by the Contractor. The Engineer will calculate the number of Wet days. An extension of time for inclement weather will be granted when the total number of Wet Working days is greater than the allowance in the contract. No extension of time will be granted for Wet days lost due to inclement weather in the period [Date] to [Date] for earthworks operations, or [Date] to [Date] for surfacing works. Other activities such as bridge construction may be granted extension of time for Wet days if the affected work item is on the critical path. <<OR>> (b) Full allowance for inclement weather shall be included in the Number of Weeks nominated by the Contractor in their Tender Submission In respect of the Contract Works << Guidance note: to be used where contractor nominates project duration>> Page 23 of 54

26 No time extension, without exception, shall be granted for inclement weather. The contract period nominated by the Contractor in his tender shall be set to make full allowance for any and all possible delays due to weather sufficiently inclement to interfere with the progress of the Contract Work. <<OR>> (b) Allowance for inclement weather [consultant to nominate] Working Days in the [consultant to nominate duration] -month contract period. <<Guidance note: only to be used where impractical to use a weather station due to location or cost>> Extensions of time granted shall be based on the actual number of inclement weather days which work on the critical path items is not possible. The contractor shall provide evidence, including copies of rainfall records where applicable, in support of the inclement weather days claimed at his own expense, A Wet day must be claimed in writing by the contractor within two (2) days of the date of occurrence this will be verified by the Engineer within two (2) days of being notified by the Contractor. The Engineer will calculate the number of Wet days. An extension of time for inclement weather will be granted when the total number of Wet Working days is greater than the allowance in the contract. No extension of time will be granted for Wet days lost due to inclement weather in the period [Date] to [Date] for earthworks operations, or [Date] to [Date] for surfacing works. Other activities such as bridge construction may be granted extension of time for Wet days if the affected work item is on the critical path. <<Guidance note: delete the above clauses which are not applicable>> New clause is added as follows: Where an extension of time granted by the Engineer necessitates sealing activities to be programmed in the Winter Period, the Engineer may instruct that the Contract be suspended to avoid the completion of sealing works in the Winter Period. In such a case the Contractor shall be entitled to only the direct and on-site overhead costs to maintain the site over the period of suspension. The Engineer may require that the Contractor apply a temporary holding seal or any other works required to maintain the site to an acceptable standard. No off-site overheads or profits shall be payable over this period regardless of the reason for the extension of time. New clause is added as follows: Where no extension of time is granted, the Contractor is responsible for applying a temporary holding seal or to complete any other works that may be necessary to maintain the site over the Winter Period, at no additional cost to the contract. Section 11 DEFECTS LIABILITY Clause is deleted and replaced with the following: The Principal shall be entitled to recover the Cost of the work undertaken by others in from the Contractor, including all costs and expenses of assessment and supervision whether by the Engineer or otherwise, and a reasonable allowance for associated administrative and professional costs and expenses. As soon as practicable after the completion of the work the Engineer shall notify the Contractor of the work undertaken and its Cost. A new clause is added as follows: Page 24 of 54

27 An additional defects notification period equivalent in length to the original defects notification period shall apply to all works required to be remedied as a defect or required as a consequence of the remedy of a defect, unless the Engineer agrees otherwise in writing. Page 25 of 54