[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 ([email protected]). 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 [email protected] for project specific guidance>> <<Guidance note: default position is that this is not relevant to Transport Agency projects. If unsure [email protected] for project specific guidance>> <<Guidance note: default position is that this is not relevant to Transport Agency projects. If unsure [email protected] 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

28

29 Schedule 3 Form of Contractor s performance bond CONTRACT FOR THIS DEED is made on BY of ( the Contractor ) AND of ( the surety ) (Address of surety for service) IT IS MADE IN THE FOLLOWING CIRCUMSTANCES: A The Contractor has entered into an agreement with... B C of... ( the Principal ) to carry out and fulfil the obligations imposed on the Contractor ( the Contract ). The Contract requires the Contractor to provide the Principal with security in the form of a bond to ensure performance of the Contractor s obligations under the Contract. Words and phrases with capital initial letters that are not otherwise defined in this bond shall have the meaning set out in the Contract. BY THIS DEED: 1. THE Contractor and surety are jointly and severally held and bound to the Principal in the sum of $NZ... and bind themselves, their successors and assigns jointly and severally for the payment of that sum. 2. THE conditions of this bond are that it shall be released if and when: (a) (b) (c) A Practical Completion Certificate has been issued for the Contract Works in accordance with 10.4 of the General Conditions; The surety receives a notice from the Principal releasing the Contractor and surety from this bond; or The surety receives a notice from the Principal confirming that a replacement Contractor s Bond has been received and accepted and releasing the Contactor and surety from this bond. 3. EXCEPT as provided in clause 2 above this bond shall be and remain in full force and effect. 4. THE surety shall not be released from any liability under this bond: (a) By any alteration in the terms of the Contract; Page 27 of 54

30 (b) (c) (d) By any alteration in the extent or nature of the Contract Works to be completed, delivered, and having defects remedied; By any allowance of time by the Principal or by the Engineer appointed by the Principal under the Contract; or By any forbearance or waiver by the Principal or by the Engineer in respect of any of the Contractor s obligations or in respect of any default on the part of the Contractor. 5. THIS bond shall be governed by New Zealand law. In witness of which this deed has been executed. SIGNED on behalf of the surety by: Director Director SIGNED on behalf of the Contractor by: Director Director NOTE This bond shall be executed by the Contractor and by the surety in the manner required for execution of a deed. Any of these parties which are a company shall execute the bond by having it signed, under the name of the company, by two or more directors. If there is only one director, it is sufficient if the bond is signed under the name of the company by that director, but the signature shall be witnessed by another person. The witness shall not only sign, but shall also add his or her occupation and address. Alternatively, companies may execute under the power of attorney. Any party which is a body corporate (other than a company) shall execute in the same manner as a company by persons in a comparable position to a company director or otherwise in accordance with section 9 of the Property Law Act In the case of a party who is an individual, the party shall sign and the signature shall be witnessed by another person. The witness shall not only sign but must also add his or her occupation and address. Page 28 of 54

31 Schedule 4 Form of Principal s bond CONTRACT FOR This Section Not Used Page 29 of 54

32 Schedule 5 Form of Contractor s bond in lieu of retentions CONTRACT FOR THIS DEED is made on BY of ( the Contractor ) AND of ( the surety ) (Address of surety for service) IT IS MADE IN THE FOLLOWING CIRCUMSTANCES: A The Contractor has entered into an agreement with... B C of... ( the Principal ) to carry out and fulfil the obligations imposed on the Contractor ( the Contract ). The Contractor has agreed to provide the Principal with security in the form of a bond in lieu of retentions additional to any other bond required under the Contract. Words and phrases with capital initial letters that are not otherwise defined in this bond shall have the meaning set out in the Contract. BY THIS DEED: 1. THE Contractor and surety are jointly and severally held and bound to the Principal in the sum of $NZ... and bind themselves, their successors and assigns jointly and severally for the payment of that sum. 2. THE conditions of this bond are that it shall be released if and when: (a) (b) The Final Completion Certificate has been issued for the Contract Works in accordance with 11.3 of the General Conditions; or The surety receives a notice from the Principal releasing the Contractor and surety from this bond. 3. EXCEPT as provided in clause 2 above this bond shall be and remain in full force and effect. 4. THE surety shall not be released from any liability under this bond: (a) (b) By any alteration in the terms of the Contract; By any alteration in the extent or nature of the Contract Works to be completed, delivered, and having defects remedied; Page 30 of 54

33 (c) (d) By any allowance of time by the Principal or by the Engineer appointed by the Principal under the Contract; or By any forbearance or waiver by the Principal or by the Engineer in respect of any of the Contractor s obligations or in respect of any default on the part of the Contractor. 5. THIS bond shall be governed by New Zealand law. In witness of which this deed has been executed. SIGNED on behalf of the surety by: Director Director SIGNED on behalf of the Contractor by: Director Director NOTE This bond shall be executed by the Contractor and by the surety in the manner required for execution of a deed. Any of these parties which are a company shall execute the bond by having it signed, under the name of the company, by two or more directors. If there is only one director, it is sufficient if the bond is signed under the name of the company by that director, but the signature shall be witnessed by another person. The witness shall not only sign, but shall also add his or her occupation and address. Alternatively, companies may execute under the power of attorney. Any party which is a body corporate (other than a company) shall execute in the same manner as a company by persons in a comparable position to a company director or otherwise in accordance with section 9 of the Property Law Act In the case of a party who is an individual, the party shall sign and the signature shall be witnessed by another person. The witness shall not only sign but must also add his or her occupation and address. Page 31 of 54

34 Schedule 6 Form of Producer Statement - Construction ISSUED BY (Contractor) TO The (Principal) IN RESPECT OF (Description of Contract Works) AT (Address) has contracted to the (Contractor) (Principal) to carry out and complete certain building works in accordance with a Contract titled ( the Contract ) (Project) I A duly authorised representative of believe on reasonable grounds that (Duly Authorised Agent) (Contractor) (Contractor) has carried out and completed: All Part only as specified in the attached particular of the contract works in accordance with the Contract (Signature of Authorised Agent on behalf of) Date (Contractor) (Address) Page 32 of 54

35 Schedule 7 Information on Contractor arranged construction insurance <<Guidance note: For contracts where PAI is used, delete the following schedule and replace with the words This Section Not Used>> To whom it may concern: From (Name of Insurance Company) (Branch) (Address) We confirm having effected construction insurance for: The (The Contractor) (The Principal) In respect of [Contract Number, Contract Name] (Project Title) Policy wording title is The following provisions apply: Project specific policy Annual run-off policy Annual cut-off policy We advise that special terms, copy attached, have been applied to this policy Yes/No The following forces of nature are insured: landslip earthquake tsunami tornado cyclone storm flood lightning strike volcanic activity hydrothermal activity geothermal activity The sums insured are (GST exclusive): Contract Price $ (a) Costs of demolition $ (b) Professional fees $ (c) Value of items to be incorporated $ (d) An allowance for an increase in construction costs $ (e) An allowance for increased reconstruction costs $ TOTAL SUM INSURED $ Page 33 of 54

36 The policy deductibles are (GST inclusive) Non-earthquake $ Natural disaster % of minimum of $ Other (name) $ 8.2.3(a) Construction period from to Insurance maintenance period Policy expiry date Policy cover terms included are: Discretionary cancellation clause Yes/No Reinstatement provision on building and contents Yes/No Severally insured Yes/No No Settlement delay due to exercise of subrogation Yes/No Void ab initio for non-payment of premium with prior notification Yes/No Policy extensions included are: Transit (in New Zealand) Yes/No $ Materials in storage (in New Zealand) Yes/No $ Testing and commissioning Yes/No $ Expediting expenses Yes/No $ Overseas airfreight Yes/No $ Sub limit (if applicable) We undertake that this policy will not be cancelled or amended by us within the period of insurance without written advice to the insured party which has arranged the insurances. The insurance issued is subject to the terms and conditions of the policy. We do not warrant that this policy complies with the requirements of NZS 3910:2013. Insurance Company Stamp (Or name of insurance broking company confirming cover) Date SIGNED BY SIGNATORY TITLE (Clause numbers refer to NZS 3910:2013 and are for information only) Page 34 of 54

37 Schedule 8 Information on Contractor arranged Plant insurance To whom it may concern: From (Name of Insurance Company) (Branch) (Address) We confirm having effected Plant insurance for: (The Contractor) In respect of [Contract Number, Contract Name] (Project Title) Policy wording title is We advise that special terms, copy attached, have been applied to this policy Yes/No The following provisions apply: Annual policy Project specific policy Policy expiry date 8.4 The insured are (GST exclusive): All items of Plant Sum insured $ OR Valued schedule of construction Plant insured (copy attached) The policy deductible (GST inclusive) is: $ Policy cover terms included are: Discretionary cancellation clause Yes/No 8.2.3(a) Reinstatement provision Yes/No Void ab initio for non-payment of premium without prior notification Yes/No No settlement delay due to exercise of subrogation Yes/No We undertake that this policy will not be cancelled or amended by us within the period of insurance without written advice to the insured party which has arranged the insurances. The insurance issued is subject to the terms and conditions of the policy. We do not warrant that this policy complies with the requirements of NZS 3910:2013. Page 35 of 54

38 Insurance Company Stamp (Or name of insurance broking company confirming cover) Date SIGNED BY SIGNATORY TITLE (Clause numbers refer to NZS 3910:2013 and are for information only) Page 36 of 54

39 Schedule 9 Information on public liability insurance <<Guidance note: For contracts where PAI is used, delete the following schedule and replace with Schedule 9 as downloaded from the Marsh insurance portal To whom it may concern: From (Name of Insurance Company) (Branch) (Address) We confirm having effected public liability insurance to indemnify the Principal and the Contractor against legal liability to third parties for damage, loss or injury caused by an act or omission of the Contractor arising out of the performance of the Contract Works. (The Contractor) (The Principal) In respect of [Contract Number, Contract Name] (Project Title) Policy wording title is We advise that special terms, copy attached, have been applied to this policy Yes/No The following provisions apply: Annual policy Project specific policy Policy expiry date 8.5, 8.9 The insured are (GST exclusive): The limit of indemnity (GST exclusive) $ Sub-limit insured for (GST exclusive) Vibration, removal, or weakening of support $ Forest and Rural Fires Act 1977 $ Underground services $ Deductible (GST inclusive) is $ Deductible for vibration, removal, or weakening of support (GST inclusive $ Deductible for underground services (GST inclusive) $ The policy also covers liability arising out of: The ownership/use of Plant not required to be registered for road use The use of hired Plant The ownership/use of watercraft over 8m Yes/No Yes/No Yes/No Page 37 of 54

40 The ownership/use of aircraft The use of explosives Yes/No Yes/No 8.2, 8.7 Policy cover terms included are: Reinstatement provision Yes/No Number of reinstatements Discretionary cancellation clause Void ab initio for non-payment of premium without prior notification Severally insured No settlement delay due to exercise of subrogation Yes/No Yes/No Yes/No Yes/No We undertake that this policy will not be cancelled or amended by us without written advice to the insured party which has arranged the insurances. The insurance issued is subject to the terms and conditions of the policy. We do not warrant that this policy complies with the requirements of NZS 3910:2013. Insurance Company Stamp (Or name of insurance broking company confirming cover) Date SIGNED BY SIGNATORY TITLE (Clause numbers refer to NZS 3910:2013 and are for information only) Page 38 of 54

41 Schedule 10 Information on Contractor arranged motor vehicle insurance To whom it may concern: From (Name of Insurance Company) (Branch) (Address) We confirm having effected motor fleet insurance for. (The Contractor) In respect of [Contract Number, Contract Name] (Project Title) Policy wording title is We advise that special terms, copy attached, have been applied to this policy Yes/No The following provisions apply: Annual policy Project specific policy Policy expiry date The limits of liability are (GST exclusive): Section 2 - Liability For any one occurrence arising out of the same event $ The policy deductibles are: Section 2 Liability (GST inclusive) $ Plus under age penalties 8.2 Policy cover terms included are: Section 2 Liability automatic reinstatement Discretionary cancellation clause Void ab initio for non-payment of premium without prior notification No settlement delay due to exercise of subrogation Yes/No Yes/No Yes/No Yes/No We undertake that this policy will not be cancelled or amended by us within the period of insurance without written advice to the insured party which has arranged the insurances. The insurance issued is subject to the terms and conditions of the policy. We do not warrant that this policy complies with the requirements of NZS 3910:2013. Page 39 of 54

42 Insurance Company Stamp (Or name of insurance broking company confirming cover) Date SIGNED BY SIGNATORY TITLE (Clause numbers refer to NZS 3910:2013 and are for information only) Page 40 of 54

43 Schedule 11 Information on Contractor arranged professional indemnity insurance To whom it may concern: From (Name of Insurance Company) (Branch) (Address) We confirm having effected professional indemnity insurance for. (The Contractor) In respect of [Contract Number, Contract Name] (Project Title) Policy wording title is We advise that special terms, copy attached, have been applied to this policy Yes/No The following provisions apply: Annual policy Project specific policy Policy expiry date The limits of liability are (GST exclusive): $ any one occurrence $ in the aggregate during the period of insurance Deductible (GST inclusive) $ We undertake that this policy will not be cancelled or amended by us within the period of insurance without written advice to the insured party which has arranged the insurances. The insurance issued is subject to the terms and conditions of the policy. We do not warrant that this policy complies with the requirements of NZS 3910:2013. Insurance Company Stamp (Or name of insurance broking company confirming cover) Date SIGNED BY SIGNATORY TITLE (Clause numbers refer to NZS 3910:2013 and are for information only) Page 41 of 54

44 Schedule 12 Information on Principal arranged construction insurance <<Guidance note: For contracts where PAI is used, delete the following schedule and replace with Schedule 12 as downloaded from the Marsh insurance portal For contracts where PAI is not used, delete the following schedule and insert the words This Section Not Used>> To whom it may concern: From (Name of Insurance Company) (Branch) (Address) We confirm having effected insurance for: The (The Principal) (Covering property at) (Class of insurance) In respect of [Contract Number, Contract Name] (Project Title) Policy wording title is We advise that special terms, copy attached, have been applied to this policy The following provisions apply: Material damage/construction project specific policy Yes/No Annual run-off policy Annual cut-off policy The following forces of nature are insured: landslip earthquake tsunami tornado cyclone storm flood lightning strike volcanic activity hydrothermal activity geothermal activity Construction period from to Insurance maintenance period This policy has been endorsed to record as an additional insured: The Contractor Subcontractors Yes/No Yes/No The sums insured are (GST exclusive): Page 42 of 54

45 8.8.2(a) Existing structure $ 8.8.2(b) Other structures in the vicinity $ 8.8.2(c) Contents $ Contract Prices $ 8.8.3(a) Costs of demolition $ 8.8.3(b) Professional fees $ 8.8.3(c) Value of items to be incorporated $ 8.8.3(d) An allowance for an increase in construction costs $ 8.8.3(e) An allowance for increased reconstruction costs The policy deductibles are (GST inclusive): TOTAL SUM INSURED $ Non-earthquake $ Natural disaster % of minimum of $ Other (name) $ Where more than one policy is involved in insuring all of the above items a separate Schedule 12 shall be completed for each policy. Policy cover terms included are: Discretionary cancellation clause Yes/No Reinstatement provision on building and contents Yes/No Severally insured Yes/No No Settlement delay due to exercise of subrogation Yes/No Void ab initio for non-payment of premium with prior notification Yes/No Covers damage arising out of the Contract Works Yes/No Policy extensions included are: Transit (in New Zealand) Yes/No $ Materials in storage (in New Zealand) Yes/No $ Testing and commissioning Yes/No $ Expediting expenses Yes/No $ Overseas airfreight Yes/No $ Partial occupation Yes/No $ Sub limit (if applicable) We undertake that this policy will not be cancelled or amended by us within the period of insurance without written advice to the insured party which has arranged the insurances. The insurance issued is subject to the terms and conditions of the policy. We do not warrant that this policy complies with the requirements of NZS 3910:2013. Page 43 of 54

46 Insurance Company Stamp (Or name of insurance broking company confirming cover) Date SIGNED BY SIGNATORY TITLE (Clause numbers refer to NZS 3910:2013 and are for information only) Page 44 of 54

47 Schedule 13 Form of Contract (or Subcontractor) warranty This Section Not Used Page 45 of 54

48 Schedule 14 Agreement for off-site Materials <<Guidance note: Only use this section where (b)(iv) has been selected, otherwise delete the following schedule and insert the words This Section Not Used>> THIS AGREEMENT is dated the day of 20 BETWEEN The a Crown entity, established on 1 August 2008 by Section 93 of the Land Transport Management Act 2003 AND AND ( the Principal ) ( the Contractor ) ( the Subcontractor) INTRODUCTION A By a contract dated... day of B C D E and known as... ( the Contract ) made between the Principal and the Contractor, the Contractor agreed to carry out the work and obligations imposed on the Contractor by the Contract ( the Contract Works ). The Contractor and the Subcontractor have entered into a subcontract for the performance of part of the Contract Works and/or the supply of Materials described in Schedule A to this agreement ( the Materials ) and intended to be used by the Contractor and/or the Subcontractor in the Contract Works. The Contractor or the Subcontractor (as nominated in Schedule C) ( the Bailee ) proposed to store the Materials at the premises of the bailee ( the premises ) as identified in Schedule B as bailee for the Principal, for the purpose of storage, fabrication, sub-assembly, or as otherwise required for the Contract Works prior to being delivered to the Site for incorporation into the Contract Works. The Contractor has requested the Principal to authorise the Engineer to certify payment for the materials notwithstanding that the Materials have not been delivered to the Site. The Principal has agreed to authorise the Engineer to certify payment for the Materials, notwithstanding that the Materials have not been delivered to Site, subject to all the provisions of this agreement having been fulfilled. SCHEDULE A Description of Materials inclusive of work performed on them: SCHEDULE B The location in New Zealand at which the Materials will be stored is: Page 46 of 54

49 SCHEDULE C The Bailee shall be: The Contractor OR The Subcontractor IT IS AGREED AS FOLLOWS: 1. THE Materials to which this agreement relates are those described in Schedule A to this agreement, all of which Materials are currently on the premises identified in Schedule B. 2. THE Premises identified in Schedule B are in the sole control of the party identified in Schedule C and that party shall act as bailee of the Materials until such time as the Materials are delivered to the Site or taken possession of by the Principal. 3. THE undertakings, warranties, covenants, agreements and other obligations of the Contractor or the Subcontractor shall bind and be deemed to have been given or assumed by each of them severally and by both of them jointly. 4. THE Contractor and the Subcontractor agree that they will cause the materials to be set apart at the premises and be clearly and visibly marked individually or in sets as being the property of the Principal and their destination as being the Site. The method used to mark the Material and the procedures by which the mark is applied to the Materials shall be as required by the Contract or as otherwise approved by the Principal. 5. NEITHER the Contractor nor the Subcontractor will permit, allow, or cause the Materials to be taken away from the Premises, except: (a) (b) For the purpose of being transported to the Site and used in the Contract Works; or That the Principal may at its sole discretion take possession of the Materials for use other than for the Contract Works; provided that: (c) (d) Where the Principal takes possession of any Materials under clause 5(b) above, and the Contractor thereby suffers delay of the Contractor or the Subcontractor incurs additional cost, the taking of possession shall be treated as a Variation under the Contract, unless the taking of possession is pursuant to clauses or of the Contract; and Where the Principal takes possession of any Materials under clause 5(b) above, and additional work has been carried out on those Materials since being paid for by the Principal, the Principal shall pay the Contractor for that additional work in accordance with the Contract before taking possession of the Materials. 6. THE Engineer, upon being satisfied that the materials have been set apart and marked as required by this agreement, and upon the Contractor providing satisfactory evidence that the requirements of clauses 12 and 20 below have been fully satisfied, shall include in any Payment Schedule issued by the Engineer under the Contract a sum representing the reasonable value of such Materials calculated in accordance with the Contract. Page 47 of 54

50 7. UPON the Principal having made payment for the Materials, less any retentions or deductions prescribed in the Contract, title to such materials shall immediately vest in the Principal free of all security interests, charges and encumbrances of any nature whatsoever. 8. WHERE the Contractor receives payment for Materials and the Subcontractor is entitled to some or all of the Principal s payment, the Contractor shall promptly pay the Subcontractor for such materials. 9. UPON the request of the Subcontractor, the Engineer shall advise the Subcontractor whether the Contractor has received any payment from the Principal for such Materials. 10. THE Contractor and the Subcontractor agree that the Materials will be held by the Contractor or the Subcontractor solely as bailee for the Principal and such bailment will constitute a security interest in favour of the Principal for the purpose of the Personal Property Securities Act 1999 ( the PPSA ). 11. THE Principal shall (at the Contractor s reasonable cost) register a financing statement of the Personal Property Securities Register ( the PPSR ) listing the Principal as secured party and the Contractor and the Subcontractor as debtors for any security interest arising from the bailment of the Materials referred to in this agreement. 12. THE Bailee shall promptly do all things including executing any documents and providing all information which the Principal requires to ensure that the Principal receives and maintains at all times a first ranking security interest in the Materials. This shall include procuring form any third party who has registered a financing statement against the Bailee, a waiver, in a form acceptable to the Principal, of any security interest or claim which might otherwise extend to the Materials or their proceeds. 13. THE Bailee shall not discharge or amend any financing statement registered under clause 11 above without the prior written consent of the Principal. 14. NOTHING in sections 114(1)(a), 133, and 134 of the PPSA shall apply to this agreement. 15. ANY rights of the Contractor and the Subcontractor as debtors under sections 116, 120(2), 121, 125, 126, 127, 129, 131, and 148 of the PPSA shall not apply to this agreement. 16. THE Bailee hereby grants to the Principal reasonable, free, and unencumbered right of access to the Premises to: (a) (b) (c) (d) Inspect the materials, and verify or undertake the marking and setting apart of the Materials; Take possession of the Materials for the purpose of delivery to the Site and inclusion in the Contract Works; Remove the materials from the Premises for the purposes of delivery to the Site and inclusion in the Contract Works; and Take possession of the Materials for use other than for the Contract Works, And in each case in a manner that does not cause damage to any other property at the premises. The Bailee shall take all steps and do all things as shall be necessary to ensure that the Principal obtains access to the premises for the purposes of this agreement. Page 48 of 54

51 17. THE Bailee shall not, except as permitted in clause 5, remove or cause or permit the Materials to be moved from the Premises. The Bailee shall nevertheless be responsible to the Principal for any loss or damage thereto and for any costs of storage and handling. 18. THE Bailee shall, when required to do so by the Contractor or the Principal, arrange for the transportation of the materials to the Site. Such transportation shall be at the costs of the Bailee in all things including loading, unloading, and freight. 19. WHERE the Materials are not insured under the construction policy provided in accordance with or of the Contract, the Bailee shall, at is expense: (a) (b) Effect a material damage insurance policy covering all of the materials subject to this agreement in the name of the Principal, as provided in of the Contract for the full duration of the off-site storage. Such insurance may include an exclusion for loss or damage sustained during processing; Effect a transit insurance policy for transit of all the Materials from the premises to the Site in the name of the Principal to the satisfaction of the Principal, as provided in of the Contract for the full duration of the off-site storage. 20. WITHIN 15 Working Days of the date of this agreement, the Bailee shall furnish the Principal and the Contractor with evidence of such insurance. 21. THE Bailee represents and warrants to the Principal and to the Contractor (where applicable) that: (a) (b) (c) It has good and clear title to the Materials; It has the ability to assign and transfer the Materials to the Principal or the Contractor; and The Materials will be transferred to the Principal or the Contractor free of any security interest. 22. THE Bailee undertakes that, if it charges or mortgages all or any part of its property (either real or personal), assets, or undertaking, it will obtain written confirmation from the charge or mortgagee that the chargee or the mortgage over such property, assets, or undertaking does not extend to the Materials once they have been paid for by the Principal or the Contractor (as applicable). 23. NOTHING in this agreement shall be deemed to limit, waive, or affect the Engineer s powers under the Contract to order the removal from Site or the Premises of Materials which are not in accordance with the Contract and the substitution by the Contractor at its own risk and expense of proper Material. Nothing in this agreement shall be deemed to limit, waive, or affect any other powers conferred on the Engineer and/or the Principal under the Contract. 24. EACH party shall pay its own costs of and incidental to the negotiation, preparation, execution, and any amendment of this agreement. 25. WORDS and phrases in this agreement shall have the same meanings as are ascribed to them under the Contract except where the context or any express provision of this agreement requires otherwise. Page 49 of 54

52 SIGNED BY of (Authorised Signatory) (Principal) SIGNED BY of (Authorised Signatory) (Contractor) SIGNED BY of (Authorised Signatory) (Subcontractor) Page 50 of 54

53 Schedule 15 Practical Completion Certificate This Practical Completion Certificate is issued under (a) or Contract for [Contract Number, Contract Name] Principal The a Crown entity, established on 1 August 2008 by Section 93 of the Land Transport Management Act 2003 Contractor ( the Principal ) ( the Contractor ) This certificate relates to: (a) The whole of the Contract Works referred to above; (b) The following Separable Portion (specify) Receipt of the Contractor s notice dated... and issued in accordance with is acknowledged. In accordance with (a) or (select one), the Engineer certifies that the Contract Works or Separable Portion to which this certificate relates qualify for a Practical Completion Certificate under 10.4, notwithstanding that there may be minor omissions and/or minor defects (as listed in the attached schedule) which satisfy the criteria in (a), (b), and (c). The Contractor is required to remedy all of the listed omissions or defects within the period stated in the attached schedule against the relevant omission or defect, or at the latest within... Working Days of the date of this certificate. Practical Completion was achieved on (insert date) at (insert time) Signed by the Engineer Name Date SCHEDULE The following omissions and/or defects have been assessed as being of a minor nature satisfying the criteria in (a), (b), and (c) and were identified during an inspection carried out by the Engineer or Engineer s Representative on... (insert date) (list minor omissions and defects) Page 51 of 54

54 Schedule 16 Final Completion Certificate This certificate is a Final Completion Certificate issued under Contract for [Contract Number, Contract Name] Principal The a Crown entity, established on 1 August 2008 by Section 93 of the Land Transport Management Act 2003 Contractor ( the Principal ) ( the Contractor ) In accordance with , the Engineer certifies that the Contract Works or Separable Portion to which this certificate relates qualify for a Final Completion Certificate issued under 11.3 on (insert date) at (insert time) Signed by the Engineer Name Date Page 52 of 54

55 Schedule 17 Cost fluctuations <<Guidance note: Include the Schedule 17 where the contract period exceeds 52 weeks, and where Clause (c) of the Special has been chosen. Where not used, delete the schedule below and insert the words This Section Not Used>> Contract for: [Contract Number, Contract Name] 1 The provisions of this Schedule shall apply when provided for in the Special Conditions. 2 Subject to the remainder of this Schedule, the amounts payable by the Principal to the Contractor under the Contract shall be adjusted up or down by amounts calculated in accordance with the following formula: a(w -W ) b(g - G ) c(b - B ) d(t -T ) e(r - R ) C = V W G B T R Where: f(f - F ) F The sum given by the equation in square brackets shall be rounded to four decimal places before final multiplication with valuation of work, V. C = Cost fluctuation adjustment for the quarter under consideration. V = Valuation of work certified for payment as having been completed during the quarter under consideration, without deduction of retentions and excluding the Cost Fluctuation adjustment. W = Labour Index - published by Statistics New Zealand for the quarter under consideration (Index reference LCIQ.SE53Z9) G = Producers Price Index Inputs - Non-Metallic mineral product manufacturing, published by Statistics New Zealand for the quarter under consideration (Index reference PPIQ.SQNCC6100) B = Producers Price Index Inputs - Construction, published by Statistics New Zealand for the quarter under consideration (Index reference PPIQ.SQNEE0000) T = Producers Price Index Inputs Transport, postal and warehousing, published by Statistics New Zealand for the quarter under consideration (Index reference PPIQ.SQNII0000) R = Producers Price Index Inputs - Road Transport, published by Statistics New Zealand for the quarter under consideration (Index reference PPIQ.SQNII1100) F = All Farming Inputs Price Index - Fuel and oil published by Statistics New Zealand for the quarter under consideration (Index reference FPIQ.SI9J) W, G, B, T, R, F = As defined for W, G, B, T, R, F respectively, but applying for the quarter during which tenders close. a, b, c, d, e, f = The proportions of inputs W, G, B, T, R, F respectively in the Contract. Page 53 of 54

56 3 The proportions of each input, represented by a, b, c, d, e and f in Clause 2, shall be as specified in the table below. << Guidance Note: Indices are available to download through the Transport Agency << Guidance Note: Select the Transport Agency Index most appropriate given the nature of the contract works and delete other Transport Agency indices.>> PROPORTION OF EACH INPUT Transport Agency Index Construction Transport, postal and warehousing Road Transport Fuel and Oil Labour Non-Metallic Mineral Product Manufacturing c d e f a b Construction Bridges Cost fluctuation provisions shall be applied from the commencement of the contract period. 5 Construction Cost Fluctuations are: Calculated on a quarterly basis in accordance with this section. Payment claims for cost fluctuation adjustments may be submitted each month. 6 For the purpose of calculating the Cost fluctuation adjustment in Clause 2, any Daywork, Prime Cost Sums, Variations and other payment items which are based on actual cost, or current prices and any advances shall be excluded from the Engineer's valuation. 7 No other Cost fluctuation adjustment shall be made by reason of any inaccuracy in the proportions of inputs specified. 8 The Contractor shall not be entitled to claim or have deducted any Cost fluctuation adjustment for any further changes in indices which occur after the Due Date for Completion of the Contract. 9 The indices to be used in the calculation of the cost fluctuation in Clause 2 shall be those first published by Statistics New Zealand for the appropriate quarter. 10 Where indices for the quarter have not yet been published, interim payments shall be made on the basis of the indices for the most recent quarter for which indices available. A correction to the interim monthly payment will be made following the publication of the applicable indices and will be processed with subsequent progress payments. 11 If at any time any of the indices referred to in Clause 2 are no longer published by Statistics New Zealand, or if the basis of any index is materially changed, the adjustment shall thereafter be calculated by using such other index, or in such other manner as will fairly reflect the changes as previously measured by that index as determined by the Engineer. Page 54 of 54