[Lump Sum: New Schools Based on NZS 3910:2003]
Conditions of Contract for Building
and Civil Engineering Construction
relating to [
]
Board of Trustees of [School]
as Principal
[
as Contractor
]
1
Introduction
General Conditions of Contract
1.1
The General Conditions of Contract are the Conditions of Contract for Building and Civil
Engineering Construction NZS 3910:2003.
Special Conditions of Contract
1.2
These Special Conditions of Contract shall be read in conjunction with and amend the
General Conditions of Contract.
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Schedules to General Conditions of Contract
First Schedule – Special Conditions of Contract
The First Schedule Special Conditions of Contract shall be deleted and replaced with
these Special Conditions of Contract.
Part A – Specific Conditions of Contract
1.1
There [are/are no] Separable Portions in this Contract.
2.1.1
This Contract is a fixed price lump sum construction contract which provides that the
Contract Price shall not exceed the fixed price except as expressly provided for in this
Contract.
2.5
This Contract is neither a construction contract in public roads nor a term
maintenance contract. Neither Appendix B nor Appendix C shall apply.
2.6.1
This Contract is not a local authority contract.
2.6.3
Clauses B1 and B2 of Appendix B shall not apply to this Contract.
2.6.4 a
A safety plan for the Site is required.
2.6.4 b
A traffic management plan is [not] required.
[The requirement for a traffic plan is project specific and will be dictated by each
project.]
2.8.1
1 Set of Contract Documents shall be supplied free of charge to the Contractor upon
the execution of this Contract.
2.9.2
1 Set of Contract Documents shall be supplied free of charge to the Engineer upon the
execution of this Contract by the Contractor.
3.1.1
A Contractor’s bond [is/is not] required.
[A bond is required if the project is a high value (excess of $500,000) or if the
contractor has multiple projects under contract with the Ministry]
3.1.2
[The Contractor’s bond shall be for 5% of the Contract Price and given by a bank, to be
approved by the Principal, acting as surety.]
3.2.1
A Principal’s bond is not required.
5.4.1
The Contractor shall be given possession of the Site on:
[
] subject to a directive from the Principal to proceed
OR
in respect of Separable Portion A: [
] subject to a directive from the
Principal to proceed, and in respect of Separable Portion B: [
].
(SELECT ONE)
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5.4.3
Access to adjoining properties is not permitted.
5.11.1
The Contractor is to be responsible for and on behalf of the Principal for obtaining
code compliance certificates under the Building Act 2004 for the Contract Works.
5.17.1
Quality management systems are required and details shall be submitted 5 Days after
acceptance of tender for approval by the Engineer.
5.18.1a
As built drawings and electronic data are required, as set out in the Project
Specification.
5.18.1b
Operation and maintenance manuals are [not] required.
6.1.2
The Engineer is [
representative is [
8.2.1
Contractor to insure Contractor’s construction machinery:
], whose professional qualification is [ ] and the Engineer’s
].
Contractor’s insurance is required for each item of construction machinery on the site
owned by the Contractor that has a market value of more than $25,000.
8.3
The Contractor shall insure as provided in clause 8.3 General Conditions of Contract as
amended by First Schedule (Part B), Amendments to General Conditions of Contract.
8.3.1
Public Liability Insurance:
Public liability insurance shall be effected for an amount of not less than [$2,000,000]
(plus Goods and Services Tax).
8.3.2
Motor Vehicle Third Party Liability Insurance:
Motor vehicle third party liability insurance shall be effected for an amount of not less
than $1,000,000 (plus Goods and Services Tax).
8.6
The Principal shall insure as provided in clause 8.6, such clauses as amended in the
First Schedule, Amendments to General Conditions of Contract.
8.6.1
The amount of insurance to be effected in respect of the Contract Works and Materials
shall be as provided in clause 8.6, First Schedule (Part B), Amendments to General
Conditions of Contract.
8.6.2
The existing structures are:
(i) ………………………………………………………………………………………………………….
(ii)…………………………………………………………………………………………………………..
Or
There are no existing structures.
(DELETE ONE)
8.6.2(a)
The insurers are Vero Insurance New Zealand Limited (lead insurer) and QBE Insurance
(International) Limited for the Principal and [
] for the Contractor.
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The deductibles are as set out in clause 8.6 of the First Schedule (Part B), Amendments
to General Conditions of Contract.
The exclusions and other limitations, if any, are as set out in clause 8.6 of the First
Schedule (Part B), Amendments to General Conditions of Contract or in the [to insert]
[To confirm on each project.]
10.2.1
The periods to be used for calculating the due date for Completion are as set out in
the Principal’s request for tenders, and are as follows:
(a)
In respect of the Contract Works: [ ].
OR
[(b)
In respect of Separable Portions: [
]]
10.4.5
A producer statement in the form of the Sixth Schedule is required prior to the issue of
the certificate of Practical Completion.
10.5.1
Liquidated damages shall be applied as follows:
(a)
11.1.1
In respect of the Contract Works [$
] per calendar day including
GST [end here if no Separable Portions] in respect of Separable Portions 1
and $[ ] per calendar day including GST in respect of Separable Portion 2.
The Period of Defects Liability, in respect of each Separable Portion of the Contract
Works shall be 12 months.
[Note: The Period of Defects Liability may differ on each project. If the project is of a
lower value, 6 months or 3 months may be more appropriate.]
11.5.1
Guarantees
The Contractor and the Subcontractor shall provide all relevant guarantees in respect
of the Contract Works, including:
(a)
The Twelfth Schedule Form of Guarantee – Contractor and Subcontractor and
Continuity Guarantee;
(b)
The Fourteenth Schedule Form of Guarantee – Weathertightness; and
(c)
All industry standard trade and/or manufacturers warranties available in
respect of materials, and workmanship in respect of the same.
The Contractor shall be jointly and severally liable under the Subcontractor guarantees
for the length of the relevant Twelfth Schedule Form of Guarantee guarantees for the
applicable time periods set out in the table below (left-hand time period for materials
and right-hand time period, where specified in the table, for workmanship) or five years,
whichever is the lesser period, provided that the Contractor shall guarantee any works
or materials comprising the Contract Works which relate to weathertightness for a
minimum duration of ten years.
The Subcontractor shall be required to provide workmanship guarantees for the full
length of the periods specified below (left-hand time period for materials and right-hand
time period, where specified in the table, for workmanship), or if not listed below, for a
minimum period of five years unless otherwise agreed with the Principal in writing.
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Without prejudice to the express warranties and guarantees contained in the Contract
Documents, where the Contractor has undertaken the Contract Works directly, the
Contractor guarantees the applicable works and/or materials for the full length of the
periods specified below, or if not listed below, for a minimum period of five years unless
otherwise agreed with the Principal in writing.
Materials / Workmanship
Materials / Workmanship
(where applicable)
OVERALL WEATHERTIGHTNESS
10 years
STRUCTURAL STEEL CORROSION PROTECTIVE COATINGS
10 years
METALWORK
2 years
CARPENTRY
2 years
ALUMINIUM WINDOWS AND DOORS (including glazing)
5 years
METAL ROOF FLASHINGS
15 years
MEMBRANE ROOFING INCL. JOIN TO EXISTING
20 years / 5 years
WALL CLADDING
10 years
EXTERNAL SEALANTS
10 years
PAINTING
3 years
ELECTRICAL AND ELECTRICAL FIXTURES
2 years
GENERAL GUARANTEE ON NEW BUILDING WORK
2 years
PRE CAST CONCRETE PANELS
25 years
CONCRETE WORK
5 years / 1 year
BRICKWORK
15 years / 1 year
STRUCTURAL STEEL
25 years / 1 year
SHEET TANKING
50 years
PROPRIETARY CURTAIN WALLING (including curtain wall glazing)
5 years
GLAZING (other than glass to aluminium windows and doors or to
curtain walls)
2 years / 1 year
COLORSTEEL PROFILED METAL SOFFITS
coating 15 years
materials 15 years
workmanship 5 years
DUROLITE GRP ROOFING
light transmission /
weathertightness 15
years
materials 15 years
workmanship 5 years
MEMBRANE ROOFING
20 years / 5 years
TIMBER DOORS
2 years / 1 year
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FIRE RATED COATINGS
10 years
DIRECT FIXED ACOUSTIC
5 years / 2 years
SUSPENDED TITLE CEILING (grid and tiles)
15 years
USG GRID CEILING SUSPENSION SYSTEMS
15 years
PURPOSE MADE JOINERY FIXTURES
2 years / 1 year
PLUMBING AND PLUMBING FIXTURES
2 years / 1 year
DOOR HARDWARE
10 years
SOLID PLASTER
5 years / 1 year
VINYL FLOORING
5 years / 1 year
CARPET
5 years / 1 year
ROLLER SHUTTER DOORS
2 years / 1 year
SITEWORKS, PAVING & DRAINAGE
10 years
STRUCTURED CABLING
20 years
SECURITY SYSTEM
2 years / 1 year
MECHANICAL EQUIPMENT
1 year / 1 year
UNDERFLOOR HEATING
25 years
LIFTS
1 year
FIRE SERVICES (delivery pipework, both in-ground and aboveground)
15 years
FIRE SERVICES (rest of system)
5 years
ALL IN-GROUND SERVICES
15 years
The time periods for all guarantees and trade warranties shall run from the date of
Practical Completion.
11.5.2
(a)
The forms of guarantees from the Contractor shall be in the forms annexed
as the Twelfth Schedule (Forms of Guarantee – Contractor and
Subcontractor) and the Fourteenth Schedule (form of Weathertightness
Guarantee).
(b)
The Contractor will also procure the execution and delivery of the following:
(i)
A guarantee from each Subcontractor in the form of the Twelfth
Schedule; and
(ii)
An agreement with any Subcontractor which holds materials off-site
in the form of the Thirteenth Schedule.
12.1.1(b)(vi)(a) Advances for Temporary Works, Plant or Materials not yet on Site shall be made to
the Contractor in accordance with the conditions attached in the Thirteenth
Schedule.
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12.3.1
The percentage to be retained from each progress payment and the limit of the total
sums retained shall be:
(a)
In respect of the Contract Works:
(i)
Total retention:
10% of the first $200,000 plus
5% of the next $800,000 plus
1.75% of any amount in excess of $1,000,000;
With a maximum of $200,000 when aggregated.
(ii)
Defects liability retention shall be 50% of the total retention.
12.8.2
Cost fluctuation adjustments shall not be paid.
12.9.1
(c)
There are [no] Provisional Sums.
12.10.1
(c)
There are [no] Prime Cost Sums.
15.1.2
For the purpose of service of notices, the postal address of:
(a)
The Principal is:
Board of Trustees of [School], acting by and through
[name]
[title],
[address]
Fax No. [ ]
(b)
The Engineer is:
[insert name]
For the attention of: [insert name]
Fax No. [
]
Email [
]
(c)
The Contractor is:
[insert name]
[insert address]
For the attention of: [insert name]
Fax No. [
]
Email [
]
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Part B - Other Conditions of Contract
Amendments to the General Conditions of Contract
Further or Amended Definitions
The following definitions, where they are for the same word or expression appearing in clause 1.2 of
the General Conditions replace those definitions, and otherwise, are additional definitions.
Numbers refer to the General Conditions of Contract clauses.
Section 1 – Interpretation
1.2
Definitions
Add to or amend the definitions as follows:
Conditions of Contract means the General Conditions as added to, deleted from, or modified
by, these amendments and the Specific Conditions;
Consultants means the parties engaged on behalf of the Principal in relation to the Contract
Works;
Contract means the contract comprising the Contract Documents created by the Contract
Agreement in the Second Schedule;
Detailed Cost Plan means the breakdown of the elements comprised in the lump sum
Contract Price, as set out in the schedule of quantities;
GST means goods and services tax under the Goods and Services Tax Act 1985;
Health & Safety Requirements means the requirements of:
(a)
the Health and Safety in Employment Act 1992 (HSEA);
(b)
all relevant Regulations made pursuant to the HSEA;
(c)
all approved codes of practice pursuant to the HSEA, to the extent relevant to the
Contract Works;
(d)
all guideline publications issued by the relevant health and safety regulator, to the
extent relevant to the Contract Works; and
(e)
all relevant recognised standards as issued by any relevant standard issuing body.
Principal means the Board of Trustees of [school];
Project Control Group or PCG means the project control group comprising representatives
from the Ministry of Education, the Contractor, the Engineer, and at the discretion of the
Principal, a representative of the School Board of Trustees and/or the School principal, the
architect, the project manager and the quantity surveyor, with the Engineer acting as the
chair of the meetings, as further described in clause 5.19;
Request for Tenders means the request for tenders or request for proposals to evaluate the
Project a copy of which is annexed as Appendix One;
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Specification means the document titled Project Specification, a copy of which the
Contractor acknowledges it has received and which comprises the scope of the Contract
Works, all work to be performed by the Contractor, separate contractors and other project
participants;
Subcontractors means the parties engaged by the Contractor as subcontractors in relation to
the Contract Works; and
Tender Documents means for the purposes of this Contract, the Contract Agreement, and
the documents scheduled, appended thereto or referred to in the Contract Agreement.
1.3
Further Interpretation
A new clause 1.3.9 is inserted as follows:
1.3.9
Reference in this Contract and the Contract Documents to the Contractor’s “tender” or
“proposal” shall mean the offer made by the Contractor to carry out the Contract Works as
agreed pursuant to this Contract.
1.7
Local Body Requirements
A new clause 1.7 is inserted as follows:
1.7.1
The Contractor shall be deemed to have allowed at its entire cost everything necessary to
construct, complete, commission and maintain the Contract Works in every respect in
accordance with the Contract except as specifically excluded in the Contract. Every item
not specifically referred to but reasonably inferred or necessary for the proper completion
of the Contract Works is deemed included in the Contract Price and shall be of a type or
character in keeping and consistent with the spirit and intent of the Contract Documents.
The Contractor shall also be deemed to have allowed for compliance with the building
codes, resource consent and any national and local body requirements.
Section 2 – The Contract
This Contract is a fixed price lump sum contract.
The following clause is added to clause 2.2:
2.2.7
Accounts Verification, Cost Reporting, Records
The Principal, upon ten Days written notice, can require that the Contractor provide it with
access to the Contractor’s records and files relating to:
(a)
The Cost of the Contract Works. The Contractor can be required to produce, at least
monthly, updated Cost reports. The Contractor must account to the Principal for the
actual Costs of performance of the construction work and the preliminaries. The
Contractor must verify and substantiate all Costs claimed for reimbursement to the
satisfaction of the Principal; and
(b)
The payment of all Subcontractors engaged in relation to the Contract Works.
The information requested by the Principal shall be in hard copy, electronic or other format.
The Principal shall keep confidential any commercially sensitive information obtained by it in
the context of this clause.
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The Contractor acknowledges that the Engineer can contact Subcontractors directly in order
to confirm payments due to the Subcontractors have been made, and in such cases the
Engineer shall provide the Contractor with a copy of the communications.
Clause 2.7.1 is deleted and replaced with a new clause 2.7.1:
2.7.1
No contract or other legal relationship shall exist until this Contract is executed and signed
by the parties.
Clause 2.7.2 is deleted and replaced with a new clause 2.7.2:
2.7.2
No payment shall be made pursuant to this Contract until it is executed and signed by the
Contractor, including the Fourteenth Schedule, and delivered to the Engineer.
The following is added to clause 2.8.2:
2.8.2
The Contractor shall only use drawings issued “for construction” to execute the Contract
Works and shall at all times only use the most recent revision of any drawing issued, and
provided to it, by the architect under instruction from the Engineer.
The following clause is added to clause 2.8.8:
2.8.8
The Contractor shall be responsible for ensuring the accuracy and completeness of all shop
and construction drawings, documents or samples where the Contractor or its
Subcontractors are responsible for preparing such documents. Any review or checking of
such documents or samples by the Engineer or the Principal shall not be taken to signify
that the Engineer or the Principal have checked the accuracy, completeness or adequacy of
such information and shall not relieve the Contractor of any obligation or liability in relation
to such documents under the Contract.
New sub-section 2.10 is added as follows:
2.10
Contractor’s Warranties
2.10.1 Construction Obligations
The Contractor warrants and undertakes to the Principal that the Contractor:
(a)
Is satisfied that the Contract Price is sufficient to cover the cost of performing all of
its obligations under and in connection with the Contract and all things and matters
required for the due and proper and punctual performance of the Contract Works;
(b)
Has taken into consideration all information which is relevant to the risks,
contingencies and other circumstances which would in any way affect the Contract
Works and/or the Contract Price;
(c)
Has read and reviewed all information provided to it by the Principal about the Site
and the conditions on, under and about the Site and has made its own inquiries,
including review of archival and other records which are publicly available about
buildings and other structures which may have previously been located on the Site;
and
(d)
Is not entitled to and will not claim an entitlement to an increase in the Contract
Price nor to any other compensation or benefit except those entitlements expressly
provided for in the Contract.
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Section 3 – Performance Bonds
When a bond is required in accordance with clause 3.1.1 of the First Schedule, clauses 3.1.5 to 3.1.7
(inclusive) are deleted and replaced with a new clause 3.1A.
3.1A
Cashing and return of Bond
A new clause 3.1A is inserted as follows:
3.1A.1 If the Contractor has not complied with its obligations under the Contract
Documents, the Principal may give a written notice to the Contractor stating each of
the following:
3.1A.2
(a)
The Contractor's breach;
(b)
What the Principal requires the Contractor to do to remedy the breach; and
(c)
A specific reasonable time in which the Contractor must remedy the breach.
(a)
If the Contractor fails to comply with the terms of the notice given under
clause 3.1A.1, the Principal may convert the Contractor's bond into cash and
may apply the proceeds to either or both of the following:
(b)
(i)
The cost of remedying the Contractor's breach;
(ii)
Compensation for the cost of damages consequent on the Contractor's
breach.
The Contractor is not entitled to interest on the cash proceeds of the
Contractor's bond if the Principal has cashed the Contractor’s bond in
circumstances where the Principal was entitled to do so.
3.1A.3
If the Principal has converted any of the Contractor's bond into cash, the Principal must
return to the Contractor, within ten Days of the date that the Contract Works are finally
complete, the balance of any cash proceeds to which the Principal is not entitled.
3.1A.4
If the Contractor's bond has not been converted to cash by the Principal, then upon
Practical Completion of all of the Contract Works being certified under the Contract
Documents, the Contractor is entitled to require and the Principal must return the
Contractor's bond to the Contractor.
Section 4 – Subcontracts
A new clause 4.3 is inserted as follows:
4.3
Subcontractors
4.3.1(a)
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For each subcontract entered into by the Contractor the terms of engagement
must:
(i)
Oblige the Subcontractor to enter into the contractor and subcontractor
continuity guarantee in the form annexed as the Twelfth Schedule;
(ii)
Be consistent with the terms of this Contract; and
12
(iii)
(b)
4.3.2
Prohibit any further subcontracting (other than that specified in the
Subcontractor’s tender).
The Principal shall not be obliged to make any progress payment to the Contractor
for an amount claimed by a subcontractor until such deeds in accordance with
clause 4.3.1(a) have been executed and delivered to the Principal.
Responsibility for inconsistency and acts or omissions
For each subcontract or supply contract entered into by the Contractor in relation to the
Contract Works, the agreement between the Contractor and the Subcontractor or supplier,
as the case may be, must not be inconsistent with the Contract. If there is an inconsistency,
the Contractor is liable for that inconsistency. The Contractor is responsible for any act or
omission of the Subcontractor and/or the Subcontractor’s agents and employees as fully as if
they were the acts or omissions of the Contractor.
Insert as a new sub-clause 4.3.3:
4.3.3
The Contractor undertakes to take all practicable steps to assure itself that, from a health
and safety perspective, each Subcontractor is competent to undertake the work required of
it before such Subcontractor commences work on the Site.
Section 5 – General Obligations
Clause 5.1.5 is deleted and replaced with a new clause 5.1.5:
5.1.5
The Contractor has full responsibility for the adequacy, stability and safety of all Site
operations and methods of construction. The Contractor warrants that it has fully inspected
the Site and the earthworks prior to commencing the Contract Works, and has made due
allowance for the conditions in the Contract Price and the construction programme. Having
inspected the Site and the earthworks and satisfied itself of the ground conditions for the
purposes of the Contract Works, the Contractor shall not be entitled to claim a Variation or
an extension of time.
Clause 5.1.6 is deleted and replaced with a new clause 5.1.6:
5.1.6
The Contractor will ensure that all materials used in and forming all or part of the Contract
Works are materials of good quality and in accordance with the provisions of the Contract
Documents, are fit for and may be relied upon to perform their intended purpose and all
workmanship used or employed in the Contract Works has been used, or employed to the
highest standard and in accordance with good trade practices applicable to the Contract
Works.
A new clause 5.1.7 is inserted as follows:
5.1.7
The Contractor shall be deemed to have familiarised itself with the requirements of the
programme and has produced a construction programme for the Contract. The Contractor
undertakes to carry out and complete the Contract Works at such time or times as the
current construction programme shall reasonably require so as not to delay or impede the
progress of Contract Works.
A new clause 5.1.8 is inserted as follows:
5.1.8
Without limiting any other warranty provisions contained in this Contract, the Contractor
shall ensure that that part of the Contract Works comprising buildings shall be constructed
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in accordance with the weathertightness requirements for schools (Ministry of Education –
April 2011) and subsequent amendments thereto, and upon completion, be weathertight.
Insert a new sub-clause 5.1.9 as follows:
5.1.9
5.2
The Contractor shall comply with, and shall ensure that each Subcontractor on Site shall
comply with, the Principal's health and safety reporting guidelines, as amended from time to
time.
Contractor's Representative
A new clause 5.2.3 and 5.2.4 are inserted as follows:
5.2.3
The Contractor must nominate key personnel, including an authorised representative of the
Contractor and Site Manager, which personnel must be nominated by the Contractor during
the tender process and approved by the Engineer (Key Personnel), and will ensure that the
Key Personnel are dedicated to the Contract Works until each of those Key Personnel has, in
the opinion of the Engineer, completed his/her function in relation to the Contract Works.
The Key Personnel may only be released from the Contract Works in any one or more of the
following cases:
(a)
The Engineer approves that release in writing which approval must not be
unreasonably or arbitrarily withheld;
(b)
The person resigns permanently from the employ of the Contractor; or
(c)
The person becomes incapable of continuing to act in his or her appointed
capacity in relation to the Contract Works;
And in such circumstances any replacement Key Personnel must first be approved by the
Engineer.
5.2.4
The Contractor shall comply with all Ministry of Education police vetting requirements prior
to any of its personnel, Consultants or Subcontractors accessing any part of the Site.
5.3
Control of Employees
A new clause 5.3.2 is inserted as follows:
5.3.2
The Principal or the Engineer may object to and direct the Contractor to immediately
remove from the Site any on-site personnel who breach the HSE Requirements or cause any
act or omission likely to give rise to a breach of the HSE Requirements. The Contractor shall
pay any costs incurred in such removal and any costs of subsequent replacement and the
person required to be removed (or prevented access) shall not again be employed in
relation to the Contract Works without the permission of the Engineer.
5.4
Possession of the Site
A new clause 5.4.7 is inserted as follows:
5.4.7
The Contractor acknowledges that the Principal, or its agent, may secure the Site and
Materials on the Site at any time the Principal deems necessary.
5.5
Separate Contractors
5.5.1
Add the following to the end of clause 5.5.1:
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Where necessary the Contractor shall co-ordinate the activities of separate contractors or
services authorities in association with its own programme of work. The Contractor will be
deemed to have made sufficient allowance in the Contract Price for such co-ordination.
5.5.2
Add the word “unreasonable” after the word “suffers” in line 4.
A new clause 5.5.3 is inserted as follows:
5.5.3
The Contractor shall co-operate, provide access to all relevant Project Specification and
Contract Works records and information, and provide access to the Site, as required to
enable a separate contractor to perform its work.
A new clause at 5.5.4 is inserted as follows:
5.5.4
The Principal may choose to obtain additional observation services in respect of the
Contract Works independent of the Contractor or the Engineer. Any access to the Site for
this purpose will be by arrangement and with the prior approval of the Contractor who will
not unreasonably decline or delay any such request providing that any health and safety
protocols applying to the Site are observed. Any personnel associated with such additional
observation will report only to the Principal or the Principal’s representative or nominee,
and shall have no authority to instruct the Contractor on any matter. If the Principal
requires the Contractor to be apprised of any matters arising from this observation, it shall
advise the Engineer. The Principal shall assume no financial or contractual liability arising
from such observation or consequential advice.
5.6
Care of the works and Site
5.6.6
Clause 5.6.6 of the General Conditions is deleted and replaced with the following:
(a)
The excepted risks are:
(i)
War, invasion, act of foreign enemy, warlike operations (whether war be
declared or not), civil war, mutiny, rebellion, revolution, insurrection of
military or usurped power;
(ii)
Ionising radiation and/or contamination by radioactivity from any nuclear
fuel or from any nuclear waste from the combustion of nuclear fuel;
(iii)
Flood, volcanic eruption, earthquakes, other natural disasters and acts of
God;
(iv)
A general strike or general industrial action in all parts of New Zealand;
(v)
Any act or omission of the Principal or of any person for whose acts or
omissions the Principal is as between itself and the Contractor
responsible; and/or
(vi)
Weather conditions or events in the region in question which are extreme
or which are an unusual weather event for the time period in question
(Extreme Weather Conditions) but excluding weather conditions or
events which are adverse or the consequences of such adverse weather
conditions (Adverse Weather Conditions).
A new clause 5.6.6(i) is inserted as follows:
5.6.6(i)
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The excepted risks do not include:
15
5.7
(i)
A breach of the Contract by the Contractor;
(ii)
Negligence by the Contractor relating to performance of its obligations
under the Contract;
(iii)
An occurrence which is a risk assumed by the Contractor under the
Contract;
(iv)
A strike or general industrial action which does not apply in all parts of
New Zealand;
(v)
A shortage or delay in the supply of materials required under the
Contract;
(vi)
Adverse Weather Conditions which shall not include Extreme Weather
Conditions; or
(vii)
A flood which arises or is caused by an act or omission of the Contractor
or which could have been avoided by the implementation of reasonable
control measures.
Protection of Persons and Property
A new clause 5.7.8 is inserted as follows:
5.7.8
Without limiting the generality of anything else appearing in this Contract the Contractor is
responsible for all issues relating to the occupational health and safety in relation to the
Contract Works and any other works carried out by any separate contractor on any part of
the Site under the care or control of the Contractor for the period from the date the
Contractor is granted possession of the Site until Practical Completion of the Contract
Works, in accordance with the relevant legislative requirements.
Insert a new sub-clause 5.7.9 as follows:
5.7.9
In particular, the Contractor shall take primary responsibility to ensure that all necessary
collaboration and communication takes place between the Contractor, the Contractor's
personnel, all Subcontractors , all consultants and any separate contractors.
Insert a new sub-clause 5.7.10 as follows:
5.7.10
The Contractor shall comply with, and shall ensure that all Subcontractors on Site from time
to time, comply with, the Principal's health and safety reporting guidelines, as amended,
replaced and substituted from time to time.
5.8
Setting Out
Clause 5.8.2 is modified as follows:
5.8.2
Delete the second sentence.
A new clause 5.8.6 is inserted as follows:
5.8.6
Notwithstanding any obligations of the Engineer or the Principal under clause 5.8, it is the
Contractor’s responsibility to ensure that the Contract Works are accurately set out.
Clause 5.9.3 is deleted and replaced with:
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5.9.3
Advances for Temporary Works, Plant, or Materials not yet on-site shall not be made to the
Contractor unless the prior written consent of the Principal is granted.
The parties acknowledge that any advances for Materials which are not yet incorporated in
the Contract Works, are unfixed or not yet on the Site, made by the Principal vest title to
the Materials in the Principal and are deemed to create a security interest granted by the
Contractor in favour of the Principal in the Materials, which is a purchase money security
interest, since the Contractor would not have obtained any rights to those Materials but for
the value provided by the Principal, either by its payments for those Materials, or its
promise to pay for those Materials. Title to the Materials in respect of which advances are
made shall vest in the Principal. The Contractor agrees to execute any further
documentation required by the Principal to effect this security interest (if any) and to
register the same on the personal property securities register.
No Materials subject to a security interest, perfected or unperfected, shall be removed
from the Site or any other approved location, without the prior written consent of the
Principal. The ownership of any Materials no longer required for Contract Works shall revest in the Contractor on repayment of any advances made by the Principal.
5.10
Programme
Clause 5.10.1 is deleted and replaced with a new clause 5.10.1:
5.10.1
A critical path construction programme shall be supplied by the Contractor to the Engineer
for the Contract Works showing the proposed order of work and dates of commencement
and completion of various stages of the Contract Works. It is inherent in the critical path
construction programme that the Contractor has sufficient resources to be mobilised and
maintained until the Practical Completion date to perform the Contract Works and reduce
any risk of delaying the Practical Completion date. This programme shall be updated every
two weeks after the date of commencement of the Contract Works and be in electronic
workable format.
The following is added to clause 5.10.1A:
5.10.1A Durations within the construction programme for construction work elements and activities
which may be weather dependent shall include due allowance for the disruption effects of
inclement weather occurrences, normal for the season the activities are planned to be
undertaken in.
5.11
Compliance with laws
Clause 5.11.1 is modified by adding a further sentence as follows:
The Principal’s consultants will provide all relevant supporting information that they hold
as requested by the Engineer.
Clause 5.11.2 is deleted and replaced with a new clause 5.11.2:
5.11.2
The costs in obtaining all statutory and building consents shall be borne in accordance with
the Contract Documents.
Clause 5.11.6 is deleted and replaced with a new clause 5.11.6:
5.11.6
(a)
The Contractor must comply, at its cost, with all licenses, consents or approvals and
all conditions attached to them where the licenses, consents or approvals are
obtained prior to the date of acceptance of the Contractor’s tender.
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5.13
(b)
If licenses, consents or approvals obtained by the Contractor or for which the
Contractor is responsible to obtain (whether or not the Contractor actually obtains
them) are obtained after the date of acceptance of the Contractor’s tender and are
issued subject to conditions affecting the design or specifications provided in the
Contract Documents, those conditions must be notified to the Principal and the
Engineer by the Contractor. If compliance with those conditions by the Contractor
causes delay or additional Cost to the Contractor which the Contractor could not in
either case have reasonably foreseen the compliance will be treated as if it was a
Variation.
(c)
If licenses, consents or approvals obtained by the Principal or for which the Principal
is responsible to obtain (whether or not the Principal actually obtains them) are
obtained after the date of acceptance of the Contractor’s tender and compliance
with those conditions by the Contractor causes delay or additional Cost to the
Contractor which the Contractor could not in either case have reasonably foreseen
the compliance will be treated as if it was a Variation.
Underground and above ground utilities
Clause 5.13.1 is modified as follows:
Delete the word “Principal” and substitute the word “Contractor”.
A new clause 5.13.5 is added as follows:
5.13.5
The Contractor shall implement such management practices as will minimise the potential
for industrial conflict during the Contract. The Contractor shall be responsible for any costs
which it may incur as a result of any industrial disputes including those which involve its
workforce, and/or the workforce of its Subcontractors and consultants.
A new clause 5.13.6 is inserted as follows
5.13.6
The Contractor will keep the Engineer fully informed of all claims made or other industrial
relations matters and shall take all reasonable steps to avoid actions or omissions which
might prejudice the position of the Principal under the Contract.
5.19
Project Control Group
A new clause 5.19 is inserted as follows:
5.19.1
It is the Principal’s and the Contractor’s intention that the Contract be performed within a
co-operative and trusting working relationship between the parties. Accordingly a
management structure called the ‘Project Control Group’ (PCG) will be established. The
parties agree that the PCG shall be made up of:
(a)
Representative from the Principal, which may include a representative from the
Ministry of Education’s Schools Infrastructure Group, a School Property Advisor
and/or any other agent of the Principal employed for this purpose;
(b)
The Engineer; and
(c)
One representative from Contractor,
and the Engineer shall chair the meetings and maintain the minutes.
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5.19.2
The Principal or Engineer may request the presence of one representative from the School
Board of Trustees or the School principal, the architect or the quantity surveyor at certain
PCG meetings as the Principal or the Engineer (as the case may be) may determine.
5.19.3
The PCG shall work for the entire project duration and be responsible for providing the
project with direction on all matters in which delivery of the Contract Works can be
improved in terms of quality, timeliness and cost effectiveness. No consideration or
concurrence of any members of the PCG will have any effect to the Contract unless the
Engineer gives the Contractor a written instruction, and no decision of the PCG shall have
any effect on the Contract unless the Engineer gives the Contractor a written instruction
and for the avoidance of doubt, no decision at a PCG meeting shall constitute a Variation
instruction without the Principal’s consent in writing being provided independently in
accordance with clause 9. The Engineer shall provide prompt decisions and approvals for
the PCG. The Contractor shall provide advice to the PCG on all matters relating to the
construction of the Contract Works.
5.20
Contractor’s status reports
A new clause 5.20 is inserted as follows:
5.20
The Contractor must deliver to the Principal, and to the other regular PCG members, a
monthly status report on the progress of the Contract Works, in a form which is acceptable
to the Principal. The Engineer may, at any time, require that the Contractor provide a
special status report. The Contractor must deliver that special status report to the Engineer
within five Days of receiving the request. A status report must be provided as a
requirement of Practical Completion of each Separable Portion of the Contract Works.
Insert new sub-clause 5.21 as follows:
5.21
Health & Safety Compliance and Best Practice
5.21.1
Notwithstanding any other obligation to comply with all laws, the Contractor warrants that
it will comply with, and ensure that all Subcontractors comply with the Health & Safety
Requirements.
5.21.2
The Contractor must use best endeavours to go beyond mere compliance with the Health &
Safety Requirements and achieve best practice with regards to health and safety where
possible in the carrying out of the Contract Works and the performance of its other
obligations under the Contract.
5.21.3
Without prejudice to the obligations in 5.21.1 and 5.21.2 above, the Contractor warrants to
the Principal that the Contractor will ensure that, in the carrying out of the Contract Works
and the performance of its other obligations under the Contract:
(a) no act or omission of the Contractor or any Subcontractor or any other person for
whom the Contractor is responsible for under this Contract shall give rise to a breach
of duty or obligation of the Contractor under the HSEA and all associated
Regulations; and
(b) no act or omission of the Contractor or any Subcontractor or any other person for
whom the Contractor is responsible under this Contract is or is likely to give rise to
the issue of an improvement or prohibition notice, enforcement proceedings or a
prosecution under the HSEA and all associated Regulations.
Insert a new sub-clause 5.22 as follows:
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5.22
Health & Safety Plan
5.22.1
The Contractor will prepare and maintain at all times an up-to-date comprehensive and
fully documented Site-specific health & safety plan for the carrying out and completion of
the Contract Works and the remedying of any defects in the same. The Site-specific health
and safety plan shall be prepared and submitted to the Engineer. The Contractor shall not
commence any part of the Contract Works on the Site unless and until the Engineer has
accepted the Site-specific health and safety plan.
5.22.2
Such Site-specific health and safety plan will clearly demonstrate:
(a) the Contractor's approach to the management, removal and mitigation of all health
and safety risks; and
(b) the manner in which the Contractor intends to comply with and discharge its
obligations under 5.7, the Health & Safety Requirements and any other requirements
for health and safety set out in the Contract.
5.22.3
Within ten (10) Working Days of receipt of the Contractor's Site-specific health and safety
plan, or revised Site-specific health and safety plan, the Engineer shall notify the Contractor
in writing (with a copy to the Principal) whether or not the Engineer accepts the Sitespecific health and safety plan. The Engineer's acceptance of such plan shall not be
unreasonably withheld or delayed and, where the Engineer does not accept the plan (or
any revised plan), the notice shall include the Engineer's reasons, and shall require the
Contractor to submit a revised Site-specific health and safety plan to the Engineer within
five (5) Working Days. This procedure shall be repeated until the Site-specific health and
safety plan has been approved in accordance with this clause 5.22.3.
5.22.4
The Contractor expressly acknowledges and accepts that neither:
(a) the preparation and submission to the Engineer of a Site-specific health and safety
plan; nor
(b) the comment on, or acceptance of, any Site-specific health and safety plan; nor
(c) the compliance (or otherwise) by the Contractor or any person for whom the
Contractor is (as between the Principal and the Contractor) responsible,
shall relieve the Contractor from any of its obligations and/or liabilities under the Contract.
[The following Greenstar clauses 5.23 – 5.26 may be deleted if not required by the contractor]
5.23
[Waste Management
A new clause 5.23 is added as follows:
5.23.1 The Contractor shall ensure that its on-site waste management practices minimise the
amount of construction and demolition waste going to disposal in accordance with the
Green Star New Zealand MAN-5 Waste Management technical manual, as amended from
time to time during the term of the Contract (MAN-5).
The Contractor undertakes to minimise the amount of construction and demolition waste on
Site going to disposal. The Contractor shall ensure that at least 70% of construction and
demolition waste by weight is reused and/or recycled. Records must be kept by the
Contractor to demonstrate the actual percentage of waste reused and/or recycled by weight
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and these must be reported to the Principal, at quarterly intervals, throughout the
construction phase of the project.
The Contractor shall comply with the guidelines set out in MAN-5, including, without
limitation, the following:
(a)
establish an on-site waste management area for the sorting and segregation of waste
including colour-coded and clearly marked containers for various materials;
(b)
provide copies of waste disposal subcontracts for recycling including details of the
costs for collection and timing of the collection service;
(c)
the Contractor and all Subcontractors (as applicable) shall participate in applicable
waste minimisation training as appropriate from time to time;
(d)
a waste minimisation plan shall be submitted to the Principal to identify how at least
70% of on-site construction waste by weight is to be reused and/or recycled;
(e)
records must be kept by the Contractor to demonstrate the actual percentage of
waste recycled, including weight and volume of all wastes leaving the Site and the
destination and/or name of recycler/waste hauler.
(f)
the provision of waste skips or bins at the waste storage area must be made for each
of the following materials (some of these may be in combined skips provided
evidence is provided to demonstrate that the waste contractor will separate these
materials off-site):
(i)
cardboard;
(ii)
timber;
(iii)
metal;
(iv)
soft plastic;
(v)
polystyrene;
(vi)
insulation;
(vii)
concrete;
(viii)
glass; and
(ix)
bricks.
A new clause 5.24 is inserted as follows:
5.24
Users’ Guides
5.24.1
The Contractor shall encourage and recognise information management that enables
building users to optimise the school buildings’ environmental performance in accordance
with the Green Star New Zealand MAN-6 Users’ Guide technical manual, as amended from
time to time during the term of the Contract (MAN-6).
The Contractor undertakes to develop and deliver the following information to the
Principal, on or before Practical Completion, to optimise the environmental performance of
the school buildings:
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(i)
building managers’ guide (BMG) which provides detailed information for building
managers on the environmental features of the school buildings;
(ii)
building users’ guide (BUG) which provides accessible information for building users
on the environmental features of the school buildings; and
(iii)
communication strategy outlining how the information in the BUG will be
communicated to end users of the school buildings (i.e. through the school website,
building tours and staff induction programmes).
A new clause 5.25 is inserted as follows:
5.25
For the avoidance of doubt, the parties acknowledge that all costs incurred by the Contractor
in complying with the Green Star New Zealand MAN-1 Green Star NZ Accredited Professional
technical manual, as amended from time to time during the term of the Contract (MAN-1),
MAN-5 and MAN-6 guidelines and all other compliance requirements necessary to achieve
the required five-star rating from the Green Star New Zealand Education Building Rating Tool
(2009), are included in the Contract Price.
A new clause 5.26 is inserted as follows:
5.26
In accordance with MAN-1, the Contractor undertakes that a principal member of the onSite team is a Green Star NZ Accredited Professional and will be engaged from the
commencement of the Contract Works.]
Section 6 – Engineer's Powers and Responsibilities
A new clause 6.9 is inserted as follows:
6.9
Supervision
6.9.1
If the Principal or the Engineer is not satisfied with the results of an audit completed or is
otherwise concerned about health and safety on the Site, the Principal or the Engineer has
the right to appoint (at the sole cost of the Contractor) an individual to be the health and
safety supervisor on the Site. The Contractor shall, and shall ensure that any
Subcontractors, immediately commence, diligently carry out and comply with all
instructions of the health and safety supervisor appointed by the Principal or the Engineer
under this clause 6.9.
Section 7 - Indemnity
Clause 7.1.1(a) is modified by adding the following words to the end of clause 7.1.1(a) as follows:
“including any damage to any road or other utility on public or private property.”
Clauses 7.1.3 and 7.1.4 are deleted and replaced with the following:
7.1.3
The Contractor’s liability to indemnify the Principal shall be reduced proportionately to the
extent that the act or omission of the Principal or its servants or agents may have
contributed to the loss, liability or Cost.
Section 8 - Insurance
8.1
Delete this clause.
A new clause 8.3.6 is inserted as follows:
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8.3.6
Public liability insurance must include the following:
(a)
Liability arising out of vibration or the weakening or removal of support;
(b)
Liability arising out of all Plant used for the Contract Works, including hired Plant;
(c)
Liability arising out of loss or damage caused by the Contractor to existing structures
and their contents, which are not subject to the Contract Works, but which may be in
proximity or adjacent.
Clauses 8.5.1 to 8.5.3 (inclusive) are deleted and replaced with new clauses 8.5.1 to 8.5.3 as follows:
8.5.1
The insurances required under clauses 8.2 and 8.3 shall be effected with insurers acceptable
to the Principal and in terms approved by the Principal and shall be in effect prior to the
commencement of the Contract Works. The acceptance and approval shall not be
unreasonably withheld.
8.5.2
The insurances required under clauses 8.2 and 8.3 shall not include a discretionary
cancellation clause unless they are annual policies.
8.5.3
The insurances required under clauses 8.2 and 8.3 shall provide that:
(a)
Except as otherwise approved by the Principal under clause 8.5.1, in the event of a
claim being made and accepted, the amount of the cover shall be automatically
reinstated to the full cover required by the Contract Documents;
(b)
Except in the case of an annual policy as noted in the Eighth to Eleventh Schedules,
the insurance shall not be cancelled for non-payment of premiums without five Days’
prior notification by the insurer in writing to the Contractor and the Principal;
(c)
Any insurance policy arranged in joint names shall include a cross liability clause such
that the insurance shall apply to the Contractor and the Principal as separate insured
parties;
(d)
Settlement of any claims shall not be deferred or delayed by reason of the exercise
by the insurer of rights of subrogation.
Clause 8.5.7 is modified by the addition of the following to the end of the existing clause:
8.5.7
Nothing in this provision shall limit the liability of the Contractor to the Principal, should the
Principal fail for any reason whatsoever to pay any insurance premium under the provisions
of this sub-clause.
Clause 8.5.8 is deleted and replaced with a new clause 8.5.8:
8.5.8
Any party that has received written advice under clause 8.5.3(b) shall forthwith advise the
other party.
A new clause 8.5.9 is inserted as follows:
8.5.9
The insurances required by the Contractor are to be arranged on the basis that they are
primary to and will respond in priority to any policies effected by the Principal which insure
similar interests.
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Clauses 8.6, 8.7 and 8.8 are deleted and replaced with new clause 8.6:
8.6
Principal to insure Contract Works
8.6.1
The Principal shall insure for amounts not less than the following sums:
(a)
The Contract Price after acceptance of the
Contractor’s Proposal, excluding any additions or
deductions that may be required to be made during
the course of the Contract:
Contract Price
(b)
For the cost of demolition, disposal and preparation
for replacement work:
10% of
Contract Price
(c)
For professional fees, including the cost of clerk of
works and inspectors
10% of
Contract Price
(d)
The value of items incorporated or to be incorporated
in the Contract Price, the cost of which is not included
in the Contract Price:
$Nil
(e)
For increased construction costs not already provided
for in the Contract Price during the period from
acceptance of the proposal or other offer to the issue
of the Defect Liability Certificate for the Contract
Works:
10% of
Contract Price
and such insurances shall be effected in the joint names of the Principal, the Contractor and
all Subcontractors and Suppliers. The insurance shall make provision for the automatic
change of cover for items (a) and (e) above to provide insurance cover for any additions to or
deletions from the Contract Price which occur after acceptance of the Contractor’s Proposal.
8.6.2
Notwithstanding anything contained in this clause 8.6 or any rule of law or equity to the
contrary, the insurance policies arranged by the Principal under this clause 8.6 are subject to
their own terms and shall not be construed so as to limit the Contractor’s liabilities under
clauses 5.6 and 7.1. In arranging the insurance policies, the Principal neither warrants nor
represents that the Contractor will be indemnified under this clause 8.6 to any greater extent
than the indemnity granted by the insurance policies. The Contractor shall fully indemnify
the Principal for all loss or expense which the Principal suffers where such loss or expense
arises out of the failure by the Contractor or the Contractor’s agents or servants or subcontractors to comply with the terms and conditions of any insurance policy arranged by the
Principal.
8.6.3
The Principal shall, in addition to the insurances provided for in clause 8.6.1, continue to
insure existing structures which are being added to, altered or repaired in its own name.
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8.6.4
The Contractor and its Subcontractors and Suppliers shall not be entitled to be indemnified
to the extent of any excess or “deductible” stated in the policy arranged by the Principal. The
deductible is $5,000 for existing structures and Contract Works, except testing and
commissioning for which the deduction is $25,000.
8.6.5
The Principal shall maintain insurance under clause 8.6.1 from the commencement of the
Contract Works up to the time the Contractor has (in the Principal’s opinion) fully satisfied
the Contractor’s obligations under the Contract.
8.6.6
The Principal shall, upon demand by the Contractor, deliver to the Contractor evidence that
all the insurances required to be effected by the Principal under this clause 8.6 have been
effected and are currently in force.
8.6.7
Insurance arranged by the Principal under this clause shall not relieve the Contractor of any
of its other obligations to insure under this Contract.
8.6.8
The insurances required under clause 8.6 shall not contain a discretionary cancellation
clause, but shall contain provisions to the same effect as in clause 8.5.3 and clause 8.5.8.
Notwithstanding the foregoing, the insurances under clause 8.6 may be in the form of an
annual policy, provided the policy is renewed or replaced so that the insurance cover remains
in force for the period required by clause 8.6.5.
8.6.9
If the Principal is in default of its obligations under clause 8.6 the Engineer shall by notice in
writing under clause 6.7 suspend the Contract Works until the default is remedied. The
Contractor may, after notifying the Principal in writing, arrange or keep in force the
insurance, and the suspension shall thereupon cease. The Contractor may pay any unpaid
premiums and recover the amount from the Principal.
Section 9 - Variations
9.1A
Proposed Variations
A new clause 9.1A is inserted before clause 9.1 as follows:
9.1A.1
The Engineer may instruct the Contractor to price the work involved in a proposed
Variation. The instruction will state the time within which the Contractor is to give the
price.
9.1A.2
The Contractor’s price must detail the cost build up of the price including references to
applicable, or analogous, work.
9.1A.3
The Contractor must not make any claim in relation to the price it is required to give under
this clause.
9.1A.4
The Engineer may, at its option, accept or reject a price from the Contractor, and will advise
the Contractor accordingly within ten Days of receiving the price. No work may proceed in
respect of the Variation unless the Engineer has first approved the price for the work in
writing. The Principal shall not be liable to pay for any work carried out over and above an
approved price without its prior written approval of a further price and the reason for the
additional cost which shall be provided by the Contractor.
Clause 9.1.5 is deleted and replaced with a new clause 9.1.5:
9.1.5
The Principal shall pay for the cost of any Variation which is expressly granted and
approved by the Engineer in writing, and is added to the Contract Price.
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9.2
Variation Orders
Clauses 9.2.2 to 9.2.4 are deleted and replaced with new clauses 9.2.2 and 9.2.3:
9.2.2
Where an instruction is given by the Engineer which is not in writing or is not expressly
stated to be a Variation, and the Contractor considers that the instruction involves a
Variation, the Contractor must before carrying out the instruction and, in any event within
five Days of receiving the instruction or such further time as deemed reasonably necessary
by the Engineer give written notice to the Engineer to that effect substantiated by details of
the Contractor’s claim. The Contractor's claim is not to be treated as a Variation until
accepted as such by the Engineer by notice in writing to the Contractor, such notice of
approval or otherwise to be given within five Days of receiving the Contractor’s claim, or
such further time as is reasonable having regard to the Due Date(s) for Completion and the
Contractor’s programme for the execution of the Contract Works.
9.2.3
Where under the Contract the Contractor is given an express entitlement to claim a
Variation or it is stated that a matter will be determined “as if a Variation”, the Contractor
must, as a condition precedent to having the matter treated and dealt with as if a Variation
and in addition to the requirements of clause 10.3.1 if it applies, comply with the following:
(a)
The Contractor must, within five Days of the Contractor becoming aware of a
possible entitlement to a Variation which the Contractor intends to claim, give
notice in writing to the Engineer; and
(b)
Within a further five Days or such further time as deemed reasonably necessary by
the Engineer the Contractor must give a further detailed notice to the Principal and
the Engineer setting out:
(i)
The circumstances giving rise to the possible claim for a Variation;
(ii)
The particular provision of the Contract which the Contractor believes confers
the entitlement to claim a Variation;
(iii)
The Contractor’s estimate of the additional Cost (if any); and
(iv)
The Contractor’s estimate of the additional time (if any) required.
Clause 9.3.10 is deleted and replaced with a new clause 9.3.10
9.3.10
Variations instructed by the Engineer and valued under clauses 9.1 to 9.3 shall be deemed
to include full allowance for time and no other adjustment for time related Costs shall be
made.
Clause 9.3.14 is deleted and replaced with a new clause 9.3.14.
9.3.14
The Contractor will not be entitled to the cost of processing Variations whether or not they
proceed, such costs are deemed to be included in the Contractor's preliminary and general
Costs.
9.5
Unforeseen physical conditions
A new clause 9.5.5 is inserted as follows:
9.5.5
This clause will not apply in respect of that part of the Contract Works which comprise
earthworks, rather clause 5.1 of the Amendments to General Conditions will apply.
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Section 10 – Time for Completion
Clause 10.1.2 is deleted and replaced with a new clause 10.1.2.
10.1.2
The Contractor shall commence the Contract Works on the possession date or dates
determined in accordance with clause 5.4.1 and shall then proceed with the execution of
the Contract Works with due diligence except as may be sanctioned or instructed by the
Engineer.
10.3
Extensions of Time
Clauses 10.3.1(a), (b) and (c) are deleted and replaced with new clauses 10.3.1(a), (b) and (c).
10.3.1 (a)
10.3.2
The net effect of any Variation where the Contractor has complied with the
procedure outlined in this clause 10.3.1(a). The Contractor shall use its best
endeavours to provide the necessary resources to ensure that Variations do not
cause delays to the Contract Works. If the Contractor feels that the Variation is
beyond its ability or resources and that the effect of the Variation will mean they are
unable to maintain the construction programme then the Contractor shall notify the
Engineer in writing within five Days of the issue of the Variation order. Any claim for
extensions of time for Variation delays, if the above procedure is not followed, will
not be allowed. No costs shall be payable by the Principal for any delays in the
Contract Works caused by or related to any Variation or proposed Variation.
(b)
Adverse Weather Conditions and the direct consequences where it causes
substantial delay to the critical path works; or
(c)
Any general strike, lockout or other industrial action in an area which includes the
Site, or any part of New Zealand if it has a general effect throughout New Zealand,
which affects the progress of the Works but was not caused by the Contractor.
Sub-clause (b) is amended so that the period of notice referred to is reduced from twenty
Days to ten Days and the words “or as soon as practicable thereafter” are deleted.
New clauses 10.3.8 to 10.3.13 are inserted as follows:
10.3.8 Where there has been a delay to the Contract Works which does not entitle the Contractor
to an Extension of Time pursuant to clause 10.3.1, the Contractor shall at its own cost take all
necessary steps as the Engineer may require to expedite progress by applying additional
resources if necessary or working longer hours in whatever manner he/she may require.
10.3.9 The following rules shall be applied to assessing a request for an extension of time:
(a)
The Contractor’s delay allowance included in the programme will be ignored;
(b)
The event which causes delay must be one which is mentioned in clause 10.3.1;
(c)
The event in respect of which the extension of time is sought must or will cause actual
delay to the Contractor;
(d)
The event in respect of which the extension of time is sought must or will cause actual
delay to the critical path elements of the Contract Works, which the Contractor must
show and demonstrate to the reasonable satisfaction of the Engineer; and
(e)
For events which concurrently cause the delay the Contractor will be entitled to an
extension of time for only the net effect of the concurrent delay.
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10.3.10 Where an extension of time is granted:
(a)
In respect of any of the events or circumstances referred to in clause 10.3.1(a), (e) and
(f) the Contractor shall be entitled to an adjustment to the Contract Price for delay
Costs incurred in relation to that extension at the working day rate approved by the
Engineer.
(b)
In respect of any of the events or circumstances referred to in clause 10.3.1(b), (c) and
(d) the Contractor shall not be entitled to an adjustment to the Contract Price for
delay Costs incurred in relation to that extension.
10.3.11 In any circumstances where there is a delay in the Contractor achieving a milestone date or
a due date for completion for which delay the Contractor is not entitled to an extension of
time each of the following apply:
(a)
The Contractor must take all necessary steps to overcome the delay at the
Contractor’s own cost;
(b)
The Contractor must ensure that the time lost as a result of delay is overcome
within one month of the delay occurring or such longer time as the Engineer may
determine;
(c)
No steps taken to accelerate the work as a result of the Contractor’s delay give rise
to any entitlement for the Contractor to claim for additional payment or for a
Variation.
10.3.12 If the Contractor is delayed by two or more events:
(a)
One of which entitles the Contractor to an adjustment to a Due Date for Completion
(Valid Event); and
(b)
One of which does not entitle the Contractor to an adjustment to a Due Date for
Completion (Invalid Event);
then the Contractor will be entitled to an adjustment of the relevant Due Date for
Completion only to the extent that the Valid Event which entitles the Contractor to
an adjustment exceeds the delay flowing from the Invalid Event.
10.3.13 Whenever the Contractor may be entitled to an extension of time the Principal may, to the
extent that it is reasonable, instruct the Contractor to overcome all or part of the delay by
accelerating the work or by applying additional resources if necessary. Compliance by the
Contractor with such an instruction shall be treated as if a Variation.
10.4
Certificate of Practical Completion
Clause 10.4.1 is deleted and replaced with a new clause 10.4.1:
10.4.1
Practical Completion is that stage in the execution of the work under the Contract when the
Contract Works or any Separable Portion are complete, in accordance with this clause and
the Contract Works may be lawfully occupied by the Principal or any person authorised by
the Principal, without being unreasonably inconvenienced by the rectification of minor
defects, and only where the Contractor has:
(a)
Delivered to the Principal all of the following (to the extent that the Contractor is
responsible under the Contract):
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(i)
All necessary authorities and certification relating to lawful occupation of the
Contract Works by the Principal.
(ii)
All relevant test certificates and approval certificates required for occupation
and use from relevant authorities.
(iii)
All inspection certificates required for occupation and use under any
applicable legislative requirement.
(iv)
All deeds of warranty, guarantee and producer statements that have not
already been provided.
(v)
Confirmation from each of the Principal’s Consultants stating that the
Contract Works or any Separable Portion have been inspected and qualify for
Practical Completion and providing their list of defects;
[(vi)
A BMG, BUG and a communication strategy that complies with the
requirements set out in MAN-6 pursuant to clause 5.22;]
(b)
At the Contractor’s cost, satisfied the Principal that it has done and it will do
everything necessary as may be required to facilitate the uplifting of the code
compliance certificate for the Contract Works, the Contractor has actually lodged an
application for the respective code compliance certificate on behalf of the Principal
and has obtained a Certificate for Public Use for the School, and the Engineer has
certified that all documents necessary to uplift the code compliance certificate have
been filed;
(c)
Completed all of the work except for minor omissions and minor defects which do
not prevent the works from being reasonably capable of being used for their
intended purpose, and the rectification of which will not prejudice the convenient
use of the works provided that the estimated value of such minor omissions and
defects (when aggregated) do not, in the Engineer's reasonable opinion, exceed the
amount retained for defects pursuant to clause 12.3.1(a)(ii) of the First Schedule,
Part A, Specific Conditions of Contract;
(d)
Connected, tested, balanced and certified all services as fit for operation for their
intended purpose in accordance with the Contract Documents;
(e)
Removed all rubbish from the Site and the building and site works have been
properly and effectively cleaned to an acceptable standard;
(f)
As required, assisted and provided the Principal or the Principal’s Representative
with relevant operations maintenance manuals and with such information as they
may reasonably require and facilitated an inspection of the Site in order to verify
Practical Completion. The operation and maintenance manuals are to be presented
in a hard folder with 2 copies to be provided. The Contractor must provide the
Engineer with one complete set of operation and maintenance manuals on CD Rom
with all files in colour format, clearly named and in sub-folders to match the lay-out
of the hard copies.
The Principal may, but is not obliged to, waive any of these requirements at its sole
discretion.
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A new clause 10.4.2A is inserted as follows:
10.4.2A Additional information required and the period within which it is to be provided is:
(a)
The Contractor’s draft as built drawings for services must be provided to the
Engineer no later than ten Days after the date of Practical Completion of the
Contract Works. Within ten Days after receipt by the Engineer from the Contractor
of review sets with the Engineer’s comments noted on them the Contractor must
deliver up to the Engineer all as built drawings, and a ‘complete for review’ set of all
operating and maintenance manuals that are at least at a point to enable the
Engineer to operate the Contract Works without reference to the Contractor, and in
a form acceptable to the Engineer. The as built drawings shall include a block plan
showing the location of all buildings relative to Site boundaries, with rooms, internal
partitions, pathways, covered ways and ramps shown in diagrammatic form
complete with room identification numbers.
(b)
Within ten Days of the date of Practical Completion the Contractor must deliver up
to the Principal all of the following where not already provided in accordance with
clause 10.4.1(a):
(i)
All other relevant test certificates and approval certificates required from
relevant authorities.
(ii)
All other inspection certificates required under any applicable legislative
requirement for occupation and use of the Contract Works for its intended
purposes.
(iii)
All other information and material as may be within the Contractor’s control
to enable the code compliance certificate for the Contract Works to be
uplifted.
Clause 10.4.2 is deleted and replaced with a new clause 10.4.2:
10.4.2
Where the Contractor believes the Contract Works qualify for a Certificate of Practical
Completion the Contractor shall provide the following information in writing to the
Engineer at least 48 hours prior to any inspection:
(a)
Contractor’s notification that a thorough inspection of the Contract Works has been
made, with a copy of the defects list from that inspection and a copy of the relevant
consultants’ approval(s); and
(b)
Contractor’s notification that the defects on the foregoing defects list have been
made good and the Contract Works are ready for inspection by the Engineer; and
(c)
That all appropriate information has been supplied to the building consent authority
responsible for inspections under the Building Act 2004 so that a code compliance
certificate can be issued; and.
(d)
That all necessary inspections of the Contract Works have been carried out by the
relevant authority.
Clause 10.4.5 is deleted and replaced with a new clause 10.4.5:
10.4.5 Prior to the issue of the certificate of Practical Completion a producer statement in the form
of the Sixth Schedule is required.
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10.6.1 Bonus
Section 10.6.1 is deleted in its entirety.
Section 11 – Defects Liability
Clause 11.3.1 is deleted and replaced with a new clause 11.3.1:
11.3.1
When the Contractor believes that the Contract Works or any Separable Portion qualify for
the issue of a Defects Liability Certificate on the basis that:
(a)
The Period of Defects Liability under 11.1.1 has expired;
(b)
The Contractor has obtained written confirmation from each of the Consultants that
the Contract Works have been inspected and qualify for the Defects Liability
Certificate;
(c)
The Contractor has remedied any minor omissions or minor defects under clauses
10.4.1, and any defects under clause 11.2; and
(d)
A code compliance certificate has been issued in respect of the Contract Works;
then the Engineer shall issue to the Contractor and to the Principal a provisional Defects
Liability Certificate confirming that the Period of Defects Liability has expired and that there
are no outstanding omissions or defects, along with a copy of the written confirmation
obtained from each of the Consultants pursuant to clause 11.3.1(b).
A new clause 11.5.3 is inserted as follows:
11.5.3
The guarantees will apply from Practical Completion of the Contract Works as specified in
clause 11.5.1.
Section 12 – Payments
A new clause 12.1A.1 is inserted as follows:
12.1A Construction Contracts Act 2002 (New Clause)
12.1A.1 This section 12 constitutes agreement by the Principal and Contractor on all of the
mechanisms referred to in section 14 of the Construction Contracts Act.
12.1
Contractor’s Payment Claims
A new clause 12.1.2(f) is inserted as follows:
12.1.2(f)
Be in a form approved by the Engineer.
A new clause 12.1.2(b)(vii) is inserted as follows:
12.1.2(b)(vii)
The total amount claimed less any deductions for retentions or otherwise required by
the Contract or by law and the due date for payment of the net amount after such
deductions as may be applicable.
A new clause 12.1.5 is inserted as follows:
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12.1.5
12.2
The Contractor must comply with the following requirements before submitting a claim for
payment under the Contract:
(a)
Sign the Contract Documents;
(b)
Sign the guarantee as set out at the Fourteenth Schedule (if not already provided in
accordance with clause 2.7.2); and
(c)
Provide evidence that the insurance policies required of it are in place to the
satisfaction of the Principal.
Progress Payment Schedules
New clauses 12.2.8 to 12.2.11 are inserted as follows:
12.2.8
The Principal is entitled to set off against any sums that would otherwise be due to the
Contractor amounts in respect of any claims it has including damages for breach of contract
by the Contractor (whether pursuant to this Contract or any other contract between the
Principal or the Ministry of Education and the Contractor).
12.2.9
A payment does not imply acceptance of the work covered by a progress payment schedule
nor does it relieve the Contractor from responsibility to remedy or replace work or
materials not in accordance with the Contract Documents.
12.2.10 In the event that any part of the work is found not to comply with the Contract Documents
after the Period of Defects Liability has expired, the Contractor is liable to remedy defects
attributable to any unfulfilled obligation of the Contractor.
12.2.11 No payment by the Principal or absence of payment absolves the Contractor from liability
for loss or damage arising out of breach of contract, dishonesty, negligence, fraud or
fraudulent concealment relating to the Contract Works.
12.4
Final payment claim
Clause 12.4.1 is amended as follows:
12.4.1
Delete “expiry of the Period of Defects Liability” and substitute “date of Practical
Completion of all of the Contract Works”.
The following words are inserted at the end of clause 12.4.1:
The Contractor must not submit a final payment claim until it has delivered to the Principal
the complete and executed Contract Documents and all forms of guarantees required by
the Contract Documents in accordance with clause 11.5 of the General Conditions. The
Principal will have no liability to pay the amount specified in the final payment claim until it
has received the complete and executed Contract Documents and executed originals of all
such forms of guarantee.
A new clause 12.4.4 is inserted as follows:
12.4.4
A final payment claim is deemed a “payment claim” for the purposes of Part 2, Subpart 3 of
the Construction Contracts Act.
12.5.4
The first sentence of clause 12.5.4 is deleted and replaced with the following sentence:
Should the issue of the Final Payment Schedule be delayed by more than one Month of the
later of: (a) the receipt by the Engineer of the Contractor’s final payment claim and (b) the
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expiry of the Period of Defects Liability, then the Engineer shall immediately issue a
statement of his or her reasons why such a Final Payment Schedule cannot be issued or
otherwise dealt with in accordance with the Contract.
A new clause 12.6A is inserted as follows:
12.6A
Principal’s Right to Make Direct Payments
12.6A.1 Should the Principal have reasonable grounds to consider that the Contractor has defaulted
in making payment to any Subcontractor or Supplier in respect of any part of the Contract
Works for which the Contractor has been paid by the Principal, the Principal may require
that, within five Days of notification by the Principal to the Contractor, the Contractor:
(a)
Obtains written confirmation from the Subcontractor or Supplier that the
Subcontractor or Supplier has received all monies due and owing to it from the
Contractor under the terms of the agreement between the Contractor and the
Subcontractor or Supplier; or
(b)
Justify to the Principal that the payment in question is in dispute; or
(c)
Make payment to the Subcontractor or Supplier to the extent required by the
agreement between the Contractor and the Subcontractor.
12.6A.2 If the Contractor fails to undertake one of the courses of action outlined in clause 12.6A.1
within the time stipulated, the Principal has the right to make a deduction on the Payment
Schedule, pay to that Subcontractor or Supplier directly or otherwise recover the amount
concerned from the Contractor.
New clauses 12.9.4 and 12.9.5 are inserted as follows:
12.9.4
12.9.5
The amount provided in the Contract Documents in respect of the Provisional Sums (if any)
represent the maximum amount that the Contractor is allowed to claim on that particular
item listed as a Provisional Sum. The Contractor warrants and undertakes to the Principal
that the Contractor:
(a)
Is satisfied that the Provisional Sums are sufficient to cover the cost of undertaking
the work for those items listed, and
(b)
Is not entitled to and will not claim, any additional costs in undertaking that part of
the Contract Works specified as a Provisional Sum.
Items covered by Provisional Sums may not comprise works which are requirements of and
necessary for the construction and operation of the Contract Works and are limited to
items that are non-essential.
Section 13 - Disputes
13.1.1
Amend clause 13.1.1 to replace “3 months” with “2 months”.
A new clause 13.1.A is inserted as follows:
13.1A
Adjudication – Construction Contracts Act 2002
13.1A.1 The dispute resolution mechanisms provided in Section 13 are in addition to and are not in
substitution for adjudication under the Construction Contracts Act and vice versa.
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13.1A.2 An adjudicator has only the jurisdiction and powers conferred by the Construction
Contracts Act.
13.1A.3 An adjudicator appointed to adjudicate on a dispute under this Contract must have the
following qualifications, expertise and experience:
(a)
No less than five years practical experience directly in or consulting to or advising
the construction industry in New Zealand;
(b)
An industry qualification by degree or other recognised tertiary qualification in
quantity surveying; engineering; carpentry; law (and holding a current practising
certificate); or dispute resolution;
(c)
Should be on the list of adjudicators of a recognised appointing authority; and
(d)
A member of the professional body or organisation relevant to their qualification
and expertise.
Clause 13.2.3 is deleted and replaced with a new clause 13.2.3:
13.2.3
The Engineer will initially review any dispute between the Principal and the Contractor. If
the matter cannot be resolved and with consent of the Principal, and alongside the
mechanisms set out in clause 13.1A , the Engineer and the Contractor will jointly appoint a
LEADR approved mediator to assist them to resolve the matter. The Contractor and the
Principal shall each pay one half of the costs of the agreed mediator.
Section 14 – Frustration and Default
Clause 14.2.2 is modified by the deletion and replacement of the final paragraph with:
14.2.2
The Principal, may at its option, after giving notice to the Contractor immediately terminate
the Contract without prejudice to all existing rights and remedies available to the Principal
under the Contract and at law.
Section 15 – Service of Notices
Clause 15.1.2 is modified as follows:
Add after the words “or delivered to their address” the words “or sent by facsimile
transmission to their facsimile numbers or sent to an email address (and receipt is confirmed
by return email)”.
The following is added to the end of clause 15.1.2:
Any notice sent by facsimile transmission during a Day between 8am and 5pm shall be
deemed to be received upon completion of an error free transmission and in every other
case shall be deemed to be received at 8am on the next Day after it was sent.
Section 16 – Miscellaneous Provisions (New Section)
New clauses 16.1 and 16.2 are inserted as follows:
16.1
Non Waiver
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No waiver or amendment of any provision of the Contract shall be effective unless it is
recorded in writing and has been signed by both parties. Any waiver shall only affect the
matter that it expressly refers to and shall not apply to any other or later matter.
16.2
Assignment
The Contractor must not assign or transfer the Contract without the prior written approval
of the Principal. The Principal may assign the Contract at the Principal’s sole discretion.
[Section 17 – Discretionary Termination (New Section)]
17.1
[In addition to any other rights of termination that the Principal may have under the
Contract or at law generally, the Principal reserves the right to terminate the Contract at any
time, from the date of execution of the Contract until Practical Completion of the last
Separable Portion. When exercising this right, the Principal shall give at least [three
months] notice to the Contractor who shall then do everything necessary to comply with the
notice and demobilise from the Site. At the time of giving notice to the Contractor the
Principal shall inform the Contractor of the date of termination.]
17.2
[The Principal shall meet the Costs of early termination and demobilisation and the
Contractor shall be entitled to be paid in accordance with the Contract for all work up to the
date of termination. The Contractor shall be entitled to any other Costs which the
Contractor can demonstrate are a direct result of such early termination but it will not be
entitled to any payment for anticipated profit or for preliminary and general Costs in respect
of the unfinished work or any consequential loss of any kind whatsoever.]
[This provision will only be applicable for large projects. Will not be applicable for projects
with a short timetable.]
Section 18 - Contractor to Observe Confidentiality (New Section)
New clauses 18.1 to 18.4 are inserted as follows:
18.1
The Contractor must use its best endeavours to keep confidential all matters relating to the
Contract. The Contractor must not disclose any information except to the extent that:
(a)
The disclosure of that information is necessary for the Contractor to carry out its
obligations under this Contract to enforce any of its rights under it; or
(b)
That disclosure is required by law.
18.2
The Contractor must keep confidential any claim or dispute under the Contract.
18.3
The Contractor must not advertise its relations with the Principal or its involvement in the
Contract Works without the written permission of the Principal.
18.4
The Contractor must ensure that its Subcontractors and Suppliers are bound by a clause
similar to this clause.
Section 19 – Entire Agreement (New Section)
A new clause 19.1 is inserted as follows:
19.1
This Contract evidences the entire agreement between the Contractor and Principal in
connection with the Contract Works and supersedes and extinguishes all prior agreements
between the Contractor and Principal relating to such matters.
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Section 20 – Privity of Contract – Board of Trustees (New Section)
New clauses 20.1 and 20.2 are inserted as follows:
20.1
This section applies if the Principal is a Board of Trustees for a school.
20.2
The parties acknowledge that all of the provisions of this Contract which confer a benefit on
the Board of Trustees shall also confer a benefit on the Ministry of Education and for the
purposes of the Contracts (Privity) Act 1982 all such provisions shall be enforceable by the
Ministry of Education against the Contractor and any third party bound by the Contract
Documents
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Second Schedule
Contract Agreement
Contract for Board of Trustees of [School], [c/- address], for [description of works] at
[description of school].
Agreement dated
[2014]
Parties
Board of Trustees of [school] (Principal)
[
] (Contractor)
Introduction
The Principal wishes to engage the Contractor to construct, complete and remedy defects in respect
of the Contract Works, and do all things that are described in the Contract Documents.
It is agreed as follows:
1
In this Contract words and expressions shall have the same meanings as are assigned to them
in the General Conditions of Contract.
2
The Contractor shall construct, complete, deliver, maintain, and remedy any defects in the
Works.
3
The Principal shall pay the Contractor that proportion of the Contract Price that is payable to
it.
4
Each party shall carry out and fulfil all other obligations imposed on that party by the
Contract Documents.
5
The Contract Documents comprise the documents listed below. Each item listed shall prevail
over any item appearing lower in the list where any conflict or ambiguity between them
arises.
(a)
First Schedule Part A- Specific Conditions of Contract;
(b)
First Schedule Part B - Other Conditions of Contract;
(c)
The General Conditions of Contract, NZS3910:2003;
(d)
The Second Schedule – Contract Agreement;
(e)
Preliminaries and General, Scope of Works, Drawings and Specifications (as
approved and/or provided by the Engineer) including agreed notifications and
clarifications;
(f)
The Fourth Schedule (amended)– Form of Contractor’s Bond;
533565811
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6
7
(g)
The Sixth Schedule - Form of Producer Statement - Construction;
(h)
A copy of the Principal’s Contract Works insurance cover note;
(i)
The Eight Schedule – Information as to public liability insurance;
(j)
The Ninth Schedule – Information as to the Contractor’s construction machinery
insurance;
(k)
The Tenth Schedule – Information as to the Contractor’s motor vehicle insurance;
(l)
The Eleventh Schedule – Information as to Contractor’s Professional Indemnity
Insurance;
(m)
The Twelfth Schedule - Form of Warranty and Guarantee for the Contractor and
Subcontractors, as appropriate;
(n)
The Thirteenth Schedule – Agreement in respect of off-site materials, as
appropriate;
(o)
The Fourteenth Schedule – Form of Weathertightness Guarantee;
(p)
The Weathertightness requirements for schools (Ministry of Education – April 2011)
and subsequent amendments thereto;
(q)
Post-tender correspondence;
(r)
Notification of the acceptance of the Contractor’s tender;
(s)
The Contractor’s tender;
(t)
Notices to tenders; and
(u)
Request for Tenders.
The following do not form part of the Contract Documents.
(a)
Cost fluctuation adjustment by indexation (Appendix A);
(b)
Roading construction contract (Appendix B);
(c)
Term maintenance contracts (including road maintenance contracts) (Appendix C);
(d)
The Fourth Schedule - Form of Principal’s bond; and
(e)
The Fifth Schedule - Form of Contractor’s bond in lieu of retentions.
Counterparts: This Contract Agreement may be executed in any number of counterparts
(including facsimile and/or pdf copies) and provided that every party has executed a
counterpart, the counterparts together shall constitute a binding and enforceable agreement
between the parties.
This is lump sum contract and the Accepted Tender Price (being accepted by the Principal as
tendered by the Contractor) is [ $
].
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Executed as a contract by
Board of Trustees of [school], acting by and
through [
], as Principal
[name]
Address of Principal
Address
Facsimile
Attention
Telephone
Signed for and on behalf of [
Contractor
] as
Director/authorised signatory
Director/authorised signatory
Print Name
Print Name
Witness to signature where only one director
Signature
Print Name
Occupation
Address
Address of Contractor
Address
[
]
Facsimile
(0 ) [
]
Attention
]
Telephone
(0 ) [
]
[
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39
Third Schedule
Contractor’s Bond in relation to [description
of school]
Board of Trustees of [School]
as Principal
[
as Contractor
]
[
as Surety
]
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Deed dated
2014
Parties
[
] (with its successors and permitted assigns called the Contractor)
[
] (Surety)
Introduction
A
The Contractor has entered into an agreement with the Board of Trustees of [School], c/[Address] (the Principal) to carry out and fulfil the obligations imposed on the Contractor by
the Contract Documents.
B
The Contractor has agreed to provide the Principal with security in the form of a bond to
ensure performance of the Contractor's obligations under the Contract Documents.
By this Deed
1
The Contractor and Surety unconditionally and irrevocably undertake to the Principal to pay
immediately on demand any sums or sums which may from time to time be demanded by
the Principal pursuant to the provisions of clause 2 up to a maximum aggregate sum of $[
] (the Guaranteed Amount) and the Contractor and Surety, and their successors and assigns
are jointly and severally bound for payment of the Guaranteed Amount to the Principal.
2
Any demand by the Principal pursuant to clause 1 shall be in writing and shall be
accompanied by a certificate from the Engineer to the Contract, advising of default(s) by the
Contractor of its obligations under the Contract Documents which have not been remedied in
accordance with the Contract Documents and certifying an amount payable by the
Contractor as a result of such default(s), (which certificate except in the case of manifest
error, shall be conclusive evidence of such breach and the amount payable). The amount
demanded shall be paid by the Surety to a bank account advised by the Principal.
3
The undertaking contained in the bond shall terminate upon the earlier of the following
events:
(a)
(b)
(c)
Upon payment by the Surety of the Guaranteed Amount in the aggregate in
accordance with clause 1; or
The Principal notifies the Surety in writing that this undertaking is no longer required;
Ten Days notice after the issue of the Certificate of Practical Completion pursuant to
clause 10.4 of the Amendments to the General Conditions of the Contract.
4
Except as provided in clause 3 above this bond shall be and remain in full force and effect.
5
The Surety shall not be released from any liability under this bond:
(a)
(b)
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By any alteration in the terms of the Contract Documents between the Principal and
the Contractor;
By any alteration in the extent or nature of the Contract Works to be completed,
delivered and having defects remedied;
41
(c)
(d)
By any allowance of time by the Principal or by the Engineer appointed by the
Principal under the Contract Documents;
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.
6
Any notice by the Principal pursuant to this deed shall be sent by registered mail or delivered
by hand to the Surety at [insert address], (Attention: Sureties Manager).
7
This bond shall be governed by New Zealand law.
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Execution
Signed for and on behalf of [
Contractor by:
] as
Director/authorised signatory
Director/authorised signatory
Print Name
Print Name
Witness to signature where the Contractor has
only one director
Signature
Print Name
Occupation
Address
Signed for and on behalf of [
Surety by:
] as
Director/authorised signatory
Director/authorised signatory
Print Name
Print Name
Witness to signature where only one director
Signature
Print Name
Occupation
Address
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Twelfth Schedule
Warranty and Guarantee
relating to [
]
Board of Trustees of [School]
as Principal
[
as Contractor
]
[
as Subcontractor
]
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Form of Guarantee – Contractor and Subcontractor Continuity Guarantee
Deed dated
[2014]
Parties
[
] (with its successors and permitted assigns called the Contractor)
[insert name of Subcontractor or Supplier concerned,] (with its successors and permitted
assigns called the Subcontractor)
Board of Trustees of [School] (the Principal)
Introduction
A
By an agreement dated the ................ day of ..............................[2014] (Contract Documents)
made between the Principal and the Contractor, the Contractor agreed to carry out the
Contract Works.
B
Part of the Contract Works to be carried out and which is more particularly specified in the
schedule to this guarantee (Works) has been, or will be, carried out by the Subcontractor.
C
Pursuant to the provisions of the Contract Documents, it is a condition that the Contractor
and Subcontractor jointly and severally enter into this guarantee in favour of the Principal,
(Guarantee).
By this Deed
1
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For the purpose of this guarantee:
(a)
The expression “defect” or "defects" extends to include all defects, faults, omissions,
shrinkages, undue deterioration and other faults, which are due to Materials or
workmanship not being in accordance with the Subcontractor’s contract for
professional services dated [____________], or the warranty contained in clause 2;
(b)
The expression "repair” includes and extends to renewal and/or replacement
necessary to remedy defects;
(c)
Any notice required to be given by the Principal to the Contractor or the
Subcontractor pursuant to the provisions of this guarantee shall be deemed to have
been validly and effectually given by leaving the same at or posting it to the
registered office of the Contractor or the Subcontractor or, if there is no such
registered office, by leaving it at or posting it to the business address of the
Contractor or the Subcontractor last known to the Principal. In the event of such
notice being given by post the notice shall be deemed to have been received on the
day after it is posted;
(d)
Except as expressly stated otherwise in this guarantee, the undertakings, warranties,
covenants, agreements and other obligations of either the Contractor or the
45
Subcontractor in this guarantee shall bind and be deemed to have been given or
assumed by each of them jointly and severally;
2
3
(e)
Except where the context requires otherwise or as expressly modified by this
guarantee, defined references and terms in this guarantee shall have the same
meaning as in the Contract Documents;
(f)
References to clauses or schedules are references to clauses or schedules of this
guarantee;
(g)
The obligations placed upon the Contractor pursuant to this guarantee are in
addition to and not in substitution for any other obligation placed upon the
Contractor pursuant to the Contract Documents or otherwise arising at law.
The Contractor and the Subcontractor warrant to and covenant with the Principal that:
(a)
All Materials supplied by the Contractor and the Subcontractor will be new and of
good quality and in accordance with the provisions of the Contract Documents; and
(b)
All work involved in carrying out the Works will be carried out to the highest standard
in accordance with good trade practices applicable to the Works and in accordance
with the provisions of the Contract Documents.
Each of the Contractor and the Subcontractor guarantee to the Principal that it shall on
demand by the Principal and at their own expense:
(a)
Rectify all defects; and
(b)
Be liable to the Principal for all direct or foreseeable damage or losses to the Contract
Works occasioned by or arising out of any defect,
occurring during the period specified in the schedule to this guarantee, which period shall
commence from Practical Completion.
4
All rectification of defects, or any damage arising out of any defects, shall be carried out at
the Contractor’s and/or the Subcontractor’s cost in all things, promptly, in a good and
workmanlike manner, and to the satisfaction of the Principal. If any building consent or
other statutory approval or consent is required for the rectification of any defect, or any
damages arising out of the same, then the Subcontractor and/or the Contractor shall obtain
such consent or approval at its cost.
5
If the Contractor or the Subcontractor does not repair any defect or make good any damage
or loss within five Days of receiving notice, or such further time as is reasonable in all the
circumstances having regard to the nature of the defect or damage or loss, the Principal may
carry out the work and/or make good the damage or loss specified in the notice and recover
all costs thereby incurred from the Contractor and/or the Subcontractor but without
releasing the Contractor and the Subcontractor from any obligation or liability. Such costs
may include the cost of engaging services, all labour, material, travelling and other charges
incurred by the Principal in repairing such defect or making good any such damages or loss.
6
The Contractor and Subcontractor shall not be liable for any direct, indirect or consequential
loss or damage to the extent that the loss or damage is caused by:
(a)
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Any act, omission or negligence of the Principal or any other person for which the
Principal as between itself and the Contractor is responsible; or
46
(b)
Earthquake or war; or
(c)
Any forces of nature which with reasonable foresight and ability on the part of the
Contractor and the Subcontractor one could not foresee or provide against.
7
The Contractor and the Subcontractor are legally liable to the Principal for, any costs, claims,
liabilities, or expenses which the Principal may incur or for which the Principal may become
liable arising from any failure by the Contractor or the Subcontractor to promptly rectify all
defects notified to it under this guarantee.
8
If any item is repaired or replaced under the provisions of this guarantee the guarantee as it
applies to the repaired or replaced item shall be for a period equal to the original guarantee
period from the date of the repair or replacement was completed.
9
The covenants on the part of the Subcontractor contained in this guarantee:
(a)
Shall not be deemed to be in substitution for or limit in any way the Contractor’s
liability to the Principal or the Subcontractor liability to the Contractor under the
Contract Documents; and
(b)
Are in addition to the obligations of the Contractor under the Contract Documents
and accordingly:
(i) the Principal shall not be precluded from exercising any rights it may have against
the Contractor in respect of any defects or damages or losses to which this
guarantee may apply, nor shall the exercise of the Principal's rights under this
guarantee be conditional upon the exercise of those rights; and
(ii) the Subcontractor shall not be excused in whole or in part in respect of its liability
under this guarantee by reason of any default on the part of the Contractor or any
subcontractor of its/their obligations under this guarantee, whether or not such
default caused or contributed to the defects, damage or losses complained of by
the Principal under this guarantee, and the Subcontractor shall not be liable to the
Contractor for any liability of the Contractor to the Principal other than pursuant
to the terms of this guarantee.
10
In the event that this guarantee is executed by the Contractor and Subcontractor prior to the
issue of a certificate of Practical Completion, no Variation of the Works subsequent to the
execution of this guarantee and before the date of the issue of a certificate of Practical
Completion shall be deemed to vary the liability of the Contractor or the Subcontractor
under this guarantee, and all references to the Works shall be deemed to include the Works
as originally specified together with such Variations thereto and the issuing of any certificate
of Practical Completion or the final certificate of completion in respect of the Works or any
part of the Works (or of the Contract Works of which it forms part) shall not affect the
liability of the Contractor or the Subcontractor under this guarantee.
11
The Contractor and Subcontractor acknowledge that they have read the Contract Documents
attached to this guarantee and that they are fully conversant with the provisions of the
Contract Documents.
12
The Subcontractor covenants that in the event that the Contract between the Contractor and
the Principal is determined under the Contract Documents or otherwise as permitted at law,
the Subcontractor will, if required by the Principal, complete the Works under the same
conditions and for the same consideration as originally agreed between the Contractor and
the Subcontractor.
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Schedule
The Works:
Period: [ ] years from Practical Completion or an equivalent period following the rectification of
any defect or damage pursuant to this guarantee, whichever is the later.
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Executed as a deed
Signed for and on behalf of [
Subcontractor by:
] as
Director/authorised signatory
Director/authorised signatory
Print Name
Print Name
Witness to signature where the Subcontractor has
only one director
Signature
Print Name
Occupation
Address
Signed for and on behalf of [
Contractor by:
] as
Director/authorised signatory
Director/authorised signatory
Print Name
Print Name
Witness to signature where the Contractor has
only one director
Signature
Print Name
Occupation
Address
533565811
49
Thirteenth Schedule
Agreement in respect of Off-Site Materials
relating to [
]
Board of Trustees of [School]
as Principal
[
as Contractor
]
[
as Supplier
]
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50
Agreement dated
[2014]
Parties
Board of Trustees of [School] (the Principal)
[insert name of Contractor] (the Contractor)
[insert name of Supplier] (the Supplier)
Introduction
A
The Principal and the Contractor are parties to the Contract.
B
The Contractor and the Supplier have entered into an agreement for the performance
by the Supplier of a certain part or parts of the Contract Works.
C
The Contractor has requested the Principal to certify for payment to the Contractor for
certain materials intended to be used by the Contractor in the Contract Works
notwithstanding that delivery thereof has not been made to the Site.
D
The Principal has agreed to certify payment for such materials notwithstanding that
they have not been delivered to the Site subject to the Contractor and the Supplier
entering into this agreement.
It is agreed
1
Definitions and Interpretation
1.1
Definitions
In this agreement unless the context otherwise requires:
Contract means the agreement signed between the Principal and the Contractor dated
the
day of [2014]; and
Materials means the materials for the Contract Works which are presently at the
premises of the Supplier or the Contractor and listed at Schedule 1.
1.2
Interpretation
Words and phrases in this agreement shall have the same meaning as is ascribed to
them under the Contract except where the context or any express provision of this
agreement requires otherwise.
1.3
Construction of certain references
(a)
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In this agreement, unless the context otherwise requires:
1
(i)
paragraph headings and table of contents are not to be used to
construe this document; and
(ii)
reference to the schedule is reference to the schedule to this
agreement and the schedule and the provisions and conditions
contained in the schedule shall have the same effect as if set out in the
body of this agreement.
2
Obligations joint and several
2.1
The undertaking, warranties, covenants, agreements and other obligations of the
Contractor and the Supplier bind and are taken to have been given or assumed by each
of them severally and by both of them jointly and severally.
3
Identity of materials
3.1
The Materials consist of materials for the Contract Works and are presently at
premises of the Supplier or the Contractor.
3.2
The Contractor and Supplier grant the Principal a security interest over the Materials,
to be registered and perfected by a financing statement lodged on the Personal
Property Securities Register (PPSR). The security interest is a purchase money security
interest as the Principal’s funds have paid for the Materials.
3.3
The Supplier and the Contractor agree that they will cause the Materials to be set
apart at their respective premises protected from the weather as appropriate 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 material used to mark the Materials and
the procedure by which the mark is applied to the Materials shall be such material and
procedure stipulated in writing by the Principal.
3.4
Neither the Contractor nor the Supplier will permit, allow or cause the Materials to be
taken away from the premises where they are now, except for the purpose of being
transported to and used in the Contract Works or used in the manufacture or
prefabrication of materials or items for the Contract Works, and the Contractor and
the Supplier grant the Principal a security interest in the items manufactured or
prefabricated accordingly, which will be registered on the PPSR.
3.5
The Principal upon being satisfied that the Materials have been set apart and marked
as aforesaid may (at its option) include in any progress payment certificate issued the
value of the Materials calculated in accordance with the Contract provided however
that the Principal shall not be obliged to issue any such certificate. Upon the
Contractor receiving payment under such certificate, such materials shall become the
property of the Principal free of all charges and encumbrances of any nature
whatsoever. The Contractor and the Supplier acknowledge that until the Materials are
delivered to the Site, they hold the Materials as bailee for reward of the Principal and
that a fiduciary relationship in that regard exists between the Principal and the
Supplier and the Principal and the Contractor, as the case may be.
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2
4
Access
4.1
The Contractor and the Supplier grant to the Principal and its agents the free and
unencumbered right of access to the premises to:
(a)
Inspect the Materials, the mark and verify the setting apart of the Materials;
(b)
Take possession of the Materials;
(c)
Remove the Materials from the premises.
The Supplier and the Contractor are to take all steps and do all things as is necessary to
ensure that the Principal obtains access to the premises for the purposes of this
agreement.
5
Risk of the materials
5.1
The Contractor and Supplier shall not except for use in or upon the Contract Works,
remove or cause or permit the Materials to be moved or removed from the premises,
nevertheless the Contractor and Supplier shall be responsible to the Principal for any
subsequent loss or damage and for the cost of storage (if any), handling and insurance
of the same in terms of the Contract. The Contractor shall furnish the Principal with
evidence that the Materials are insured against all risks to the Principal’s satisfaction
and shall record the Principal as an insured party on the relevant policy.
6
Transportation of materials
6.1
The Supplier will, when required so to do by the Contractor or the Principal, arrange
for the transportation of the Materials to the Site. Transportation will be at the cost of
the Contractor and/or Supplier in all things including loading, unloading, freight and
insurance charges.
7
Powers of the Principal
7.1
Nothing in this agreement is considered to take away or affect the Principal’s powers
to order:
(a)
Materials which are not in accordance with the drawings and specifications to
be removed from the Site; and
(b)
The substitution of Materials by the Contractor at his own risk and expense,
and nothing contained in this agreement is considered to take away or affect any other
powers conferred on the Principal.
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3
Executed as an Agreement by
Signed for and on behalf of [
Supplier by:
] as
Director/authorised signatory
Director/authorised signatory
Print Name
Print Name
Witness to signature where only one director
Signature
Print Name
Occupation
Address
Signed for and on behalf of [
Contractor by:
] as
Director/authorised signatory
Director/authorised signatory
Print Name
Print Name
Witness to signature where only one director
Signature
Print Name
Occupation
Address
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4
Executed as a contract by
Board of Trustees of [School], acting by and
through [
], as Principal
[
Address of Principal
Address
Facsimile
Attention
Telephone
533565811
]
5
Schedule 1
[Attach list of relevant materials]
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6
Fourteenth Schedule
Form of Weathertightness Guarantee
relating to [
]
Board of Trustees of [School]
as Principal
[
as Contractor
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]
7
This Deed is made on
[
[2014]
] (with its successors and permitted assigns called the Contractor).
In favour of the Board of Trustees of [School], (the Principal).
Introduction
A
By an agreement dated the
day of
[2014] (Contract
Documents) made between the Principal and the Contractor, the Contractor agreed to
carry out the Contract Works.
B
Pursuant to the provisions of the Contract Documents, it is a condition that the
Contractor furnish this guarantee in favour of the Principal.
By this Deed:
1
For the purpose of this guarantee:
(a)
The expression "defects" extends to include all defects, faults, omissions,
shrinkages, undue deterioration and other faults which are due to Materials or
workmanship not being in accordance with the Contract Documents or the
warranty contained in clause 2;
(b)
The expression ‘repair’ includes and extends to renewal and/or replacement
necessary to remedy defects;
(c)
Any notice required to be given by the Principal to the Contractor pursuant to
the provisions of this guarantee shall be deemed to have been validly and
effectually given by leaving the same at or posting it to the registered office of
the Contractor or, if there is no such registered office, by leaving it at or
posting it to the business address of the Contractor last known to the Principal.
In the event of such notice being given by post the notice shall be deemed to
have been received on the day after it is posted;
(d)
Except where the context requires otherwise or as expressly modified by this
guarantee, defined references and terms in this guarantee shall have the same
meaning as in the Contract Documents; and
(e)
References to clauses or schedules are references to clauses or schedules of
this guarantee.
2
The Contractor warrants to and covenants with the Principal that the Contract Works
shall remain weathertight for a period of ten years from Practical Completion for the
last Separable Portion.
3
The Contractor guarantees to the Principal that it shall at its own expense repair all
defects that may compromise the weathertightness of the Contract Works; and make
good any damage to the building caused by any defect in the weathertightness of the
Contract Works.
4
The Contractor indemnifies the Principal in respect of all losses incurred by the
Principal that may be occasioned by or arise out of any defect in the weathertightness
of Contract Works.
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1
5
If the Contractor does not repair any defect within ten Days, or where imported plant
or materials are required for such repair, within a reasonable period of receiving notice
from the Principal that the Contract Works are not weathertight, the Principal may
remedy the defect and recover all costs thereby incurred from the Contractor but
without releasing the Contractor from any obligation or liability. Such costs may
include the cost of all labour, material, travelling and other charges incurred by the
Principal in repairing such defect.
6
The Contractor shall not be liable for any direct, indirect or consequential loss or
damage solely attributable to:
7
(a)
Any act, omission or negligence of the Principal or any other person for which
as the Principal as between itself and the Contractor is responsible; or
(b)
Earthquake or war; or
(c)
Any forces of nature which reasonable foresight and ability on the part of the
Contractor one could not foresee or provide against; or
(d)
Faults in existing buildings not comprising the Contract Works.
The Contractor further indemnifies and holds the Principal harmless from and against
any costs, claims, liabilities, or expenses which the Principal may incur or for which the
Principal may become liable arising from any failure by the Contractor to rectify any
defect in accordance with the requirements of paragraph 5 of this schedule.
Execution
Signed for and on behalf of [
Limited as Contractor by:
]
Director
If the Contractor only has a sole director
then witnessed by:
Director
Signature of witness
Name of witness
Occupation
City/town of residence
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