Water Corporation July 2012 Version AS (Incorporating Amendment No. 1)

Transcription

1 Water Corporation July 2012 Version AS (Incorporating Amendment No. 1) AS Water Corporation General conditions of contract amended from Australian Standard Minor Works Contract Conditions (Principal Administered) (Version July 2012) This document is based on Standards Australia Ltd copyrighted material that is distributed by SAI Global Ltd on Standards Australia Ltd s behalf. It may be reproduced and modified in accordance with the terms of SAI Global Ltd s licence 1206-c180 to Water Corporation ( the Licensee ). All amended, marked up and licensed copies of this document must be obtained from the Licensee. Standards Australia Ltd s copyright material is not for resale, reproduction or distribution in whole or in part without written permission from SAI Global Ltd: tel copyright@saiglobal.com

2 This Australian Standard was prepared by Committee OB-003, General Conditions of Contract. It was approved on behalf of the Council of Standards Australia on 29 October This Standard was published on 25 February The following are represented on Committee OB-003: Association of Consulting Engineers Australia Australian Chamber of Commerce and Industry Australian Procurement and Construction Council AUSTROADS Construction Industry Engineering Services Group Construction Policy Steering Committee Electricity Supply Association of Australia Institution of Engineers, Australia Institution of Professional Engineers, New Zealand Law Council of Australia Master Builders Australia National Construction Council of the Australian Industry Group Process Engineers and Constructors Association Royal Australian Institute of Architects Keeping Standards up-to-date Standards are living documents which reflect progress in science, technology and systems. To maintain their currency, all Standards are periodically reviewed, and new editions are published. Between editions, amendments may be issued. Standards may also be withdrawn. It is important that readers assure themselves they are using a current Standard, which should include any amendments which may have been published since the Standard was purchased. Detailed information about Standards can be found by visiting the Standards Web Shop at and looking up the relevant Standard in the on-line catalogue. Alternatively, the printed Catalogue provides information current at 1 January each year, and the monthly magazine, The Global Standard, has a full listing of revisions and amendments published each month. Australian Standards TM and other products and services developed by Standards Australia are published and distributed under contract by SAI Global, which operates the Standards Web Shop. We also welcome suggestions for improvement in our Standards, and especially encourage readers to notify us immediately of any apparent inaccuracies or ambiguities. Contact us via at mail@standards.org.au, or write to the Chief Executive, Standards Australia, GPO Box 5420, Sydney, NSW This Standard was issued in draft form for comment as DR

3 Water Corporation July 2012 Version AS (Incorporating Amendment No. 1) Australian Standard Minor Works Contract Conditions (Principal Administered) Originated as part of AS Revised and redesignated in part as AS Reissued incorporating Amendment No. 1 (March 2005). COPYRIGHT Standards Australia All rights are reserved. No part of this work may be reproduced or copied in any form or by any means, electronic or mechanical, including photocopying, without the written permission of the publisher. Published by Standards Australia, GPO Box 5420, Sydney, NSW 2001, Australia ISBN

4 PREFACE This Standard was prepared by the Joint Standards Australia/Standards New Zealand Committee OB 003, General Conditions of Contract to supersede, in part, AS , Minor works contract conditions. This Standard incorporates Amendment No. 1 (March 2005). The changes required by the Amendment are indicated in the text by a marginal bar and amendment number against the clause, note, table, figure or part thereof affected. This Standard is the result of a consensus among Australian and New Zealand representatives on the Joint Committee to produce it as an Australian Standard. AS , Minor works contract conditions (Principal administered) is part of the suite of conditions of contract based on AS , General conditions of contract. This Standard is intended to be used for construct-only projects of a simple nature and of limited monetary value. It is not suitable for projects of a complex or long term nature or where a bill of quantities has been prepared. There is also no provision for separable portions or selected subcontracts. This Standard provides for administration by a Principal. Where it is intended that a Superintendent administer the contract, AS , Minor works contract conditions (Superintendent administered) should be used. This Standard is not meant to be used as a short form of AS , General conditions of contract. Certain obligations and risks are dealt with differently from the way they are dealt with in AS Warnings 1) This Standard provides an option for the parties to limit the Contractor s liability for damage to other property of the Principal. See subclause 10.1(a) and Item 7. Clause 10 (Damage to persons and property other than WUC) does not otherwise limit the liability of parties for special, indirect or consequential losses. This unlimited liability applies notwithstanding any limitations or exclusions permitted under insurance clauses 11 (Insurance of the Works) and 12 (Public liability insurance). Parties wishing to limit their liability should seek insurance and legal advice before entering a contract under this Standard. 2) Legislation has come into force in some jurisdictions dealing with security of payments. Parties intending to use this Standard should seek expert advice as to their rights and obligations under such legislation.

5 CONTENTS Water Corporation July 2012 Version AS Page 1 Interpretation and construction of Contract Nature of Contract Security...7 3A Evidence of Contract Service of notices Discrepancies Assignment and subcontracting Legislative requirements Protection Care of the work and reinstatement of damage Damage to persons and property other than WUC Insurance of the Works Public liability insurance Insurance of employees A Motor vehicle third party liability insurance Insurance provisions Principal s direction Representatives Site A Latent conditions Materials and work Programming and suspension Time and progress Defects liability Variations Payment Payment of workers and subcontractors Default or insolvency A Frustration Notification of claims Dispute resolution Limitation of liability Civil Liability Act Part A...33 Part B...39 Part C...41

6 This page has been left blank

7 STANDARDS AUSTRALIA Australian Standard Minor Works Contract Conditions(Principal Administered) 1 Interpretation and construction of Contract Item bid Aboriginal certificate of practical completion compensable cause construction plant construction program Contract contract sum Contractor date for practical completion date of acceptance of tender In the Contract, except where the context otherwise requires means an Item in the Annexure; has the same meaning as tender; means a person of Aboriginal or Torres Strait Islander descent who identifies as such and is accepted as such by the community in which he or she lives or has lived; has the meaning in subclause 20.4; means any act, default or omission of the Principal or its consultants, agents or other contractors (not being employed by the Contractor); means appliances and things used in the carrying out of WUC but not forming part of the Works; has the meaning in clause 19 and is deemed to be a Contract document; means the agreement between the Principal and the Contractor; means: a) where the Principal accepted a lump sum, the lump sum; b) where the Principal accepted rates, the sum of the products ascertained by multiplying the rates by the corresponding quantities in the schedule of rates or schedule of prices; or c) where the Principal accepted a lump sum and rates, the aggregate of the sums referred to in paragraphs (a) and (b), including provisional sums and provisional quantities, but excluding any additions or deductions which may be required to be made under the Contract; means the person bound to carry out and complete WUC; means the date stated in Item 5(a) or the last day of the period of time stated in Item 5(b), but if any EOT for practical completion is directed or otherwise allowed, it means the date resulting therefrom; means the date which appears on the written notice of acceptance of tender; 1 Standards Australia

8 date of practical completion defects means: a) the date evidenced in a certificate of practical completion as the date upon which practical completion was reached; or b) where another date is determined in any arbitration or litigation as the date upon which practical completion was reached, that other date; has the meaning in clause 21 and includes omissions; defects liability period has the meaning in clause 21; direction EOT (from extension of time ) includes agreement, approval, assessment, authorisation, certificate, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request or requirement; dispute has the meaning in clause 27; has the meaning in subclause 20.2; excepted risk has the meaning in subclause 9.3; final certificate has the meaning in subclause 23.3; final payment has the meaning in clause 23; final payment claim means the final payment claim referred to in subclause 23.3; latent condition legislative requirement Operating Licence has the meaning in subclause 17A.1; includes: a) Acts, Ordinances, regulations, by-laws, orders, awards and proclamations of the jurisdiction where WUC or the particular part thereof is being carried out; b) certificates, licences, consents, permits, approvals and requirements of organisations having jurisdiction in connection with the carrying out of WUC; and c) fees and charges payable in connection with the foregoing; means the licence issued, from time to time, to the Principal under the Water Services Licensing Act 1995; policy requirements means the Principal s policy requirements described in the Contract; practical completion is that stage in the carrying out and completion of WUC when the Works are complete except for minor defects; Principal means the principal stated in Item 1; progress certificate has the meaning in subclause 23.2; provisional quantity has the meaning in subclause 2.6; Standards Australia 2

9 provisional sum has the meaning in subclause 2.5 and includes monetary sum, contingency sum and prime cost item; public liability policy has the meaning in clause 12; qualifying cause of delay means a cause of delay other than that caused by: a) any act, default or omission of the Superintendent, the Principal or its consultants, agents or other contractors (not being employed by the Contractor); or b) other than: a)i) a breach or omission by the Contractor; and b)ii) industrial conditions or inclement weather occurring after the date for practical completion; schedule of prices security separable portion site temporary works means the priced schedule, titled Schedule of Prices, included in the Contract which: a) shows the individual items comprising the contract sum; b) for each section or item of work to be carried out, shows the lump sum price or rate or respective rates of payment for carrying out that work; and c) may include provisional sums, provisional quantities and other sums for additional items; means: a) cash; b) retention moneys; c) an unconditional undertaking in the form in Annexure Part C given by an approved financial institution having an office in Perth, Western Australia; or d) other form approved by the party having the benefit of the security; means a portion of the Works identified as such in the Contract or by the Principal pursuant to subclause 2.7; means the lands and other places to be made available and any other lands and places made available to the Contractor by the Principal for the purpose of the Contract; means work used in carrying out and completing WUC, but not forming part of the Works; variation has the meaning in clause 22; the Works work means the whole of the work to be carried out and completed in accordance with the Contract, including variations provided for by the Contract, which by the Contract is to be handed over to the Principal; includes the provision of materials; 3 Standards Australia

10 WUC (from work under the Contract ) means the work which the Contractor is or may be required to carry out and complete under the Contract and includes variations, remedial work, construction plant and temporary works, and like words have a corresponding meaning. In the Contract: a) references to days mean calendar days and references to a person include an individual, firm or a body, corporate or unincorporate; b) time for doing any act or thing under the Contract shall, if it ends on a Saturday, Sunday or Statutory or Public Holiday, be deemed to end on the day next following which is not a Saturday, Sunday or Statutory or Public Holiday; c) clause headings and subclause headings shall not form part of, nor be used in the interpretation of, the Contract; and d) words in the singular include the plural and words in the plural include the singular, according to the requirements of the context. Words importing a gender include every gender; e) measurements of physical quantities shall be in legal units of measurement of the jurisdiction in Item 5A; f) unless otherwise provided, prices are in Australian dollars and payments shall be made in that currency at the place in Item 5B; g) the law governing the Contract, its interpretation and construction, and any agreement to arbitrate, is the law of the jurisdiction in Item 5A; and h) if pursuant to Annexure Part B to these General Conditions of Contract, clauses or their parts in these General Conditions are deleted, the Contract shall be read and construed as though the clause or its part has been deleted, whether or not that particular clause or its part has been struck from these General Conditions. 2 Nature of Contract 2.1 Performance and Payment 2.2 Quantities The Contractor shall carry out and complete WUC in accordance with the Contract and directions authorised by the Contract. The Principal shall pay the Contractor: a) for work for which the Principal accepted a lump sum, the lump sum; and b) for work for which the Principal accepted rates, the sum of the products ascertained by multiplying the measured quantity of each section or item of work actually carried out under the Contract by the rate accepted by the Principal for the section or item, adjusted by any additions or deductions made pursuant to the Contract. Quantities in a schedule of rates are estimated quantities only. Standards Australia 4

11 The Principal is not required to give a direction by reason of the actual quantity of an item required to perform the Contract being greater or less than the quantity shown in the schedule of rates. If the schedule of rates omits an item which should have been included, the item shall be a deemed variation. 2.3 Purpose and use of the schedule of prices If a schedule of prices is included in the Contract it shows the lump sum price or rate of payment for each item of work to be carried out and forms part of the Contract. The schedule of prices: a) shall be used to assess payment claims under clause 23 b) shall be used to identify provisional sums under subclause 2.5; c) shall be used to identify provisional quantities under subclause 2.6; and d) may be used by the Principal to price variations under subclause 22.2; All values in the Amount column for the items in the schedule of prices are fixed except in the case of items in the schedule of prices containing provisional quantities, provisional sums, or items that include a limit of accuracy. Where an item in the schedule of prices contains a limit of accuracy, the Principal has accepted a rate for the item and the value in the Amount column is used to determine the contract sum. Where, otherwise than by reason of a direction to vary WUC, the actual quantity of an item in the schedule of prices required to perform the Contract is greater or less than the quantity shown in the schedule of prices and the Principal accepted a rate for the item, then where the item has a specified limit of accuracy in the schedule of prices the rate shall apply to the greater or lesser quantities within the limits, and quantities outside the limits shall be a deemed variation. Rates for items in the schedule of prices that include a limit of accuracy include profit and overheads and are fixed within the limits of accuracy. 2.4 Errors in the schedule of prices If the schedule of prices: a) contains an error being an incorrect quantity or rate for an item included in the schedule of prices; b) omits an item, quantity or rate which should have been included; or c) contains an error, being an incorrect rate for an item that includes a limit of accuracy included in the schedule of prices, 5 Standards Australia

12 the Contractor shall not be entitled to: (i) (ii) an addition to the contract sum; an EOT; (iii) a variation; or (iv) make any other claim against the Principal, arising from or in connection with that error or omission. This subclause 2.4 shall not affect the right of the Contractor to claim an addition to the contract sum in the case of: a) a variation in accordance with subclause 2.3 for a quantity supplied outside the limits of accuracy for that item; b) a provisional sum pursuant to subclause 2.5; or c) a provisional quantity pursuant to subclause Provisional sum A provisional sum included in the Contract shall not itself be payable by the Principal, but where pursuant to a direction the work or item to which the provisional sum relates is carried out or supplied by the Contractor, the work or item shall be priced by the Principal, and the difference shall be added to or deducted from the contract sum. Where any part of such work or item is carried out or supplied by a subcontractor, the Principal shall allow the amount payable by the Contractor to the subcontractor for the work or item, disregarding: a) any damages payable by the Contractor to the subcontractor or vice versa; and b) any deduction of cash discount for prompt payment, plus an amount for profit and attendance calculated by using the percentage where stated in the schedule of prices or, if not so stated, as assessed by the Principal. 2.6 Provisional quantities A provisional quantity included in the Contract shall not itself be payable by the Principal unless pursuant to a direction the work or item to which the provisional quantity relates, is carried out or supplied by the Contractor. Provisional quantities have no limits of accuracy. The Principal shall pay the Contractor for a provisional quantity at the rate therefor in the schedule of prices, which rate includes profit and overheads, for the actual work carried out or item supplied by the Contractor at the direction of the Principal. If the Principal directs that a greater or lesser quantity than the provisional quantity specified in the schedule of prices be carried out, the Principal shall price the value of the difference between the provisional quantity and the actual quantity carried out, calculated at the rate for that work stated in the schedule of prices, and the difference shall be added to or deducted from the contract sum. Standards Australia 6

13 2.7 Separable portions Separable portions may be directed by the Principal, who shall clearly identify for each, the: a) portion of the Works; b) date for practical completion; and c) respective amounts for security, liquidated damages and delay damages (all calculated pro-rata according to the ratio of the Principal s valuation of the separable portion to the contract sum). 3 Security 3.1 Provision Security shall be provided in accordance with Item 6. All delivered security, other than cash or retention moneys, shall be transferred in escrow. 3.2 Recourse if the Principal remains unpaid after the time for payment the Principal shall be entitled to have recourse to security. Security shall be subject to recourse by the Principal who remains unpaid after the time for payment where at least 5 days have elapsed since the Principal has notified the Contractor of intention to have recourse. If security is provided to secure performance of the Works, recourse may be had to that security if the Works fail to meet those performance requirements. 3.3 Reduction and release Upon the issue of a certificate of practical completion, the Principal s entitlement to security in Item 6(b) shall be reduced to 50 per cent thereof and the reduction shall be released and returned within 14 days to the Contractor. The Principal shall release and return the balance of security then held to the Contractor within 14 days of the final certificate. The Principal s entitlement to security in Item 6(e) shall cease after the date or event stated in Item 6(f) and that security shall be released and returned within 14 days to the Contractor. 3.4 Trusts and interest Except where held by a government department or agency or a municipal, public or statutory authority, any portion of security (and interest earned thereon) which is cash or retention moneys, shall be held in trust for the Contractor until the Principal or the Contractor is entitled to receive them. Interest earned on security not required to be held in trust shall belong to the party holding that security. 7 Standards Australia

14 3A Evidence of Contract Until a formal instrument of agreement is executed by the parties, documents evidencing the parties consensus shall constitute the Contract. If such Contract requires a formal instrument of agreement, the Principal shall, within 28 days of the date of acceptance of tender, send it in duplicate for execution by the Contractor. Within 14 days after receiving them, the Contractor shall (if they are correct) properly execute both copies and return them. Notwithstanding any other provision of the Contract, the Contractor shall not be entitled to payment until such copies are properly executed and returned by the Contractor. Within 14 days after receiving them, the Principal shall execute both copies and send one copy to the Contractor. The Principal may extend the time under this clause by written notice to the Contractor. 4 Service of notices A notice (and other documents) shall be deemed to have been given and received: a) if addressed or delivered to the relevant address in the Contract or last communicated in writing to the person giving the notice; and b) on the earliest date of: (i) actual receipt; (ii) confirmation of correct electronic transmission of fax; or (iii) 3 days after posting. 5 Discrepancies Figured shall prevail over scaled dimensions in a discrepancy. Otherwise, if either party discovers any inconsistency, ambiguity or discrepancy in any document prepared for the purpose of carrying out WUC, that party shall give the other party written notice of it. The Principal, thereupon, and upon otherwise becoming aware, shall direct the Contractor as to the interpretation and construction to be followed. Except as provided in subclause 2.4 or elsewhere in the Contract, if compliance with any such direction under this subclause causes the Contractor to incur more or less cost than otherwise would have been incurred had the direction not been given, the difference shall be assessed by the Principal and added to or deducted from the contract sum. Standards Australia 8

15 6 Assignment and subcontracting 6.1 Assignment Neither party shall, without the other s prior written approval (including terms) assign the Contract or any payment or any other right, benefit or interest thereunder. 6.2 Subcontracting 7 Legislative requirements 7.1 General 7.2 Changes The Contractor shall not without the Principal s prior written approval (which shall not be unreasonably withheld): a) subcontract or allow a subcontractor to subcontract any work; or b) allow a subcontractor to assign a subcontract or any payment or any other right, benefit or interest thereunder. The Contractor shall give the Principal other information which the Principal reasonably requests, including the proposed subcontract documents without prices. Approval may be conditional upon any subcontract including: a provision that the subcontract shall exclude part 1F of the Civil Liability Act (WA). The Contractor may subcontract Subcontracting any part of WUC but subcontracting shall not relieve the Contractor from any liability or obligation under the Contract. The Contractor shall satisfy all legislative requirements except where otherwise provided for under the Contract or directed by the Principal to be satisfied by or on behalf of the Principal. The Contractor shall, within 7 days after its issue, give the Principal a copy of each document issued to the Contractor by any municipal, public or other statutory authority in respect of WUC and, in particular, any approval of WUC. If a change in a legislative requirement that: (a) (b) comes into effect after the closing of tenders; and could not reasonably have been anticipated by the Contractor when preparing its tender; necessitates a change to the Works and causes the Contractor to incur more or less cost than would otherwise have been incurred, the difference shall be assessed by the Principal and added to or deducted from the contract sum. 9 Standards Australia

16 7.3 Other requirements The Contractor shall carry out and complete WUC in a manner that shall not contravene: a) the Operating Licence nor cause the Purchaser to contravene the Operating Licence; or b) the Purchaser s Occupational Safety and Health procedures. If the Principal is of the opinion that any person carrying out WUC is not complying with the requirements of sub-paragraphs (a) or (b) of this subclause, the Principal may direct the Contractor to remove that person from the site and not employ that person again on-site without the Principal s written approval. The Contractor shall comply with any such direction at the Contractor s own cost. 7.4 Policy requirements The Contractor shall comply with the policy requirements. The Contractor shall cooperate with any compliance audits undertaken by the Principal to ensure the Contractor s compliance with the policy requirements and shall provide such information and certification as the Principal reasonably requires. 7.5 Contractor indemnity The Contractor shall indemnify the Principal against any loss or damage suffered by the Principal arising out of or in connection with the Contractor s failure to comply with subclause 7.1, 7.3 or Protection Insofar as compliance with the requirements of the Contract permits, the Contractor shall: a) take measures necessary to protect people and property; b) avoid unnecessary interference with the passage of people and vehicles; and c) prevent nuisance and unreasonable noise and disturbance. If the Contractor damages property, the Contractor shall promptly rectify the damage and pay any compensation which the law requires the Contractor to pay. If urgent action is necessary to protect WUC, other property or people and the Contractor fails to take the action, in addition to any other remedies of the Principal, the Principal may take the necessary action. If the action was action which the Contractor should have taken at the Contractor s cost, the Principal shall certify the cost incurred as moneys due from the Contractor to the Principal. If time permits, the Principal shall give the Contractor prior written notice of the intention to take action pursuant to this clause. Standards Australia 10

17 9 Care of the work and reinstatement of damage 9.1 Care of WUC Except as provided in subclause 9.3, the Contractor shall be responsible for the care of: a) the whole of WUC from and including the date of commencement of WUC to 4:00 pm on the date of practical completion, at which time the responsibility for the care of the Works (except to the extent provided in paragraph (b)) shall pass to the Principal; and b) outstanding work and items to be removed from the site by the Contractor after 4:00 pm on the date of practical completion until completion of outstanding work or compliance with the Contractor s obligations under clause Reinstatement If loss or damage, other than to the extent caused by an excepted risk, occurs to WUC during the period of the Contractor s care, the Contractor shall, at its cost, rectify such loss or damage. 9.3 Excepted Risks The excepted risks causing loss or damage, for which the Principal is liable, are: 10 Damage to persons and property other than WUC a) any negligent act or omission of the Principal or others for whom it is responsible; b) any risk specifically excepted elsewhere in the Contract; c) war, invasion, act of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection or military or usurped power, martial law or confiscation by order of any Government or public authority; d) ionizing radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel not caused by the Contractor or those for whom it is responsible; e) use or occupation of any part of WUC by the Principal or others for whom it is responsible; and f) defects in the design of WUC, other than design provided by the Contractor Indemnity by Contractor Insofar as this subclause applies to property, it applies to property other than WUC. The Contractor shall indemnify the Principal against: a) loss of or damage to the Principal s property. The limit of indemnity under this paragraph, in respect of such property, shall be the amount stated in Item 7; and 11 Standards Australia

18 11 Insurance of the Works b) claims in respect of personal injury or death or loss of, or damage to, any other property, arising out of or as a consequence of the carrying out of WUC, but the indemnity shall be reduced proportionally to the extent that the act or omission of the Principal or others for whom it is responsible may have contributed to the injury, death, loss or damage. This subclause shall not apply to: a) the extent that the Contractor s liability is limited by another provision of the Contract; b) exclude any other right of the Principal to be indemnified by the Contractor; c) things for the care of which the Contractor is responsible under subclause 9.1; and d) claims in respect of the right of the Principal to have WUC carried out Indemnity by Principal The Principal shall indemnify the Contractor in respect of claims referred to in paragraph (d) of subclause Before the Contractor commences WUC, the Contractor shall insure all things referred to in subclause 9.1 against loss or damage resulting from any cause until the Contractor ceases to be responsible for their care. Without limiting the generality of the obligation to insure, such insurance shall cover the Contractor s liability under subclause 9.2 and things in storage off site and in transit to the site but may exclude: (a) (b) (c) (d) the cost of making good fair wear and tear or gradual deterioration, but shall not exclude the loss or damage resulting therefrom; the cost of making good faulty design, workmanship and materials, but shall not exclude the loss or damage resulting therefrom; consequential loss of any kind, but shall not exclude loss of or damage to the Works; damages for delay in completing or for the failure to complete the Works; (e) loss or damage resulting from ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel resulting from any cause; (f) loss or damage resulting from the excepted risks referred to in paragraphs (b) and (c) of subclause 9.3. The insurance cover shall be for an amount not less than the sum stated in Item 8. Standards Australia 12

19 Insurance shall be in the joint names of the parties and shall cover the parties and all subcontractors whenever engaged in WUC for their respective rights, interests and liabilities. Before the date of acceptance of tender, the Principal shall insure WUC in the terms of the policy referred to in the tender documents. The Principal shall maintain such insurance while ever the Contractor has an interest in WUC. 12 Public liability insurance Before commencing WUC, the Contractor shall effect and maintain for the duration of the Contract, a public liability policy. The policy shall: 13 (a) (b) (i) (ii) be in the joint names of the parties; cover the: respective rights and interests; and liabilities to third parties, of the parties and subcontractors from time to time, whenever engaged in WUC; (c) (d) (e) (f) 13 Insurance of employees cover the parties respective liability to each other for loss or damage to property (other than property required to be insured by clause 11) and the death of or injury to any person (other than liability which the law requires to be covered under a workers compensation insurance policy); be endorsed to cover the use of any construction plant not covered under a comprehensive or third party motor vehicle insurance policy; provide insurance cover for an amount in respect of any one occurrence of not less than the sum stated in Item 9; and be with an insurer and otherwise in terms both approved in writing by the Principal (which approvals shall not be unreasonably withheld). Before the date of acceptance of tender, the Principal shall effect in relation to WUC, a public liability policy referred to in the tender documents. The Principal shall maintain such insurance while ever the Contractor has an interest in WUC. Before commencing WUC, the Contractor shall effect and maintain for the duration of the Contract, a public liability insurance policy to cover the indemnity provided by the Contractor under clause 10 for an amount in respect of any one occurrence of not less than the sum in Item 9. Before commencing WUC, the Contractor shall insure against statutory and common law liability for death of or injury to persons employed by the Contractor. The insurance cover shall be maintained until completion of all WUC. Standards Australia

20 Where permitted by law, such insurance shall be extended to provide indemnity for the Principal s statutory liability to the Contractor s employees. The Contractor shall ensure that all subcontractors have similarly insured their employees. If the Contractor is a natural person and carries out WUC pursuant to this Contract, that natural person will be covered under the Principal s workers compensation insurance against liability for death or injury arising out of or in connection with the performance of the Contract. If the Contractor has a working director (without workers compensation insurance coverage) and that working director carries out WUC pursuant to this Contract, the working director will be covered under the Principal s workers compensation insurance against liability for death or injury arising out of or in connection with the performance of the Contract. With regard to the worker s compensation insurance provided by the Principal for the Contractor s personnel as identified in this clause13, the Contractor shall: a) if requested by the Principal, promptly provide all information requested by the Principal, which the Principal requires in order for the Principal s insurer to determine the premiums for workers compensation insurance coverage of the Contractor s personnel; b) provide information which the Principal may require the Contractor to provide, which may include an estimate of the value of the work provided by the insured Contractor s personnel for the Principal as a percentage of the Contractor s total work. Such information will be used only for the purpose described above; and c) provide the information referred to in subparagraphs (a) and (b) of this clause notwithstanding termination or completion of the Contract. 13A Motor vehicle third party liability insurance Before commencing WUC, the Contractor shall effect and maintain for the duration of the Contract, a motor vehicle third party liability policy to cover damage to motor vehicles and other property for an amount in respect of any one occurrence of not less than the sum in Item 9A. 14 Insurance provisions 14.1 Proof of insurance Before the Contractor commences WUC and whenever requested in writing by the Principal, the Contractor shall provide satisfactory evidence of such insurance effected and maintained. Insurance shall not limit liabilities or obligations under other provisions of the Contract. Standards Australia 14

21 15 Principal s direction 14.2 Cross liability Any insurance required to be effected in joint names in accordance with the Contract shall include a cross liability clause in which the insurer agrees to waive all rights of subrogation or action against any of the persons constituting the insured and for the purpose of which the insurer accepts the term insured as applying to each of the persons constituting the insured as if a separate policy of insurance had been issued to each of them (subject always to the overall sum insured not being increased thereby) Insurance deductible The Contractor is responsible for payment of any deductible under any policy of insurance taken out pursuant to the Contract and shall pay the amount of the deductible to the Principal upon demand. Except where the Contract otherwise provides, the Principal may give a direction orally but shall as soon as practicable confirm it in writing. If the Contractor in writing requests the Principal to confirm an oral direction, the Contractor shall not be bound to comply with the direction until the Principal does so. 16 Representatives The Principal may appoint a Principal s representative to exercise delegated Principal s functions. The name and functions of each Principal s representative shall be notified to the Contractor in writing. The Contractor shall superintend WUC personally or by a competent representative. If the Contractor appoints a representative, the Contractor shall forthwith give the Principal written notice of the representative s name. 17 Site 17.1 Possession The Principal shall, on or before the expiry of the time stated in Item 10, give the Contractor possession of sufficient of the site for commencement of WUC on site. If the Principal has not given the Contractor possession of the whole of the site, the Principal shall give the Contractor possession of such further portions of the site as may, from time to time, be necessary for carrying out WUC. Possession of the site shall confer on the Contractor a right to only such use and control as is necessary to enable the Contractor to carry out WUC. The Contractor shall at all reasonable times give the Principal access to WUC. The Contractor shall keep the site and WUC clean and tidy and shall regularly remove rubbish and surplus material. 15 Standards Australia

22 17.2 Pre-conditions to possession of site The Contractor shall: a) comply with: i) subclause 14.1; and ii) clause 19; and b) provide the Principal with the documents listed in Item 10A, prior to being granted possession of the whole or any part of the site pursuant to subclause Site cleaning up The Contractor shall keep the site and WUC clean and tidy and regularly remove rubbish and surplus material. Within 14 days after the date of practical completion, the Contractor shall clear away and remove from the site all construction plant, surplus material, rubbish and temporary works and fill in, consolidate and level-off all excavations (excluding those that form part of the Works), all to the satisfaction of the Principal Site working hours Working hours and working days for the site shall be as notified in Item 10B. 17A Latent conditions 17A.1 Scope Latent conditions are physical conditions on the site and its near surrounds, including artificial things but excluding weather conditions, which differ materially from the physical conditions which should reasonably have been anticipated by a competent contractor at the time of the Contractor s tender. 17A.2 Notification The Contractor, upon becoming aware of a latent condition while carrying out WUC, shall promptly, and where possible before the latent condition is disturbed, give the Principal written notice of the general nature thereof. If required by the Principal promptly after receiving that notice, the Contractor shall, as soon as practicable, give the Principal a written statement of: a) the latent condition encountered and the respects in which it differs materially; Standards Australia 16

23 b) the additional work, resources, time and cost which the Contractor estimates to be necessary to deal with the latent condition; and c) other details reasonably required by the Principal. 17A.3 Deemed variation The effect of the latent condition shall be a deemed variation, priced based on the information provided by the Contractor at subclause 17A.2 and including an EOT claim where applicable. 18 Materials and work 18.1 Quality of material and work Unless otherwise provided, the Contractor shall use suitable new materials and proper and tradesmanlike workmanship Defective work 19 Programming and suspension If the Principal becomes aware of work done (including material provided) by the Contractor which does not comply with the Contract, the Principal shall as soon as practicable give the Contractor written details thereof. If the subject work has not been rectified, the Principal may direct the Contractor to do any one or more of the following (including reasonable times for commencement and completion): a) remove the material from the site; b) demolish the work; c) reconstruct, replace or correct the work; and d) not deliver it to the site. If the Contractor fails to comply with such a direction and that failure has not been made good within 5 days after the Contractor receives written notice that the Principal intends to have the subject work rectified by others, the Principal may have the work so rectified. The cost thereby incurred shall be moneys due to the Principal. The Principal may give a direction pursuant to this subclause at any time before the expiry of the defects liability period Construction program Prior to commencing WUC and not more than 14 days after the date of acceptance of tender, the Contractor shall provide a construction program, to the satisfaction of the Principal, based on the preliminary construction program included in the tender response. This construction program shall be maintained in any subsequent construction program as the baseline construction program, which program remains unchanged throughout the Contract. Any update of the construction program pursuant to the provisions of the Contract shall include and show the baseline construction program. 17 Standards Australia

24 The construction program shall be developed and maintained in a suitable computer program approved by the Principal. The data in the construction program shall be presented in a tabular form and illustrated in the form of a Gantt chart. Unless otherwise directed by the Principal, the construction program shall contain, as a minimum, the following: a) the proposed sequence of activities (including any Principal s activities), including identification of the critical path, all working days, weekends, and public and statutory holidays; b) for each activity, a unique identifier and description, the planned start and finish dates, duration, predecessor and successor activities and resource requirements; c) sufficient activities and details to fully describe the Contractor s planning of WUC and the method of achieving practical completion by the date for practical completion including the following activities, milestones and events, as applicable: (i) (ii) (iii) (iv) (v) (vi) site access; appointment of key subcontractors; inspection and testing of the Works; the acquisition and delivery of major equipment and materials (including Principal-supplied materials and equipment); off-site and on-site activities of WUC; milestones and key dates for items such as the approval of authorities; (vii) activity resource requirements, including the manpower and key plant and equipment required to complete each task; and (viii) provision of any documentation including manuals, drawings, survey records, certificates, warranties, quality records and such other items required by the Contract. The Contractor shall provide an updated version of the then current construction program following the granting of each EOT and when otherwise directed by the Principal. The Principal may otherwise direct the Contractor to give the Principal a construction program within the time and in the form directed. The Contractor shall not, without reasonable cause, depart from a the current construction program. Standards Australia 18

25 19.2 Progressive program reporting 19.3 Generally The Contractor shall, with each progress claim given pursuant to subclause 23.1, provide the Principal with an updated construction program, which shows the status of WUC at that date. Each updated construction program shall include and be based on the current version of the construction program provided pursuant to subclause Where the updated construction program shows a forecast date of practical completion later than the date for practical completion, the Contractor shall detail the actions the Contractor proposes to take to mitigate the delay. Unless otherwise directed by the Principal, the version of the updated construction program shall contain as a minimum: a) actual progress for each activity of WUC as at the report date, including actual start and finish dates and percentage completed where applicable for each such activity; b) the baseline construction program in accordance with subclause 19.1; c) insofar as applicable, the effect of any approved variations; d) all periods of suspension of WUC; e) the critical path to practical completion as at the report date; f) the current date for practical completion; g) the forecast date for practical completion; and h) all agreed changes to the Contractor s construction methodology. The Contractor shall give the Principal reasonable advance notice of when the Contractor needs information, materials, documents or instructions from the Principal. The Principal shall not be obliged to give any information, materials, documents or instructions earlier than the Principal, should reasonably have anticipated at the date of acceptance of tender. The Principal may direct in what order and at what time the various stages or portions of WUC shall be carried out. If the Contractor can reasonably comply with the direction, the Contractor shall do so. If the Contractor cannot reasonably comply, the Contractor shall give the Principal written notice of the reasons. If compliance with any direction under the preceding paragraph of this subclause 19.3, except those pursuant to the Contractor s default, causes the Contractor to incur more or less cost than otherwise would have been incurred had the Contractor not been given the direction, the difference shall be assessed by the Principal and added to or deducted from the contract sum. Except for the cost incurred by the Contractor where the Contractor provides an updated construction program for a compensable cause, 19 Standards Australia

26 20 Time and progress the cost of providing, developing, maintaining, updating or amending each construction program shall be deemed to be allowed for in the contract sum Suspension 20.1 Progress 20.2 Claim The Principal may direct the Contractor to suspend the carrying out of the whole or part of WUC for such time as the Principal thinks fit, if the Principal, acting reasonably, is of the opinion it is necessary. If the suspension is due to an act or omission of the Principal or others for whom it is responsible and the suspension causes the Contractor to incur more or less cost than would otherwise have been incurred but for the suspension, the difference shall be assessed by the Principal and added to or deducted from the contract sum. The Contractor shall ensure that WUC reaches practical completion by the date for practical completion. Each party shall promptly notify the other of delay to WUC. If the Contractor: a) is or will be delayed in reaching practical completion by a qualifying cause of delay that includes but is not limited to any act, default or omission of the Principal or its consultants, agents or other contractors (not being employed by the Contractor); and b) gives the Principal, within 28 days of when the Contractor should reasonably have become aware of the causation occurring, a detailed written claim for an EOT, which shall include an updated current construction program that identifies the delay and its effect on the critical path, the Contractor shall be entitled to such EOT for carrying out WUC (including reaching practical completion) as the Principal, acting reasonably, assesses Extension of time Within 28 days after receiving such claim for EOT, the Principal shall give to the Contractor a written direction evidencing the EOT so assessed. If the Principal does not do so, there shall be a deemed assessment and direction for an EOT as claimed. Notwithstanding that the Contractor is not entitled to or has not claimed an EOT, the Principal may at any time and from time to time before issuing the final certificate direct an EOT Practical completion Within 14 days after receiving a request by the Contractor for the issue of a certificate of practical completion, the Principal shall give to the Standards Australia 20