Outcome Maintenance Contract. Conditions of Contract

Transcription

1 Outcome Maintenance Contract

2 <<This page is to be left blank.>> Document Change Format Codes Black Black text is mandatory and may not be changed without approval from the OMC Model Control Group. Black Struckout black text is used for removing mandatory content that has been prior approved by the OMC Model Control Group to be removed. Struckout text provides transparency of changes to an otherwise nationally consistent document. All struckout text must be confirmed within Section 7.1 of the MS. Red Red text is used for data which requires fields to be updated or at least considered for each contract. Text can also be used as is, modified or replaced. All red text adjustments must have the State Highway Manager s approval. Blue Blue text is used for optional clauses which can be included as is or deleted in full. Purple Purple text is used for prequalification clauses which are to be included for prequalification tenders only. Prequalification clause details must be prior approved with the Group Manager, Highway and Network Operations. Green Green text is used where prequalification is not used. Non-prequalification clause details must be prior approved with the Group Manager, Highway and Network Operations. <<Guidance Notes>> Blue text with yellow highlighting and marked at the beginning with << and the end with >> are guidance notes for the Tender Document creator. Guidance notes must be removed prior to tender document release. NZ Transport Agency

3 NZ Transport Agency Page CC 3 of 38 Contents 1 General Conditions 5 2 First Schedule: Schedules to the General - Special Conditions of Contract 6 3 Second Schedule: Contract Agreement for Contract 18 4 Third Schedule: Form of Contractor s Performance Bond for Contract: 20 5 Fifth Schedule: Form of Contractor s Bond In Lieu of Retentions For Contract 22 6 Sixth Schedule: Form of Producer Statement - Construction for Contract 24 7 Seventh Schedule: Information as to Contract Works Insurance 25 8 Eighth Schedule: Information as to Public Liability Insurance 27 9 Ninth Schedule: Information as to the Contractors Machinery Insurance for Contract Tenth Schedule: Information as to the Contractor s Motor Vehicle Insurance for Contract Eleventh Schedule: Information as to the Contractor s Professional Indemnity Insurance Twelfth Schedule: Cost Fluctuations Thirteenth Schedule: Contract Risk Profile 34 Draft 3A, 19 April 2013

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5 NZ Transport Agency Page CC 5 of 38 1 General Conditions The General Conditions of contact shall be those included in NZS 3910: 2003 for Building and Civil Engineering Construction and the following clauses.

6 Page CC 6 of 38 NZ Transport Agency 2 First Schedule: Schedules to the General Conditions of Contract - Special (Clause numbers refer to General Conditions) <<Guidance note: remove all guidance notes for final publication.>> PART A SPECIFIC CONDITIONS OF CONTRACT 1.2 The Principal is The NZ Transport Agency and <<Insert Local Authority Name if Joint Principals>>, a Crown entity, established on 1 August 2008 by Section 93 of the Land Transport Management Act 2003 of <<insert street address>>. << Guidance note: Where the contract has joint principals the following clauses (a) to (d) are to be added otherwise delete these clauses.>> (a) References to the Principal References to the Principal in the Contract Documents are references to the <<Insert Name>> Council and New Zealand Transport Agency. Subject to the provisions allowed for under this Contract, where the entities comprising the Principal are referred to individually, all provisions in the Contract Documents relating to the Principal shall be deemed to the references to the entities comprising the Principal acting jointly. (b) Several Liability of Principal Notwithstanding the provisions of that above, the liability of each of New Zealand Transport Agency and the <<Insert Name>> Council under the Contract Documents shall not be joint, nor a joint and several liability but shall be a several liability, to the intent that: (i) (ii) (iii) (iv) New Zealand Transport Agency s several liability is limited to acts, omissions, liabilities and obligations of the Principal in relation to those State Highways for which New Zealand Transport Agency has statutory responsibility as described in the Schedule of Prices and the Maintenance Specification. The <<Insert Name>> Council s several liability is limited to acts, omissions, liabilities and obligations of the Principal in relation to those local roads for which the <<Insert Name>> Council has statutory responsibility as described in the Schedule of Prices and the Maintenance Specification. Neither New Zealand Transport Agency nor the <<Insert Name>> Council is liable to the Contractor for the separate acts or omissions of either of them. Neither New Zealand Transport Agency nor the <<Insert Name>> Council is liable for any breach of any obligation or warranty in the Contract Documents by the other of them. (c) Payment for Services

7 NZ Transport Agency Page CC 7 of 38 In accordance with the principle of several liability of those quantities comprising the Principal, the lump sum and measure and value payments for services by the Principal is divided into two separate amounts referable to the services being provided by the Contractor to New Zealand Transport Agency (in respect to the State Highways) and to the <<Insert Name>> Council (in respect to the local roads) respectively, the separate lump sums and measure and value being specified in the Contract Agreement, and all provisions in the Contract Documents relating to payment for Services and adjustment to payment for the services shall be deemed to be the respective entities comprising the Principal, and adjustments to those payments. Accordingly, clause 12.2 and clause 12.4 of the General in relation to claims for payment for Services by the Contractor, require the Contractor to apportion the value of such claims to the respective entities comprising the Principal in accordance with their respective several obligations and liabilities specified in B above. (d) Principals Joint Venture Agreement <<include joint Principal s agreement.>> (a) Subject to Clause 14 and the performance management framework requirements as set out in Section 4 of the Maintenance Specification, the term of the contract is : <<delete which is not applicable.>> (i) (ii) 5 Years with a maximum term of 7 years. 7 Years with a maximum term of 9 years. 2.5 This contract is: (b) A term maintenance contract (including a road maintenance contract) This contract is: (a) (b) This is a local authority contract and NZS 3910, clause 2.6 shall apply. Not a local authority contract. <<Where the contract includes local authority roads delete (b) otherwise delete (a), above.>> <<Insert number of sets that will be supplied.>> X sets of Contract Documents shall be supplied free of charge to the Contractor upon the acceptance of tender in addition to tender, consent, and Contract Agreement sets A Contractor's Bond: (b) Is not required

8 Page CC 8 of 38 NZ Transport Agency A Principal's bond: (a) Is not required Subject to Clauses 10.8, the Contractor shall be given possession of the site on <<define day/month/year>> The Principal may engage separate contractors including (but not limited to): <<delete or add where applicable.>> Traffic Counting, Bridge Consultancy, Structure Bridge Renewals, Tunnels, Traffic Signals, Street Lighting, Street Cleaning, High Speed Data, RAMM Condition Rating (g) Risks specifically excepted are listed in the Thirteenth Schedule (b) There are no parts of the Contract Works to which Appendix D applies Quality management systems: (a) Are required and details shall be submitted by the time specified in the contract documents, Maintenance Specification, Sections 4 and (a) (b) As-built drawings are not required (b) (b) Operation and maintenance manuals are not required The Engineer is <<insert name>> whose professional qualification is <<insert qualification>> The Engineer's costs will be based on the following rates, excluding GST: (a) Engineer $XXX.XX/hour

9 NZ Transport Agency Page CC 9 of 38 (b) Engineer's Representative $XXX.XX/hour (c) Contract Manager and other personnel $XX.XX/hour (d) Vehicle running $X.XX/km 8.1 and 8.6 (b) The Principal shall insure as provided for in Contractor s Plant insurance is required for each item of construction machinery on the site owned by the Contractor that has a market value of more than: (a) (b) $50,000; or $ XXX.XX (Delete provision which does not apply.) 8.3 and 8.7 (b) The Principal shall insure as provided for in Motor vehicle third party liability insurance shall be effected for an amount not less than $5,000, <<For high risk project specific contracts Insurance Levels must be reviewed and approved by the Insurance Risk Sub VAC via Appendix XXIII of SM021 Manual (insurance@nzta.govt.nz). Contracts are high risk where: 1) the contract period is greater than 3 years, OR 2) the term Maintenance contract value is greater than $50M, OR 3) bridge construction cost is greater than $10M OR 4) the contract involves works considered to be of a high risk in nature.>> (a) Professional indemnity insurance for design by the Contractor shall be effected for an amount not less than $XXX.XX 8.6 For the insurance policies required under the following clauses: The insurers are: 8.6.2(a) Great Lakes, Corporate Branch UK 8.6.2(b) Great Lakes, Corporate Branch UK 8.6.2(c) Great Lakes, Corporate Branch UK The deductibles are: 8.6.2(a) Refer to (b) Refer to (c) Refer to

10 Page CC 10 of 38 NZ Transport Agency The exclusion and other limitations, if any, are: 8.6.2(a) Refer to (b) Refer to (c) Refer to The amount of the insurance to be effected in respect of the Contract Works and Materials has been set out in the Seventh Schedule Public liability insurance shall be affected for an amount as specified in Eighth Schedule The period to be used for calculating the Due Date for Completion (the "Contract Period") will be determined in accordance with Clause 10.8, terminating at 12 noon. Subject to Clause 10.8 and the performance management framework requirements as set out in Section 4 of the Maintenance Specification, the contract period is: <<delete which is not applicable.>> i. 3 years, with up to 4 additional extensions of 1 year each. ii. 3 years, with up to 6 additional extensions of 1 year each Prior to the issue of certificate of Practical Completion: (c) A producer statement is not required The Period of Defects Liability shall be: (a) In respect of the Contract Works: i. Sealed Road Resurfacing, 52 Weeks ii. Pavement Rehabilitation, 52 weeks iii. All Other Works not i or ii above, 0 weeks Prior to the issue of the Defects Liability Certificate: (c) A producer statement is not required; (b) No guarantees are required.

11 NZ Transport Agency Page CC 11 of (b)(iv) (b) Advances for Temporary Works, Plant or Materials not yet on site shall not be made to the Contractor The percentage to be retained from each progress payment and the limit of the total sums retained shall be nil if the Contractor provides a Bond in Lieu of Retentions (see Fifth Schedule). The value of the bond shall be the applicable retention amount plus a further 10%. Otherwise the total sums retained shall be: (a) In respect of the Contract Works: Total 10% for the first $200,000, plus 5% for the next $800,000, plus 1.75% for any amount in excess of $1,000,000 with a maximum of $100, when aggregated. Defects liability retention 50% of total retention Cost fluctuation adjustments: (c) Shall be paid as set out in the Twelfth Schedule (a) Provisional Sums are included in the schedule of quantities (c) There are no Prime Cost Sums The contingency sum to be included in the contract is $ For the purpose of service of notices, the postal address of: (a) (b) (c) The Principal is the New Zealand Transport Agency, PO Box <<insert Box number, City>> For the attention of: <<insert name>> Fax Number: <<insert fax number>> The Engineer is <<insert name, title, address, City>> For the attention of: <<insert name>> Fax Number: <<insert fax number>> The Contractor is the successful tenderer as identified in the Second Schedule (completed after award)

12 Page CC 12 of 38 NZ Transport Agency For the attention of: <<insert name>> Fax Number: <<insert fax number>> NOTE The General also provide in the following clauses for matters which may be dealt with by further specific conditions of contract: Cost reimbursement contract details Execution of Contract Agreement Variation or modification of General Conditions Access to adjoining properties. 5.5 Separate contractors Exceptions to Contractor s obligation to supply Advances for Plant or Materials Programme (d) Risks specifically excepted (d) Risk, loss or damage not covered by Principal s insurance Variations carried out on Daywork basis Frequency of payment claims Contractor s bond in lieu of retentions Goods and services tax.

13 NZ Transport Agency Page CC 13 of 38 PART B - OTHER CONDITIONS OF CONTRACT 1.2 Definitions The following definitions are provided in addition to the existing definitions. CONTRACT MANAGEMENT PERSONNEL means the Contractor's Representative or Contract Manager (see Tender Documents, Clause 4.4). CONTRACT PERIOD means the period defined in clause ENSURE means to undertake the specified service to the required duty of care as limited only by the level(s) of service specified in the contract documents and taking all demonstrably practicable steps to secure the project from the introduction of unnecessary risk. NETWORK means the network described in Specification, Section 1. Delete the existing working day definition and replace with the following: WORKING DAY means any calendar day other than Sunday, or a Public Holiday where the day observed as the Public Holiday falls on any day of the week, except a Sunday. Delete and replace with: This contract is a combined Lump Sum and Measure and Value contract. In addition to Section 5 of the General Conditions, there shall be a special condition as follows: During the term of the contract the Contractor must advise the Engineer to the Contract of any potential or actual conflicts of interest with any individual or company engaged to complete works included within the scope of the contract. This includes individuals and companies engaged in any subcontractor or other supply arrangement. The Contractor must advise the Engineer to the Contract the means that they intend to use to remove or mitigate such conflicts of interest. The Engineer to the Contract must then refer the matter to the Principal, and, the Principal will, in discussion with the Engineer to the Contract, decide the appropriate action required to remove or mitigate any actual or potential conflict of interest. The Engineer to the Contract must ensure the Contractor implements any action required. A new clause 5.19 is added as follows: All intellectual property rights of the Contractor that are not developed, commissioned or created under or in connection with this contract remain the property of the Contractor All new intellectual property rights that are developed, commissioned or created under or in connection with this contract (including any intellectual property

14 Page CC 14 of 38 NZ Transport Agency rights in photographs or video footage taken by the Contractor at the Site will be owned by the Principal as such rights are created Without limiting clause , in all cases where the Principal does not own the intellectual property rights in the Contract Works, the Contractor grants (or shall procure the grant) to the Principal a perpetual, non-exclusive, worldwide and royaltyfree licence to use, copy, modify and distribute all such intellectual property rights for any purpose For the purposes of this clause, intellectual property rights means all intellectual property rights and interests, including copyright, trademarks, designs, patents and other proprietary rights, recognised or protected by law. Delete and replace with: The role of the Engineer in the administration of this contract is: a) Independently of either contracting party, fairly and impartially make decisions entrusted to him or her under the Contract Documents, to confirm the valuation of the work and issue certificates at due times, and b) To deal with contract administration other than issues relating to: The day to day programming and management of general maintenance activities, and Directing the Contractor on which defects to repair and/or accepting or rejecting completed maintenance works. c) Not to supervise the Contract Works. Delete and replace with The providing of samples or making and reporting tests ordered by the Engineer, the Cost, including any Costs incurred by the Engineer or the Principal, shall be borne by the Contractor. In addition to Section 8 of the General Conditions, there shall be a special condition as follows: Delete and replace with The Contractor shall, prior to the commencement of the Contract Works, deposit with the Engineer information from insurers or insurance brokers on Clause of the Special Condition of Contract (Professional Indemnity) required by the General Conditions and Special Conditions. The Principal under Clause reserves the power to require production at any time of policies, receipts or certificates of currency for all the insurances required by the General Conditions and Special Conditions. Section 8, Clause of the General Conditions, is deleted and replaced with the following if 8.1 and 8.6 (b) option is chosen by Contractor:

15 NZ Transport Agency Page CC 15 of Insurances under 8.6 or 8.7 may be subject to any deductible, exclusion, condition or warranty provided under the policy. The Contractor shall be liable for such deductibles and where any exclusion applies. In addition to Section 8 of the General Conditions, there shall be special conditions as follows if 8.3 and 8.7 (b) option is chosen by Contractor: Specific policy wording, cover deductibles, exclusions, conditions and warranties provided for under the policy applicable to this contract which can be read at the following website: Contractor to insure against motor vehicle third party liability risks The Contractor shall effect motor vehicle third party insurance against legal liability to third parties arising from the use of any motor vehicle belonging to or under the care, custody or control of the Contractor in connection with the execution of the Contract Works. In this clause 8.9 the term motor vehicle shall mean any item of construction machinery which is licensed or required by law to be licensed as a motor vehicle. The insurance shall be for an amount not less than $5,000, for any one claim or series of claims arising out for the same occurrence. Amend Section 9 - Variations In Clauses 9.1.1, 9.1.2, 9.1.3, 9.2.1, and the term Engineer is deleted and replaced with the term Engineer s Representative. Section 10, new Clauses and 10.8 are added as follows: No sealing operations shall take place over the Winter Period without the prior approval from the Engineer Contract Period and extensions The Contract Period shall be a minimum of 3 years and may be extended in accordance with clauses to Nothing in this clause 10.8 prejudices the Principal s right to terminate this contract in accordance with any other provision contained in the Contract Documents Extensions of the Contract Period ("Extensions") are earned or lost in 1 year increments as set out below in the following table. <<delete column not applicable to contract term>> Table 10.8: Contract Extensions End of Contract Year Five Year Contract Term Extension Years Extension Years available to be available to be Earned Lost Seven Year Contract Term Extension Years Extension Years available to available to be Earned Lost

16 Page CC 16 of 38 NZ Transport Agency Table 10.8: Contract Extensions End of Contract Year Five Year Contract Term Extension Years Extension Years available to be available to be Earned Lost Seven Year Contract Term Extension Years Extension Years available to available to be Earned Lost Extensions are earned and lost in each Contract Year as stated in table above as follows: a) at the end of each Contract Year where the overall annual performance level is rated Minimum Condition of Satisfaction, Best Practice or Outstanding (as per the Maintenance Specification), the stated Extension is earned; and b) at the end of each Contract Year where the overall annual performance level is rated Poor, the stated Extension is lost. To avoid doubt where Extensions are lost, the number of Extensions may be a negative number but that shall not reduce the Contract Period below 3 years The Principal shall give written notice to the Contractor of any Extension earned or lost not less than <<insert notice period>> before the expiry of the then current term Notwithstanding anything else in the Contract Documents, the Principal is not obliged to grant any Extensions if, at its absolute discretion, it determines that an Extension is not in the interests of its operational requirements. Section 11, Clause of the General Conditions, is deleted and replaced with the following: The Contractor shall remedy all defects in the Contract Works arising prior to or within the Period of Defects Liability, from defective workmanship or Materials. The Engineer s Representative shall give notice in writing to the Contractor during the Period of Defects Liability or within five Working Days thereafter of defects to be remedied, including a date by which their remedy is required. In setting this date, the Engineer s Representative shall make an assessment of what is a reasonable time for the remedy of each of the defects identified. That date shall not be more than 20 working days from the date the defect is notified to the Contractor unless the Engineer s Representative agrees otherwise in writing.

17 NZ Transport Agency Page CC 17 of 38 Section 11, Clause of the General Conditions, is deleted and replaced with the following: If the Contractor fails to complete the remedial works by the required date as set out under , the Principal shall be entitled, after giving the Contractor notice, to employ others to carry out such remedial work. The Principal shall be entitled to recover the Cost of such work from the Contractor, including all costs and expenses of assessment and supervision whether by the Engineer or otherwise, and a reasonable allowance for associated administrative and professional costs and expenses. Section 12, Clause (c) is deleted and replaced with the following: (c) Indicate the due date for payment which shall be the Principal s payment date which occurs no less than 17 Working Days after the date of service of the payment claim. The Principal s payment dates are on the 5 th and 20 th of the Month, or the first Working Day there-after. Add Section 12, Clause (f): (f) For the purposes of clause 12.2, be deemed to be received 17 Working Days prior to the due date for payment as defined in clause (c). Add new The Contractor acknowledges that the Principal s right to deduct moneys from payments otherwise due to the Contractor under the Contract Documents where that right of deduction arises from the implementation of schemes covered in: Section 2 of the Maintenance Specification known as the Value Management Proposition (and referred to in the Instructions for Tendering), Sections and of the Maintenance Specification known as the Pavement Rehabilitation and Sealed Road Resurfacing respectively. This is a right in addition to and not in substitution for the Principal s rights under the Contract Documents arising from any breach by the Contractor of its obligations under the Contract Documents.

18 Page CC 18 of 38 NZ Transport Agency 3 Second Schedule: Contract Agreement for Contract Contract for: <<Insert number and name>> THIS AGREEMENT is made on the <<insert Number>> day of <<Insert Month Year>> Parties 1. The NZ Transport Agency, a Crown entity, established on 1 August 2008 by Section 93 of the Land Transport Management Act 2003 (the Principal ). And 2. <<insert Name>> of <<insert Location>> (the Contractor). IT IS AGREED as follows: 1. THE Contractor shall carry out the obligations imposed on the Contractor by the Contract Documents. 2. THE Principal shall pay the Contractor the sum of $<< insert amount in numbers>> or such greater or lesser sum as shall become payable under the Contract Documents together with Goods and Services Tax at the times and in the manner provided in the Contract Documents. 3. EACH party shall carry out and fulfil all other obligations imposed on that party by the Contract Documents. 4. THE Contract Documents are this Contract Agreement and the following which form part of this agreement: a. The Conditions of Tendering. b. Notices to Tenderers (give details with dates). c. The Contractor s tender. d. The notification of acceptance of tender. e. The General, NZS 3910:2003. f. The Special. g. Specifications issued prior to the Date of Acceptance of Tender. h. Drawings issued prior to the Date of Acceptance of Tender. i. The Schedule of Prices.

19 NZ Transport Agency Page CC 19 of 38 j. The following additional documents. (Identify any additional documents to be included, for example, agreed correspondence). SIGNED for and on behalf of The NZ Transport Agency by Name: acting pursuant to delegated authority In the presence of a WITNESS Signature: Name: Occupation: Address: SIGNED for and on behalf of The Contractor by Signature: Name: Occupation: In the presence of a WITNESS Signature: Name: Occupation: Address: Address:

20 Page CC 20 of 38 NZ Transport Agency 4 Third Schedule: Form of Contractor s Performance Bond for Contract: Contract for: <<Insert number and name>> <<Exclude if Part A Clause (a) is selected, delete below and replace with. Not included for this Contract>> THIS DEED is made on the <<insert Number>> day of <<insert Month Year>> By 1. <<insert Name>> of <<insert Company Name and Location>> (the Contractor ). And 2. <<insert Name>> of <<insert Company Name and Location>> (the Sureties ). IT IS MADE in the following circumstances: a. The Contractor has entered into an agreement with the NZ Transport Agency ( the Principal ) to carry out and fulfil the obligations imposed on the Contractor by the Contract Documents forming part of the agreement including any to design, construct, complete, and deliver, and remedy defects in, certain works described in the Contract Documents. b. The Contract Documents require the Contractor to provide the Principal with security in the form of a bond to ensure performance of the Contractor s obligations under the Contract Documents. BY THIS DEED: 1. THE Contractor and Sureties are jointly and severally held and bound to the Principal in the sum of $ <<insert amount in numbers>> and bind themselves, their successors and assigns jointly and severally for the payment of that sum. 2. THE condition of this bond is that it shall be null and void if: a. The Contractor duly carries out and fulfils all the obligations imposed on the Contractor by the Contract Documents prior to the commencement of the Period of Defects Liability referred to in the Contract Documents; or b. The Contractor satisfies and discharges the damages sustained by the Principal in respect of all defaults by the Contractor up to the commencement of the Period of Defects Liability or the termination of the contract; or

21 NZ Transport Agency Page CC 21 of 38 c. The Sureties satisfy and discharge up to the amount of the bond the damages sustained by the Principal in respect of all defaults by the Contractor up to the commencement of the Period of Defects Liability or the termination of the contract; or d. A Practical Completion certificate has been issued in respect of the Contract Works in accordance with Clause 10.4 of the General Conditions of Contract. 3. EXCEPT as provided in Clause 2 above this bond shall be and remain in full force and effect. 4. THE Sureties shall not be released from any liability under this bond: a. By any alteration in the terms of the contract between the Principal and the Contractor; b. By any alteration in the extent or nature of the Contract Works to be completed, delivered and having defects remedied; c. By any allowance of time by the Principal or by the Engineer appointed by the Principal under the Contract Documents; d. By any forbearance or waiver by the Principal or by the Engineer in respect of any of the Contractor s obligations or in respect of any default on the part of the Contractor. 5. THIS bond shall be governed by New Zealand law. THE COMMON SEAL of <<insert Name>> Was affixed in the presence of Name: Signature: THE COMMON SEAL of <<insert Name>> Was affixed in the presence of Name: Signature: Note: This bond must be executed by the Contractor and by the Surety or Sureties in the manner required for execution of a deed. Any of these parties which is a company or body corporate must execute by affixing its seal, which may be attested in the manner provided in its articles of association or other constitution. Alternatively, a company may execute the bond by having it signed, under the name of the company, by two or more directors. If there is only one director, it is sufficient if the bond is signed under the name of the company by that director, but the signature must be witnessed. In the case of a party who is an individual, the party must sign and the signature must be witnessed by another person. The witness must not only sign but must also add their occupation and address.

22 Page CC 22 of 38 NZ Transport Agency 5 Fifth Schedule: Form of Contractor s Bond In Lieu of Retentions For Contract Contract for: <<Insert number and name>> THIS DEED is made on the <<insert Number>> day of <<insert Month Year>> By 1. <<insert Name>> of <<insert Company Name and Location>> (the Contractor ). And 2. <<insert Name>> of <<insert Company Name and Location>> (the Sureties ). IT IS MADE in the following circumstances: a. The Contractor has entered into an agreement with the NZ Transport Agency ( the Principal ) to carry out and fulfil the obligations imposed on the Contractor by the Contract Documents forming part of the agreement including any to design, construct, complete, and deliver, and remedy defects in, certain works described in the Contract Documents. b. The Contractor has agreed to provide the Principal with security in the form of a bond in lieu of retentions additional to any other bond required under the Contract Documents. BY THIS DEED: 1. THE Contractor and Sureties are jointly and severally held and bound to the Principal in the sum of $ <<insert amount in numbers>> ("the bond amount") and bind themselves, their successors and assigns jointly and severally for the payment of that sum. 2. THE condition of this bond is that it shall be null and void if: a. The Contractor duly carries out and fulfils all the obligations imposed on the Contractor by the Contract Documents prior to the issue of the Defects Liability Certificate referred to in the Contract Documents; or b. The Contractor satisfies and discharges the damages sustained by the Principal in respect of all defaults by the Contractor up to the issue of the Defects Liability Certificate or the termination of the contract; or c. The Sureties satisfy and discharge up to the amount of the bond the damages sustained by the Principal in respect of all defaults by the Contractor up to the issue of the Defects Liability Certificate or the termination of the contract.

23 NZ Transport Agency Page CC 23 of EXCEPT as provided in Clause 2 above this bond shall be and remain in full force and effect. 4. THE Sureties shall not be released from any liability under this bond: a. By any alteration in the terms of the contract between the Principal and the Contractor; b. By any alteration in the extent or nature of the Contract Works to be completed, delivered and having defects remedied; c. By any allowance of time by the Principal or by the Engineer appointed by the Principal under the Contract Documents; d. By any forbearance or waiver by the Principal or by the Engineer in respect of any of the Contractor s obligations or in respect of any default on the part of the Contractor. 5. THIS bond shall be governed by New Zealand law. THE COMMON SEAL of <<insert Name>> Was affixed in the presence of Name: Signature: THE COMMON SEAL of <<insert Name>> Was affixed in the presence of Name: Signature: Note: This bond must be executed by the Contractor and by the Surety or Sureties in the manner required for execution of a deed. Any of these parties which are a company must execute the bond by having it signed, under the name of the company, by two or more directors. If there is only one director, it is sufficient if the bond is signed under the name of the company by that director, but the signature must be witnessed by another person. The witness must not only sign but must also add their occupation and address. Alternatively, companies may execute under power of attorney. Any party which is a body corporate (other than a company) must execute by affixing its seal, which must be attested in the manner provided for in the rules of, or applicable to, the body corporate. In the case of a party who is an individual, the party must sign and the signature must be witnessed by another person. The witness must not only sign but must also add their occupation and address.

24 Page CC 24 of 38 NZ Transport Agency 6 Sixth Schedule: Form of Producer Statement - Construction for Contract Contract for: <<insert number and name>> Issued by: <<insert Name of Contractor>> (Contractor) To: The NZ Transport Agency (Principal) In respect of: <<insert Description of Contract Works>> (Description of Contract Works) At: <<insert Address>> (Address) <<insert Contractor>> ( Contractor ) has contracted to the NZ Transport Agency ( Principal ) to carry out and complete certain building works in accordance with a Contract, titled <<insert Name of Project>> ( the Contract ). I, <<insert Name of Authorised Agent>> a duly authorised representative of <<insert Contractor>> believe on reasonable ground that <<insert Contractor>> has carried out and completed: all part only as specified in the attached particulars of the building works in accordance with the Contract. <<insert Name of Authorised Agent>>, on behalf of <<insert Name of Contractor>> Signature: Title: Date: Address:

25 NZ Transport Agency Page CC 25 of 38 7 Seventh Schedule: Information as to Contract Works Insurance Contract for: <<insert number and name>> <<Insert the below note for contracts with a base estimate of less than $50M pa) Note: For Contracts with a base estimate of less than $50M (pa), NZTA will download the Principal Arranged Insurance (PAI) Schedule 7 from and replace the below Schedule 7 template within the Contract Documents before the RFT is issued.>> To: Address: From: Address: New Zealand Transport Agency <<insert Postal Address>> <<insert Name of Insurance Company>> <<insert Postal Address>> We confirm having effected Contract Works Insurance for: <<insert name of Contractor>> ( the Contractor ) <<insert name of Principal>> ( the Principal ) In respect of <<insert Contract Title>> ( Project Title ) The Sums Insured are: Contract Price $ (Plus GST) 8.1.2(a) Costs of Demolition $ (Plus GST) 8.1.2(b) Professional Fees $ (Plus GST) 8.1.2(c) Value of items incorporated or to be incorporated $ (Plus GST) 8.1.2(d) Increased construction costs $ (Plus GST) Total Sum Insured $ (Plus GST) The policy deductibles are: Non earthquake $ (GST inclusive) Earthquake $ (GST inclusive) Other (List) $ (GST inclusive) $ (GST inclusive)

26 Page CC 26 of 38 NZ Transport Agency 8.5.3, We advise that the special terms, copy attached, have been applied to this policy Policy cover terms included are: (a) Automatic reinstatement No cancellation for non-payment without prior notification Severally insured No settlement delay due to exercise of subrogation Project specific policy Construction period Defects liability period (both subject to alteration under construction date) Annual run-off policy Annual cut-off policy Policy expiry date We undertake that this policy will not be cancelled or amended by us within the period of insurance without written advice to the insured party which has arranged the insurances. The insurance issued is subject to the terms and conditions of the policy. We do not warrant that this policy complies with the requirements of NZS 3910:2003. Insurance Company Stamp Signature: Date: Signatory s Title:

27 NZ Transport Agency Page CC 27 of 38 8 Eighth Schedule: Information as to Public Liability Insurance Contract for: <<insert number and name>> <<Guidance note: Insert the below note for contracts with a base estimate of less than $50M pa) Note: For Contracts with a base estimate of less than $50M (pa), NZTA will download the Principal Arranged Insurance (PAI) Schedule 8 from and replace the below Schedule 8 template within the Contract Documents before the RFT is issued.>> To: New Zealand Transport Agency Address: From: Address: <<insert Postal Address>> <<insert Name of Insurance Company>> <<Insert Postal Address>> We confirm having effected Public Liability Insurance for: <<insert name of Contractor>> ( the Contractor ) <<insert name of Principal>> ( the Principal ) In respect of <<insert Contract Title>> ( Project Title ) Annual Policy Policy Expiry Date The Limit of Indemnity $ (Plus GST) 8.3.1(a) Sub limit insured for Forest and Rural Fires Act $ (Plus GST) 8.3.1(b) 8.3.1(c) Sub limit insured for vibration, removal or weakening of support Sub limit insured for damage to underground services $ (Plus GST) $ (Plus GST) We advise that the additional terms, copy attached, have been specifically applied to this project The policy covers Liability arising out of: The ownership/use of construction machinery not required to be registered for road use The use of hired plant The ownership/use of watercraft up to 8m The ownership/use of aircraft The use of explosives

28 Page CC 28 of 38 NZ Transport Agency 8.5.3, Policy cover terms included are: Automatic reinstatement No cancellation for non-payment without prior notification Severally insured No settlement delay due to exercise of subrogation We undertake that this policy will not be cancelled or amended by us within the period of insurance without written advice to the insured party which has arranged the insurances. The insurance issued is subject to the terms and conditions of the policy. We do not warrant that this policy complies with the requirements of NZS 3910:2003. Insurance Company Stamp Signature: Date: Signatory s Title:

29 NZ Transport Agency Page CC 29 of 38 9 Ninth Schedule: Information as to the Contractors Machinery Insurance for Contract Contract for: <<insert number and name>> To: Address: From: Address: New Zealand Transport Agency <<insert Postal Address>> <<insert Name of Insurance Company>> <<insert Postal Address>> We confirm having effected Plant Insurance for: <<insert name of Contractor>> ( the Contractor ) <<insert name of Principal>> ( the Principal ) In respect of <<insert Contract Title>> ( Project Title ) Annual Policy Policy Expiry Date The sums insured are: Schedule of construction machinery attached $ (Plus GST) The policy deductible is $ (GST inclusive) We advise that special terms, copy attached, have been applied to this policy Policy cover terms included are: Automatic reinstatement No cancellation for non-payment without prior notification No settlement delay due to exercise of subrogation We undertake that this policy will not be cancelled or amended by us within the period of insurance without written advice to the insured party which has arranged the insurances. The insurance issued is subject to the terms and conditions of the policy. We do not warrant that this policy complies with the requirements of NZS 3910:2003. Insurance Company Stamp Signature: Date: Signatory s Title:

30 Page CC 30 of 38 NZ Transport Agency 10 Tenth Schedule: Information as to the Contractor s Motor Vehicle Insurance for Contract Contract for: <<insert number and name>> To: Address: From: Address: New Zealand Transport Agency <<insert Postal Address>> <<insert Name of Insurance Company>> << insert Postal Address>> We confirm having effected Motor Vehicle Insurance for: <<insert name of Contractor>> ( the Contractor ) <<insert name of Principal>> ( the Principal ) In respect of <<insert Contract Title>> ( Project Title ) Annual Policy Yes/ No Policy Expiry Date (PAI) The sums insured are: Section 2 - Liability $ (Plus GST) The policy deductibles are: Section 2 $ (GST inclusive) We advise that special terms, copy attached, have been applied to this policy Policy cover terms included are: (a) Automatic reinstatement No cancellation for non-payment without prior notification No settlement delay due to exercise of subrogation We undertake that this policy will not be cancelled or amended by us within the period of insurance without written advice to the insured party which has arranged the insurances. The insurance issued is subject to the terms and conditions of the policy. We do not warrant that this policy complies with the requirements of NZS 3910:2003. Insurance Company Stamp Signature: Date: Signatory s Title:

31 NZ Transport Agency Page CC 31 of Eleventh Schedule: Information as to the Contractor s Professional Indemnity Insurance Contract for: <<insert number and name>> To: Address: From: Branch: Address: <<insert Principal s name>> <<insert Postal Address>> <<insert Name of Insurance Company>> <<insert Branch Name>> <<insert Postal Address>> We confirm having effected Professional Indemnity Insurance for: <<insert name of Contractor>> ( the Contractor ) In respect of <<insert Contract Number and Name>> ( Project Title ) Annual Policy Policy Expiry Date The limit of indemnity $ (Plus GST) Deductible $ (GST inclusive) The policy covers: The number of automatic reinstatements We advise that additional terms (copy attached) have been applied to this project. We undertake that this policy will not be cancelled or amended by us within the period of insurance without written advice to the insured party which has arranged the insurances. The insurance issued is subject to the terms and conditions of the policy. We do not warrant that this policy complies with the requirements of NZS 3910:2003. Insurance Company Stamp Signature: Date: Signatory s Title: (Clause numbers refer to NZS 3910:2003 and are for information only.)

32 Page CC 32 of 38 NZ Transport Agency 12 Twelfth Schedule: Cost Fluctuations Contract for: <<insert number and name>> << Guidance note: This version of the Schedule is to be used for an HNO Primary supplier maintenance contract. Cost fluctuation adjustment payments are comprised of two components. The formula for C (cost fluctuation adjustment for the month) is C = CI + CB where CI is based on the value of work completed and the change in an NZTA index since tenders closed, and CB is based on the volume of bitumen applied and the change in the NZTA bitumen cost adjustment series since tenders closed. The components CI and CB are expressed in the following terms below; CI = [ (Value x (p / 100)) x (I / I 1) ] CB = [ Volume x (Bit Bit ) ] The NZTA index to be used will be a composite index (part NZTA reseals index (costs excluding bitumen) - and part NZTA road maintenance index). >> 1. The provisions of this Schedule shall apply when provided for in the Special Conditions. 2. Subject to the remainder of this Schedule, the amounts payable by the Principal, to the Contractor under the Contract shall be adjusted up or down by amounts calculated in accordance with the following formula: C = [ (Value x (p / 100)) x (I / I 1) ] + [ Volume x (Bit Bit ) ] Where C = Cost fluctuation adjustment for the month under consideration Value = Valuation of work completed during the month under consideration taken from the Payment Schedule but without deduction for retentions and excluding the cost fluctuation adjustment p = The proportion of costs excluding bitumen (an estimate of total contract costs excluding bitumen divided by an estimate of total contract costs) is fixed for the duration of the contract and has a value of Z% <<specify the value of Z% >> I / I = The value of the index defined in Clause 3 for the month under consideration divided by the value of the index for the month during which tenders closed Volume = Volume of residual bitumen binder applied during the month under consideration (litres) taken from the Payment Schedule. Residual bitumen is the non-volatile fraction of the bitumen binder that remains in service after evaporation. Volume is measured at 15 degrees Celsius Bit = Value of the NZTA Bitumen cost adjustment series for the month under consideration, published on the NZTA website

33 NZ Transport Agency Page CC 33 of 38 Bit = Value of the NZTA Bitumen cost adjustment series for the month during which tenders closed, published on the NZTA website. 3. The index shall be a composite index calculated from the NZTA road maintenance index and the NZTA reseals index (costs excluding bitumen) applying weights of 0.X and 0.Y to each respectively and rounding to the nearest whole number. Both indexes as published on the NZTA website. 4. Cost Fluctuation provisions shall be applied from the commencement of the Contract period. 5. Cost Fluctuations are calculated on a monthly basis in accordance with this section. 6. For the purpose of calculating the cost fluctuation adjustment in Clause 2, any Day work, Prime Cost Sums, Variations and other payment items which are based on actual cost, or current prices and any advances shall be excluded from the valuation of work completed. 7. The Contractor shall not be entitled to claim cost fluctuation adjustment for work completed after the Due Date for Completion greater than that which would apply had the work been completed on the Due Date for Completion. 8. The index values to be used in the calculation of the cost fluctuation in Clause 2 shall be those first published by the NZTA for the appropriate quarter. 9. Where the index for the quarter has not yet been published, interim payments shall be made on the basis of the index for the most recent quarter for which an index is available. A correction to the interim monthly payment will be made following the publication of the applicable index and will be processed with subsequent progress payments. 10. If at any time any of the Statistics New Zealand indexes which are inputs into the NZTA index(es) referred to in Clause 2 or later clauses are no longer published, or if the basis of any index is materially changed, the adjustment shall thereafter be calculated by using such other input index, or in such other manner as will fairly reflect the changes as previously measured by that index. 11. If at any time any of the inputs into the NZTA bitumen cost adjustment series referred to in Clause 2 or later clauses are no longer published, or if the basis of the NZTA bitumen cost adjustment series is materially changed, the adjustment shall thereafter be calculated by using such other inputs, or in such other manner as will fairly reflect the changes as previously measured by the NZTA bitumen cost adjustment series.

34 Page CC 34 of 38 NZ Transport Agency 13 Thirteenth Schedule: Contract Risk Profile Contract for: <<insert number and name>> The Contract Risk Profile describes known risks and states whether the risk is included (Risk included) or excluded (Risk excluded) from the Contract Price. All other risks not specifically listed in the following schedule are deemed to be risk included and therefore need to be considered in the Contract Price. Contract Risk Profile Risk Description Risk Status Contract Works 1 Changes to Network centreline length. 2 Maintaining private accessways and pedestrian facilities located outside the kerb line and/or edge of seal in the urban areas as defined in the RAMM database. 3 Legislative, regulatory or Principal s policy changes during contract period. 4 Maintaining pavement and surfacing, within 7m of any rail, at railway level crossings. Value Management Proposition 5 Any change in any individual KRA or KPI weightings. 6 Asset additions and deletions during the contract period. 7 Changes to the accumulated annual pavement rehabilitation programme as reconciled against the Contractor s tendered accumulated Pavement Rehabilitation Baseline Plan. 8 Up to 10% change to the accumulated annual resurfacing programme as reconciled against the Contractor s tendered accumulated Resurfacing Baseline Plan. Contract Management 9 Unscheduled General, Principal & Special Structure Inspections and Reporting after a flood (or similar) event. 10 Maintenance, use of and management of Stockpile and Disposal Sites. 11 Liability for damages to services and assets caused by the Contractor s operation. Risk Included Risk Included Risk Included Risk Included