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

Transcription

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

2 <<This page is to be left blank.>> DOCUMENT CHANGE FORMAT CODES This proforma document provides the basis for the development of physical works contract documents for the Transport Agency s Design and Construct (contracts >$4.5M) and Design and Construct (Basic) (design and construct contracts up to $4.5M) contracts. The purpose of the proforma is to provide consistency throughout the Transport Agency s regional operations and to ensure that an appropriate level of detail is provided in tender documentation. Black Black text is mandatory and may not be changed without approval prior to issue by the Transport Agency s Project Manager, who will consult with the Transport Agency s Project Services Team on all material changes made. Red Red text is used for data which requires fields to be updated or at least considered for each contract and marked at the beginning with [ and the end with ]. Text can also be used as is, modified or replaced. All red text adjustments must have the Transport Agency s Project Manager s approval. All finalised text converted to Black text, prior to tender document release Blue Blue text is used for optional clauses which can be included as is or deleted in full. All finalised text converted to Black text, prior to tender document release Purple Purple text is used for prequalification clauses which are to be included for prequalification tenders only. For most contracts the Transport Agency requires that Prequalification is used. Prequalification clause details must be prior approved with the Project Manager. All finalised text converted to Black text, prior to tender document release <<Guidance Notes>> Blue text with yellow highlighting and marked at the beginning with << and the end with >> are guidance notes for the Tender Document creator. Guidance notes must be removed prior to tender document release.

3 CONTENTS <<Ensure the Table of Contents is updated once the final revisions have been undertaken as pagination may have changed. Highlight the TOC right click update field update entire table >> CONTRACT AGREEMENT 2 GENERAL CONDITIONS 4 SCHEDULES TO THE GENERAL CONDITIONS OF CONTRACT 5 SCHEDULE 1 SPECIAL CONDITIONS OF CONTRACT SPECIFIC CONDITIONS OF CONTRACT 5 Schedule 2 Special Other 21 Schedule 3 Form of Contractor s performance bond 28 Schedule 4 Form of Principal s bond 30 Schedule 5 Form of Contractor s bond in lieu of retentions 31 Schedule 6 Form of Producer Statement - Construction 33 Schedule 7 Information on Contractor arranged construction insurance 34 Schedule 8 Information on Contractor arranged Plant insurance 36 Schedule 9 Information on public liability insurance 38 Schedule 10 Information on Contractor arranged motor vehicle insurance 40 Schedule 11 Information on Contractor arranged professional indemnity insurance 42 Schedule 12 Information on Principal arranged construction insurance 43 Schedule 13 Form of Contract (or Subcontractor) warranty 46 Schedule 14 Agreement for off-site Materials 47 Schedule 15 Practical Completion Certificate 53 Schedule 16 Final Completion Certificate 54 Schedule 17 Deed of Novation 55 Schedule 18 Cost fluctuations 59 Page 1 of 60

4 Contract Agreement CONTRACT FOR CONTRACT NUMBER THIS AGREEMENT is made on 20 BETWEEN ( the Contractor ) AND The a Crown entity, established on 1 August 2008 by Section 93 of the Land Transport Management Act 2003 ( the Principal ) IT IS AGREED as follows: 1. The Contractor shall carry out the obligations imposed on the Contractor by the Contract. 2. The Principal shall pay the Contractor the sum of $ or such greater or less sum as shall become payable under the Contract together with goods and services tax at the times and in the manner provided in the Contract. 3. Each party agrees to the terms and conditions as set out in the Contract. 4. The Contract comprises the following documents: (a) (b) (c) This Contract Agreement; The notification of acceptance of tender or award of Contract; The following post-tender documents <<Guidance note: identify any agreed posttender documents to be included, for example correspondence or minutes of pre-let meetings dealing with tender tags etc>> (d) (e) (f) (g) (h) (i) (j) (k) Schedule 2: Special Other ; Schedule 1: Special Specific ; The General NZS3916: 2013 (including other Schedules); The Principal s Requirements and Specifications issued prior to the Date of Acceptance of Tender; Drawings issued prior to the Date of Acceptance of Tender; The Schedule of Prices <<Delete if not applicable>> The Contractor s tender; Notices to Tenderers <<guidance note: give details with dates>>: Page 2 of 60

5 (l) (m) (n) The Schedule to the Conditions of Tendering; The Conditions of Tendering; and The following additional documents: <<Identify any additional documents to be included for example agreed correspondence>> 5. The documents comprising the Contract shall be taken as mutually explanatory, but in the case of ambiguity or conflict the priority of documents shall be listed in clause 4 above, with each document prevailing over a document lower in the list. 6. This Contract shall constitute the entire agreement between the parties. This Contract supersedes all prior negotiations, representations, and warranties, except insofar as the same are expressly incorporated herein. SIGNED BY Authorised Signatory of Contractor SIGNED BY Authorised Signatory of Principal Page 3 of 60

6 General Conditions The General shall be those included in NZS 3916: 2013 Conditions of Contract for Building and Civil Engineering - Design and Construct and the following clauses. <<Important Guidance note: When preparing any part of this tender, document, if there are sections/schedules that you do not require e.g. Schedule 18 - Cost Fluctuations within the, DO NOT DELETE these schedules and ensure that you insert text at top of page This Section Not Used >>. Page 4 of 60

7 Schedules to the General Conditions of Contract Schedule 1 Special Specific (Clause numbers refer to General Conditions) Contract for: [Contract Number, Contract Name] Clause in General Conditions Title and subject matter Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) 1 INTERPRETATION 1.2 Definitions The Principal is: of: 1.2, 10.2 Separable Portions Are there any Separable Portions in this Contract? If yes, the Separable Portions are as follows and as further defined in the Contract. 2 THE CONTRACT The Principal is: the (Transport Agency), a Crown entity, established on 1 August 2008 by Section 93 of the Land Transport Management Act 2003 Click to enter street address Select yes or no Click to enter reference 2.1 Type of Contract This Contract is a: (a) Lump sum contract governed by Local authority contracts in public places, and road contracts Is this Contract a local authority contract to which applies Is this Contract a contract in a public place to which B1 and B2 of Appendix B apply? Is this Contract a road contract to which Appendix B applies? If yes, the allowance under B3 shall be: 2.5 Evidence of Contract No Yes Yes Refer to Schedule 2 Special Conditions of Contract - Other, Clause How is the Contract Agreement executed? (a) As stated in Page 5 of 60

8 Clause in General Conditions Title and subject matter Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) 2.6 Documents prepared by the Engineer or Principal Copies of the Contract shall be supplied without charge to the Contractor in the following electronic format: pdf 2.7 Documents prepared by the Contractor Copies of the Contract shall be supplied without charge to the Engineer: Number of hard copy sets: Click to enter number In the following electronic form: pdf 3. BONDS 3.1 Contractor s Bond Is a Contractor s Bond required? Select yes or no Note - Bonds are accepted in principle from those insurance companies and bond companies who hold a minimum interactive S&P rating of A If yes, the amount of the Contractor s Bond shall be: Click to enter value ($) or % Contract Price <<Guidance note: refer to section of the Transport Agency s Contract Procedures Manual (SM021) for guidance on the bonding policy>> 3.2 Principal s Bond Is a Principal s Bond required? No 4. SUBCONTRACTS 4.1 General Is the transfer of design agreements required? Select yes or no 5. GENERAL OBLIGATIONS <<If the transfer of design agreements are required, include Schedule 17>> , , , Time for review of Design Documentation by Engineer (a) 10 Working Days; (b) Within the following time: (select one to apply, (a) or (b)) Click to enter reference 5.4 Possession of the Site The Contractor shall be given possession of the Site (a) 10 Working Days after the Date of Acceptance of Tender: (b) On the following date: (select one to apply, (a) or (b) Click to enter a date <<OR>> Page 6 of 60

9 Clause in General Conditions Title and subject matter Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) On the date specified in the contract acceptance letter Limits on the Contractor s right of entry to adjoining properties are: Nil or As detailed in the Principal s Requirements 5.5 Separate Contractors Separate Contractors who may be carrying out work on the Site concurrently with the Contract Works are: Contract Number, Contract Name [Contractor to be named] Are facilities for Separate Contractors required? Select yes or no If yes, details of facilities required are: Click to enter text 5.6 Care of works and Site 5.6.6(f) Further risks specifically excepted are: Nil 5.10 Programme <<Guidance note: default is NIL. Risk and Insurance sub-vac should be consulted if you wish to change from the default>> Is the programme required to be a Comprehensive Programme? Yes (e) If yes, other requirements for the Comprehensive Programme are: Click to enter text The Comprehensive Programme shall us the following software: Updates of the Comprehensive Programme shall be provided at the following intervals: Click to enter text <<e.g. MS Project Version X>> Click to enter text <<To be determined based on the nature of the work e.g. fortnightly, monthly>> 5.11 Compliance with laws Exceptions to the Principal s obligations to obtain licences under are: Exceptions to the Contractor s obligations to give notices and obtain other licences under are: Exceptions to the Contractor s obligation to give notices and to obtain licences for Temporary Works and for temporary amenities and services under are: Nil <<Default is Nil unless Principal feels that the Contractor is best to obtain certain licences.>> Nil Nil 5.17 Safety plan Is a Site-specific safety plan required to be prepared by the Contractor? Yes 5.18 Quality plan Is a quality plan required to be prepared by the Contractor? Select yes or no 5.19 Traffic management plan Page 7 of 60

10 Clause in General Conditions Title and subject matter Is a traffic management plan required to be prepared by the Contractor? Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) Select yes or no 5.20 As-built drawings and operation and maintenance manuals (a) (b) Are as-built drawings required to be prepared by the Contractor, as set out in the project specification? Are operation and maintenance manuals required to be prepared by the Contractor, as set out in the project specification? Select yes or no Select yes or no 6. THE ENGINEER 6.1 Appointment of the Engineer The Engineer is: Name, Company, Street Address Whose professional qualification is: Click to enter text The Principal will recover the cost for reinspection, remeasuring or retesting at the following rates: Engineer or other professional [$220.00] per hour (exclusive of GST) Other personnel [$150.00] per hour (exclusive of GST) Vehicle running [$1.00] per km (exclusive of GST) Sub-consultant invoices Cost plus [5%] 8. INSURANCES 8.1 General The party identified below shall arrange the following insurances referred to in the following clauses 8.3 or 8.8 Construction Select Contractor or Principal <<Guidance note: Select Principal for all contracts with a base estimate of less than $100 million (PAI) >> 8.8 Existing structure(s) and contents) Select Principal if insurance is required <<Guidance note: Approval for insurance levels by risk and assurance sub-vac is required for any contract where construction work is contemplated on significant strategic parts of the Transport Agency asset, e.g. the Auckland Harbour Bridge, Newmarket Flyover, Thorndon Elevated Motorway, Christchurch Lyttleton Road Tunnel. While the Transport Agency does not insure any aspect of the roading network, bridges or tunnels, in such cases it is possible that the Transport Agency may need to insure the asset being worked on. Note that this would only apply to contracts where the structure supporting the asset was being worked upon and there might be a risk of physical collapse.>> Page 8 of 60

11 Clause in General Conditions Title and subject matter Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) 8.4 Plant Contractor <<Guidance note: Default is Contractor.>>. 8.5 or 8.9 Public liability Select Contractor or Principal Motor Vehicle Contractor 8.6 Professional Indemnity Contractor <<Guidance note: Select Principal for all contracts with a base estimate of less than $100 million (PAI) >> <<Guidance note: The value of the level of insurance is stated in below.>> The following forces of nature shall be specifically insured under 8.3 or 8.8 as applicable: (a) Landslip (b) Earthquake (c) Tsunami (d) Tornado (e) Cyclone (f) Storm (g) Flood (h) Lightning strike (i) Volcanic activity (j) Hydrothermal activity (k) Geothermal activity <<Guidance note: Select yes on all items under if PAI is used, otherwise yes or no, as appropriate given the location of the site, for Volcanic, Hydrothermal and Geothermal Activity.>> Yes Yes Yes Yes Yes Yes Yes Yes Select yes or no Select yes or no Select yes or no 8.3, 8.8 Construction insurance (These items are required to be completed whether the Contractor or the Principal is the insuring party (see 8.1 above) 8.3.2, 8.8 The following shall have their respective interests noted in the construction insurance policy: <<Guidance Note: list any third parties interests that need to be a named Insured in the insurance policy>> 8.3.3, 8.8 Where construction insurance is required (see 8.1 above), the amount of insurance to be effected for the Contract Works and Materials shall be for not less than the sum of the Contract Price, after acceptance of the tender or other offer, plus the following allowances: (a) An allowance for the Cost of demolition, disposal and preparation for replacement work, equal to: (Select one to apply, (i) or (ii)) Page 9 of 60

12 Clause in General Conditions Title and subject matter (i) The amount in the right hand column: (ii) The percentage of the Contract Price adjusted as above, stated in the right hand column: (b) An allowance for professional services fees including the Cost of clerks of works and inspectors, equal to: (i) The amount in the right hand column: (ii) The percentage of the Contract Price adjusted as above, stated in the right hand column: (c) An allowance for items to be incorporated in the Contract Works, the Cost of which is not included in the Contract Price, equal to: (i) The amount in the right hand column: (ii) The percentage of the Contract Price adjusted as above, stated in the right hand column: (d) An allowance for an increase in the Contract Price due to Variations, equal to: (i) The amount in the right hand column: (ii) The percentage of the Contract Price adjusted as above, stated in the right hand column: (e) An allowance for an increased construction Costs due to inflation, equal to: (i) The amount in the right hand column: (ii) The percentage of the Contract Price adjusted as above, stated in the right hand column: Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) [$xxxxx] [5%] (Select one to apply, (i) or (ii)) [$xxxxx] [5%] (Select one to apply, (i) or (ii)) [$xxxxx] [5%] (Select one to apply, (i) or (ii)) [$xxxxx] [5%] (Select one to apply, (i) or (ii)) [$xxxxx] The insurance shall make provision for automatic change of cover for items (a) and (e) above, to provide insurance for any additions to or deductions from the Contract Price which occur after acceptance of the tender or other offer. [5%] 8.4 Contractor arranged Plant insurance Where Plant is required to be insured (see 8.1 above): (a) The Contractor shall insure the following items of Plant on Site for the amounts stated: (b) The Contractor shall insure each item of Plant on the Site having a current market value of more than: (Select one to apply, (a) or (b)) [list specific items] <<Guidance Note: List any items of plant of exceptional nature and specifically critical to the timely completion of the contract>> $200,000 <<Guidance note: default is $200k if required, otherwise choose Not required >> 8.5 Contractor arranged public liability insurance Where required (see 8.1 above), public liability insurance shall be effected by the Contractor [$5,000,000] Page 10 of 60

13 Clause in General Conditions Title and subject matter for an amount not less than: Such public liability insurance may include sub limits: Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) For liability arising out of vibration, weakening or removal of support, of not less than: For liability under the Forest and Rural Fires Act 1977, of not less than: [$250,000.00] <<Guidance note: for any contract in an urban or built up area, cover shall be increased to the full minimum limit of $5M. Ensure your sub-limits match those listed within Schedule 9>> [$250,000.00] <<Guidance note: for any contract in forested area or vineyard, cover shall be increased to the full minimum limit of $5M. Ensure your sub-limits match those listed within Schedule 9>> Where required (see 8.1 above), motor vehicle third party liability insurance shall be effected for an amount not less than: [$5,000,000] 8.6 Contractor arranged professional indemnity insurance <<Guidance Note: Project specific contracts Insurance Levels must be reviewed and approved by the Risk and Insurance Sub VAC via Appendix XXIII of SM021 Manual Where required (see 8.1 above), professional indemnity insurance for design by the Contractor shall be effected for an amount not less than: For any one claim: [$XXXXX] And for an amount in the aggregate of: [$XXXXX] Sub limits of liability for design of parts of the Contract Works by Subcontracts shall not be less than: [List specific parts] or [Not required] <<Guidance note: list specific part(s) of Contract Works and applicable $ sub-limits for any one claim and for an amount in the aggregate, or state if not required>> 8.8 Principal arranged construction insurance (refer also to 8.3) <<Guidance note: For use on contracts with a base estimate of less than $100 million (PAI)>> In accordance with 8.7.2, the insurance policy wording title for and (a), (b), and (c) is: In accordance with 8.7.2, the extraordinary exclusions, conditions, warranties or endorsements to the policy for and (a), (b) and (c) are: The as Principal and its Contractors and their Sub Contractors for their respective rights and interests Specific policy wording applicable to this contract can be read at the following website: Where the Principal is required to effect construction insurance (see 8.1 above). The lead insurer is: Great Lakes Page 11 of 60

14 Clause in General Conditions Title and subject matter Address of lead insurer: The Nominal Deductibles are: Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) Corporate Branch, UK Original Estimated Contract Value >0 to 10m >10m to 20m >20m Each loss except as below: $10,000 $25,000 $50,000 Major Perils $25,000 $50,000 $100,000 Wet Work Contracts Tunnelling Contracts (including excavations / underpasses >100m) LEG 3/06 Defects Claims $300,000 $300,000 $300,000 $300,000 $300,000 $300,000 $250,000 $250,000 $500,000 For this contract, the Original Estimate Contract Value is in the range Select value <<Guidance Note: Consultant to ensure the above deductibles table is consistent with the Transport Agency s latest and current PAI policy wording at the time of tender close>> 8.8.2(a) The existing structures are: N/A 8.8.2(b) Other structures in the vicinity are: N/A 8.8.2(c) Contents insurance are: N/A 8.9 Principal s option to insure public liability <<Guidance note: default position is that this is not relevant to Transport Agency projects. If unsure insurance@nzta.govt.nz for project specific guidance>> <<Guidance note: default position is that this is not relevant to Transport Agency projects. If unsure insurance@nzta.govt.nz for project specific guidance>> <<Guidance note: default position is that this is not relevant to Transport Agency projects projects. If unsure insurance@nzta.govt.nz for project specific guidance>> Page 12 of 60

15 Clause in General Conditions Title and subject matter Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) <Guidance note: For use on contracts with a base estimate of less than $100 million (PAI)>> Where required (see 8.1 above), the Principal shall effect public liability insurance for an amount not less than: The lead insurer is: Address of lead insurer: Select an option Vero Liability New Zealand Ltd / Lloyd s of London <<Guidance note: leave this blank>> The Nominal Deductibles are: Original estimated contract value >0 to 5m >5m to 10m >10m Each occurrence (including Maintenance Contracts) $10,000* $20,000* $25,000* *Including costs and expenses For this contract, the Original Estimate Contract Value is in the range Select value <<Guidance Note: Consultant to ensure the above deductibles table is consistent with the Transport Agency s latest and current PAI policy wording at the time of tender close>> In accordance with 8.7.2: The policy wording title is: Specific policy wording applicable to this contract can be read at the following website: Extraordinary exclusions, conditions, warranties, or endorsements to the policy are: Specific policy wording applicable to this contract can be read at the following website: Such public liability insurance may include sublimits for: (specify as applicable or state not applicable ) Liability arising out of vibration, weakening or removal of support Liability under the Forest and Rural Fires Act 1977: [$250,000] <<Guidance note: For any contract in an urban or built up area, cover shall be increased to the full minimum limit of $5M. Ensure your sub-limits match those listed within Schedule 9>> [$250,000] <<Guidance note: for any contract in forested area or vineyard, cover shall be increased to the full minimum limit of $5M. Ensure your Page 13 of 60

16 Clause in General Conditions Title and subject matter Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) sub-limits match those listed within Schedule 9>> 9. VARIATIONS <<Guidance note: this should be consistent with the approach selected under the IFT (Schedule of Conditions of Tendering 105.3(e))>> 9.3 Valuation of Variations For On-site Overheads: (select one to apply, (a) or (b)) (a) The prices and rates in the Schedule of Prices are inclusive of full allowance for Onsite Overheads; (b) The prices and rates in the Schedule of (select one to apply, (i), (ii), (iii), or (iv)) Prices are exclusive of On-site Overheads and the allowances for On-site Overheads to be added in accordance with is: (i) Agreed percentage: [XX%] (ii) As nominated in the Schedule of Prices. (iii) As nominated in the Contractor s tender. (iv) A reasonable percentage. <<Guidance note: this is the preferred default, although (iii) may be adopted with the Transport Agency s Project Manager approval>> For Off-site Overheads and Profit: (select one to apply, (a) or (b)) (a) The price and rates in the Schedule of Prices are inclusive of full allowance for Off-site Overheads and Profit; (b) The prices and rates in the Schedule of (select one to apply, (i), (ii), (iii), or (iv)) Prices are exclusive of Off-site Overheads and the allowances for Off-site Overheads and Profit to be added in accordance with is: (i) Agreed percentage: [XX%] (ii) As nominated in the Schedule of Prices. (iii) As nominated in the Contractor s tender. (iv) A reasonable percentage For time related Cost, the Working Day rate in compensation for time-related On-site Overheads and Off-site Overheads and Profit in relation to an extension of time to be applied in accordance with is: (a) Agreed percentage: (b) As nominated in the Schedule of Prices. <<Guidance note: this is the preferred default, although (iii) may be adopted with the Transport Agency s Project Manager approval>> (select one to apply, (a), (b), (c,) or (d)) [XX%] Page 14 of 60

17 Clause in General Conditions Title and subject matter (c) As nominated in the Contractor s tender. (d) A reasonable compensation. Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) <<Guidance note: this is the preferred default, although (c) may be adopted with the Transport Agency s Project Manager approval>> For processing of Variations, the percentage to be paid in accordance with is: (a) Agreed percentage: (b) As nominated in the Schedule of Prices. (select one to apply, (a), (b), (c,) or (d)) [XX%] (c) As nominated in the Contractor s tender. (d) A reasonable Cost of processing the Variations. <<Guidance note: this is the preferred default, although (c) may be adopted with the Transport Agency s Project Manager approval>> 10. TIME FOR COMPLETION 10.2 Due Date for Completion The periods to be used for calculating the Due Date for Completion are: (a) For the Contract Works: (b) For any Separable Portions: (c) In respect of the Contract Works the Number of Weeks nominated by the Contractor in their Tender Submission (select one to apply, (a), (b) or (c)) Click to enter number of Working Days (Working Days) Click to enter number of Working Days (Working Days) Click to enter details Nil <<Guidance note: only used where the tenderer nominated duration process is used in the IFT>> 10.4 Practical Completion Certificate Prior to issue of the Practical Completion Certificate: (a) Producer Statements in the form of Schedule 6 are required; (b) Producer Statements as set out in the following parts of the Contract are required: (c) Producer Statements are not required. (select one to apply, (a), (b) or (c)) <<Default>> [Project Specification Section X] 10.5 Damages for late completion <<Guidance note: Where liquidated damages are provided for, the amount must be a genuine pre-estimate of the likely loss that would result from delay of completion. Where liquidated damages are provided for Separable Portions it may be necessary to provide different rates for each Separable Portion. Where liquidated damages are not provided, the Principal can recover and the Contractor will be liable only for such actual loss as the Principal can prove has resulted from the late completion, being loss of a kind reasonably foreseeable to the parties at the time the contract was made as being likely to result Page 15 of 60

18 Clause in General Conditions Title and subject matter Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) Liquidated damages shall be applied as follows: In respect of the Contract Works: In respect of the Separable Portions: [$XXX] per Working Day [$XXX] per Working Day for each Separable Portion 10.6 Bonus for early completion Is a bonus to be payable? Yes or no If yes, the bonus for the Contract Works is: [$XXXX] per Working Day If yes, bonuses for any Separable Portions are: 11. DEFECTS LIABILITY [$XXXX] per Working Day 11.1 Defects Notification Period The Defects Notification Period shall be: (3 Months unless otherwise stated) In respect of the Contract Works: [52] weeks In respect of the Separable Portions: [52] weeks 11.3 Final Completion Certificate Prior to issue of the Final Completion Certificate: (a) Producer Statements in the form of Schedule 6 are required; (b) Producer Statements as set out in the following parts of the Contract are required: (c) Producer Statements are not required. (select one to apply, (a), (b) or (c)) <<Default>> [Project Specification Section X] 11.5 Warranties (a) No warranties are required; 11.6 Guarantees , (a) No guarantees are required; (b) The Contractor shall provide guarantees in the following form: <<Default>> [State form] 12. PAYMENTS 12.1 Contractor s payment claims (b) (iii) Advances for Materials delivered to the Site (a) Advances for Materials delivered to the Site but which have yet to be incorporated in the Contract Works shall not be made; (select one to apply, (a) or (b)) <<Guidance note: this is the default if using D&C (Basic). The Transport Agency s Project Page 16 of 60

19 Clause in General Conditions (b) (iv) (b) (iv) Title and subject matter (b) Advances for Materials delivered to the Site but which have yet to be incorporated in the Contract Works shall be made, subject to the following conditions: Advances for Temporary Works or Plant (a) Advances for Temporary Works or Plant shall not be made. (b) Advances for Temporary Works or Plant shall be made, subject to the following conditions: Advances for Materials not yet on Site (a) Advances for Materials not yet on Site shall not be made. (b) Advances for Materials not yet on Site shall be made, subject to the following conditions: Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) Manager approval is required if option (b) below is selected>> [state any conditions] (select one to apply, (a) or (b)) <<Guidance note: this is the default if using D&C (Basic). the Transport Agency s Project Manager approval is required if option (b) below is selected>> [state any conditions] (select one to apply, (a) or (b)) <<Guidance note: this is the default if using D&C (Basic). The Transport Agency s Project Manager approval is required if option (b) below is selected>> (a) The Contractor agrees to execute an Agreement in respect of off-site materials in the form as set out in the Fourteenth Schedule of these. (b) The Contractor shall ensure that at all times the Materials are fully insured in accordance with the provisions of section 8 of the General (as appropriate), and supply evidence of same to the Principal. (c) The Contractor shall keep the Principal indemnified against loss, damage costs, claims, expenses or liability incurred by the Principal in respect to any loss of, or damage to, or defect in all or part of the Materials to the extent that the Principal is not so indemnified under section 7 of the General (d) The Contractor undertakes to keep the stored materials in good order, maintenance and condition. The Contractor warrants that in relation to such Materials, those Materials when incorporated into the Contract Works will be fit for their purpose as required under the Page 17 of 60

20 Clause in General Conditions Title and subject matter 12.3 Retention monies , The percentage to be retained from each progress payment and the limit of the total sums retained shall be in accordance with the following: (a) For the Contract Works, a total retention of: 10% on the first $200,000, and 5% on the next $800,000, and 1.75% on amounts in excess of $1,000,000, and With a maximum total retention when aggregated of $200,000, and With a defects liability retention of half the total retention. (b) For the Contract Works, the retention scale in the right hand column: Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) Contract Document. The Engineer shall be given reasonable access to inspect the relevant Materials. (e) Following payment to the Contractor ownership of the Materials shall vest in the Principal as legal and beneficial owner free of all charges and encumbrances of any nature whatsoever. The Contractor shall ensure that all secured creditors of the Contractor are given written notice of the existence of the Principal s ownership of the Materials and of the conditions of the relevant advance. Should any portion of the Materials no longer be required for the Contract Works, the Contractor shall be responsible for all costs of storage, handling and disposal of the surplus Materials. The Contractor shall only dispose off such surplus Materials following a written instruction from the Engineer. Ownership of such surplus Materials shall re-vest in the Contractor as the Contractor disposes of such surplus Materials. The Principal shall recover the value of disposed material from subsequent progress payments, at the same rates as paid to the Contractor for the Materials stored off site. (f) The advance payment for the Materials, shall be recovered progressively by deduction from progress payments as such Materials are incorporated into the Contract Works (select one to apply, (a) or (b), and (c)) <<Default for D&C Basic and contracts less than $20 million >> A total retention of: [XX%] on the first [$xxx,xxx], plus Page 18 of 60

21 Clause in General Conditions Title and subject matter (c) For Key Personnel Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) [x%] of the next [$xxx,xxx], plus [x%] on amounts in excess of [$xxx,xxx], and With a maximum total retention of [$xxx,xxx] when aggregated, and With a defects liability retention of 50 % of total retention <<Guidance note: for large construction contracts over $20Million, the capped retention limit needs to be approved via the Risk and Insurance Sub VAC>> Refer to Schedule 2 Special Conditions of Contract - Other, Clause 5.23 The amount to be retained in respect of the Contract Works in accordance with this clause shall not be reduced, until all Asset Register (RAMM) information, all as-built drawings and all operations and maintenance manuals required to be submitted at or before Practical Completion, have been submitted to the Engineer. The retention monies shall not be reduced, until all RAMM information, all as-built drawings and all operations and maintenance manuals required to be submitted at or before the end of the Defects Notification Period have been submitted to the Engineer <<Guidance Note: Project Specification to detail all RAMM information required from the Contractor for RAMM updates.>> Bond in lieu of retention (select one to apply, (a) or (b)) (a) The Contractor may provide a bond in lieu of retentions. The percentage to be retained from each progress payment and the limit of the total sums retained shall be nil if the Contractor provides a Bond in Lieu of Retentions (Schedule 5). The value of the bond shall be the applicable retention amount plus a further 10% (b) The Contractor may not provide a bond in lieu of retentions 12.8 Cost fluctuations (select one to apply, (a), (b) or (c)) (a) Cost fluctuations shall not be paid; <<guidance note: this is the default if using D&C (Basic)>> (b) Cost fluctuations shall be paid in accordance with Appendix A; (c) Cost fluctuations shall be paid in accordance with the method described in Schedule 18 <<Guidance note: choose this option when contract period exceeds 52 weeks>> Goods and services tax Payment Schedules provided by the Engineer: (select one to apply, (a) or (b)) (a) Shall not be in the form of a tax invoice; Page 19 of 60

22 Clause in General Conditions Title and subject matter (b) Shall be in the form of a buyer created tax invoice and the parties agree not to issue any other tax invoice for items covered by the Payment Schedule. 13. DISPUTES Specific condition data (Expand cells if required or add reference to further detail provided in Schedule 2.) 13.4 Arbitration If required, the arbitrator shall be nominated by the following Person: [Name, Position] <<Guidance noted: default is Engineer to the Contract>> 15. SERVICE OF NOTICES For the purposes of service of written notice: (a) The address of the Principal is: Postal address: Delivery address: Mark the attention of: address: Other agreed means of electronic communication and address detail: (b) The address of the Contractor is: Postal address: Delivery address: Mark the attention of: address: Other agreed means of electronic communication and address detail: (c) The address of the Engineer is: Postal address: Delivery address: Mark the attention of: address: Other agreed means of electronic communication and address detail: Page 20 of 60

23 Schedule 2 Special Other These conditions amend and supplement the General Conditions. Clause numbers refer to NZS 3916:2013. Section 1 INTERPRETATION In addition to 1.2 Definitions, add in the following definitions: CONTRACTOR S DESIGN means the design of the Contract Works including: (a) He performance by or on behalf of the Contractor of any design investigation, design feasibility study, design calculation, technical information calculation, design drawing, design specification, design instruction, design procedure, monitoring or testing of the design of the Contract Works by design personnel; and (b) (c) Development of all Design Documentation necessary to carry out and complete the Contract Works; and Preparation of As-built Drawings, operation manuals and maintenance manuals as required by the Contract Documents. CONTRACTOR'S DESIGNER means any Person who is employed or contracted by the Contractor to design any part of the Contract Works. KEY PERSONNEL means the Contractor s personnel nominated for the positions under the relevant skills Form C in the Contractor s Tender and any other persons identified by the Principal as key personnel with the Contractor s prior approval. UNDERGROUND SERVICES means existing pipework, cables, conduits, conveying services such as electricity, gas, water, waste and electronic communications, located below the existing ground. WINTER PERIOD means the period [31 May] through [31 August] inclusive. <<Guidance Note: the Consultant shall consider the appropriate Winter Period for sealing exclusion, noting that this will vary with the location of the works. If uncertain the consultant shall consult with the Transport Agency s National Pavement Manager.>> The following are modifications to the definitions in 1.2: CONTRACT WORKS means the works including the Temporary Works and the Contractor's Design to be executed in accordance with the contract. PRINCIPAL'S REQUIREMENTS means the Principal's Requirements written requirements for the Contract Works included in the Contract and identified as the Principal s Requirements which: (a) (b) (c) (d) Shall include the purpose and performance requirements for the Contract Works; and May include outline or preliminary design, design concepts for the Contract Works, and the Principal s, time, cost and quality objectives for the Contract Works; and May include Drawings, Specifications, or other design document prepared by or on behalf of the Principal; and May include any additions or modifications supplied by the Engineer to the Contractor for the purpose of the contract. SUBCONTRACTOR means any Person who contracts with the Contractor to design, carry out, or supply part of the Contract Works on behalf of the Contractor and includes any Contractor's Designer or a Nominated Subcontractor. Section 2 THE CONTRACT Page 21 of 60

24 Clause is deleted and replaced with the following: No discrepancy in the Schedule of Prices shall be treated as a Variation. Section 4 SUBCONTRACTS A new clause is added as follows: The Contractor shall be liable for all Costs associated with any delays or disruption caused by Nominated Subcontractors. The Engineer may take any such delays or disruptions into account in determining any extension of time. The Contractor shall not be entitled to compensation for time related costs where an extension of time is granted on such grounds. A new clause 4.3 Contractor s Designers is added as follows: The Contractor must ensure all Contractor's Designers are suitably experienced and hold appropriate professional qualifications with regard to the design to be undertaken by that Person. Section 5 GENERAL OBLIGATIONS Clause is deleted and replaced with the following: The Contractor shall: (a) (b) as part of the programme it is to prepare under clause 5.10, submit to the Engineer for approval a documentation program which makes allowance for draft Design Documentation to be submitted to the Engineer in a manner and at a rate which will give the Engineer a reasonable opportunity to review such documentation within the period of time provided in this clause 5.1; and submit the Design Documentation it prepares to the Engineer in accordance with the documentation program approved by the Engineer under 5.1.9(a) Add the following to clause : No review of, comments upon, rejection or approval of, or failure to review or comment upon or reject or approve, any Design Documentation prepared by the Contractor or any other direction by the Engineer about the Design Documentation shall: (a) (b) relieve the Contractor from, or alter or affect, the Contractor's liabilities or responsibilities whether under the Contract Documents or otherwise according to law; or prejudice the Principal's rights against the Contractor whether under the Contract Documents or otherwise according to law. A new clause is added as follows: During the term of the contract the Contractor must advise the Engineer to the Contract of any potential or actual conflicts of interest with any individual or organisation engaged to complete any of the contract works. This includes individuals and organisation s engaged in any subcontractor or other supply arrangement. The Contractor must advise the Engineer to the Contract the means that they intend to use to remove or mitigate such conflicts of interest. The Engineer must inform the Principal of any conflicts of interest notified to the Engineer by the Contractor in accordance with this clause, and the Engineer will, in discussion with the Principal and taking into account (but not bound by) the Page 22 of 60

25 Contractor s intended action, decide the appropriate action required to remove or mitigate any actual or potential conflict of interest. The Engineer must ensure the Contractor implements such required action. A new clause 5.22 Risk Allocation is added as follows: A number of risks may affect the performance of the services by the Contractor. This clause schedules those risks that the Principal shall assume responsibility for. Where a risk is allocated to the Principal, the Principal shall be solely responsible for the consequences of the relevant event, except where limited by the provisions of this clause or as otherwise expressly provided in the Contract Documents. To the extent that a risk is not identified in this clause as being assumed by the Principal or is otherwise expressly provided in the Contract Documents, the Contractor shall have responsibility for all consequences of the occurrence of the relevant event, matter or circumstance which may impact on the performance of the Contractor of the services or its obligations under the contract and no Variation or Extension of Time shall be due The Principal will bear the risk of the following: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) Any changes in legislation or the Transport Agency s policy during the course of the contract which affects the contract. Any issues relating to land acquisition initiated by the Principal (does not include general liaison with landowners during the course of the contract). Any need for iwi construction monitoring fees that may be determined. Any time and risks associated with a flood even resulting in inundation which materially affects the project works, with a probability of occurrence at the site equal to or less than.04 in one year. (.04 is the probability of occurrence of a flood event within an average recurrence interval of 25 years in one year). The excepted risks in as interpreted in the context of clause 5.6 as a whole. Any need for random verification testing during the construction phase requested by the Principal. Unreasonable delays arising from Principal arranged approvals. Unreasonable delays arising from any instruction, clarification or direction issued by the Principal. Unreasonable delays arising from failure by the Principal to arrange for vacation of property required for the construction of the Contract Works. Any instruction from the police and highway authority to clear the site due to Incident Management requirements, which effects critical path operations in 40 hrs, including reinstatements of work. Unreasonable delays and disruption arising from the employment of utility controlling authorities, contractors, workmen, statutory bodies and any other companies as described within Clause of the Principal s Requirements, the Engineer shall take the circumstances into account to determine any extension of time, such extension of time being granted solely (and without costs) to relieve the Contractor for payment to the Principal of liquidated Damages due to such circumstances, all other risks remaining with the Contractor. Page 23 of 60

26 Notwithstanding section 9.5 the Principal will bear the risks of the following, in respect of the physical conditions encountered during earthworks, foundations, drainage or any other construction works below ground or the using or disposal of excavated materials, unless these risks could have been reasonably foreseen by a suitably experienced contractor advised by a suitably experienced geotechnical engineer at the time of tendering, in which case the risks shall remain with the Contractor. (a) (b) (c) (d) (e) (f) Mine workings Treasure or unidentified archaeologically or culturally important materials Human remains Contaminated ground requiring specific treatment, removal and disposal Old dump site (waste, not earthworks fill) Except in the case of founding conditions for structures, which shall remain the risk of the Contractor, materials of a nature completely different from those encountered within any investigations or identifiable from ground features, available soil or geotechnical maps, or the like A new clause 5.23 Key Personnel is added as follows: The Contractor must use all reasonable endeavours to: a) Supply and retain the Key Personnel and not remove the Key Personnel from their position without the prior written approval of the Principal or Project Management Board. b) Replace any of the Key Personnel if they are unable to undertake work due to termination of employment, resignation, illness, disability or death or other circumstances reasonably beyond the control of the Contractor. The parties acknowledge that the Contractor s primary focus is to ensure the continuity and quality of the performance of its obligations. Consequently, the Contractor must: (i) Promptly advise the Principal or Project Management Board if it is necessary to replace Key Personnel; and (ii) Provide a suitable replacement or substitute during the period of unavailability that has at least the same or better status, skills, qualifications, expertise and experience as the Key Personnel to be replaced; and (iii) Consult with the Principal or Project Management Board in relation to any proposed replacement; and (iv) If requested by the Principal or Project Management Board, provide details of the proposed replacement to the Principal or Project Management Board. c) Ensure that each of the Key Personnel is available at the times set out in the Contractor s Tender or as otherwise required to ensure the completion of such portion of the services as are assigned to them. Page 24 of 60

27 If any Key Personnel are not available to perform the role and responsibilities required of that Key Personnel because of an act or omission of the Contractor, and the Contractor does not within a period acceptable to the Principal and Project Management Board replace the relevant Key Personnel with a person of equivalent skills and experience, the Principal reserves the right to withhold [20%] of the value of the next contract progress payment due until such time as a suitable replacement has been made and notified to the Principal and Project Management Board. The monies retained, shall be paid to the Contractor by payment as part of the progress payment due after the replacement has been made. Section 8 INSURANCES A new clause is added as follows: Responsibility for pursing any claim under any insurance policy shall rest with the party bearing the deductible or excess. Where the Contractor is pursuing a claim, the Contractor is required to advise the Engineer of the outcome of the claim and provide the Engineer with information in relation to the claim on request. A new clause (c) is added as follows: (c) The actions of one insured shall not affect the rights of any other insured. A new clause (d) is added as follows: (d) Public Liability Insurance shall include liability arising out of damage to Underground Services and will be for a sub limit amount not less than [$250,000.00]. <<Guidance note: for any contract where works are taken out above on Underground Services of significant economic importance cover shall be increased to the full minimum limit of $5M. Ensure your sub-limits match those listed within Schedule 9.>> Clause is amended with the following: Delete the words "5.1.3, 5.1.4, 5.1.5, 5.6 and 7.1" and replace with "the Contract" Section 10 TIME FOR COMPLETION New clause is added as follows: No sealing operations shall take place over the Winter Period without the prior written approval of the Engineer. Clause (b) is deleted and replaced with the following: <<Guidance Note: the Consultant is reminded of the importance of specifying an accurate allowance for wet weather. This should be done on the basis of a robust assessment of the period to be allowed by the contractor, based on historical wet weather records appropriate to the area and to the site. The Consultant should be aware of the different risk allocations associated with the options and select the one option appropriate to the project.>> (b) Allowance for inclement weather [consultant to nominate] Working Days in the [consultant to nominate duration] -month contract period. << Guidance note: to be used where practical to use an independent station>> This allowance is based on automatic weather station [identify weather station reference (eg NIWA NRC Station No. A547338) and physical location], records from [date] to [date]: The Wet days are determined from the average over the [XX] year record; A Wet day is defined as a day in which the rainfall is [5] mm or greater. Any of the two (2) immediately following days on which rainfall is [1] mm or greater shall also qualify as Wet days. Page 25 of 60