1. CONTRACT SUM
The Contract Sum shall be the amount set out in the signed Agreement and it shall become payable by the Proprietor in accordance with the General Conditions of the Contract. It may be adjusted in accordance with the subject to the relevant provisions of this Agreement.
2. COMMENCEMENT AND COMPLETION
Subject to full possession of the Site being given to the Contractor for the purpose of completing the Contract Works the Contractor shall commence the Works on the date as stated in Sub-clause 1(b))(i) and shall until completion provide and maintain the necessary materials and workmen on the site to ensure completion with all due expediency. The Works shall (subject to Clause 18) be completed ready for occupation and/or use not later than the Date for Practical Completion as stated in Sub-clause 1(b)(ii) or such other date as determined under the provisions of Sub-clause 19.
3. CONTRACT DOCUMENTS
The Works are to be completed in accordance with the Contract Documents, which consist of these General
Conditions of Contract, any Special Conditions that may included herein, and with the Drawings, Specifications and any other documents which have been approved and signed by the parties for identification as forming part of this Agreement and which are specified in Sub-clause 1(c) and which are attached.
4. CONTRACT TERMS
- a. The whole of the terms, conditions and warranties of and incidental to this Agreement are set out in the Contract Documents and they shall not be in any way interpreted, construed, altered, varied, suspended or otherwise affected by reference to any prior negotiations, representations, stipulations, conditions or agreements whether written or verbal.
- b. Where the context admits, words importing the singular number or masculine gender shall include the plural number of the feminine or other genders – as the case may be. For the purpose of supervising the Agreement on behalf of the Proprietor, Proprietor shall mean the person stated in Sub-clause 1(d).
5. STATUTORY OBLIGATIONS, NOTICES, FEES AND CHARGES
- a. The Contractor shall comply with and give all notices required by any Act of Parliament, ordinance, regulation or by-law of any Authority which has jurisdiction over the Works or with whose systems the same are or will be connected, and (subject to Sub-clauses 6(d) and (e) he shall pay and indemnify the Proprietor against any fees or charges legally demandable under any such Act of Parliament, ordinance, regulation or by-laws in respect of the Works.
- b. If compliance with the requirements of the local or other authority causes a variation from any of the Contract Documents the Contractor shall give written notification to the Proprietor of the effect of such requirement. The means by which such requirement is to be achieved shall be agreed between the parties within two weeks and shall be included in the Agreement in accordance with Sub-clause 13.
- c. Upon receipt of final payment by the Proprietor on the completion of the Works, or upon termination of this Agreement pursuant to Clauses 15 & 16, the Contractor shall surrender to the Proprietor any documents issued by or evidencing the approval of the Authorities in connection with the Works.
- d. If any fees or charges relate to the provision or expansion of services (such as head works) of a Municipal, Public Statutory or other Supply Authority, the Proprietor shall pay such fees or charges, or reimburse the Contractor, as applicable.
- e. If any Act of Parliament, ordinance, regulation or by-law of any Authority which has jurisdiction in respect of the Works comes into force or is amended after the date of the Agreement, the Contractor is entitled to claim an extension of time to the Date for Practical Completion for any delay caused and any additional cost incurred by the Contractor as a result of such an Act of Parliament, ordinance, regulation or by-law as a variation in accordance with clause 13.
- f. The parties agree that the Works are construction work as referred to in the Building & Construction Industry Security of Payment Act 2002 and that Act applies to this Agreement.
6. SETTING OUT THE WORKS
- a. The Proprietor shall decide upon and indicate to the Contractor the boundaries of the land as indicated and the Certificate of Title/Lease Agreement and the starting point of the Works within such boundaries and shall accept full responsibility for any consequential costs arising from inaccurate indication of such boundaries and/or point of commencement.
- b. Should the Contractor doubt the accuracy of such indications he shall so notify the Proprietor in writing and the Proprietor shall either
i. have the land re-surveyed at his own cost; or
ii. re-affirm the indications of the boundaries and point of commencement under the provisions of Sub-clause 7(a).
7. SITE CONDITIONS
Should the Contractor encounter conditions below the surface of the site or concealed in, behind, above or below any existing buildings, structures, finishes, etc that differ from those shown, described in the Specifications, Drawings and/or other documents provided by the Proprietor prior to the date of the Agreement and on which the Contract Sum was based then the Contractor shall notify the Proprietor and obtain his instructions prior to proceeding with the affected Works. Any consequent variation shall be dealt with in accordance with Clause 13.
8. QUALITY OF WORK OF MATERIALS
- a. The Contractor must comply with written instructions issued by the Proprietor where the quality of any work, materials or goods supplied by the Contractor under this Agreement is not in accordance with this Agreement, and directing the Contractor to remove and/or re-execute and/or replace any such works, materials or goods, or to make good any defects.
- b. Should the Contractor however be entitled to payment for such removal, re-execution, replacement, amendment or making good because the quality of work, materials or goods was in accordance with this Agreement, he may submit a Notice to the Proprietor stating that compliance with the instructions in question constitutes a variation to the Agreement. The Contractor may then, as soon as practicable, submit details of the variation to the Proprietor in accordance with Sub-clauses 13(d) (ii) and (iii).
- c. The Proprietor shall deal with the variation in accordance with Sub-clause 13(d).
9. ACCESS TO THE SITE AND TO THE WORKS
- a. Subject to Sub-clause 10(b), the Contractor shall grant to the Proprietor and to persons nominated by the Proprietor reasonable access to the site and to the Works during working hours.
- b. All such access is conditional on reasonable prior written notice to and consent by the Contractor. Such consent shall not be unreasonably withheld.
- c. All access by all visitors (including the Proprietor and his nominees) shall also be subject to such reasonable terms and conditions as the Contractor or the Contractor’s site representative may, in their discretion, stipulate.
The Contractor shall supply all plant necessary for the execution of the Works but shall be entitled to remove such plant or any portion thereof on completion of the particular work in respect of which such plant or such portion thereof was required.
11. PRIME COST, PROVISIONAL AND OTHER SUCH SUMS
- a. Prime Cost Sums, Provisional Sums or like monetary provisions included in the Contract Sum (if any) shall be dealt with as set out in Sub-clause 12(b).
- b. Where any such sum is expended by the Contractor pursuant to a provision of these General Conditions of Contract then:
i. in the event of the amount expended by the Contractor in respect of any such provision exceeding the amount included in the Contract Sum in respect thereof the amount of the excess together with the per centum, as agreed and stated in Sub-clause 1(e)(i), of such excess shall be added to the Contract Sum;
ii. in the event of the amount expended by the Contractor in respect of any such provision being less than the amount included in the Contract Sum in respect thereof then the amount of the difference shall be deducted from the Contract Sum, but the per centum (if any) agreed and stated in Sub-clause 1(e) (ii), of such credit shall be added to the Contract sum.
- a. No variation shall vitiate this Agreement.
- b. If the Proprietor desires to effect any alterations or omissions to, or additional work in connection with the Works, or if any such changes become necessary to enable compliance with this Agreement or by reason of contingencies or other circumstances, such variations shall be authorised by the Proprietor in writing prior to the Contractor commencing execution of the variation.
- c. All variations shall be within the general scope of this Agreement and of a character and extent contemplated by, and reasonably capable of being executed under, the provisions of these General Conditions of Agreement.
- d. Unless otherwise agreed, all variations shall be dealt with according to the following provisions:
i. The Contractor shall submit an offer to the Proprietor setting out
⁃ a reasonable price for each proposed variation
⁃ any adjustments required to the Date for Practical Completion; and
⁃ the expiry date of the offer.
ii. In determining the value of a variation the allowance shall be credited to the Contractor for overheads and profit on all items specified in Sub-clause 1(f), whether omitted or added. For the purpose of this sub-clause overheads shall be deemed to include, but not limited to, relevant items in the preliminaries or in the general clauses of the Specification.
iii. If, within seven (7) days after receipt of the offer, the Proprietor does not reject it in writing, it is deemed to have accepted the offer.
iv. If the Proprietor dissents in writing within seven (7) days and states his reasons for so dong then the parties shall endeavour to agree on the valuation (or any other disputed detail) of the variation prior to the commencement of the execution of the variation to the Agreement until and unless agreement has been reached and documented.
v. Upon actual or deemed acceptance of the Contractor’s offer, or upon agreement by any other lawful means on a price and extension of time for the variation, the agreed or accepted amount shall be added to the Contract Sum, and the Date for Practical Completion shall also be adjusted as agreed or accepted.
vi. In the absence of acceptance or agreement within the validity period of the offer (or within any agreed extension of that period), the Contractor is entitled to proceed with the Works without regard to the changes sought.
- a. The Contractor shall take out with a reputable insurer a Contractor’s Risk insurance policy and the policy shall note the Proprietor’s interests and those of the sub-contractors. The policy shall cover the whole of the Works including all associated temporary works and including all plant and equipment on the site together with all material to be incorporated in the Works located on or adjacent to the site, provided that the material is the property or responsibility of the Contractor or of the Proprietor and is ascertainable and identifiable as such. The insurance policy shall cover the insured items of property in respect of loss, destruction or damage of or to the property, for not less than the amount agreed and stated in Sub-clause 1(g)(i) of these General Conditions of Contract. The policy shall cover, and the amount stated in Sub-clause 1(g)(i) shall include for the cost of, the following items associated with or arising from any one or more of the
- b. insured events:
i. Demolition and removal of debris; and
ii. Professional consultants’ work associated with the demolition and reinstatement process (including design fees and fees and charges payable to the issuers for any requisite permits etc); and
iii. The value of any materials or things supplied or provided, or to be supplied or provided, by the Proprietor for the purposes of the Works for not less than the respective amounts agreed between the parties.
- c. The Contractor shall also take out with a reputable insurer, and maintain, a policy against liability to the public that may arise from, in connection with or with respect to the execution of the Works, for an amount as agreed and stated in Sub-clause 1(g)(ii) of these General Conditions of Contract.
- d. The Contractor shall insure all persons employed by the Contractor in or about the execution of the Works in respect of liability for death or injury, including liability by statute in strict accordance with the applicable legislation and shall also insure against liability to such persons under the common law.
- e. The Contractor must comply with all legislative provisions that regulate the supply of insurances (including warranty insurances) with respect to the Works.
14. BREACH OR DEFAULT BY CONTRACTOR
- a. In the event of the Contractor having an execution levied against him (which execution is not set aside within 28 days) or becoming bankrupt or authorising a Trustee in bankruptcy to take control of his property or entering into any composition or arrangement with his creditors or being a company having an execution levied against it (which execution is not set aside within 28 days) or a winding up order made or having a petition presented for its winding up by the Supreme Court or passing a resolution for winding up (other than a voluntary winding up where the company is declared solvent) or being a party to the appointment of or having an Official Manager appointed or on the appointment of a Receiver of the whole or part of its property or undertaking or entering into any composition or Scheme of Arrangement with its creditors or any class of them, then the Proprietor may, by notice, terminate this Agreement.
- b. If the Contractor has failed or is failing to proceed with the Works with due diligence, he must give the Proprietor a written Notice to that effect. This first Notice must set out the particulars of the alleged breach or breaches and give the Contractor the opportunity to show cause within 14 days after the notice is served why the Proprietor should not exercise his rights under clause 15(c). The Notice must also state that, in the event that the Contractor fails or refuses to show cause, the Proprietor intends to terminate this Agreement by a further Notice.
- c. If the Contractor fails to show cause in response to the first Notice within the fourteen-day period, the Proprietor may by further Notice terminate this Agreement.
- d. Whenever the Proprietor has validly terminated this Agreement under either Sub-clause 15(a) or Sub-clause 15(c), as the case may be, he may – without prejudice to any other or his rights or remedies – call in any other person or persons to complete the Works and pay such person or persons the costs of completion out of any moneys which would otherwise be or become payable to the Contractor.
- e. If the costs of completion exceed such moneys then the difference shall be a debt due from the Contractor to the Proprietor.
15. DEFAULT BY PROPRIETOR
- a. In the event of the Proprietor having an execution levied against him or becoming bankrupt or authorising a Trustee in bankruptcy to take control of his property or attempting to enter into any composition or arrangement with his creditors or being a Company having an execution levied against it or a winding up order made or having a petition presented for its winding up by the Supreme Court or passing or attempting to pass a resolution for winding up (other than a voluntary winding up where the Company is declared solvent) or being a party to the appointment of or having an Official Manager, administrator or controller appointed or on the appointment of a receiver of the whole or any part of its property or undertaking or being a party to or attempting to enter into any composition or Scheme of Arrangement with its creditors or any class of them, then, without prejudice to any other rights and remedies which the Contractor may possess the Contractor may by notice terminate this Agreement.
- b. In the event that the Proprietor:
i. fails or refuses to make any payment under this Agreement to the Contractor as and when it is due; or
ii. fails to give the Contractor sufficient access to the Site by the date specified in Sub-clause 1(b)(i), then, without prejudice to any other rights and remedies that he may possess, the Contractor may give a written Notice to the Proprietor. This Notice must also state that in the event that the Proprietor fails or refuses to comply with the Notice, the Contractor intends to terminate this Agreement by a further Notice.
- c. If the Proprietor fails or refuses to comply with the above Notice within the fourteen-day period; the Contractor may, without prejudice to any other rights and remedies that he may possess, terminate this Agreement by a further Notice.
16. RIGHTS OF THE CONTRACTOR ON TERMINATION
Within the later of 14 days after the issue of a Notice under Clause 15(c) or Clause 16 terminating this Agreement and submission to the Proprietor of any supporting documentation reasonably required by the Proprietor, the Proprietor shall pay the Contractor:
- a. the amount due to the Contractor shown in any unpaid claim for progress payment;
- b. for work executed prior to the date of termination, the amount which would have been payable if the Agreement had not been terminated and the Contractor had been entitled to and make a payment claim on the date of termination;
- c. the cost of materials reasonably ordered by the Contractor to perform the work under this Agreement which the Contractor is legally liable to accept, but only if the materials become the property of the Proprietor upon payment; and
- d. costs reasonably incurred by the Contractor in the expectation of completing the whole of the Works and not included in any payment by the Proprietor; and
- e. in the case only of termination under clause 16, any loss of profit or overhead recovery on the balance of the Works not performed.
17. DELAYS AND EXTENSION OF TIME
- a. The Contractor shall constantly use his best endeavours to avoid delay in the completion of the Works by the due date but shall be entitled to an extension to the Date for Practical Completion with respect to any delay caused by, arising from or attributable to any event or events beyond his immediate control.
- b. Upon it becoming evident to the Contractor that the completion of the Works is likely to be delayed he shall notify the Proprietor in writing; stating the cause or causes of the delay and where possible the probable extent of such delay.
- c. As soon as reasonably practicable the Contractor shall notify the Proprietor of the extent of any delay to the Works caused by or attributable to the event or events referred to in Sub-clause 18(a) and of the corresponding adjustment to the Date for Practical Completion and shall be entitled to a reasonable adjustment thereof.
- d. The Contractor is entitled to reimbursement of losses, costs and expenses suffered or incurred by him as a result of certain delays in the progress of the Works due to circumstances beyond his control, provided that the Contractor has notified the Proprietor of his intention to so claim and that:-
i. the delay was caused• by a breach or breaches of one or more of the provisions of these General Conditions of Contract;
• or by any act, omission, instruction, direction or by any variation on the part of the Proprietor, his agents, employees or professional consultants; or
• by reason of any industrial action or any civil commotion affecting the site, the works or its progress; and
ii. the Contractor has taken all practicable steps to avoid or reduce the extent of the delay and to keep losses, costs and expenses resulting from the delay to a minimum; and
iii. the Contractor has given the Proprietor details in writing of the nature of the claim for reimbursement as soon as practicable after the commencement of the delay and at a time when such details could be checked.
18. PRACTICAL COMPLETION OF THE WORKS
- a. Practical Completion is that stage of the execution of the Works when the Works are complete except for minor omissions and/or Defects which do not prevent the Works from being reasonably fit for occupation and/or use by the Proprietor for the purpose intended.
- b. When in the Contractor’s opinion the Works have reached Practical Completion as defined in Sub-clause 19(a) he shall forthwith give to the Proprietor a written “Notice of Practical Completion”, and the Proprietor within a reasonable time but not exceeding seven (7) days of receipt of such notice shall:-
i. If reasonably satisfied that the Works have reached Practical Completion, issue to the Contractor a written Confirmation of Practical Completion stating the date on which Practical Completion was achieved;
ii. If not reasonably satisfied that the Works have reached the stage of Practical Completion the Proprietor shall give to the Contractor a written notice of those matters or things which in his opinion are required to be done to achieve that stage, and
iii. On receipt of the Proprietor’s notice pursuant to Sub-clause 19(b)(ii) the Contractor shall attend to those matters on that list which he considers reasonable, and on completion he shall again notify the Proprietor pursuant to Sub-clause 19(b).
- c. If the Proprietor (or any person or persons for whom the Proprietor is responsible) occupies and/or uses the Works before the issuing of the written Confirmation of Practical Completion referred to in Sub-clause 19(b)(i), then the date of commencement of such occupation and/or use shall be deemed to be the Date of Practical Completion.
- d. Should the Proprietor fail or refuse to issue any written Notice to the Contractor either under Sub-clause 19(b) (i) or 19(b) (ii) within seven (7) days of service of a Notice of Practical Completion referred to in 19(b) the Practical Completion shall be deemed to have occurred as and on the date advised by the Contractor in that Notice.
- e. The date on which Practical Completion occurred under Sub-clause 19(b)(i) or is deemed to have occurred under Sub-clauses 19(c) or (d) is the Date of Practical Completion.
The Contract Sum shall be paid by the Proprietor to the Contractor as follows:
- a. At the intervals specified in Sub-clause 1(j)(i) the Contractor may make claims for Progress Payment for the value of materials supplied and work done by the Contractor under this Agreement.
- b. The Proprietor shall pay to the Contractor the amounts claimed or invoiced by the Contractor within the period or by the date specified in Sub-clause 1(j)(ii).
- c. Upon Practical Completion, the Proprietor shall pay to the Contractor the unpaid balance of the Contract Sum as it may be adjusted as herein provided.
- d. If the Proprietor fails or refuses to strictly comply with any of his payment obligations under this Agreement or otherwise, the Contractor is, without prejudice to any other rights and remedies available to him, entitled to
suspend work on the Works; and
interest on all outstanding amounts at the rate specified in Sub-clause 1(j) (iii) from the time payment fell due, until full payment is received by the Contractor of such outstanding amounts and of the applicable interest.
Any notice necessary or required to be given in accordance with these conditions shall be deemed to be sufficiently given if delivered by hand or alternatively if sent by pre-paid post and where so required by this Agreement by registered post addressed to the person to whom it is necessary or required to be given at the address appearing in this Agreement. In the case of a notice sent by pre-paid post (including registered post), receipt of such notice shall be deemed to have occurred three (3) days after the time of posting.
21. COUNTING OF DAYS
- a. Unless expressly stated otherwise, where any notice is to be given or any other act matter or thing is to be done under any provision of these General Conditions of Contract in a stated period of “days”, the following days shall not be counted: Saturdays, Sundays, Statutory or Public Holidays and rostered days off.
- b. Whenever the term “business day” is used in these General Conditions of Contract, it shall mean a business day as defined in the Building and Construction Industry Security of Payment Act 2002.
22. CHARGE ON LAND
The Proprietor hereby charges the parcel of land on which the Works are to be erected with the due payment to the Contractor of all moneys that become payable by the Proprietor to the Contractor under, by virtue of, or with respect to this Agreement or any debts otherwise arising from the Contractor’s compliance with his obligations under the Agreement or the carrying out of the Works.
23. GOODS AND SERVICES TAX (GST)
- a. The works “GST”, “GST-inclusive”, “supply”, “GST-free supply” and “input taxed supply” have the same meanings as they are given in the A New Tax System (Goods and Services Tax) Act 1999, [“the GST Act].
- b. Unless otherwise specified, all amounts stated, quoted, referred to in or implied by these General Conditions of Contract are and shall be GST-inclusive.
- c. All amounts agreed or determined pursuant to, arising from or with the amount so agreed or determined expressly and demonstrably already includes the applicable GST; and the beneficiary/recipient of the agreement or determination is not liable to pay any GST in respect of receiving that amount.