Agreement And Conditions Of Building Contract PRIVATE EDITION WITHOUT QUANTITIESTable of Contents Articles Of Agreement Preliminary Recitals . Date Of Agreement . Parties To Agreement and Their Addresses . ‘The Nature of the Works and the Location +The Architect : ‘The Drawings and the Specification Articles Article 1 Contractor's Obligations Article 2 Contract Sum Asticle 3 Identity of Architect Article 4 Definitions Attestation/Signatories Of The Parties Conditions Of Contract Clause 10 Contractor's Obligations LI Quality of Workmanship, Materials and Goods 12 Discrepancy or Divergence Between Contract Documents 20 Architect's Instructions 21 Contractor to Comply with Architect's Instructions 22 Failure of Contractor to Comply with Architect's Instructions 23 Architect's Power to Issue Instructions 24 Compliance with Architect's Instructions 25 Instructions to Be in Writing 25(i Architect's Instructions Not Given in Writing 25 (i) __ Complying with Architect's Instructions Not Given in Writing 26 Services of Notices and Architect's Instructions 30 Contract Documents 31 Contract Documents and Their Custody 32 Copies of Documents 33 Further Drawings or Details 34 Contractor to Provide Works Programme 35 ‘Work Programme Not Part or Incorporated into Contract Document 36 Contractor Not Relieved of Obligations or Responsibilities 37 Availability of Documents 38 Return of Documents 39 Limitation of Use of Documents 3.10 As-built Drawings Page 34 aan aananaaaaa @i) Table of Contents Page Conditions Of Contract Clause 4.0 Statutory Obligations, Notices, Fees And Charges 7 4 Statutory Requirements 7 42 ‘Variations from Contract Drawings to Meet Statutory Requirements 7 43 Conforming to Statutory Obligations 8 44 Fees or Charge 8 5.0 Levels And Setting Out Of The Works 8 5. Tnaccurate Setting Out 8 6.0 Materials, Goods And Workmanship To Conform To Description, Testing And Inspection 8 61 Standards of Works, Materials, Workmanship and Goods 8 62 Production of Vouchers 8 63 Inspection and Testing 8 64 ‘Works, Materials, Workmanship and Goods Not in Accordance with Contract 8 63, Failure of Contractors to Comply with Architect's Instruction 9 7.0 Royalties And Patent Rights 9 7 Indemnity to Employer Against Claims 9 72 Exclusion of Contractor's Liability to Pay for Patent Rights 9 8.0 Site Agent 9 81 Site Agent and Assistants 9 82 Instructions to Site Agent 9 83 Exclusion of Persons Employed on the Works 9 9.0 ‘Access For Architect To The Works 9 on ‘Access to Works for Architect or His Representative 9 10.0 Site Staff 9 10.1 Duy of Site Staff 9 10.2 Directions Given by Site Staff 9 11.0 Variations, Provisional And Prime Cost Sums 10 i Definition of Variation 10 2 No Variation Required by Architect Shall Vitiate Contract 10 113 “Architect's Instructions on Prime Cost (PC) and Provisional Sums 10 is ‘Valuation of Variations and Provisional Sums 10 Ins Rules for Valuation of Variations 10-11 116 Valuation of Direct Loss and/or Expense n 7 Contractor to Submit Necessary Details u 12.0 Quality And Quantity Of The Works al 124 Quality and Quantity of the Works 1 122 Provisions in Conditions to Prevail i 123 Correction of Errors or Omissions i 13.0 Contract Sum u 1B. ‘Summary of Tender Basis of Contract Sum u 132 ‘Contract Sum Not Be Adjusted or Altered n 33 Schedule of Rates nl 14.0 Materials And Goods Unfixed Or Off-Site W Unfixed Materials or Goods Not to Be Removed ul “Materials or Goods Paid for Becomes Employer's Property 2 Contractor Cannot Remove Them Except for Use Upon the Works 2 Contractor Responsible for Loss or Damage to Materials or Goods 1217.0 id 72 18.0 18.1 Bo 19.0 19.1 19.2 19.3 19.4 19.5 20.0 20.A Table of Contents ions Of Contract Practical Completion And Defects Liability Certificate of Practical Completion Defects and Shrinkages Ete Certificate of Making Good Defects Partial Possession By Employer Possession of Relevant Part 16.1 (i) Value of Relevant Part 16.1 (ii) - Practical Completion and Defects Liability 16.1 (vii) of Relevant Part Value of Relevant Part Assignment’ Of Sub-Letting Consent Required to Assign Rights, Interests or Benefits Sub-Leting Postion of Work Injury To Persons Or Property And Employers Indemnity Indemnity Against Claims on Employer - Injury or Death of Persons Indemnity Against Claims on Employer tor Injury to Property Insurance Against Injury To Persons And Property Contractor to Insure Against Injury to Persons and Property Evidence of Insurances Required Maintenance of Insurance Policies Approval of Insurance Companies Contractor Default in Insurance Policy Insurance Of Works Against Fire, Ete “Contractor's Risks - New Buildings 20.A.1 Approval of Insurers 20.A.2 Maintenance of Insurance Policy 20.3 Restoration of Damaged Work 20.4.4 Payment for Damaged Work Insurance by Employer Maintenance of Policy Failure of Employer io Insure Computing Amount of Loss or Damage Occasioned by Insured Risks Restoration of Damaged Work Employer's Risks - Existing Structures Maintenance of Insurance by Employer Failure of Employer to Insure 20.C.6 Loss or Damage Occasioned by Insured Risks Date Of Commencement, Dates Of Commencement Given For Sections, Postponement And Completion Pate Date of Commencement and Completion Date Dates of Commencement Given for Sections Different Completion Dates for Identified Sections or Pacts of Work Postponement of Work Damages For Non-Completion Liquidated and Ascerained Damages (LAD) LAD Amount Deemed As Agreed Gti) Page 12 2 2 2 12 12 2 12.13Table of Contents Conditions Of Contract Clause 23.0 23.1 232 233 24 23.5 236 23.7 24.0 24.1 242 243 244 25.0 , 25.1 25.2 23.3 234 26.0 26.1 26.2 - 263 27.0 21 272 213 274 25- 275 (i) 216 207 278 28.0 28.1 28.2 283 28.4 29.0 29.1 30.0 30.1 30.2 Extension Of Time Notifying of Events Causing Delay ‘A Fair and Reasonable Extension of Time ‘Time Limitation As to Giving Extension of Time Contractor to Prevent Delay Limitation in Fixing Completion Date Notification to Nominated Sub-Contractors Relevant Events Causing Delay for Which Extension of Time May Be Given Loss And/Or Expense Caused By Disturbance Of Regular Progress Of Works Application to Ascertain Loss and/or Expense Circumstances Materally Affecting Progress of Works Ascertainment of Loss and/or Expense Amount Ascertained Added to Contract Sum Determination By Employer Defaults by Contractor Determination of Employment of Contractor ‘Contractor Becoming Bankrupt Ete Rights and Duties of Employer and Contractor on Determination of Employment of Contractor Determination By Contractor Defaults by Employer Rights and Lia Upon Determination by Contractor Nominated Sub-Contractors Expenditure of Provisional and Prime Cost (PC) Sums Nomination of Nominated Sub-Contractor 27.2 (i) 27.2 (ix) Obligations of Nominated Sub-Contractor Payment by Contractor to Nominated Sub-Contractors Failure of Contractor to Pay Nominated Sub-Contractors Failure of Nominated Sub-Contractors to Complete Final Payment to Nominated Sub-Contractors Before Final Payment to Contractor Employer Not in Any Way Liable to the Contractor or Any Nominated Sub-Contractors Contractor Shall Be Permcted to Tender for PC Sums Nominated Suppliers Expenditure of Provisional Sums or Prime Cost Sums Meaning of Prime Cost Definition of Nominated Suppliers and Their Obligations Payment for Materials and Goods by Contractor Artists And Tradesmen Execution of Work Not Forming Part of Contract Certificates And Payment Issue of Architect's Certificates Issue of Interim Certificates (iv) Page 17 7 7 "7 7 "7 7 17-18 18 1819 19 19 19 19 19 20 20 20.21 21.2 25 25 25 25 25Table of Contents Conditions Of Contract Clause 303 304 305 306 30.7 308 FO 31d 312 313 32.0 32.1 322 323 324 33.0 33.1 33.2 333 34.0 34.1 34.2 34.3 344 345 346 35.0 35.1 35.1 Amount Due in Interim Certificates 30.3(i) No Entitlement to Set-Off by Employer in Respect ‘of Amount Stated in Interim Certificates 30.3 (ii) Disputes or Differences in Respect of Right to Set-Off, Etc to be Referred to Arbitration Certified Value Retained Retention Fund 30.5 (}) Employer's Interest in Retention Fund Shall Be Fiduciary As Trustee 30.5 (ii) Contractor to Be Informed in Writing of Deduction from Monies Due or to Become Due 3055 (iii) Release of One Moiety of Retention Fund 3055 (iv) Release of Second Moiety of Retention Fund Completion of Measurement and Valuation and Final Certificate 30.6 (i) Documents Required for Computing 30.6 (ii) __ Computation of Contract Sum Provisions for Final Certificate No Centticate of Architect Shall of liself Be Conclusive Evidence Outbreak Of Hostilities Determination by Employer or Contractor Notices of Determination Architect’ Instructions Regarding Protective Work 31.3) Payment Resulting from Determination War Damage Procedures Following War Damage to Works, Materials and Goods Architect's Instructions After Occurrence of War Damage Employer's Entitlement to Compensation in Respect of War Damage Definition of War Damage Antiquities Antiquities Ete Found to be Property of Employer Contractor's Loss and/or Expense in Compliance with Architect's Instructions ‘Contractor to Submit Necessary Details Arbitration Disputes or Differences to be Referred to Arbitration Procedures for Appointment of Arbitrator Ex Parte Hearing Powers of Arbitrator Opening of Arbitration Proceeding Arbitrators Award to Be Final and Binding on Parties Mediation Mediation Under PAM Rules Prior Reference to Mediation Does Not Prejudice the Pa.ties Rights to Arbitration Appendix o Page 27 2 2 27PRIVATE EDITION (WITHOUT QUANTITIES) Articles Of Agreement This Agreement is made on the .. between... day of .. of (or whose registered office is situated at) (hereinafter called ‘the Employer’) of the first part and. of (or whose registered office is situated at) . . (hereinafter called ‘the Contractor’) of the second part. Whereas The Employer is desirous of “? (hereinafter called ‘the Works’) at .. and has caused a Specification marked “A”* and Drawings showing and describing the work to be done to be prepared by or under the direction of his Architect, of, we: This agreement must be duly stamped in accordance with the laws applicable fn that part of Malaysia in which the agreement is ‘made and in that part of Malaysia in which the Works are tobe carried out if diferent from the place in which the contract is made. o ‘State the nature of the Works. tis important thatthe document to be used as Specification should be marked “A”.Contractor's Obligations Contract Sum Architect ‘And WHEREAS the said Drawings listed and numbered in a Schedule marked “B™ inclusive (hereinafter referred to as the Contract Drawings) and “the Specification” (hereafter referred to as “the Specification”) have been signed by or on behalf of the parties hereto AND WHEREAS the Contractor has made an estimate, offer or tender of the sum which he will require for carrying out the said work: Now it is hereby agreed as follows: Article 1 For the consideration hereinafter mentioned the Contractor will upon and subject to the Conditions annexed hereto carry out and complete the Works shown upon the Contract Drawings and described by or referred to in the Specification and in the said Conditions. Article 2 ‘The Employer will pay the Contractor the sum of (RM ) (hereinafter referred to as ‘the Contract Sum’) or such other sum as shall become payable hereunder at the times and in the manner specified in the Conditions, Article 3 ‘The term ‘the Ar in the Conditions shall mean the said ... or in the event of his death or ceasing to be the Architect for the purpose of this Contract, such other person as the Employer shall nominate and appoint within 28 days a succeeding Architect for that purpose, not being a person to whom the Contractor shall object for reasons considered to be sufficient by an Arbitrator appointed in accordance with Clause 34.0 of the Conditions. Provided always that no person subsequently appointed to be the Architect, under decision or approval or instruction given or expressed by the Architect for the time being, Contract shall be entitled to disregard or overrule any certificate or opinion or [tis important thatthe document listing the drawing be marked “8”Article 4 In the Contract Documents as hereafter defined, the following words and expressions shall have the meanings hereby assigned to them, except where the context otherwise requires: 4) “Employer” means the party named in the first part of the Articles of Agreement, b) “Contractor” means the person, firm or company named in the second part of the Articles of Agreement, whose estimate, offeror tender has been accepted by the Employer. © “Architect” means the Architect registered with the Board of Architects Malaysia. and designated as such in Article 3 of the Articles of Agreement, 4) “Site” means the Site designated as such in the Articles of Agreement and includes the land or other places on, under, in or through which the Works are to be executed and any other land or places provided by the Employer as may be specifically stated in the Contract Documents as forming part of the Site. @) , "Works" means the Works referred to in the Amictes of Agreement and is the whole of the materials. labour, plant and other things necessary and requisite forthe proper execution of the Contract as shown on the Contract Drawings and described by or refered to in the Specification and the Conditions. 9) “Contract” or “Contract Documents” ans the Articles of Agreement and Conditions of Contract, Contract Drawings and the Specification, Instructions to Tenderers, Form of Tender and Conditions of Tendering, Summary of Tender, Prime Cost and Provisional ‘Sums, Schedule of Rates and Appendices, including inter alia the Letter of Acceptance. 8) “Conditions” means the Conditions of Contract, hy “Contract Sum” means the sum stated in the Letter of Acceptance and in the Articles of ‘Agreement j) “Contract Drawings” means the drawings listed in the Schedule marked “B" as referred to inthe Antcles of Agreement. i) “Specification means the Specification marked “A” as refered to in the Articles of Agreement,®) ‘m) n) °) P) “Approved” means approved in writing by the Architect, including subsequent written confirmation of previous verbal approval, and approval means approval in writing, including as aforesaid, “Instructed” means instructed by means of drawings, correspondence or other documents issued by the Architect. “Directed” means directed in writing by the Architect or his authorised representative, “Satisfactory” means to the reasonable satisfaction of the Architect. “Day” means calendar day, unless otherwise stated in the Conditions, and “month” shall mean calendar month, unless as aforesaid. “Builder's Work” means Contract Sum less Prime Cost and Provisional Sums and Contingencies.IN WITNESS WHEREOF ‘The hand of the Employer has been hereunto set the day and year first above written in the presence of: Signature Name * The Common Seal of was hereunto affixed in the presence of: Signature Name Director IN WITNESS WHEREOF * The hand of the Contractor has been hereunto set the day and year first above written in the presence of: Signature Name * The Common Seal of was hereunto affixed in the presence of: Signature. Name Delete as sppropriate } Signature ’ ) Name Signature Name Director/Secretary } Signature ' } Name Signature Name Director/Secretary* The afficing ofthe Common Seal tbe witnessed in accordance withthe Articles of Associaton ofthe Company.atty ot Ma Srorthantip, Materate Sos Discrepancy or 1.2 Divergence Between Contract Documents Contractor to Comply with Arenitect's Instructions Failure of Contractor to Comply wc Arenitec’s Instruction’ 23 ‘Compliance 24 o Architect's Tnstrvtions toBein wi Architect's Not Givenin Writing srt Arctic’ Instruction Not Givenin Wetting Services of 26 Archivee’s Instructions The Conditions Of Contract Contractor's Obliga ‘The Contractor shall upon and subject to the Conditions carry out and complete the Works (including all necessary ancillary works) in accordance with the Contract Drawings and described by or referred to in the Specification and in these Conditions and. in compliance therewith provide materials, goods and standards of workmanship of the quality and standard therein specified in every respect to the reasonable satisfaction of the Architect, ‘The Contractor shal be fully responsible for the adequacy, stability and safety of all site ‘operations and methods of construction, If the Contractor finds any discrepancy in or divergence between the Contract Drawings andior the Specification he shall immediately give to the Architect a written notice specifying the discrepancy or divergence and the Architect shall issue instructions. in regard thereto, Such discrepancy shall not vitiate this Contract Architect's Instructions ‘The Contractor shall (subject to Clauses 2.3 and 2.5) forthwith comply with all instructions issued to him by the Architect in writing in regard to any matter in respect of which the Architect is expressly empowered by these Conditions to issue instructions If within seven (7) days upon receipt of the Architect's instruction in writing, the Contractor does not comply therewith then the Employer may employ and pay other Persons to execute any work which may be necessary to give effect to such instruction, ‘Any additional costs incurred in this connection shall be recoverable from the Contractor by the Employer as a debt or may be deducted by him from any monies due or to become ddue to the Contractor under this Contract. Upon receipt of what purports to be an instruction from the Architect, the Contractor may request the Architect to specify in writing the provision in these Condition whi empowers the issue of the said instruction. The Architect shall forthwith comply. with such a request. If the Contractor thereafter does comply with the said instruction (where neither party, before such compliance, had given the other party a written request to concur on the appointment of an Arbitrator under Clause 34.0 of these Conditions in order that it my decide whether the provision specified by the Architect empowers the issue of the said instruction) then the issue of the sid instruction shall be deemed for all purposes of this Contract to have been empowered by the provision of the Condition specified by the Architect in answer to the Contractor's request All instructions issued by the Architect shall be in writing. Ifthe Architect issues an instruction otherwise than in writing it shall have no immediate effect, but shall be ‘confirmed in writing by the Contractor to the Architect within seven (7) days. If within seven (7) days upon receipt of the Contractor's confirmation, the Architect docs not dissent to it in writing, then the Contractor's confirmation shall be deemed to be an Architect's instruction.. The said instruction shall have taken effect on the date when the Contractor's confirmation was issued, 25) Provided always that if the Architect within seven (7) days of giving instruction otherwise than in writing himself confirm the same in writing, then the Contractor: shall not be obliged to confirm in writing and the instruction shall take effect as from the date of the Architect's confirmation: oF 25 (ii) I neither the Architect nor Contractor confirm such instruction in the manner and at the time aforesaid but the Contractor nevertheless does comply with the same, then the Architect may confirm the same in writing at any time prior to the issue of the Final Certificate, and the said instruction shall be deemed to have taken effect on the date when it was issued otherwise than in waiting by the Architect Within fourteen (14) days of the issue of the Letter of Acceptance, the Contractor shall notify the Architect in writing of an address where notices, Architect's Instructions and ‘other documents may be served upon him. Ifthe Contractor ‘ails to so notify the Architect of such an address or any change of address, notices, Architect's Instructions. and other documents shall be deemed to be served upon the Contractor if sent by registered post or recorded delivery to his address sated in this Contract, ot if left at his office on the site and an acknowledgement of receipt is obtained from the Contractor's site age33 34 3.5 3.6 37 3.8 39 3.10 4.0 4a 42 Contract Documents The Contract Drawings, Specification, Descriptive Schedules, the Schedules of Rates, Form of Tender, Letter of Acceptance, Summary of Tender, Articles of Agreement, Conditions of Contract and the Appendix are referred to collectively as the Contract, Documents and shall remain in the custody of the Architect so as 10 be available at all reasonable times for inspection by the Employer or the Contractor whenever so required. Immediately after the execution of this Contract the Architect without charge to the Contractor shall provide him (unless he had been previously so provided) with (i) one copy certified on behalf of the Employer of the Contract Documents, (Gi) two copies of the Contract Drawings. (iii) to copies of the Specification From time to time as may be necessary the Architect, without charge to the Contractor, shall furnish him with two copies of further drawings or details as are reasonably necessary either to explain and amplify the Contract Drawings or to enable the Contractor ‘to complete the Works in accordance with these Conditions, Provided always that the Contractor shall give adequate notice in writing t0 the Architect of his requirement of further drawings or details. Within fourteen (14) days upon issue ofthe Letter of Acceptance, the Contractor, without charge to the Employer, shall provide the Architect with two copies of the Works Programme for the execution of the Works. ‘The Works Programme, whether required or not by the Conditions of Tender or the Contract Documents, shall not constitute any part of and is not to be incorporated into the Contract Documents, ‘The submission to and approval by the Architect of such Works Programme shall not relieve the Contractor of his obligations or responsibilities under the Contract. ‘The Contractor shall keep one copy of the Documents refered to in Clauses 3.2, 3.3 and 3.4 on the site so as to be available to the Architect and/or his authorised representative at reasonable times for his inspection and use. ‘Upon final payment under Clause 30.7 of these Conditions, the Contractor shall, if so requested by the Architect, forthwith return to him all Contract Documents which bear the name of the Architect, None of the Contract Documents mentioned in Clause 3.1 shall be used by the Contractor for any purpose other than this Contract. Neither the Employer nor the Architect and/or his authorised representative shall divulge or use, except for the purpose of this Contract, ‘any ofthe rates in the Schedule of Rates, ‘Within three (3) months from the commencement of the Defects Liability Period, the Contractor shall without further charge to the Employer supply for the retention and use of the Employer, two copies of such drawings and information describing the Works as-built and concerning the maintenance and operation of the Works, including any installation comprised in the Works, as may be required by the Contract Documents Statutory Obligations, Notices, Fees And Charges The Contractor shall comply with and give all notices required by any written law applicable to the territories of Malaysia in which the Works are caried out, or any regulation or byelaw of any local authority or of any statutcry undertaker which has any jurisdiction with regard to the Works or with whose systems the same are or will be ‘connected. ‘The Contractor before making any variation from the Contract Drawings or the ‘Specification necessitated by such compliance shall give to the Architect a written notice specifying and giving the reason for such variation and applying for the Architect's instructions in regard thereto, Further orbs Contractor to Provide Works Programme Work Programme Not Part or Incorporated into the Contract Documents Contractor Not Relieved of Obligations or Responsiilies Availability of Documents Return of DocumentsConformingto 43 Statutory Obligations Fees or 44 Charges 50 Inaccurate Sa Seting Out 60 Standards of 61 ‘Works, Material, ‘Workmanship and Goods Production 62 ot Vouchers Inspection 63 and Testing Works, Materials, 6.4 Workmanship sand Goods Not in ‘Accordance ‘with Contract If within seven (7) days of having given the said writen notice to the Architect and the Contractor does not receive any instructions in regard to the matters therein specified, he shall proceed with the work conforming tothe writen law applicable tothe territories of Malaysia in which the Works are tobe carried out, or any regulation or bye-law of any local authority or of any statutory undertaker which has’ any jurisdiction with regard to the Works, or with ‘whose systems the same are or will be connected. Any variation thereby necessitated shall be deemed tobe a variation required by the Architect. ‘The Contractor shal pay and indemnify the Employer against liability in respect of any fees or ‘charges (including any rates or taxes) legally demandable under any written laws applicable to the territories of Malaysia in which the Works are to be carried oul, or any regulation or bye- law of any local authority of of any statutory undertaker in respect ofthe Works. The amount fof any such fees or charges (including any rate or taxes) shall be added to the Contract Sum unless: 44.(2) they arise in respect of Works executed or materials or goods supplied by a local authority or statutory undertaker for which a prime cost sum is included in the Specification or for which a prime cost sum has arisen as a result of the “Architect's instructions under Clause 11.3; or 44. i) the amounts priced or stated by way ofa provisional sum in the Specification, Levels And Setting Out Of The Works ‘The Architect shall determine all levels which may be required for the execution ofthe Works, and shall provide the Contractor by way of accurately dimensioned drawings with such information so as to enable the Contractor to set out the Works at ground level. The Contractor shall be responsible for and shall entirely at his own cost amend any errors arising from his own inaccurate setting out. Provided always thatthe Architect may at his discretion accept the errors without amendment subject to such reduction in the Contract Sum as may be reasonable having regard to any loss of value suffered by the Employer or any reduced cost to the Contractor resulting from the error, whichever shall be greater. ‘Materials, Goods And Workmanship To Conform To Description, Testing And Inspection All works, materials, workmanship and goods shall be of the respective kinds and standards described in the Contract Documents. ‘The Contractor shall, upon the request of the Architect, provide him with vouchers or such other evidence to prove that the materials and goods comply with Clause 6.1 and are in accordance with the instructions ofthe Architect. ‘The Contractor shall provide samples of materials or goods, before incorporation in the ‘Works, for testing as may be selected and required by the Architect. Provided always thatthe Architect may issue instructions requiring the Contractor to open up for inspection any work covered up or to arrange for or carry out any test of any materials or goods (Whether or aot already incorporated in the Works) or of any executed work, or if the inspection andi test is, in the opinion of the Architect required in consequence of some prior failure or breach of ‘contractor other default of the Contractor. The cost of such opening up or testing (together ‘with the cost of making good in consequence thereof) shall be added to the Contract Sum ‘unless provided for inthe Specification or unless the inspection or test shows that the works, materials or goods are notin accordance with this Contract. I the Architect during the progress of the Works finds any works, materials, workmanship oF goods which are not in accordance with the Contract, the Architect may instruct the Contractor in writing to do any or all ofthe following: 644) To demolish and reconstruct any work so that it is in accordance with the Contract. 64.41) Toremove from and/or not to bring tothe site any materials or goods which in the ‘opinion of the Architect are and/or may not be in accordance withthe Contract.6s 1 BL 83 9.0 ot 10.0 10.1 10.2 If the Contractor should fail and/or refuse to comply with an instruction of the Architect under this Clause 6.0, the Employer may, without prejudice wo any other rights or employ and pay others to carry out the subject matter of the instruction. Any loss, expense or damage thereby suffered or incurred by the Employer shall be recoverable from the Contractor. Royalties And Patent Rights Subject to Clause 7.2 hereof, all royalties or other sums payable in respect of the use in carrying out the Works as described by or referred to in the Specification of any patented articles, processes or inventions or drawings (other than drawings provided by the Architect) shall be deemed to have been included in the Contract Sum, The Contractor shall indemnify the Employer from and against all claims, proceedings. damage, costs and. ‘expenses which may be brought or made against the Employer or 1o whom he may be put by reason of the Contractor infringing or being held to have infringed any patent rights in, relation to any such articles, processes and inventions. Where in compliance with the Architect's instructions the Contractor supply and use in camrying out the Works any patented articles, processes or inventions, the Contractor shall not be liable in respect of any infringement or alleged infringement of any patent rights in relation to any such articles, processes and inventions, All royalties, damages of other monies which the Contractor may be liable to pay to the persons entitled to such patent rights shall be added to the Contract Sum, Site Agent ‘The Contractor shall constantly keep upon the Works a suitably qualified and experienced Person who shall be deemed to be the Site Agent ofthe Contractor for the purposes of this Contract, together with such senior assistants and supervisory staff in each trade as may be necessary as set out in the Contract Documents of as amtended from time to time after Prior approval of the Architect. ‘The Contractor shall ensure thatthe Site Agent and such senior assistants as aforesaid are Persons who are capable of receiving verbal instructions in English or Bahasa Malaysia, [Any directions or instructions given to such Site Agent and/or his assistants by the Architect or site staff in accordance with Clause 10.2 shall be deemed to have been given to the Contractor in pursuance of Clauses 1.0 and 2.0 hereof. The appointment of the Site Agent and his removal shall be at the reasonable discretion of the Architect, The Architect may also but not unreasonably or vexatiously issue instructions requiring the dismissal from the Works of any person employed thereon. ‘Access For Architect To The Works The Architect and/or his authorised representative shall at all times have access to the ‘Works and to the workshops or other places of the Contractor where work is being prepared for this Contract. When work is to be so prepared in workshops or other places cof a Sub-Contractor (whether or not a Nominated Sub-Contractor as defined in Clause 27.0), the Contractor shall by a term in the sub-contract secure a similar right of access to those workshops or places for the Architect and/or his authorised representatives. The Contractor shall do all things reasonably necessary to make such right effective. Site Staff ‘The Employer shall be ented to appoint a Resident Architect Resident Engineer, Clerks ‘of Works and such others as ste staff as necessary from time ty time whose duties shall be to act as inspectors on behalf of the Employer. The site staff so appointed shall be under the direction of the Architect. The Contractor shall afford them every reasonable facility forthe performance of their duty. Any directions given to the Contractor or his Site Agent upon the Works by the Site Staff shall be of no effect unless given in regard to a matter in respect of which the Architect is, ‘expressly empowered by the Conditions to issue instructions and unless confirmed in writing by the Architect within three (3) working days of such direction being given. If any such directions are so given and confirmed in writing by the Architect then as from the date of issue of that confirmation it shall be deemed to be an Architects instruction, Comply with Indernit Employer Against Claims Exclusion of Contractor's Liability to Pay for Patent Rights Sie Agent and Sst Instructions to Site Agent Exclsion of Persone Employed on the Works Access to ‘Works for Architect epresentative+ 4 Definition of Variation ‘No Variation aired bs ‘Architect Shall Vitiate Contract Architect's Inctractons on Prime Cost (P.C.) and Provisional, Rae for Valuation of Variations 11.0 na Variations, Provisional And Prime Cost Sums ‘The term "Variation" as used in these Conditions means: 11.1 Gi) alteration or modification of the design, quality or quantity of the Works as shown in the Contract Drawings and described by or referred to in the Specification 111 Gil) the addition, omission or substitution of any work 1.1 (ili) the alteration of the kind of standard of any materials oF goods to be used in the Works. 11.1 (iv) the removal from the site of any work executed, or materials or goods brought thereon by the Contractor for the purposes of the Works other than work materials or goods which are not in accordance with this Contract. LLL (y) the addition, alteration, or omission of any expressed obligation or restrictions imposed by the Employer under the Conditions of Contract with regards to any limitation of working hours, working space, or access to or Utlisation of any specific part of the site oF the execution and completion of the work in any specific order. 11.1 (vi) For the avoidance of doubt the term “Variation” shall include any changes as aforesaid which may be designed to alter the ultimate use to which the Works will be put or changes in the obligations andlor restrictions which may be imposed on the Contractor's methods of working, but shall exclude any struction which has arisen due of is necessitated by or is intended to cure any default of and/or breach of contract by the Contractor. ‘The Architect may issue instructions requiring a Variation and he may sanction in writing any Variation made by the Contractor otherwise than pursuant 10 an instruction of the ‘Architect. No Variation required by the Architect or subsequently sanctioned by him shall Vitiate this Contract. ‘The Architect shall issue instructions in regard 10: 11.3 Gi) the expenditure of prime cost (P.C.) and provisional sums included in the Specification and of prime cost sums arising out of instructions issued in regard to the expenditure of provisional sums 11.3 Gi) the expenditure of provisional sums included in a sub-contract. All Variations required by the Architect or subsequently sanctioned by him in writing and all work executed by the Contractor following instructions of the Architect as to the expenditure of Provisional Sums included in the Specification shall be measured and valued by the Architect. The Contractor shall be given the opportunity to be present at the time ‘of such measurement and may take such notes and measurements as he may require. ‘The valuation of Variations and of work executed by the Contractor for which a provisional sum is included in the Specification (other than for work for which a tender had been accepted under Clause 27-8) shall, unless otherwise agreed, be made in accordance with the following rules: 11S (the prices inthe Schedule of Rates after adjustment if necessary as provided in ‘Clause 13.3 of these Conditions, shall determine the valuation of work of similar character executed under similar conditions as the work priced therein, 115 (ii) where work is of similar character to, work included in the Specification but ‘may not be executed under similar conditions the rates in the said Schedule of Rates shal, as far as may be reasonable, be the basis of valuation, which shall include a fair allowance for the difference in conditions IL (iii) Where work cannot be properly measured and valued, the Contractor shall be allowed day work rates at the prices prevailing as far as may be reasonably ascertained atthe time that such work is carried out (unless otherwise provided in the Specification) atthe rates, if any, inserted by the Contractor in the said Schedule of Rates. When no such rates have been inserted in the Schedule of Rates, the Contractor shall be allowed day work rates derived from the actual prime cost to the Contractor of his materials, goods, labour and additional equipment and plant necessary for the execution of the work concerned. plus fifteen percent (15%), which percentage shall include for the use of all ordinary 0Plant, tools and scaffolding, supervision, overheads and profit. Provided that |m any ase vouchers specifying the time spent daily upon the work. the worker’ names, the plant and the materials employed shall be delivered for Verification t0 the Architect not later than seven (7) days after the work had heen completed 11.8 (ivy ‘The prices in the said Schedule of Rates shall determine the valuation of items omitted. If omissions. substantially vary the conditions under which any ‘remaining items of work are carted out. the prices of such remaining. items shall be valued under subclause 115 (i. 11.5 (vy Effect shall be given to measurement and valuation of all Variations in tnterim Cenificates and by adjustment of the Contract Sur. the Contractor applies tothe Architect in writing within a reasonable time of the event land the Architect is ofthe opinion that a Variation in respect of work which has caused the Contractor direct loss andior expense for which he would not be reimbursed under any Provisions in the Conditions. then the Architect shall from time to time ascertain the amount of such loss and/or expense which amount shall be added to the Contract Sum. If an Interim Certfieate is isued after the date of ascertainment any such amount shall be added to the amount which would athersise be stated to be due in the Certificate for shall in support of his application submit to the Architect upon request such details of such direct loss and/or expense as are reasonably necessary, for such, scertainment under Clause 11.6 of this Condition Quality And Quantity Of The Works The quality and quantity of the work included in the Contract Sum shall be deemed to be that which is shown upon the Contract Drawings and/or described in the Specification. Nothing contained in the Contract Drawings or the Specification shall overvide, modify or affect in any way whatsoever the application or interpretation of that which is contained in these Conditions. ‘Any error in description. quantity or omission of items between the Contract Drawings ‘and/or the Specification shall not vitiate this Contract but shall be corrected. By the Architect. Contract Sum The Summary of Tender shall form part of this Contract and shall be the basis of the Contract Sum. Prices in the Summary of Tender submitted by the Contractor. shull be subject to the prior consent of the Architect as to their reasonableness, Such prior consent and any subsequent adjustment to the prices in the Summary of Tender shall be made before the issuance of the Lewer of Acceptance by the Employer to the Contractor Any adjustment of the prices in the Summary of Tender and any arithmetical error in the ‘Summary of Tender shall before the sue of the Letir of Acceptance by the Employer be +o adjusted and rectified that the total amount in the Summary of Tender shall correspond to the Contract Sum tendered by the Contractor in the Form of Tender. Provided always the ‘Contract Sum amount shown in the Form of Tender shall remain unaltered. ‘The Contract Sum shall not be adjusted or altered in any way whatsoever otherwise than in accordance with the express provisions of the Conditions. and subject to Clause 12.3 any error whether of arithmetic or notin the computation of the Contract Sum shall be deemed to have been accepted by the parties hereto. ‘The Contractor shall before the issue of the Letter of Accept:nce by the Employer, agree with the Architect as to the reasonableness. of the rates andlor prices set down in the Schedule of Rates, Materials And Goods Unfixed Or Off-site Unfixed materials and goods intended for and delivered to or placed adjacent to the Works ‘may only be removed for use upon the Works except where the Architect has consented in writing to their removal for other purposes. The Architect shall not unreasonably withnold such consent Direct Lose andor Expense Quality and Quanity of the Works Correction of| Errors or Omisions Summary of Tender Basis of Contract Summ Contract SumMaterials of ‘Goods Paid for Becomes Employer's Property Contractor ‘Cannot Remove Bemtace for Use Upon the Works Contractor Responsible for Detects and Shelnkages Ete Making Good Detects Possession of Relevant Part Value of Relevant Part Practical ‘Completion and Defects Liability of Relevant Part 14.2 43 15.2 13.4 16.0 16.1 ‘Where the value of any such materials or goods has in accordance with Clause 30.3 been ‘included in any Interim Cerificate under which the Contractor has received payment such ‘materials and goods shall become the property of the Employer, but subject to Clauses 20.8.1 to 20.8.5 or 20.C.1 to 20.C6, if applicable, the Contractor shall remain responsible or loss or damage to the sime ‘Where materials and goods intended for the Works and whose value has in accordance with Clause 30.3 been included in any Interim Cenificate and has been paid bY the Employer Such materials and goods shall become the property of the Employer. Thereafter. the Contractor shall not. except for use upon the Works, remove or permit them to be removed from the premises where they are store. ‘The Contractor shall remain responsible for any loss or damage to the materials and goods ‘and for the cost of storage. handling, and insurance of same. Practical Completion And Defects Liability When the Architect is of the opinion that the works are practically completed, meaning that the Contractor has performed and completed all the necessary Works specified in the Contract and the patent defects existing in such Works are “de minimis” » the Architect shall forthwith issue a Cerificate of Practical Completion. ‘The Works shall be deemed 10 be practically completed for all purposes of this Contract on the day named in’ such Contficate ‘Any defects, shrinkages or other faults which appears within the Defects Liability Period and which are due to materials or workmanship aot in accordance with this Contract shall be specified by the Architect in a Schedule of Defects and delivered to the Contractor not later than fourteen (14) days after the expiration of the Defects Liability Period. The Contractor shall within a reasonable time afier receipt of the Schedule OF Defects shrinkages and other faults therein specified make good such defects. shrinkages or other faults entirely at his own cost, unless otherwise instructed by the Architect. in which case the Contract Sum shall be adjusted accordingly. ‘Notwithstanding Clause 15.2 the Architect may whenever he considers it necessary issue instructions requiting any defect. shrinkage or other faults which appear within the Defects Liability Period and which are due to materials or workmanship not in accordance with this Contract to be made good. The Contractor shall within a reasonable time after receipt of such instructions comply with the same entirely at his own cost. unless ‘otherwise instructed by the Architect. in which case the Contract Sum shall be adjusted ‘accordingly. No such instructions shall be issued after delivery of a Schedule of Defects oF after fourteen (14) days from the expiration of the Defects Liability Period. ‘When in the opinion ofthe Architect any defects, shrinkages or other faults which he may have required to be made good under Clauses 15.2 and 15.3 have been made good he shall issve a Cerificate of Making Good Defects and completion of making good defects shall be deemed to have taken place on the day named in the Certificate Partial Possession by Employer {fat any time or times before Practical Completion of the Works the Employer with the consent of the Contractor takes possession of any part or parts of the Works (any such art being hereinafter refered to as “the relevant part") then notwithstanding anything ‘expressed or implied elsewhere in this Contra: 16.1) Within fourteen (14) days from the date.on which the Employer has taken Possession of the relevant part the Architect shall issue a Certfieate stating his estimate of the approximate total value of the relevant part and for all Purposes of Clause 16.0 (but for no other) the value so stated Shall be deemed tobe the total value ofthe relevant part. 16.1 (ii) For the purposes of sub-clause 16.1 (vii) and Clauses 15.2 and 15.3 Practical Completion of the relevant part shall be deemed to have occurted and the Defects Liability Period in respect of the relevant part shall be deemed to have ‘commenced on the date which the Employer has taken possession thereof 16.1 (ii) When in the opinion of the Architect any defects, shrinkages or other faults in the relevant part which he may have requited to be mode good under Clause 15.2 of Clause 15.3 have been made good he shall issue a certificate to that effect17.0 my, 18.0 18.1 18.2 16.1 (iv) The Contractor shall reduce the valve insured under Clause 20 A (if applicable) by the full value ofthe relevant part and the said relevant part shall from the date that the Employer take possession thereof be at the sole risk of the Employer as regards to any of Clause 20.0 risks, 16.1 () In lieu of any sum to be paid or allowed by the Contractor under Clause 22.0 in respect of any period during which the Works may remain incomplete after the ddate which the Employer has taken possession of the relevant part there shall be paid or allowed such sum as bears the same ratio to the sum which would be paid or allowed apart from the provisions of Clause 16.0 as does the Contract Sum less the total value of the relevant part to the Contract Sum, 16.1 (iy Within fourteen (14) days of the date-on which the Employer has taken possession of the relevant part the Contractor shall be paid from the sum fetained under Clause 30.4 (if any} one moiety of such amount as bears the same ratio (0 the unreduced amount named as Limit of Retention Fund in the Appendix as does the total value ofthe relevant part to the Contract Sum. The Amount of the Limit of Retention Fund shall then be reduced by the same Amount of such moiety 16.1(vii) On the expiration of the Defects Liability Peviod in respect of the relevant part ‘or on the issue of the Certificate of Completion of Making Good Defects of the relevant part whichever isthe later. the Contractor shall be paid from the sums retained under Clause 30.4 (if any) the other moiety of the amount referred to in sub-clause 16.1 (vi) and the Limit of Retention Fund amount shall be reduced by the amount of such moiety Assignment Or Sub-Letting Neither the Employer nor the Contractor shall, without the written consent of the other. assign his rights, interests or benefits under the Contract ‘The Contractor shall not without the written consent of the Architect (wich consent shall ‘not be unreasonably withheld) sub-let any portion or the whole of the Works except ftherwise provided by the Contract. Such consent if given shall not relieve the Contractor from any liability or obligation under the Contract. He shall be responsible for the acts. defaults. neglects, breach of contract of any Sub-Contractor, domestic or ‘nominated. his agent, servants or workmen as fully as if they were the acts, defaults or neglects of the Contractor. his agents. servants or workmen, Where the Contractor sub- contracts labour only of craftsmen, skilled or semi-skilled workmen to carry out any pportion of the work this shall not constitute sub-leting within the meaning of this clause And he shall remain fully responsible for the quality of their work and craftsmanship and for any acts, defaults and negligence of the workmen, Injury To Persons Or Property And Employer's Indemnity ‘The Contractor shall be liable for and shall indemnify the Employer against any expense. liability, loss. claim or proceedings whatsoever in respect of personal injury to or the death of any person whomsoever arising out of or in the course of or caused by the ccamying out the Works, unless itis solely to any act or neglect of the Employer or of any person for whom the Employer is responsible. In that event, the Employer shall be liable. Except for such loss or damage that is at the sole risk of the Employer under Clauses 20.8.1 10 20.8.5 or Clauses 20.C.1 to 20.C.6 if applicable) the Contractor shall be liable for. and shall indemnify the Employer against any expense. lability. loss. claim or [proceedings in respect of any injury or damage whatsoever to any property real or personal in so far as such injury or damage arises out of or in the course of or by reason of ‘carrying out the Works. and provided alWays the same is due 10 any negligence. omission (oF default of the Contractor, his servants or agents or as the caie may be, of any sub- Contractor. his servants or agents Consent Required to Assign Rigs, Interests or Benefits Sub-Lettng Portion of Work Indemnity ‘Against Claims ‘on Employer Injury'or Death of Persons Indemnity ‘Against Claim ‘on Employer {or Injury te Property19.0 Contractor to 19.1 Insure Against Injury wo Persons and Property Evidence of 192 Insurances Required Maintenance 19.3 of tnsurance Policies Approval of Io Iurance ‘Companies Contractor 19.5 Detain Insurance Policy 20.0 Contractor's Risks“ 20.4. Neve Bullings Apororatot 20.A.1 Maintenance 20.8.2 ot Incurance Policy Insurance Against Injury To Persons And Property Without any prejudice to his liability to indemnify the Employer under Clause 18.0 the Contractor shall maintain and cause any sub-contractor to maintain such insurances as are riecensaty to cover the liability of the Contractor or, as the ease may be, of such sub- Contractor in respect of personal injuries or death or of injury or damage to property real fr personal arising out of or in the course of or caused by the carrying out of the Works land caused by any negligence. omission or default of the Contractor. or sub-contractor as the case may be and their servants or agents and not due to any act or negligence of the Employer or of any person for whom the Employer is responsible “The Contractor. when required by the Architect. shall produce or cause any sub-contractor to produce for inspection by the Architect the relevant insurance policy or policies together with receipts thereof in respect of premiums paid and the Architect may also feasonably require on any occasion the production by the Contractor of documentary tvidenee that such insurance policy or policies are properly maintained, Where a provisional sum is included in the Specification in respect of insurance required Under Clause 19.1 the Contractor shall maintain in the joint names of the Contractor and Employer insurances for such amounts of indemnity as may be stated in the Contract Bills in respect of expense, liability. loss, claim or proceedings which the Employer may incur for sustain by reason of injury oF damage to property real or personal arising out of ot in the course of carrying out the Works and caused otherwise than by negligence. omission for default of the Contractor and/or sub-contractor or of their servants or agents. Provided “tlways that any exclusion of limitation of liability. or insurance excess under the policy are stated in the certificates of inserance [Any insurance refered to in Clause 19.3 shall be placed with insurers to be approved by the Architect. and the Contractor shall deposit with him the policy or policies and the receipts in respect of premiums paid Should the Contractor or any sub-contractor make default in insuring or in continuing to insure as provided in Clauses 19.1. 19.2 and 19.3 the Employer may himself insure fgainst any risk with respect to which the default shall have occured and the amount paid tr payable by the Employer in respect of premiums shall be deducted from any monies doe ‘oF to become due to the Contractor. Insurance OF Works Against Fire, Ete “The Contractor shall in the joint names.of the Employer and Contractor insure against {oss and damage by fire. storm, tempest, lightning, flood. earthquake. aircraft or anything dropped therefrom, aerial abjecs, riot and civil commotion forthe full value thereof (plus {i perventage named in the Appendix to cover professional fees) of all exceuted work and ail unfixed materials and goods intended for the Works and delivered to and placed on oF Adjacent to the Works but excluding temporary buildings, plant. tools and equipment ‘owned or hired by the Contractor or any sub-contractor. and shall (subject to sub-clause 6.1 ivi] Keep such work, materials or goods so insured until Practical Completion of the Works “The insurance referred to in Clause 20 A shall be placed with insurers approved by the [Architect and the Contractor shall deposit with him the policy or policies and the receipt Of premiums paid. Ifthe Contractor makes defaut in insuring of continuing t0 insure as Toresaid the Employer may insure against any risks with respect of which the default has ‘occurred and deduct 2 sum equivalent to the amount paid by him in respect of premiums from any monies due or 1 become due to the Contractor. Ifthe Contractor independently of his obligations under this Contract maintains a policy of insurance, from insurers approved by the Architect. which covers (inter alia) the said work, materials and goods against the aforesaid risks in Clause 20A to the full value thereof (plus the aforesaid percentage, if any, in the Appendix) then the maintenance by the Contractor of such policy shall, if the Employer’ interest is endorsed thereon. be a discharge of the Contractors obligation to insure in the joint names of the Employer and Contractor. Cause 208 applies fo ew bulngs i Contractor is required to nse20.43 DAs ‘The production by the Contractor as and when may reasonably be required by the Architect of a ceri urance properly endorsed and maintained shall be a discharge of the Contractor's obligation to deposit with the Employer a policy oF policies and relevant premium receipt Upon the setlement of any claim under the insurances aforesaid the Contractor shall with due diligence restore any damaged work, replace of repair any unfixed materials or goods destroyed or injured. remove and dispose of any debris and proceed to carry out and complete the Works. All monies received from such insurances (less the aforesaid percentage, if any. in the Appendix) shall be paid to the Contractor by installments under the periodic Interim Cenificaes issued by the Architect. The Contractor shall not be entitled to any payment in reapect ofthe restoration ofthe damaged work and replacement or repair of any unfixed ‘materials or goods and the removal and disposal of debris other than the monies received under the aforesaid insurances, "20.8.1 All works executed and all unfixed materials or goods intended for and delivered to or 20.8.2 20.8.3 20.8.4 20.8.5 laced on of adjacent to the Works (excluding temporary buildings. plant, tools and equipment owned or hired by the Contractor or any Sub-Contractor) shall be at the sole "isk of the Employer as regards to loss or damage under Clause 20 A risks ‘The Employer shall maintain a proper insurance policy against the aforesaid risks and such policy and receipt forthe last premium paid for its renewal shall. upon the request of the Contractor. be produced for his inspection, If the Employer at any time. upon the request ofthe Contractor. fil © produce any receipt showing such a policy as aforesaid to he effective then the Contractor may in the name and fon behalf of the Employer insure all work executed and all materials and goods as aforesaid against loss or damage arising all the risks stated in Clause 20°A. The ‘Contractor upon production of the receipt of any premium paid by him shall be entitled to have its amount added to the Contract Sum If the toss or damage to the Works or any part thereof oF to any unfixed materials and goods referred to in Clause 20.B.1 is occasioned by any one or more of the risks stated in ‘Cinuse 20 A. then the occurtence of such loss or damage shall be disregarded in computing any amounts payable to the Contractor under this Contract ‘The Contractor shall with due diligence restore the damaged work. replace or repair any unfixed materials or goods destroyed or damaged, remove and dispose of any debris and proceed to carry out and complete the Works. “The restoration of damaged work, the replacement or repair of unfixed materials or goods. and disposal of debris shall be deemed to be a Variation required by the Architect. * 20.C.1 The existing structures together with all contents therein owned by the Employer or for 20.0.2 20.03 ‘which he is responsible. including all unfixed materials and goods intended for the Works and delivered to or adjacent to the Works [but excluding temporary buildings, plant, tool ‘and equipment owned by or hited by the Contractor or any Sub-Contractor] shall be at the sole risk of the Employer as regards to loss of damage arising from the risks stated in Clause 20 A. ‘The Employer shall maintain a proper insurance policy against such risks stated in Clause 20A and upon request by the Contractor shall produce the last receipt of premium paid. Ifthe Employer, at the request of the Contractor at any time fails to produce any receipt showing such a policy then the Contractor may in the name and on behalf of the Employer insure the structures together with the aforesaid contents, the Works, and all unfixed ‘materials and goods as aforesaid against loss or damage occasioned by the event expressed in Clause 208. For this purpose the Contractor shall have the right to enter and inspect as ‘may be necessary to make a survey and inventory of the existing. structures and all their Contents and upon production of the receipt of any premium paid by him be entitled 10 hhave the amount added to the Contract Sum, (Clauses 20.8.1 1020.8 apply to new buildings if Employer x eqsired to nse Restoration of Damaged Work Payment for Damaged Work Iasurance by Employer Maintenance oF Policy Failure of Employer tolnsare Compu ‘Amount {Loss cr Damage Oceasioned bs Insured Risks Restoration of Damaged Work Employer's Risks: Maintenance of Insurance! Eapeyer Failure of inure Canes 20.C.1 10 20.C6 apply t aerations oF exensions to existing buildings: therefore srike out Clauses 20 A, Bor a8 sppropriat,Loss or Damage 20.C.4 ‘Gceasioned by Tse Risks 20.0.5 20.0.6 21.0 Date of 2a Commencement land Completion : Date Dates of 2 Commencement Given for Sections 23 Postponement 24 of Work ‘Any lows or damage affecting the Works or any part thereof or any unfixed materials or goods referred to in Clause 20.C.1 occasioned by one or more ofthe risks stated in Clause 20 A then: 20.C.4 (i) the occurrence of such loss or damage shall be disregarded in computing. any amount payable to the Contractor under this Contract 0G Uiiy i tis just and equitable to do so the employment of the Contractor under this Contract may be determined atthe option of either party within twenty ‘eight (28) days of the occurrence of such loss or damage. Within seven (7) hays of receiving such a notice (but not thereafter) either party may give hotice to the olher a written request to concur on the appointment of an arbitrator under Claune 34.0 to decide whether such determination is just and equitable, Upon the giving or receiving by the Employer of a notice of determination or where a reference to arbitration 1s made as aforewid and if the Arbitrator upholds the notice of ‘determination, then the provisions of Clause 26.2 (except sub-clause 26.2 (i) (0) shall apply If no notice of determination is served under sub-clause 20.C.4 (ii) or where a reference to arbitration, is made as aforesaid and if the Arbitrator decide against the notice of determination. then: 20.66 (i) the Contractor shall, with due diligence, reinstate or make good such loss oF damage and proceed to carry out and complete the works: 20.0.6 (ii) the Architect may issue instructions requiring the Contractor to remove and dispose of any debris: and 20.C.6 (iti) the reinstatement and making good of such loss of damage and the removal fad disposal of debris shall be deemed to be a Variation required by the “Architect Date Of Commencement, Dates Of Commencement Postponement And Date for Completion n For Sections, (On the Date of Commencement stated in the Appendix. possession of the site shall be tBiven to the Contractor who shall thereupon begin the Works. and regularly and diligently {roceed withthe same and complete the same on or before the Date for Completion stated Th the Appendix subject to any extension of time in accordance with Clause 23.0 and/or sub-classe 32.1 (ii). If no such Date of Commencement is stated in the Appendix or ifthe date in the Appendix becomes invalidated for any reason which is not the responsibility Of the Contractor, then the Date of Commencement shall be such other date as instructed by the Architect and the Date of Completion shall be appropriately modified or re calculate. Provided always that Dates of Commencement may be given for sections or for parts and any other restrictions upon commencement on the site shall be stated in the Appendix to these Conditions or in the Contract Documents. ‘Where there are different completion dates for such sections or parts of Works are stated and identified in the Appendix or elsewhere in the Contract Documents and different and Separate Liquidsted and Ascertained Damages are provided for each section of part of the Works. the provisions of this Contract in regard to the Certificate of Practical Completion, Extension of Time, Ligudated and Ascertained Damages and the Defects Liability Period (but not Insurance of the Works against fire, ete. under Clause 20.0 and Final Certificate under Clause 30.7 hereof) shall in the absence of any express provision to the contrary elsewhere in the Contract Documents apply with the necessary changes i points of detail as if each such section or part was the subject of a separate and distinet Contract between the Employer and the Contractor. ‘The Architect may issue instructions in regard to the postponement of any work to be ‘executd under the provisions of this Contract22.2 23.0 23.1 23.3 23.4 23.5 Damages For Non-Completion If the Contractor fails to complete the Works by the Date for Completion or within any ‘extended time fied under Clause 23,0 or sub-clause 32.1 (ii) and the Architect certifics in writing that in his opinion the same ought reasonably so to have been completed, then the Contractor shall pay to the Employer a sum calculated at the rate stated in the Appendix as Liguiated and Ascertained Damages (LAD) for the period from the Date for Completion or any extended date where applicable to the date of Practical Completion. ‘The Employer may deduct such sum as a debt from any monies due or to become die to the Contractor under this Contract. ‘The Liquidated and Ascertained Damages stated in the Appendix is to be deemed to be asthe ‘actual loss which the Employer will suffer in the event that the Contractor is in breach of the Clause hereof. The Contractor by entering into this Contract agrees to pay to the Employer the said amounts) ifthe same become due without the need of the Employer to prove his actual damage or loss. Extension Of Time and when it becomes reasonably apparent that the progress of the Works is being or likely to be delayed beyond the Date for Completion the Contractor shall forthwith of the occurrence of such event, notify the Architect in writing identifying the relevant events causing the delay, giving particulars of the expected effect and an estimate. of the extension of time required. The notice shall contain sufficient information and reason why delay to completion will result. Upon receipt of the Contractors notice that there are events causing delay and the completion of the Works is likely to be delayed beyond the Date for Completion then the Architect shall subject to Clauses 23.3, 23.4 and 23.7 hereof consider the relevant events causing delay and by written notice to the Contractor give a feir and reasonable extension of time by fixing such later date as the Date for Completion, The Contractor shall not be entitled to any extension of time where instructions or acts of the Employer and/or the Architect are necessitated by or intended to cure any default of or breach of contract by the Contractor, Provided always the Contractor submits 0 the Architect his application for extension of time complete with particulars and estimates in a reasonable’ time before the Date of Completion, the Architect having regard to the sufficiency ofthe particulars and estimates of the aforesaid notice shall ascertain and fix such new Date for Completion within a reasonable time from the receipt of the said notice. The Architect may fix a new Date for Completion retrospectively upon failure of the Contractor to submit his application for extension of time complete with particulars and estimates in accordance ‘with. the aforementioned period. The Contractor shall constantly use his best endeavours to prevent delay in the progress of the Works, however caused, and to do all that may reasonably be required to” the satisfaction of the Architect to prevent delay or further delay in the completion of the Works beyond the Date for Completion. ‘The Architect shall ot under Clause 23.3 fix a Date for Completion earlier than the Date for Completion stated in the Appendix. ‘The Architect shall notify every Nominated Sub-Contractor in writing each decision of the ‘Architect when fixing a new Date for Completion. ‘The relevant events causing delay where the Contractor may be given a fair and reasonable extension of time are: 23.7 (i) force majeure. 237 Gi) exceptionally inclement weather, 23.7 Gili) oss or damage occasioned by one or more of the contingencies referred 1o in ‘Clauses 20.A, 20.B.1 or 20.C. as the cate may be. 23.7 (iv) civil commotion, strike or lockout affecting any of the trades employed upon the Works or any of the trades engaged in the preparation, manufacture or transportation of any goods or materials required for the Works. 23.7 (v) compliance of Architect's instructions under Clauses 1.2, 11.2, 21.1 oF 21.4, guided and Ascertained Damages LAD Amount Deemed As Agreed A Pair and Extension of Time ‘Time Limitation sto Giving Time Contractor to Prevent Delay ‘Limitation in Date Notieation to lyn Een Wiis Bstenl” of Time May Be of Tine May "7Application to AAktertain Loss andor Expense Circumstances Materaly Affecting Progress of the Works 24.0 24.1 24.2 23.7 (vi) Contractor not having received in due time necessary instructions, drawings, etails oF levels from the Architect for which he had specifically” applied in ‘writing provided thatthe application was made on a date having regard to the Date for Completion was neither unreasonably distant nor unreasonably close to the date on which it was necessary for him to receive them. 23.7 (vil). delays on the past of Nominated Sub-Contractors or Nominated Suppliers for the Same reasons. as set out in the sub-clauses 23.7 (i) to 23.7 (vi) and subs clauses 23.7 (vii) to 23.7 (xi. 23.7 (viii) delay on the part of artists, tradesmen or others engaged by the Employer in executing work not forming part of this Contract. 23.7 (ix) delay in the supply of materials and goods which the Employer had agreed to supply for the Works 23.7 (x) opening up for inspection any work covered up or the testing of any work, ‘materials or goods in accordance with Clause 6.3 (including making good in consequence of such opening up oF testing) unless the inspection or test showed that the work, materials or goods were not in accordance with the Contract 23.7 (xi) any act of prevention or breach of contract by the Employer not mentioned in this Clause 23.7. 23.7 (xii) any other ground for extension of time expressly mentioned in the Contract. Loss And/Or Expense Caused By Disturbance Of Regular Progress Of The Works If and when the Contractor notifies the Architect in writing thatthe regular progress of the Works or any part of it has been or is likely to be materially affected and that he had incurred or is likely to incur direct loss and/or expense for which he would not be reimbursed by a payment under any other provision of this Contract then the Architect shall 2s and when necessary from time t0 time ascertain the amount of such loss and/or lexpense which had been incurred by the Contractor, provided that 24.1 () the Contractor's application is made in writing as soon as it becomes or should be reasonably apparent to him thatthe regular progress of the Works or ‘any part of it had been or is likely to be affected; and 24.1 (i) the Contractor submits together with his application relevant information substantiating his claim so as t0 enable the Architect to form an opinion: and 24.1 (ii) the Contractor upon request submit to the Architect any other additional details of loss and/or expense as are reasonably necessary for ascertainment. ‘The Contractor is not entitled to loss and/or expense except in accordance with the ‘express provisions of the Contract. The following are circumstances materially affecting the regular progress of the Works referred to in Clause 24.1 24.2 () The Contractor not having received in dve time the necessary instructions, drawings, details or levels from the Architect for which he had specifically applied in writing. provided that such application was made on a date which hhaving regard to the Date for Completion stated in the Appendix or any extension of time under Clause 23.0 or sub-clause 32.1 (il) was neither ‘unreasonably distant from nor unreasonably close to the date on which it was necessary for him to receive them, the opening up for inspection of any work covered up oF testing of any work, materials or goods in accordance with Clause 63, including making good in consequence of such opening up or testing, unless the inspection or test showed that the work, materials or goods Were not in accordance with this Contract, 24.2 (ii) any discrepancy in or divergence between the Contract Drawings and/or the Specification. 24.2 (iv) delay on the part of artists, tradesmen, or others engaged by the Employer in executing work not forming part of this Contract,24.2 (¥) the Architect's instructions issued in regard 10 the postponement of any work to be executed under the provisions of this Contract 2 (Wi) delay or failure by the Employer to supply or provide materials and goods Which the Employer had agreed to provide or supply for the Work 24.2 (vii) failure of the Employer to give in due time entry to or exit from the site of the Works or any part thereof through or over any land by way of passage adjoining or connected to the site and in the possession and control of the Employer in accordance with the Contract Drawings andor the Specification 24.2 (viii) any act of prevention or breach of contract by the Employer. 24.3 If and when the Contractor makes written application within a reasonable time of it becoming apparent that the progress of the Work or any par of it has been affected ay aforesaid, then the Architect shall ascertain the amount of such loss and/or expense. The failure by the Contractor to comply with the requirements of Clause 240 shall entitle the Architect or the Quantity Surveyor as instructed by the Architect to ascertain the quantum fof such toss and/or expense on the basis of information available to them, 24.4 Any amount so ascertained from time to time shall be added to the Contract Sum, and if an Incerim Certificate is issued after the date of ascertainment any such amount shall be added to the amount which would otherwise be sated as due in such Cerificate, 25.0 Determination By Employer 25 ‘The Employer may determine the Contract without prejudice to any other rights and remedies which he may possess if the Contractor makes default in one or more of the 1 following instances: 25.1 (i) without reasonable cause wholly suspends the carrying out of the Works before completion thereof. Reasonable cause in this clause shall mean ompliance with an instruction from the Architect or compliance with a irection or an order from a Statutory or Governmental body. -25.1 (ii) fails to proceed regularly and diligently with the Works. 25.1 (iii) refuses or neglects to comply with a written notice from the Architect requiring him to remove or to remedy defective work. improper materials oF goods and by such refusal or neglect the progress of the Works is materially affected. 25.1 (iv) fails to comply with the provisions in Clause 17.0 25.1 (v) has abandoned the Contract 25:1 (vi) has persistently refused or failed to comply with a writen instruction from the Architect : 25.2 The Architect may then give the Contractor notice by registered post or recorded delivery specifying the default subject to that such notice is not given unreasonably ot vexatiously. If the Contractor continues with such default for fourteen (18) days after receipt of such notice or at any time thereafter repeat such default (whether previously repeated or not), then the Employer may within ten (10) days after such contavance or repetition by letter sent by registered post or recorded delivery forthwith determine the ‘employment of the Contractor under this Contract. 25.3 Im the event of the Contractor becoming bankrupt or making a composition or arrangement with his creditors or have a winding up order made or (except for purposes of ‘reconstruction or amalgamation) a resolution for voluntary winding up passed or having. a liquidator or receiver oF manager of his business or undertaking duly appointed ot having Possession taken by or on behalf of the holders of any debentures secured by a floating ‘charge or of any property comprised in or subject to the floating charge. the employment ‘of the Contractor under this Contract shall be forthwith automatically determined but the said employment may be reinstated and continued with the agreement of the Employer and the Contractor his tustee in bankruptcy. liquidator, receiver or manager as the ease may be. Ascertainment Amount Ascertained ‘Added to Contract Sum Defaults by Contractor Dermination of Employment of Contractor Contractor Bankrupt, EteDetaults by Employer 26.0 26.1 In the event that the employment ofthe Contractor is determined under Clauses 25,1. 25.2 U0 35:3 and so long av it has not been reinstated and continued the following shall be the respective rights and duties of the Employer and the Contractor: 25.4 (i) The Contractor shall vacate the site and return site possession to the Employer jvho may employ and pay other persons to carry out and complete the Works. He or they may enter upon the Works and use all temporary Buildings, plant tools, equipment, materials and goods that belong to the Contractor intended ferand Jelivered to and placed on or adjacent to the Works. and may purchase A material and goods necessary for the carrying out and completion of the Works. 25:4 Gi) The Contractor shall, if so required by the Employer or Architect, within Taureen (14) days of the date of determination, assign to the Employer wwihoat payment the benefit of any agreement for the supply of materials or {onde andlor for the execution of any work for the purposes of this Contract Fern the terms that a supplier or sub-contractor shall be entitled to make any Reasonable objection to any further assignment thereof by the Employer. In hy case the Employer may pay any supplier or sub-contractor for any ay ecaly or goods delivered or works executed for the purposes of this ‘Contract (whether before or after the date of determination) in so far as the pce thereof has not already been paid by the Contractor. The Employers Fights under this paragraph are in addition 10 his rights to pay Nominated Sub- CRnrractors as provided in Clause 27.4 and payments made under this parigraph may be deduced from any sum dve or to become de to the Contractor. 25.4 (ii) The Contractor when required in writing by the Architect to do so. (but not before) shall remove from the Works any temporary buildings. plants. tools, fcquipment, materials or goods belonging to or hired by him, If within a caeaomable time after any such requizements has been made to the Contractor seule has not complied therewith. then the Employer may (but without being fesponsible for any Joss oF darmage) remove and sell any such property Telonzing tothe Contractor and hold the proceeds less all costs incurred to the credit of the Contractor. 25.4 (iv) The Contractor shall allow or pay to the Employer in the manner hereinafter appearing the amount of loss caused 10 the Employer by the determination Until after the completion of the works under sub-clause 25.4 (i), the Employer shall not be bound by any provision in this contract to make any further payment to the Contractor. bat upon such completion and verification ithe sbeounts within a reasonabie time the Architect shall certify the amount Sr expense properly and actualy incured by the Employer and the amount of Shy less eatsed to the Employer by the determination and. if such amounts ‘added to the monies paid to the Contractor before the date of determination Skoved the total amount which would have been payable on completion in Sreordance with this Contract, the difference shall be a debt payable to the Employer by the Contractor, and ifthe said amounts when added ro the said frowies be fess than the said total amount, the difference shall be a debt payable by the Employer to the Contractor. Determit tion By Contractor ‘The Contractor may determine the Contract without prejudice to any other rights and remedies which he may posses. if 26.1 (the Employer does not pay the Contractor the amount dit on any certificate ‘uithin the Period for Honouring Certificates named in the Appendix and Continues such default for seven (7) days after receipt by registered post or fecorded delivery ofa notice of determination from the Contractor stating that if payment is not made within seven (7) days from receipt of the notice of Getermination, determination under this Clause may be exercised. Then, the = Contractor may by leter sent by registered post or recorded delivery 10 the Employer of the Architect, forthith determine his employment under the Contract. 26.1 (ii) the Employer improperly or fraudulently interferes with or influences, oF Dbstructs the issue of any certificate by the Architect, or there is fraudulent Coltusion between the Employer and the Architect; oF26.1 iliy yyer becomes bankrupt or makes a componition or arrangement with is oF has a winding up order mule or (except for the purposes of| reconstruction oF amalgamation) a resolution for voluntary winding up passed fr a receiver or manager of his business or undertaking is duly appointed or possession is taken by or on behalf of the holders of any debentures secured by 2 Moaiag charge. any propery comprised in oF et tote Noaing 26.1 tiv) the carrying out of the whole of the remaining Works (other than the ‘execution of work required under Clause 15.0) is suspended for a continuous Period of time named in the Appendix by reason of: (a) Atchitect’s instructions issued undér Clauses 1.2, 11.1 or 21-4 (b) the Contractor not having received in due time necessary instructions. drawings. details or levels from the Architect for which he had specifically applied in writing on a date which having regard to the Date for Completion stated in the Appendix or to any extension of time fixed under Clause 23.0 or sub-clause 32.1 (ii) was neither unreasonably istant from nor unreasonably close to the date on which it was necessary for him t0 receive the same: oF () delay on the part of artists. tradesmen or others engaged by the Employer in executing work not forming part of this Contract: or (2) the opening up for inspection of any work covered up or the testing. of, any work, materials of goods in accordance with Clause 6:3. (including ‘making good in consequence of such opening up or testing) unless the inspection of test showed that the work materials or goods were not in accordance with this Contract. ‘Then the Contractor may by notice by registered post or recorded delivery to the Employer fr Architect forthwith determine the employment of the Contractor under this Contra: provided that such notice shall not be given unreasonably or vexatious. Upon such determination, then without prejudice to the acerued rights of either party orto any liability of the classes mentioned in Clause 18.0 which may accrue either before the Contractor or any sub-contractors shall have removed his or their temporary buildings. plant, tools, equipment, materials or goods or by reason of his or their so removing the Same, the respective rights and liabilities of the Contractor and the Employer shall be as follows: 26.2 (i) the Contractor shall with all reasonable dispatch and in such manner and with such precautions as will prevent injury. death or damage of the classes in respect of which before the date of determination he was liable to indemnify the Employer under Clause 18.0 remove from the site all his temporary buildings. plant. tools. equipment. materials and goods and shall give facilities for his sub-contractors to do the same. but always subject 10 the provisions of sub-clause 26.2 (ii) (d). 262 (ii) After taking into account amounts previously paid under this Contract. the Contractor shall be paid by the Employer. 262 (i) (a) the total value of work completed at the date of determination, 262 (i) (b) the total value of work begun and executed but not completed at the date of determination, the value being ascertained in accordance with Clause 11.5 as if such work were a Variation required by the Architect. 262(ii) (©) any sum ascertained in respect of direct loss and/or expense under Clauses 11.6. 24.0 and 33.2 [whether ascertained before or after the date of determination} 26.2 (ii) (@) the cost of materials or goods properly ordered for the Works for Which the Contractor had paid or for which the Contractor is legally bound to pay. and on such payment by the Employer any ‘materials or goods so paid shall become the propery of the Employer. Rights and [tities Upon Determination by Contractor26.2 (i) (@) the reasonable cost of removal under sub-clause 26.2 () 262 Gi) f) any direct loss and/or damage caused to the Contractor by the ‘determination, 26.3. In-addition to all other remedies the Contractor upon. such determination may take possession of and shall have a Hien upon all unfixed materials and goods which may have Become the propery of the Employer under Clause 1-40 until payment of all monies due to the Contractor from the Employer. 27.0 Nominated Sub-Contractors txpne, 27.1.‘ flowing pv, also wh pin ot a ub or Feo Tre folowing Pr cake inauctions given im regard to the expenditure of fad Prime Cot ay Syrin agest of penons or companies to be roinuted by the APciect to upply and fix materials or goods orto execute work: 27.1 i) Such sums shall be expended in favour of such persons or companies ay the ‘Architect shall instruct. and all such persons or companies who are nominated ty the Architect_are hereby declared to be "Nominated Sub-Contractors” employed by the Contractor. Nomination 27.2 The Architect shall not nominate any person or company as a Nominated Sub-Contractor of Nomad dgsinst whom the Contractor makes reasonable objection. or (except where the Architect abe antes: oid Contractor otherwise agree) who will not enter into a sub-contract which provides - (inter aay Obligations 27.2.) that the Nominated Sub-Contractor carry out and complete the sub-contract sfhominaed Iworks in every respect fo the reasonable satisfaction of the Contractor and the cea: TRrchitect and in conformity with all reasonable directions and requirements of the Contractor. 27.2 Gi) that the Nominated Sub-Contractor observe. perform and comply with all the provisions. of this Contract which the Contractor is obliged to perform and PEmply with (other than Clause 20A if applicable) so far as they relate and apply to the sub-contract works of to any portion of it (iiiy that the Nominated Sub-Contractor indemnify the Contractor against the same Tiabilities in respect of the sub-contract works as those for which the Contracor is liable to indemnify the Employer under this Contract. | plant and shall insure himself agaist any such claims and preduce the policy i 27.2 (0) that the sub-contract works be completed within the period or (where dey are Oe ee eas ee sexi, tat the Cont stall tobe comple ner mcent of he Archie gaan extension of fie 20th tore cubeonact works or ty pat thea and that he fo he some geste Arcee of any represenition mae by the Cont aor 0 ihe cue of amy ay the POBTES OF Ne emi wets rot tm} pat MIE 27.2 (vi) that ifthe Nominated Sub-Contractor fails to complete the sub-contract works tr (oehere the sub-contract works are to be completed in parts) any part thereof tithin the period specified or within any extended time granted by the Contractor with the written consent of the Architect. and the Architect Certifies in writing to the Contractor that the same ought reasonably 0 10 have been completed. the Nominated Sub-Contractor shall pay or allow to the Coniractor either a sum ealculated at the rate therein agreed as Liquidated and | ‘ascertained Damages for the period during which the said works. or any part thereof a the case may be, remain or have remained incomplete of (where 00 Sch rate had been agreed) a sum equivalent 10 any loss and/or damage suffered | ‘or incurred by the Contractor and caused by the failure of the Nominated Sub- Contractor as aforesaid,273 274 27.2 (vii)_ that payment in respect of any work, materials or goods comprised in the sub- contract shall be made within fourteen (14) days after receipt by the Contractor of the Architect's certificate under Clause 30.0 which states as dve an amount calculated by including the total value of such work, materials or goods, and shall when due, be Subject to the retention by the Contractor of sums mentioned in sub-clause 27.2 (vii. 27.2 (vili) that the Contractor shall retain from the sum directed by the Architect as having been including in the calculation of the amount stated as due in any certificate issued under Clause 30.0 in respect of the total value of works, materials or goods executed or supplied by the Nominated Sub-Contractor the Percentage of such value named ia thé Appendix as Percentage of Certified Value Retained up toa total amount not exceeding a sum which bears the same ratio to the sub-contract pre as the unreduced sum named in the Appendix as Limit of Retention Fund bears to the Contract Sum: and that the Contractor's interest in any sums so retained (by whomsoever held) shall be fiduciary as trustee for the Nominated Sub-Contractor but without obligation to invest: and thatthe Nominated Sub-Contractor’s beneficial interest in such sums shall be Subject only to the right of the Contractor to have recourse thereto from time to time for payment of any amouat which he is entitled under the sub-contract to deduct from any sum due or o become due to the Nominated Sub-Contractor: and that if and when such sums or any part thereof are released to the Nominated Sub-Contractor they shall be paid in ful 27.2 (ix) that the Architect and his representatives shall have the right of access to the Workshops and other places of the Nominated Sub-Contractor as mentioned in Clause 9.0. ‘The Architect shall direct the Contractor as to the total value of the work. materials or goods executed or supplied by a Nominated Sub-Contractor included in the calculation of the amount stated to be due in any cenificate issued under Clause 30.0 and shall forthwith inform the Nominated Sub-Contractor in writing of the amount of the said total value, The sum representing such total value shall be paid by the Contractor to the Nominated Sub- Contractor within fourteen (14) days of receiving from the Architect the certificate less any retention money which the Contractor may be entitled to deduct under the terms of the contract and less any sum to which the Contractor may be entitled in respect of delay in the completion of the of the sub-contract works of any part thereof The Architect, at any time before the issuance of the Final Cerificate, may request the Contractor to furnish to him reasonable proof that all amounts stated as due and included in the previous certificates in respect of the total value of the work executed, materials or goods supplied by the Nominated Sub-Contractor have been discharged. If the Contractor fails to comply with any such request. the Architect may issue a certificate to that effect and thereupon the Employer may himself pay such amounts to any Nominated Sub- Contractor concerned and deduct the same from any sums due or 19 become due t0 the Contractor. When the Architect is of the opinion that itis appropriate to do so, he may issue the aforesaid cenificate imespective of whether or not an Interim Certificate under Clause 30.0 is due for issuance. ‘The Contractor shall not grant to any Nominated Sub-Contractor any extension of time within which the sub-contract works or (where the sub-contract works are to be completed in parts) any part thereof is to be completed without the writen approval of the Architect. ‘The Contractor shal inform the Architect of any representations made by any Nominated ‘Sub-Contractor as to the cause of any delay in the progress or completion of the sub- Contract works or any part thereof, and the approval of the Architect shall not be unreasonably withheld, 27.5 (i) Many Nominated Sub-Contractor fails to complete the sub-contract works or (where the sub-contract works are to be completed in parts) any part thereof thin the time stated in the sub-contractor within any extended time granted by the Contractor. withthe writen approval of the Architect, then if the same ‘ought reasonably so to have been completed, the Architect shall certify in writing accordingly: immediately upon issue the Architect shall send a duplicate of any such certificate 10 the Nominated Sub-Contractor. Payment by Contractor to Nominated Sub-Comtractors Sub-Contractors Failure of. Nominated Sab-Contractors to Completei octamer Final Payment 27.6 to Nominated Sub-Contractors Before Final Contractor Employer Not 27 in Any Way Liable Sub-Comtractors Contractor Shal 27.8. Bie Permited to Tender for PCSums Expenditureof 28.1 Prova! Sams or prime Cost tc) Sams Meaning of, 28.2 Prime Cost Definition of 28.3 Nomiate Obligations Ifthe Architect wishes to make final payment to any Nominated Sub-Contractor before final payment is dae to the Contractor. and if the Nominated Sub-Contractor has satisfactorily indemnified the Contractor against any latent defects, then the Architect ‘may in an Interim Cerificate include an amount to cover the said final payment. and thereupon the Contractor shall pay 10, such Nominated Sub-Contractor the amount so certified. Upon such final payment. the amount stated in the Appendix as Limit of Retention Fund shall be reduced by the sum which beurs the same ratio to the said amount as does such sub-contract price to the Contract Sum and except for latent defects the Contractor shall be discharged from all liability for the work, materials oF goods executed ‘or supplied by such Nominated Sub-Contractor under the sub-contract ‘The Contractor shall be fully responsible for all Nominated Sub-Conteactors or Suppliers, and for any default or breseh of contract oa their part and the Employer shall in no circumstances be liable to the Contractor. Neither the existence or the exercise of the foregoing powers nor anything else contained in these Conditions shall render the Employer in any way liable to any Nominated Sub-Contractor. ‘Where the Contractor in the ordinary course of his business directly carries out works for which provisional or prime cost sums are included in the Contract Bills and where items of such works are set out in the Appendix and the Architect is prepared to receive tenders from the Contractor for such items. then the Contractor shall be permitted to tender forthe same ‘or any of them but without prejudice to the Employer's rights to reject the lowest of any fender. If the Contractor's tender is accepted. he shall not sub-let the work or any part thereof without the approval of the Architect 278 (i) Where prime cost sum arises under the Architect's insiuctions issued under Clause 11.3. it shall be deemed for the purposes of this Chuse to have been included in the Contract Bills and the item of work t9 which it relates shall likewive be deemed to have been set out in the Appendi 27.8 Gi) It shall be a condition of any tender accepted under this Clause that Clause 11.3 shall apply in respect of the tems of work included in the tender us if For the reference therein to the Contract Drawings and the Specification there were references to the equivalent documents included in or referred 10 i the tender. Nominated Suppliers The following provisions of this Condition shall apply where prime cost sums are included in the Specification or arise as a result of the Architect’ instructions. given in regard to the expenditure of provisional sums. in respect of any materials or goads to be fixed by the Contractor. ‘The term prime cost when included or arising as aforesaid, shall mean the net cost to be defrayed as prime cost after deducting any trade or other discount and shall include the cost of packing. carriage and delivery. Where in the opinion of the Architect the Contractor has incurted expense for special packing and/or special carriage. such special expense Shall be allowed as part of the sums actually paid by the Contractor and added 10 the Contract Sum. All specialists, merchants. tradesmen or others who are nominated by the Architect to supply materials or goods tothe Contractor ae referred to as "Nominated Suppliers”. The Architect shall not (except where the Architect and Contractor agree otherwise) nominate 4s supplier a person or company who will not enter into a contract of sale which provides Minter aay: 28.3 (i) that the materials or goods to be supplied shall be to the reasonable satisfaction of the Architect. 28.3 (ii) _ that the Nominated Supplier shall make good by replacement or otherwise any defects in the materials or goods supplied which appear within such period as is therein mentioned and shall bear any expenses reasonably incurred by the Contractor as a direct consequence of such defects except where the materials ‘or goods have been used or fixed and the defects are aot such that examination by the Contractor ought fo have revealed them before using or fixing or where such defects are due solely to defective workmanship or materials ia the goods supplied and aot have been caused by improper storage by the Contractor or bby misuse or by any act or neglect of either the Contractor, the Architect or the Employer or by any person or persons for whom they may be responsible, 28.3 (ii) that the delivery of the materials or goods supplied shall commence and be completed at sueh times as the Contractor may reasonably direct29.0 29.1 30.0 30.1 30.2 30.3 30.5 ‘The Contractor shall pay in full for the materials or goods supplied by a Nominated Supplier within 30 days of the end of the month during whieh delivery is made, Artists And Tradesmen ‘The Contractor shall permit the execution of work not forming part of this Contract by artists, tradesmen or others engaged by the Employer, Every such person shall. for the purposes of Clause 18,0, be deemed to be a person for whom the Employer is responsible and not be a sub-contractor Certificates And Payment Centficates to be issued by the Architect under these Conditions shall be issued 10 the Contractor with a copy to the Employer. The Architect may. by any certificate correct any error of discrepancy which has been discovered in any previous cerifiate, or may modify any previous certificate, other than a Certificate of Practical Completion or the Final Centfieate, which has been issued by him. During the Period of Interim Certificates stated in the Appendix. the Contractor shall submit details and paniculars to the Architect. sufficient for the Architect to consider and ascertain the amount to be stated in an Interim Certificate, Upon receipt of the Contractor's details and particulars the Architect shall issue an Interim Certificate to the Contractor with a copy to the Employer. and the Contractor shall be entitled t0 payment thereafter within the Period of Honouring Certificates stated in the Appendix. Provided ‘always thatthe Architect shall have the discretion to ake imerim valuations whenever he ‘considers necessary for ascertaining the amount to be stated as due in an Interim Centticate. ‘The amount stated as due in an Interim Cerificate shall. subject to any agreement between the parties as to stage payments. be the total value of the work properly executed and where the Contractor had paid to the supplier the full cost of the materials and goods delivered to or adjacent to the Works for use thereon up to and including a date not more than seven (7) days before the date of the said certificate less any amount which may be -setained by the Employer (as provided in Clause 30.4) and less any. installments ‘previously certified under the Conditions. The certificate shall only include the value of the said materials and goods from such time as they are reasonably. properly and not prematurely brought to or placed adjacent to the Works and then only if adequately protected against weather or other casualties 303 (i) Unless otherwise expressly provided in these Conditions. the Employer shall not be entitled t0 withhold or deduct any amount certified as due under any Architect's certificates by reason of any claims to set-off or counterclaims or allegation of defective works. materials or goods or for any other reasons ‘whatsoever which he may purport to excuse him from making payments of the amount stated to be due in an Interim Cerificate 303 (i) In the event of any disputes or differences as to any rights of the Employer to set off or to any counterclaims or any allegation of defective works. materials fr goods or for any other reasons then such disputes or differences shall be referred to an arbitrator for judgment under Clause 34.0. ‘The Employer may retain the percentage of the total value of the work, materials and ‘goods referred to in Clause 30.3 which is stated in the Appendix as Percentage of Certified Value Retained, When the sum of the amounts so retained equals the amount stated in the Appendix as Limit of Retention Fund or that amount as reduced in pursuance of sub-clauses, 16.1 (vi) and 16.1 (wii) and/or Clause 27.6 a the case may be. then no further amounts shill be retained by viewe of this Clause ‘The amount retained by vine of Clause 30.4 shall be subjected to the following rules: 30.5 (i) the Employers imerest in any amount so retained shall be fiduciary as trustee for the Contractor (but without obligation t invest) and the Contractor's beneficial interest therein shall be subject only tothe right of the Employer to have recourse thereto from time to time for payment of any amount ax the Architect may certify that he is entitled under the provisions of this Contract { deduct from such Sum due or t become due 1 the Contractor. Pavment for Materiats and Goods by Contractor Execution of| Work Not Forming Part of Contract No Entlement Enplser it Respect of sine Site interim ceincnes Dispates or Differences in Respect Of Right to SeOMF Ete to Be Referred to Arbitration Gertie Value Retained Roles Regarding Retention Fund Employer's Interest fn RetentionContractor to Be Taformed in Weiting ‘of Deduction trom Monies Duc or to Become Due Release of ‘One Moiety (of Retention Fund Release of ‘Second Moiety (of Retention, Font Completion of 30.6 Measurement and ‘Valuation and Centifieates Required Compan Computation of Conteact Sum Provision for 30.7 Final Certificate 30.5 Gi) 305 Gili) 30.5 div) When the Employer exercises any right under this Contract to deduct from any ‘monies due to or become due to the Contractor he shall inform the Contractor in writing ofthe reason for that deduction, Upon the issue of the Certificate of Practical Completion the Architect shall issue a Certificate forthe release of one moiety of the total amount so retained tnd the Contractor shall be entitled to payment within the Period for Honouring Certificates stated in the Appendix. On the expiration of the Defects Liability Period stated in the Appendix or on the issue of the Certificate of Completion of Making Good Defects, whichever is the later, the Architect shall issue a Certificate forthe residue of the amounts then so retained and the Contractor shall be entitled. to payment within the Period of Honouring Certificates stated in the Appendix. ‘The measurement and valuation of the Works shall be completed within the Period of Final ‘Measurement and Valuation stated in the Appendix and the Architect shall then issue a penultimate certificate of payment together with a copy of the summary of the ‘measurement and valuation not later than the end of the said period and before the issue of the Final Certificate under Clause 307 306 @ 306 Gi) Either before or within six months after Practical Completion of the Works the Contractor shall send to the Architect all documents necessary for the purposes of the computations required by these Conditions including all documents relating to accounts of Nominated Sub-Contractors and Nominated Suppliers. In the settlement of accounts the amounts paid or payable under the appropriate sub-contracts by the Contractor to Nominated Sub-Contractors or Nominated Suppliers, the amount paid or payable by virtue of Clause 4.$ in respect of fees or charges for which a provisional sum is included in the Contract Bills. the amounts paid or payable in respect of any insurances ‘maintained in compliance with Clause 19.3, the tender sum (or such other sum 8 is appropriate in accordance with the terms of tender) for which a tender ‘made under Clause 27.8 is accepted and the value of any work executed by the Contractor for which a provisional sum is included in the Specification shall be set against the relevant prime cost or provisional sum stated in the Specification or arising under the Architect's instructions issued under Clause 11.3 as the case may be, and the balance, after allowing in all cases "pro rata” for the Contractor’ profit atthe rates shown in the Schedule of Rates shall be ‘ded to or deducted from the Contract Sum. No deduction shall be made in respect of any damages paid or allowed to the Contractor by any sub- contractor or supplier. [Before the expiration of three (3) months from the end of the Defects Liability Period stated in the Appendix or from completion of making good defects under Clause 15.0 or from receipt by the Architect ofthe documents referred to in sub-clause 30.6 (i) whichever is the later the Architect shall issue a Final Certificate which shall state: 307 @ 307 Gi 30.7 Git) the sum paid to the Contractor under Interim Certificates and the amount stated in the Appendix as Limit of Retention Fund. the Contract Sum adjusted as necessary in accordance with the provision in these Conditions the difference, if any, between the two shall be expressed as a balance de to the Contractor from the Employer or to the Employer from the Contractor as the case may be. Subject to any deductions authorised by these Conditions, the balance as from fourteen (14) days after the issue of the Final Certificate Shall be a debt payable by the Employer to the Contractor or as the case may be from the Contractor to the Employer. No certificate of the Architect shall of itself be conclusive evidence that any work, materials or goods to which it relates are in accordance with the Contract.31.0 312 32.0 32 * Outbreak OF Hostiti If during the currency of this Contract there is an outbreak of hostilities (whether war is ectared or not) in. which Malaysia is involved on a scale involving the general mobilisation of the Armed Forces of the Government in the State or States of Malaysia in which the Works are to be carried out then either the Employer of Contractor may at any time by notice by registered post or recorded delivery tothe other forthwith determine the employment of the Contractor under this Contract. Provided always that such notice shall not be given: 31.2 (i) Before the expiration of twenty eight (28) days from the date on which the order is given for general mobilisation as aforesaid: ot 31.2 (ii) After Practical Completion of the Works unless the Works of any part thereof hhave sustained war damage as defined in Clause 32.4, ‘After a notice under Clause 31,1 has been given by the Contractor to the Architect or to the Employer, the Architect may within fourteen (14) days issue instructions to the Contractor requiring the execution of such protective work as specified in the instructions and the Contractor will comply with such instructions as if notice of determination had not been given. If the Contractor for reasons beyond his control is prevented from completing the works to which the said instruction relate within three (3) months from the date on which the instructions were issued he may abandon such work. 31.3) Upon the expiration of fourteen (14) days from the date on which notice of determination has been given by the Contractor to the Architect or to the 3 Employer under Clause 31.1 or where the works are required by the Architect under Clause 31.3 and upon completion or abandonment as the case may be of any such works, the provisions of Clause 31.3. (except sub-clause 26. (i) (@) ‘of these Conditions) shall apply and the Contractor shall be paid by the Employer the value of any work executed pursuant to instruction given under Clause 31.3, the valve being ascertained in accordance with Clause 11.5 as if such works were a Variation required by the Architect War Damage In the event of the Works or any part thereof or any unfixed materials or goods intended for, delivered to and placed on or adjacent to the Works sustain war damage then not withstanding anything expressed or implied elsewhere in this Contract: 32.1 (i) the occurrence of such war damage shall be disregarded in computing any amounts payable to the Contractor under or by virtue ofthis Contract. 32.1 (i) the Architect may issue instructions requiring the Contractor to remove and/or dispose of any debris and/or damaged work and/or to execute such protective work as specified. 32.1 (il) the Contractor shall reinstate or make good such war damage and shall proceed with the carrying out and completion of the Works, and the Architect shall ‘grant to the Contractor a fair and reasonable extension of time for the ‘completion of the Works 321 (iv) the removal and disposal of debris or damaged work, the execution of protective works and the reinstatement and making good of such war damage Shall be deemed to be a Variation required by the Architect. by Employer (of Contractor Notices of Determination Architect's Instructions Regarding Protective Work Payment Resulting from Determination Procedures Following W: Damage to ‘Works Materials aod Goode In the event of outbreak of hosiites the parties may at any tine by agreement between them make such futher or other arrangements a they think fic 0 meet the circumstances.War Damage Emploser's 32.3 Entitlement to ‘Compensation InReapeet’ War Bamoge 34 33.0 3 to'ke Property of Empover 332 Gumtracor to 33.3 Sbmit Necessary Decal 340 Disputes or Ma Diterences to Be Retered to ‘rotten If at any time ater the occurrence of war damage under Clause 32.0 the expression “protective work " as used in the said Clause shall be deemed to include any matters in’ respect of which the Architect can issue instructions under Clause 31.3 and sub-clause. 32.1 (i) and any instructions so issued prior to the date on which notice of determination is given or received by the Employer and which have not been completely complied with shall be deemed to have been given under Clause 31.3. ‘The Employer shall be entitled to any compensation which may at any time become payable out of monies provided by Parliament in respect of war damage sustained By the Works or any part thereof or any unfixed materials or goods intended for the Works which shall at any time become the property of the Employer. The expression "war damage” mean 32.4 (i) damage occurring (whether accidentally or not} ay the direct result of action taken by the enemy, or action taken in combating the enemy. or in repelling an imagined attack by the enemy. 32.4 (i) damage occurring (whether accidentally oF not) as a direct result of measures taken under proper authority to avoid the spreading of, or otherwise to mitigate, the consequence of such damage as aforesaid 324 iii) seeidental damage occurring as the direct result of any precautionary or preparatory measures taken under proper authority with a view to preventing or hindering the carrying out of any attack by the enemy or of precautionary Sr preparatory messures involving the doing of work on land and taken under Proper authority in any way in anticipation of enemy action being in either ase measures involving a substantial degree of risk to property: providi that the measures mentioned do not include the imposing of restrictions on the display of lights or measures taken for training purposes. For the purpose of this sub-condition, such action against the enemy is referred to in sub-clause 32.4 (i) shall in relation to any ship or aircraft taking pare in such action, be deemed to contiaue until the ship or aircraft has retmed to base and includes nuval. military of air reconnaissances and patrols Antiquities All fossils, antiquities and other objects of interest or value which may be found on the site or in excavating the same duting the progress of the Works shall become the property of the Employer. Upon discovery of such objects the Contractor shall forthwith cease work and shail not disturb the object and take all necessary precautions to preserve the ‘abject in the exact position and condition as it was discovered. He shall immediately ratify the Architect or the Site Staff of the discovery and the Architect shall issue relevant instruction in this regard to what has to be done. If in the opinion of the Architect compliance with his instructions in regard of what has to be done involved the Contractor in direct loss andlor expense for which he would aot be reimbursed by a payment made under any other provision in this Contract then the Architect shall ascertain the amount of such loss and/or expense and any amount from time to time so ascertained shall be added to the Contract Sum. If an Interim Certificate is issued after the date of ascertainment any such amount shall be added to the amount which would ‘otherwise be stated as due in such certificate. ‘The Contractor shall submit to the Architect of such details of such direct loss andior expense as are reasonably necessary for the ascertainment under sub-clause 33.2 of this Condition, Arbitration Inthe event that any dispute or difference arises between the Employer. or the Architect on his behalf, and the Contractor, either during the progress or after completion or abandonment of the Works regarding: 34.1) © any matter or thing of whatsoever nature arising thereunder or in connection therewith including any matter or thing left by this Contract to the discretion of the Architect: or 34.1 (i) the withholding by the Architect of any certificate to which the Contractor may claim to be entitled to: oFere Paar 342 343 344 as 34.1 (ii) the measurement and valuation in sub-clause 30.5 (i) oF BAL Civ th hts and liabilities of the parties under Clauses 25.0, 2600. 31.0 or 32.0: 34.1 (¥) the unreasonable withholding of consent or agreement by the Employer or the Architect on his behalf or by the Contractor. then such disputes of differences shall be referred to arbitration Upon the disputes or dtferences having arisen then: 342 (2) any pany may serve written notice on the other party that such disputes or differences shall be referred to an arbitrator to be agreed between the parties: oF 34.2 (ii) failing agreement of absence of reply or reluctance to act by the other party then the party serving the writen notice may after the expiration of fourteen (14) days from the date of the notice to concur on the appointment of an Arbitrator, apply to the President or Deputy President forthe time being of Pertubuhan Akitek Malaysia to appoint an arbitrator and such arbitrator so ‘appointed shall be deemed to be appointed with the agreement and consent of the parties to this Contract. Upon appointment the Arbitrator shall. with despatch. initiate the arbitration proceedings following the provisions. of the Arbitration Act 1952 (Revised 1972) or any statutory modification of re-enactment thereof for the time being in force and the PAM Arbitration Rules or any modification or revision thereof. The hearing may be held “ex parte should either party. after having been given proper notice, fail to attend ‘The Arbitrator shall, without prejudice to the generality of his powers, have power: 344.11) to rectify the Contract so that it accurately reflects the tue agreement made by the Employer and the Contractor: 34.4 (ii) to diteet such measurements and/or valuations as may in his opinion be desirable in order to determine the rights of the partes: 34.4 (ili) t ascertain and award any sum which ought 10 have been the subject of or included in any certificate: and 344 (iv) to open up, review and revise any certfieate, opinion, decision, requirement. ‘or notice: and 34.4 (v) to determine all matters in dispute submitted to him in the same manner as if ro such cetificate, opinion, decision, requirement or notice had been given, 34.4 (vi) to award interest from such dates at such rates and with such rests as he thinks fi 44) on the whole or part of any amount awarded by him in respect of any Period up tothe date ofthe award: b) on the whole or part of any amount claimed in the arbitration and futstanding at the commencement of the arbitral proceedings but paid before the award was made, in respect of any period up 10 the date of payment. 34.4 (vii) award interest from the date ofthe ward (or any later date) until payment, at such rates and with such ress as he thinks fit on the outstanding amount of any award. Such references except on Amite 3 of the Articles of Agreement or on: 34.5 (i) the question of whether or not the issue of an instruction is empowered by these Conditions: oF 34.5 (i) any dispute or difference under Clause 31.0 and 32.0: oF Bas ) whether of nota certificate has been improperly withheld or not in accordance with these Conditions: Fi Feral Hearing Powers of Arbitrator ‘Opening of ‘Atbitration Proceedingshall not be opened until after Practical Completion ot alleged Practical Completion of the ‘Works or termination or alleged termination of the Contractor's employment under this Contract, or abandonment of the Works, unless with the written consent of the Employer or the Architect on his behalf and the Contractor. Artrators ||, 34.6 The anardof such Ait hl be finland binding onthe parts ‘Near Fn lnc Rint 38.0, Mediation Median 35.1 Notwthtanding Clause 4.1 ofthe Conditions, upon the agreement of both the Employer See and the Contactor the partes ray refer her spite ao ay mater arising une or dt ” of or in connection with the carrying out of the Works and whether in contract or in tort, or 0 any dieton or insaueton or ceria of the Architect a0 cones of ot taming” or refi of or reasons fr any such dition. insration or ceria for ‘mediation under the Mediation Rules of the Pertubuhan Akitek Malaysia before a mediator 10 be apointed by the President or Deputy President for the time being of Peubuhan Akitek Malaysia ror Betrece 35.2 For the avoiane of doubt. pir reference of he dispute mediation under Cause 35.1 st ‘shall not be a condition precedent for its reference to arbitration by either the Contractor ie. or the Employer, aor shall any of tee igh refer the dpe to arbtraion in pursuant ras 10 Clse 34.0 ofthe Conon bein anyway puso etd by tis clase. threatsAppendix Defects Liability Period {if none other stated is 6 months from the day named in the Certificate of Practical Completion of the Works.] Percentage to cover Professional fees Date of Commencement Date for Completion Liquidated and ascertained Damages Sectional Completion (*) Clause 15.0, 16.0 and 30.0 21.0 21.0 22.0 at the rate of RM per 21.0 Section Date of Commencement 1.0) Date of Completion (21-0) Tiguidated and Ascerained Damages at the rate of (22.0) Period of delay if none stated is one (1) month) Prime cost sums for which the Contractor desires to tender. Period of Interim Certificates [if none stated is one month] Period of Honouring of Certificates Lif none stated is 14 days from the date of the Interim Certificate. Percentage of Certified Value Retained (f none stated is not exceeding 10% of Contract Sum) Limit of Retention Fund (Af none stated isnot exceeding 5% of Contract Sum) Period of Final Measurement and Valuation if none] ‘stated is 6 months from the day named in the Certificate (of [Practical Completion of the Works} (©) Footnote - This so be used 304 30.4 RM 30s 3Agreement And Conditions of Building Contract Between And Dated: oeesetneenee PRIVATE EDITION WITHOUT QUANTITIES This Form is issued under the sanction and approval of Pertubuhan Akitek Malaysia Edition 1998 Revised October 1998 © Copyright of Pertubuhan Akitek Malaysia 4 & 6 Jalan Tangsi 50480 Kuala Lumpur, Malaysia