FIDIC Contract
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Cement Company LimitedParticular Conditions to FIDIC Conditions of Contract for Plant and Design-Build (Yellow Book)– Combined Contract Conditions1.Conditions of ContractThe Conditions of Contract are the Fédération Internationale des Ingénieurs-Conseils(FIDIC) Conditions of Contract for Plant and Design-Build, First Edition, 1999 (YellowBook) (hereinafter “the General Conditions”) as amended and amplified in the ParticularConditions below.2.Amendments to the General Conditions of Contract wording are reflected as follows:·deletions are reflected with in strike out, and·insertions are reflected in bold.3. Unless otherwise stated, applicable grammar and punctuation are deemed to be amended and inserted as the context requires.Clause & HeadingModification / Amendment/ Insertion/ Deletion1.General Conditions1.1Definitions 1.1.1The Contract1.1.1.1 “Contract”Delete the definition of “Contract” in its entirety in this Sub-Clauseand replace it with the following:““Contract” has the meaning given to it in the ContractAgreement.” 1.1.1.2 “Contract Agreement”Delete the definition of “Contract Agreement” in its entirety in thisSub-Clause and replace it with the following:““Contract Agreement” means the contract agreement enteredinto by the parties on the Contract Date (as amended, varied,restated, novated or substituted by the Parties in accordance withthe Contract from time to time).”10
Clause & HeadingModification / Amendment/ Insertion/ Deletion 1.1.1.5 “Employer’s Requirements”Delete the definition of “Employer’s Requirements” in its entirety and replace it with thefollowing:““Employer’s Requirements” means each document forming part ofthe Employer’s Requirements as agreed between the Parties, aslisted in the Appendix to Tender, and any additions or modificationsto these Employer’s Requirements in accordance with the Contract.Such documents specify the purpose, scope, and/or design and/orother technical criteria, for the Works.”1.1.1.6 “Schedules”Amend the definition of “Schedules” with the following deletionsand insertion:““Schedules” means the document(s) entitled schedules, completedby the Contractor and submitted with the Letter of Tender agreed between the Parties, as included in the Contract. Such document may include data, lists and schedules of payment and/or prices.“1.1.1.7 “Contractor’s Proposal”Amend the definition of “Contractor’s Proposal” with the followingdeletion and insertion:““Contractor’s Proposal” means the document entitled proposal,which the Contractor submitted with the Letter of Tender to theEmployer, as included in the Contract. Such document may include the Contractor’s preliminary design.”1.1.1.8 “Tender”Amend the definition of “Tender” with the following insertion:““Tender” means the Letter of Tender and all other documents whichthe Contractor submitted with the Letter of Tender and any agreed additions or modifications thereto, as included in the Contract.”1.1.1.9 “Appendix to Contract”Insert the following definition of “Appendix to Contract” in thisSub-Clause:11
Clause & HeadingModification / Amendment/ Insertion/ Deletion““Appendix to Contract” means the completed pages entitled appendix to contract attached to the Contract Agreement.”1.1.1.10 “Appendix to Tender”Amend the definition of “Appendix to Tender” with the following insertion at the end of this Sub-Clause:““Appendix to Tender” means the completed pages entitled appendix to tender which are appended to and form part of the Letter of Tender. If there is an “Appendix to Contract” agreed between the Parties and attached to the Contract Agreement, the expression “Appendix to Tender” means the Appendix to Contract.”1.1.1.12 “Schedule of Prices”Insert the following definition of “Schedule of Prices” in this Sub-Clause:““Schedule of Prices” means the document so named which is comprised in the Schedules, which document sets forth a detailedbreakdown of the accepted Contract Amount.”1.1.21.1.2.6 “Employer’s Project Manager”Parties and PersonsInsert the following definition of “Employer’s Project Manager” inthis Sub-Clause:““Employer’s Project Manager” means the Employer’s representative so named in the Appendix to Tender or the personappointed by the Employer in his place from time to time, on written notice to the Contractor.”1.1.2.7 “Project Executive”Insert the following definition of “Project Executive” in this Sub-Clause:““Project Executive” means, in respect of each Party, the personreferred to in the Appendix to Tender or any director (or corresponding executive for non-South African entities) of that Party appointed by it in his place from time to time, on written notice to the other Party.”1.1.2.11 “DAB”Delete the definition of “DAB” in this Sub-Clause in its entirety.12
13Clause & HeadingModification / Amendment/ Insertion/ Deletion1.1.2.13 “Guarantor”Insert the following definition of “Guarantor” in this Sub-Clause:““Guarantor” means the entity referred to as such in the Appendixto Contract or such other entity acceptable to the Employer.”1.1.4.1.1.4.3 “Cost” Money andPaymentsAmend the definition of “Cost” with the following insertion at the end of this Sub-Clause:““Cost” means all expenditure reasonably incurred (or to beincurred) by the Contractor, whether on or off the Site, includingoverhead and similar charges, but does not include profit (and in theevent that the Contractor constitutes a joint venture, consortium orother unincorporated grouping of two or more persons (ascontemplated in Sub-Clause 1.14 [Joint Several Liability]), suchexpenditure or similar charges (other than overhead) shall be thelower of that reasonably incurred by the joint venture, consortium orother unincorporated grouping or that reasonably incurred by itsindividual member/s, as the case may be. Whilst overhead recoverywill be permitted at both levels, no duplicated mark-up (whether foroverhead, profit or otherwise) shall be allowed).”1.1.61.1.6.2 “Country” Other DefinitionsAmend the definition of “Country” in this Sub-Clause with thefollowing insertion and deletion:““Country” means the Republic of South Africa country in whichthe Site (or most of it) is located, where the Permanent Works areto be executed.”1.1.6.6 “Performance Security”Amend the definition of “Performance Security” in this Sub-Clausewith the following deletion and insertion:““Performance Security” means the security (or securities, if any)under Sub Clause 4.2 [Performance Security]. has the meaning givento it under Sub-Clause 4.2 [Performance Security and ParentCompany Guarantee].”1.1.6.8 “Unforeseeable”
Clause & HeadingModification / Amendment/ Insertion/ DeletionAmend the definition of “Unforeseeable” with the followinginsertions:““Unforeseeable” means not reasonably foreseeable by an experienced international contractor by the date for submission of the Tender.”1.1.71.1.7.1 “[●] Schedule”1AdditionalDefinitionsInsert the following definition of “[●] Schedule” in this Sub-Clause:““[●] Schedule” means the document so named (if any) which iscomprised in the Schedules, which sets out the terms for [●].”1.1.7.2 “Affiliate”Insert the following definition of “Affiliate” in this Sub-Clause:““Affiliate” means any other entity that directly or indirectly throughone or more intermediaries, controls or is controlled by, or is underthe common control with the Party in question. For the purpose ofthis clause 1.1.7.2 “control” means the beneficial ownership of themajority in number of the issued equity of any entity (or the wholeor majority of the entity’s assets), and/or the right or ability to director otherwise control the entity or the votes attaching to the majorityof the entity’s issued share capital and “controlled” or “undercommon control” shall have a similar meaning.”1.1.7.3 “BEE Schedule”Insert the following definition of “BEE Schedule” in this Sub-Clause:““BEE Schedule” means the document so named (if any) which iscomprised in the Schedules.”1.1.7.4 “Codes and Standards”Insert the following definition of “Codes and Standards” in this Sub-Clause:““Codes and Standards” means those codes and standards referredto and as defined in the Employer’s Requirements.”1.1.7.5 “Cold Commissioning”1NOTE: A determination needs to be made in each instance these Special Conditions are used as towhether this Sub-Clause is to be inserted or not.14
Clause & HeadingModification / Amendment/ Insertion/ DeletionInsert the following definition of “Cold Commissioning” in this Sub-Clause:““Cold Commissioning” means the performance of all tests andadjustments to or in respect of the Plant required for the properoperation thereof without producing product or handling any rawmaterials.”1.1.7.6 “Commissioning Plan Requirements”Insert the following definition of “Commissioning Plan Requirements”in this Sub-Clause:““Commissioning Plan Requirements” means the Employer’scommissioning plan requirements included in the Employer’sRequirements.”1.1.7.7 “Contract Date”Insert the following definition of “Contract Date” in this Sub-Clause:““Contract Date” means the date of issue of the Letter ofAcceptance or the date on which the Contract Agreement is signed by the Party last signing it (unless otherwise provided for in the Letter of Acceptance or the Contract Agreement, as applicable).”1.1.7.8 “Contractor BEE Obligations”Insert the following definition of “Contractor BEE Obligations” inthis Sub-Clause:““Contractor BEE Obligations” means the Contractor’s Broad BasedBlack Empowerment commitments and obligations recorded in theBEE Schedule.”1.1.7.9 “Contractor’s Method Statement”Insert the following definition of “Contractor’s Method Statement”in this Sub-Clause:““Contractor’s Method Statement” means the Method Statementincluded as a Schedule, if any, detailing the arrangements andmethods which the Contractor proposes to adopt for the executionof the Works or any part thereof.”15
16Clause & HeadingModification / Amendment/ Insertion/ Deletion1.1.7.10 “Contractor’s Nominated Account”Insert the following definition of “Contractor’s Nominated Account”in this Sub-Clause:““Contractor’s Nominated Account” means the bank account(s)designated by the Contractor and referred to as such in the Appendixto Tender for Local Currency and Foreign Currency (as applicable), asamended by the Contractor from time to time as required by and inaccordance with the Employers Policies & Procedures.”1.1.7.11 “Daywork Schedule”Insert the following definition of “Daywork Schedule” in this Sub-Clause:““Daywork Schedule” means the document so named which iscomprised in the Schedules.”1.1.7.12 “Dispute” or “dispute”Insert the following definition of “Dispute” or “dispute” in this Sub-Clause:““Dispute” or “dispute” means, for the purpose of Sub-Clause 20.2and the Dispute Avoidance and Resolution Terms & Procedures, adispute (of any kind whatsoever) between the Parties in connectionwith, or arising out of, the Contract or the execution of the Worksincluding any dispute as to any certificate, determination,instruction, opinion or valuation of the Engineer and/or any disputeas to the conclusion or existence of the Contract, the carrying intoeffect of the Contract, the interpretation or application of theprovisions of the Contract, the Parties’ respective rights and/orobligations in connection with, or arising out of, the Contract and/orthe validity, enforceability, rectification, termination or cancellation,whether in whole or in part, of the Contract.”1.1.7.13 “Dispute Resolution Terms & Procedures”Insert the following definition of “Dispute Resolution Terms &Procedures” in this Sub-Clause:““Dispute Resolution Terms & Procedures” means the terms andprocedures set forth in Appendix PC 5.”1.1.7.14 “Employer Policies and Procedures”
Clause & HeadingModification / Amendment/ Insertion/ DeletionInsert the following definition of “Employer Policies and Procedures” in this Sub-Clause:““Employer Policies and Procedures” means collectively and asapplicable:(a) the Employer’s health, safety & risk managementrequirements, rules, guidelines and/or procedures and theEmployer’s site works requirements, rules, guidelines and/orprocedures (including in respect of environment, security,site services and facilities, access to Site, use of local labourand industrial relations at Site) referred to or provided for inthe Employer’s Site Requirements Schedule as amended, orotherwise as prescribed by the Employer from time to timefor the purpose of the Project Works; and(b) such other systems, rules, guidelines and/or procedures,including in respect of invoicing (as detailed in the EmployerInvoice Procedure), the import and clearing of Plant and/orMaterials and/or in connection with project management andinformation exchange systems and procedures for the ProjectWorks, as provided for in the Contract and amended, orotherwise as prescribed by the Employer from time to time.”1.1.7.15 “Employer Policies and Procedures Assumptions Schedule”Insert the following definition of “Employer Policies and ProceduresAssumptions Schedule” in this Sub-Clause:““Employer Policies and Procedures Assumptions Schedule” means the document so named which is comprised in the Schedules.”1.1.7.16 “Employer Site Data Schedule”Insert the following definition of “Employer Site Data Schedule” in this Sub-Clause:““Employer’s Site Data Schedule” means the document so namedwhich is comprised in the Schedules.”1.1.7.17 “Employer’s Site Requirements Schedule”Insert the following definition of “Employer’s Site Requirements Schedule” in this Sub-Clause:17
Clause & HeadingModification / Amendment/ Insertion/ Deletion““Employer’s Site Requirements Schedule” means the document sonamed which is comprised in the Schedules.”1.1.7.18 “Insurance Schedule”Insert the following definition of “Insurance Schedule” in this Sub-Clause:““Insurance Schedule” means the document so named which is comprised in the Schedules.”1.1.7.19 “Invoice Procedure Schedule”Insert the following definition of “Invoice Procedure Schedule” in this Sub-Clause:““Invoice Procedure Schedule” means the document so namedwhich is comprised in the Schedules.”1.1.7.20 “Latent Defect”Insert the following definition of “Latent Defect” in this Sub-Clause:““Latent Defect” means a defect in the Works or a Section (fair wear and tear excepted) which is attributable to:(a)the design of the Works, other than a part of the design forwhich the Employer is responsible (if any);(b)Plant, Materials or workmanship not being in accordance with the Contract;(c)improper operation or maintenance which was attributableto matters for which the Contractor is responsible (under Sub-Clauses 5.5 to 5.7 or otherwise); and/or(d)failure by the Contractor to comply with any other obligation under the Contract,and which was not, and would not have been discovered on reasonable inspection by the Employer during the Latent Defects Notification Period (without requiring any inspection not ordinarilycarried out by the Employer during that period).”Clause & HeadingModification / Amendment/ Insertion/ DeletionInsert the following definition of “Latent Defects NotificationPeriod” in this Sub-Clause:
““Latent Defects Notification Period” means the period for notifyingLatent Defects in the Works or a Section (as the case may be) under Sub-Clause 11.12 [Latent Defects], as stated in the Appendix to Tender.”1.1.7.22 “LIBOR”Insert the following definition of “LIBOR” in this Sub-Clause:““LIBOR” means the 6 month London Interbank Offered Rate quotedunder the caption “Money Rates” in The Wall Street Journal for the applicable Foreign Currency or if no rate is quoted for the Foreign Currency in question then the rate for United States Dollars, and if no such rate so appears in The Wall Street Journal then the rate as quoted by the Reuters Monitor Money Rates Service or such service as may replace the Reuters Monitor Money Rates Service) on the due date for the payment in question, adjusted mutatis mutandis every 6 months thereafter (and as certified, in the event of any dispute, by any manager employed in the foreign exchange department of FirstRand Bank Limited, whose appointment it shall not be necessary to prove).”1.1.7.23 “Mechanical Completion”Insert the following definition of “Mechanical Completion” in thisSub-Clause:““Mechanical Completion” means the state of completion of thePermanent Works when all of the Plant has been assembled, erectedand installed (tie-ins complete) in accordance with the Contract andwhere all of the Plant is ready for the commencement of ColdCommissioning, but for electrical and/or control works and otherworks which fall outside the scope of the Works and but for minordefects which would not affect the safe operation of the Plant for thepurposes of Cold Commissioning (and “Mechanically Complete” or“Mechanically Completed” shall have an analogous meaning).”1.1.7.24 “Other Project Contractors”Insert the following definition of “Other Project Contractors” in thisSub-Clause:““Other Project Contractors” means the various contractors, consultants, tradespersons or other persons engaged in the Project19
20Clause & HeadingModification / Amendment/ Insertion/ DeletionWorks from time to time other than the Contractor and any Subcontractor.”1.1.7.25 “Parent Company Guarantee”Insert the following definition of “Parent Company Guarantee” in this Sub-Clause:““Parent Company Guarantee” means the Parent Company Guarantee issued by the Guarantor, in the form of Appendix PC 3.”1.1.7.26 “Performance and Acceptance Testing Procedure Schedule”Insert the following definition of “Performance and Acceptance Testing Procedure Schedule” in this Sub-Clause:““Performance and Acceptance Testing Procedure Schedule” means the document so named which is comprised in the Schedules.”1.1.7.27 “Performance Guarantees”Insert the following definition of “Performance Guarantees” in this Sub-Clause:““Performance Guarantees” means:1.1.7.27.1 the guarantees for the Plant listed in the Performance and Acceptance Testing Procedure Schedule that must beachieved during the Tests after Completion; and1.1.7.27.2 all other Plant performance guarantees referred toand/or provided for in the Contract.”1.1.7.28 “Cement Factory”Insert the following definition of “Cement Factory” in this Sub-Clause:““Cement Factory” means the [existing] cement factory located at [Pretoria West], in the [Tswane Metropolitan District], [Gauteng Province], South Africa.”1.1.7.29 “Prime”Insert the following definition of “Prime” in this Sub-Clause:
21Clause & HeadingModification / Amendment/ Insertion/ Deletion““Prime” means the publicly quoted prime rate of interest(calculated on a 365 day year) charged by FirstRand Bank Limited,from time to time, as certified, in the event of any dispute, by anymanager of such bank, whose appointment it shall not be necessaryto prove.”1.1.7.30 “Progress Report”Insert the following definition of “Progress Report” in this Sub-Clause:““Progress Report” means a Contractor’s progress reportcontemplated in Sub-Clause 4.21.”1.1.7.31 “Progress Reporting Requirements”Insert the following definition of “Progress Reporting Requirements”in this Sub-Clause:““Progress Reporting Requirements” means the progress reportingrequirements set out in Appendix PC 4.”1.1.7.32 “Project”Insert the following definition of “Project” in this Sub-Clause:““Project” means the [extensions to the cement productionfacilities] at the Cement Factory of which the Works form a part.”1.1.7.33 “Project Works”Insert the following definition of “Project Works” in this Sub-Clause:““Project Works” means all of the engineering, construction andancillary and related works comprising the Project.”1.1.7.34 “Quality Assurance Requirements”Insert the following definition of “Quality Assurance Requirements”in this Sub-Clause:““Quality Assurance Requirements” means the Employer’s qualityassurance requirements as included in the Employer’s Requirementsand as otherwise required under the Contract.”1.1.7.35 “Recognised Good Practice”
22Clause & HeadingModification / Amendment/ Insertion/ DeletionInsert the following definition of “Recognised Good Practice” in thisSub-Clause:““Recognised Good Practice” means the skill, care and diligence of acontractor seeking in good faith to perform his contractualobligations and in so doing and in the general conduct of hisundertakings, observing and/or exercising the degree of skill, care,diligence, prudence and foresight which would reasonably andordinarily be exercised by a skilled and experienced internationalcontractor in relation to his practices, methods, techniques,specifications and/or standards (whether in respect of design,engineering, construction, performance, safety, workmanship,equipment, components or otherwise) engaged in the same type ofundertaking under the same or similar circumstances and conditionsto the Works.”1.1.7.36 “Spare Parts Option Schedule”Insert the following definition of “Spare Parts Option Schedule” inthis Sub-Clause:““Spare Parts Option Schedule” means the document so namedwhich is comprised in the Schedules which sets out the terms of theoption for the purchase of spare parts for the Permanent Works asprovided for in Clause 21.”1.1.7.37 “Stipulated Interest Rate”Insert the following definition of “Stipulated Interest Rate” in thisSub-Clause:““Stipulated Interest Rate” means Prime in respect of payments to bemade in Local Currency and LIBOR plus 2% (two percent) in respectof payments to be made in Foreign Currency.”1.1.7.38 “Stipulated Profit Percentage”Insert the following definition of “Stipulated Profit Percentage” inthis Sub-Clause:““Stipulated Profit Percentage” means the percentage so referred toin the Appendix to Tender.”1.1.7.39 [“Taxes”]Insert the following definition of “Taxes” in this Sub-Clause:
Clause & HeadingModification / Amendment/ Insertion/ Deletion“[“Taxes” means any present or future tax (including any stampduty, income, sales, use, value added, consumption or goods andservices tax), levy, impost, duty, charge, fee, deduction orwithholding of whatever nature, including any such income tax,value added tax, sales tax, stamp tax, [customs duty, import duty,]export duty, withholding tax, excise tax, property tax, registrationfee or license, water tax, sanitary tax, lighting tax or environmental,energy or fuel tax, which is levied, collected, assessed in anyjurisdiction at any time, and any interest, penalty, charge, fee orother amount imposed, collected, withheld, assessed or made on orin respect of any of the above, but does not include [import andcustoms duties payable in the Country in the ordinary course on theimported components of the Plant and] VAT (which [import andcustoms duties and] VAT will be for the account of The Employer).]”1.1.7.40 “Termination Profit Percentage”Insert the following definition of “Termination Profit Percentage” inthis Sub-Clause:““Termination Profit Percentage” means the percentage so referredto in the Appendix to Tender.”1.1.7.41 “Variation Pricing Methodology”Insert the following definition of “Variation Pricing Methodology” inthis Sub-Clause:““Variation Pricing Methodology” means the variation pricing methodology detailed in Appendix PC 5.”1.1.7.42 “VAT”Insert the following definition of “VAT” in this Sub-Clause:““VAT” means Value Added Tax as provided for in the South African Value Added Tax Act 89 of 1991.”1.2InterpretationInsert the following paragraphs at the end of this Sub-Clause:“Any reference to a person includes any individual, body corporate, unincorporated association, firm, company, corporation, government, state or agency of a state or any trust, association or partnership (whether or not having separate legal personality) or two or more of the foregoing or other entity recognised under any law as having a separate legal existence or personality.23
Clause & HeadingModification / Amendment/ Insertion/ Deletion[Appendices designated “ATC” are appendices to the Contract Agreement. Appendices designated “PC” are appendices to these Particular Conditions.[Any word or expression defined in any clause in these Particular Conditions shall, unless the application of the word or expressionis specifically limited to the clause in question, bear the meaning ascribed to the word or expression throughout these Particular Conditions].If any provision in a definition is a substantive provision conferring rights or imposing obligations on a party, notwithstanding that it appears only in an interpretation clause, effect shall be given to it as if it were a substantive provision of the Contract.References to a statutory provision include any subordinate legislation (including regulations) made from time to time under that provision and references to a statutory provision include that provision as from time to time modified or re-enacted as far as suchmodification or re-enactment applies, or is capable of applying, to the Contract.In the event that the day for payment of any amount due by the Employer in terms of the Contract should fall on a Saturday, Sundayor official public holiday in the Country, the relevant day for payment shall be the next ordinary business day in the Country.Save to the extent expressly provided for, all references to dates and times are to dates and times in the Country.Save to the extent expressly provided for, no provision of theContract constitutes a stipulation for the benefit of any person who is not a party to the Contract.Where figures are referred to in numerals and in words, if thereis any conflict between the two, the words shall prevail.Drawings, reports and/or other data and information issued to the Contractor by the Employer and/or the Engineer (other than drawings, reports and/or other data and information forming part of24
Clause & HeadingModification / Amendment/ Insertion/ Deletionthe Employer’s Requirements) shall, unless specifically otherwise notified in writing by the Engineer, be for information purposes only.The use of the word “including” followed by a specific example/sshall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example/s.If any provision of the Contract, which is not material to its efficacy as a whole, is rendered void, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and the Parties shall endeavour in good faith to agree an alternative provision to the void, illegal or unenforceable provision.Termination of the Contract for any cause shall not release a Partyfrom any liability which at the time of termination has already accrued to such Party or which thereafter may accrue in respect ofany act or omission prior to such termination. Similarly, the termination of the Contract shall not release a Party from any obligation which, by its nature, is intended to survive such termination.The use of any expression in this Contract covering a process available under South African law (for example liquidation) shall, if any of the Parties to this Contract is subject to the law of any otherjurisdiction, be construed as including any equivalent or analogous proceedings under the law of such other jurisdiction.Each of the Parties acknowledges that it has been free to secure independent legal and other advice as to the nature and effect of all of the provisions of the Contract and that they have either taken suchindependent legal and other advice or dispensed with the necessity ofdoing so. Further, each of the Parties acknowledges that all of the provisions of this Agreement and the restrictions therein contained are fair and reasonable in all the circumstances and are part of the overall intention of the Parties in connection with the Contract.The terms of this Contract shall not, in the event of any ambiguity, be interpreted or construed to the disadvantage of a Party because25
Clause & HeadingModification / Amendment/ Insertion/ Deletionthat Party was responsible for or participated in the preparation of this Contract (or anypart of it).References to the “Contract” shall be construed as a reference to the Contract as amended, varied, restated, novated or substituted by the Parties in accordance with the Contract from time to time.The Contract contains the entire agreement between the Parties in regard to the subject matter thereof. No matter, whether in writing, oral communication or implied, not expressly included or recorded in the Contract shall have any meaning or effect in the Contract.Save to the extent expressly otherwise provided for in the Contract:(a)no variation, amendment, or consensual cancellation of theContract or any provision or term thereof (including thisclause) shall be binding or have any force or effect unlessreduced to writing and signed by or on behalf of the Parties(by duly authorised representatives). Without derogatingfrom the aforegoing, no agreement or purported agreementreached at any project review or other meeting,notwithstanding that it may be contained in any minutesigned by or on behalf of the Parties, shall constitute anamendment to the Contract unless and until incorporated ina formal addendum to the Contract signed by or on behalf ofthe Parties (by duly authorised representatives). Theprovisions of this clause do not, however, limit or derogatefrom the provisions of Clause 13 [of the General Conditions];(b)no waiver or relaxation of any of the provisions or terms ofthe Contract (or any agreement or other document issued orexecuted pursuant to or in terms of the Contract) shalloperate as an estoppel against a party in respect of any of itsrights in terms of the Contract. No failure by a party toenforce any provision of the Contract shall constitute a waiverof such provisions or affect in any way such party’s rights torequire the performance of such provision at any time in thefuture, nor shall a waiver of a subsequent breach nullify theeffectiveness of the provision itself.”1.4Delete the first paragraph of this Sub-Clause in its entirety and replaceLaw and Languageit with the following:“The Contract shall be governed by and interpreted in accordancewith the law of the Republic of South Africa (both in respect of26
Clause & HeadingModification / Amendment/ Insertion/ Deletionsubstantive and procedural law and notwithstanding any conflict oflaw principles that may apply).”1.5Delete the text of this Sub-Clause in its entirety and replace it withthe following:Priority of Documents“For the purposes of interpretation, the priority of documentsforming the Contract shall be as stated in the Letter of Acceptance.”Delete the text of this Sub-Clause in its entirety and replace it withthe following:“Neither the Employer nor the Contractor shall assign the whole orany part of the Contract or cede or delegate any right or obligationin or under the Contract without the prior written consent of theother. Any purported assignment, cession or delegation withoutprior written consent shall be null and void.”Amend the marginal heading to “Errors in the Employer’sRequirements andincluding Codes and Standards”.Insert the following paragraph before the first paragraph of thisSub-Clause:“If the Contractor discovers any error, omission, ambiguity ordiscrepancy in any of the Employer’s Requirements and otherdocuments comprising the Contract, the Contractor mustimmediately notify the Engineer in writing of that error, omission,ambiguity or discrepancy. The Engineer shall issue any necessaryclarification or instruction in writing, which clarification and/orinstruction the Contractor must follow.”The second paragraph of this Sub-Clause, beginning with “If theContractor suffers delay”, is amended with the following insertionsand deletion:“If the Contractor suffers delay and/or incurs Costs as a result of anerror in the Employer’s Requirements, and an experiencedinternational contractor exercising due care would not havediscovered the error when scrutinising the Employer’s Requirementsprior to the Contract Date underSub Clause5.1 [General DesignObligations], the Contractor shall give notice to the Engineer andshall be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to:”.Insert the following paragraphs at the end of this Sub-Clause:1.7Assignment1.9Errors in the Employer’s Requirements27
Clause & HeadingModification / Amendment/ Insertion/ Deletion“The Contractor shall be deemed, prior to the Contract Date, to have satisfied himself as to the Codes and Standards and their application to the Works. If the Contractor discovers any error, omission, ambiguity or discrepancy in any of the Codes and Standards, the Contractor must immediately notify the Engineer in writing of that error, omission, ambiguity or discrepancy. The Engineer shall issue any necessary clarification or instruction in writing, which clarification and/or instruction the Contractor must follow. The Engineer, in giving theclarification or instruction, is not required to determine whether or not there is an error, omission, ambiguity or discrepancy and the Employer shall have no liability, and the Contractor shall have no entitlement to claim any extension of time and/or payment arising out of any such error, omission, ambiguity or discrepancy or any clarification or instruction issued by the Engineer in regard thereto.Compliance with the Codes and Standards shall not relieve the Contractor of his obligations under the Contract and no clarificationor instruction given by the Engineer will lessen or otherwise affect the Contractor's obligations under the Contract.”1.10Employer’s use of Contractor’s DocumentsInsert the following paragraphs at the end of this Sub-Clause:“The Contractor shall procure that each Subcontractor shallexecute all and any further documents and take all and any otheractions as may be required in order to give effect to this license.The licence provided for in this Sub-Clause 1.10 does not include theright for the Employer (whether directly or through any futuresupplier) to manufacture the Contractor’s or his Subcontractor’sproprietary parts, it being recorded that this Contract does not,notwithstanding anything to the contrary, give rise to any right orlicence to do so in favour of the Employer or any third party.”28
29Clause & HeadingModification / Amendment/ Insertion/ Deletion1.12Confidential DetailsInsert the following paragraphs at the end of this Sub-Clause:“The Contractor shall not disclose or make any information regarding the Contract or other information concerning the Projectavailable to any third party including any news medium or use any other means of publishing or disseminating such information. This undertaking does not, however, apply to information which at the time of disclosure or thereafter, without default on the part of the Contractor, enters the public domain or information which was already in the possession of the Contractor at the time of disclosure (evidenced by written records in existence at that time).If the Contractor is uncertain about whether any information is tobe regarded as confidential, it shall be regarded as such until written clarification is obtained from the Engineer.In the event that the Contractor is, at any time, required by law to disclose any information which is required to be kept confidential, the Contractor, to the extent permitted by law prior to disclosure, notifies the Employer so that an appropriate protection order and/or any other action can be taken if possible, prior to any disclosure. In the event that such protective order is not, or cannot, be obtained, then the Contractor may disclose that portion of the information which it is required to disclose by law and shall use reasonable efforts to obtain assurances that confidential treatment will be afforded to the information so disclosed.The taking of images (whether photographs, video footage or otherwise) of the Project Works or any portion thereof, in the course of construction and after completion, requires the prior written authorisation of the Engineer; save where required for the sole purpose of complying with the Progress Reporting Requirements. All rights in and to all such images shall vest exclusively in the Employer.The Contractor shall procure that each and every subcontract contains the undertakings in this Sub-Clause 1.12 and the Contractor shall use all reasonable endeavours to enforce the same.”Clause 2The Employer
Clause & HeadingModification / Amendment/ Insertion/ Deletion2.1Right of Access tothe Site2.2Permits, Licenses orApprovals2.4Employer’s FinancialArrangements The first paragraph of this Sub-Clause is amended with thefollowing insertion and deletion:“The Employer shall give the Contractor right of access to, andpossession of, all parts of the Site within the time (or times) statedin the Appendix to Tender. The right and possession many not beexclusive to the Contractor. If, under the Contract, the Employer isrequired to give (to the Contractor) possession of any foundation,structure, plant or means of access, the Employer shall do so in thetime and manner stated in the Employer’s Requirements.However, the Employer may withhold any such right or possessionuntil the Performance Security has and Parent Company Guaranteehave been received.”Delete sub-paragraph (a) of this Sub-Clause in its entirety andinsert the words “[NOT USED]” in its place.Delete this Sub-Clause 2.4 in its entirety and insert the words“[NOT USED]” in its place.2.5Amend the marginal heading of this Sub-Clause to read “Employer’sEmployer’s ClaimsClaims and Set Off”.Delete the text of this Sub-Clause in its entirety and replace it withthe following:“If the Employer considers himself to be entitled to any paymentunder any Clause of these Conditions or otherwise in connectionwith the Contract, the Employer or the Engineer shall give noticeand particulars to the Contractor. However, notice is not requiredfor payments due under Sub-Clause 4.19 [Electricity, Water andGas], under Sub-Clause 4.20 [Employer’s Equipment and Free-IssueMaterial] or for other services requested by the Contractor.The particulars shall specify the Clause or other basis of the claim,and shall include substantiation of the amount to which theEmployer considers itself to be entitled in connection with theContract.The Employer may set off such amounts against moneys due to theContractor (or to become due) but only to the extent that suchamounts are liquid and payable to the Employer by the Contractorunder any Clause of these Conditions or otherwise in connectionwith the Contract. This amount may, without limiting the Employer’sother rights to recover amounts due to it from the Contractor30
Clause & HeadingModification / Amendment/ Insertion/ Deletion(including by having recourse to the Performance Security andRetention Money), be included as a deduction in the Contract Priceand Payment Certificates.”Clause 3The EngineerThe text of this Sub-Clause is amended as follows:The words “Particular Conditions” in the third paragraph of thisSub-Clause are deleted and replaced with the words “Appendix toTender”.The fourth paragraph (commencing with the word “However”) ofthis Sub-Clause is deleted in its entirety.This text of this Sub-Clause is amended with the following insertion:“If the Employer intends to replace the Engineer, the Employer shall,not less than 42 21 days before the intended date of replacement,give notice to the Contractor of the name, address and relevantexperience of the intended replacement Engineer. The Employer shallnot replace the Engineer with a person against whom the Contractorraises reasonable objection within 7 days of receipt of the Employer’snotice by notice to the Employer, with supporting particulars.”3.1Engineer’s Dutiesand Authority3.4Replacement of theEngineerClause 4The ContractorThe text of this Sub-Clause is amended as follows:The following new sentence is inserted at the end of the lastparagraph of this Sub-Clause:“If there is Contractor’s Method Statement comprised in theSchedulesthen no significant alteration to the arrangements and methodsstatedtherein shall be made without this having previously been approvedbythe Engineer.”The following new paragraphs are inserted at the end of this Sub-Clause:314.1Contractor’s GeneralObligations
Clause & HeadingModification / Amendment/ Insertion/ Deletion“The Contractor shall take due account of any comments made by the Engineer and theEmployer on the Contractor’s Documents. However, neither the Employer nor the Engineer isbound to review or comment upon the Contractor’s Documents or to check the Contractor’sDocuments for any errors, omissions, ambiguities or discrepancies or compliance with therequirements of the Contract. The Employer’s or the Engineer’s receipt of, or review of, orcomment on, the Contractor’s Documents will not relieve the Contractor from responsibilityfor the Contractor's errors or omissions or departure from the requirements of the Contract.The Contractor:(a)shall be deemed to have satisfied itself, prior to the ContractDate, as to the completeness and sufficiency of allinformation and drawings provided to him as at the ContractDate;(b)warrants that he is fully experienced, properly qualified,registered, licensed, equipped, organized and financed toperform the Works in terms of the Contract;(c)shall use a sufficient number of appropriately qualifiedprofessionals, tradesmen, semi-skilled workers or otherindividuals who are suitably skilled, competent andexperienced in their respective trades or occupations andprovides all necessary supervision to plan, arrange, direct,manage and inspect the Works;(d)shall keep the Works free of all liens and other encumbrancesat all times. The Contractor, vis-a-vis the Employer, waives alland any liens which he may from time to time have, orbecome entitled to over the Works and any part thereof andprocures that his Subcontractors similarly, vis-a-vis theEmployer, waive all liens they may have or become entitled toover the Works from time to time; and(e)shall maintain all records and accounts pertaining to theWorks, during the execution thereof and for a period of 5(five) years after Completion and ensures that hisSubcontractors do likewise. The Employer, its authorisedrepresentatives and agents (including the Engineer) have theright to examine, audit, copy and inspect the said records and32
4.2PerformanceSecurityClause & HeadingModification / Amendment/ Insertion/ Deletionaccounts at all reasonable times during the execution of the Works and for the said 5 (five) year period.”Amend the marginal heading of this Sub-Clause to read “Performance Securityand Parent Company Guarantee”.The text of the first paragraph of this Sub-clause is amended with thefollowing deletion and insertion:“The Contractor shall obtain (at his cost) a Performance Security for proper performance anirrevocable, on demand bank guarantee (the “Performance Security”), in the amount andcurrencies stated in the Appendix to Tender. If an amount is not stated in the Appendix toTender, this Sub-Clause shall not apply.”The text of this second paragraph is amended with the following insertions and deletion:“The Contractor shall deliver the Performance Security to the Employer within 28 days afterreceiving the Letter of Acceptance, and shall send a copy to the Engineer. The PerformanceSecurity shall be issued by an entity and from within [a country (or other jurisdiction)]approved by the Employer, and shall be in the form of Appendix PC1 annexed to theParticular Conditions or in another form approved by the Employer.”At the end of the third paragraph of this Sub-Clause, as a new sentence, insert the words“If the Contractor fails to do so, the Employer may call the Performance Security in full andretain the proceeds as a cash retention at any time after such date.”Delete the fifth paragraph of this Sub-Clause in its entirety and replace it with thefollowing:“If it is determined that the Employer has made a claim under the Performance Security thatit was not entitled to make, the Employer shall pay interest to the Contractor on the amountto be refunded to the Contractor, calculated at the Stipulated Interest Rate from the date onwhich the amount was paid to the Employer to the date on which it is refunded to theContractor.”Insert the following paragraph at the end of this Sub-Clause:“Unless already executed and delivered to the Employer, the Contractor must also deliverto the Employer, within 28 days after receiving the Letter of Acceptance, a Parent CompanyGuarantee33
Clause & HeadingModification / Amendment/ Insertion/ Deletionduly executed by the Guarantor in the form of the Parent Company Guarantee set out in Appendix PC 3.”Insert the following paragraphs at the end of this Sub-Clause:“The Contractor shall provide the Employer with un-priced copies ofall subcontracts that he enters into.The Contractor must also ensure (save to the extent actuallyprevented from doing so by Law), in each subcontract that he entersinto, that the Contractor’s rights and obligations under thesubcontract are capable of being freely ceded and delegated in full,without limitation and/or further consent being required from theContractor, to the Employer or any other person nominated inwriting by the Engineer in the circumstances contemplated in Sub-Clause 15 [Termination by Employer] and Sub-Clause 17.7[Employer’s Step-in Rights and Additional Remedies].If the Contractor does not make payment of any amount due by himto a Subcontractor (“the Subcontractor debt”) and the Employerconsiders that such non-payment may adversely impact the progressof the Works or generally the obligations of the Contractor under theContract, the Employer shall be entitled to require the Contractor topromptly furnish written proof of payment of the Subcontractor debtor, as applicable, justification for the non-payment thereof. In theabsence of proof or justification to the reasonable satisfaction of theEngineer, the Employer is entitled, but not obliged, to pay theSubcontractor debt directly to the Subcontractor concerned in whichevent such payment is, for all purposes under the Contract, regardedas a payment made on behalf of the Contractor and at the request ofand with the approval and consent of the Contractor, in reduction ofthe Contract Price.”Delete the text of this Sub-Clause in its entirety and replace it withthe following:“The Contractor acknowledges that the Works are being designedand constructed for the purpose of interfacing with the works ofothers within a relatively confined site and that the Employer hasentered into or will be entering into agreements with Other ProjectContractors for the carrying out of works in connection with theProject which, inter alia, involve works at the Site.During the progress of the Works, it may be necessary for OtherProject Contractors, their employees and the Employer’s Personnel344.4Subcontractors4.6Co-operation
Clause & HeadingModification / Amendment/ Insertion/ Deletionto work in or about, or pass materials and equipment through the Site.The Contractor shall be responsible only for his constructionactivities on the Site but is considered to have allowed for delays anddisruptions to the Works which an experienced internationalcontractor exercising due care would have anticipated as a result ofthe work or other activities (including concurrent activities) of OtherProject Contractors in a project of the nature of the Project. TheContractor shall not, however, be considered to have allowed fordelays and disruptions resulting from the misconduct or negligenceof the Employer, the Engineer or Other Project Contractors.The Contractor shall as specified in the Contract or as instructed bythe Engineer:(a) co-operate with Other Project Contractors and theEmployer’s Personnel and the personnel of any legallyconstituted authority;(b) integrate and co-ordinate the programme and the Workswith the work of Other Project Contractors in such a waythat no unreasonable interference with, or disruption, delayor hindrance to, the work of such Other Project Contractorsis caused;(c)give Other Project Contractors and the Employer’s Personnelaccess to the Site and otherwise permit Other ProjectContractors and the Employer’s Personnel to carry out theirwork (the Contractor acknowledging that services for thesepersonnel and Other Project Contractors may include the useof the Contractor’s Equipment, Temporary Works or accessarrangements which are the responsibility of the Contractor).Any such instruction by the Engineer shall constitute a Variation tothe extent that it causes the Contractor to incur Unforeseeable Cost.Where the Works adjoin the work of the Employer or Other ProjectContractors the Contractor shall confer with the Engineer and shall,as required by the Contract or as instructed by the Engineer, arrangethe Works such that there is no discrepancy when the whole of theProject Works is completed. Any such instruction by the Engineershall likewise constitute a Variation to the extent that it causes theContractor to incur Unforeseeable Cost.35
Clause & HeadingModification / Amendment/ Insertion/ DeletionIf any part of the Works depends for its proper execution or result upon the work of the Employer or Other Project Contractors, the Contractor shall promptly report in writing to theEngineer any defects therein, or delays in the performance thereof that interfere with the proper execution of the Contractor’s Works. Copies of drawings, specifications and other information relating to Other Project Contractors' contracts will be furnished to the Contractor on request, for his information in this regard.The Contractor shall provide all drawings and other information required for providing suitable access for the Plant and any necessary equipment to the place on Site where the Plant is to be erected and for making necessary installations or connections to the Plant where the Works adjoin the works of Other Project Contractors (whether such installations and/or connections are to be made by the Contractor or by other persons). Without derogating from the aforegoing if, under the Contract, the Employer is required to give to the Contractor possession of any foundation, structure, plant or means of access in accordance with the Contractor’s Documents, the Contractor shall submit such documents to the Engineer in the time and manner required under the Contract.”4.7Setting OutThe second paragraph of this Sub-Clause is amended with thefollowing insertion:“The Employer shall be responsible for any errors in these specified ornotified items of reference, but the Contractor shall use all reasonableefforts to verify their accuracy before they are used.”The third paragraph of this Sub-Clause is amended is amendedwith the following insertion:“If the Contractor suffers delay and/or incurs Costs from executingwork which was necessitated by an error in these items of reference,and an experienced international contractor could not reasonablyhave discovered such error and avoided this delay and/or Cost, theContractor shall give notice to the Engineer and shall be entitledsubject to Sub-Clause 20.1 [Contractor’s Claim] to:”36
Clause & HeadingModification / Amendment/ Insertion/ Deletion4.8Amend the marginal heading of this Sub-Clause to read as follows:Safety Procedures“Safety ProceduresEmployer Policies and Procedure andAdjustments for Changes therein” .2Delete the text of this Sub-Clause in its entirety and replace it withthe following:“The Contractor, in and about the performance of the Works, shallobserve and comply with the Employer Policies and Procedures. Without limitation, the Contractor shall:(a)provide fencing, lighting, guarding and watching of theWorks until completion and taking over under Clause 10[Employer’s Taking Over]; and(b) provide any Temporary Works (including roadways,footways, guards and fences) which may be necessary,because of the execution of the Works, for the use andprotection of the public and owners and occupiers ofadjacent land.Having regard to the multiple contract approach envisaged for the Project [and the fact that that this is one of the first contracts to beplaced,] not all Employer Policies and Procedures were finalised as at the Base Date and the Employer generally requires flexibility in relation to the Employer Policies and Procedures.In arriving at the Accepted Contract Amount the Contractor, to the extent that the Employer Policies and Procedures were not prescribed at the Base Date, estimated his Cost in relation thereto on the basis that such requirements, rules, guidelines and/or procedures shall, where applicable, incorporate compliance with theLaws of the Country and best practice. The Contractor’s relevant assumptions and qualifications in this regard are detailed in the Employer Policies and Procedures Assumptions Schedule.The Contract Price shall be adjusted to take account of any increaseor decrease in Cost resulting from a change in the Employer Policiesand Procedures (including the introduction of new EmployerPolicies and Procedures), made after the Base Date, which affect the Contractor in the performance of obligations under the Contract.2NOTE: As this Sub-Clause is well defined there may be no need for an Employer Policies andProcedures Assumptions Schedule.37
Clause & HeadingModification / Amendment/ Insertion/ DeletionIf the Contractor suffers (or will suffer) delay and/or incurs (or will incur) additional Cost as a result of these changes in the Employer Policies and Procedures, made after the Base Date, the Contractor shall give notice to the Engineer and shall be entitled subject to Sub-Clause 20.1 [Contractor's claims] to:(i) an extension of time for any such delay, if completion is orwill be delayed, under Sub-Clause 8.4 [Extension of Time forCompletion]; and(ii)payment of any such Cost, which shall be included in theContract Price.After receiving this notice, the Engineer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine these matters including whether and (if so) to what extent the changes areprovided for under clause 13.7 [Adjustments for Changes in Legislation] (in which event the Contractor’s entitlement shall be limited to that provided for in 13.7 [Adjustments for Changes in Legislation]) or in the Employer Policies and ProceduresAssumptions Schedule (to which extent the Contractor shall not beentitled to any extension or payment).”4.9Delete the text of this Sub-Clause in its entirety and replace it with theQuality Assurancefollowing:“The Contractor shall, and shall procure that each Subcontractorshall, at all times from the Commencement Date to the date of issueof the Performance Certificate, implement a quality assurancesystem which conforms to the Quality Assurance Requirements. TheEngineer shall be entitled to audit any aspect of the system.Unless attached to the Contract and reflected as having beenapproved by the Engineer, the Contractor shall, within 28 days afterreceiving the Letter of Acceptance, submit to the Engineer for hisapproval his quality control plan. The quality control plan shall:(a)conform and comply with the Quality Assurance Requirements;(b)unless attached to the Contract as aforesaid, be submitted insuch form as the Engineer may reasonably require and untilapproved by the Engineer shall be amended and re-submitted at the expense of the Contractor until it satisfiesthe requirements of the Engineer; and38
4.10Site DataClause & HeadingModification / Amendment/ Insertion/ Deletion(c) be amended, updated and re-submitted for the approval of the Engineer as necessary andwhen required by the Engineer.Details of all procedures and compliance documents shall besubmitted to the Engineer for information before each design andexecution stage is commenced. When any document of a technicalnature is issued to the Engineer, evidence of the prior approval bythe Contractor itself shall be apparent from the document itself.Compliance with the quality assurance system and the qualitycontrol plan shall not relieve the Contractor of any responsibility,undertaking warranty or other obligation under the Contract.”Delete the first paragraph of this Sub-Clause in its entirety and replace it withthe following:“The Employer is responsible for the accuracy, but not the sufficiency, of the Site data (beingthe data concerning the Site detailed in the Employer Site Data Schedule). The Employer’sresponsibility does not extend to information and/or drawings in the Site data not relied on bythe Contractor for the purpose of the Works or any other data made available for informationpurposes only. The Contractor is responsible for his own interpretation of the Site data.”The second paragraph of this Sub-Clause is amended with the following deletions andinsertions:“To the extent which was practicable (taking account of cost and time), the The Contractorshall be deemed to have obtained all necessary information as to risks, contingencies and othercircumstances which may influence or affect the Tender his tender or the Works. To the sameextent, the Contractor The Contractor acknowledges (save as provided for above in relation tothe data concerning the Site detailed in the Employer Site Data Schedule) that:(i)he has not relied upon the completeness and accuracy of, any information, statementor representation, written or oral, made, provided or given by the Employer to theContractor prior to the date of this Contract in connection with conditions(including climatic) and characteristics encountered on, in or under the Site, and(ii) he shall be deemed to have inspected and examined the Site, its surroundings, theabove data and other available information, and to have been satisfied beforesubmitting39
Clause & HeadingModification / Amendment/ Insertion/ DeletiontheTender his tender as to all relevant matters, including (without limitation):(a)the form and nature of the Site, includingtopography and sub-surface conditions,(b)the hydrological and climatic conditions,(c)the extent and nature of the work and Goodsnecessary for the execution and completion ofthe Works and the remedying of any defects,(d)the Laws, procedures and labour practices of theCountry, and(e)the Contractor’s requirements for access,accommodation, facilities, personnel, power,transport, water and other services.”4.18Protection of theEnvironmentInsert the following paragraph at the end of this Sub-Clause:“The provisions of this Sub-Clause 4.18 [Protection of theEnvironment] do not derogate from the rights and obligations of theContractor under Sub-Clause 4.8 [Policies and Procedures andAdjustments for Changes in Employer Policies and Procedures].”The second paragraph of this Sub-Clause is amended with thefollowing insertion:“The Contractor shall be entitled to use for the purposes of theWorks such supplies of electricity, water, gas and other services asmay be available on the Site and of which details and prices aregiven in the Employer’s Requirements. The Contractor shall, at hisrisk and cost, provide any apparatus necessary for his use of theseservices and for measuring the quantities consumed. All suchapparatus shall at all times be properly maintained for safe andefficient use and the standard of workmanship in laying cables,pipelines and other plumbing and electrical work shall be to thesatisfaction of the Employer. “The following paragraph is inserted after the second paragraph ofthis Sub-Clause:“The Employer does not guarantee the continuity of supply ofelectricity or water and does not accept any liability for anyinterruption of such supply.”Delete the text of this Sub-Clause in its entirety and replace it withthe following:4.19Electricity, Waterand Gas4.21Progress Reports40
Clause & HeadingModification / Amendment/ Insertion/ Deletion“The Contractor shall submit progress reports to the Engineer inaccordance with the Progress Reporting Requirements.Reporting shall continue until the Contractor has completed allwork which is known to be outstanding at the completion datestated in the Taking-Over Certificate for the Works.Neither the submission of a Progress Report nor anything containedin any Progress Report shall constitute notification of a claim forextension of time or additional cost pursuant to Clause 20 [Claims,Disputes and Arbitration] or otherwise under the Contract.”The following paragraphs are inserted after the second paragraphof this Sub-Clause:“It is incumbent on the Contractor, and the Contractor undertakes,in and about the execution of the Works, not to cause anyunreasonable interference with, or unreasonable disruption, delayor hindrance to, the ongoing operations at the Cement Factory.The Contractor shall at all times keep the Site neat, clean and freefrom accumulation of waste materials and refuse which arise out ofthe performance of the Works.The Contractor shall, in and about the execution of the Works,exercise particular care and take all reasonable precautions to:(a)prevent damage to any part of the Cement Factory andmaterials produced thereat; and(b)prevent concrete, mortar, plaster, paint or other foreignmaterials from entering or damaging the sewers and otherparts of the drainage system at the Cement Factory and atSite (and shall reasonably satisfy the Engineer that no suchmaterials are lodged therein, or shall remove same asreasonably directed).”Insert a new Sub-Clause 4.25 as follows:“The Contractor shall achieve the Required BEE Rating (as definedand provided for in the BEE Schedule) within, and shall maintain thisrating until the date of issue of the Performance Certificate.”4.23Contractor’sOperations on Site4.25Black EconomicEmpowerment4.26Insert a new Sub-Clause 4.26 as follows:“In order to mitigate risk, the Employer and the Contractor require41
Clause & HeadingModification / Amendment/ Insertion/ DeletionEarly WarningNotices and Meetingsopen and effective communication and co-operation to deal withevents, circumstances or factors which may adversely affect theWorks or the progress thereof including events, circumstances orfactors which may delay the execution of the Works or increase theContract Price (“early warning events”).With a view to facilitating this, the Contractor shall give writtennotice to the Engineer of an early warning event as soon asreasonably possible after same has come to his attention. In suchnotice the Contractor shall provide:(a) detailed particulars of the early warning event and thepotential adverse effects; and(b) proposals for the steps to be taken by the Contractor tomitigate the potential adverse effects thereof.Either of the Engineer or the Contractor shall be entitled, by writtennotice, to require the other of them to attend a meeting in respectof any early warning event (whether or not notified by theContractor as aforesaid). The purpose of the early warning meetingis to raise and discuss early warning events at the earliest possibleopportunity and to jointly make and consider proposals and seeksolutions to mitigate the potential adverse effects thereof.The early warning notice and meeting contemplated herein areintended as a risk management tool and open discussion is ofparamount importance. To this end, and unless otherwisespecifically agreed in writing by the Employer and the Contractorfrom time to time, neither a notification in terms of this Sub-Clause4.26 nor anything raised or agreed at any early warning meetingshall constitute notification of a claim for extension of time oradditional cost pursuant to Clause 20 [Claims, Disputes andArbitration] or otherwise under the Contract or otherwise limit orderogate from the rights and obligations of the Employer, theEngineer or Contractor under the Contract.The Engineer may require the Contractor to submit a proposal underSub-Clause 13.3 [Variation Procedure] in respect of any earlywarning event (whether or not notified by the Contractor).”Insert a new Sub-Clause 4.27 as follows:“If the Contractor considers that any instruction issued by theEngineer amounts to a change to the Employer’s Requirements or the4.27Site Instructions andImpact Warning42
Clause & HeadingModification / Amendment/ Insertion/ DeletionWorks, and accordingly should be the subject of a Variation and/or otherwise has the effectof increasing the Contract Price and/or extending the Time for Completion, he shall notifythe Engineer accordingly in writing (the “Impact Notice”). Such notice shall be given within2 days where the instruction relates to work at Project Site and within 7 days in respect ofany other work.The Engineer shall, upon receipt of the Impact Notice, promptlyconfirm, reverse or vary such instruction and if appropriate issue aVariation.If the Contractor does not deliver an Impact Notice within the timeallowed the instruction in question shall not give rise to any time orcost impact and the Contractor shall not be entitled to claim anyextension to the Time for Completion or any adjustment to theContract Price or to any additional payment (whether as damages orotherwise) in connection with the work, activity or other matter inquestion.The Engineer may, in emergency circumstances, be entitled totemporarily dispense with compliance with the procedures and timeperiods otherwise required in terms of this Sub-Clause 4.27 andimplement such substitute procedures as he may considerappropriate. Any such direction shall be given in writing by theEngineer and, unless otherwise stated therein, not apply for morethan a period of 48 (forty eight) hours from the date thereof.The Impact Notice shall not constitute notification of a claim forextension of time or additional cost pursuant to Clause 20 [Claims,Disputes and Arbitration] or otherwise under the Contract.”5Design5.1General DesignObligationsDelete the second, third and fourth paragraphs of this Sub-Clause in their entirety and replace them with the following:“The Contractor has examined and satisfied himself as to the Employer’s Requirements, The Contractor warrants that he, his designers and design Subcontractors have the experience and capability necessary for the design contemplated in the Contract.43
Clause & HeadingModification / Amendment/ Insertion/ Deletion Notwithstanding anything to the contrary in the Contract:(a)it is the responsibility of the Contractor to ensure that Works shall be fit for thepurposes for which the Works are intended as defined in the Contract and satisfy,comply with and meet, as the case may be, the Performance Guarantees and otherrequirements of the Contract when completed;(b)the Contractor is fully responsible for the design of theWorks under the Contract and the Contractor shall bedeemed to have satisfied itself in regard to all items ofPlant, Material or other matter and the design thereof. “5.9Insert a new Sub-Clause 5.9 as follows:Commissioning Plan“The Contractor shall, within 180 days after receiving the Letter ofAcceptance, prepare and submit to the Engineer for his approval adetailed commissioning plan, The commissioning plan shall:(a)comply with the Commissioning Plan Requirements and otherapplicable requirements of the Contract (the Contractoracknowledging that his commissioning plan will need to beintegrated into a detailed Project Works commissioning planwhich will include the works of Other Project Contractors);(b) be amended and re-submitted at the expense of theContractor until approved by the Engineer; and(c)be amended, updated and re-submitted for the approval ofthe Engineer as necessary and when required by the Engineer.Compliance with the commissioning plan shall not relieve theContractor of any responsibility, undertaking warranty or otherobligation under the Contract.”6Staff and Labour6.7Delete the text of this Sub-Clause in its entirety and replace it withHealth and Safetythe following:“The Contractor acknowledges that the Employer places significantimportance on health and safety and the Contractor undertakes totake all reasonable precautions to maintain the health and safety of44
Clause & HeadingModification / Amendment/ Insertion/ Deletionthe Contractor’s Personnel and others in and about the execution of the Works.The Contractor undertakes, in the execution of the Works, tocomply with all health & safety Laws applicable to the Works and allhealth & safety rules, guidelines and procedures otherwise requiredunder the Contract and shall ensure that his Subcontractors,employees and others under the Contractor’s direction and controllikewise observe and comply with the aforegoing.Without limiting the aforegoing, to the extent that the ConstructionRegulations 2003 (promulgated under the Occupational Health &Safety Act 85 of 1993) (“the Construction Regulations”) apply to theWorks, the Contractor:(a)accepts that the Employer may appoint him as the “PrincipalContractor” as defined and provided for under theConstruction Regulations;(b) warrants that the Accepted Contract Amount includes asufficient amount for proper compliance with theConstruction Regulations in the execution of Works; and(c)undertakes, in the execution of the Works, to comply with theConstruction Regulations and shall ensure that hisSubcontractors, employees and others under the Contractor’sdirection and control, likewise observe and comply with theaforegoing.The provisions of this Sub-Clause 6.7 [Health and Safety] do not derogate from the rights and obligations of the Contractor underSub-Clause 4.8 [Policies and Procedures and Adjustments for Changes in Employer Policies and Procedures].”6.9Contractor’s PersonnelThe text of the first paragraph of this Sub-Clause is amended with the following insertion:“The Contractor's Personnel shall be appropriately qualified, skilled and experienced in their respective trades or occupations. The Engineer may require the Contractor to remove (or cause to be removed) any person employed on the Site or Works, includingthe Contractor's Representative if applicable, who, in the Engineer’s opinion:”45
Clause & HeadingModification / Amendment/ Insertion/ Deletion6.12Foreign PersonnelInsert a new Sub-Clause 6.12 as follows:“The Contractor may bring in to the Country any foreign personnelwho are necessary for the execution of the Works to the extentallowed by the applicable Laws of the Country. The Contractor shallensure that these foreign personnel are provided with the requiredresidence visas and work permits. Further to the provisions of Sub-Clause 2.2 [Permits, Licenses or Approvals], the Employer will, ifrequested by the Contractor, use reasonable endeavours to assistthe Contractor in obtaining any local, state, national, orgovernment permission required for the employment of the foreignpersonnel in respect of the Works.The Contractor shall be responsible for the return of the foreignpersonnel to the place where they were recruited or to theirdomicile. In the event of the death in the Country of any of thesepersonnel or members of their families, the Contractor shallsimilarly be responsible for making the appropriate arrangementsfor their return or burial.”7Plant, Materials and Workmanship7.1The text of sub-paragraph (b) of this Sub-Clause is deleted in itsManner of Execution entirety and replaced with the following:“in a proper and workmanlike manner and in accordance withRecognised Good Practice; and”.The following new paragraphs are inserted after the onlyparagraph of this Sub-Clause:“The Contractor shall use only new Plant and Materials for incorporation into the Works. Reconditioned Plant and/or Materialsshall not be regarded as new under any circumstances. The Contractor shall not use Plant or Materials which are generally recognised as being unsuitable or otherwise to be avoided for the purpose for which they are intended.Unless otherwise specified in the Contract the Contractor shall usePlant and Materials which are of the best quality.”7.4Delete the last sentence in the last paragraph of this Sub-Clause. Testing46
Clause & HeadingModification / Amendment/ Insertion/ Deletion8Commencement, Delays and SuspensionThe first paragraph of this Sub-Clause is amended with thefollowing deletions and insertions:“Unless otherwise stated in the Appendix to Tender Tthe Engineershall give the Contractor not less than 7 days' notice of theCommencement Date and. Unless otherwise stated in the ParticularConditions, the Commencement Date shall be within 42 days afterthe Contractor receives the Letter of Acceptance.”The first paragraph of this Sub-Clause is amended with thefollowing deletion and insertion:“The Contractor shall submit a detailed time programme to the Engineer within 28 days of the Commencement Date after receivingthe notice under Sub Clause 8.1 [Commencement of Works]. The Contractor shall also submit a revised programme whenever the previous programme is inconsistent with actual progress or with theContractor's obligations. Each programme shall include:”Sub-paragraph (d)(ii) of this Sub-Clause is amended by thefollowing deletion and insertion:“(d)(ii) details showing the Contractor's reasonable estimate of thenumber ofeach class of Contractor's Personnel and of each type of Contractor's Equipment, required on the Site for each major stage;. and"Insert a new sub-paragraph (e) as follows:“(e) details of the dates on which the Contractor reasonably anticipates payment related milestones, if applicable, to be achieved and any other information that may be reasonablyrequired by the Engineer to be included in the programme from time to time.”Insert a new paragraph after the first paragraph of this Sub-Clause as follows:478.1Commencement ofWork8.3Programme
Clause & HeadingModification / Amendment/ Insertion/ Deletion“The programme required under this Sub-Clause 8.3 shall, in each instance and unless otherwise directed by the Engineer, be detailed at least to a typical level 2 programme.”The second paragraph of this Sub-Clause beginning with the words“Unless the Engineer” is amended with the following deletion and insertion:“Unless the Engineer, within 21 days after receiving a programme,gives notice to the Contractor stating the extent to which it does not comply with the Contract, the Contractor shallThe Engineer shall, within 21 days after receiving a programme, give notice to theContractor stating the extent to which it does not comply with the Contract. The Contractor shall take account of the comments in such notice and proceed in accordance with the programme, subject to his other obligations under the Contract. The Employer’s Personnel shall be entitled to rely upon the programme when planning their activities.”Delete the penultimate paragraph of this Sub-Clause beginning with the words “The Contractor shall promptly” in its entirety.Insert the following paragraph at the end of this Sub-Clause:“The Employer and the Engineer shall not be obliged to furnish any other information, materials, documents or instructions earlier than the Employer or the Engineer, as the case may be, should reasonably have anticipated at the Contract Date.”8.4Extension of Time forCompletionAdd the following paragraph after the first paragraph of this Sub-Clause:“The Contractor shall not, however, be entitled to an extension ofthe Time for Completion to the extent that completion would, inthe circumstances, in any event have been delayed by a cause notlisted in (a) to (e) above.”The first paragraph of this Sub-Clause is amended with thefollowing insertion:“If the Contractor fails to comply with Sub-Clause 8.2 [Time for Completion] or, as may be applicable and where the Appendix to Tender so provides, if Mechanical Completion is not achieved by the date or dates stated in Appendix to Tender (“the Time forMechanical Completion”) the Contractor shall subject to Sub-Clause 2.5 [Employer's Claims] pay delay damages to the Employer for this default. These delay damages shall be the sum stated in the Appendix488.7Delay Damages
Clause & HeadingModification / Amendment/ Insertion/ Deletionto Tender, which shall be paid for every day which shall elapse between the relevant Time for Completion and the date stated in the Taking-Over Certificate. However, the total amount due under this Sub-Clause shall not exceed the maximum amount of delay damages (if any) stated in the Appendix to Tender.”Insert the following paragraph after the first paragraph of this Sub-Clause:“For the purpose of this Sub-Clause 8.7 the Contractor shall be entitled to an extension to the Time for Mechanical Completion subject to Sub-Clause 20.1 [Contractor's Claims] and mutatis mutandis in accordance with the provisions of Sub-Clause 8.4 [Extensions of Time for Completion]. If the Contractor considers himself to be entitled to an extension of the Time for Mechanical Completion, the Contractor shall give notice to the Engineer in accordance with Sub-Clause 20.1 [Contractor's Claims]. When determining the extension to the Time for Mechanical Completion under Sub-Clause 20.1, the Engineer shall review previous determinations and may increase, but shall not decrease, the total extension to the Time for Mechanical Completion.”In the second paragraph of this Sub-Clause delete the word “These” and replace it with the words “Save as provided for in Sub-Clause 8.6 [Rate of Progress] these”.9Tests on Completion9.1Contractor’sObligationsThe third paragraph of this Sub-Clause is amended with the following deletion and insertion:“Unless otherwise provided in the Contractstated intheParticularConditions, the Tests on Completion shall be carried out in the following sequence:”The fifth paragraph of this Sub-Clause is amended with the following deletion and insertion:“Trial operation shall not constitute a taking-over under Clause 10[Employer's Taking Over]. Unless otherwise stated intheParticularConditions, aAny product produced by the Works during trial operation shall be the property of the Employer.”49
Clause & HeadingModification / Amendment/ Insertion/ Deletion10Employer’s Taking OverThe last paragraph of this Sub-Clause is amended with the following deletion and insertion:“If the Engineer fails either to issue the Taking-Over Certificate orto reject the Contractor's application with the period of 28 days, and if the Works or Section (as the case may be) are substantiallyin accordance with the Contractas contemplated in (a) of this Sub-Clause 10.1, the Taking-Over Certificate shall be deemed to have been issued on the last day of that period.”The third paragraph of this Sub-Clause is amended with the following insertion:“After the Engineer has issued a Taking-Over Certificate for a part of the Works, the Contractor shall be given the earliest reasonable opportunity to take such steps as may be necessary to carry out any outstanding Tests on Completion. The Contractor shall carry out these Tests on Completion as soon as practicable before the expiry date of the relevant Defects Notification Period.”The first paragraph of this Sub-Clause is amended with the following deletion and insertion:“If the Contractor is prevented, for more than 14 days, from carrying out the Tests on Completion by a cause for which the Employer is responsible, the Employer shall be deemed to have taken over the Works or Section (as the case may be) on the date when the Tests on Completion would otherwise have been completedthe Contractor shall (i) give notice to the Engineer, and (ii) be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to payment of any such Cost, which shall be included in the Contract Price, but no such delay shall relieve the Contractor of his obligation to carry out the Tests on Completion. After receiving the Contractor’s notice, the Engineer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine this Cost.”10.1Taking Over of theWorks and Sections10.2Taking Over of Partsof the Works10.3Interference withTests on CompletionThe second paragraph of this Sub-Clause beginning with the words“The Engineer shall” is deleted in its entirety.11Defects Liability50
Clause & HeadingModification / Amendment/ Insertion/ DeletionDelete the last paragraph of this Sub-Clause beginning with the words “If a defect appears” in its entirety.The first paragraph of this Sub-Clause is amended with the following deletion and insertion:“TheEmployer shall be entitled subject toSub Clause2.5 [Employer’s Claims] to an extension of theDefectsNotificationPeriod fortheWorks or a Section ifand to the extent that the Works, Section or a major item of Plant (as the case may be, andafter takingover) cannot be used forthepurposefor which they areintended by reason of adefect ordamage. The Employer shall be entitled to an extension of the Defects Notification Period for the Works or a Section, commencing from the date of remedy of the defect, for a period equal to the original Defects Notification Period.However, a Defects Notification Period shall not be extended by morethan two years.”The text of this Sub-Clause is amended with the following deletion and insertion:“After the Performance Certificate has been issued, each Party shallremain liable for the fulfilment of any obligation which remains unperformed at that time. Forthepurposes of determining thenature andextentofunperformedobligations, the Contractshall bedeemed to remaininforce. The Contract shall continue to be offorce and effect notwithstanding the issue of the Performance Certificate.”Insert a new Sub-Clause 11.12 as follows:“The Contractor shall, notwithstanding the issue of the Performance Certificate, at the cost and risk of the Contractor, execute all work required to remedy Latent Defects as may be notified by (or on behalf of) the Employer on or before the expiry date of the Latent Defects Notification Period for the Works or Section (as the case maybe). The Contractor shall have the right of access to the Works and tothe records of the operation and performance of the Works as may be required for this purpose, except as may be inconsistent11.1Completion of Outstanding Work and Remedying Defects11.3Extension of DefectsNotification Period11.10Unfulfilled Obligations11.12Latent Defects51
Clause & HeadingModification / Amendment/ Insertion/ Deletionwith the Employer's reasonable security restrictions or operational requirements.If the Contractor fails to so remedy any notified Latent Defect the provisions of Sub-Clause 11.4 shall apply mutatis mutandis.If the work of remedying of any such Latent Defect may affect the performance of the Works, the Engineer may require the repetitionof any of the tests described in the Contract, including Tests on Completion and/or Tests after Completion. The requirement shall be made by notice within 28 days after the defect in question is remedied. These tests shall be carried out in accordance with the terms applicable to the previous tests, except that they shall be carried out at the cost of the Contractor.”12Test after CompletionThe text of this Sub-Clause is amended as follows:Delete the first paragraph of this Sub-Clause in its entirety and replace it with the following:“The Tests after Completion shall be carried out and completed in accordance with the provisions of and as required by the Performance and Acceptance Testing Procedure Schedule.”The second paragraph of this Sub-Clause is amended with the following deletion and insertion:“The Tests after Completion shall be carried out as soon as is reasonably practicable after the Works or Section have been taken over by the Employer. Unless otherwise provided for Performance and Acceptance Testing Procedure Schedule, Tthe Employer shall give to the Contractor 21 days' notice of the date after which the Tests after Completion will be carried out. Unless otherwise agreed, these Tests shall be carried out within 14 days after this date, on theday or days determined by the Employer.”Delete the last paragraph of this Sub-Clause in its entirety.Delete the text of this Sub-Clause in its entirety and replace it with the words “[NOT USED]”.12.1Procedure for Testsafter Completion12.2Delayed Tests52
12.3Retesting12.4Failure to Pass Testsafter CompletionClause & HeadingModification / Amendment/ Insertion/ DeletionDelete the text of this Sub-Clause in its entiretyand replace it with the words “[NOT USED]”.The text of this Sub-Clause is amended as follows:Delete the first, second and third paragraphs ofthis Sub-Clause in their entirety and replace them with the following:“If the Permanent Works, or any part thereof, fail the Tests afterCompletion on the first occasion the following shall apply:A.The Contractor shall take whatever steps are necessary toenable that part of the Permanent Works to meet therequirements of the Contract, to achieve the successfulcompletion of the Tests after Completion and to meet thePerformance Guarantees. The Engineer may, however, directthat right of access to the Works or section for this purposecannot be given until a time convenient to the Employer.B.The applicable Tests after Completion shall be re-performed onthe same terms and conditions and within the applicable timeperiod stated in the Performance and Acceptance TestingProcedure Schedule or if no time period is stated then within areasonable time The Engineer may, however, direct that rightof access to the Works or section for this purpose cannot begiven until a time convenient to the Employer. The Employershall provide all materials and utilities required for such re-performance free of charge.Save for such free supply of materials and utilities, the Contractor shallpay the additional costs incurred by the Employer as a result of such failure and retesting of the Permanent Works, if attributable to any of the matters listed in sub-paragraphs (a) to (d) of Sub-Clause 11.2 [Cost of Remedying Defects].If the Permanent Works do not pass the Tests after Completion on the second occasion or within the time period referred to in Sub-Clause 12.4 B above, whichever is the earlier, the Employer shall (subject only to the prior exercise of the Contractor’s rights to pay thelow-performance damages in terms of this Sub-Clause 12.4 if applicable but otherwise without derogating from or limiting the rights of the Employer under Sub-paragraph (b) of Sub-Clause 11.1 [Completion of Outstanding Work and Remedying Defects], Sub-Clause 11.4 [Failure to Remedy Defects] or otherwise in terms of this53
Contract or in law) have the right to take whatever steps may be necessary to ensure that the Permanent Works successfully pass the Tests after Completion and achieve the Performance Guarantees, including the right to:(i)require the Contractor to supply free of charge such additional orreplacement Plant, Materials or other matter items or services asmay be necessary;(ii) procure the modification and/or rectification of thePermanent Works or any part thereof, by others, at thecost of the Contractor; and/or(iii) accept and retain such of the Permanent Works as it mayconsider expedient at such reasonably reduced price asmay be agreed between the Employer and the Contractor(or, in the absence of such agreement, at the reasonablevalue thereof determined by the Engineer).If:(a)the Contract provides for a sum payable as lowperformance damages for and to the extent of the non-fulfilment of the Performance Guarantee in question;(b)despite the Contractor having taken reasonable steps toprocure the fulfilment of the Performance Guarantee inquestion, the Permanent Works do not pass the Testsafter Completion on the second occasion or within thetime period referred to in Sub-Clause 12.4 B above,whichever is the earlier, or after such additionaloccasions or within such extended time period as may beallowed by the Employer;(c)the Tests after Completion nevertheless demonstrate thatthe Permanent Works meet or exceed the base linemake-good performance parameters required by thePerformance and Acceptance Testing Procedure Schedulefor the Performance Guarantee in question; and(d)the Contractor pays of the applicable sum to theEmployer and gives written notice to the Engineer that heis exercising his rights under this Sub-Clause 12.4,54
13.1Right to VaryClause & HeadingModification / Amendment/ Insertion/ Deletionthe Permanent Works shall, to that extent, be deemed to have passed the Tests after Completion and the Employer shall, to that extent, be deemed to have waived its rights to rely on a breach of this Contract in connection with the Performance Guarantees.If the Contractor incurs additional Cost and/or is not able to successfully complete the Tests after Completion within the time period referred to in Sub-Clause 12.4 B above as a result of any unreasonable delay by the Employer to the Tests After Completion or unreasonable delay by the Employer in permitting access to the Works or Plant by the Contractor, either to investigate the causes of a failure to pass the Tests after Completion or to carry out any adjustments or modifications, the Contractor shall (i) give notice to the Engineer and (ii) be entitled, subject to Sub-Clause 20.1 [Contractor’s Claims] to an extension to that period and/or, as applicable, payment of such Cost plus reasonable profit, which shall be included in the Contract Price.”13Variations and AdjustmentsThe first paragraph of this Sub-Clause is amended with the following insertion and deletion:“Variations may be initiated by the Engineer at any time prior to issuing the Taking-Over Certificate for the Works, either by an instruction or by a request for the Contractor to submit a proposal. A Variation shall not comprisethe omission of any work which istobecarriedout byothers. A Variation may comprise the omission of any work,which the Employer may thereafter have carried out by others.”The second paragraph of this Sub-Clause is amended with the following insertions and deletion:“The Contractor shall execute and be bound by each Variation, unless the Contractor promptly (but in any event within not more than 7 days unless otherwise agreed by the Engineer) gives notice to the Engineer stating (with supporting particulars) that (i) the Contractor cannot readily obtain the Goods required for the Variation, (ii) it will reduce the safety or suitability of the Works, or (iii) it will have an adverse impact on the achievement of the Schedule of Guarantees55
Clause & HeadingModification / Amendment/ Insertion/ DeletionPerformance Guarantees. Upon receiving this notice, the Engineershall cancel, confirm or vary the instruction.”13.3The text of this Sub-Clause is amended as follows: Variation ProcedureIn the first paragraph of this Sub-Clause, insert the words “(orwithin the time reasonably requested by the Engineer, ifapplicable)” after the words “as soon as practicable”.In sub-paragraph (c) of the first paragraph of this Sub-Clause insertthe words “in accordance with the Variation Pricing Methodology”after the words “Contract Price”.In the fourth paragraph of this Sub-Clause insert the words “andthe Variation Pricing Methodology” after the words “Sub-Clause 3.5[Determinations]”.Insert the following paragraph after the last paragraph of this Sub-Clause:“The Contractor shall continue to perform any Variation issued orapproved by the Engineer notwithstanding any dispute as to theevaluation of the Variation which shall be determined in accordancewith Clause 20 [Claim, Disputes And Arbitration].”The first paragraph of this Sub-Clause is amended with thefollowing insertion and deletions:“For work of a minor or incidental nature, the Engineer may instruct that a Variation shall be executed on a day work basis. The work shall then be valued in accordance with the day work scheduleincluded intheContractDaywork Schedule, and the following procedure shall apply. If aday work scheduleis not included intheContract,thisSub Clause shall not apply.”The text of this Sub-Clause is amended by the insertion of the followingparagraph after the second paragraph of this Sub-Clause ending withthe words “shall be included in the Contract Price”:“The Contractor shall not be entitled to payment of any Cost or additional time under this Sub-Clause 13.7 for changes in Taxes. Without Limitation the Contractor shall not be entitled to additional Cost or time under this Sub-Clause 13.7 for any change in any:(i) income tax, capital gains tax, withholding tax or other liketax or levy imposed in connection with income orbusiness activities; or5613.6Daywork13.7 Adjustments forChanges in Legislation
Clause & HeadingModification / Amendment/ Insertion/ Deletion(ii) legislated fuel or other commodity prices;payable by the Contractor, its Sub-Contractors, their employees or agents or for which any of them is obliged to account (all of which shall be borne solely by the Contractor at no cost to the Employer).”13.8The forth paragraph beginning with the words “The cost indices orAdjustments forreferred prices” is amended with the following insertions andChanges in Costdeletion:“The cost indices or reference prices stated in the table ofadjustment data referred to in the Appendix to Tender shall be used.If their source is in doubt, it shall be determined by the Engineer. Forthis purpose, reference shall be made to the values of the indices atstated dates (so referred to in the Appendix to Tender quoted in thefourth and fifth columns respectively of the table) for the purposesof clarification of the source; although these dates (and thus thesevalues) may not correspond to the base cost indices.14Contract Price and Payment14.1The text of this Sub-Clause is amended as follows: The Contract PriceSub-paragraph (b) of the first paragraph of this Sub-Clause isdeleted in its entirety and replaced with the following:“the Contract Price includes the payment by the Contractor of allTaxes and the Contract Price shall not be adjusted for any of thesecosts;”.In the second paragraph of this Sub-Clause beginning with the word“However,” the words “in the Particular Conditions” are deleted andreplaced with the words “or provided for in the Appendix to Tender”.14.2The text of this Sub-Clause is amended as follows: Advanced PaymentThe first paragraph of this Sub-Clause is amended with thefollowing insertions:“The Employer shall make an advance payment, as an interest-free loan [for mobilisation and design], when the Contractor submits a guarantee (the “Advance Payment Security”) in accordance with this Sub-Clause. The total advance payment, the number and timing of57
14.6Issue of InterimPayment CertificatesClause & HeadingModification / Amendment/ Insertion/ Deletioninstalments (if more than one), and the applicable currencies and proportions, shall be as stated in the Appendix to Tender. “The third paragraph of this Sub-Clause is amended with the following insertions and deletions:“The Engineer shall issue an Interim Payment Certificate for the first instalment after receiving a Statement (under Sub-Clause 14.3 [Application for Interim Payment Certificates]) and after the Employer receives (i) the Performance Security in accordance with Sub-Clause 4.2 [Performance Security] and (ii) the Advance Payment Security a guarantee in amounts and currencies equal to the advance payment. This guarantee shall be issued by an entity and from within [a country(or other jurisdiction)] approved by the Employer, and shall be in the form of Appendix PC 2 annexed to the Particular Conditions or in another form approved by the Employer.”The following sentence is inserted at the end of the forth paragraph of this Sub-Clause:“If the Contractor fails to do so, the Employer may call the Performance Security in full and retain the proceeds as a cash retention at any time after such date.”The text in the first paragraph of this Sub-Clause is amended withthe following insertion:“No amount will be certified or paid until the Employer has received and approved the Performance Security and the Parent Company Guarantee and all relevant Insurances required of the Contractor have been effected in accordance with the Contract. Thereafter, the Engineer shall, within 28 days after receiving a Statement and supporting documents, issue to the Employer an Interim Payment Certificate which shall state the amount which the Engineer fairly determines to be due, with supporting particulars.”The text of this Sub-Clause is amended by the insertion of the following paragraph after the thirdparagraph of this Sub-Clause ending with the words “or obligation has been performed”:“If and for so long as the Contractor fails to deliver the programme or any revisedprogramme required under clause 8.3 [Programme], the Engineer shall be entitled (withoutthe Employer incurring any obligation for interest thereon and without prejudice to theEmployer’s or the Engineer’s other rights under the Contract) to provide in any PaymentCertificate for up to 20% of the amount58
14.9Payment ofRetention MoneyClause & HeadingModification / Amendment/ Insertion/ Deletionotherwise then due to the Contractor to be withheld until such failure is remedied.”14.7In the last paragraph of this Sub-Clause delete the words: “bankPaymentaccount, nominated by the Contractor, in the payment country (for this currency) specified in the Contract” and replace them with the words “Contractor’s Nominated Account”.14.8The first paragraph of this Sub-Clause is amended with the followingDelayed Paymentdeletion and insertion:“If the Contractor does not receive payment in accordance with Sub-Clause 14.7 [Payment], the Contractor shall be entitled to receive financing charges compounded monthlyinterest at the Stipulated Interest Rate on the amount unpaid during the period of delay. This period shall be deemed to commence on the date for payment specified in Sub-Clause 14.7 [Payment], irrespective (in the case of its sub-paragraph (b)) of the date on which any Interim Payment Certificate is issued.”The text of this Sub-Clause is amended as follows:The first paragraph of this Sub-Clause is amended by the followinginsertions:“When the Taking-Over Certificate has been issued for the Works, and the Works have passed all specified tests (including the Tests after Completion, if any and unless otherwise specified in the Contract), the first half of the Retention Money shall be certified by the Engineer for payment to the Contractor (less amounts, if any, previously deducted by the Employer in accordance with the Contract). If a Taking-Over Certificate is issued for a Section, the relevant percentage of the first half of the Retention Money shall be certified and paid when the Section passes all tests.”The second paragraph of this Sub-Clause is amended by the following insertion:“Promptly after the latest of the expiry dates of the Defects Notification Periods, theoutstanding balance of the Retention Money shall be certified by the Engineer for payment tothe Contractor (less amounts, if any, previously deducted by the Employer in accordance withthe Contract). If a Taking-Over Certificate was issued for a Section, the relevant percentage ofthe second half of the Retention59
Clause & HeadingModification / Amendment/ Insertion/ DeletionMoney shall be certified and paid promptly after the expiry date of the Defects Notification Period for the Section.”14.15The text of sub-paragraph (e) of this Sub-Clause is amended by theCurrencies ofdeletion of the words “by the central bank of the Country” andPaymentreplacement thereof with the words “as provided for in the Appendix to Contract”.15Termination by Employer15.2Termination byEmployerThe text of this Sub-Clause is amended as follows:In sub-paragraph (d) of the first paragraph of this Sub-Clause replacethe words “the whole of the Works” with the words “otherwise thanin accordance with Sub-Clause 4.4 [Subcontractors]”.In sub-paragraph (e) of the first paragraph of this Sub-Clause add thewords “or the Guarantor” before the words “becomes bankrupt”.In the first paragraph of this Sub-Clause add the following sub-paragraph as sub-paragraph “(g)”:“otherwise materially breaches the Contract and fails to remedy thesame within 30 days of the Employer giving written notice of theoccurrence of such event (or, if such remedy cannot be completed insuch time, such longer period as the Employer may determine),”After the last paragraph of this Sub-Clause insert the followingparagraph:“The Employer’s rights under this Sub-Clause 15.2 are withoutprejudice to its other rights whether under the Contract or in law,including its rights to claim specific performance and damages andwithout derogating from the aforegoing the Employer is entitled towithhold all payments and the Engineer is empowered to withholdall Payment Certificates, without the Employer incurring anyobligation for interest, for so long as any of in the events orcircumstances contemplated in (a) to (g) above persist.”The first paragraph of this Sub-Clause is amended with the deletion ofthe words “or the Employer returns the Performance Security”.15.5 Employer’s Entitlement toTermination60
Clause & HeadingModification / Amendment/ Insertion/ Deletion16Suspension and Termination by Contractor16.1 Contractor’s Entitlement toSuspend WorkThe text of this Sub-Clause is amended as follows:Delete the first three paragraphs of this Sub-Clause in theirentirety and replace them with the following:“If the Engineer fails to certify in accordance with Sub-Clause 14.6[Issue of Interim Payment Certificates] or in the event of a defaultby the Employer in making a payment required under Sub-Clause14.7 [Payment], the Contractor may suspend performance of all orany portion of the Works by delivering a notice to the Employer,provided:(a)such failure to certify or payment default, as the casemay be, has continued for a period of 30 days,(b)the Engineer or the Employer, as the case may be, shallhave failed to cure such default within 30 days afterreceipt from the Contractor of such notice, and(c)that the failure by the Engineer to certify or the failureby the Employer to make such payment is not anexercise by Engineer or Employer, as the case may be, ofany of its rights under the Contract.The suspension shall terminate upon receipt by the Contractor of thePayment Certificate or payment referred to in the notice, at whichtime the Contractor shall immediately recommence performance ofthe Works. If the suspension period extends for more than 60consecutive days, the Contractor may terminate this Contract.”The text of this Sub-Clause is amended as follows:Delete the text of sub-paragraphs (a) and (e) of the first paragraphof this Sub-Clause in their entirety, respectively, and replace themwith the words ‘[NOT USED]”.In sub-paragraph (c) of the first paragraph of this Sub-Clause deletethe words “42 days” and replace them with the words “90 days”.In sub-paragraph (d) of the first paragraph of this Sub-Clause deletethe word “substantially” and replace it with the word “materially”.6116.2Termination byContractor
Clause & HeadingModification / Amendment/ Insertion/ DeletionIn the second paragraph of this Sub-Clause delete the words “14 days” and replace them with the words “30 days”.Amend sub-paragraph (c) with the following insertions:“remove all other Goods from the Project Site, except as necessaryfor safety, and leave the Project Site.”Delete the text of this Sub-Clause in its entirety and replace it withthe following:“After a notice of termination under Sub-Clause 16.2 [Terminationby Contractor] has taken effect, the Employer shall:16.3Cessation of Workand Removal of Contractor’s Equipment16.4Payment onTermination(a)pay the Contractor in accordance with Sub-Clause 19.6[Optional Termination, Payment and Release]; and(b)pay to the Contractor the amount of his loss of profit onthe Contract as a result of this termination, but limited tothe lesser of:(i)the actual remaining profit that the Contractorwould have earned on the Contract; or(ii)a sum equal to the Termination Profit Percentage ofthe balance of the Contract Price due to theContractor but for such termination.Any claim for payment by the Contractor under this Sub-Clause 16.4must be made within 180 days after the effective date of atermination hereunder. In the event and to the extent that a claim isnot made within the 180 days period, the Employer will have noliability to the Contractor in connection with such termination.”17Risk and Responsibility17.1IndemnitiesInsert the following new sub-paragraphs as part of the first paragraphof this Sub-Clause, after sub-paragraph (b)(ii) of this Sub-Clause:“(c) the breach or violation by the Contractor or any Subcontractorof any permit or applicable Law relating to the Works,62
Clause & HeadingModification / Amendment/ Insertion/ Deletion(d)any breach of contract by the Contractor under any Subcontract, or(e)the vitiation of any insurance policies due to the Contractor’s orany Subcontractor’s breach of any representation, declarationsor conditions contained in any insurance policy, including theprovision of false or misleading information,provided, however, that the Contractor shall not be required underthis Sub-Clause 17.1 to indemnify the Employer for any liabilityarising out of or resulting from events or circumstances occurring orexisting after a Taking-Over Certificate for the Works has beenissued except where the liability arises from a negligent act orfailure to act, fault or omission of the Contractor or anySubcontractor or any other person directly or indirectly employedby either of them (including but not limited to the Contractor’sPersonnel), whether occurring before or after a Taking-OverCertificate for the Works has been issued.”17.3Delete the text of sub-paragraphs (g) and (h) of this Sub-Clause in theirEmployer’s Risksentirety.17.6The text of this Sub-Clause is amended as follows: Limitation of LiabilityThe first paragraph of this Sub-Clause is amended with the followinginsertion and deletion:“Neither Party shall be liable to the other Party for loss of use of anypart (or all) of the Works, loss of profit, loss of any contract or for anyindirect or consequential loss or damage which may be suffered bythe other Party in connection with the Contract, other than underSub-Clause 16.4 [Payment on Termination] and Sub Clause17.1[Indemnities].”The second paragraph of this Sub-Clause is amended with thefollowing insertions and deletion:“The total liability of the Contractor to the Employer, under or inconnection with the Contract other than under Sub-Clause 4.19[Electricity, Water and Gas], Sub-Clause 4.20 [Employer's Equipmentand Free-Issue Material], Sub-Clause 17.1 [Indemnities] and Sub-Clause17.5 [Intellectual and Industrial Property Rights], shall not exceed thesum stated in the Appendix to TenderParticularConditions or (if a sumis not so stated) the Accepted Contract Amount. The limitation ofliability set out in this Sub-Clause 17.6 will not apply in relation to anyliability of the Contractor under Sub-Clause 1863
18.1GeneralRequirements forInsurancesClause & HeadingModification / Amendment/ Insertion/ Deletion[Insurance] to the extent of any amount that either Party recovers (or, but for a failure bythe Contractor to comply with his obligations under Sub-Clause 18 [Insurance], would havebeen recoverable) under the insurance policies referred to in Sub-Clause 18 [Insurance].”17.7Employer’s Step-in-RightsAdd the following new Sub-Clause 17.7:“If the Contractor fails to comply with a notice from the Engineer under Sub-Clause 15.1 [Notice to Correct], the Employer, without prejudice to its other rights, powers and remedies under the Contract or in law, shall be entitled to remedy the default either himself or via other persons, and the reasonable costs of doing so shall be for the account of the Contractor.The Contractor shall co-operate with the Employer and facilitate and permit the use of all required information, materials and other matter (including Contractor’s Documents and all other drawings, CAD materials, technical data, software, models, plans, designs, programs, diagrams, evaluations, details, specifications, schedules, reports, calculations, manuals or other documents or recorded information (electronic or otherwise) which have been or are at any time prepared by or on behalf of the Contractor under the Contract or otherwise for and/or in connection with the Works) and shall generally do all things required by the Engineer to achieve this end.”18InsuranceThe text of this Sub-Clause is amended as follows:In the second paragraph of this Sub-Clause delete the words “by bothParties [before the date of the Letter of Acceptance]” and replace themwith the words “to and recorded in the Letter of Acceptance”.In the third paragraph of this Sub-Clause delete the words “annexed to the ParticularConditions” and replace them with the words “in the Insurance Schedule”.Insert the following paragraph after the third paragraph of this Sub-Clause:“The Contractor shall comply with the requirements of and obligations imposed on it interms of the Insurance Schedule.”64
18.2Insurance for Workand Contractor’s EquipmentClause & HeadingModification / Amendment/ Insertion/ DeletionIn the fifth paragraph of this Sub-Clause beginning with the words “Each policy insuring...”delete the words “the currencies required to rectify the loss or damage” and replace themwith the words “Local Currency”.The seventh paragraph of this Sub-Clause beginning with thewords “When each premium...” is amended with the followinginsertions and deletions:“The insuring Party shall promptly pay When eachall premiums dueunder each of the insurance policies to be effected by itis paid, theinsuring Party shall submit evidence of payment to the other Party.The text of this Sub-Clause is amended as follows:The first paragraph of this Sub-Clause is amended with the followinginsertions and deletions:“The Employerinsuring Partyshall insure the Works, Plant, Materials and Contractor'sDocuments (excluding marine insurance for imported Plant and Materials) for not less than thefull reinstatement cost including the costs of demolition, removal of debris and professionalfees and profit. This insurance shall be effective from the Commencement Datethe date bywhich the evidence is to be submitted under sub paragraph (a) of Sub Clause 18.1 [GeneralRequirements for Insurance], until the date of issue of the Taking-Over Certificate for theWorks. The Contractor shall, at his cost, procure and maintain all marine insurance.”In the second paragraph of this Sub-Clause delete the words ”insuring Party” and replacethem with the word “Employer”.The third paragraph of this Sub-Clause is amended by the following insertions anddeletions:“The Contractorinsuring Party shall insure the Contractor's Equipment for not less than thecost forfull replacement at Sitevalue, including delivery to Site. For each item of Contractor'sEquipment, the insurance shall be effective while it is being transported to the Site and until itis no longer required as Contractor's Equipment.”65
18.3Insurance against Injury to Persons andDamage to PropertyClause & HeadingModification / Amendment/ Insertion/ Deletion Inthe fourth paragraph of this Sub-Clause:Delete the words “Particular Conditions” and replace them with the words “Insurance Schedule”;Delete the text of sub-paragraph (a) of this Sub-Clause in its entirety and insert the words “[NOT USED]”;In sub-paragraph (d) of this Sub-Clause:-delete the words “(g) and (h)” after the words “sub-paragraphs (c)”; anddelete the words “Appendix to Tender (if an amount is not so stated, this sub-paragraph (d) shall not apply)” and replace them with the words “Insurance Schedule”.Delete the last paragraph of this Sub-Clause beginning with the words “If, more than one year.” in its entirety.The text of this Sub-Clause is amended as follows:Amend the marginal heading of this Sub-Clause to read as follows:“Insurance against Injury to Persons and Damage to Property (PublicLiability Insurance)”.In the first paragraph of this Sub-Clause delete the words “insuring Party” and replacethem with the word “Employer”.The second paragraph of this Sub-Clause is amended with the following insertion anddeletions:This insurance shall be for a limit per occurrence of not less than the amount stated in theInsurance ScheduleAppendix to Tender, with no limit on the number of occurrences. If anamount is not stated in the Appendix to Tender, this Sub Clause shall not apply.In the third paragraph of this Sub Clause:Delete the words “Particular Conditions” and replace them with the words “InsuranceSchedule”.Delete the text of sub-paragraph (a) in its entirety and replace it with the words “[NOTUSED]”.66
Clause & HeadingModification / Amendment/ Insertion/ Deletion18.4 Insurance for Contractor’s PersonnelAmend the marginal heading of this Sub-Clause to read as follows:“Insurance for Contractor’s Personnel & Contractor’s AdditionalInsurances”.Insert the following paragraph after the last paragraph of this Sub-Clause:“The Contractor shall, in addition, effect and maintain insurance tocover its liabilities under the Contract which are not, or are notsufficiently covered by the insurances required to be effected by theEmployer.”19Force Majeure19.6Optional Termination, Payment and ReleaseInsert the following paragraph after the last paragraph of this Sub-Clause:“Any claim for payment by the Contractor under this Sub-Clause19.6 must be made within 180 days after the effective date of atermination hereunder. In the event and to the extent that a claimis not made within the 180 days period, the Employer will have noliability to the Contractor in connection with such termination.”20Claims, Disputes and Arbitration20.1The text of this Sub-Clause is amended as follows: Contractor’s ClaimsDelete the last sentence of the second paragraph of this Sub-Clause,which commences with the words “Otherwise, the following”.Delete the last paragraph of this Sub-Clause and replace it with thefollowing:“The requirements of this Sub-Clause are in addition to those of anyother Sub-Clause which may apply to a claim. If the Contractor failsto comply strictly with this or another Sub-Clause in relation to anyclaim, the Contractor shall not be entitled to additional payment orextension to the Time for Completion, and the Employer shall bedischarged from all liability in connection with the claim.”After the last paragraph of this Sub-Clause insert the followingparagraphs:67
Clause & HeadingModification / Amendment/ Insertion/ Deletion“Notwithstanding anything to the contrary, the Contractor shall notbe entitled to any extension of time or additional payment or othercompensation if and to the extent:(a) the cause, event or circumstance giving rise thereto isattributable to the negligence, error or default of theContractor or any Subcontractor or any Affiliate of theContractor;(b) the cause, event or circumstance giving rise thereto shouldor could reasonably have been foreseen and provided for oravoided by the Contractor or by any of his Subcontractors orby any Affiliate of the Contractor; or(c)the Contractor fails to take all reasonable steps to mitigatethe effects of the cause, event or circumstance giving risethereto.Without limiting the Contractor’s rights to claim specificperformance of the Employer’s obligations under the Contract orrestitution, the Employer’sliability to the Contractor forconsideration and compensation in connection with or arising fromthe Contract or the Works generally, is limited to the payment of theamounts and the applicable claims, indemnities and other remediesspecifically provided for in or contemplated by the Contract. Save asaforesaid the Employer shall not be liable to the Contractor or anySubcontractor for any liability, claim, loss or damages.”20.2Appointment of the Dispute Adjudication Board20.3 Failure to Agree Dispute Adjudication BoardThe text of the marginal heading of this Sub-Clause is deleted in itsentirety and replaced with the words “Resolution of Disputes”.The text of this Sub-Clause is deleted in its entirety and replacedwith the following:“Any Dispute between the Parties shall be submitted for resolutionand determined in accordance with the Dispute Resolution Terms &Procedures which terms and procedures the Parties agree shallapply to and govern all Disputes.”The text of this Sub-Clause is deleted in its entirety and replacedwith the words “[NOT USED]”.68
Clause & HeadingModification / Amendment/ Insertion/ Deletion20.4The text of this Sub-Clause is deleted in its entirety and replaced withObtaining Disputethe words “[NOT USED]”.Adjudication Board’sDecision20.5The text of this Sub-Clause is deleted in its entirety and replaced withthe words “[NOT USED]”.The text of this Sub-Clause is deleted in its entirety and replacedwith the words “[NOT USED]”.The text of this Sub-Clause is deleted in its entirety and replacedwith the words “[NOT USED]”.The text of this Sub-Clause is deleted in its entirety and replacedwith the words “[NOT USED]”.Insert the following new Clause 21:“The Contractor hereby grants to the Employer the option topurchase spare parts for the Permanent Works on the terms set outin the Spare Parts Option Schedule.”Amicable Settlement20.6Arbitration20.7Failure to comply with Dispute Adjudication Board’sDecision20.8Expiry of Dispute Adjudication Board’sAppointment21.Option For SpareParts69
Appendix CC 4Progress Reporting Requirements1.Monthly Progress ReportsThe Contractor shall submit monthly progress reports to the Engineer. Each report shallcover a period of a calendar month save that the first report shall cover the period up tothe end of the first calendar month following the Commencement Date. Reports shall besubmitted by the 7th (seventh) day of the month following the month to which the reportrelates. Each report shall include:1.1an executive summary;1.2charts and detailed descriptions of progress in narrative format, including eachstage of design, Contractor’s Documents, procurement, manufacture, deliveryto Site, construction, erection, commissioning and testing;1.3for the manufacture of each main item of Plant, the name of the manufacturer,manufacturers location, percentage progress and the actual or expected dates ofcommencement of manufacture, inspections, pre-delivery tests and delivery toSite;1.4schedule of forecast and actual, together with three month look-ahead, ofmajor activities and events;1.5comparisons of actual and planned progress;1.6colour photographs in digital format showing progress in the course ofmanufacture and on the Site, with each set comprising at least 20 colourphotographs, individually marked with the date taken, a description of thesubject and the direction of view;1.7details of actual and planned resources;1.8details of the Contractor’s Equipment and personnel at Site for the relevantperiod;1.9schedule identifying all quality control documents, test results and certificatesissued during the reporting period;1.10a list of proposed Variations detailing their reference numbers and the statusthereof;70
1.11a list of all Variations detailing their reference numbers;1.12a list of site instructions and other instructions received by the Contractor(other than Variations provided for in 1.11) listing the date of receipt and thenature of the instruction;1.13a list of all notified claims for extensions of time or compensation detailing theirreference numbers, the date on which the underlying cause, circumstance orevent arose and when it first came to attention of the Contractor, the claimedadditional cost (and profit where applicable) and/or extension to the Time forCompletion, the dates on which notice and the details thereof were given to theEngineer under clause 20 of the General Conditions of Contract and the statusthereof;1.14a risk register and assessment dealing with all areas of concern including detailsof all notified early warnings and details of other events and circumstances notdealt with above, which may have an adverse cost impact and/or cause delaysand details of the corrective or other measures being adopted, or to be adoptedto mitigate or overcome such cost impact and/or delay;1.15a current register of drawings and other documents submitted to the Engineerduring the reporting period and the prior reporting period, detailing the dateof issue to the Engineer and, if applicable, the date by which the Engineer’sapproval is required;1.16a current list of all drawings and documents issued to the Contractor (includingthe applicable revision) detailing the date of issue and transmittal thereof;1.17safety statistics, including details of any hazardous incidents and activities;1.18a report on industrial relations relevant to the Works including industrialrelations at Site and at places of manufacture;1.19details of payments made and outstanding applications for payment; and1.20such other matters and information (including schedules and charts) as theEngineer may require to be included in the Progress Report from time to time.An electronic copy and two hard copies of each progress report shall be submitted tothe Employer’s home office and, when established, an electronic copy and five hardcopies shall in addition be submitted to the site office.2.Additional Weekly and Daily Progress ReportsFollowing mobilization at site the Contractor’s site office shall, in addition, submit to the Engineer (in electronic copy and six hard copies):71
2.1weekly progress reports which shall summarize site activities, indicate numbers ofthe various classes of workmen employed on site, the plant and equipment on siteand record any areas of concern and details of corrective action being taken; and2.2daily activity reports summarizing the main activities to be undertaken eachday, noting any special activities that require witnessing, together with fullparticulars and details of obstructions, modified or additional work, incidents,health and safety matters and the number of men employed in each of theseveral portions of the work in progress.3.Reports on Disputed WorkFor work in respect of which the entitlement of the Contractor is disputed or of anuncertain nature, the Engineer may require the Contractor to submit work detail sheets,for the approval of the Engineer, as a record of work done. The sheets shall be “For recordpurposes only” and shall not give rise to or evidence any entitlement to an extension to theTime for Completion or any additional compensation.4.Additional ReportsThe Engineer shall be entitled to request the Contractor to provide additional reportswhen in his opinion they are warranted to monitor the progress of the works.72
Appendix CC 5Variation Pricing Methodology Adjustments to the Contract Price for Variations shall be quoted on a fair, reasonable andcompetitive basis (but not on daywork rates unless required by the Engineer under clauseSub-Clause 13.6) having regard to and taking into account (as applicable):1. the materials, Contractor’s Equipment, resources and other facilities already thenavailable to the Contractor;2.the Cost if any to be incurred or saved in the execution of or generally in connectionwith the proposed Variation;3.profit calculated at the Stipulated Profit Percentage (on the basis, however, that wherethe Variation reduces the scope of work the Contractor is entitled to retain his profitthereon except where the Variation in question is attributable to any negligence, failure,delay or default on the part of the Contractor);4. any over or under-recovery of overheads by the Contractor in consequence of theproposed Variation;5. the Cost if any of any partial execution of the Works rendered useless by theproposed Variation;6.the Cost if any to be incurred or saved in making necessary alterations to Plant and/orMaterials already manufactured or in the course of manufacture or of any work done thathas to be altered in consequence of the proposed Variation;7. the Cost if any to be incurred by the Contractor by the actual disruption of theprogress of the Works.The Contractor shall provide a detailed cost and price breakdown, to such level of detail togetherwith such supporting information as the Engineer may reasonably require, to permit the Engineerto carry out a detailed analysis of prices and cost for the purposes of valuing the proposedVariation.73
Appendix CC 6Dispute Resolution Terms & Procedures1 .I n t e n t1.1The Employer and the Contractor record their intention that disputes,wherever possible and in the interest of preserving the Parties’ long termrelationship, be resolved through non-adversarial means and not be escalatedto higher levels unless they remain unresolved after having been addressed atthe most appropriate level.1.2The Parties have accordingly agreed that all disputes shall be submitted forresolution and determined in accordance with the Dispute Resolution Terms &Procedures set forth herein, which terms and procedures the Parties haveagreed shall apply to and govern all Disputes.2.Referral of a Dispute2.1If a dispute arises between the Parties then such dispute shall be submitted, inaccordance with these Dispute Resolution Terms & Procedures:2.1.1in the first instance to the Project Executives for resolution;2.1.2secondly, failing resolution by the Project Executives, to mediation; and2.1.3failing resolution by mediation, to arbitration for final determination.2.2Only the Employer’s Project Manager (on behalf of the Employer), the ContractorRepresentative (on behalf of the Contractor), a Party’s Project Executive or adirector of a Party or his nominee for such purpose shall be entitled to submit adispute for resolution. For the purpose hereof a director of party includes acorresponding executive for non South African entities.3.Referral To Project Executives3.1Either Party may, via its appropriate representative in terms of clause 2.2, bywritten notice to the other Party (hereinafter “the Dispute Referral Notice”)refer a dispute to the Project Executives for resolution.3.2The Dispute Referral Notice shall:3.2.1identify the dispute and the result sought; and74
3.2.2be copied to the Engineer (unless there is no Engineer and provided thatsame shall not be required after the date of issue of the Performance Certificate).4.Mediation If the Project Executives fail to resolve the dispute within 21 (twenty one) days of suchdispute having been referred to them, either Party (hereinafter “the referring Party”)shall be entitled, via its appropriate representative in terms of clause 2.2 and by writtennotice to the other Party (hereinafter “the Mediation Notice”) to refer that dispute to amediator who shall endeavour to assist the Parties to settle the dispute by agreement inaccordance with the following provisions:4.1the Mediation Notice shall include the names of not less than 3 (three) naturalpersons which the referring Party proposes for appointment as the mediator;4.2should the Parties fail to agree on a mediator within 10 (ten) days of delivery ofthe Mediation Notice, the mediator shall be appointed, at the request of eitherParty (which request shall be copied to the other Party), by the Chairman for thetime being of the Association of Arbitrators (or its successor) or his nominee;4.3the mediator shall endeavour to assist the Parties to settle the dispute byagreement and, unless agreed otherwise by the Parties in writing, the mediatorshall not adjudicate the dispute, recommend a solution to the dispute, advise aParty on the merits of the dispute or negotiate a settlement of the dispute onbehalf of a Party;4.4the mediator shall have the discretion to conduct the mediation of the dispute insuch manner as the mediator determines;4.5the Parties shall abide by all decisions of the mediator regarding the process andconduct of the mediation;4.6the mediator may communicate with the Parties orally or in writing, together orindividually, and may convene a meeting or meetings at a venue in Sandton,Republic of South Africa, to be determined by the mediator after consultingwith the Parties;4.7each Party undertakes to co-operate in good faith with the mediator in theconduct of the mediation of the dispute;4.8the mediation of the dispute shall terminate when:4.8.1the mediator receives written notice from a Party stating that such Partywithdraws from the mediation, provided that no Party shall withdraw fromthe mediation without first orally notifying the mediator and giving the75
mediator a reasonable opportunity to mediate on that Party’s continued participation in themediation;4.8.2the Parties receive written notice from the mediator stating that in themediator’s opinion there is no reasonable prospect of a settlement andtherefore the mediator terminates the mediation;4.8.3the Parties conclude a written agreement between themselves in whichthe Parties set out the terms upon which the Parties settle the dispute orany part thereof (the “Settlement Agreement”), provided that the Partiesand mediator may agree in writing to continue the mediation in respect ofany part of the dispute that remains unsettled after the conclusion of theSettlement Agreement; or4.8.4the time period set out in clause 5.1 expires;4.9no agreement to settle the dispute shall be deemed to be reached unless and untilsuch agreement is reduced to writing and signed by the Parties;4.10in the event that a Settlement Agreement is not reached in the mediation, theParties’ submission of the dispute to mediation shall not prejudice any of theParties’ rights;4.11in the event that the Parties settle the dispute or any part thereof in a SettlementAgreement, then that Settlement Agreement shall be a final and bindingsettlement of the dispute or such part thereof (as the case may be);4.12the mediator may not disclose to any person (other than a Party) any informationfirst obtained during the mediation of the dispute without the prior writtenconsent of the Parties, unless compelled by law to do so;4.13a Party may not disclose to any person (other than the mediator or that Party’sprofessional advisors) any information first obtained from a Party during themediation of the dispute without the prior written consent of the Party fromwhom that information was obtained, unless compelled by law to do so;4.14the mediator may not disclose to any person (including a Party) informationdisclosed by the other Party to the mediator, without the prior consent of thedisclosing Party;4.15the Parties agree that they will not at any time before, during or after themediation compel the mediator to give evidence concerning informationdisclosed during the mediation of the dispute;4.16nothing in this clause 4 shall prevent a Party from placing on record after themediation any information that is substantially similar to information disclosed bythat Party during the mediation, provided that Party does not state or imply that76
such information was stated or disclosed during the mediation; and4.17each Party shall pay the mediator’s fee plus any reasonable out of pocket expensesactually incurred by the mediator in the mediation of the dispute in equalproportions.5.Arbitration 5.1If the dispute or any part thereof (as the case may be) is not settled by mediationwithin 30 (thirty) days from the date of appointment of the mediator, or suchlonger period as the Parties may agree in writing, either Party (hereinafter “theReferring Party”) shall be entitled to refer that dispute to arbitration in terms ofthis clause 5 by notifying the other Party in writing of its intention to refer suchdispute to arbitration (hereinafter “the Arbitration Notice”). The ArbitrationNotice shall include the names of not less then 3 (Three) natural persons whichthe Referring Party proposes for appointment as arbitrator.5.2Should the Parties fail to agree to an Arbitrator within 7 (seven) days of theArbitration Notice, the arbitrator shall be appointed, at the written request ofeither Party (which request shall be copied to the other Party), by the Chairmanfor the time being of Association of Arbitrators (or its successor) or his nominee.5.3Unless otherwise expressly agreed by the Parties in writing:5.3.1the arbitration proceedings shall be held at Sandton, Republic of SouthAfrica and shall be conducted under the Standard Procedure Rules ofthe Association of Arbitrators (“the Rules”);5.3.2the arbitrator shall be entitled, on the written application of either Partyat any time (to be made in manner acceptable to the arbitrator), toamend the Rules and/or any time period provided for therein or tosupplement the Rules in the interests of resolving the subject disputeeffectively, efficiently and economically (but provided that no suchamendment or supplemental rule shall operate retrospectively);5.3.3the arbitration proceedings shall be conducted as expeditiously as possiblebut the time periods provided for in Section 23(a) of the Arbitration Act 42of 1965 (as amended) (“the Arbitration Act”) shall not apply thereto;5.3.4the decision of the Arbitrator shall be final and binding and there shall beno right of appeal (notwithstanding the provisions of the Rules);5.3.5the arbitrator shall be entitled to determine his own jurisdiction and shallbe entitled to mero motu raise matters mutatis mutandis as if the disputewas being heard before a Judge in the High Court of South Africa(Transvaal Provincial Division);77
5.3.6the Arbitrator shall have the full power to open up, review and revise anycertificate, determination, instruction, opinion or valuation of the Engineer relevant to the dispute;5.3.7nothing shall disqualify the Engineer from being called as a witness andgiving evidence before the arbitrator on any matter whatsoever relevantto the dispute and neither Party shall be limited in the proceedings beforethe arbitrator to the evidence or arguments previously put before theEngineer.5.4The Employer shall, where:5.4.1it is a party to arbitration proceedings with any Other Project Contractorin connection with the Project (“the Initiated Proceedings”); and5.4.2it is (or may be) entitled to relief against the Contractor in connection withthe Contract which is dependant on the determination by the arbitrator in the Initiated Proceedings of substantially the same question of law or fact,be entitled to join the Contractor to the Initiated Proceedings and the Contractorhereby similarly consents to Other Project Contractors being joined to arbitrationproceedings under the Contract on mutatis mutandis the same terms.To this end the Arbitrators in the Initiated Proceedings shall have the power, onapplication by the Employer, to supplement the Rules to provide for such joinder.5.5The provisions of this clause 5 shall prevail to the extent of there being any conflictbetween the Rules and this clause 5.5.6Subject to the other Provisions of this clause 5, the arbitration proceedingscontemplated herein shall be held in accordance with the provisions of theArbitration Act.6.Prescription & Ability to Fully Ventilate Disputes6.1Without detracting from the effect (if any) of any other act taken by any Partywhich may affect the issue of prescription, the Parties irrevocably agree andacknowledge that the dispute in question will be deemed to have beensubjected to arbitration as contemplated in Section 13 of the Prescription ActNo. 68 of 1969 (or, as the case may be, the corresponding provision in anyamendment thereto or in any replacement legislation) when the ArbitrationNotice has been delivered in terms of clause 5.1.6.2If a Party’s claim would prescribe if the steps contemplated in clauses 3 and/or 4were to be followed prior to arbitration, that Party shall, notwithstanding anything78
to the contrary, be entitled to refer the dispute in question directly to arbitration under clause 5.6.3The provisions of clauses 2, 3 and 4 are not intended to prejudice the right ofeither Party to fully ventilate disputes once engaged in arbitration proceedingsunder clause 5. Accordingly, subject only to the Rules and the provisions of clause5:6.3.1each Party shall, in any arbitration proceedings pursuant to the Contract,be entitled to raise all such claims and counterclaims as it wouldordinarily be entitled to raise if the provisions of clauses 3 and 4 wereexcluded from the Contract; and6.3.2a Party shall be entitled to ratify, adopt and/or accept, as applicable, areferral to arbitration on its behalf which has not been made by aperson contemplated in clause 2.2.7.General Provisions7.1These Dispute Resolution Terms & Procedures:7.1.1constitute an irrevocable consent by the Parties to the arbitration andother proceedings contemplated in terms hereof and neither of theParties shall be entitled to withdraw from the provisions of theseDispute Resolution Terms & Procedures or claim at any arbitration orother proceedings contemplated herein that he is not bound by theseDispute Resolution Terms & Procedures or such proceedings;7.1.2are severable from the rest of the Contract and shall remain in effectdespite the termination, cancellation, invalidity or alleged invalidity ofthe Contract for any reason whatsoever.7.2Any proceedings contemplated herein may be commenced prior to or after thecompletion of the Works. The obligations of the Parties and the Engineer shallnot be altered by reason of any arbitration or other proceedings contemplatedherein being conducted during the progress of the Works.8.Jurisdiction of Competent Courts Nothing in these Dispute Resolution Terms & Procedures shall preclude either Partyfrom seeking interim and/or urgent relief from a Court of competent jurisdiction andto this end the Parties hereby consent to the jurisdiction of the High Court of SouthAfrica (Witwatersrand Local Division).79