NJPC Building Nominated Subcontract - Edition 1 (10/04/2000)

NJPC 2000

NJPC Building Nominated Subcontract

SANCTIONED BY THE NATIONAL JOINT PRACTICE COMMITTEE AND THE ZIMBABWE CONSTRUCTION INDUSTRY COUNCIL


ARTICLES OF AGREEMENT made the

day of

BETWEEN

of (or whose registered office is at)

(hereinafter called ‘the principal contractor ’) ’) of the one part, and


(hereinafter called ‘the nominated subcontractor ’) ’) of the other part: SUPPLEMENTAL TO AN AGREEMENT(hereinafter

MADE the

day of

referred to as ‘the principal contract’) BETWEEN:


(hereinafter called ‘the employer ’) ’) of the one part, and the principal contractor of of the other part.

WHEREAS: 1. the principal contractor wishes to have provided the nominated subcontract works as detailed in the appendix to this agreement. 2. the nominated subcontractor , prior to signing this agreement has had a reasonable opportunity to inspect all the provisions of the principal contract except the detailed prices of the principal contractor .

Edition One

Page 1 of 42


NOW IT IS AGREED THAT: 1. The nominated subcontractor will provide the nominated subcontract works in accordance with the conditions of contract. 2. The principal contractor will pay the nominated subcontractor the the amount due in accordance with the conditions of contract.

AS WITNESS our hand the day and year above written WITNESS: PRINCIPAL CONTRACTOR

WITNESS: NOMINATED SUBCONTRACTOR

Edition One

Page 2 of 42


APPENDIX CONTRACTING AND OTHER PARTIES (1.10)

Principal contractor Postal Address

Physical Address

Telephone

Facsimile

E-mail

(1.10)

Nominated subcontractor Postal Address

Physical Address

Telephone

Facsimile

E-mail

Edition One

Page 3 of 42


(1.10)

Employer Postal Address

Physical Address

Telephone

Facsimile

E-mail

(46.5)

Adjudicator

(1.10)

Postal Address

Physical Address

Telephone

Facsimile

E-mail

CONSULTANT TEAM (46.7)

Administrator

(1.10)

Postal Address

Physical Address

Telephone

Facsimile

E-mail

Edition One

Page 4 of 42


(46.18) (1.10)

Architect Postal Address

Physical Address

Telephone

Facsimile

E-mail

(46.18) (1.10)

Quantity Surveyor Postal Address

Physical Address

Telephone

Facsimile

E-mail

(46.18) (1.10)

Civil Engineer Postal Address

Physical Address

Telephone

Facsimile

E-mail

Edition One

Page 5 of 42


(46.18) (1.10)

Structural Engineer Postal Address

Physical Address

Telephone

Facsimile

E-mail

(46.18) (1.10)

Electrical Engineer Postal Address

Physical Address

Telephone

Facsimile

E-mail

(46.18) (1.10)

Mechanical Engineer Postal Address

Physical Address

Telephone

Facsimile

E-mail

Edition One

Page 6 of 42


CONTRACT PARTICULARS (46.51)

The nominated subcontract works

(46.70)

The site

COMPLETION (46.20)

Date for completion (no Sections) Where there are Sections: Section 1

Section 2 Section 3

Section 4

Section 5

Edition One

Page 7 of 42


PAYMENT (46.48)

Nominated subcontract sum

$ (words)

(46.40)

Lump sum contract

(Delete as appropriate)

This is a lump sum contract This is not a lump sum contract

Interim payment interval


Monthly

Stage payments

(39.1)

Fluctuation provisions Fluctuation provisions to apply


Firm price Fluctuation

(37.1)

Stage payments

the following are the stages that the works shall have reached to entitle the nominated subcontractor to to receive stage payments: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Edition One

Page 8 of 42


(46.57)

(Delete/complete as appropriate)

Pricing document

BILL OF QUANTITIES

SCHEDULE OF RATES

CONTRACT SUM ANALYSIS

PRICED SPECIFICATION (name other document)

(state percentage)

Retention percentage

%

(38.1)

Interim payment certificate date certificate date

(38.6)

Period for payment of interim payment by the employer from from date of interim payment certificate

th

(25 of the month unless otherwise stated here)

(10 days unless other wise stated here)

(date) (34.1)

(34.4)

Edition One

(amount)

Date and amount of advance payment

Rules for repayment of advance payment

Page 9 of 42


(41.1)

Currency of account

Currency

Percentage

Fixed exchange rate

CONTRACT VARIABLES (5 days unless otherwise stated here)

(46.21)

Working week

(46.25)

Defects liability period

(46.33)

Final account

(45 days unless otherwise stated here

(46.71)

Snagging period

(10 days unless otherwise stated here)

Period for production of programme

(15 days unless otherwise stated here)

(6.1)

(6.4)

(7.10)

(14.1)

(12 months unless otherwise stated here)

Number of copies of reviewed (4 copies unless otherwise stated programme to be supplied by here) nominated subcontractor Number of copies of drawings etc. (4 copies unless otherwise stated to be produced by the nominated here) subcontractor Insurance

Excesses: Each and every loss from storm, tempest, floodwater damage, subsidence collapse and resultant damage caused by defective design, plan, specification, workmanship or materials

(Delete where appropriate)

Project insurance Principal contractor’s insurance

$

each and every other loss $

(38.12.1)

Edition One

Financial institution for opening of joint accounts

Page 10 of 42


DOCUMENTATION (46.46)

Nominated subcontract documents

(to consist of the documents stated here, in the order of precedence listed)

(46.47)

Nominated subcontract drawings

(the drawings used to prepare the tender documents as listed here)

(46.50)

Nominated subcontract tender documents

Edition One

(the following documents comprising the nominated subcontractor’s tender )

Page 11 of 42


CONDITIONS OF CONTRACT CONTENTS Interpretation 1. 1 1. 10 1. 12

Interpretation Notices Law

Objective 2. 1 3. 1 4. 1

Notice of principal contract Rights and benefits under the principal contract Execution of subcontract works

Preparation 5. 1 6. 1 7. 1 8. 1 9. 1 10 .1 11. 1 12. 1 12. 3 13. 1 14. 1 14. 2 14. 7 14. 11 15. 1

Documents Programme Design Royalties, patent rights and copyright Confidentiality Subcontractor's representative Compliance with requirements Work's risk Employer's risk Indemnities Insurance Project insurance Principal contractor’s insurances Subcontractor’s insurances Plant and tools

Execution 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27.

1 1 1 1 1 1 1 1 1 1 1 1

Edition One

Commencement Access to the subcontract works Site safety Draft instructions Directions Setting out Assignment Subcontracting Provision of facilities Interference with property Antiquities Site meetings

Page 12 of 42


Completion 28. 29. 30. 31. 32. 33.

1 1 1 1 1 1

Acceleration Deceleration Adjustment of time Completion Early occupation Defects liability period

Payment 34. 1 35. 1 36. 1 37. 1 38. 1 38. 11 39. 1 39. 6 39. 8 39. 9 40. 1 41. 1

Advance payment Adjustments to the subcontract sum Additional costs Set-off Payments to subcontractor Retention Fluctuations Firm price Fluctuation of wages Fluctuations in price of materials and fuel Final account Currency of account

Cancellation 42. 1 43. 1 44. 1

Cancellation by principal contractor Cancellation by the subcontractor Cancellation of the principal contract

Disputes 45. 1 45. 2 45. 10

Disputes Adjudication Arbitration

Definitions 46. 1

Edition One

Definitions

Page 13 of 42


INTERPRETATION Interpretation

Notices

Law

Edition One

1.1

Any reference in this agreement agreement to a provision in an Act of Parliament or statutory instrument or Regulation or Order shall include any modification, re-enactment or extension of it for the time being.

1.2

Words appearing in bold are defined words in clause 43, which definitions shall be read in conjunction with this clause when interpreting the conditions of contract.

1.3

Words incorporating the singular meaning shall include the plural and vice versa, and where appropriate, words denoting the masculine gender shall include the feminine gender and words denoting natural persons shall include firms and corporations and all such words shall be construed interchangeable in that manner.

1.4

References in this agreement agreement to clauses refer to clauses to this agreement unless otherwise stated.

1.5

Wherever under this agreement agreement provision is made for the giving or issue of any application, notice, consent, approval, certificate, confirmation or determination by any person, unless otherwise specified such application, notice, consent, approval, certificate, confirmation or determination shall be in writing and signed. The words ‘notify’, ‘certify’, ‘confirm’ or ‘determine’ shall be construed accordingly. Any such notice, consent, approval, certificate, confirmation or determination shall not be unreasonably given, withheld or delayed.

1.6

Neither marginal headings nor punctuation shall affect the interpretation of this agreement. agreement.

1.7

In the event that any part or parts of this agreement is/are agreement is/are determined to be invalid or unenforceable, such determination shall not affect the validity of any remaining portion, which shall remain in force and effect as if this agreement had been executed with the invalid part or parts deleted. It is agreed that the intention of the parties is that they would have executed the remaining portion of this agreement without agreement without including any such part or parts, which may for any reason be declared invalid or unenforceable.

1.8

All additions, amendments and variations to this agreement shall be binding only if in writing and signed by the duly authorised representatives of the principal contractor and of the nominated subcontractor .

1.9

This agreement agreement supersedes any previous agreements or arrangements between the parties whether oral or in writing and represents the entire understanding between the parties.

1.10

In respect of a notice to be given, written acknowledgement of receipt shall be obtained.

1.11

The addresses, facsimile numbers or e-mail addresses for sending notices or correspondence to and for service of the employer , the principal contractor , the nominated subcontractor , the administrator and and the other members of the consultant team shall be those stated in this agreement agreement or such other address, facsimile number or e-mail address as the party to be served may have previously notified in writing to all other relevant persons.

1.12

The only law applicable to this agreement is the law of the Republic of Zimbabwe.

Page 14 of 42


OBJECTIVE Notice of Principal Contract

2.1

The nominated subcontractor shall be deemed to have notice of all the provisions of the principal contract except contract except detailed prices.

Rights and Benefits under Principal Contract

3.1

The principal contractor will will so far as he lawfully can at the request and cost of the nominated subcontractor obtain obtain any right or benefit of the principal contract so far as the same is applicable to the nominated subcontract works but not further or otherwise.

Execution of Nominated subcontract Works

4.1

The nominated subcontractor shall shall carry out and complete the nominated : subcontract works: works • • •

4.2

as shown and described by the nominated subcontract documents; documents; by the date or dates for completion; completion; in accordance with the provisions of this agreement. agreement.

The nominated subcontractor , when so requested by the principal with all such information in contractor , shall provide the principal contractor with regard to the nominated subcontract works as works as may be required.

PREPARATION Documents

Programme

5.1

The principal contractor shall shall arrange for the signing of this agreement. agreement.

5.2

The administrator shall confirm to the principal contractor that an NJPC building employer / nominated sub contractor agreement agreement has been entered into between the employer and and the nominated subcontractor prior prior to the nominated subcontractor commencing commencing work.

5.3

The original nominated subcontract documents documents shall be held by the principal contractor and shall be produced as and when required by the nominated subcontractor . The principal contractor shall furnish to the nominated subcontractor one copy of the signed nominated subcontract documents at the expense of the principal contractor . An additional set of the nominated subcontract documents documents shall be kept at the site by the principal contractor to which the nominated subcontractor shall have access.

5.4

None of the nominated subcontract documents documents shall be used by either contracting party, their servants or agents, for any purpose other than in connection with this agreement. agreement.

5.5

The nominated subcontractor shall provide to the principal contractor all as-built drawings, manuals and other documentation due to be supplied in accordance with the nominated subcontract documents. documents. The nominated subcontractor shall submit the same no later than 10 days after days after issue of the completion certificate. certificate.

6.1

The nominated subcontractor shall, within 15 days or days or such other period as may be stated in the appendix of the instruction to proceed submit to the two copies of the nominated subcontractor’s programme. administrator two programme.

6.2

The nominated subcontractor’s programme shall contain the following: • • • •

6.3

Edition One

start and finish dates (including any known sectional completion dates) dates) key activity dates information required dates information required under clause 7.4.2

Upon receipt of the nominated subcontractor’s programme the principal contractor shall shall review the same within 5 days. days. One copy of the nominated subcontractor’s programme programme shall be returned to the nominated subcontractor marked either ‘reviewed’ or ‘resubmit’. In the case of Page 15 of 42


6.4

Design

Edition One

‘resubmit’, the principal contractor shall state the reasons for resubmission and the nominated subcontractor may amend the nominated subcontractor’s programme and resubmit it within 5 days. days. No review of the nominated subcontractor’s programme programme by the principal contractor shall relieve the nominated subcontractor of the nominated subcontractor’s obligations under this agreement. Within 2 days days of the nominated subcontractor’s programme programme being reviewed, the nominated subcontractor shall supply to the principal 4 copies of the nominated subcontractor’s programme or such contractor 4 other number as may be specified in the appendix. appendix.

6.5

If at any time it appears to the principal contractor that that actual progress of the nominated subcontract works works does not conform to the nominated subcontractor’s programme programme which has been reviewed, the nominated subcontractor shall submit within 5 days, days, at the request of the principal contractor , a revised nominated subcontractor’s programme showing programme showing the modifications to such nominated subcontractor’s programme programme to ensure completion of the nominated subcontract works by the date for completion. completion.

6.6

Any revised nominated subcontractor’s programme shall follow the review procedure set out above.

7.1

Except as provided in this clause, the nominated subcontractor shall shall not be responsible for the design of the nominated subcontract works. works.

7.2

Where it is so stated in the nominated subcontract documents, documents, the nominated subcontractor shall carry out the design of the nominated subcontractor’s designed works and works and shall, in so doing, be fully responsible for the same and have the same liability to the principal contractor as as that of an appropriate professional designer.

7.3

Where the nominated subcontractor specifies a proprietary designed item the nominated subcontractor through the supplier, is responsible for the design of the same and the item shall form part of the nominated subcontractor’s designed works. works.

7.4

The nominated subcontractor shall subcontractor’s designed works: works:

as

part

of

the

nominated

7.4.1

co-operate with the principal contractor , the consultant team team and such other persons as may be necessary or as the principal contractor may direct;

7.4.2

take responsibility for the programming of the nominated subcontractor’s designed works. works. The nominated subcontractor is is to issue a design programme showing a schedule of drawings and their issue dates and the dates by which review under clause 7.11 is to be completed. If the nominated subcontractor fails to issue the design programme timeously, responsibility for delays as a result of late review of drawings shall rest with the nominated subcontractor ;

7.4.3

give of all consents, comments, approvals or instructions required so as not to delay or disrupt the progress of the works. works.

7.5

The principal contractor shall issue, prior to any nominated subcontract a full set of works being works being carried out on site, site, to the nominated subcontractor a co-ordinated services drawings together with all subsequent revisions as provided to the principal contractor by the administrator . The nominated subcontractor shall ensure that the nominated subcontractor’s designed works are works are in accordance with the latest revision of the co-ordinated services drawings.

7.6

The principal contractor shall be entitled to issue directions to the nominated subcontractor in respect of matters affecting the nominated subcontractor’s designed works. works. Page 16 of 42


7.7

Any drawing issued by either the nominated subcontractor or or the principal shall have on it the following items of information: contractor shall • • • • •

Royalties Patent Rights and Copyright

Edition One

revision number date of revision concise description of the change changes highlighted by clouding all earlier revision information.

7.8

The nominated subcontractor shall, in relation to the nominated subcontractor’s designed works works comply with all statutory requirements and obtain all necessary approvals, consents and permissions required by the statutory requirements. requirements.

7.9

The nominated subcontractor shall be responsible for all mistakes, inaccuracies, discrepancies and omissions in the design of the nominated subcontractor’s designed works. works.

7.10

The nominated subcontractor shall shall provide the principal contractor , free of charge, 4 copies or such other number as may be specified in the appendix of appendix of all drawings, details, specifications, levels, setting out dimensions and calculations as are necessary to explain, amplify, show or describe the nominated subcontractor’s designed works works at such times as not to delay or disrupt the progress of the works and works and having regard to any schedule for the release of information which may be agreed between the principal contractor and the nominated subcontractor . The relevant number of copies applies to each submission including all revisions.

7.11

The principal contractor will will review any design information submitted by the nominated subcontractor and shall return one copy of the same to the nominated subcontractor . The returned information shall be marked either ‘reviewed’, ‘reviewed as noted’ or ‘resubmit’. In the case of ‘reviewed’ the may proceed to fabrication or construction on the nominated subcontractor may basis of the information as submitted. In the case of ‘reviewed as noted’ the nominated subcontractor may proceed to fabrication or construction taking into account the notes provided by the principal contractor . In the case of ‘resubmit’ the the nominated subcontractor must resubmit the information for review prior to commencing fabrication or construction.

7.12

In the event of a resubmission of information for review, the review shall be carried out within a time period equal to that allowed by the nominated subcontractor in the design programme.

7.13

No review carried out by or direction given by the principal contractor shall shall relieve the nominated subcontractor of of any responsibility or liability.

7.14

Any errors, divergences, omissions or discrepancies in all or any of the documents prepared by the nominated subcontractor as part of the nominated subcontractor’s designed works works shall be corrected and there shall be no addition to the nominated subcontract sum. sum. The nominated subcontractor shall indemnify the principal contractor against any cost, liability, loss, claim or proceedings suffered or incurred.

8.1

The nominated subcontractor shall indemnify the employer and the principal contractor from and against all claims, proceedings, damages, costs and expenses to which the employer or the principal contractor may may be put by reason of the nominated subcontractor infringing or being held to have infringed any patent or other rights in relation to any patented articles, processes, inventions or copyright or other intellectual property rights unless the nominated subcontractor uses the same as specified by the principal contractor . In which case all royalties, damages or other monies for which the nominated subcontractor may be liable to pay shall be reimbursed by the principal contractor .

Page 17 of 42


8.2

In the event of any claims being made or proceedings instituted against the the principal contractor to which the above indemnity applies, employer or the principal the employer or the principal contractor shall shall promptly notify the nominated subcontractor of the same. The nominated subcontractor may in the employer’s or principal contractor’s contractor’s name deal with such claim. If the nominated subcontractor fails to notify the employer or the principal within 20 days that intends to deal contractor within days that the nominated subcontractor intends with the same then the employer or the principal contractor shall shall be free to deal with the claim.

9.1

The nominated subcontractor shall not, without the prior approval of the use in any publicity or advertising or publish alone or in principal contractor use conjunction with any other person, any articles, photographs or other illustrations relating to the works. works.

9.2

None of the contract documents shall be used by either contracting party, their servants or agents, for any purpose other than in connection with this agreement.

9.3

Except where necessary for the execution of the nominated subcontract works neither works neither party shall at any time for any reason disclose to any person or otherwise make use of any confidential information which has come into that party’s possession relating to the nominated subcontract works or concerning the other party without that party’s consent. This restriction shall continue to apply, without limitation in point of time, unless and until such information comes properly into the public domain.

Nominated subcontractors Representative

10.1

The nominated subcontractor shall, during working hours, keep on site during the execution of the nominated subcontract works works a competent person or persons to administer and control the nominated subcontract works. works. The nominated subcontractor shall notify the name(s) of such representative(s) to the principal contractor in in writing.

Compliance with Requirements

11.1

The nominated subcontractor shall comply with, and give all notices required by the statutory requirements except requirements except to the extent that such notices shall have been given by or on behalf of the principal contractor .

11.2

If the nominated subcontractor shall find any divergence between the nominated subcontract documents or directions and the statutory requirements, requirements, the nominated subcontractor shall immediately notify the principal contractor specifying the divergence. The principal contractor shall issue a direction as to the manner in which any such divergence shall be resolved.

11.3

The nominated subcontractor shall pay and indemnify the principal contractor against liability in respect of any fees or charges legally demandable under any of the statutory requirements with regard to the nominated subcontract works. works.

11.4

The nominated subcontractor shall comply with all the duties and obligations under and pursuant to the statutory requirements. requirements. The principal contractor may issue directions to those on site site concerning the statutory requirements. requirements. Those on site shall site shall comply with any such directions. directions.

12.1

The nominated subcontractor shall take full responsibility for the care of the nominated subcontract works from works from and including the date of the nominated subcontractor obtaining access to the site up to and including the date of issue of the completion certificate. certificate. Immediately following the issue of the completion certificate responsibility for the care of the the nominated subcontract works works shall pass to the principal contractor . In the case of sectional completion, responsibility for the care of that portion of the nominated subcontract works for works for which a completion certificate has been issued shall likewise be passed to the principal contractor .

Confidentiality

Works Risk

Edition One

Page 18 of 42


12.2

The nominated subcontractor shall make good physical loss or repair damage to the nominated subcontract works, works, which shall include clearing away and removing from site site all resultant debris, occurring after the commencement date and prior to or on the date of issue of the completion certificate. certificate. Where sectional completion applies, this provision also applies to each section.

Employers Risks

12.3

In the event of physical loss or damage occurring as a result of any of the employers risks risks the nominated subcontractor shall, if and to the extent directed by the principal contractor , rectify the loss or damage. The costs incurred by the nominated subcontractor shall be dealt with under the provisions relating to adjustment of the nominated subcontract sum sum and additional costs. costs. In the case of a combination of risks causing loss or damage the proportional responsibility of the nominated subcontractor , the principal contractor and and the employer shall be taken into account.

Indemnities

13.1

The nominated subcontractor shall in respect of the carrying out of the nominated subcontract works be works be liable for and shall indemnify the principal contractor against any expense, liability, loss, claim or proceedings whatsoever: arising under any statute or at common law in respect of personal injury to or the death of any person; and in respect of any injury or damage to any external property. property. •

•

13.2

If under clause 13.1 the liability is due to any act or neglect of the principal contractor or or the employer or or any person for whom the principal contractor or the employer is responsible then the nominated subcontractor shall shall not be liable for the same. For the avoidance of doubt, the members of the consultant team in the course of their duties on-site are persons for whom the employer is responsible.

Insurances

14.1

Where it is stated in the appendix that appendix that the project insurance provisions insurance provisions shall apply then clause 14.2 to 14.6 shall apply. In any other case the provisions of clause 14.7 to 14.10 shall apply. In either case the provisions of clause 14.11 to 14.13 shall apply.

Project Insurance

14.2

Without prejudice to the nominated subcontractor’s obligations subcontractor’s obligations under clause 12.1 the employer shall shall take out and maintain project insurance. insurance.

14.3

The nominated subcontractor shall carry out the obligations under this agreement agreement in such manner that all requirements, terms, conditions, stipulations and provisos of the said project insurance are, at all times, fully complied with.

14.4

Upon the happening of any event which results in any claim being made under the project insurance insurance the nominated subcontractor shall restore work damaged, replace or repair any unfixed materials or goods which have been destroyed or injured, remove and dispose of any debris and proceed with the carrying out and completion of the nominated subcontract works. works.

14.5

The properly incurred costs of the nominated subcontractor as as valued by the principal contractor shall be paid by the principal contractor to the nominated subcontractor under interim payment certificates. certificates.

14.6

The principal contractor shall produce for inspection full details of and receipts for premiums paid in respect of the project insurance to the nominated subcontractor .

14.7

The principal contractor shall take out and maintain a joint a joint names policy for all risks insurance for the full reinstatement value of the works plus works plus the percentage, if any, stated in the appendix to cover professional fees. The principal contractor shall maintain the joint names policy up to and including the day of issue of the completion certificate or the date of cancellation of the nominated subcontractor’s employment under the cancellation provisions whichever is the earlier.

Principal Contractor’s Insurances

Edition One

Page 19 of 42


Nominated subcontractor’s Insurances

Plant and Tools

14.8

If any loss or damage affecting work executed or materials on site is occasioned by any one or more of the risks covered by the joint names policy then upon discovering the same the nominated subcontractor shall forthwith give notice to the principal contractor of the extent and nature of the loss or damage.

14.9

The nominated subcontractor shall shall restore work damaged, replace or repair any unfixed materials or goods which have been destroyed or injured, remove and dispose of any debris and proceed with the carrying out and completion of the nominated subcontract works. works.

14.10

The properly incurred costs of the nominated subcontractor as as valued by the principal contractor shall be paid by the principal contractor to the nominated subcontractor under interim payment certificates. certificates.

14.11

Without prejudice to the obligation to indemnify the principal contractor under clause 13.1 the nominated subcontractor shall shall take out and maintain insurance in respect of claims arising out of the liability under clause 13.1.

14.12

The insurance shall be taken out with insurers approved by the principal contractor and the nominated subcontractor shall send to the principal for deposit that policy and the premium receipt. contractor for

14.13

If the nominated subcontractor defaults in taking out or in maintaining the insurance, the principal contractor may himself take out appropriate insurance and the nominated subcontract sum shall be adjusted in respect of the amount paid for premiums.

15.1

Without prejudice to the obligations in respect of risks and insurances the plant tools equipment or other property belonging to or provided by the nominated subcontractor , and in any case any materials which are not properly on site for inclusion in the nominated subcontract works shall works shall be at the sole risk of the nominated subcontractor , and any loss or damage to the same or caused by the same shall except for any loss or damage due to any negligence omission or default of the principal contractor or the employer the employer be the sole liability of the nominated subcontractor who who shall indemnify the against any loss claim or proceedings in respect of the principal contractor against same.

15.2

Any insurance against any loss or damage to or caused by the aforesaid plant, tools, equipment or other property shall be the sole concern of the nominated subcontractor .

EXECUTION Commencement

Edition One

16.1

The principal contractor shall issue to the nominated subcontractor an instruction to proceed which will give to the nominated subcontractor at subcontractor at least 5 days prior days prior notice of the commencement date. date.

16.2

The principal contractor will, will, subject to clause 16.3, on the commencement date give to the nominated subcontractor access but not exclusive or uninterrupted access to so much of the site as site as may be required to enable the nominated subcontractor to commence and proceed with the nominated subcontract works works and will, from time to time as the nominated access to subcontract works proceed give to the nominated subcontractor access such further portions of the site as site as may be required to enable the nominated subcontractor to proceed with the nominated subcontract works works and to meet the date for completion. completion.

16.3

The principal contractor may, before the commencement date, date, defer the commencement date for a period of time not exceeding 60 days. days.

16.4

The principal contractor may direct the nominated subcontractor to suspend the whole or any part of the nominated subcontract works. works.

Page 20 of 42


Access to the Nominated subcontract Works

Site Safety

Draft Instructions

17.1

The principal contractor , the employer , the consultant team and their representatives shall have access to the nominated subcontract works, works, workshops and other places of the nominated subcontractor where any work is being prepared executed or stored for the nominated subcontract works during works during working hours.

17.2

The nominated subcontractor shall, shall, by prior arrangement with the principal contractor , for the purpose of the obligations under this agreement, agreement, have access to any section of the nominated subcontract works handed works handed over to the principal contractor .

18.1

The nominated subcontractor will at all times comply with the statutory requirements concerning requirements concerning site safety.

18.2

The principal contractor shall appoint a safety representative for the site, site, whose identity will be made known to the nominated subcontractor .

18.3

The nominated subcontractor , prior to commencing work on site will site will supply the principal contractor with a copy of the nominated subcontractor’s safety policy or confirm in writing that the nominated subcontractor will adopt the principal contractor’s safety contractor’s safety policy.

18.4

The nominated subcontractor , prior to commencing work on site, site, will notify the principal contractor of of the identity of the person who will be responsible for safety on behalf of the nominated subcontractor and who will represent the nominated subcontractor on the site safety committee. The person so notified will attend all safety committee meetings arranged by the principal contractor .

18.5

In the event that the principal contractor’s contractor’s safety officer considers that the nominated subcontractor is contravening any statutory requirement concerning site safety the safety officer can order the immediate suspension of work by the nominated subcontractor until such time as the statutory requirements are complied with.

18.6

If the principal contractor considers it necessary, safety training will be carried out at the site. site. All the nominated subcontractor’s subcontractor’s workers must attend any such safety training organised by the principal contractor .

18.7

The nominated subcontractor shall inform the principal contractor of of any safety-related incident at the earliest opportunity.

19.1

Where under the principal contract the administrator intends to issue an instruction the administrator may submit a draft instruction to the principal contractor with a request that he submit within 5 days or days or such other period as may be agreed, to the administrator : •

•

• • •

19.2

Edition One

an assessment of any adjustment to the contract sum which sum which may result from the issue of the instruction; an assessment of the time within which the instruction would be carried out; an assessment of the amount of any additional costs which may arise; an assessment of any adjustment to the contract period; and such other information as the administrator may may require in writing;.

If the instruction affects the nominated subcontract works works the principal contractor shall immediately supply a copy of the same to the nominated who shall provide the information required under clause 19.1. subcontractor who Such information to be given within 4 days days or such other period as may be agreed of the issue of the draft instruction.

Page 21 of 42


Directions

19.3

Any agreement to the nominated subcontractor’s subcontractor’s assessments shall be confirmed in writing by the principal contractor and and shall be binding on the and the nominated subcontractor . principal contractor and

19.4

If agreement is not reached on all or any of the matters set out in clause 19.1, then:-

19.4.1

the administrator may may nevertheless issue an instruction to the principal contractor in which case the principal contractor may issue a direction direction to the nominated subcontractor to execute the instruction insofar as the same affects the nominated subcontract works. works. The provisions of this agreement with regard to adjustments of time and additional costs may costs may apply to any matters not agreed; or

19.4.2

the the administrator may decide not to issue the instruction to the principal contractor in which case the nominated subcontractor will have no claim whatsoever in respect of any matters so agreed or otherwise at all.

20.1

The nominated subcontractor shall comply with all directions issued directions issued by the principal contractor .

20.2

All directions shall be in writing.

20.3

For the avoidance of doubt it is confirmed that the principal contractor shall shall have power to issue directions to the nominated subcontractor prior prior to but not after the issue of the completion certificate. certificate.

20.4

Where in any direction direction a time period is specified for compliance with the direction the direction the nominated subcontractor shall shall comply with the same.

20.5

If the nominated subcontractor fails fails to comply with any time period specified in a direction, may, after first giving the nominated direction, the principal contractor may, subcontractor 5 subcontractor 5 days days notice of the principal contractor’s contractor’s intention, cause others to be employed to carry out such work as may be necessary to comply with the direction. direction. All costs incurred in obtaining compliance with the direction direction shall be ascertained by the principal contractor and shall be for the nominated subcontractor’s account. subcontractor’s account.

21.1

The principal contractor shall furnish to the nominated subcontractor , by either dimensioned drawings or supervision such information as shall enable the nominated subcontractor to to set out the nominated subcontract works. works.

21.2

The nominated subcontractor shall be responsible for and shall at the nominated subcontractor’s subcontractor’s cost amend any errors arising from the nominated subcontractor’s inaccurate subcontractor’s inaccurate setting out.

Assignment

22.1

Neither the principal contractor nor the nominated subcontractor shall assign any rights or obligations under this agreement without the written consent of the other party.

Subcontracting

23.1

No subcontracting by the nominated subcontractor shall shall in any way relieve the nominated subcontractor from responsibility for the execution and completion of the nominated subcontract works. works.

Provision of Facilities

24.1

The principal contractor shall supply at no cost to the nominated subcontractor such facilities as may be specified in the nominated subcontract documents. documents.

24.2

The nominated subcontractor at at the nominated subcontractor’s expense shall provide and erect all necessary workshops, sheds or other buildings at such places on the site site as the principal contractor shall appoint and the principal contractor agrees to provide facilities to the nominated for such erection. subcontractor for

Setting out

Edition One

Page 22 of 42


Interference with Property

25.1

The principal contractor and the nominated subcontractor respectively, shall not wrongfully use or interfere with the plant, access ways, scaffolding, temporary works, appliances, or other property respectively belonging to or provided by the either of them; provided that nothing in this agreement shall agreement shall prejudice or limit the rights of the principal contractor or the nominated subcontractor in the carrying out of their respective statutory duties or contractual duties under this agreement or agreement or under the principal contract. contract.

Antiquities

26.1

All antiquities, fossils, coins or articles of value and structures and other remains or things of geological, archaeological or historical interest discovered on the site shall site shall be the property of the employer the employer .

26.2

The nominated The nominated subcontractor shall shall take precautions to prevent workmen or any other persons from removing or damaging any article and shall, immediately on discovery notify the principal contractor .

26.3

The principal contractor shall shall issue directions for dealing with antiquities. If the nominated subcontractor , as a result of such directions directions suffers delay and/or additional costs costs then the provisions relating to adjustment of time and additional costs shall costs shall apply.

27.1

The minutes of all site meetings and other relevant meetings are to be circulated within 3 days of days of the meeting.

Site Meetings

COMPLETION Acceleration

28.1

Under the principal contract contract the administrator may, subject to the provisions of this clause, instruct the principal contractor to accelerate the works

28.2

Where the administrator considers that the provisions of this clause shall apply, the administrator shall issue to the the principal contractor an acceleration enquiry. enquiry. Upon receipt of the acceleration enquiry enquiry the shall: principal contractor shall: • •

•

Deceleration

Edition One

confirm that acceleration is achievable; provide an assessment of any adjustment to the contract sum and/or sum and/or any additional costs; costs; confirm that all subcontractors and direct contractors contractors affected by the acceleration enquiry have enquiry have been consulted.

28.3

To the extent that the acceleration enquiry affects the nominated subcontract works immediately upon receipt, the principal contractor shall pass the nominated subcontractor a a copy of the acceleration enquiry. enquiry.

28.4

The nominated subcontractor shall shall reply to the acceleration enquiry within 8 days, days, or such other period as may be agreed between the principal contractor and the nominated subcontractor .

28.5

The principal contractor and the nominated subcontractor shall then timeously timeously agree the revised date for completion or acceleration acceleration against progress and the cost implications.

28.6

If the principal contractor and the nominated subcontractor agree to acceleration acceleration and the cost implications and the administrator issues to the an Instruction then the principal contractor shall shall issue principal contractor an a direction direction to the nominated subcontractor confirming details of the acceleration and acceleration and fix the date for completion. completion. The agreed adjustment to the nominated subcontract sum shall be included in interim payment certificates. certificates.

29.1

Under the principal contract the administrator may, subject to the provisions of this clause, instruct the principal contractor to decelerate the works. works.

Page 23 of 42


29.2

Where the administrator considers that the provisions of this clause shall apply the administrator shall issue to the principal contractor a deceleration enquiry. enquiry. Upon receipt of the deceleration enquiry enquiry the shall: principal contractor shall: • •

•

Adjustment of Time

Edition One

confirm that deceleration is deceleration is achievable; provide an assessment of any adjustment to the contract sum and/or any additional costs; costs; confirm that all nominated subcontractors subcontractors and direct contractors affected by the deceleration enquiry have been consulted.

29.3

To the extent that the deceleration enquiry affects the nominated subcontract works works immediately upon receipt the principal contractor shall shall pass the nominated subcontractor a copy of the deceleration enquiry. enquiry.

29.4

The nominated subcontractor shall shall reply to the deceleration enquiry within 8 days, days, or such other period as may be agreed between the the principal contractor and the nominated subcontractor .

29.5

The principal contractor and the nominated subcontractor shall then timeously agree timeously agree that the deceleration is deceleration is possible and the cost implications.

29.6

If the principal contractor and the nominated subcontractor agree to deceleration deceleration and the cost implications and the administrator issues to the an Instruction then the principal contractor shall shall issue principal contractor an a direction direction to the nominated subcontractor confirming details of the deceleration and fix the date for completion. completion. The agreed cost implications shall be reflected in interim payment certificates. certificates.

30.1

Upon it becoming apparent the nominated subcontractor shall shall give notice to the principal contractor of any event which it is considered may cause a delay to completion. The principal contractor shall shall inform the administrator of any notice received from the nominated subcontractor

30.2

It shall be a prerequisite to an adjustment of time time that the nominated subcontractor shall within 10 days of the event (or, if appropriate, of the event having become apparent) submit an application for an adjustment of time together with a concise statement of the reasons why delay to completion may result. The principal contractor shall inform the administrator of any application by the nominated subcontractor and and submit to the administrator any written notices of the nominated subcontractor .

30.3

The nominated subcontractor shall shall give particulars of the expected effects and estimate the extent of the expected delay to completion.

30.4

The nominated subcontractor shall shall give such further notices, particulars and estimates as may be necessary or as the principal contractor or the administrator may require for keeping up to date such particulars and estimates as may previously have been given

30.5

If upon receipt of any notice, application or particulars referred to above, in the opinion of the administrator the date for completion has been or is likely to be affected by reason of one of the grounds specified in clause 30.10 then the administrator shall, within 10 days days of having received from the nominated all adequate notices, particulars and estimates, consent to the subcontractor all making of an adjustment of time. time.

30.6

Upon receipt of consent from the administrator the principal contractor shall within 3 days make in writing an adjustment of the date or dates for completion.

Page 24 of 42


Completion

Edition One

30.7

The nominated subcontractor shall shall not be entitled to an adjustment of time where the delay was caused by any negligence, omission or default of the nominated subcontractor . Where the delay was caused partially by the nominated subcontractor the right to an adjustment of time shall be reduced accordingly.

30.8

The administrator shall shall inform the principal contractor who who shall, inform the nominated subcontractor of the reasons for refusing or reducing an application for an adjustment of time. time.

30.9

The principal contractor may give to the nominated subcontractor notice that an adjustment of time proposed time proposed by the principal contractor may result in a reduction in time for completion. The nominated subcontractor shall, within 8 days days of receipt of such a notice reply to the principal contractor giving any reasons why the principal contractor should not, in issuing an adjustment of time certificate, time certificate, reduce the time for completion. The principal contractor shall take into account any reasons given by the nominated prior to issuing the adjustment of time certificate. subcontractor prior

30.10

The grounds for adjustment of time are:

30.10.1

any circumstances arising from either the provisions of this agreement or from the execution of the nominated subcontract works; works; or

30.10.2

weather conditions which cause a suspension of the whole or part of the nominated subcontract works; works; or

30.10.3

any breach or act of prevention on the part of the principal contractor or for which the principal contractor is is responsible; or

30.10.4

shortage of labour and/or materials where the nominated subcontractor timeously timeously placed orders and the nominated subcontractor has taken all practicable steps to avoid or reduce such delay; or

30.10.5

force majeure; or

30.10.6

civil commotion, industrial action, riot, war, strike or lockout; or

30.10.7

any change in the statutory requirements; requirements; or

30.10.8

the carrying out by a local authority or statutory undertaker of work in pursuance of its statutory obligations in relation to the nominated subcontract works, works, or the failure to carry out such work.

30.11

If the principal contractor grants grants an adjustment of time, time, the adjustment of time certificate time certificate shall specify in days the days the length of the adjustment under each and every ground applied for and shall in addition fix the revised date for completion. completion.

30.12

The principal contractor shall have power to grant an adjustment of time after the the date for completion completion in respect of grounds for adjustment arising both before and after the date for completion. completion.

31.1

The nominated subcontractor shall complete the the nominated subcontract works by the date or dates, where there are dates stated for parts of the nominated subcontract works for completion stated in the appendix, appendix, subject to the acceleration, acceleration, deceleration or adjustment of time provisions. time provisions.

31.2

Where there are dates for completion completion of parts of the nominated subcontract works the works the provisions of clauses 31.3 to 31.5 shall apply to both the parts of the nominated subcontract works works and to the whole of the nominated subcontract works and shall be construed accordingly.

Page 25 of 42


Early Occupation

Defects Liability Period

Edition One

31.3

The nominated subcontractor shall shall give to the principal contractor , 2 days notice of the snagging period. period. On the first day day of the snagging period the period the principal contractor jointly with the nominated subcontractor and the relevant members of the consultant team team shall commence to carry out an inspection of the nominated subcontract works. works. The principal contractor shall prepare snagging lists. lists.

31.4

The principal contractor shall, within 2 days days of the end of any inspection, deliver copies of the snagging list to and the nominated list to the administrator and subcontractor . After the date for completion the administrator may may instruct the principal contractor that the employer does not wish the nominated to carry out all or any of the items in the list and the principal subcontractor to be required to make an adjustment to the nominated subcontract contractor be sum. sum.

31.5

When, in the opinion of the principal contractor , the matters listed in the snagging lists have lists have been carried out and the nominated subcontract works are complete and have satisfactorily passed any final test that may be prescribed by the nominated subcontract documents, documents, the principal contractor shall shall immediately issue a completion certificate. Completion of the nominated subcontract works shall be deemed to have taken place on the date named in such certificate.

31.6

The nominated subcontractor shall hand over to the principal contractor all as-built drawings, local or statutory authority approved drawings, permits, occupation certificates, manuals and other documentation due to be supplied in accordance with the contract documents. documents. The nominated subcontractor shall submit the same no later than 30 days after days after the issue of the completion certificate. certificate.

32.1

The employer may at any time cause the administrator to give to the an early occupation notice of principal contractor an notice of the employer’s intention employer’s intention to take early occupation of the relevant part of the works. works. Early Occupation shall not take place until such date as may be agreed between the administrator and the principal contractor .

32.2

Where the early occupation notice notice affects any part or parts of the nominated subcontract works the principal contractor shall immediately pass a copy of the same to the nominated subcontractor .

32.3

The provisions of clause 31.3 and 31.4 shall apply to the relevant part. part.

32.4

If the employer does not require the administrator to issue an instruction under clause 31.4, the administrator shall instruct the principal contractor who shall issue a direction to the nominated subcontractor to carry out the matters on the snagging lists lists within such time period as the administrator may specify.

32.5

If the nominated subcontractor considers considers that the early occupation notice will disrupt the nominated subcontract works, works, the nominated subcontractor may refer the early occupation notice to the adjudicator . In such circumstances the early occupation notice notice shall not take effect until after the adjudicator has has given a ruling.

33.1

Any defects defects which appear within the defects liability period shall be specified in defects lists which the principal contractor may deliver to the nominated subcontractor and the administrator from time to time during the shall within 20 days, defects liability period. period. The nominated subcontractor shall days, or such longer period as the principal contractor may may specify, of the issue of the defects list make list make good all matters referred to at no cost to the principal contractor . The administrator may may instruct the principal contractor to to direct that all or some of the matters in a defects list list are not carried out by the nominated subcontractor. subcontractor. The retention shall be adjusted, and the principal contractor shall shall be entitled to payment by the relevant portion of the retention fund. fund.

Page 26 of 42


33.2

If the nominated subcontractor fails to make good any matters referred to on a defects list, may employ and pay others to carry list, the principal contractor may out and complete the same. The retention will retention will be adjusted, and the principal contractor shall be entitled to payment by the relevant portion of the retention fund fund to take account of any costs incurred by the principal contractor under under this provision.

33.3

For the avoidance of doubt, items appearing on snagging lists should lists should not be carried forward to a defects list but should be dealt with under the snagging procedures.

33.4

No defects list shall list shall be issued after the expiry of the defects liability period. period.

33.5

When, upon expiry of the defects liability period, period, in the opinion of the principal contractor any any defects specified defects specified in defects lists have lists have been made good the principal contractor shall issue a certificate of making good defects defects and completion of making good defects defects shall be deemed to have taken place on the date named in such certificate.

PAYMENT Advance Payment

Adjustments to the Nominated subcontract Sum

34.1

Where an advance payment applies, following the presentation by the nominated subcontractor of a guarantee, if required, in terms approved by the principal contractor the amount of the advance payment shall be certified by the principal contractor for for payment to the nominated subcontractor .

34.2

The advance payment shall be payable to the nominated subcontractor on on the date or dates shown in the appendix. appendix.

34.3

The advance payment will not be subject to retention. retention.

34.4

The advance payment shall be repaid and the guarantee reduced in the manner stated in the appendix. appendix.

34.5

If upon the issue of a completion certificate or certificate or operation of the cancellation provisions any balance of the advance payment then outstanding shall immediately become due and payable by the nominated subcontractor to subcontractor to the principal contractor .

35.1

Where an instruction results instruction results in an adjustment to the nominated subcontract sum, sum, it shall be measured and valued as follows:

35.1.1

items of additional work of similar character and executed under similar conditions shall be priced at the rates in the pricing document; document;

35.1.2

items of additional work not of a similar character or not executed under similar conditions shall be priced, where applicable, at comparable rates adjusted to suit the changed circumstances;

35.1.3

in the case of the omission of an item of work, such omitted work shall be valued at the rates in the pricing document, document, but where the omission of such work varies the circumstances in which the remaining work is carried out, the remaining work shall be valued in terms of clause 35.1.2;

35.1.4

In any circumstances in which the principal contractor considers that the measurement and valuation under the above would be inappropriate a fair valuation shall be used to ascertain the adjustment to the nominated subcontract sum. sum.

35.2

Edition One

Where a bill of quantities quantities is, in total or in part, approximate or where it is clearly stated in the contract documents that work will be remeasured, clause 35.1 shall be used to determine the value of such remeasured work.

Page 27 of 42


Additional Costs

35.3

Where in the appendix it is stated that the nominated subcontract works shall be carried out on the basis of a lump sum sum contract, the provisions of clause 35.1.4 shall be used to determine the value of any additional or varied work save where the nominated subcontractor has provided a contract sum analysis which analysis which will be used to determine the value of the same.

35.4

Where work has been identified under a provisional sum sum in the pricing document the value of this work shall be omitted from the nominated subcontract sum and the work as actually executed shall be measured and valued in terms of clause 35.1 and added to the nominated subcontract sum. sum.

35.5

Where work has been identified as being executed by a direct contractor payment for the costs incurred by the nominated subcontractor shall be ascertained in terms of clause 35.1.4.

35.6

Where it is required that the nominated subcontract sum or the retention shall be assessed or adjusted, the provisions of clause 35.1 shall apply to such assessment or adjustment.

36.1

If the nominated subcontractor considers that he has incurred additional costs and costs and provided that such additional costs were costs were not as a result of one of the matters set out in clause 36.2 then the nominated subcontractor shall shall be entitled to make a claim for additional costs. costs.

36.2

The nominated subcontractor shall not be entitled to make a claim for additional costs in respect of: • •

• •

•

Set-Off

Edition One

weather conditions; a shortage of labour or materials unless supplied by the principal contractor ; force majeure omission, default or any breach of this agreement by or on behalf of the nominated subcontractor ; civil commotion, industrial action, riot, war, strike or lockout.

36.3

The nominated subcontractor’s notification subcontractor’s notification of a claim shall be made within 8 days of days of it becoming apparent that additional costs have costs have been incurred. The shall forward such notification to the administrator . principal contractor shall

36.4

The nominated subcontractor shall in support of the application submit to the principal contractor upon request such concise information as the or the administrator may may require. principal contractor or

36.5

Upon receipt of all necessary information from the nominated subcontractor the administrator shall shall within 12 days ascertain days ascertain the amount if any to be paid to the nominated subcontractor and and the principal contractor shall shall notify the accordingly. nominated subcontractor accordingly.

36.6

Any amount so ascertained shall be added to the next interim payment certificate. certificate.

37.1

The principal contractor shall be entitled to deduct from any money due under this agreement any the nominated subcontractor agreement any amount agreed by the nominated as due to the principal contractor or or finally awarded in arbitration or litigation in favour of the principal contractor , and which arises out of or under this agreement. agreement.

37.2

The principal contractor shall be entitled to set-off against any money otherwise due under this agreement the amount for any claim for loss and or expense which have actually been incurred by the principal contractor by reason of any breach of, or failure to observe the provisions of, this agreement, agreement, by the nominated subcontractor , provided:

Page 28 of 42


Payment to Nominated subcontractor

37.2.1

the amount of such set-off has been quantified in detail and with reasonable accuracy by the principal contractor ; and

37.2.2

the principal contractor has given to the nominated subcontractor notice in writing specifying an intention to set off the amount quantified in accordance with clause 37.2.1 and the grounds on which such set off is claimed to be made. Such a notice shall be given not less than 15 days before the money from which the amount is to be set off becomes due and payable to the nominated subcontractor .

37.3

Any amount set off under these provisions is without prejudic e to the rights of the principal contractor or or the nominated subcontractor in in any subsequent adjudication to seek to vary the amount claimed and set off by the principal contractor

37.4

The rights of the parties to the nominated subcontract subcontract in respect of set-off are fully set out in this agreement agreement and no other rights whatsoever shall be implied in respect of set-off.

38.1

The nominated subcontractor shall submit a payment application application to the principal contractor to be received no later than 10 days days before the date stated in the appendix for appendix for issue of interim payment certificates. certificates.

38.2

The principal contractor shall shall issue interim payment certificates as certificates as stated in the appendix to the nominated subcontractor for payment by the principal contractor .

38.3

The amount valued and certified for payment by the principal contractor in contractor in an interim payment certificate shall certificate shall include:

38.3.1

an estimate of the total value of the work properly executed by the nominated subcontractor

38.3.2

an estimate of the total value of materials and goods delivered to the site for incorporation into the nominated subcontract works, works, provided that the value of such materials and goods shall only be included as and from such times as they are properly and not prematurely delivered and are adequately protected;

38.3.3

any amount payable under the fluctuation provisions; fluctuation provisions;

38.3.4

an estimate of the total value of all materials and goods in terms of clause 38.4;

38.3.5

interest due under this agreement; agreement;

38.3.6

ascertained additional costs; costs;

38.3.7

a deduction of the amounts previously certified

38.3.8

a deduction of any amount which may be deducted and retained by the in terms of clause 38.6. principal contractor in

38.4

Edition One

The amount stated as due in an interim certificate may, at the discretion of the principal contractor , include the value of any materials or goods before delivery to the site, site, provided that, where required, the nominated subcontractor provides to the principal contractor with the payment application a bond for the full value of the materials or goods being claimed for. The bond shall be in such a form as the principal contractor may may require. The bond may be called upon in respect of non-delivery or incorrect or defective delivery of the materials or goods.

Page 29 of 42


Retention

38.5

Where the amount stated as due in an interim certificate is certificate is not in the same figure as contained in the payment application application the principal contractor shall, within 3 days days of the issue of the interim certificate certificate provide to the a brief explanation of the differences. nominated subcontractor a

38.6

Upon the issue of an interim payment certificate certificate the principal contractor shall pay to the nominated subcontractor or in the case of a negative certificate the nominated subcontractor shall pay to the principal contractor not later than 5 days days after the date stated in the appendix for payment to the principal contractor the full amount certified for payment subject to any deductions in accordance with this agreement

38.7

Where the issue of an interim payment certificate certificate by the principal is delayed or where payment of such certified amount is delayed, contractor is the principal contractor shall be liable, without prejudice to any rights the nominated subcontractor may may have in terms of clause 42.1 to pay interest at the annual effective yield of treasury bills plus five percent to the nominated subcontractor on such amount from the due date for payment up to and including the date on which payment is received by the nominated subcontractor . In the case of a negative certificate, if the nominated subcontractor does not make the repayment in the period stated the nominated subcontractor shall be liable to pay the principal contractor interest on the same basis.

38.8

Without prejudice to any other rights and remedies which the nominated subcontractor may possess, if the principal contractor fails to make any payment to the nominated subcontractor as as provided and such failure shall continue for 5 days after shall have given the days after the nominated subcontractor shall principal contractor written notice of the same, then the nominated subcontractor may suspend the nominated subcontract works works until such payment including interest shall have been made and such suspension shall not be deemed a failure on the part of the nominated subcontractor to proceed with the nominated subcontract works. works.

38.9

The principal contractor shall shall issue interim payment certificates as stated in the appendix appendix after the completion date date and up to the issue of the final payment certificate. certificate.

38.10

The issue of an interim payment certificate or the final payment certificate shall not be evidence that the works works and materials and goods to which it relates are in accordance with this agreement. agreement.

38.11

In respect of any interim payment certificate certificate issued the employer will be entitled to retain the retention. . The amount which may be retained by the retention employer shall be the retention percentage percentage of the value of the work and materials.

38.12

The retention fund shall be dealt with in the following manner, unless otherwise agreed, between the employer and and the principal contractor :

38.12.1

the administrator shall open in the financial institution named in the appendix an account in the joint names of the employer and the principal contractor . That joint account shall have three signatories, being a representative of each of the employer and the principal together with the adjudicator . The account shall require any contractor together two signatories to allow withdrawal of the funds.

38.12.2

all amounts that constitute the retention fund, shall immediately as they are retained, be paid into the said account, on deposit at interest and the principal and interest shall be held on trust for the employer as security for the due completion of the works and works and the making good of defects, defects, during the defects liability period. period.

38.13

Edition One

The nominated subcontractor shall on the issue of the certificate of making good defects be defects be entitled to release of the part of the fund relating to the nominated subcontract sum including all interest accrued. Page 30 of 42


Fluctuation

39.1

Where it is stated in the appendix that appendix that this agreement is a firm-price contract, the provisions of clause 39.6 to 39.7 shall apply. Where it is stated in the appendix that appendix that under this agreement fluctuation of fluctuation of wages and materials shall be allowable, the provisions of clause 39.8 to 39.15 shall apply.

39.2

Any adjustment to the contract sum as sum as a result of a fluctuation shall fluctuation shall be net after discounts and excluding any addition for profit.

39.3

A fluctuation fluctuation shall be subject to an addition of a single five percent administration fee which shall be limited in respect of any single item to the figure stated in the appendix. appendix.

39.4

A fluctuation fluctuation occurring after the date for completion completion will not be taken into account when calculating the adjustment to the contract sum. sum.

39.5

The nominated subcontractor shall, on request, make available to the principal contractor all documentation deemed necessary to verify the fluctuation. fluctuation.

39.6

Under a firm-price, no adjustment to the contract sum sum shall be made in respect of fluctuation or fluctuation or any statutory change.

39.7

The nominated subcontractor shall provide a fluctuation return with each payment application. application. Should the nominated subcontractor fail to comply fully with this requirement no fluctuation will fluctuation will be made.

Fluctuation of Wages

39.8

If at any time between the nominated subcontract tender date and the completion date statutory fluctuation takes place and the nominated subcontractor has submitted with each payment application application to the principal contractor timesheets timesheets together with a weekly return of the number of productive hours worked hours worked then the nominated subcontract sum shall be adjusted. Only Government gazetted labour rates will be considered for fluctuation purposes. fluctuation purposes.

Fluctuation in price of Materials and Fuel

39.9

If at any time between the nominated subcontract tender date and the completion date fluctuation fluctuation takes place in materials incorporated in the nominated subcontract works or fuel for site site plant or transport then the nominated subcontract sum shall be adjusted.

39.10

If the nominated subcontractor wishes wishes to be protected against fluctuations in the cost of any basic materials incorporated in the nominated subcontract works works or from fluctuations fluctuations in transport costs of materials transported from local merchants or suppliers to the nominated subcontract works or fuel for site site plant or transport the nominated subcontractor is to attach to the nominated subcontractor’s tender a base price list showing material and transport prices separately.

39.11

In support of the base price list the is to furnish, list the nominated subcontractor is either with the nominated subcontractor’s tender or when directed current merchants’ quotations for quantities required for the whole of the works. works.

39.12

Orders for materials on the base price list shall list shall be placed timeously after timeously after the date of acceptance of the nominated subcontractor’s tender ; otherwise no fluctuation will fluctuation will be allowed.

39.13

Should the nominated subcontractor find find it necessary to purchase materials at prices in excess of the base price list then list then the nominated subcontractor must obtain the most favourable current price at the time of placing the order. The nominated subcontractor shall shall maintain a record of the steps taken to obtain such price, which the principal contractor may may call for at any time

39.14

Adjustment to the nominated subcontract sum sum will not be considered for fluctuation of fluctuation of materials, transport or fuel not included in the Base Price List. The nominated subcontractor may may apply to the principal contractor to to add items to the base price list that list that have arisen as a result of directions. directions.

Firm Price

Edition One

Page 31 of 42


Final Account

Currency of Account

Edition One

39.15

The nominated subcontractor shall shall provide a fluctuations return with return with each payment application application which will set out every item in the base price list which has been affected by fluctuation fluctuation since the last payment application and show the rates actually paid as compared to the base price list. list. The return shall have annexed to it copies of signed orders on suppliers, signed delivery notes, suppliers’ invoices and suppliers’ monthly statements in respect of each item where a claim is being made. The fluctuations return may, when necessary contain details of fluctuations which fluctuations which have occurred at any time since the submission of the previous two fluctuation returns to returns to allow for information which was late. The nominated subcontractor shall shall afford the principal contractor every facility in obtaining written confirmation from the supplier that the fluctuation has fluctuation has occurred and the reasons for them.

40.1

Within 45 days, or such other period stated in the appendix, appendix, after the completion date, date, the nominated subcontractor shall shall send to the principal contractor all all documents necessary for the purpose of the final measurement and valuation.

40.2

If the nominated subcontractor fails to send the necessary documentation within the time specified in clause 40.1 the principal contractor shall shall prepare the final measurement and valuation based on known information.

40.3

Within the period stated in the appendix of appendix of receipt of the documentation under clause 40.1 or a failure to provide the documentation under clause 40.2 the final account shall account shall be prepared by the principal contractor . Within 20 days of its preparation, discussions with the nominated subcontractor with with a view to agreeing the same shall be concluded and the final account account shall be submitted to the nominated subcontractor. The nominated subcontractor shall signify acceptance by signature and return of the final the final account within account within 5 days of days of receipt. Such signature shall be conclusive evidence that the amounts shown are accepted by the nominated subcontractor in full and final settlement of all financial claims arising out of or in connection with this agreement. agreement.

40.4

If the principal contractor fails to prepare the final account within the period stated under clause 40.3 the nominated subcontractor will be entitled to interest on the outstanding sum due from the expiry of the stated period as if it were a due date for payment under clause 38.9.

40.5

If the nominated subcontractor fails fails to sign and return the final account in the stated period the final payment certificate certificate shall be issued in the figure stated in the final account. account.

40.6

By the date stated in the appendix appendix for issue of an interim payment certificate following certificate following the return by the nominated subcontractor of of the final account account the principal contractor shall issue the final payment certificate which shall state the sum of the amounts already paid to the nominated subcontractor under interim payment certificates; certificates; and the nominated subcontract sum adjusted as necessary in accordance with the terms of this agreement. agreement.

40.7

The difference between the two sums shall be expressed in the said certificate as a balance due to the nominated subcontractor from the principal contractor or to the principal contractor from the nominated subcontractor . Subject to any deductions or set-off authorised by this agreement or otherwise at law, the said balance shall, as from the date for payment stated in the appendix be a debt payable by the principal contractor to the nominated subcontractor or by the nominated to the principal contractor . subcontractor to

41.1

Where it is so stated, the nominated subcontractor shall be entitled to receive payment of the amounts due under this agreement agreement in the foreign currencies and the proportions as set out in the appendix. appendix.

Page 32 of 42


41.2

The exchange rate(s) to be used for calculation of the amounts payable shall be as stated in the appendix, appendix, which shall be fixed by the principal contractor prior to the tender date.

CANCELLATION Cancellation by Principal Contractor

42.1

Without prejudice to any other rights or remedies the principal contractor may have, this agreement agreement may be cancelled by the principal contractor in contractor in the event of: • •

•

•

Edition One

the insolvency or liquidation of the nominated subcontractor ; the nominated subcontractor without cause under this agreement wholly suspending the carrying out of the nominated subcontract works before completion; the nominated subcontractor refusing or neglecting to comply with a direction and by such refusal or neglect the nominated subcontract works are works are materially affected it becoming apparent that the nominated subcontractor will fail to complete the nominated subcontract works by works by the date for completion

42.2

Should the nominated subcontractor default due to any event then the principal contractor may notify the nominated subcontractor of the intention to cancel this agreement. agreement. Should the nominated subcontractor remain in default for a period of 10 days after days after receipt of such notice then the principal contractor may notify the nominated subcontractor of the cancellation.

42.3

Where this agreement is agreement is cancelled and so long as it has not been reinstated or continued then the following provisions shall apply.

42.4

Execution of the nominated subcontract works shall works shall cease immediately and the nominated subcontractor shall, subject to the provisions of this clause, vacate the site and care of the nominated subcontract works shall works shall pass to the principal contractor .

42.5

The principal contractor may may employ and pay other persons to carry out and complete the nominated subcontract works works and rectify all defects defects in that part of the nominated subcontract works executed by the nominated and the principal contractor may may use all temporary buildings, subcontractor and plant, equipment, goods and materials intended for, delivered to and placed on or adjacent to the site, site, and may purchase all materials and goods necessary for the carrying out and completion of the nominated subcontract works. works.

42.6

The nominated subcontractor shall, unless prohibited by law, if so required by the principal contractor within 10 days of days of the date of cancellation assign to the principal contractor , without payment, the benefit of any agreement for the supply of materials or goods and/or for the execution of any work for the purposes of this agreement. agreement. The assignment shall be on terms that a supplier or sub-subcontractor shall be entitled to make reasonable objection to any further assignment by the principal contractor . In any case the principal contractor may pay any supplier or sub-subcontractor for any materials or goods delivered or works executed whether before or after the date of cancellation so long as the same has not already been paid for by the nominated subcontractor. subcontractor. Payments made under this provision may be deducted from any sum due or to become due to the nominated subcontractor .

42.7

The nominated subcontractor shall, when requested by the principal contractor but not before, remove from the site any temporary buildings, plant, equipment, goods and materials. If the nominated subcontractor does does not comply, then the principal contractor may remove and sell any such property of the nominated subcontractor . The proceeds less all costs incurred being held to the credit of the nominated subcontractor .

Page 33 of 42


Cancellation by Nominated subcontractor

42.8

The principal contractor shall determine the delay to completion of the nominated subcontract works works which such cancellation shall have caused and the nominated subcontractor shall shall be liable to the principal contractor for loss and/or expense.

42.9

The nominated subcontractor shall shall allow or pay to the principal contractor the amount of any loss and/or expense caused to the principal contractor by by the cancellation. Until completion of the nominated subcontract works, works, the shall not be bound to make any further payment to the principal contractor shall nominated subcontractor . Within 60 days of days of completion of the nominated subcontract works the works the principal contractor shall certify the amount of such loss and/or expense caused to and properly incurred by the principal contractor including, but not limited to, any loss and/or expense caused to other persons employed or engaged by the principal contractor in connection with the works. works. If such amounts when added to the monies paid to the nominated subcontractor before before the date of cancellation exceed the total amount which would have been payable on due completion in accordance with this agreement, agreement, the difference shall be a debt payable by the nominated subcontractor to the principal contractor and if the said amounts when added to the said monies be less than the said total amount, the difference shall be a debt payable by the principal contractor to the nominated subcontractor .

42.10

The nominated subcontractor shall not be relieved of any obligations and liabilities in connection with that portion of the nominated subcontract works executed prior to cancellation.

43.1

Without prejudice to any other rights or remedies the nominated subcontractor may have, this agreement agreement may be cancelled by the nominated subcontractor in in the event of: •

•

•

•

• •

Edition One

the insolvency or liquidation of the principal contractor where where the trustee or liquidator elects not to proceed in terms of this agreement with the works; works; failure by the principal contractor to pay the amount due to the nominated subcontractor on any interim payment certificate by the due date; interference or obstruction by the principal contractor with the issue of any certificate due under this agreement; agreement; failure by the principal contractor to issue any interim payment certificate; certificate; failure to give possession of the site by site by the due date; the nominated the nominated subcontract works being suspended for an aggregated total of more than the number of days stated in the the appendix appendix for any reason other than the default of the nominated subcontractor .

43.2

Should the principal contractor be be in default due to any of the above events then the nominated subcontractor may give notice to the principal contractor of the nominated subcontractor ’s ’s intention to cancel this remain in default for a period of agreement. agreement. Should the principal contractor remain 10 days after may days after receipt of such notice then the nominated subcontractor may notify the principal the principal contractor of the cancellation of this agreement. agreement.

43.3

Where this agreement is agreement is cancelled in terms of this clause then the following provisions shall apply.

43.4

Execution of the nominated subcontract works shall immediately cease and care of the nominated subcontract works works passes to the principal contractor .

43.5

The nominated subcontractor shall immediately remove from the site the ’s temporary buildings, plant and machinery. nominated subcontractor ’s

43.6

A final account shall timeously be prepared for that portion of the nominated subcontract works executed by the nominated subcontractor . Page 34 of 42


Cancellation of Principal Contract

43.7

The nominated subcontractor shall not be relieved of any obligations and liabilities in connection with that portion of the nominated subcontract works executed by the nominated subcontractor .

43.8

The principal contractor shall shall be liable to the nominated subcontractor for for the cost of materials and goods including those materials and goods ordered by the nominated subcontractor prior prior to the cancellation of this agreement and for which the nominated subcontractor is bound to accept and make payment provided that such materials and goods are delivered to the site and site and handed over to the principal contractor in good order.

43.9

The principal contractor shall shall be liable to the nominated subcontractor for for additional costs resulting from such cancellation.

43.10

The value of the nominated subcontract works executed works executed by the nominated subcontractor and the value of materials and goods shall continue to be certified by the principal contractor and and paid for by the principal contractor .

44.1

If, for any reason, the principal the principal contractor’s employment contractor’s employment under the principal contract contract is cancelled whether by the the principal contractor or by the employer and whether due to any default of the principal contractor or otherwise, then the employment of the nominated subcontractor under under this agreement shall also be cancelled and the nominated subcontractor shall be entitled to be paid for:

44.1.1

the value of the nominated subcontract works completed works completed at the date of such cancellation, such value to be determined in accordance with clause 34;

44.1.2

the value of work begun and executed but not completed at the date of such cancellation;

44.1.3

the value of any unfixed materials and goods delivered upon the site for site for use in the nominated subcontract works works and property which has passed to the employer under the terms of the principal contract; contract;

44.1.4

the cost of materials and goods properly ordered for the nominated shall have subcontract works for works for which the nominated subcontractor shall paid or of which the nominated subcontractor is legally bound to accept delivery. On such payment by the principal contractor any materials or goods so paid for shall become the property of the principal contractor ;

44.1.5

any reasonable cost of removal from the site of the nominated subcontractor’s temporary buildings, plant, machinery, appliances, goods and materials.

DISPUTES Disputes

45.1

Any dispute arising out of this agreement shall be resolved in accordance with this clause.

Adjudication

45.2

The The administrator shall, prior to the issue of the instruction to proceed obtain from the NJPC the name of the adjudicator to be appointed.

45.3

When any dispute referred to in clause 45.1 arises, which cannot be resolved between the parties, it shall be referred in writing to and settled by the adjudicator .

45.4

The adjudication shall be conducted in accordance with the NJPC adjudication rules. rules.

Edition One

Page 35 of 42


Arbitration

45.5

If a dispute referred to the adjudicator also also concerns a dispute or difference between the principal contractor and any other subcontractor or the employer , the principal contractor may submit that dispute to the adjudicator at the same time as the dispute under this agreement. agreement. The adjudicator shall shall then settle the two disputes together and references to the parties shall be deemed to include the other party.

45.6

The adjudicator settles the dispute as independent adjudicator and not as an arbitrator. The adjudicator’s adjudicator’s decision is enforceable as a matter of contractual obligation between the parties and not as an arbitral award.

45.7

The adjudicator’s powers adjudicator’s powers include the power to review and revise any action or inaction of the principal contractor relating to the dispute. The shall have full power to review and revise any decision, opinion, adjudicator shall direction, direction, valuation, certificate or notice and to order such measurements and valuations as may in the adjudicator’s opinion adjudicator’s opinion be necessary to determine the respective rights of the parties.

45.8

If the adjudicator resigns, resigns, dies, is otherwise unable to act, or fails to issue a decision as provided for under the NJPC the NJPC adjudication rules either rules either party shall apply to the NJPC for NJPC for the nomination of a new adjudicator . The NJPC shall NJPC shall appoint a new adjudicator . The new adjudicator has has power to settle disputes that were currently submitted to the predecessor, but had not been settled. Disputes previously settled may not be re-opened before the new adjudicator .

45.9

No reference to adjudication may be made later than 10 days after days after the issue of the final payment certificate, certificate, save in respect of matters concerning defects and defects and the release of retention. retention.

45.10

If, after the adjudicator notifies a decision a party is dissatisfied, that party may give notice to the other party of an intention to refer the matter to arbitration.

45.11

Any notice shall be made within 10 days of days of the notification of the adjudicators decision.

45.12

No arbitration proceedings shall be commenced earlier than either 10 days after the issue of the final payment certificate or the conclusion of any outstanding references to adjudication whichever is the later.

45.13

No matter may be referred to arbitration which has not previously been the subject of a decision by the adjudicator the adjudicator .

45.14

Any arbitration proceedings shall be subject to the UNCITRAL Rules current at the date of the reference to arbitration.

45.15

The NJPC shall be the appointing body for the purposes of the UNCITRAL Rules.

45.16

The cancellation of this agreement agreement shall have no effect on the provisions of this clause.

DEFINITIONS Definitions

Edition One

46.1

In this agreement the following words and expressions shall have the meanings given to them in this clause.

46.2

‘acceleration’ acceleration’ means: the acceleration acceleration of the works works following an acceleration enquiry. enquiry.

46.3

‘acceleration enquiry’ means: enquiry’ means: an enquiry issued by the administrator where where it is intended to accelerate the works. works.

Page 36 of 42


Edition One

46.4

‘additional cost’ cost’ means: costs and/or losses incurred by the nominated subcontractor over and above those that are recoverable under the adjustment of the nominated subcontract sum sum provisions or elsewhere in the conditions of contract.

46.5

'adjudicator' means: The person appointed to act as adjudicator under this agreement, agreement, who shall be assigned by the NJPC NJPC and who shall be a person registered on the NJPC list NJPC list of adjudicators. adjudicators.

46.6

‘adjustment of time’ time’ means: a change in the date for completion specified in the appendix.

46.7

‘administrator’ means: the person named as such in the principal contract or such other person as the employer shall shall from time to time appoint as his replacement, who shall be a member of a constituent body of the NJPC, NJPC, and who is notified to the nominated subcontractor as acting as the administrator .

46.8

‘agreement’ agreement’ means: this agreement agreement entered into between the principal contractor and the nominated subcontractor incorporating the NJPC building nominated subcontract. subcontract.

46.9

‘all risks insurance’ means: insurance which provides cover against any physical loss or damage to work executed and materials on site site and contractor’s plant on site. site.

46.10

‘appendix’ means: ‘appendix’ means: the appendix to this agreement. agreement.

46.11

‘base price list’ means: a list submitted with the nominated subcontractor’s tender detailing those items in respect of which the nominated subcontractor wishes wishes the fluctuation provision to apply. The list shall contain the base price for each item included on the list. The base prices shall be current market prices as at the tender date. The nominated subcontractor may apply to the principal contractor to add items to the base price list which were not contemplated at tender but which have arisen as a result of directions. directions.

46.12

‘bill of quantities’ means: a document, drawn up in accordance with the edition of the System of Measurement of Building Work in Zimbabwe approved by the Zimbabwe Institute of Quantity Surveyors current at the nominated subcontract tender date. date.

46.13

‘certificate of making good defects’ defects’ means: a certificate issued by the at at the end of the defects liability period when principal contractor period when all items on defects lists have lists have been rectified.

46.14

‘commencement date’ date’ means: the date on which the nominated subcontract works are works are to commence on site. site.

46.15

‘completion certificate’ certificate’ means: the certificate issued by the principal contractor upon completion of the nominated subcontract works works and attendance to snagging lists by lists by the nominated subcontractor .

46.16

‘completion date’ date’ means: the date on which the principal contractor certifies that the nominated subcontract works works are complete. Where appropriate the term shall also apply to completion of a part or section of the nominated subcontract works. works.

46.17

'completion of the nominated subcontract works' works' means: the state of the nominated subcontract works works when the principal contractor is satisfied that the nominated subcontract works works are complete, snagging lists lists have been attended to and the completion certificate is certificate is issued.

Page 37 of 42


46.18

‘consultant team’ means: collectively those consultants listed in the appendix and any further or other consultants engaged by the employer and notified in writing to the nominated subcontractor . The term consultant team includes team includes servants, agents, and others for whom they are responsible.

46.19

‘contract sum analysis’ means: a document, drawn up by the nominated subcontractor , to amplify a lump sum price sum price given as the contract sum. sum.

46.20

‘date for completion’ means: the date as specified in the appendix appendix or as subsequently changed in accordance with the acceleration, acceleration, deceleration or adjustment of time provisions. time provisions.

46.21

‘day’ means: working day. There will be 5 working days days in a week unless otherwise stated in the appendix. appendix. For the purposes of calculating periods in respect of any payments to be made under this agreement, agreement, statutory holidays and the annual construction industry shutdown shall be deemed to be working days.

46.22

‘deceleration’ means: ‘deceleration’ means: the deceleration of the works following works following a deceleration enquiry. enquiry.

46.23

where ‘deceleration enquiry’ means: enquiry’ means: an enquiry issued by the administrator where it is intended to decelerate the works. works.

46.24

‘defect’ means: materials or workmanship not in accordance with the nominated subcontract documents. documents. Provided that the the nominated subcontractor shall not be required to make good at the nominated ’s cost any damage by action of the elements which may subcontractor ’s appear after completion completion unless the principal contractor shall shall decide that such damage is due to injury which took place before completion. completion.

46.25

‘defects liability period’ means: period’ means: the period ending 12 months from the date of the certificate of completion or such other period stated in the appendix, appendix, not exceeding 12 months.

46.26

‘defects list’ list’ means: any list issued by the principal contractor during the defects liability period detailing defects arising during this period.

46.27

‘direct contractor’ contractor’ means: a contractor employed by the employer to carry out works or supply goods or materials incidental to but not forming part of the works. works.

46.28

‘direction’ means: any direction direction issued by the principal contractor under the provisions of this agreement in regard to: !

!

!

!

!

!

! ! ! ! ! ! ! !

Edition One

variation or modification of the design, quality or quantity of the nominated subcontract works or works or the addition, omission or substitution of any work; any discrepancy in or divergence between the nominated subcontract contract documents; documents; removal from the site site of any materials and their substitution by other materials; removal and/or re-execution of any works executed by the nominated subcontractor ; suspension of any work to be executed under the provisions of this agreement; agreement; dismissal from the nominated subcontract works works of any person employed thereon; opening up for inspection of any work covered up; testing of work and materials protection of the nominated subcontract works amending and making good of any defects. defects. Compliance with safety legislation or safe working practices; Environmental issues; Antiquities; Any breach of contract. Page 38 of 42


No direction shall direction shall vitiate this agreement. agreement. 46.29

‘early occupation notice’ means: notice’ means: a notice issued by the administrator under the principal contract to enable the employer to take early occupation of part of the nominated subcontract works. works.

46.30

‘employer’ means: the person named as such in the principal agreement. agreement.

46.31

‘employer’s risks’ risks’ means: ! !

!

!

!

!

!

!

Edition One

war, hostilities, invasion, act of foreign enemies; rebellion, revolution, insurrection, or military or usurped power, or civil war; ionising radiations, or contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component thereof; pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds; riot, commotion or disorder, unless solely restricted to employees of the principal contractor or subcontractors and arising from the conduct of the works; works; loss or damage due to the use or occupation by the employer of any part of the works under the early occupation provisions or under sectional completion arrangements specified in the nominated subcontract documents; documents; loss or damage to the extent that it is due to the design of the works except in respect of the nominated subcontractor’s designed works; works; any operation of the forces of nature against which the nominated subcontractor could not reasonably have been expected to take precautions.

46.32

‘external property’ means: any property, real or personal, excluding the works, works, work executed and/or materials on site up site up to and including the date of issue of the completion certificate or the date of cancellation of the nominated subcontractor’s employment under the cancellation provisions whichever is the earlier.

46.33

‘final account’ means: account’ means: the final statement of account issued by the principal contractor .

46.34

‘final payment certificate’ certificate’ means: the final financial certificate issued after preparation of the final account. account.

46.35

‘fluctuation’ ‘fluctuation’ means: an increase or decrease in the cost of labour and/or materials which are to be incorporated in the nominated subcontract works. works.

46.36

‘fluctuations return’ return’ means a return submitted by the nominated subcontractor with with each payment application with application with details of fluctuations. fluctuations.

46.37

‘instruction to proceed’ means: a direction by the principal contractor to contractor to the nominated subcontractor confirming acceptance of the nominated subcontractor’s tender and authorising the nominated subcontractor to take such steps as are necessary to proceed with the nominated subcontract works. works.

46.38

‘interim payment certificate’ certificate’ means: a certificate for payment to the issued at the time stated in the appendix. nominated subcontractor issued appendix.

46.39

‘joint names policy’ policy’ means: a policy of insurance which includes the employer , the principal contractor and all nominated subcontractors, subcontractors, direct contractors and the consultant team. team.

46.40

'lump sum' sum' means: a price based on a single tendered amount which shall not be subject to remeasurement. Page 39 of 42


46.41

‘NJPC’ means: ‘NJPC’ means: the National Joint Practice Committee.

46.42

‘NJPC adjudication rules’ means: the current issue of the rules as issued by the NJPC. NJPC.

46.43

'NJPC building employer/nominated subcontractor agreement' means: the current edition of the agreement as issued by the NJPC. NJPC. ‘NJPC building contract’ means: contract’ means: the current edition of the contract as issued by the NJPC. NJPC.

46.44 46.45

‘NJPC building nominated subcontract’ subcontract’ means: the current edition of the contract as issued by the NJPC. NJPC.

46.46

‘nominated subcontract documents’ documents’ means: this agreement agreement and such other documents as are identified in the appendix. appendix. In the event of inconsistency the documents shall be construed and given precedence in the following order: this agreement the appendix the documents in the order in which they are listed in the appendix

Edition One

46.47

‘nominated subcontract drawings’ drawings’ means: the drawings used to prepare the nominated subcontract tender documents as documents as listed in the appendix. appendix.

46.48

‘nominated subcontract sum’ sum’ means: the value of the nominated subcontract works works as stated in the appendix and as adjusted from time to time under this agreement. agreement.

46.49

‘nominated subcontract tender date’ date’ means: the date 5 days days before the date on which the nominated subcontractor is is due to return the nominated subcontractor’s tender . In the event of a negotiated contract shall mean the date 5 days days before the conclusion of negotiations and agreement of the nominated subcontract sum as sum as stated in the appendix or appendix or such other date as may be agreed between the parties.

46.50

‘nominated subcontract tender documents’ means: the documents comprising the nominated subcontractor’s tender as as listed in the appendix. appendix. In the case of a negotiated contract shall mean the documents on which the negotiations have been based.

46.51

‘nominated subcontract works’ works’ means: the work to be carried out by the nominated subcontractor as described in the appendix appendix including the of the principal the . directions of directions principal contractor

46.52

‘nominated subcontractor’ subcontractor’ means: the person named as such in this agreement agreement who shall be a member of either the Construction Industry Federation of Zimbabwe or of the Zimbabwe Building Contractors Association. The term nominated subcontractor shall include servants, agents, subsubcontractors, suppliers and others for whom the nominated subcontractor is responsible.

46.53

‘nominated subcontractor’s designed works’ works’ means: work specified in the nominated subcontract documents documents as being designed by the nominated subcontractor .

46.54

‘nominated subcontractor’s programme’ programme’ means: the programme produced by the nominated subcontractor .

46.55

‘nominated subcontractor’s subcontractor’s tender

46.56

‘payment application’ application’ means: an application for payment submitted to the principal contractor by by the nominated subcontractor .

tender ’

means:

the

nominated

Page 40 of 42


46.57

‘pricing document’ means: document’ means: either a bill of quantities, quantities, a schedule of rates, rates, a contract sum analysis a priced specification or other document, as detailed in the appendix. appendix.

46.58

‘principal contract’ contract’ means: the contract entered into between the principal contractor and the employer incorporating incorporating the NJPC building contract. contract.

46.59

‘principal contractor’ means: contractor’ means: the person named as such in this agreement and in the principal contract contract who shall be a member of either the Construction Industry Federation of Zimbabwe or the Zimbabwe Building Contractors Association. The term principal contractor includes servants, agents, subcontractors, suppliers and others for whom the principal is responsible. contractor is

46.60

'productive hours' hours' means: actual hours worked which excludes any additional percentage added for the purposes of calculating overtime payments.

46.61

‘project’ ‘project’ means all works required by the employer to be carried out at the site site including the works works and any other works to be carried out by direct contractors. contractors.

46.62

‘project insurance’ means: insurance’ means: insurance in the joint names of the employer , the principal contractor and subcontractors, all direct contractors contractors and the members of the consultant team. team. The property insured is the permanent works and materials or equipment for incorporation therein; the temporary works, i.e. other works erected or constructed for the purpose of making possible the erection or installation of the permanent works; constructional plant and equipment buildings or other property owned or supplied by the employer . The risks insured shall be in two sections. Section one will be in respect of all risks insurance insurance together with the employers risks. risks. The sum insured shall be the project project value. Policy excesses, to be borne in accordance with their contractual responsibilities by the principal contractor and/or subcontractors, and/or direct contractors and/or the members of the consultant team shall be the sums stated in the appendix for: appendix for: each and every loss arising from storm, tempest, flood water damage, subsidence collapse and resultant damage caused by defective design, plan, specification, workmanship or materials; and each and every other loss. Section two will be in respect of public liability, namely, all sums for which the insured shall become legally liable to pay as damages in respect of death of or injury or illness or disease to third parties and/or loss of or damage to third party property, obstruction, loss of amenities, trespass, nuisance, or any like cause happening during the period of insurance and arising out of or in the course of the project. project. The sum insured shall be the sum stated in the appendix for appendix for any one occurrence, unlimited in all.

Edition One

46.63

’project value’ means: value’ means: the full reinstatement value of the project including project including the principal contract sum sum together with the value of all direct contract works, fees and other charges. Where works involve an existing building the project value should value should also include the reinstatement value of the building.

46.64

‘provisional sum’ sum’ means: a sum included in the pricing document document and so designated for the execution of works or the supply of goods or materials which could not be entirely foreseen, defined or detailed prior to the nominated subcontractor’s tender ; which sum may be used at the direction of the principal contractor .

46.65

‘relevant part’ part’ means: the part of the nominated subcontract works to which an early occupation notice relates. notice relates.

Page 41 of 42


Edition One

46.66

‘retention’ retention’ means: monies retained from interim payment certificates as security for completion of the nominated subcontract works works and the making good of defects. defects.

46.67

‘retention fund’ means: fund’ means: the fund established into which all retention monies retention monies are paid.

46.68

‘retention percentage’ percentage’ means: the percentage stated in the appendix appendix for retention. retention. The NJPC NJPC will from time to time issue a recommended scale of retention percentages to be used.

46.69

‘schedule of rates’ rates’ means: a document drawn up by the principal contractor to be priced by the nominated subcontractor .

46.70

‘site’ means: the site as described in the appendix. appendix.

46.71

‘snagging list’ means a list of items to be executed prior to completion of the nominated subcontract works. works.

46.72

‘snagging period’ period’ means: the period commencing 10 days, days, or such other period as may be specified in the appendix, appendix, before the nominated subcontractor anticipates that completion of the nominated subcontract works will works will be achieved.

46.73

‘statutory fluctuations’ means: only specific increases or decreases stipulated in the Government Gazette in the standard rate of wages, cost of living allowances or other statutory compulsory contributions of the staff employed on the nominated subcontract works, works, whether on the site or in the workshops of the nominated subcontractor and sub-subcontractors but not in respect of suppliers or merchants.

46.74

‘statutory requirements’ means: requirements’ means: any act of Parliament, any instrument, rule or order made under any act of Parliament and any regulation or by-law of any local authority or statutory undertaker which has any jurisdiction with regard to the nominated subcontract works works or with whose systems the same are or will be connected.

46.75

‘timeously’ ‘timeously’ means: in connection with any action to be taken by a party, at such time, having regard to the nominated subcontractor’s programme as programme as is not detrimental to the completion of the nominated subcontract works by the date for completion. completion.

46.76

‘works’ means: ‘works’ means: the work to be carried out by the principal contractor under the principal contract including contract including the instructions of the administrator .

Page 42 of 42

NJPC BUILDING CONTRACT

ACKNOWLEDGEMENTS

This document was produced by the Building Contracts Committee of the National Joint Practice Committee, established to produce a new building contract for Zimbabwe. Members of the Building Contracts Committee were nominated by the member bodies of the National Joint Practice Committee, and they were as follows: Chairman:

Julian Conrad

Institute of Architects Zimbabwe Zimbabwe

Vice Chairman:

Neil Bradshaw

Construction Industry Federation of Zimbabwe

Members:

Raymond Kay

National Property Association

Neil Kaplan

Zimbabwe Institute of Quantity Surveyors

Insurance subsection

Phillip Nhekairo

Institute of Architects Zimbabwe

David Coleman

Construction Industry Federation of Zimbabwe

L. Maraya

Insurance Council

Co-opted for legal and drafting:

Martin King Drafts were prepared and funded by Martin King of CDMS Associates. The Zimbabwe Construction Industry Council acknowledges the contribution of all these people with gratitude as well as the many others who assisted the Building Contracts Committee.

Edition One

NJPC Building Nominated Subcontract - Edition 1 (10/04/2000)

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