DAMBOVITA CENTER PROJECT
GENERAL CONDITIONS
Annex 2 to the Construction Agreement
The headings to the various paragraphs in this Agreement are for the convenience of reference only and shall not affect or limit in any way the interpretation construction or enforcement of the provisions of this Agreement.
Unless the context clearly indicates a contrary intention, any expression which denotes:
any gender includes the other gender; and
a natural person includes an artificial person and vice versa; and
the singular includes the plural and vice versa.
Unless the context clearly indicates a contrary intention, the following expression in this Agreement shall bear the meanings assigned to them below and cognate expressions bearing corresponding meanings:
“Advance Payment” shall mean: the advance payment to be paid by the Employer to the Contractor under this Contract;
“Advance Payment Guarantee” shall mean: the unconditional and irrevocable bank guarantee to be issued by the Bank in favor of the Employer, in the sum of the Advance Payment and in the form attached hereto as Annex H-Form H2 hereto.
Agreement/Contract” shall mean: the document entitled “Construction Agreement”, these General Conditions, the Schedule of Particulars and all the others annexes and schedules hereto;
“Applicable Law” shall mean: any and all regulations applicable in Romania or the European Union (whichever prevails), such as (but not limited to): (a) any law, legislation, statute, act, rule, ordinance, decree, treaty, regulation, order, judgment, or other similar legal requirement or (b) any legally binding announcement, directive or published practice or interpretation thereof, enacted, issued or promulgated by the government or by the county or local government or regulatory department, body, political subdivision, commission, agency, instrumentality, ministry, court, judicial or administrative body, taxing authority, or other authority thereof (including any corporation or other entity owned or controlled by any of the foregoing), - having jurisdiction over the Employer, including, without limitation, any such regarding construction, health, labor, environmental and safety, preservation or reclamation of natural resources, the management, environmental release or threatened environmental release of any hazardous substances or any contamination arising from, relating to, or resulting from any such hazardous substances etc;
Approved Monthly Account” shall mean: the Monthly Account approved by the Project Manager;
“Bank” shall mean: any reputable first rank bank not being affiliated to the Contractor directly or indirectly, to be approved by the Employer at its sole discretion and to its satisfaction which shall issue any of the bank guarantees to be provided by the Contractor under this Agreement;
Base Material Price” shall mean the purchase price per unit of material/product to be ordered by and supplied to the Contractor by a Nominated Supplier “Free on Truck” the truck at the Site gates (excluding any related or additional costs with respect to the handling transportation or otherwise of the material), as appears in the relevant column entitled “Base Material Price” in the Bill of Quantities;
Benchmarks” shall mean: the benchmarks described in Annex A1
Certificate of Completion”
shall mean: the certificate to be issued by the Project Manager in accordance
with the provisions of Paragraph 51
“Claims” shall mean: claims submitted against the Employer for which the Contractor is responsible and liable;
Competent Authorities” shall mean: all and any state or municipal authority and all and any persons, whether public or private, exercising by virtue of the Applicable Law licensing, compliance or controlling functions in relation to any aspect of the execution of the Works and the fulfillment of the Contract, including, inter alia, the fire and hygienic control authorities, utility companies, and architect of the design of the Works;
Completion List” shall mean: the written list detailing the work remaining to be done in respect of the Works to be handed over to the Employer in order to entitle the Contractor to receive the Certificate of Completion for all the Works;
Construction Interim Stages/Milestones” shall mean: the various stages for completion of those parts of the Works as specified in Annex G1;
Construction Schedule” shall mean: the Contractor’s Detailed Construction Schedule – Annex P-Submission P1 to the Agreement prepared according to the Construction Interim Stages/Milestones– Annex G1
“Construction Technical Book” shall mean: any and all technical documents related to (but not limited) the design, execution, reception, use, follow-up of the building’s and its installations’ status during the building’s use, which must include all data and documentations provided by the Applicable Law;
“Contract Date” shall mean: the date of execution of the Contract as specified herein above;
Contract Documents” shall mean: the Construction Agreement, these General Conditions, and all annexes attached hereto and any modification, supplements thereof;
“Construction Permit” shall mean: the final and lawful administrative act issued by the Competent Authorities, which allows the commencement and the execution of the Works in compliance with the requirements of the Applicable Law and which shall be attached as an Annex A2 to the Agreement and will form an integral part of the Agreement, as amended or supplemented from time to time;
Contract Drawings” shall mean: the drawings of the Works, here attached as Annex E, and any further design, development, additional or modified drawings issued by the Employer (or on its behalf) in accordance with the Agreement and copies of which will be attached to this Agreement and will became part of Annex E, or which will be deemed as added to such list by the instruction of the Project Manager to that effect from time to time;
“Contract Language” shall mean: English;
“Contractor” shall mean: that party named as such in the Schedule of Particulars and the legal successors in title to such person;
“Contractor’s Detailed Construction
Schedule” shall mean: the computerized schedule, attached hereto as
Annex P- Submission P1, to be prepared by the Contractor within 28 (twenty eight) days from the Contract Date,
according to Paragraph REF _Ref208314061 n h 17.1
“Contractor’s Personnel” shall mean: the Contractor’s Representative and all persons employed, hired or retained by the Contractor (including the staff, labor, Foreman, and other employees of the Contract and of each Subcontractor and any other personnel assisting the Contractor in the execution of the Works and/or in performance of its obligations under the Contract;
Contract Price” shall mean: the entire amount of the consideration payable to the Contractor in respect of the execution of the Works pursuant and subject to the provisions of Chapter XI of these General Conditions;
“Contract Price before Date of Commencement” shall mean: the amount mentioned in the Schedule of Particulars;
Contractor's Representative” shall mean: the representative of the Contractor at the Site of the Works to be appointed by the Contractor within 14 (fourteen) days of the date of the signing of this Agreement, or, in the event that such appointee being unwilling or unable to act in that capacity for any reason, such other representative who shall be appointed for that purpose by the Contractor;
Date of Commencement” shall mean: the date upon which the construction operations in respect of the Works shall commence in terms of the Notice to Proceed;
Date of Completion” shall mean: the date upon which the Final Certificate of Completion shall be issued in respect of the Works;
Day” shall mean: one calendar day, unless stated specifically to the contrary;
Defects List”
shall mean: the written list of defects which the Project Manager shall furnish
to the Contractor in terms of the provisions of Paragraph 51.54.11
“Drawings” shall mean: jointly the Contract Drawings and the Execution Drawings;
“Employer” shall mean: that party named as such in the Schedule of Particulars and the legal successors in title to such person;
Employer’s Personnel” shall mean: the Project Manager and all persons employed, hired or retained by the Employer;
Employer’s Representative” shall mean: the representative of the Employer at the Site of the Works to be appointed by the Employer within 14 (fourteen) days of the date of the signing of this Agreement, or, in the event that such appointee being unwilling or unable to act in that capacity for any reason, such other representative who shall be appointed for that purpose by the Employer;
“Execution Drawings” shall mean: all drawings to be prepared according to this Agreement during and for the execution of the Works, either by the Employer or the Contractor and/or anyone on their behalf, including the Contract Drawings, Coordination Drawings, Workshop Drawings, As-built Drawings, work plans, as well as other design, development, additional or modified drawings issued by any of the Parties in accordance with the Agreement, all these approved by the Project Manager;
“Final Account” shall mean: the final account to be submitted
by the Contractor to the Employer in accordance with Paragraph 60.1
“Final Certificate of Completion” shall mean: the certificate to be issued by the Project Manager at the expiration of the Guarantee Period evidencing the completion of all Works at the termination of the said Guarantee Period;
“Final Reception Minutes” shall mean: the minutes issued and signed in accordance with the Applicable Law by a commission summoned by the Employer after the expiry of the Guarantee Period in accordance with the Applicable Law;
“Final Payment Certificate” shall
mean: the payment certificate to be issued by the Project Manager in accordance
with Paragraph 60.2
“Force Majeure” shall mean: with respect to a Party, an exceptional event or circumstance, confirmed by a force majeure certificate issued by the Romanian Chamber of Commerce, which: (a) is beyond a Party’s control, and (b) such Party could not reasonably have provided against before entering into the Contract, and (c) having occurred, such Party could not reasonably have avoided or overcome by applying best efforts, and (d) is not substantially attributable to the other Party; such as: (i) war, hostilities (whether war be declared or not), invasio 535e46f n, act of foreign enemies; (ii) rebellion, terrorism, revolution, insurrection, military or usurped power, or civil war; (iii) riot, commotion, disorder, strike or lockout by persons other than the Contractor’s Personnel and other employees of the Contractor and Subcontractors; (iv) munitions of war, explosive materials, ionising radiation or contamination by radio-activity, except as may be attributable to the Contractor’s use of such munitions, explosives, radiation or radio-activity; and (iv) natural catastrophes such as earthquake, hurricane or typhoon, floods, fires (excluding other exceptionally adverse climatic conditions);
“Foreman” shall mean: the person referred to in Paragraph 32.34.12
General Conditions” shall mean: these General Conditions of the Contract in respect of the execution of the Works by the Contractor which are attached as Annex 2 to the Contract and form integral part thereof. Any reference to Chapters and Paragraphs shall be references to chapter and paragraphs of the General Conditions, unless specifically referred to another appendix, annex or attachment of the Contract;
“Goods” shall mean: the Plant and all Temporary Works, Contractor’s equipment, tools, Materials, consumables and other things and services, necessary for the proper and due execution of the Works according to the Technical Documentation;
Guarantee Period”
shall mean: the period in respect of the Works as determined in Paragraph 54.1
“Governing Law” shall mean: English Law;
''Leader'' (in case of a joint venture of two or more entities or of a special purpose vehicle) shall mean: that party named as such in the Construction Agreement and the legal successors in title to such person
“Maintenance Guarantee” shall mean:
the unconditional and irrevocable maintenance/defect liability bank guarantee to be issued by the Bank in favor
of the Employer and provided to the Employer by the Contractor in terms of
Paragraph 54
“Materials” shall mean: materials of all kinds, other than Plant, intended to form or forming part of the Works, including the supply-only materials to be supplied by the Contractor under the Contract;
“Milestones / Interim Stages” shall mean: the dates for completion of the major stages of the execution of the Works as specified in Annex G1 hereto;
Monthly Account” shall mean: the monthly account to be submitted by the Contractor to the Employer detailing the works executed and the materials supplied during the month to which such account relates and providing detailed information with respect to the Contract Price due;
Nominated Subcontractors and/or Suppliers” shall mean: any Subcontractor and/or Supplier nominated by the Employer hereunder or to be so nominated to execute Works and/or supply materials at the Employer’s discretion;
Notice to Proceed”
shall mean: the notice to be furnished by the Employer to the Contractor
related to the proposed Date of Commencement in terms of Paragraph 43.2
Operation Permit shall mean: the final and lawful operation permits and/or approvals that the Applicable Law may require to be issued by the Competent Authorities, which allows the exploitation of the completed Works, or of any part of them, as the case may be, for their intended purpose according to the Construction Permit.
Parties” shall mean: the Employer and the Contractor;
Performance Guarantee”
shall mean: the unconditional and irrevocable bank guarantee to be issued by
the Bank in favor of the Employer and provided to the Employer by the
Contractor pursuant to the provisions of Paragraph 30
“Plant” shall mean: the apparatus, machinery and equipment intended to form or forming part of the Works;
“Project” shall mean: the Project described in Annex A – hereto;
Project Manager” shall mean: that party specified in the Schedule of Particulars, being the body which has been entrusted by the Employer with the management and supervision of the Works (or, in the event of its being unwilling or unable for any reason to act in that capacity, such other person or body who shall be appointed for that purpose by the Employer), who shall be fully authorized and empowered to act for and on behalf of the Employer in all matters pertaining to this Agreement;
Project Manager's
Instructions / Instructions” shall mean: the written instructions and
explanations and the drawings to be furnished by the Project Manager to the
Contractor in respect of the execution and implementation of the Works, as more
fully specified in Paragraph 3
Retention Monies”
shall mean: the retention monies to be withheld by the Employer from payments
made by it to the Contractor on account of the Contract Price in accordance
with the provisions of Paragraph 61
Schedule of Particulars” shall mean: the Schedule attached to the Contract as Annex 1, specifying details and particulars pertaining to this Agreement;
“Separate Contractor” shall mean: any such person as may be engaged by the Employer in respect of the construction and execution of various works which are included within the framework of the Project, including lessees of various areas within the completed Works;
Site” shall mean: the area(s) referred to in Annex B – Scope of Works and specified in Annex N – Site Organization Plan - to the Agreement, being the site for the execution of the Works in terms of this Agreement;
“Specific Nominated Subcontractor”
shall mean: the Nominated Subcontractors referred to in Paragraph 45.11
“Standards” shall mean: the standards of Plant, Materials and workmanship as determined in the Technical Specification; however, if no standard is determined, or if reference is made to local standards, the highest of the following shall apply: local standards, standards of the Benchmarks and the equivalent EU standards.
“Subcontractor” shall mean: any person appointed by the Contractor,
or by any Subcontractor appointed by the Contractor, to execute any portion of
the Works, subject to the provisions of Paragraph 8
“Supervisor” shall mean: the person licensed by the Competent Authorities to exercise overall supervision and control for the execution of the Works in compliance with the statutory requirements and the Building Permit, as engaged by the Employer;
Taking-Over Minutes upon Completion of Works” shall mean: the minutes issued and signed in accordance with the Applicable Law by a taking-over commission summoned by the Employer in accordance with the Applicable Law, at the Project Manager’s request;
Technical Documentation” shall mean: the Contract Drawings, the Technical Specifications and the unit prices (rates) as specified in the Bill of Quantities, together with such other plans, drawings, designs, specifications and other technical documents as may be issued during the progress of the Works, as well as any modifications thereof or additions thereto as may from time to time be furnished and/or approved in writing by the Project Manager during the progress of the Works;
Technical Specifications” shall mean: the detailed general and special specifications stipulated in Annex C and Annex D to the Agreement and descriptions in respect of the Works and which are attached to this Agreement and which shall form an integral part hereof, including the and any additions and modifications thereto issued by the Employer or on its behalf in accordance with the Contract;
“Temporary Works” shall mean: all temporary works of every kind, other than the Contractor’s equipment, required on Site for the execution, completion and maintenance of the Works, such as temporary structures, access routes, utility sources, scaffolding, etc.;
“Unit Price” shall mean: the price per item of the Works as appears in the Bill of Quantities – Annex F to the Agreement, which includes, inter alia, the Base Material Price of that unit;
Variation” shall mean: any significant change in the scope (including style, shape, quality, height, dimensions, size or quantity) of the Works as specified in or to be inferred from the Contract (including the Contract Drawings, the Technical Specifications and the Benchmarks), which is instructed or approved by the Project Manager in a Variation Order;
Variation Order”
shall mean: a written order made by the Project Manager directing a variation
of the Works pursuant to the provisions of Paragraph 56
Works” shall mean: the works to be executed by the Contractor under the Agreement as detailed, specified and defined in the Technical Documentation and in Annex B– Scope of Works;
Workshop Drawings” shall mean: the drawings which have been prepared by the Contractor based on the Contract Drawings and approved by the Project Manager;
“Warranty Period” shall mean:
each and any of the periods during which the Contractor is to be liable for
hidden defects in respect of the Works in terms of Paragraph 55
The Project Manager shall have all those powers, duties, authorities and responsibilities which may be required, expressly or by implication, in order to supervise the planning, design, execution and implementation of the Works fully in accordance with the provisions of the Technical Documentation, and in order to ensure their proper and timely completion on or before the Date of Completion, and their proper maintenance during the Guarantee Period, all as more fully detailed hereunder.
In the exercise of the powers and duties awarded to him pursuant to the provisions of this Agreement, the Project Manager shall act only on the basis of professional considerations, and shall exercise reasonable discretion in his acts and decisions.
Without derogating in any manner from the generality of the foregoing, the Project Manager shall be authorized and empowered to do and execute inter alia, all or any of the following, namely:
to examine and approve samples of Materials to be used by the Contractor;
to issue the Project Manager's Instructions in respect of the execution of the Works;
to issue the Notices to Proceed, the Completion List, the Certificate of Completion, the Defects List, the Final Certificate of Completion, and such other certificates as may be required during the progress of the Works;
to decide upon discrepancies in the Contract Documents;
to approve the Contractor’s Detailed Construction Schedule;
to demand the re‑execution of defective work and the replacement of defective Materials;
to require the Contractor to remove Subcontractors and/or to dismiss workers from the Site of the Works;
to give instructions for the expedition of the Works;
to evaluate the work done and of the Materials and of the equipment used in the event of the termination of the Agreement prior to the completion of the Works;
to decide upon issuance of Variation Orders;
to examine and approve the Monthly Accounts submitted by the Contractor;
to enjoy full and unfettered access to the Site and any other place where work is being carried out in respect of the Works at all times;
to examine and approve the Works and all items which require the Employer's approval pursuant to the provisions of this Agreement;
to issue any instruction and/or perform any act and/or make any decision as the Project Manager shall deem necessary for the proper, efficient and timely execution and completion of the Works.
No approval, check, certificate, consent, examination, inspection, instruction, notice, proposal, request, test or similar act, or the absence thereof, by the Project Manager shall relieve the Contractor from any responsibility it has under this Contract, including responsibility for errors, omissions, discrepancies and non-compliances, subject at all times to the provisions of this Agreement.
Disputes and other matters in question relating to the performance of the Works or the interpretation of the Contract Documents shall be referred to the Project Manager in writing immediately after the date of commencement of the execution of the relevant Works and/or the date of commencement of the execution of the relevant Milestones, for a decision which the Project Manager shall give in writing. For the avoidance of doubt, any such claim, dispute and matters shall not entitle the Contractor, in any event, to delay the performance of the Works.
The Project Manager shall conduct inspections to determine the Project “critical path” status.
the removal from the Site of any Materials and equipment brought thereon under the Agreement, and the substitution of any other materials therefore;
the removal and/or re-execution of any works executed pursuant to the provisions of this Agreement;
the dismissal from the Works of any person or Subcontractor employed thereon;
the opening up for inspection of any work covered up and/or hidden Works;
the suspension and re-commencement of the Works;
the amending and making good of any defects;
any of the issues referred to in Paragraph 2.3
any other matter pertaining to the proper, efficient and timely execution of the Works.
The Contractor shall comply with and duly execute any work comprised in such Project Manager's Instructions, provided that the oral instructions, directions and explanations given to the Contractor and/or to the Contractor's Representative by the Project Manager shall be confirmed in writing.
Failure by the Contractor to fulfill the Project Manager's Instructions furnished in accordance with the provisions hereof shall be deemed to constitute a fundamental breach of the provisions of this Agreement. If any of the Project Manager’s Instructions constitutes a Variation, the provisions of Chapter X shall apply.
The Contractor shall be responsible for co-ordination, supervision and administration of the execution of the Works, including by Nominated Subcontractors, Specific Nominated Subcontractors and Separate Contractors.
Any instructions given to the Contractor's Representative by the
Project Manager shall be deemed to be given to the Contractor in pursuance of
the provisions of Paragraph 3.1
The Contractor shall ensure that the whole time of the Contractor’s Representative shall be given to directing the Contractor’s performance of the Contract, and that the Contractor’s Representative:
shall be present on the Site at any time when Works are executed;
shall attend all Site meetings summoned by the Project Manager and/or by anyone on his behalf and stead;
shall be available to return to the Works and attend there at any time, including outside working hours, in the case of urgent matters or emergencies, as well as during the Guarantee Period.
If the Contractor’s Representative is to be temporarily absent from the Site during the execution of the Works, a suitable replacement person shall be appointed, subject to the Project Manager’s prior consent and approval to that effect.
The Contractor shall ensure that the Contractor’s Representative shall be fluent in the Contract Language and knowledgeable of construction terminology and practices.
In addition to the constant management and supervision of the Works provided by the Contractor’s Representative, the Contractor shall:
employ competent staff for carrying out the prime management functions, with a level of competence satisfactory to the Project Manager; and
procure that all significant types of Works be under the close control of competent supervisors who shall ensure co-ordination and maintenance of satisfactory quality and progress; such co-ordination team shall include 3-4 persons with appropriate knowledge and experience in provision of mechanical and electrical engineering services to ensure compatibility between the said services and between each of them and the Works in general.
The organization
chart, attached as Annex P-Submission P4 hereto, showing the Contractor’s
Project management structure in terms of the previous Paragraph shall be
submitted to the Project Manager’s approval as part of the Construction Schedule,
and the provisions of Paragraphs 4.1
Site technical and control meetings will be held at intervals determined by the Project Manager, for the purpose of discussing individual technical matters regarding the design or execution of the Works as well as for discussing matters influencing the development of the Works. Such meetings shall be chaired by the Project Manager, who will prepare and issue to the Contractor’s Representative written minutes of each meeting.
Site meetings will be held at the intervals determined by the Project Manager, for the purpose of discussion of general matters influencing the development of the Works. Such meetings shall be chaired by the Project Manager, who will prepare and issue to the Contractor’s Representative minutes of each meeting.
In order to attend Site meetings , the Contractor shall adapt itself to such times as shall be fixed by the Project Manager, and shall bring to these meetings the necessary plans, reports, time schedule and any other documents, and all the staff, including such of Subcontractors, as shall be required by the Project Manager.
The Contractor shall arrange weekly co-ordination meetings with its Subcontractors for the purpose of co-ordinating activities on the Site over the following week and resolve any mutual problems arising in the course of execution of the Works. The Contractor shall notify the Project Manager of the time of such meetings, and the Project Manager may attend them at its sole discretion.
During the currency of this Agreement, the Contractor shall ensure that no portion of its share capital shall be transferred in any manner which may give rise to a change in the control of the Contractor without the prior written consent of the Employer.
For purposes of the foregoing, a “change of control”, as used with respect to the Contractor, shall mean a change in the person or persons acting together who, directly or indirectly, possess the power to direct or cause the direction of the management and policies of the Contractor, whether through the ownership of voting securities, election or appointment of board members or executive officers, by contract or otherwise.
The Contractor shall not be entitled to assign this Agreement, nor any of its rights, benefits, interests or obligations pursuant thereto, in whole or in part, to any third party.
The Employer may freely assign the whole or any part of the Contract or any benefit or interest in or under the Contract, including without limitation, to pledge or create an interest over this Contract if it is so required by the Bank/s financing the Project, or as part of a sale of part or the whole of its interest, proprietary or otherwise, in the Project.
The Contractor hereby undertakes that on the date of the issuance of
the Certificate of Final Completion pursuant to the provisions of Paragraph 54.12
The Contractor hereby undertakes that it shall not:
subcontract
all or any portion of the Works to any third party without first having
obtained the written approval of the Project Manager according to Paragraph 2.3.1
engage the services of any Subcontractor whose appointment shall have been rejected by the Project Manager.
For the removal of doubt it is hereby clarified that the employment of workers and/or labourers by the Contractor, whether on a fixed time basis or on a unit rate basis, shall not be deemed to constitute subcontracting of the Works by the Contractor;
Subject
at all times to the provisions of Paragraph 8.1
the Contractor shall have received the prior written consent of the Project Manager to this effect;
the Subcontractors engaged by the Contractor shall possess the necessary expertise, know-how and professional workmanship to execute the Works fully in accordance with the provisions of this Contract, including the Technical Documentation;
the delegation of any portion of the Works whatsoever by the Contractor to a Subcontractor shall not discharge or free the Contractor from any of its responsibilities, duties and obligations under this Contract, and the Contractor shall remain jointly and severally responsible and liable for all acts, errors, omissions, faults or negligence of all Subcontractors, which shall be deemed for all purposes hereunder to be the acts, errors, omissions, faults and negligence of the Contractor;
the Contractor shall specify in the contract between itself and the Subcontractor terms and conditions consistent with those in this Contract, and shall also ensure that the Subcontractors shall explicitly undertake to cooperate fully with all Separate Contractors and Nominated Subcontractors working on the Site;
the Contractor shall provide, at its own expense and responsibility, all the necessary water, electricity, services and facilities, lifting, support, storage, coordination, programming and the like, necessary or required by Subcontractors in order for them to complete their work safely and without hindrance or delay.
Nothing in this Contract shall be deemed to create or constitute any privity of contract whatsoever between the Employer and any Subcontractor and/or to create an employer-employee and/or agency relationship between the said, and/or to impose any obligations and/or liability upon the Employer with respect to the Subcontractor elected by the Contractor as said. The Contractor undertakes to fully indemnify the Employer, upon the Employer's first demand, against any and all claims, if brought against the said, by any of the Subcontractors. For the avoidance of doubt it is hereby emphasised that neither the Contractor nor the Subcontractors have and / or shall have any builder’s lien and/or privilege of whatsoever nature or kind in and/or over the Site and/or the Works and/or the Project and/or any part thereof;
Upon approval being given in respect of a Subcontractor, the Contractor undertakes to include in the respective subcontract provisions to the effect that the Subcontractor is not permitted to deviate in any manner from the Construction Permit, or from the Technical Documentation, that such Subcontractor is obliged to comply with the instructions of the Employer and/or the Project Manager in all matters relating to the execution of the Works, and that any notice given by the Employer and/or the Project Manager to rectify any deviation from the Construction Permit or the Technical Documentation which is not complied with, with reasonable promptness, is liable to result in the termination of this Contract and the eviction of the Contractor and/or the said Subcontractor from the Site, as well as for payment of compensations by the Contractor and/or the Subcontractor for consequent damages incurred by the Employer.
such Subcontractor refuses or neglects to fulfil the Project Manager’s Instructions; and/or
commits a breach of its contract with the Contractor; and/or
fails to execute the Works in the manner or at the standard required in terms of this Contract for the execution of the Works, in accordance with the Technical Documentation, or to comply with the Schedule of Construction;
then and in such event the Project Manager shall be
entitled, with a 14 (fourteen) days written notice to demand the immediate
removal of the said Subcontractor from the Site and/or the Works, and the
Contractor hereby undertakes to ensure the immediate eviction and removal of
such Subcontractor as aforesaid, and to do so without any delay or disruption
in the execution of the Works, without any deviation from the Construction
Schedule, and without releasing the Contractor from its responsibility for the
execution of the said portion of the Works. For the avoidance of doubt, the Employer
shall be entitled, at its sole discretion, to appoint a Separate Contractor to
execute the respective portion of the Works, in which case provisions of Paragraph
18
Unless explicitly provided otherwise in the Schedule of Particulars and/or separately agreed in writing by the Parties, it is agreed that the Contractor shall bear all responsibility and liability for payments to any Subcontractors engaged by it in the provision of the Works hereunder and/or any part thereof.
In addition, and unless specifically provided otherwise in the Schedule of Particulars, the Contractor shall bear all responsibility for availability of valid, exercisable guarantees and securities of the Subcontractors engaged by it, with respect to their undertakings and execution of the Works by the said.
If any Subcontractor or another person of the Contractor’s Personnel notifies the Project Manager and/or the Employer that the Contractor has failed to pay any amount payable to it, the Project Manager may request the Contractor, prior to issuing an Approved Monthly Account or the Final Payment Certificate, as the case may be, to supply evidence in writing that the said Subcontractor or person of the Contractor’s Personnel has received all amounts due to it, or that the Contractor is entitled to withhold or refuse to pay the said amount.
If the Contractor shall fail to supply the abovementioned evidence, the Employer may, at its sole discretion, either pay the said amount directly to the abovementioned Subcontractor or Contractor’s Personnel and consequently deduct such paid amount together with a supplement fee of 30% (to be applied on the paid amount) + VAT, from any sums due to the Contractor by the Employer under this Contract, or withhold such amounts as part of the Retention Monies, or exercise the Performance Guarantee or the Maintenance Guarantee and deduct such amount from the proceeds thereof. The Contractor shall not have and hereby waives any and all claims against the Employer to this respect.
In the event that the Employer exercises
the Performance Guarantee / Maintenance Guarantee the Contractor shall be
obliged to furnish the Employer with an alternative guarantee within 7 (seven) Days of the exercise of the
original Performance Guarantee / Maintenance Guarantee, failing which the
Contractor shall be deemed to be in fundamental breach of the provisions of
this Contract in terms of Article 62
The Contract Documents shall be deemed to constitute a single entity and to be mutually explanatory and shall be interpreted as complementary and broadening the scope with respect to each other. In the event that a discrepancy and/or inconsistency shall arise between the provisions of the various documents, then and in which event the following priority shall prevail:
For execution of the Works:
The Workshop Drawings as approved by the Project Manager;
The Technical Specifications – Annexes D and C;
The Bill of Quantities – Annex F;
For payments and Contract Price:
Notwithstanding the above mentioned general order of priority, for payments and Contract Price, the following order of priority will apply:
The Bill of Quantities – Annex F ;
The Technical Specifications – Annexes D and C;
Drawings
In the event that a discrepancy shall arise between words and figures in any of the Contract Documents, words shall prevail over figures.
In the event that the Contractor finds any discrepancy between the
various documents, or if any data is unclear to the Contractor, it shall be
obliged to apply in writing to the Project Manager immediately upon the
discovery thereof, and shall request that the Project Manager within 3 (three)
days issue his Instructions in order to resolve the discrepancy (being
emphasized that such will not be deemed as event entitling the Contractor to
extension of time for completion under Paragraph 50
specify the interpretation to be given;
be deemed to constitute part of the Technical Documentation;
be binding upon the Parties.
The Contractor confirms and declares that:
it has thoroughly perused, examined and investigated the Contract Drawings and the designs and specifications in respect thereof prior to the date of the signing of this Agreement;
the Contract Drawings and the Technical Specifications are entirely fit for the purpose for which they are intended and have been prepared, and that the Works which are the subject matter of this Agreement shall be properly executed in accordance therewith;
the Contract Drawings and the Technical Specifications are acceptable to it in their entirety and are capable of execution pursuant to the provisions of this Agreement;
it acknowledges that at the time of signing of the Contract the final design of the Works has not necessarily been completed in every detail, yet that the Contract Drawings and the Technical Specifications are entirely sufficient for it to make the necessary design assumptions, estimates and calculations related to the execution of the Works in accordance therewith, and therefore, the Contract Price is in conformity with the Contract Drawings and the Technical Specifications and the Contractor shall not be entitled to claim any alteration to the Contract Price based on insufficiency of the Contract Drawings and/or the Technical Specifications;
it is willing and able to execute those portions of the Works to which the Contract Drawings and the Technical Specifications relate in accordance with the provisions of this Agreement.
The Employer shall furnish the Contractor free of charge with one original and 1 (one) copy of the Contract Drawings and the Technical Specifications and any other further drawings or parts of the Technical Documentation approved by the Project Manager, subject to the following provisions:
the Contractor shall provide and make at its own expense any further copies required by it;
at the completion of the execution of the Works, the Contractor shall return to the Project Manager all Contract Drawings provided in terms of the Agreement, except one set, which shall be retained by the Contractor.
The Contractor shall be responsible for ensuring that:
the Contract Drawings are properly and in time updated during the execution of the Works;
at least one copy of any such updated Contract Drawings shall be available on Site at all times, and shall be available for inspection and use by the Project Manager and by any other person authorized by the Project Manager in writing and/or by the Competent Authorities.
The Contractor shall render the Employer’s Personnel every assistance and cooperation and shall offer technical solutions in view of the preparation of the execution drawings of the Works. In order to avoid any doubt, it is hereby expressly agreed that the Contractor shall have to inform in writing the Employer’s Personnel and the Project Manager with regard to the impact that such technical solutions would have on the Contract Price (if any).
No portion of the Works will be executed without a respective drawing approved by the Project Manager, or not in compliance therewith. For this purpose, the Contractor shall submit to the Project Manager for review a copy of all drawings to be used for the purpose of execution of any portion of the Works, in full compliance with the provisions of Annex E and Annex O-Chapter 03 to the Agreement.
The Contractor is obliged to
supply all the necessary Workshop Drawings (as defined in Paragraph 11.1
Prior to commencement of the Works, the Contractor shall prepare coordination drawings for each level of the Project buildings. Such drawings shall indicate proposed arrangements resolving all areas where there is interference between different trades and show all the exact locations and elevations of all the services such as ductwork, piping, plumbing, sprinklers, electrical, control, elevators, etc., and all required openings, indents and sleeves for ducts and pipe penetrations.
The Contractor is responsible to ensure that the production of coordination drawings, the process of review meetings, etc., are in full compliance with the Construction Schedule and the operations on the Site.
All coordination drawings shall be submitted to the Project Manager, who shall have a maximum of three weeks for review thereof. It is hereby explicitly clarified that the approval by the Project Manager of the coordination drawings shall in no way be deemed to impose upon the latter any liability regarding any defects and/or flaws and/or shortfalls in the Works performed according to such drawings, and such approval shall in no way diminish and/or derogate from the Contractor’s liability and/or responsibility to perform the coordination Works in a professional manner, including if such requires deviation and/or modification of the coordination drawings.
If any errors in coordination are discovered at the Site, the Contractor will be required to correct the Works at its own cost without affecting the Schedule of Construction. Corrections required in the structural and architectural trades will not justify a reason for an extension of the time for completion of the Works.
Prior to their submission to the Project Manager, the Contractor shall review all Workshop Drawings and shall confirm, by conducting such review, that it has determined and verified all field measurements, and that he has checked and coordinated each Workshop Drawing with the requirements for the execution of the Works and with the Technical Documentation.
The Contractor shall be responsible for:
the timely and orderly preparation and submission of one digital copy
and one original set of all drawings specified in this Paragraph 11
the co-ordination between
all drawings specified in this Paragraph 11
Without derogating from the generality of the provision of Paragraph 2.6
The Contractor shall prepare and keep updated a complete set of “As-Built” Drawings showing the exact “as-built” locations, size and details of the Works, as they have been executed, with cross-references to relevant specifications and data sheets. Such drawings shall be kept on Site during the execution of the Works and during the Warrantee Period.
For the purpose of issuance of the Certificate of Completion for the Works, the Contractor shall submit to the Project Manager
(i) one digital copy, one full-size original copy and three printed copies of the “As-Built” Drawings of all the Works, or of the relevant part thereof as the case may be and
(ii) one digital copy and two printed copies of the Construction Technical Book to be prepared and up-dated according to the Applicable Law, in Romanian and the Contract Language, in sufficient detail for the Employer to operate, maintain, dismantle, reassemble, adjust and repair the completed Works.
No part of the Works shall
be deemed completed for the purpose of issuance of a Certificate of Completion
for the Works until the documents under Paragraph 12.2
The Contractor shall keep on Site copies of the documents listed below, readily accessible for reference by all Employer’s Personnel, and shall provide the Project Manager with copies of the same in a digital form, or in hard copy, if digital one is not available, both in Romanian and in the Contract Language:
manufacturers’ current literature relating to all products to be used in the Works;
Romanian Standards, with all current revision sheets included and superseded sheets removed;
any other technical literature or reports required by the Project Manager.
All copyright and intellectual property rights in that part of the Technical Documentation, which has been prepared by the Employer or on its behalf and/or by the Contractor or on its behalf shall at all times be retained by the Employer, and this Contract does not intend to and does not grant to the Contractor and/or anybody on its behalf, the right to use such documentation in any way other than solely for the purpose of performing its obligations under the Contract.
The Contractor hereby explicitly agrees and undertakes to procure that the part of the Technical Documentation which has been prepared by the Contractor or on its behalf and/or by the Subcontractors shall be deemed to be created under the Employer’s assignment and shall become and remain exclusive property of the Employer, who shall possess the full copyright and all intellectual property rights in and to it, including inter alia the unlimited and free right to use, disclose, transfer and assign all and any such rights in the said documentation, all without any additional cost to the Employer. The Contractor further undertakes to indemnify and hold the Employer harmless from and against any claim of third parties, including employees and agents of the Contractor, claiming that the use of such documentation by the Employer in terms of this Paragraph infringes their intellectual property rights.
The Contractor shall provide all Contractor’s Personnel, Goods, consumables and other materials and services, whether of a temporary or permanent nature, required for the execution, completion and maintenance of the Works in accordance with the provisions of this Contract.
The Contractor declares that it accepts all the works which have been executed and/or completed on the Site by other contractors (excavation, piling, etc.) and states that the aforementioned works are suitable for the execution and completion of the Works. The Contractor declares it will not file any claims against the Employer with respect to these previous works.
The Contractor shall assume
full responsibility for the design of the Works, the Technical Documentation,
the co-ordination, supervision, adequacy, stability and safety of all Site
operations, activities and Works, for all methods of construction and for all
the Works, including their stability and structural integrity and their fitness
for their intended purpose as per the Contract, when completed, subject at all
times to the provisions of Paragraph 10.1.5
The Contractor shall be responsible for obtaining the Taking Over Minutes upon Completion of the Works, the Operation Permit for the Works in their entirety and for any part thereof, as the case may be, the Final Reception Minutes, including for making all necessary arrangements and coordination with the Competent Authorities.
In addition to the general and the specific obligations undertaken by the Contractor pursuant to the provisions of this Agreement and of the Applicable Law, the Contractor hereby undertakes to carry out the following additional duties:
to liaise with all his consultants, contractors, suppliers, and others engaged in connection with the construction of any portion of the Works;
to thoroughly peruse and examine the Technical Documentation prior to the Date of Commencement, and to bring any discrepancies, ambiguities or commissions which may be discovered by it therein to the attention of the Project Manager immediately upon their discovery as well as to advise the Project Manager forthwith of any difficulties or potential difficulties with such documents;
to attend all Site meetings;
to carry out regular inspection of all portions of the works in order to monitor the progress of the operations;
to issue instructions and/or notifications to all engaged in the execution of the Works and to ensure that the Project Manager Instructions are properly implemented;
to allow the Project Manager and/or the Employer and/or any other person authorized by the Employer, full and unfettered access to the Site and/or any other place where work is being carried out in respect of the execution of the Works;
to provide full support and assistance to the Supervisor and other Competent Authorities in the performance of their duties under the Applicable Law;
to provide samples and mock-ups as specified in the Contract;
to perform all its other obligations as specified in the Contract and stemming from the Standards and Applicable Law.
Generally, the Works and the obligations of the Contractor under the Contract shall include any work and expenses, which are explicitly mentioned in, or to be inferred from, the Contract, the Technical Documentation and the Benchmarks, and all work and expenses which, although not mentioned in the Contract or the Technical Documentation, are necessary for the execution, completion and safe and proper operation of the Works and shall have been included in the Contract Price.
The Contractor shall itself comply with, and shall be responsible for the Contractor’s Personnel’s compliance with all mandatory requirements of the Applicable Law, as well as with the orders, instructions, recommendations, norms, procedures, standards and other acts issued by the Competent Authorities within the scope of their authority (hereinafter “Regulations”).
The Contractor shall immediately notify the Project Manager:
of any Regulation issued, concerning the execution of the Works and/or the performance of the Contractor’s other obligations hereunder;
in the event that any of the Project Manager’s Instructions or any part of the Technical Documentation does not comply with any Applicable Law or Regulation.
The Parties shall complete and sign all acts and protocols which must be elaborated under the Applicable Law for the purpose of estimating the compliance of the Works with the requirements for safety and lawful execution (hereinafter “Acts and Protocols”), subject to the following provisions:
The Contractor shall notify the Project Manager with a copy to the Employer of the proposed time of signing of any of the Acts and Protocols at least 7 (seven) days in advance, when initiated by the Contractor, and immediately after receipt of such invitation, when the signing is initiated by any of the Competent Authorities, and
Shall ensure that the Project Manager takes part in the procedure, even if not explicitly required under the Applicable Law;
Acts and Protocols shall be signed in the absence of the Project Manager only if he does not attend their drafting at the time duly notified to him, and fails to appear within 24 (twenty four) hours thereafter.
The Contractor shall be responsible for the due notification and for making all arrangements to ensure the attendance at the signing of Acts and Protocols by the Supervisor and by all other persons that are required by the Applicable Law to take part in the completion of the Acts and Protocols.
The Contractor shall submit to the Project Manager two copies of all executed Acts and Protocols on the day of their execution.
Unless otherwise specified in the Contract, or explicitly agreed by the Project Manager on a case-by-case basis, the signing of any of the Acts and Protocols shall not be deemed to be a proof of any of the circumstances for which a special procedure is established under the Contract, and only such procedure, and the documents issued in the course thereof, shall be binding upon the Parties for the purposes of the Contract.
All the Acts and Protocols shall be prepared in Romanian and in Contract Language;
The signing of the Acts and Protocols shall not imply under any circumstances a decrease of/from the responsibility and liability of the Contractor under this Agreement.
the sequence and reciprocal dependence of the activities required for the execution of the Works;
the activities connected with the execution for each category of the Works, as well as the other activities that influence its progress, such as equipment supply, materials acquisition, review of mock-ups and samples, etc.;
the various
stages by which the Contractor shall implement the execution of the Works,
including the Interim Stage Completion Dates of each separate stage / Milestone
thereof (subject at all times to the provisions of Paragraph 46
the detailed schedule of the type and quantities of the construction equipment to be used by the Contractor during each stage of the execution of the Works, including estimated periods of their operation;
a schedule of manpower setting out the manpower which the Contractor proposes to use and operate in respect of the execution of the Works, including, inter alia, data relating to: number and profession and/or trade of all skilled and unskilled labor to be engaged by it; the estimated periods of their employment; and supervision;
a description of the nature, methods of execution and the estimated value of the work and materials in respect of each stage of the Works.
Refraining from including, or omission of, any work element that shall be required for the purpose of the execution of the Works in accordance with this Contract shall not release the Contractor from its obligation to complete the required work within the timelines determined there for, even if the Contractor’s Detailed Schedule was approved by the Project Manager.
The Contractor’s Detailed Construction Schedule shall be subject to the approval of the Project Manager. In the event that the Project Manager shall determine that the Construction Schedule is not in conformity with the dates specified in the Construction Interim Stages / Milestones or with the period for Completion specified in the Schedule of Particulars, or otherwise shall decline to approve the Contractor’s Detailed Construction Schedule, then and in which event the Contractor shall re-submit same in revised form within 3 (three) days in accordance with the Project Manager's requirements.
The Contractor’s Detailed Construction Schedule as approved by the Project Manager shall be deemed to constitute an integral part of this Agreement and shall be binding upon the parties. No deviation from the Contractor’s Detailed Construction Schedule shall be permitted unless and until approved by the Project Manager in writing.
by the relevant Interim Stage / Milestone and/or by the Date of Completion, as the case may be, if such delay shall have been occasioned in consequence of the acts, deeds or commissions of the Contractor, subject to the provisions of this Agreement; or
by the end of any
extended period of time awarded to the Contractor in terms of the provisions of
Paragraph 50
As a general rule, it is hereby expressly agreed by and between Parties that in the event that the Contractor shall fail to fulfill any or all his obligations hereunder in terms of execution of the Works under this Contract, repair and rectify of any defects thereto, within the time table agreed by the Employer, then:
the Employer shall be entitled to fulfill the Contractor’s obligations by means of another contractor or in any manner as it may deem fit, at the expense of the Contractor, and the Employer shall be entitled to collect the said expenses from the Contractor with the addition of a 30% + VAT supplement (to be applied on the paid amount), inter alia, by way of deduction of the said expense and supplement from any amount due to the Contractor under this Contract or withhold such amounts as part of the Retention Monies or exercise the Performance Guarantee or the Maintenance Guarantee or any other guarantee under this Agreement and deduct such amounts from the proceeds thereof ;and
if the proceeds obtained from the exercise of the Performance Guarantee or Maintenance Guarantee as aforesaid are insufficient to cover the amounts claimed by the Employer, it shall be entitled to recover same together with the said supplement from the Contractor or to claim same from the Contractor in any other manner in which the Employer shall deem fit, as permitted under the Applicable Law.
Should Provisions
of Paragraphs 18.1
Before the commencement of the Works, and at a time to be fixed by the Project Manager, the Contractor shall, at its own expenses provide and shall maintain on the Site through the duration of the execution of the Works, including without limitation:
all necessary Site offices, accommodation facilities, temporary lavatories and other facilities for the Contractor’s Personnel, and stores for Plant and Materials on the Site, and shall maintain same in a clean and sanitary condition; any secretary or office staff employed by the Contractor on the Site must be fluent in the Contract Language.
two suitable illuminated temporary signboards displaying the name of the Project, the Construction Permit, the names of the Employer, the Contractor and the key members of the Employer’s Personnel, such signboards (including size, contents, location, illumination and design) to be priory approved by the Project Manager and in accordance with the requirements of the Applicable Law. The Contractor shall make allowance for relocating the signboards during the execution of the Works as may be instructed by the Project Manager.
The Contractor undertakes to coordinate all site organization, layout and operation with the Project Manager and with the Competent Authorities. In case of the existence of archeological finds at the Site, the Contractor shall take all steps necessary in order to protect archeological sites located within the Site as required by the Project Manager, and same without any additional cost whatsoever to the Employer.
The Contractor undertakes to coordinate all site organization, layout and operation with the Project Manager, the Supervisor and with the Environmental Competent Authority due to the possibility of existence of ecological problems, according to the legislation in force.
Prior to commencement of the operations, activities and Works on the Site, the Contractor shall notify all relevant Competent Authorities of the Works to be executed and shall check the location of existing services (such as water, electricity, telephones, cables, sewers, drains, etc.). Any diversion of existing services on or near the Site, which may be required by the Competent Authorities, as well as any measures for protection, repair or reinstatement thereof shall be executed by the Contractor at its own cost, and without any delay in the Construction Schedule.
Any remaining construction and/or services from any demolished structures which have existed on the Site and which are not the subject of preservation and/or renovation (if any) shall be removed by the Contractor at its own cost prior to commencement of the Works. In the event that asbestos or other hazardous materials or substances are encountered on the Site, they shall be removed and disposed of by the Contractor and at its own cost, away from the Site, in accordance with the Applicable Law.
The Contractor shall carry
out all necessary structural, stability and other surveys to establish the
condition of the property on and adjacent to the Site (including buildings) (if
any) and any damage which may be caused thereto as a result of the operations
and activities on the Site, as well as a constant monitoring thereof (including
for vibrations), and shall keep a detailed record of their state, immediately
notifying the Project Manager if indicators exceed standard norms. The
Contractor has the obligation to take all necessary actions for the purpose of immediate remedying such
situation and bringing all indicators to standard norms all such without the
Contractor being entitled to any extension of time for completion under
Paragraph 50
Paragraph 19.6
The provisions of Paragraph 28
By affixing its signature to this Agreement, the Contractor confirms and declares that it has carried out (and in any event is deemed to have carried out) all necessary inspections, examinations investigations, tests, explorations and surveys in respect of the Site and its environments, as well as in respect of the adequacy and sufficiency of the Site conditions for the performance of the Works and has thoroughly perused and examined all documents, surveys, explorations and tests carried out by the Employer in respect thereof, and, without derogating from the generality of the foregoing, shall be deemed to have assembled all relevant data and information pertaining to or in connection with:
the form and the nature of the Site and its environments, as well as all climatic, hydrological, environmental and other conditions there prevailing;
the characteristics and quality of the soil at the Site and the sub-surface conditions, and other conditions there prevailing, especially with a view to the underground water table;
the existing property on and around the Site (including inter alia buildings and other structures, roads, installations, underground facilities and systems) and the possible damage to such property or to persons as a result of execution of the Works;
possible damage to existing installations;
the quantity, type and quality of the Works and the materials, equipment, labor and all other means (such as access, accommodation, facilities, transport, power, water and other services, etc.) required in order to execute complete and maintain the Works as specified herein, or to be inferred or derived from the Contract, the Contract Drawings, the Technical Specifications and the Construction Schedule;
the accommodation and
housing facilities which may be required by it and/or its employees and the Applicable
Law, procedures and practices in
the relevant Applicable Law, procedures and practices in
any other relevant details and information pertaining to the execution of the Works, which may be liable to influence the execution, completion or maintenance of the Works and/or any part thereof as required in this Agreement;
and that, accordingly, the Contractor has included in the Contract Price an appropriate contingency for all of the above issues and shall under no circumstances be entitled to any compensation, extension of time or other relief in case of encountering any obstacles or other hindrance which was not previously discovered by it.
The Site shall be
handed-over as is to the Contractor upon the Date of Commencement according to
Paragraph 41.43.2
The Contractor shall be solely responsible for the accuracy of any data, descriptions or information whatsoever, whether furnished to it by the Employer or not, and the Contractor is obliged to verify every item. The data and information specified in the Technical Documentation are according to the best information currently available to the Employer.
The Employer shall be entitled, but not obliged, to furnish the Contractor with reports and surveys carried out on its behalf in respect of the Works, provided that same shall be for the purposes of information only, and the Employer shall not be liable in any manner whatsoever for the accuracy or thoroughness of any such reports or surveys.
The Unit Price in the Bill of Quantities is the total price with respect to that unit, and includes without limitation all equipment, material, workmanship, direct and indirect expenses such as related drawings and documentation, installation, use, supply, transportation, loading/unloading, dismantling, storage, overhead, profit, foreseeable and unforeseeable costs etc.
Without limitation of or derogation from the Contractor responsibility to provide everything under Chapter VI below, the Employer shall be entitled to obtain from Nominated Suppliers offers for the Base Material Price for each Unit, and the Contractor will have to order and pay for the Unit from such Suppliers in the price and terms agreed between the Employer and the Supplier – the “Agreed Material Price”. If the Agreed Material Price shall be different (higher or lower) than the Base Material Price the Base Material Price will be adjusted according to the Agreed Material Price and to such adjusted Base Material Price a percentage of 3% representing the material depreciation during transportation and delivery on the Site, shall be either added or deducted upon the case.
Nothing mentioned in this Paragraph 21
The Unit Price in the Bill of Quantities is final complete and unchangeable for any reason whatsoever including without limitation an increase of energy or raw material costs, indexation, economic or other circumstances.
The Contractor shall prepare
at its sole cost and expense suitable access roads to the Site (if not already
existing and approved) in such manner as to avoid any disturbance to the use of
existing roads, and shall maintain same at its sole cost for the entire
duration of the Works. The said access roads shall be a minimum of
The Contractor shall be solely responsible and shall bear all the costs for:
providing all necessary signs or directions along access ways and obtaining any permission, license or right which may be required from the Competent Authorities and/or persons for its use of such access routes, signs and directions;
the execution of repairs to any roadways or paths which are damaged as a result of the execution of the Works;
maintaining roads and footpaths within or adjacent to the Site, and for keeping them clear of mud and debris, and repairing for making good any damage thereto caused by Site traffic or otherwise consequent upon the Works, to the satisfaction of the Competent Authorities and of the Employer;
satisfying any claims which may arise from its use of any access route and/or any roads or paths.
The movement of any heavy plant, equipment or materials shall be carried out with special safety precautions and subject to the Project Manager's approval of written and operative safety measures. Nothing herein stated shall release the Contractor from any legal liability or responsibility in connection therewith.
The Contractor shall prepare at its sole cost and expenses suitable land renting under temporary roads and accommodation (if it will be necessary).
The Contractor shall set out the Works in relation to original points, lines, levels and dimensions specified in the Contract or notified by the Project Manager. The Contractor shall:
verify their accuracy before using them and record the results on a copy of the relevant drawings;
notify the Project Manager of any discrepancies discovered and suggest repair of such;
submit to the Project Manager details of methods and equipment to be used in setting out the Works;
be responsible for the correct positioning of all parts of the Works; and
rectify at its own cost any error in the positions, levels, dimensions or alignment of the Works.
“Fixing points” shall be established in advance at designated locations on each floor agreed with the Project Manager, and shall be maintained throughout the whole period of construction. Tolerances between the fixing points from floor to floor shall be according to the provisions of Annex D. In case of lack of any provision in Annex D in respect of tolerances between the fixing points from floor to floor, these tolerances shall be no more than +/- 2mm.
The Contractor shall ensure that a professional surveyor team will be constantly available on the Site to verify the accuracy of the positions of the various building elements before, during and after their execution.
The Contractor shall, except as stated below, be responsible for the provision of all power, water and other services he may require.
The Contractor shall be entitled to use for the purposes of the Works such supplies of electricity, water, gas and other services (such as waste disposal etc.) as may be available on the Site. The Contractor shall, at his risk and cost, provide any apparatus necessary for his use of these services and for measuring the quantities consumed.
The quantities consumed and the correspondent amounts due for such services shall be agreed or determined by the Project Manager. The Contractor shall pay these amounts to the Employer.
Notwithstanding the above provisions, the Employer is responsible for coordinating and arranging connection points to water, gas and electricity supplies up to the designated points specified in the Site Organization Plan attached as Annex N. The Contractor is responsible for providing the necessary infrastructure for the purpose of connecting to and receiving the necessary water, gas and electricity supplies and any other services he may require.
If the Contractor requests the Employer to assist the Contractor in obtaining supplies of electricity, water, gas and other services as may be required for the Works, the Employer shall reasonably assist the Contractor, at the Contractor’s cost and risk. The Contractor shall, at his risk and cost, provide the apparatus necessary for his use of these services and, to the extent required, for measuring the quantities consumed. The Employer shall only provide the necessary connection points and the Contractor shall connect to the connection points on its own risk and costs. The Contractor shall timely pay to the suppliers of electricity, water, gas and other services as may be required for the Works all amounts due to them. For the avoidance or doubt any re-connection costs related to the above-mentioned utilities or increase in the cost of such utilities shall be borne by the Contractor.
The Contractor shall, at its own cost and expense, be solely responsible for keeping the Site and its surroundings, as well as the Works, including carried out by others, clean and tidy, and generally in a condition to the satisfaction of the Project Manager, which shall be based on professional considerations and generally accepted good practices.
Without derogating from the generality of the foregoing, the Contractor shall:
confine his operations to the Site and to any additional areas which may be procured by the Contractor and approved by the Project Manager as working areas, take all necessary measures to keep Contractor’s equipment and Contractor’s Personnel within the Site and these additional areas, and to keep them off adjacent areas, and generally not use the Site or the Works for any other purpose than execution of the Works;
during the execution of the Works, keep the Site free from all unnecessary obstruction, and store or dispose of any Contractor’s equipment, Temporary Works or surplus materials which are no longer required;
clear away and remove from the Site, while taking all necessary precautions and acting under all applicable permits, any pipelines, cables, and the like, provided it has coordinated the same with the Project Manager, but without that fact having any implication as to the liability of the Contractor for the execution thereof;
protect building interiors against damages due to weather conditions;
prevent damage to the Works, any furniture, fittings or equipment left in the buildings, including through their removal to a safe place in order to enable execution of the Works, and replacement in their original positions;
upon issuance of a Certificate of Completion, clear away and remove from the Site and Works, within the time frame indicated by the Project Manager, all Contractor’s equipment, surplus material, wreckage, rubbish and Temporary Works, and leave the Site and Works in a clean and safe condition, and vacated from all workforce other than such as required to perform the maintenance and/or testing and or any other undertaking as per the provisions herein set out.
The Contractor shall be obliged to maintain in proper order at the Site office a detailed Work Register in the form and manner approved by the Project Manager and in the Contract Language, relating to the activities on the Site and/or relating to the execution of the Works, and shall daily record therein all details required by the Project Manager and in accordance with his Instructions pertaining, inter alia, to the following: weather conditions (including daily maximum and minimum air temperatures); progress of the Works; obstructions and delays; number of workers; equipment and materials on site; any accidents that may have occurred during the execution of the Works etc.
The Works Register shall be produced to the Project Manager and/or to any authorized representative of the Employer, who shall be authorized to enter observations or instructions therein, which instructions shall be binding upon the Parties.
Each Works Register shall comprise numbered pages. Each page shall have a duplicate bearing the same number and carbon paper shall be used between the original and copy page when entries are made. The Contractor's Representative shall hand copies of each page of the Works Register over each day to the Project Manager, after signature as provided in the Site Diary Procedure.
For the avoidance of doubt, it is hereby explicitly specified that the Works Register shall be kept separately from the mandatory Construction Technical Book that has to be kept for the Works in accordance with the Applicable Law. Such Construction Technical Book shall be kept both in the Contract Language and in Romanian language; however, the Contractor shall be responsible for the immediate notification of the Project Manager of any order and/or comment made by the Competent Authorities and/or the Contractor or any member of the Contractor’s Personnel, and for providing the Project Manager with a translation thereof into the Contract Language.
The Contractor shall provide to the Project
Manager date inscribed colour digital progress photographs (not less than 18x
24cm in size) from agreed points at monthly intervals, and shall submit them to
the Project Manager in digital format together with the monthly progress report
in terms of Paragraph 47
Photographs of the whole Site and of certain sections, from agreed locations, shall be taken before the commencement of the Works and submitted immediately to the Project Manager. Once all construction work is completed, the same locations shall be photographed again and shall be submitted together with the Ready-for-inspection Notice.
Photographs shall be taken in such a manner as to show the chronological work progress, and shall be properly filed together with an explanation to each picture. The Contractor shall submit one album of chosen monthly photographs taken, as instructed by the Project Manager, including their explanations, to the Project Manager together with the Ready-for-inspection Notice.
The Contractor shall take all necessary steps and shall be solely responsible at its own cost for maintaining health and safety of the Site, its structures and surrounding area, and to prevent any nuisance, for the entire duration of the Works, on a 24 (twenty four) hours a day - 7 (seven) days a week -365 (three hundred and sixty five) days per year - basis. The Contractor shall comply with all the health and safety instructions required for the execution Site works, including use of appropriate health and safety equipment pursuant to regulations of the competent authorities, such instructions as the Employer and/or the Project Manager shall provide, and in accordance with the Applicable Law.
The Contractor shall be responsible for keeping unauthorized persons off the Site, where authorized persons shall be limited to the Contractor’s Personnel and the Employer’s Personnel and to any other personnel notified to the Contractor by the Employer or the Project Manager as being authorized personnel of the Separate Contractors.
The Contractor shall provide proper fencing hoardings, screens, marking and guarding and supervision (including by means of alarm and video camera surveillance system) of the Site, the Works, as well as any Temporary Works (including roads, paths, guards and fences), and use appropriate lighting systems at night to warn of obstructions resulting from the execution of the Works, all of which may be necessary for the protection of the public and of the owners and occupiers of areas surrounding the Site from any obstructions and/or damage resulting from the operations on the Site. Maintenance and replacement thereof shall be the exclusive responsibility of the Contractor
The Contractor shall maintain a First Aid Station on the Site meeting legal requirements, the equipment and operating conditions of which shall be approved by the Project Manager.
The Contractor shall also ensure the availability of fire‑fighting equipment on the Site meeting legal requirements, as approved by the Project Manager.
No advertising on the fences or on any other place on or adjacent to the Site shall be allowed, except with the explicit prior written consent and subject to the conditions determined by the Project Manager. Notwithstanding the aforementioned, the Employer shall be entitled to use such fences, hoardings, screens, etc. for advertising in its absolute discretion without additional payment due to the Contractor, except where special support advertising is required.
The Contractor shall at all times comply with the Site Safety and Health Plan stipulated in Annex I, in full compliance with the Applicable Law, shall prepare any detailed plan required in this respect and shall obtain the permit of any Competent Authorities in respect thereof to the extent required. The Contractor may be penalized by the Employer for any noncompliance with the said Site Safety and Health Plan, in accordance to the levels of noncompliance as disclosed and detailed in the Site Safety and Health Plan here attached as Annex I. The Employer may deduct such penalties from any monies due or to become due to the Contractor pursuant to this Agreement, or to set same off against all and any amounts due and owing by it to the Contractor on account of the Contract Price in terms of the provisions of this Agreement.
The Contractor shall appoint and pay a safety officer and comply with all safety instructions required for the execution of the Works, including use of appropriate safety equipment pursuant to regulations of the competent authorities, such instructions as the Employer shall provide, and in accordance with Applicable Law.
Without derogating from the provisions of the foregoing, the Contractor shall be deemed to be the works’ performer in respect of the Works, and accordingly shall furnish all notices required and fulfill all obligations and requirements specified in terms of the relevant safety laws and regulations, as amended.
In the event that any direct or indirect damage should occur due to the Contractor’s failure to comply with his obligations under this Paragraph, the Contractor shall be fully responsible for the damages and shall pay the corresponsive indemnifications.
In the event that during the execution of the Works on the Site, any items or structures of historical, archaeological, geological or ecological value are discovered, then and in such event:
such items or structures shall be deemed to be the absolute property of
the
any excavations, stock‑piling of materials and execution of the Works within the Site and/or the organizational areas shall be executed solely and strictly in accordance with the directions of the Competent Authorities with jurisdiction in archeological and ecological matters.
On discovery of a valuable finding, the Contractor shall be obliged without additional cost to the Employer:
to give immediate notice thereof to the Employer and/or to the Competent Authorities;
to erect fences around the archeological and ecological findings and in accordance with the instructions of the Project Manager and/or the Competent Authorities at its sole cost and expense;
to do everything necessary in order to avoid damage to the finding; and
to act in regard thereto or to continue the Works in the area strictly in accordance with the instructions and directions of the Project Manager and/or the Competent Authorities.
The Contractor shall be solely responsible for protecting the environment (both on and off the Site) and to limit damage and nuisance to people and property, resulting from pollution, noise and other disturbances resulting from execution of the Works on the Site. Without derogating from the generality of the foregoing, the Contractor shall at its own cost:
take all necessary measures to preserve and/or replace existing trees and plant life, in accordance with the requirements of the Competent Authorities;
ensure that emissions, surface discharges and effluent from operations on the Site shall not exceed the values prescribed by the Applicable Law.
immediately notify the Project Manager and/or the Competent Authorities in case any ecological problem is encountered or may reasonably be expected to occur, and comply strictly with the Applicable Law and the instructions of the Project Manager and the Competent Authorities pertaining to the measures to be taken and the way in which the Works should be continued.
In the event that any damage of whatsoever nature or kind is caused to any archeological or ecological finding by reason of the failure of the Contractor to strictly adhere to the Instructions and directions of the Project Manager and/or of the Competent Authorities as aforesaid, then and in such event the Contractor shall bear exclusive responsibility and/or liability in respect of such damage.
The Contractor hereby undertakes that,
within 7 (seven) days of the Contract Date or the issuing date of the Notice to
Proceed (whichever will occur first), it shall furnish the Employer with a
Performance Guarantee to be issued by the Bank in the form and text attached
hereto as Annex H –Form H1. It is explicitly agreed, that in the
event in which the Contractor shall fail to furnish the Employer with the
Performance Guarantee and/or any part thereof, the provisions of Paragraph 62
The Performance Guarantee shall secure the execution and timely completion of the Works, and shall be in an amount as is specified in the Schedule of Particulars.
It is hereby specifically agreed and understood that the Employer shall be entitled to assign and transfer the Performance Guarantee to such banking institution, as it shall in its sole discretion deem fit.
The Employer shall be entitled in its sole and unfettered discretion to exercise the Performance Guarantee and/or any extended Performance Guarantee upon the occurrence of any one of the following events, or under any other circumstances described in this Agreement:
the Contractor shall have failed to comply with the provisions of the Construction Schedule, that is to say:
the Contractor shall have failed to complete any stage of the Works/Milestones by the relevant Milestones/Interim Stages determined and approved in the Construction Schedule;
the Contractor shall have failed to complete the Works by the Date of Completion;
the rate of progress of the execution of the Works by the Contractor is insufficient to enable it to complete any stage of the Works by the relevant Milestones/Interim Stages and/or to complete the Works by the Date of Completion,
in which event the Employer shall be entitled to utilize the proceeds of the exercise of the Performance Guarantee in order to ensure the continued and complete execution of the Works by another contractor or by any other means available to it;
the Contractor failed to extend the Performance Guarantee in accordance
with the provisions of Paragraph 30.5
the Contractor committed an act of default as specified in Paragraph 62.1
the Contractor shall fail to take out and/or renew and/or maintain the
various insurances referred to in Paragraph 32
the Contractor owes any amount whatsoever to the Employer and has failed to discharge such debt, in which event the Employer shall be entitled to utilize the proceeds to discharge the debt owed to it by the Contractor;
in any other instance sanctioned in terms of this Agreement or
authorized by the competent court in terms of Paragraph 69
provided that the Employer shall not exercise the
Performance Guarantee in terms of Paragraphs 30.8.5
until the issue of a
substitute guarantee as aforesaid, the Employer shall retain the funds
remaining after the payment or settlement of those amounts contemplated in
Paragraphs 30.8.5
on the submission to the Employer of the substitute guarantee as aforesaid, the Employer shall within 14 (fourteen) days refund to the Contractor the excessive amounts remaining in its possession from the original guarantee which was exercised by the Employer as abovementioned.
For the removal of doubt, it is hereby stated and declared that:
nothing in this Paragraph 30
nothing in this Paragraph 30
it shall be the Employer’s
sole discretion to decide whether to exercise the Performance Guarantee fully
or partially, and in the event of withdrawal of only a part of the amount there
under, the substitute guarantee to be furnished by the Contractor in terms of Paragraph
30.9
Upon the issuance of the Certificate of
Completion and only subject to the written discharge in the form attached as Annex T-Form T2, the Performance
Guarantee shall be returned to the Contractor against delivery by the
Contractor to the Employer of the Maintenance Guarantee as further specified in
Paragraph 54
The Contractor shall be responsible towards and hereby undertakes to
indemnify the Employer, the Project Manager, their consultants and any person
or entity representing them, employed by them, or acting on their behalf or
with their authority, or any of them (for the purposes of this Paragraph 31
personal injuries to or death of any person whomsoever; and/or
loss of or damage to any movable or immovable property; and/or
any other claims or liability of whatsoever nature or kind;
directly or indirectly arising out of, in the course of or caused by the execution of the Works, or on the grounds of or arising out of any act or commission of the Contractor, its agents, employees, Subcontractors, or any person acting on its behalf at the Site in respect of or in relation to the execution of the Works, or at any other place where the Works are being executed and/or Materials in respect of the Works are being stored, transited or disposed of.
In the event that a Claim is submitted against the Indemnified Parties (whether as sole or co‑defendant) for which the Contractor is responsible in terms of this Paragraph, then and in such event the Contractor shall be liable to undertake the handling of the Claim at its own cost on behalf of the Indemnified Parties, and shall be liable to discharge or alternatively compensate for, any liability imposed upon them.
The Employer hereby undertakes that it shall notify the Contractor of the existence of any such Claims and shall deliver it all documentation in its possession pertaining to such Claim. The Employer shall empower the Contractor and/or its legal counsel to handle the Claim on its behalf, and shall render to them all necessary assistance to facilitate the conduct of the defense against the Claim (viz. witnesses, evidence), all at the sole cost and expense of the Contractor. The Employer undertakes that neither it nor any of its employees, agents or any person acting on its behalf shall make any admissions in respect of any such Claims without the prior written approval of the Contractor. The Contractor shall handle all such Claims at its sole cost and expense.
The Performance Guarantee produced by the Contractor to the Employer
pursuant to the provisions of Paragraph 30
In the event that the Indemnified Parties, or any of them, shall be held liable in respect of any Claim, the Contractor undertakes to pay the full amount of such liability within the time determined for the settlement of such liability, and same upon receipt of the first written demand of the Indemnified Parties.
The provisions of this Paragraph 31
The Contractor shall also be liable towards the Employer for any consequential, indirect, exemplary, special or incidental damages, including any lost profits, arising from or relating to this Agreement, including for the ones caused by any failure of the Contractor to comply with the Technical Specifications.
Without derogation from the Contractor's liability and or obligation pursuant to this Contract or pursuant to any law, including but without limitations, the Contractor's obligation to insure itself with various insurances as provided for herein, and without the Employer assuming any liability vis-à-vis the contractor, the Employer shall effect and maintain in force during the execution of the works a CAR – Contractor’s All Risk Insurance.
The CAR shall cover loss or damage to the Works performed in the Project and third party insurance (not including Motor insurance, Marine and Aviation Liability Insurance) and the legal liability arising out of caring out of the Works performed in the Project, at a limit of _________ for any one occurrence and in the aggregate for the period of the policy.
The Employer's insurance will be extended to include the Contractor as a co-insured.
In case of any of Employer's policies being exercised due to claim/demand attributed to and/or resulting from the Contractor and/or anyone acting on its behalf (including its managers, employees, shareholders, subcontractors etc) the Contractor undertakes to pay the Employer at it first demand the amount of the self participation fee required by the insurance company for each such demand/claim and/or any other amount required by the insurance company in connection with such demand/claim and or all related deductibles.
The Contractor undertakes to pay the Employer at it first demand an amount of ___% on any work order for itself participation fee.
Property Insurance for the full reinstatement value in respect of all property, equipment and installations brought to the Site by the Contractor and used for the execution of the Works and which are not included in the construction “all risk” insurance policy issued by the Employer (the “Property Insurance”), including Fire, Lightning, Explosion, Riot, Strike and Malicious Damage, Burglary & Theft, Storm, Tempest, Flood and Water Damage.
The Contractor agrees that Employer shall not be responsible for any loss or damage to Contractor’s tools and equipment.
The Contractor’s insurance policy covering tools and equipment shall include waiver of subrogation against the Employer and anyone acting on its behalf
Employers’ Liability Insurance/ Workers Compensation (as applicable) with limits of liability of not less than _____ per claimant and per occurrence, covering the Contractor’s legal liability towards all the employees, workers, contractors, subcontractors and their employees who are involved with the execution of the Works. The policy shall not include any exclusion regarding work at heights and depths, baits and poisons, employment of youth, hours of work, contractors and their employees. The policy shall be extended to include the Employer as an additional insured should it be considered as employer of any of the Contractor’s employees, workers, Contractors and/or their employees or if it is determined that it bears vicarious liability for the matter of the Contractor’s liability towards any of his employees, workers, contractors, subcontractors and/or their employees (the “Employer’s Liability Insurance
Heavy machinery insurance.
Mandatory Insurance (for automobiles and mechanical equipment used by the Contractor in the performance of the Work) as required by the Applicable Law, for bodily injuries caused due to the use of automobiles, and liability insurance for third party property due to the use of automobiles
Product Liability Insurance with the limit of liability not less than ______ per event and in total for the period, in respect of any injury or damage which might caused in consequence of any defect in the work and or product which shall be renewed until the end of the warranty and maintenance period of for any longer warranty period that is legally obliged and in any case for a period not less than years from the work completion date.
Professional Liability: Contractor shall maintain Professional Liability Insurance (including errors and omissions) with limits of liability of not less than _____ for any one occurrence and in the aggregate. The policy will not exclude loss of use or delay, loss of documents, libel and slander nor dishonesty of the Contractor’s employees.
All insurance policies to be purchased by the Contractor, including the Property Insurance and the Employer’s Liability Insurance, shall be hereinafter together called the Contractor’s Policies.
No less than 7 (seven) days prior to Date of Commencement, the Contractor shall furnish the Employer with a Certificate of Insurance in connection with the Contractor’s Policies, signed by its insurers, in the form attached as Annex T - Form T1
All of the Contractor’s Policies shall include a waiver of subrogation towards the Employer and/or anyone acting on its behalf, provided that the waiver of subrogation shall not apply in favor of a person who has maliciously caused the damage.
All of the Contractor’s Policies shall also contain an express provision stipulating that they are primary to any Insurance carried by the Employer or on its behalf and that the insurers waive all rights to demand or claim participation of the Policies.
All the above insurance policies shall be neither reduced nor cancelled during the period of insurance, unless a 60 (sixty) days’ prior written notice is delivered to the Employer by registered mail, such prior notice not being considered as limitation, derogation, or exclusion in any way of the insurance liabilities of the Contractor as hereunder provided.
The Contractor undertakes to ascertain that the Contractor's Policies shall be renewed from time to time, as necessary, and will be valid throughout the term of the Agreement. The Contractor undertakes to provide the Employer with an updated Certificate of Insurance from time to time, for each period of insurance, as long as the Agreement is in force.
The Employer for the purpose of the Contractor’s Policies includes ______________ and/or and/or their parent companies and/or subsidiaries.
The Contractor irrevocably exempts the Employer and/or anyone acting on its behalf from liability for any damage and/or loss to any kind of property brought to the Site and/or used for the execution of the works.
Without derogating from the above, the Contractor irrevocably exempts the Employer from liability for any loss and/or damage, for which it is entitled to indemnification under the Contractor’s Policies (or was entitled to indemnification but for the deductibles) and shall not have any claims and/or demands and/or suits against the Employer and/or anyone on his behalf for the said loss and/or damage; such exemption shall not apply in favor of any person who maliciously caused the damage.
The Contractor undertakes to deliver to the Employer, immediately upon his demand, signed copies of the Contractor’s insurance policies. In any case of inconsistency between the copies of the Contractor’s insurance policies and the provisions of this Agreement, the Contractor undertakes, at the Employer’s demand, to cause the said insurance policies to be changed so as to adjust them to the provisions of this Agreement. It is hereby expressly agreed that neither the issuance of the said insurance policies nor the provision or changing thereof shall constitute approval of their compatibility, or impose any liability on the Employer or restrict the Contractor’s liability under this agreement or any law (either the Applicable Law, or the Governing Law or any other law).
The Employer is entitled (but not obliged) to insure itself and the Contractor or to include itself and the Contractor in the aforementioned insurance policies, in whole or in part, according to its choice; to arrange for the payment of the premium thereon and to charge the Contractor for any such payment or expense as it shall deem fit, in addition to a management fee.
For the removal of doubt, it is hereby clarified that the Contractor undertakes to ensure that the policies imposed on him are compatible with the requirements of the nature of the Work and the needs thereof, including the terms of the policies and the amounts of the insurance. Insofar as the Contractor shall believe that the Contractor’s insurance should be expanded or additional insurance be taken out, the Contractor undertakes to expand or take out the additional insurance, as aforesaid, at his expense. The Contractor hereby declares and confirms that he will be stopped from making any claim, suit or demand of any kind with respect to the content or scope of the insurance, and hereby exempts the Employer in advance from any liability in the event that the policies are incompatible in any way with the policies according to the terms binding the Contractor pursuant to the nature of the Work and/or the needs thereof, or in the event that the Employer shall fail to comply with any provision in the policies.
The provisions of this section shall not exempt the Contractor from his explicit obligation of taking out and maintaining the required insurance policies throughout the term of the Agreement, insofar as the Employer shall not have arranged therefore.
The Contractor’s signature on the Agreement also constitutes his consent to be included in the insurance policy/ies arranged for by the Employer, to which the Contractor shall be added, until performance of the Work is finished.
In any case in which the Contractor shall join the Employer’s insurance, in addition to his own separate insurance policies, the Contractor’s insurance shall be deemed as the primary insurance and not as duplicate insurance, and all of the terms of the Agreement shall apply thereto, mutatis mutandis.
Following the transfer of
responsibility and risk to the Employer in terms of Paragraph 33.2
For the purposes of this Paragraph 33
The Contractor shall at its own cost and responsibility, engage all staff and labor necessary for the execution of the Works and for the performance of all its obligations under the Contract, both local and foreign, and shall bear all costs and expenses related thereto, including, without derogation, payment of salary, social benefits, housing, transport and maintenance expenses, and all related costs. In this regard the Contractor shall comply with all the Romanian relevant labor legal provisions relating to the employment of workers, both local and foreign, their reimbursement and conditions of employment and working conditions.
In addition, the Contractor shall be solely responsible and liable for obtaining and maintaining valid all permits, licenses and authorizations (including without derogation, work and stay permits) required for its local and foreign staff and labor. The Contractor undertakes to indemnify, hold harmless and reimburse the Employer and/or anybody on its behalf with respect to any costs, expenses, penalties and other impositions inferred upon the said with respect to the abovementioned.
The Contractor shall provide and maintain all necessary accommodation and welfare facilities for the Contractor’s Personnel, and shall not permit any of them to maintain any temporary or permanent living quarters within the structures forming part of the Works. The Contractor shall also provide facilities for the Employer’s Personnel as stated in the Technical Documentation.
The Contractor shall comply with all the relevant labor legal provisions to the Contractor’s Personnel, including those relating to their employment (including payment of wages, taxes, social security, health and other contributions, working time, etc.), health, safety, welfare, immigration and emigration, shall allow them all their legal rights, and shall indemnify and hold harmless the Employer and the Project Manager from and against any claim and/or penalty brought and/or imposed by the Contractor’s Personnel and/or the Competent Authorities as a result of the Contractor’s failure to comply with such laws.
The Contractors shall at all times take all reasonable precautions to maintain the health and safety of the Contractor’s Personnel.
In collaboration with local health authorities, the Contractor shall ensure that medical staff, first aid facilities, sick bay and ambulance services are available at all times at the Site and at any accommodation for Contractor’s and Employer’s Personnel, and that suitable arrangements are made for compliance with all necessary welfare and hygiene requirements and for the prevention of epidemics.
The Contractor shall appoint a qualified accident prevention officer at the Site, responsible for maintaining safety and protection against accidents.
The Contractor shall inform the Project Manager in writing of any accident which have occurred on the Site immediately upon its occurrence, and shall maintain such records and make such reports concerning health, safety and welfare of persons, and damage to property, as the Project Manager may require.
The Contractor shall submit to the Project Manager details showing the number of each class of Contractor’s Personnel and of each type of Contractor’s Equipment on the Site.
The Contractor shall, on the request of the Project Manager, immediately dismiss from the Works any person employed thereto who may, in the opinion of the Project Manager which shall have been communicated to the Contractor in writing, be incompetent, negligent, or be guilty of misconduct, and any such person shall not again be employed on the Works without the prior written approval of the Project Manager.
The Contractor shall on its own cost and risk provide all works (permanent as well as Temporary Works), materials and equipment necessary for the proper execution of the Works according to the Technical Documentation, whether the same may or may not be particularly shown or described therein, provided that the same is to be inferred there from for the proper and timely execution, completion and operation of the Works, including, inter alia, all work, labor, supervision, materials, the use of temporary structures, scaffolding, equipment, machinery, tools, appliances, implements, including transportation thereof to the Site of the Works and removal there from, whether prior to, during or after the execution of the Works.
For the removal of doubt it
is hereby specifically declared and understood that the quantities of materials
specified in the Bill of Quantities are approximate only and are not binding
upon the Employer. The Contractor shall be solely responsible for ensuring at
its own cost and expense that the correct quantities of all materials which may
be required for the execution of the Works in accordance with the Technical
Documentation and the Construction Schedule, and are supplied in good time as
contemplated in Paragraph 36.1
The attention of the Contractor is drawn to the fact that items included in the Scope of Works as provided in Annex B are not necessarily obtainable locally. It shall be entirely the responsibility of the Contractor to ensure that sufficient information is given to manufacturers and importers to ensure the timely delivery of all materials. The Contractor shall, at its own cost and responsibility, make all submittals, obtain all certificates, consents and similar, and pay all taxes, fees and customs duties as may be required for the import of Goods from abroad, if such will be required.
The Works shall be executed
in the best and most qualified, professional and workmanlike manner, and the
quality of materials utilized throughout the Contract is to be First Class
quality and shall meet the appropriate local standards recognized as best
practices, or if there are none, the equivalent EU standards (the “Standards”).
If no standards whatsoever exist, then the Contractor shall only use materials
of suitable quality taking into consideration the intended use thereof, and
subject to the Project Manager's approval. All Materials must have all relevant
certification for use for
The Contractor shall be
responsible for packing, loading, transporting,
receiving, unloading, storing, protecting, using and applying all Materials,
Plant and other items required for the Works with due care and fully in accordance with the
manufacturer's recommendations and instructions, and thereafter properly
protected to maintain their condition. The Contractor shall, at its sole risk
and expense, make suitable arrangements for and/or shall construct storage
facilities, whether covered or uncovered, in accordance with the details
specified in the Construction Schedule (Paragraph 17.1.5
The ordering, supply and testing of all materials and supplies by the Contractor for use in and about the execution of the Works, shall be subject to the following provisions:
Prior to the procurement, transportation, laying and erection, all materials shall be required to be inspected and approved by the Project Manager pursuant to the provisions of this Agreement, and same as early as possible in order to ensure strict adherence to the Construction Schedule;
Prior to the commencement of any portion of the Works, the Contractor shall furnish to the Project Manager for his approval, samples of the exact materials that the Contractor proposes to utilize in the execution of such portion of the Works, at all times in compliance with Annex L1 – Employer's Quality Assurance Guidelines;
All samples shall be supplied by the Contractor at its own cost if the supply thereof is intended by or provided for in the Technical Documentation;
The cost of making any test shall be borne by the Contractor if such test is intended by or provided for in the Technical Documentation and/or according to customary practice;
The Employer retains the right to witness tests and inspect goods and equipment at their manufacturing or delivery locations, and the Contractor shall issue all notices accordingly and shall assist and cooperate with the Employer in that regard;
Notwithstanding anything to the contrary herein contained it is
expressly agreed that the Project Manager shall have the right, prior to the
date of ordering of any Materials, as notified to it in accordance with
Paragraph 37.1.2
The acceptance of samples or their rejection and the approval of offers made by the Contractor shall not in any manner whatsoever derogate from the full responsibility of the Contractor for the materials and/or the equipment and/or the Works.
The Contractor shall employ the best available manpower and equipment in the execution of the Works.
Any materials and goods
which are to be incorporated in the Works, shall, upon being brought on Site,
become the property of the Employer free from any liens and other encumbrances
and shall not be removed without the authority of the Employer except for use
upon the Works, all without prejudice to the Contractor’s obligations to
safeguard and protect such materials and goods against damage, and to bear the
responsibility for the care and the risk thereof, as specified in Paragraph 33
The Contractor shall institute the Quality Control System to control the quality of the Works, including the work done by the Subcontractors based on the Employer’s Quality Assurance Guidelines and attached as Annex L1 to the Contract in accordance with the Applicable Law, as specified in the Schedule of Particulars. The Contractor’s Quality Control System shall be attached to this Contract as Annex P –Submission P2.
Details of all quality control (“QC”) procedures and compliance documents shall be submitted to the Project Manager for information before each stage of execution of Works is initiated. When any document of a technical nature is issued to the Project Manager, evidence of the prior approval of the Contractor’s Representative (-s) itself shall be apparent on the document.
Compliance with the Quality Assurance System and any QC measures stemming there from are in addition to any Applicable Law, regulations, norms and standards acceptable, including without limitation, the relevant ISO or the like European quality standards, and shall not relieve the Contractor of any of its duties, obligations or responsibilities under the Contract.
The Project Manager shall, at all times during production, manufacture and construction (at the Site or elsewhere), be entitled to inspect, measure and test the Plant, Materials and quality of execution, and to check the progress of manufacture of Plant and production and manufacture of Materials. The Contractor shall give the Project Manager full opportunity to carry these activities, including by providing access, facilities, permission and safety and testing equipment to the Project Manager.
The Contractor shall provide, at its own cost, all apparatus, assistance, documents and other information, electricity, equipment, fuel, consumables, instruments, labor, materials and suitable qualified and experienced staff, as necessary to carry out all inspections, measurements and tests, if intended by or provided for in the Technical Documentation and/or according to customary practice, the Standards or the Applicable Law.
The Contractor shall uncover any part or parts of the Works or make
openings in or through the same as the Project Manager may from time to time
direct, and shall reinstate and make good such part or parts to the
satisfaction of the Project Manager. If any such part or parts have been
covered up or put out of view after compliance with the requirements of
Paragraph 40.3
For the removal of doubt, it is hereby recorded and declared that the Project Manager shall be entitled to refuse to approve any works executed by the Contractor found to be defective, incomplete, or otherwise failing to conform with the Contract and/or any legal or professional standard, unless and until previously inspected by him, or unless tests shall have been carried out to his satisfaction. Such works shall upon the said inspection and immediately after the receipt of the Project Manager's decision, be removed and/or replaced and/or redone and/or completed at the expense of the Contractor, who shall also bear the expense of making good any other work damaged in consequence of such removal, replacement or redoing, all without derogating from the Contractor’s undertakings in terms of this Contract. If retesting is required by the Project Manager, it shall be done under the terms and conditions specified hereinabove. Nothing in the abovementioned shall in any way derogate from the undertakings of the Contractor to the timely completion of the Works, within the periods specified in the Construction Schedule.
Verification and expertise by the Competent Authorities or by independent consultants, and any fees related thereto, shall be borne by the Contractor.
Notwithstanding any previous test or certification, the Project Manager shall during the progress of the Works have power to order in writing from time to time:
the removal from the Site, within such time or times as may be specified in the order, of any materials which, in the opinion of the Project Manager, are not in accordance with the provisions of this Agreement;
the substitution thereof with proper and suitable materials;
the removal and proper re‑execution of any work in respect of materials or workmanship which is not, in the opinion of the Project Manager, in accordance with the provisions of this Agreement;
the execution of any Work which is urgently required on grounds of EHS (Environment, Health, Safety - to the Works, the Project and persons) or for the adjacent properties, whether because of an accident, unforeseeable event or otherwise.
The Contractor shall comply with the abovementioned Project Manager's Instructions, within such time or times as may be specified in the Instruction.
In case of default on the part of the Contractor in carrying out such
order, the Employer shall be entitled to employ and pay other persons to carry
out the same, in which case provisions of Paragraph 18
It is hereby agreed and understood that the Employer shall be responsible to apply for and to obtain the Construction Permit.
It is hereby specifically stated, declared and understood that:
the Contractor shall not be entitled or obliged to execute any part of the Works for which a Construction Permit is required according to the Applicable Law, unless and until a lawful Construction Permit shall have been issued in respect thereof;
all the Works executed by the Contractor shall be fully in accordance with the Construction Permit; and
the provisions of this Paragraph are of the very essence of this Agreement, and a breach thereof by the Contractor shall be deemed to constitute a fundamental breach of this Agreement.
Without derogating in any manner from the provisions of the foregoing, the Contractor hereby agrees that the Employer and/or Project Manager shall be entitled to take whatever steps it considers necessary to cease forthwith all Works which are being carried out by the Contractor and/or any of its Subcontractors if same are executed otherwise than in accordance with a lawful Construction Permit, and the Contractor undertakes to fulfill whatever instructions may be furnished to it by the Employer and/or the Project Manager in that regard.
The Contractor shall, at its own cost obtain all building activity permits, and shall, for this purpose, give all notices, submit all documentation and pay all taxes, duties and fees related thereto.
In respect to the obtaining of the building activity permits:
each Party shall fully co-operate with the other Party in order to ensure the prompt obtaining of the building activity permits for which that other Party is responsible, and shall provide all documents (including inter alia title documents, drawings, schedules, calculations, surveys, other building activity permits) which may be necessary there for and for which the first Party is responsible under the Contract, as and when required by the other Party;
where the Applicable Law requires certain acts related to the obtaining of the building activity permits, for which the Contractor is responsible under the Contract, to be performed by the Employer, the latter shall provide the Contractor with the respective proxies upon their timely demand by the Contractor who has to present also their drafts with an explanatory note thereto. In such a case, the Contractor shall act as an agent and consultant of the Employer and shall be fully liable before the Employer as an agent and a consultant are liable to the principal.
Commencement and Execution
Subject at all times to the provisions of Paragraph 42
The Notice to Proceed shall
indicate the Date of Commencement, whereupon subject to fulfillment of all of
the Contractor's obligations until the said date, the Employer shall give possession
of the Site to the Contractor in accordance with the provisions of Paragraph 44
Upon the Date of Commencement, the period for the execution of the
Works as specified in the Schedule of Particulars and in Paragraph 46
The Contractor shall execute the Works fully in accordance with the approved Construction Schedule and the Technical Documentation, using its best capabilities, resources and skills.
The Contractor shall phase its operations in such a manner as to ensure that the Works are not disturbed by climatic conditions. The Contractor will be responsible for rectifying the Works affected by climatic conditions at its own expense.
Contractor’s Equipment and Temporary Works
It is hereby agreed between the Parties that:
The Contractor shall be responsible for all Contractor’s Equipment and Temporary Works, and shall bear all costs pertaining to their utilization, including, inter alia, costs of supply, transportation, use, maintenance, repair and amortization.
All constructional plant, temporary works, tools, equipment, machinery and materials provided by the Contractor (for the purposes of this Paragraph hereinafter referred to as 'Temporary Works') shall, when brought on Site, be deemed to be exclusively intended for the execution of the Works;
The Contractor shall not remove such Temporary Works, nor any part thereof, from the Site except for the purpose of the execution of the Works, without the prior written consent of the Project Manager;
All Temporary Works carried out by the Contractor shall be suitably guarded, stored, maintained, operated, protected from the elements and insured by the Contractor at its sole cost and expense;
Upon the completion of the Works, the Contractor shall immediately remove from the Site all such Temporary Works not forming part of the Works at its own expense; and
Neither the Employer nor the Separate Contractor as hereinafter defined (if any) entrusted with the general security of the Site and its perimeter shall bear any liability whatsoever for the loss of or damage to the said Temporary Works (unless maliciously or intentionally caused), and the Contractor hereby waives all claims and contentions against them in respect thereof.
The Contractor shall, at its exclusive cost, connect onto the temporary power source, supplied by the Employer and bear the current cost of his consumption of power.
Subject to fulfillment of all the Contractor's undertakings fully and in timely manner, and save insofar as this Agreement may prescribe to the contrary, the extent of portions of the Site of which the Contractor is to be given possession from time to time and the order in which such portions shall be made available to him shall be determined by the Project Manager, subject to any requirement in this Agreement as to the order in which the Works shall be executed.
The Employer shall give to the Contractor possession of so much of the
Site as may be required to enable the Contractor to commence and proceed with
the execution of the Works in accordance with the Construction Schedule
referred to in Paragraph 17
Unless specified otherwise in this Contract, the areas of the Site which the Contractor is to be given holding off from time to time, and the order in which such area shall be made available to it, shall be determined by the Project Manager, subject to the order in which the Works are to be executed.
The Contractor acknowledges that the whole and exclusive rights to the
possession of the Site are vested in the Employer. However, subject at all
times to the provisions of this Paragraph 44
The Contractor further acknowledges, confirms and undertakes that its rights of access to the Site are and shall be co‑terminus with those of the Employer, and if the Employer's rights of possession of the Site are terminated for any reason whatsoever, the Contractor undertakes to evacuate the Site promptly in accordance with the instructions of the Employer, in which event the provisions concerning suspension or termination by the Employer, as the case may be, shall apply.
The Contractor hereby undertakes to ensure that in the event in which it shall be disposed of its rights of holding of the Site, in accordance with the provisions of this Contract or by operation of the Applicable Law, all and any Subcontractors employed by it on the Works shall promptly vacate the Works and/or the Site and waive all and any rights of holding or other thereof. The Contractor undertakes to ensure that a clause giving effect to the provisions of the foregoing shall be included in all contracts and agreements to be concluded between it and its Subcontractors in relation to the execution of the Works.
It is hereby specifically agreed and understood between the Parties that the Contractor hereby waives in advance all its rights in and to any builder s lien of whatsoever nature or kind in and/or over the Site and/or the Works and/or the Project and/or any part thereof.
The Contractor hereby undertakes that it will at all times fully co-operate with the Separate Contractors and the Nominated Subcontractors and the Specific Nominated Subcontractors chosen by the Employer and will afford them all facilities and access to the Site in order to enable them to execute the works entrusted to them, and furthermore undertakes at all times to co-ordinate the execution of the Works in terms of this Agreement with the Project Manager and to follow all and any Instructions given to it by the Project Manager in respect of the general coordination of all those works being executed on the Site.
Without derogating from the
generality of the provisions of Paragraph 45.1
In consideration for the provision of the services mentioned above to the Nominated Subcontractors and/or the Specific Nominated Subcontractors, the Contractor shall be entitled to a remuneration (the “Nomination Fee”) equivalent to the percentage mentioned in Annex F-Chapter 01 which shall be considered from the amount paid to the Nominated Subcontractor and /or Specific Nominated Subcontractor for work items and it shall not include the prices of the materials and/ or equipment that the Nominated Subcontractor or the Specific Nominated Subcontractor will use for the execution of its works under the sub-contracting agreements. The Nomination Fee shall be paid on the same payment terms under which the Nominated Subcontractor or Specific Nominated Subcontractor is entitled to their remuneration under the relevant sub-contracting agreements.
The Contractor shall also be responsible for the management, coordination and supervision and for the compliance with the Construction Schedule of the works to be executed by the Separate Contractors and the Works to be executed by the Nominated Subcontractors and /or the Specific Nominated Subcontractors.
Notwithstanding the provisions of the foregoing, Separate Contractors shall themselves be responsible for special attendance, unloading, hoisting, placing in position, providing special power supplies; specific scaffolding requirements; provision of temporary casing; specific protection and special security of their works.
The Employer confirms that all Separate Contractors shall execute the works entrusted to them on substantially the same terms and conditions regarding coordination as are specified in this Contract.
The provisions of this Contract pertaining to the Contractor's Subcontractors shall apply, mutatis mutandis, with respect to the Nominated Subcontractors and to the Specific Nominated Subcontractors explicitly with respect to the Contractor's joint and several liability.
Nominated Subcontractors
It is agreed that the Employer shall be entitled to require the Contractor to conclude sub-contracting agreements (in the form attached as Annex U to this Agreement, which shall form integral part thereof ) with a particular Subcontractor appointed by the Employer either by way of requests of proposals or direct negotiation at its sole discretion (with which requirement the Contractor undertakes to comply) for execution of any part of the Works (and/or the supply of Plant and Materials) that are part of the Contractor’s Works under this Contract (the 'Nominated Subcontractors'). Unless otherwise explicitly agreed herein, any and all payments owed by the Contractor to such Nominated Subcontractor are included in the Contract Price and shall be the sole responsibility of the Contractor. The Contractor explicitly agrees to the above appointment and hereby waives any and all claim and/or right and/or demand against the Employer and/or anybody in this respect. The Contractor acknowledges and agrees that should a Nominated Subcontractor be appointed by the Employer under this Paragraph it shall not be entitled to any addition to the Contract Price (except for the Nomination Fee) and/or extension of the time for completion of the Works.
It is hereby undertaken by the Contractor that it shall request the Nominated Subcontractors to mention the Employer as co-beneficiary of all guarantees and collaterals provided by the Nominated Subcontractors for the execution of the respective part of the Works, the Employer having therefore the right to directly exercise them following a 14 (fourteen) days prior written notice sent to the Contractor and to the Nominated Subcontractor.
Specific Nominated Subcontractors
In addition to the
guarantees to be provided by the Contractor to the Employer pro-rata with the
value of the Additional Works, as mentioned in paragraph 45.12
The Parties agree that the Employer has the right, at its sole discretion, to request the Contractor to submit its own tender offers for execution of the Additional Works or any part thereof under the respective tender issued by the Employer (in which case, if it is awarded with the works it shall not be entitled to the Nomination Fee for those works). It is however explicitly agreed that nothing in the results of each tender shall be deemed to derogate from the Contractor's general and specific obligations and liabilities under this Contract and/or the under any sub-contracting agreement with a Specific Nominated Subcontractors.
The Contractor hereby undertakes that, notwithstanding
the provision of the sub-contracting agreement to be concluded with either a
Nominated Subcontractor or a Specific Nominated Subcontractor, it shall not
terminate the respective subcontracting agreement unless so instructed by the
Employer, failing which it shall be deemed as having materially breached this
Agreement and provisions of Paragraph 62
to complete the various stages of the Works/Milestones by not later than the Interim Stage Completion Dates specified in respect thereof in the Construction Schedule;
to complete the entire Works by not later than the Date of Completion; and
to complete each part of the Works by not later than the respective
Date of Partial Completion in terms of the provisions of Paragraph 52
Completion in terms of the foregoing Paragraph 46.1
For the avoidance of doubt, it is hereby explicitly specified and understood between the Parties that obtaining of the Taking-Over Minutes upon Completion of the Works and of the Operation Permit shall be pre-condition to the issuance by the Employer of the Certificate of Completion.
The Contractor shall submit a detailed report to the Project Manager, fully in accordance with the provisions of Annex S – General Requirements. The report shall consist of a detailed schedule showing the status of the Works, and a forecast of the works to be carried out. In the absence of such a report, the Contractor shall not be permitted to continue the execution of the Works. The report shall be in a form satisfactory to the Project Manager and shall include, without limitation and always subject to Annex S:
photographs and detailed descriptions of the progress of the Works in Primavera chart tracking, including each stage of procurement, coordination between trades, Subcontractors; manufacture, delivery to Site, construction, erection, testing and commissioning;
surveyors’ reports;
charts showing the status of construction documents, purchase orders, manufacture and construction;
cash flows reports;
details on the manufacture of each main item of Plant and Materials, including name of the manufacturer, location, and the actual or expected dates of commencement of manufacture, and Contractor’s inspections, tests and delivery;
records of the Contractor’s Personnel and the Contractor’s equipment on Site;
copies of quality assurance documents, test results and certificates of Materials, subject to Annex L1 – Employer’s Quality Assurance Guidelines;
safety statistics, including details of any hazardous incidents and activities relating to environmental aspects and public relations;
comparisons of actual and planned progress as contained in the Construction Schedule, with details on any aspects which may jeopardize the completion in accordance with the Contract and on the measures being adopted to overcome such aspects;
a detailed schedule of the Works carried out during the previous month and to be carried out in the following month;
possible threats and/or impediments with respect to any of the Works and their consecutive execution.
In the absence of such a report, and until its submission no payments shall be made to the Contractor, without any penalty due by the Employer for such lack of payment.
“As-built” drawings of the Works executed up-to-date shall be presented to the Project Manager on a quarterly basis, together with the relevant monthly progress reports.
It is hereby agreed between the parties that the Employer has the right to unilaterally ask the Contractor to slow-down or speed-up the progress of the Works and the Contractor shall not be entitled to any additional payment in this respect.
It is hereby agreed between the parties that:
take all steps necessary in order to ensure the completion of the stages and/or of the Works within the time fixed for the completion thereof as aforesaid; and
furnish the Project Manager with the amended schedules referred to in
Paragraph 17.5
The Contractor shall not be entitled to any additional payment in
respect of any such additional steps to be taken by it in terms of this
Paragraph 47.5
In the event that, as a result of a notice served on it by the Project
Manager pursuant to the provisions of this Paragraph, the Contractor shall seek
the Project Manager's permission to work at night in terms of the provisions of
Paragraph 48
Nothing in this Paragraph 47.5
In the event that the Project Manager is of the opinion that the steps
taken by the Contractor in accordance with Paragraph 47.5
In the event that the Contractor shall execute night work and/or 7 (seven) days a week and on public holidays and as is necessary to meet the Construction Schedule, such works shall be executed without additional cost and shall be deemed to have been included within the Contract Price, unless determined to the contrary by the Project Manager.
The Contractor shall ensure that no works, including night works, are carried out in a manner which may give rise to an offence under the relevant local Applicable Law and regulations pertaining to the prevention of nuisance, and shall have the Site lightened and use such safety, noise prevention, measures, management on site etc., as are necessary for executing the Work in the same professional manner and standards as under day light, and any laws, regulations and norms applicable in respect of night work operations shall be the minimum level. Should any authorization and/or permit be required by any local or central authority according to the Applicable Law, the Contractor shall take all the necessary steps in order to properly and timely obtain it.
The Contractor shall ensure that no Works are carried in a manner that may give rise to any claim and/or demand for compensation or other against the Employer and/or anybody on its behalf under any law (either Applicable Law or Governing Law or any other law), and undertakes to immediately indemnify and reimburse the Employer for all expenses and/or costs and/or fines and/or damages caused to the Employer and/or anybody on its behalf, as a result of such claim and/or demand.
otherwise provided for in this Agreement; or
necessary by reason of default on the part of the Contractor; or
necessary by reason of climatic conditions on the Site; or
necessary for the proper execution of the Works or for the safety of the Works or any part thereof; or
has continued for up to 3 (three) months –in the event of suspension of the execution of the entire Works, up to 6 (six) months – in the event of suspension of the execution of part of the Works.
The above provisions shall apply also in the event that suspension has been ordered by the Competent Authorities (unless such order was given following one of the events mentioned herein above in this Paragraph). However, if suspension was ordered by the Competent Authorities due to lack or irregularity of any document for which the Employer is responsible as per this Contract, then the Contractor shall be entitled to claim the cost incurred by it as provided for hereinabove, if the Contractor could have reasonably foreseen the risk of such suspension and had alerted the Project Manager to it with a notice immediately after having become aware thereof, and had made its best endeavors to minimize the Employer’s loss resulting there from.
The provisions of Paragraph 49.1
In the event of suspension of any portion of the Works, the Contractor shall be obliged to proceed with the execution of the unsuspended part thereof, according to the Project Manager’s Instructions.
In the event of suspension or termination of the Works for any reason, the Project Manager shall be entitled to require that measurements and inventories be executed and drawn up in respect of Work executed and Materials and equipment on Site so as to reflect the accurate “as-is” position as at the date of the suspension or cessation of the Works as aforesaid, subject to the following provisions:
Such measurement shall be made by the qualified surveyor’s team of the Contractor, who shall also provide the necessary equipment, which shall be subject to the approval of the Project Manager, at the cost of the Contractor. The Project Manager shall examine and approve all measurements so made by the Contractor.
Should the Contractor not attend, or neglect or omit to send such a qualified team, then the Project Manager shall be entitled to cause such measurement to be made, in which event the costs and expenses incurred in respect of such measurement shall be borne by the Contractor, and the measurements made shall be deemed to be final and binding upon the Contractor.
Any measurement shall be made in accordance with the Technical Documentation and the prevailing measurement standards, and shall be net, without any addition for depression, waste or tolerance for any reason whatsoever, including erosion, settlement, consolidation and construction tolerances and wash-out.
For the removal of doubt, it is hereby specifically stated and declared that any measurements made by the Project Manager in terms of this Paragraph shall in no circumstances whatsoever give rise to any claims by the Contractor for any increase in the amount of the Contract Price.
In the event of:
suspension as contemplated in Paragraph 49
a Variation Order issued in terms of Paragraph 56
Force Majeure in terms of Paragraph 65
adverse weather conditions in terms of Paragraph 50.4
other than in consequence of a default and/or breach by the Contractor of any of its undertakings and obligations hereunder and which has not been contemplated in this Contract, the Project Manager shall, if he is of the opinion that such an event or circumstance would entitle the Contractor to extension of time for the completion of the Works and/or for the completion of any stage of the Works, determine the duration of such extension and shall notify the Employer and the Contractor accordingly.
The provisions of Paragraph 50.1
the Project Manager shall be entitled to refuse an award for extension of time to complete the Works in its sole discretion;
the Project Manager shall not be bound to take into account any extra or additional work or other special circumstances as aforesaid unless the Contractor, within 7 (seven) days after such work has commenced or such circumstances have arisen, or as soon thereafter as is practicable, submit to the Project Manager full and detailed particulars of any extension of time to which it may consider itself entitled in order that such submission may be investigated in time; and
any extension of time awarded to the Contractor by the Project Manager shall not entitle the Contractor to any increase in the Contract Price unless decided otherwise by the Project Manager in accordance with the Variation procedure specified in Chapter X below;
in making his decisions and determinations hereunder, the Project Manager shall consult with each Party in an endeavor to reach an agreement. If an agreement is not achieved, the Project Manager shall make a fair determination in accordance with the Contract, taking due regard of all relevant circumstances. The Project Manager shall give notice to both Parties of each agreement or determination so made, with supporting particulars, and each Party shall give effect to such agreement or determination, unless and until revised under Chapter XIV.
In the event that the Contractor shall have submitted a request for an
extension of time pursuant to the provisions of this Paragraph 50
Adverse weather conditions shall serve as grounds for requesting an extension of time only if:
for a period of more than 3 consecutive working days (where “working day” shall mean any day when banks in Romania are opened for transactions)the average daily temperature in Bucharest has been below –10°C, as officially certified by the National Institute of Meteorology and Hydrology; and
this has occurred during the time when casting of concrete during rough construction activities were being carried out; and
such activities have been proven by the Contractor to be on the critical path and no other part(s) of the Works could have been executed while they were suspended due to said weather conditions.
The Certificate of
Completion for the Works shall be issued by the Project Manager strictly in
accordance with the provisions of this Paragraph 51
At any date prior to the end of the period for completion of the Works when the Contractor is of the opinion that it has completed the Works in accordance with the Technical Documentation, it shall notify the Project Manager and/or the Employer to that effect at least 60 (sixty) days prior to the anticipated Date of Completion, and invite the Project Manager to inspect the Works.
Such notice (“Ready for Inspection Notice”) shall be accompanied by the following documents concerning the Works executed by the time of submission of the notice:
a written undertaking to finish with due expedition any outstanding Works and remedy any defects;
the original Works Register;
copies of all Acts and Protocols as per Paragraph 16.3
documents, including, inter alia,
declarations, photographic evidence in terms of Paragraph 27
the Works have been executed in compliance with the Technical Documentation, the Applicable Law, the Standards, the requirements set out in the Construction Permit and good construction practice;
the Site and its environs have been cleared away and left in a clean and orderly condition;
Materials and Plant have been built-in or used in compliance with the instructions of their suppliers and manufacturers and meet the Standards;
the Contractor has carried out all tests in accordance with the Contract and the results of such tests meet the stipulated requirements;
the Contractor has procured all building activity permits for which he was responsible under the Contract, including inter alia, any certificates of compliance required under the Applicable Law with respect to Plant and Materials;
protocols on the training of the Employer’s maintenance team;
all geometric surveys, plans and other documents as required by the Applicable Law for the purpose of registration of the Works in the cadastral registers;
copies of the results of any tests, including tests on completion, or inspections or certificates of compliance with the requirements of the Applicable Law, that are required to be performed/procured for the purpose of the issuance of the Taking-Over Minutes upon Completion of the Works and/or the use of the Works for their intended purpose;
the “As-Built” Drawings referred to in Paragraph 12
the warranties and/or guarantees and/or maintenance obligations
referred to in Paragraph 61
any other documents and information which may be required under the Applicable Law and/or by the Competent Authorities for the purpose of the issuance of the Taking-Over Minutes upon Completion of the Works.
to reject to issue the Certificate of Completion until such failure is rectified; or
to commission the production of the missing documents or information to a third party and deduct all the costs thereof from the Contract Price.
After the receipt of the Ready for Inspection Notice duly accompanied
by the documents listed under Paragraph 51.3
The works specified in the Completion List remaining to be done shall
be completed by the Contractor within 7 (seven) days but in any event not later
than 20 (twenty) days before the Completion Date, and shall be subject to later
inspection by the Project Manager. If the Project Manager is of the opinion
that the items specified in the Completion List have been executed and that the
Works have thereby been properly and sufficiently completed in accordance with
the Technical Documentation, he shall issue the Certificate of Completion
subject to the terms and conditions of this Agreement. In the event, however,
that the Project Manager determines that the Works have not been properly
completed as aforesaid and refuses to issue the Certificate of Completion in
terms of this Agreement as aforesaid, then and in such event the Contractor
undertakes to execute all and any directions furnished to it by the Project
Manager in the form of Project Manager's Instructions in order to bring the
Works to Completion to the satisfaction of the Project Manager, and in which
event the provisions of Paragraphs 51.1
For the avoidance of doubt, in the period between the Ready for Inspection
Notice and the Date of Completion, the Contractor shall be entitled to execute
minor finishing and repair works and to supplement the documents required under
Paragraph 51.3
Prior and as a pre-condition to the issuance of the Certificate of Completion, the Employer, at the Project Manager’s notice, shall summon the commission of the Competent Authority which shall sign on the Taking-Over Minutes upon Completion of Works of the entire Works (or any part thereof in case of Partial Delivery as hereinafter provided) and the Operation Permit. The Contractor shall be responsible to fulfill all the requirements for the issuance of the Taking-Over Minutes upon Completion of Works and the Operation Permit under the Applicable Law and Regulations and/or rose by the commission, to be present in the process, to answer any questions or clarifications, and to rectify any defect, uncompleted or otherwise rejected part of the Works which are required by the commission.
Notwithstanding the aforesaid, the Certificate of Completion for the Works shall only be issued after the Completion was certified by the Project Manager.
Notwithstanding the provisions of Paragraph 51
In the event that the Employer shall have elected to exercise its rights as aforesaid, then and in which event the following provisions shall apply:
the Contractor shall be obliged to complete the work items specified in the Completion List in respect of the works to be possessed in terms of this Paragraph in accordance with a timetable to be approved by the Project Manager; and
the Contractor shall be obliged to add to the amount of the Retention
Monies or the Maintenance Guarantee to be furnished by it to the Employer
pursuant to the provisions of Paragraph 62
It is hereby explicitly specified, stated and understood that in the event of partial completion in terms of this Paragraph:
no amendments to the Schedule of Payments shall be made; and
the remaining part of the Works must be completed by the Date of
Completion, and only then shall the Contractor be entitled to final payment
following the procedure in Paragraph 60
during execution of the remainder of the Works the Contractor shall ensure that the completed parts have continuous and adequate provisions of services, fire precautions, means of escape and safe access, and shall avoid any and all obstruction or other disturbance to the use thereof.
For the removal of doubt, it is hereby stated, declared and understood that the responsibility and risk of the Contractor in respect of such works handed over shall cease only upon the issuance of Certificate of Completion.
If the Contractor accomplishes the Works according to the Date of Completion stated in the Schedule of Particulars and only in case the Employer does not bear any expenses and/or damages because of the Contractor not having met the Milestones/Interim Stages , then the Employer will pay back to the Contractor the value of penalties paid by him or the suitable subtraction.
The Employer may deduct such damages from any monies due or to become due to the Contractor pursuant to this Agreement, or to set same off against all and any amounts due and owing by it to the Contractor on account of the Contract Price in terms of the provisions of this Agreement.
The payment or deduction of such damages in terms of this Paragraph shall not relieve the Contractor from its obligation to complete and maintain the Works, nor from any other obligations and liabilities undertaken by it in terms of this Agreement.
The provisions of Paragraphs 53.2
Without derogating in any manner from the provisions of Paragraph 53.4
In the event that the Employer shall exercise the Performance Guarantee
in terms of the provisions of Paragraph 30.8
Nothing in this Paragraph 53
Guarantee Period
The Contractor hereby undertakes that during the Guarantee Period it shall, at its sole cost and expense:
repair any defects in the workmanship, Plant, Materials and Works due to faulty designs including without limitation any structural defects, and
rectify any damage caused to the Works, which may appear or which may be discovered within the Guarantee Period;
all within the time indicated by the Project Manager, in accordance with its instructions and to its complete satisfaction.
It is hereby specifically agreed and understood that:
in the event that defects in the Works are discovered prior to the
expiry of the Guarantee Period but the Contractor shall not have commenced the
repair works in respect thereof on the date of the expiry of the Guarantee Period,
then and in which event the Project Manager shall have the right to extend the
Guarantee Period in respect of that portion of the Works being or to be
rectified until the work of rectification is complete, and same without
derogating from the provisions of Paragraph 54.3.1
Maintenance Guarantee
Upon the issue of the Certificate of Completion, the Contractor shall be obliged and hereby undertakes to furnish the Employer with the Maintenance Guarantee in the amount specified in the Schedule of Particulars, subject to the following provisions:
the Maintenance Guarantee shall be issued by the Bank, in the form and text acceptable to the Employer, as attached in Annex H –Form H3 to this Agreement;
the Maintenance Guarantee shall remain valid from the date of its issue until the termination of the Guarantee Period, shall be unconditional and irrevocable;
The Contractor shall be
entitled to increase the value of the Maintenance Guarantee by the value of the
outstanding Claims, and thereby secure the release of the Retention Monies in
terms of Paragraph 61.2.3
The Maintenance Guarantee shall be returned to the Contractor upon the
expiration of the Guarantee Period but only against suitable alternative
securities acceptable to the Employer to be provided by the Contractor in
respect of any outstanding Claims and/or in respect of works which Contractor
was liable to execute during the Guarantee Period but neglected to do so and/or
in respect of the works for which the Guarantee Period has been extended in
terms of Paragraph 54.3
The Contractor undertakes that during the entire Guarantee Period qualified representatives of the Contractor shall be available on call, in order to participate in inspections to be carried out by the Employer and/or the Project Manager, and their representatives and consultants, to care for the maintenance and arrange for the repairs or making good of any defects, defaults or deficiencies found in consequence of such inspections and/or during the Guarantee Period.
Final Completion
Without derogating from the other provisions of
Paragraph 54
Variations may be instructed by the Project Manager upon its sole discretion, by the issuance of a Variation Order at any time prior to the issuing of the Certificate of Completion for the Works and the Contractor shall follow and execute such instruction.
Should the Contractor have any objection to the Final Variation Order,
it shall have the right to bring proceedings before the
No such variation, addition or omission shall be executed by the Contractor without a written Variation Order issued by the Project Manager, provided that if for any reason the Project Manager shall consider it desirable to give any such order verbally, the Contractor shall comply with such order subject to its subsequent confirmation in writing by the Project Manager given within 3 (three) days of the giving of such verbal order.
Nothing in the Variation procedure specified above shall be deemed to give any right to the Contractor to delay the execution of the Works and/or to deviate from the Construction Schedule and/or from the Date of Completion, unless an extension for the time of completion was granted by the Project Manager under the provisions of this Agreement.
The Contractor shall not be entitled to refuse to execute any part of the Works or any variation made under the provisions herein, entrusted to it pursuant to the provisions of this Agreement.
A Variation shall justify a
corresponding addition to or reduction from the Contract Price, as the case may
be, provided that it constitutes a significant change in the quantity, quality
or size of the Works, the Plant or the Materials, and only if and as shall be
determined by the Project Manager in his sole and ultimate discretion, and in
accordance with the procedure specified in Paragraph 56
Upon receipt of the above documents, the Project Manager shall issue an Instruction to the Contractor which either (i) approves the rate of such cost, or (ii) refers the Contractor to another supplier of the required items, from which the Contractor shall purchase the said items for a lower price than the rate of the costs submitted by the Contractor.
In spite of details in Paragraphs 57.3
In case the Contractor receives a Variation Order where no price evaluation is included and to his opinion such variation order necessitates an increase in the Contract’s price, he shall advise the Project Manager in writing of his intention to claim such an increase. In case 60 (sixty) days elapse from the day the order is given to the Contractor, and no such notice is submitted in writing to the Project Manager it shall be considered that the Contractor agreed that the Variation Order shall not increase the Contract Price.
In consideration for the execution of the Works pursuant to the provisions of this Agreement, the Employer undertakes to pay the Contract Price which is equal to the Unit Prices in the Bill of Quantities (as adjusted if the case) Annex F, multiplied with the actual measured quantities by the Project Manager, approved by the Employer.
The Contract Price before Date of Commencement mentioned in the
Schedule of Particulars hereby attached represents the value calculated based on the Unit
Prices mentioned in the Bill of Quantities attached as Annex F to the Agreement, multiplied with the estimated quantities
mentioned thereof, which may be lowered or increased on the terms, provisions
and conditions herein set forth. It is explicitly clarified that the Employer
shall, at its own absolute discretion, make any adjustment of the quantities
stipulated in the Bill of Quantities and/or not to use specific quantities and
items as mentioned in Paragraph 21.1
The Contractor shall pay all taxes, duties and fees required to be paid by him under the Agreement, and the Contract Price shall not be adjusted for any of these costs.
Any quantities which may be set out in the Bill of Quantities or other
Schedule or Annex are estimated quantities and are not to be taken as the
actual and correct quantities of the Works which the Contractor is required to
execute. Adjustments (if any) of the Base Material Price and of the Unit Price
shall be made according to the provisions of Paragraph 21
It is hereby specifically agreed and understood that, unless otherwise explicitly stated in the Contract:
all the Works and any expenses arising from the execution thereof and from the fulfillment of all other obligations of the Contractor under this Contract shall be carried out by the Contractor at its own cost;
provisions specifying that any work and/or any of the Contractor’s obligations shall be carried out at the Contractor’s cost and expense, shall be by way of addition to the undertakings and obligations of the Contractor and not by way of limitation.
It is hereby specifically agreed and understood that the Contractor shall not be entitled to any additional payment whatsoever in respect of all or any of its undertakings made in terms of this Agreement, nor shall the Contractor be entitled to any additional payment whatsoever in respect of escalation of prices or linkage to indices or fluctuations of currency, and the Contractor hereby specifically waives all and any rights or claims of whatsoever nature or kind connected with or arising out of the escalation of the prices materials, goods, energy, fuels, labor or any other items required for the execution of the Works as aforesaid, or devaluation of currency, and the like.
The Contract Price excludes value added taxes.
The Contract Price shall be paid by the Employer to the Contractor in accordance with the following provisions:
On the 25th day of the month in which the Works are executed, the Contractor shall submit to the Project Manager the Monthly Account for the previous 30 (thirty) days specifying the accumulative amounts to which the Contractor considers itself entitled, based on the quantities of work performed and the materials supplied until the end of the passing calendar month, deduct the total money previously paid, and any deductions that the Employer is entitled to as provided herein. The Monthly Account shall be accompanied by supporting documents which shall include:
copy of the confirmations of inspection of Works prior to coverage;
documents on partial tests performed during the month, and for concrete pressure strength tests – on partial tests performed during the previous month;
documents certifying the quality of built-in Plant and Materials;
any other documents as the Project Manager may require in connection with the executed Works.
Upon receipt of the Approved Monthly Account and no later than 5(five)
days thereof, the Contractor shall issue and submit to the Employer a fiscal
invoice for the amount specified in the Approved Monthly Account, and the
relevant amount of the Value Added Tax. The rate of exchange shall be the rate
of the National Bank of
The Employer shall pay to the Contractor the amount stated in the said fiscal invoice, within 60 (sixty) days of the receipt of the relevant fiscal invoice.
If the Project Manager disputes the contents of any portion of the Monthly Account submitted as aforesaid, then and in such event payment in respect of the disputed portion of the Monthly Account shall be resolved in accordance with the provisions of Chapter XIV and shall not entitle the Contractor to delay the execution of the Works.
All portions of any Monthly Account, which shall have been approved for payment, shall be deemed to constitute an 'Approved Monthly Account'.
The Project Manager may by any Monthly Account make any correction or modification in current Monthly Account which shall have been issued and shall have authority, if any work is not being carried out to his satisfaction to omit or reduced the value of such work in any Monthly Account.
No payments on account of the Contract Price shall be executed by the Employer to the Contractor otherwise than in terms of Approved Monthly Accounts.
All payments made to the Contractor in terms of Approved Monthly Accounts shall be subject to:
the deductions of Retention Monies pursuant to Paragraph 61.1
the deductions of Advance Payment pursuant to Paragraph 59.11
deductions or withholdings as prescribed under the relevant income tax laws and regulations, unless the Contractor shall furnish the Employer with valid tax exemptions and reductions, and only to that extent.
The Employer shall be entitled to set-off any amounts which may be due to it by the Contractor against any amount due by it to the Contractor, including but not limited to any amounts due in terms of Approved Monthly Accounts, Retention Monies and the proceeds of the exercised Performance Guarantee and/or the Maintenance Guarantee, utilities usage charges, insurance costs, etc. The Employer shall furnish the Contractor a notice of any such set-off made.
The parties agree that the Monthly Account shall be computerized and in the form chosen by the Employer which will be prepared by the Contractor and signed by the Employer.
Any and all payments effected under the Agreement shall be made in RON
and the sum so payable shall be the equivalent in RON of the amount due in EUR,
recalculated into RON according to the rate of exchange of EUR to RON published
by the National Bank of
The issuance of any Approved Monthly Account and/or the payment of any amount by the Employer on account of the Contract Price shall not be deemed to indicate the Employer’s or the Project Manager’s acceptance, approval, consent or satisfaction regarding the execution of the Works.
Within 21 (twenty one) days as of the signing date of
this Agreement or of the Notice to Proceed (whichever shall occur later), the
Employer will make an Advance Payment in the amount
specified in the Schedule of Particulars, VAT exclusive, against an
unconditioned and irrevocable bank guarantee to be provided by the Contractor
in the form detailed in Annex H –Form H2,
and issued by the Bank. Such Advance Payment Guarantee shall be
progressively reduced by the amount which the Employer is entitled to deduct
and withhold from each and every Approved Monthly Accounts, as stipulated in
the Schedule of Particulars. The provisions of Paragraphs 30.3
Not later than 14 (fourteen) days after the issuance of the Certificate of Completion for each of the Works, the Contractor shall submit to the Employer and the Project Manager a Final Account with supporting original and legible documents:
showing the value of all Works done in accordance with the Contract up to the date of the issuance of the Certificate of Completion, and the Contractor’s estimate of the final amount due to it by the Employer under the Contract; and
containing a written discharge, in the form attached as Waiver of Claims – Annex T-Form T2, which confirms that the total of the Final Account represents the full and final settlement of all moneys due to the Contractor under or in connection with the Contract.
'No Claims' Certificate issued by the Contractor's legal advisors, in the form attached as Annex T –Form T3 hereto, evidencing lack of Claims with respect to the Works executed by the Contractor.
If the Project Manager disagrees with, or cannot verify any part of the Final Account, the Contractor shall submit such further information as the Project Manager may reasonably require and shall make such changes in the Final Account as may be agreed between the Parties. However, if following discussions between the Parties a dispute still exists, the Employer shall pay the agreed parts of the Final Account as an interim payment, pending resolution of the dispute in accordance with the dispute resolution provisions hereinafter set out.
The provisions of Paragraph 59
The Employer shall be entitled to deduct and withhold from each and every payment due by it to the Contractor in terms of this Agreement an amount specified in the Schedule of Particulars, which amounts shall comprise the Retention Monies.
The following provisions shall govern the withholding, use and payment of the Retention Monies:
The Retention Monies shall act as security for the fulfillment by the Contractor of its undertakings and obligations pursuant to the provisions of this Agreement.
The Employer shall be entitled to utilize all or any part of the Retention Monies, including all interest which shall have accrued thereon from time to time in order to remedy any default or non performance by the Contractor of its obligations and undertakings as aforesaid, or to set off such Retention Monies against any amounts due and owing by the Contractor to the Employer for standing in the Agreement.
Upon the issuance of the Certificate of Completion and subject to a
written discharge, in the form attached as Waiver of Claims – Annex T –Form T2, the Employer shall repay the amount of the
Retention Monies held by it to the Contractor together with the payment of the
Final Account (but subject to the provisions of Paragraphs 51
In the event that the Contractor fails to furnish the Maintenance
Guarantee to the Employer as specified herein below, then and in such event the
Retention Monies shall continue to be held by the Employer as security for the
fulfillment by the Contractor of its undertakings in terms of Paragraph 54
In the event that any one or more of the following events shall occur, namely:
The Contractor shall become bankrupt, or it shall be placed under a final or provisional order of receivership or compulsory liquidation which shall not have been canceled or terminated within 25 (twenty five) days from its award, or it shall place itself into voluntary liquidation or a charge of a material portion of its assets shall be imposed;
The Contractor shall assign or transfer its rights and obligations in
terms of this Agreement without first having obtained the approval of the
Employer pursuant to the provisions of Paragraph 6
The Contractor shall have carried out the Works on the Site without a
lawful Construction Permit in contravention of the provisions of Paragraph 42
the Contractor shall have:
failed to commence the Works on the Date of Commencement; and/or
suspended the progress of the Works after having received a written Instruction from the Project Manager to proceed; and/or
failed to comply with all the provisions of the Construction Schedule, the Rate of Progress, including the completion of the stages of the Works by the Interim Stage Completion Dates; and/or
abandoned the Agreement and/or the Works and/or the Site;
failed to furnish the Performance Guarantee in terms of Paragraph 30.1
failed to renew the Performance Guarantee and/or the Maintenance Guarantee and/or the Advance Payment Guarantee;
employed Subcontractors who shall not have been approved by the Project Manager
failed to ensure the removal of persons or Subcontractors dismissed from the Works by the Project Manager;
failed to remove the Plant or Materials from the Site or to pull down and replace work for the period determined by the Project Manager, after having received a written Instruction to do so;
the Contractor shall have failed to execute the Works in accordance with the provisions of this Agreement and/or the Technical Documentation notwithstanding its having received previous written warnings from the Project Manager, or is persistently or flagrantly neglecting to carry out its obligations pursuant to the provisions of this Agreement;
the Contractor shall have failed to take out, maintain and renew the various insurances specified in these General Conditions; and
the Contractor shall have
committed a breach of a material provision of this Agreement as hereinafter in
Paragraph 62.7
has committed a breach of any other provision of this Contract
and the Contractor shall have failed to rectify such occurrence within 7 (seven) days from the date of its receipt of a written demand to do so, then and in which event the Employer may at any time enter upon the Site of the Works and expel the Contractor and/or anybody on its behalf there from without thereby voiding this Agreement or releasing the Contractor from any of its obligations or undertakings pursuant to the provisions hereof or effecting or limiting the rights and powers of the Employer and/or the Project Manager in terms hereof.
In the event that the
Employer shall elect to exercise the rights awarded to it in terms of Paragraph
62.1
the Contractor shall be obliged to vacate the Site with immediate effect and the Employer shall be entitled to take all steps it may consider appropriate and necessary in order to remove the Contractor from the Site in the event that the Contractor shall have failed to vacate same within the period prescribed therefore by the Employer; and
the Employer shall be entitled to complete the Works or may employ another contractor to complete the Works on its behalf;
the Contractor shall be obliged, and hereby undertakes, to leave all Plant, tools, equipment, Goods and Materials used in the execution of the Works and the Employer or any such other contractor shall be entitled to utilize all or part thereof for the continued and complete execution of the Works as they may deem appropriate;
the Employer may at any time sell any of the said Plant, tools, equipment, Goods, Temporary Works or Materials. The Contractor holds the right to buy at first advance, within 7 (seven) days of receiving notice from the Employer.
If the Employer shall have exercised the Performance Guarantee and/or
sold the Plant, tools, equipments, Goods, Temporary Works or Materials seized
by it as hereinabove in Paragraph 62.2
The Employer shall not be liable to pay to the Contractor any monies as
determined in terms of Paragraph 62.4
The Contractor shall thereupon be entitled to receive only such sum, as
the Project Manager may certify as payable to it if upon completion by him of
the Works and after the deduction of the amounts referred to in Paragraph 54.5
Nothing in this Paragraph shall be deemed to derogate from the rights and remedies which may be available to the Employer in terms of the provisions of any law (either the Applicable Law or Governing Law or any other law) specified in the Schedule of Particulars in consequence of the breach by the Contractor of its obligations and undertakings pursuant to the provisions of this Agreement.
In the event of the Employer:
becoming bankrupt or, being a company, going into liquidation, other than for the purpose of a scheme of reconstruction or amalgamation; or
committing a material breach of Paragraphs 59
then and in which event the Contractor shall be entitled to terminate its employment under this Agreement after giving 14 (fourteen) days prior written notice to the Employer of its intention to do so.
Upon the expiry of the 14 (fourteen) days notice referred to in
Paragraph 62.1.4.9
In the event of such termination, the Project Manager shall confirm and
approve the measurement of the works actually executed by the Contractor until
the date of such termination in accordance with the provisions of Paragraph 64
The provisions of Paragraph 62.8
For the sole purpose of:
verifying the adequacy of the construction of the Works in accordance with the Technical Documentation;
verifying and approving the payments to be made to the Contractor pursuant to the provisions of this Agreement; and
measuring the Works in the event of termination in terms of the
provisions of Paragraph 63
the Project Manager shall be entitled to conduct measurements of the Works performed by the Contractor pursuant to the provisions of this Agreement.
For the removal of doubt, it is hereby specifically stated and declared that any measurements made by the Project Manager in terms of this Paragraph shall in no circumstances whatsoever give rise to any claims by the Contractor for any increase in the amount of the Contract Price.
It is hereby specifically stated that all measurements shall be net, without any addition for depression, waste or tolerance for any reason whatsoever, including erosion, settlement, consolidation and construction tolerances and wash‑out. All measurements shall be determined to the lines and grids shown on the Contract Drawings, or as required by the Project Manager.
The Project Manager shall be entitled to require that any part or parts of the Works to be measured as aforesaid, and give notice to the Contractor's Representative to that effect, who shall forthwith attend upon or send a qualified team to execute such measurement, and shall furnish all particulars required by him. This surveying team, equipment and crew shall be supplied by the Contractor and approved by the Employer, and shall work at the demand of the Employer during the construction works at the cost of the Contractor. The Project Manager shall examine and approve all measurements made by the Contractor.
Should the Contractor not attend, or neglect or omit to send such a qualified team, then the Project Manager shall be entitled to cause such measurement to be made, in which event the costs and expenses incurred in respect of such measurement shall be borne by the Contractor, and the measurements made shall be deemed to be final and binding upon the Contractor.
Subject to the provisions of Paragraph 64.3
In the event of the cessation or suspension of the Works for any reason, the Project Manager shall be entitled to require that measurements and inventories be executed and drawn up in respect of work executed and materials and equipment on Site so as to reflect the accurate 'as‑is' position as at the date of the cessation or suspension of the Works as aforesaid.
The Party submitting the notice of Force Majeure above in due time shall be entitled to suspend the performance of such obligations that have been affected by the Force Majeure, for the duration of the said prevention.
If the execution of all substantial Works in progress is prevented for
a continuous period exceeding 60 (sixty) days, by reason of Force Majeure of
which notice has been given under Paragraph 65.1
the Contractor shall be obliged to vacate the Site and the Works, leaving them in a good and clean condition;
However, if the Party prevented from performance due to a Force Majeure
event is the Employer, then the notice of Force Majeure shall enter into force
only upon the expiry of the suspension period specified in Paragraph 49.1.5
The Employer shall be entitled to terminate unilaterally the Contract at any time, by giving a prior notice in writing as to such termination to the Contractor. Unless the Parties agree otherwise in writing, the termination shall take place 14 (fourteen) days after the submission by the Employer to the Contractor of the said written termination notice.
Upon termination under this Paragraph, the Parties shall proceed in
accordance with the provisions of Paragraphs 65.3.1
This Agreement shall be governed by and construed in accordance with the English Law.
Notwithstanding the above, the Works to be executed completed and maintained under this Agreement as well as all the documentation and/or permits related thereto must comply with the Applicable Law.
The Agreement is signed in two identical copies in English, one for each party.
In the event that a dispute shall arise between the Parties relating to and/or arising out of and /or connected with the validity, interpretation, execution, implementation and cancellation of this Agreement and/or any of its provisions and/or concerning any other rights or obligations pursuant to the provisions of this Agreement (“a Dispute”), then and in such an event, the Parties shall conduct bona-fide arms length negotiations between them in an endeavor to settle such Dispute by amicable means without resort to litigation.
In the event that a Dispute shall arise between the Parties as contemplated in this Paragraph, the Contractor hereby specifically agrees and undertakes that it shall continue to execute and fulfill its obligations in terms of this Agreement in a proper, professional and diligent manner notwithstanding the existence of such a Dispute.
Any Dispute in respect of which amicable settlement has not been reached shall be finally settled, under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one arbitrator appointed under such Rules. The arbitration award shall be final and binding among the Parties.
Arbitration may be commenced by the Contractor only after completion of the Works.
The language of arbitration
shall be the English language and the place of arbitration shall be
The Contractor will use any Confidential Information (as defined hereinafter disclosed to it by the Employer solely and exclusively for the purpose of the Contract, shall treat and maintain all Confidential Information in the strictest confidence, using the same degree of care the Contractor uses to protect its own confidential information, shall not make any copies of Confidential Information (in any medium) without the prior express written consent of the Employer, shall not disclose or transfer, directly or indirectly, the Confidential Information to any entity at any time without the prior express written consent of the Employer, and shall not disclose any Confidential Information to any of its employees except to those who require access to the Confidential Information for the execution of this Contract.
Upon the first request of the Employer, the Contractor shall promptly deliver, and cause any of its employees who were exposed thereto to promptly deliver, and not later than within 3 (three) days, to the Employer any and all originals and copies of all documents and any and all materials (in any medium), which contain, summarize or embody the Confidential Information or any part thereof, which are then in the possession of the Contractor or under its control.
For the purposes of this Contract 'Confidential Information' shall include all and any information of a confidential or proprietary nature, whether or not patentable that has been or will be disclosed to the Contractor by the Employer or any person or entity on its behalf, or is made, conceived or otherwise obtained by the Contractor in connection with the performance of this Contract, including but will not be limited to, any technical, commercial and financial information, conceptions, developments, Project, Site, Works, Services, (as defined in the Contract), ideas, discoveries, improvement, inventions, know how, innovations, technology, trade secrets, professional secrets, copyrights and any other intellectual property, whether communicated orally or written or on disk or by electronic media or in any other media, way or method; but excluding any information which (a) is in the public domain at the date of the signing hereof or which becomes part of the public domain thereafter, other than through the Contractor's or any of its employees' breach of this Contract; or (b) is disclosed pursuant to a court order, provided that the Contractor at the request and expense of the Employer, uses reasonable efforts to limit such disclosure to the extent requested.
Contractor’s confidentiality obligation under this Paragraph shall be valid throughout entire duration of this Contract and after its expiry, even if all or any part thereof is declared null and void.
EMPLOYER CONTRACTOR
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