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Contents
PAGE
PAGE
Articles of Agreement
5.5
Attestation
5.6
5.7
1
9
5.8
5.9
5.10
5.11
Governing law
Singular, plural, masculine and
feminine
1.3 Method of reference to clauses and
Articles
1.4 Articles of Agreement, Conditions
and Appendix to be read as a whole
1.5 Clauses divided into sub-clauses to
be read as a whole
1.6 Definitions
1.7 The role of the Engineer
1.8 Sectional completion of the Works
1.9 Communications
1.10 Notices of default or determination
to be sent by special delivery
1 .11 Parties to act reasonably and
expeditiously
1.1
1.2
Contractor's obligations
2.1
2.2
2.3
2.4
Contractor's obligations
Contractor's responsibility
Contractor's skill and care
Contractor to inform Architect if
he finds ambiguities in documents
5.12
5.13
5.14
5.15
6
Statutory obligations
6.1
6.2
Statutory Requirements
Compliance with the Statutory
Requirements
Fees or charges
Statutory undertakers and utility
companies
6.3
6.4
Master programme
3.1
3.2
3.3
Architect's instructions
4.1
4.2
4.3
4.4
5
5.1
5.2
5.3
5.4
24
16
25
8
17
19
8.1
8.2
8.3
8.4
8.5
9.1
9.2
9.3
9.4
20
10
25
27
27
28
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PAGE
PAGE
12
Architect's representative
28
13.1
13.2
13.3
13.4
13.5
13.6
13.7
13.8
37
19.1 Assignment
19.2 Sub-letting
29
20
21
21.1
21.2
21.3
21.4
21.5
21.6
22
40
14
Contract Bills
33
14.1
Contract Sum
34
34
17.1
17.6
17.7
18
17.2
17.3
17.4
17.5
occurs
34
43
44
22C
44
PAGE
PAGE
29
57
29.1
23
45
45
24.1
Extension of time
46
25.1
25.2
25.3
25.4
26
51
Nomination of a sub-contractor or a
supplier
29.2 Contractor's right of reasonable
objection
29.3 Sub-contractor and supplier w2:1Tanty
to Employer
29.4 Contractor's tender for work provided
for by a Prime Cost Sum
29.5 Nomination using the standard
conditions
29.6 Contractor's responsibility for
Nominated Sub-Contractors and
Nominated Suppliers
29.7 Quantity Surveyor's notification of
interim payments
29.8 Direct payment of Nominated SubContractors and Nominated Suppliers
29.9 Extension of time for completion
of Nominated Sub-Contract works or
delivery of Nominated Supply
Contract goods
29.10 Substantial completion of Nominated
Sub-Contract works
29.11 Architect to certify Nominated SubContractor's failure to complete on
time
29.12 Early final payment to Nominated
Sub-Contractor or Nominated
Supplier
29.13 Re-nomination
29.14 Architect's consent
29.15 Employer not liable to a Nominated
Sub-Contractor or Nominated
Supplier
30
63
30.1
27
53
27.1
55
32
64
32.1
PAGE
PAGE
account
32.7
32.8
32.9
32.10
38
Surety Bond
73
33.1
Antiquities
Detenmination by Employer
40
Determination by Contractor
74
41
Settlement of dispu1es
41.1
41.2
41.3
41.4
41.5
41.6
41.7
41.8
Default by Employer
Insolvency of Employer
Consequences of determination
Contractor to submit final account
Quantity Surveyor to check final
account
36.6 The final settlement
36.7 Architect to notify sub-contractors
and suppliers
36.8 Other rights and remedies
85
Appendix
Schedule 1
Form of Surety Bond to be given by
the Contractor to the Employer
89
90
Schedule2
Form of Warranty to be given by the
Nominated Sub-Contractor to the
Employer in consideration of
Nomination
94
Schedule 3
97
Form of Warranty to be given by the
Nominated Supplier to the Employer
in consideration of Nomination
Index to The General Conditions
Detenmination by Employer or
Contractor
85
78
36.1
36.2
36.3
36.4
36.5
37
85
73
36
35
84
38.1
39
33
Fluctuations
82
Articles of Agreement
This Agreement
between
of .......................................................................................................................................................
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('the Contractor')
('the Works')
at .......................................................................................................................................................
showing and describing the work to be carried out prepared by or under the direction of or at
the request of the Architect;
and whereas the Contractor has, based on the Tender Documents, made in the Form of
Tender his calculation of the sum that he will require for carrying out the Works by pricing the
bills of quantities;
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and whereas the Contractor has given a fully priced copy of the bills of quantities ('the Contract
Bills') to both the Employer and the Architect;
and whereas the Architect has given each party one copy of the Articles of Agreement, the
Appendix, the Conditions, the Contract Drawings, the Specification and the Contract Bills
each signed by or on behalf of the parties.
(HK$.................................................................................................................................................)
('the Contract Sum') or such other sum that becomes payable in accordance with and subject
to the Contract.
Article 3
The Architect will be
of .................................................................................................................................................
Article 4
The Quantity Surveyor will be
of .................................................................................................................................................
Article 5
(1)
In the event of the person appointed to act as either the Architect or the Quantity Surveyor
ceasing to act, the Employer shall appoint a replacement as soon as practicable.
(2)
If the Contractor objects to the person appointed to succeed either the Architect or the
Quantity Surveyor, the Contractor has the right to refer his objection to an arbitrator
under the Contract provided the reference to arbitration is made within 14 days of the
appointment.
(3)
The person appointed as the replacement to the Architect or the Quantity Surveyor
shall continue to act pending the award of the arbitrator appointed under Article 5(2)
but shall immediately cease to act if so directed by the arbitrator's award. In which
case the Employer shall appoint a further replacement as soon as practicable.
(4)
The Contractor shall have the right of objection under Article 5(2) to a further appointment
of either the Architect or the Quantity Surveyor.
A person appointed as the replacement to the Architect or the Quantity Surveyor shall
not be entitled to disregand or overrule any agreement, approval, certificate, confirmation,
consent, decision, direction, dissent, instruction, notice, notification, opinion, request
or requirement given or made by the person previously appointed save insofar as the
Contract permits.
Article 6
If a dispute arises under or in connection with the Contract, the parties agree to resolve the
dispute in accordance with the dispute settlement procedures in clause 41.
Attestation
* SIGNED AND SEALED as a deed I SIGNED by the Employer
(signature of wrtness)
(signature of witness)
*delete as applicable
1.1
Governing law
The Contract shall be governed by and construed according to the laws for the time
being in force in Hong Kong.
1.2
1.3
1.4
1.5
1.6
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Contract Drawings: the drawings referred to in the first and fourth recitals of the Articles
and enumerated as such in the Contract Bills or the Specification.
Contract Sum: the sum stated in Article 2, or such other sum that becomes payable in
accordance with the Contract.
Contractor: the person named as the Contractor in the Articles.
Contractors' All Risks Insurance of the Works: insurance which provides cover against
physical loss of or damage to the Works, temporary works and materials and goods, as
described in clause 22.
Date for Possession of the Site: the date or dates for the possession of the whole or
parts of the Site stated in the Appendix under the reference to clause 23.1.
Date of Substantial Completion: the date stated in the Substantial Completion Certificate
for the Works or a Section, issued by the Architect under clauses 17.1 and 17.2.
day: a calendar day and includes Sundays and other days which are general holidays
by virtue of the General Holidays Ordinance (Chapter 149, Laws of Hong Kong).
Defects Liability Period: the period stated in the Appendix under the reference to clause
17.3, commencing on the day after the Date of Substantial Completion of the Works or
a Section or the day after the Relevant Date of Substantial Completion of a Relevant
Part.
Defects Rectification Certificate: a certificate issued by the Architect to the effect that
all defects, shrinkages and other faults have been rectified in accordance with the
Contract, as described in clauses 17.4 and 17.5.
direct /ass and/or expense: the monetary consequences that flow naturally without
other intervening cause and independently of special circumstances because of the
direct consequences of a qualifying event and which are not otherwise reimbursed to
the Contractor.
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person for whom the Employer is responsible: the Employer's servants or agents and
the persons listed in clause 30.1.
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Prime Cost Sum: a sum either provided in the Contract Bills or arising as described in
clause 29.1 for work to be carried out by a Nominated Sub-Contractor or for materials
or goods to be obtained from a Nominated Supplier.
Provisional/tern: an item of work identified as provisional in the Contract Bills to be
carried out by the Contractor if instructed to do so by the Architect under clause 13.2.
Provisional Quantities: an estimated quantity of work identified as provisional in the
Contract Bills, where the actual quantity could not be accurately determined when the
bills of quantities were prepared, to be carried out by the Contractor if instructed to do
so by the Architect under clause 13.2.
Provisional Sum: a sum provided in the Contract Bills for work or for costs, which could
not be entirely foreseen, defined or detailed when the bills of quantities were prepared,
to be paid to the Contractor if instructed by the Architect under clause 13.2 to carry out
such work or incur such costs.
Quantity Surveyor: the person named as the Quantity Surveyor in Article 4, or any
successor appointed under Article 5.
Relevant Date: the date upon which the Employer took possession of a Relevant Part
under clause 18.
12
Relevant Part: the part of the Works or part of a Section taken possession of by the
Employer under clause 18 before Substantial Completion of the Works or that Section.
Retention: the sum calculated in accordance with clause 32.4 and retained by the
Employer from the gross valuation of the Contractor's work in progress included in an
Interim Certificate.
Retention Percentage: the percentage entered in the Appendix under the reference to
clause 32.4, used to calculate the Retention in accordance with the rules set out in that
clause.
Section: a part of the Works for which a separate Completion Date is stated in the
Appendix where the Contract provides for sectional completion of the Works.
Site: the land and other places provided by the Employer for the purpose of carrying
out the Works.
Special Condition: a condition of contract expressly referred to as a Special Condition
of Contract, which adds to or amends the Conditions and is annexed to the Conditions.
special delivery: a communication which is either delivered by courier or sent by registered
post or recorded delivery.
Specialist Contractor: a person, not being a statutory undertaker or utility company as
referred to in clause 6.4(1), engaged by the Employer to carry out work directly connected
with or ancillary to but not forming part of the Works, as described in clause 30.
Specialist Works: work directly connected with or ancillary to but not forming part of the
Works, to be carried out by a Specialist Contractor.
Specification: the specification referred to in the first and fourth recitals of the Articles
which describes, without limitation, the types, standards and quality of the materials
and goods to be used, the standard and quality of workmanship required, the manner
in which work processes are to be carried out, the performance requirements and other
matters and things relating to the construction of the Works.
Specified Perils: fire, lightning, explosion, storm, tropical cyclone, flood, bursting or
overflowing of water tanks, apparatus or pipes, earthquake, aircraft and other aerial
devices or articles dropped from them.
Standard Conditions of Nominated Sub-Contract: the Standard Form of Sub-Contract
for use where the sub-contractor is nominated under the Standard Form of Building
Contract.
Standard Conditions of Nominated Supply Contract: the Standard Form of Supply
Contract for use where the supplier is nominated under the Standard Form of Building
Contract.
13
sub-contractor: a person who enters into a sub-contract with the Contractor to carry
out work forming part of the Works and includes a Domestic Sub-Contractor and a
Nominated Sub-Contractor.
Substantial Completion: the state of completion where the Works or a Section have
been substantially completed to the Architect's satisfaction and have passed the required
inspections and tests, as referred to in clauses 17.1 and 17.2.
Substantial Completion Certificate: a certificate issued by the Architect stating the date
when in his opinion the Works or a Section have reached Substantial Completion.
substantially completed: the state of completion where the Works or a Section may not
be absolutely completed or entirely free from defects but have reached the stage where
they can be taken over and used by the Employer for their intended purpose and where
the unfinished items of work and the remaining defects then patent are only of a minor
nature and extent and their completion or rectification will not unreasonably interfere
with or interrupt the taking over of the Works or Section.
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supplier: a person who enters into a supply contract with the Contractor to supply
materials or goods and includes a Nominated Supplier.
suspend: to cease operations for a period of time on an activity in which work has
commenced.
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Tender Documents: the documents and drawings referred to in the first recital of the
Articles, or a certified true copy of those documents and drawings.
Valuation: the valuation made by the Quantity Surveyor, in accordance with the valuation
rules under clause 13.4, of work carried out in response to an Architect's instruction
requiring a Variation, remeasurement of Provisional Quantities and Provisional Items or
to expend Provisional Sums.
Variation: a change instructed by the Architect to the design, quality or quantity of the
Works including:
0)
(ii)
(iii) the removal from the Site of materials or goods and the demolition and removal
of work except where provided for in the Contract or where the materials,
goods or work are not in accordance with clause 8.1;
14
1.7
1.8
1.9
1.10
1.11
The phrase 'the whole of the Works' means the Works including all Sections.
Communications
Unless otherwise stated, all notices, certificates and other communications under the
Contract between the Employer, the Architect, the Quantity Surveyor and the Contractor
shall be in writing.
Notices of default or determination to be sent by special delivery
All notices of default or determination under clauses 35, 36 and 37 shall be sent by
special delivery.
Parties to act reasonably and expeditiously
(1) The parties, the Architect and the Quantity Surveyor shall act reasonably and
expeditiously in all matters under the Contract including, without limitation, giving or
withholding consent, approval or agreement, valuing Variations and certifying.
(2) All requirements shall be reasonable requirements and, without limitation, the term
'to the Architect's satisfaction' shall be construed as meaning to the Architect's
reasonable satisfaction and the term 'practicable' shall mean reasonably practicable.
15
Contractor's obligations
2.1
Contractor's obligations
(1) The Contractor shall in compliance with the Contract:
(a) organize, manage, plan and supervise the carrying out of the Works;
(b) co-ordinate the carrying out of the Works including the interface between his own
work and the work carried out by each Domestic Sub-Contractor, Nominated SubContractor, Specialist Contractor, statutory undertaker and utility company;
(c) assist in the co-ordination of their work by each Domestic Sub-Contractor,
Nominated Sub-Contractor, Specialist Contractor, statutory undertaker and utility
company with the work of each of the others;
(d) design sufficient, safe and adequate temporary works to enable the Contractor to
comply with his other obligations under the Contract, except where the design of
any temporary works is a statutory obligation of any person other than the Contractor
or any person for whom the Contractor is responsible;
(e) carry out any work involved in the development of the Architect's design that may
be specified in the Contract;
(f) prepare all shop drawings and co-ordination drawings required by the Contract;
(g) carry out the maintenance of mechanical and electrical equipment where required
to do so by the Contract for the period of time so specified;
(h) take responsibility for the care of the Works, except for loss or damage arising
from the Excepted Risks, from the Commencement Date until 14 days after
Substantial Completion of the Works or 14 days after the determination of the
employment of the Contractor, whether valid or not, whichever is earlier, except
that the Contractor's responsibility for the care of the Works shall terminate in
relation to a Section or Relevant Part 14 days after the Employer takes possession
of that Section or Relevant Part; and
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(i) carry out the construction of and complete the Works using materials, goods and
workmanship of the types, standards and quality specified in the Contract.
(2}
2.2
Where the Contract requires the Contractor to prepare details, to carry out the
design or the development of the Architect's design, unless the requirement of
fitness for purpose is specifically stated, the design or the development of the
Architect's design shall be carried out with reasonable skill and care and the
Contractor shall be responsible to the Employer for such work.
Contractor's responsibility
The Contractor shall remain wholly responsible for carrying out and completing the
Works in accordance with the Contract whether or not the Architect or the Architect's
representative, if appointed:
(a) visits the Works or a place where materials or goods are being manufactured or
stored, work is being prepared, or design is being carried out;
16
2.3
2.4
(2) If the Architect agrees with the Contractor, he shall issue an instruction to resolve
the ambiguity, discrepancy or divergence as soon as practicable after receipt of the
notice from the Contractor and the instruction shall, if considered appropriate by the
Architect, require a Variation.
3
Master programme
3.1
17
(a) show the activities and the sequence in which the Contractor proposes to carry
out the Works;
(b) show the periods of time estimated for each activity; and
(c) make allowance for the carrying out of Specialist Works, insofar as a general
description of these works is given in the Contract, and work by statutory
undertakers and utility companies as referred to in clause 6.4(1 ).
(3) The Contractor shall submit 6 copies of any other programme that may be required
by the Contract at the time or times so specified.
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(4) Where any other part of the Contract sets out requirements in respect of the
submissions to be made by the Contractor under clause 3.1, the submissions shall be
made in accordance with those requirements.
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Programmes to be updated
(1) The Contractor shall regularly update the master programme and any other
programme used in canrying out the Works to reflect the current status of the progress
of the Works, and shall submit 6 copies of the updated programme to the Architect at
the intervals stated in the Contract (or, if this is not stated, at 3 month intervals) and in
any event within 28 days of:
(a) an Architect's decision to fix a new Completion Date under clause 25.3;
(b) the Employer taking possession of a Section or a Relevant Part of the Works;
(c) the determination of the employment and re-nomination of a Nominated SubContractor; or
(d) the termination of a supply contract and re-nomination of a Nominated Supplier.
(2) The programme shall be revised to indicate the modifications that the Contractor
believes are necessary to achieve completion of the Works by the Completion Date if
the Contractor decides to take action in response to the Architect's notice under clause
25.5.
(3) Programme updates shall be based upon the logic, activities and durations shown
in the previous programme. Any change to the programme structure apart from activity
status that may be necessary shall be clearly indicated and explained to the Architect.
18
3.3
4.1
. 2
Architect's instructions
Architect may issue instructions up to the issue of the Final Certificate
The Architect may issue instructions that he is empowered to issue under the Conditions
at any time up to the issue of the Final Certificate including during the time that the
Contractor may be carrying out work after the Date of Substantial Completion of the
Works, but he shall not instruct a Variation after the issue of the Defects Rectification
Certificate for the Works, a Section or a Relevant Part as the case may be.
Architect to issue instructions in writing
(1) The Architect must issue all instructions in writing in accordance with clause
1.9. All oral instructions given must be confirmed in writing within 5 days of giving the
oral instruction. If the Architect gives an oral instruction that the Contractor believes
requires a Variation it shall have no immediate effect, the Contractor shall confirm the
oral instruction requiring a Variation in writing to the Architect within 7 days of it being
issued and if not dissented to in writing by the Architect within 7 days from his receipt
of the Contractor's confirmation the Variation shall take effect on the expiry of the latter
7 days.
(2) Where an Architect's oral instruction requiring a Variation has been confirmed in
writing by the Contractor under clause 4.2(1) and not dissented to by the Architect, the
Architect shall issue the written instruction for a Variation for record purposes as soon
as practicable after the Contractor's confirmation.
4.3
(2) If the Contractor disagrees that the Architect is empowered by the Conditions to
issue an instruction he may within 7 days of receipt of that instruction require the
disagreement to be resolved under clause 41 .
(3) If the Contractor does not begin to comply with an instruction within 7 days after
receipt of a written notice from the Architect requiring compliance with that instruction
in accordance with clause 4.3(1) and the Architect issues a certificate to that effect by
special delivery, the Employer may, without prejudice to his other rights and remedies,
engage other persons to carry out that instruction. All additional costs incurred by the
Employer in connection with the employment of the other persons to carry out that
instruction may be recovered from the Contractor under clause 40 or as a debt.
19
4.4
5.1
20
5.2
5.3
5.4
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5.6
21
5.7
5.8
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5.10
22
Return of drawings
The Contractor shall return to the Architect all drawings, specifications, details,
descriptive schedules and other similar documents provided under clause 5, if required
by the Architect to do so, either upon the issue of the Final Certificate or the final
conclusion of any proceedings to which the Contractor is a party, whichever is later
and the Contractor may take copies for his own records.
5.11
(2) The Contractor shall assign to the Employer (so far as he is lawfully able to do so)
the benefits of all suppliers' and sub-contractors' warranties, guarantees or other ancillary
agreements for materials, goods or work insofar as they are required by the Contract,
Nominated Sub-Contracts or Nominated Supply Contracts, other than the direct
warranties to the Employer required under the Nominated Sub-Contracts and Nominated
Supply Contracts, within 60 days after the issue of the Substantial Completion Certificate
for the whole of the Works.
- (3) Where the Contractor assigns the benefit of a suppliers' or sub-contractors'
warranty, guarantee or other ancillary agreement for materials, goods or work to the
Employer, the Employer shall exhaust all remedies under the warranty, guarantee or
ancillary agreement before enforcing the terms of the Contract against the Contractor
in respect of any matter for which a cause of action exists against the sub-contractor or
supplier under the warranty, guarantee or other ancillary agreement.
5.12
(2) Where the drawings referred to under clauses 5.3, 5.4, 5.5 and 5.6 have been
issued electronically, the Contractor shall, if so required by the Architect, provide the
as-built drawings electronically.
5.13
(2) Neither the Employer, the Architect nor the Quantity Surveyor shall divulge any of
the rates or prices in the Contract Bills or use them except for the purposes of the
Contract and any proceedings relating to the Contract.
5.14
5.15
23
6.1
6.2
Statutory obligations
Statutory Requirements
The Contractor shall comply with and give the notices required by any Ordinance,
regulation, rule, order or by-law applicable to the Works ('the Statutory Requirements')
which are to be complied with by the Contractor.
Compliance with the Statutory Requirements
(1) The Contractor shall immediately notify the Architect if the Contractor finds that
carrying out the Works in compliance with the Contract or with an Architect's instruction
requiring a Variation will infringe the Statutory Requirements.
(2) If the Architect agrees with the Contractor, he shall issue an instruction to resolve
the infringement as soon as practicable after receipt of the notice and the instruction
shall, if appropriate, require a Variation.
6.3
Fees or charges
(1) The Contractor shall pay all fees or charges legally demandable under the Statutory
Requirements.
(2) The net amount of those fees or charges paid by the Contractor shall be added to
the Contract Sum unless they:
(a) are fees or charges that the Contractor is liable to pay under the Statutory
Requirements, and the liability was known prior to the date for submission of tenders
and has not been increased;
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(b) are priced, or are required to be allowed for, in the Contract Bills;
(c) are provided for by a Provisional Sum; or
(d) arise out of a default, delay or failure by the Contractor or a sub-contractor to
comply with the Statutory Requirements or the Contract
6.4
(2) The Contractor shall allow those persons reasonable access to the Site, permit
them to carry out their work and provide them with the facilities referred to in clause 31.
(3) Statutory undertakers or utility companies engaged under contracts with the
Employer to carry out work directly connected with or ancillary to but not forming part
of the Works shall be classified as Specialist Contractors as referred to in clause 30.1.
24
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8.1
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(2) The Contractor shall be responsible for accurately setting out the Works and shall
correct any error arising from inaccurate setting out at his own cost unless the Architect
accepts the error without correction subject to a reasonable reduction in the Contract
Sum having regard to the Employer's loss of value of the Works and any expenses that
he may incur arising from the inaccurate setting out.
(b) if the proposed alternative materials or goods are not of similar type and standard
or comparable quality or price to those specified, and the Architect approves them,
he shall instruct a Variation to adjust the type, standard, quality or price.
(4) The Contractor shall provide the Architect, upon his request, with vouchers, test
certificates or other evidence to satisfy the Architect that the materials and goods comply
with the Contract.
(5) The Contractor's workmanship must be of the standard and quality described in
the Contract to the Architect's satisfaction.
25
8.2
(2) In addition to the tests specified in the Contract, the Architect may instruct the
Contractor to open up for inspection any work covered up and to carry out, or arrange
for a third party to carry out, tests of materials and goods {whether or not already
incorporated in the Works) and work which has been carried out.
(3) The cost of the testing, the opening up for inspection and any consequential making
good shalf be added to the Contract Sum unless:
(a) the inspection or test is provided for in the Contract Bills;
(b) the inspection or test shows that the materials, goods, workmanship or work are
not in accordance with clause 8;
(c) the inspection or test was considered necessary by the Architect because, as a
result of the failure of a previous inspection or test, further investigation of similar
materials, goods or work was required to establish to his satisfaction their
compliance with clause 8; or
(d) the work was carried out without the inspection notice required by the Contract.
8.3
(a) the removal from the Site and the replacement of materials and goods that are not
in accordance with clause 8;
(b) the repair or demolition, removal and reconstruction of work which, in respect of
materials, goods or workmanship, is not in accordance with clause 8;
(c) the acceptance, without replacement or reconstruction, of some or all of the
materials, goods or work that are not in accordance with clause 8, subject to a
reasonable reduction in the Contract Sum having regard to the reduction in the
value of the materials, goods or work; and
(d) a Variation for alternative remedial work to sorne or all of the materials, goods or
work as is reasonably necessary in consequence of them not being in accordance
with clause 8, with no extension of time or addition to the Contract Sum.
26
8.4
Rectifying defects
The Architect may instruct the Contractor to rectify defects which appear before the
commencement of the Defects Liability Period.
8.5
9.1
9.2
9.3
(2) The Contractor shall indemnify the Employer from and against all claims,
proceedings, damages, costs and expense arising from the Contractor or any subcontractor or supplier infringing or being held to have infringed any of the intellectual
property rights referred to in clause 9.3(1 ).
9.4
10
10.1
27
10
10.2
Construction manager
(1) The team shall be headed by an experienced and competent construction manager
approved by the Architect.
(2) An instruction issued by the Architect to the construction manager shall be deemed
to have been issued to the Contractor.
(3) The Architect may instruct the Contractor to replace the construction manager or
a member of the team for incompetence or misconduct.
(4) The Contractor shall not remove or replace the construction manager or any member
of the team unless requested by or agreed to by the Architect.
11
12
12.1
Architect's representative
Architect's representative
The Architect and/or the Employer may appoint an architect, engineer, clerk of works
or other person as the Architect's representative to be resident on the Site and acting
under the direction of the Architect.
28
12
12.2
(2) The delegation shall be in writing and shall be copied to the Contractor. It shall
specify the duties and powers that are delegated and remain in force until changed or
terminated in writing by the Architect.
12.3
13.1
(a) the Contractor has the right of reasonable objection to a Variation which imposes
or changes an obligation or restriction on the Contractor regarding access to the
Site, use of any part of the Site or limitation of working space or working hours and
the Architect shall, upon receipt of the Contractor's objection, either confirm or
withdraw the instruction, and if the instruction is confirmed, the Contractor may
refer the matter to arbitration under clause 41;
(b) the Contractor's written consent is given to an instruction either nominating a subcontractor to carry out work included in the Contract Bills which is to be carried
out by the Contractor or omitting work in order for it to be carried out by others;
and
(c) the instruction or accumulation of instructions shall not fundamentally change the
scope or nature of the Works.
(2) The instruction requiring a Variation shall describe the change required to the design,
quality or quantity of the Works or the imposition of or change to any obligation or
restriction on the Contractor and where appropriate the Architect shall issue revised
drawings and/or schedules.
29
13
13.2
13.3
13.4
Valuation rules
(1) Where the Valuation relates to the carrying out of:
(a) additional or substituted work which can be properly valued by measurement;
(b) work which is the subject of Provisional Quantities or Provisional Items; or
(c) work involved in the expenditure of Provisional Sums,
the work shall be measured and shall be valued in accordance with the following rules:
30
(i)
where the work is the same as or similar in character to and is carried out
under the same or similar conditions to work priced in the Contract Bills, and
the Variation does not substantially change the quantity of that work, the rates
in the Contract Bills for that work shall determine the Valuation;
(ii)
where the work is the same as or similar in character to work priced in the
Contract Bills but is not carried out under the same or similar conditions, or
the Variation substantially changes the quantity of that work, the rates in the
Contract Bifls for that work shall determine the Valuation but with a fair
adjustment for the difference in conditions or quantity;
13
where the work is not the same as or similar in character to any work priced in
the Contract Bills the work shall be valued at fair rates; and
(iv) the word 'conditions' in clause 13.4(1) shall mean physical conditions and not
financial conditions.
(2) Where the Valuation relates to work which cannot be properly measured and valued
under clause 13.4(1) the work may, with the prior consent of the Architect, be carried
out as daywork and provided that the Contractor:
(a) gives at least 7 days' notice to the Architect before carrying out the work, or where
the work is required urgently, as much prior notice as practicable; and
(b) submits vouchers specifying the time spent daily carrying out the work, the
workmen's names, the materials and goods and the plant and equipment employed
to the Architect for verification within 14 days of the work being carried out,
the work shall be valued at prime cost comprising labour, materials, goods, plant and
equipment plus overheads and profit; and:
(c) priced at the daywork rates in the Contract Bills; or
(d) where there are no daywork rates in the Contract Bills, priced at:
(i)
the labour rates contained in the record of Average Daily Wages of Workers
Engaged in Government Building and Construction Projects published by the
Census and Statistics Department of the Government of the Hong Kong Special
Administrative Region current at the date when the work is carried out;
(ii)
the net cost of materials and goods plus the cost of packing, carriage and
delivery;
(iii) the cost of hiring plant and equipment specifically provided for the work
together with the cost of transportation, fuel, maintenance and insurance; and
(iv) the percentages for overheads and profit on the prime cost of the labour,
materials, goods, plant and equipment that are included in the Contract Bills
or, where no such percentages are included in the Contract Bills, at 15 percent.
(3)
Where the Valuation relates to the omission of work included in the Contract Bills:
(a) the rates for the work in the Contract Bills shall determine the Valuation of the work
omitted; and
(b) if in the Quantity Surveyor's opinion the Contractor has reasonably incurred expense
which has become wholly or partly unnecessary as a result of the omission of the
work, a fair adjustment shall be made to the Valuation in respect of that expense.
31
13
13.5
13.6
13.7
13.8
32
13
Items in any bills of quantities included in the sub-contract or supply contract; and
(c) under clause 13.2(b) to expend Provisional Sums included in the sub-contract or
supply contract;
shall be made in accordance with the Nominated Sub-Contract or Nominated Supply
Contract.
14
14.1
14.2
Contract Bills
14.3
33
15
Contract Sum
Adjustment of Contract Sum
(1) The Contract Sum stated in Article 2 shall only be adjusted in accordance with the
Contract and as soon as the amount of the adjustment is calculated in whole or in part,
the amount so calculated shall be taken into account in the next Interim Certificate
following the calculation.
(2) Subject to clause 14.3 the parties are deemed to have accepted any error whether
of arithmetic or not in the calculation of the Contract Sum stated in Article 2.
16
(2) Materials and goods delivered to or adjacent to the Site shall not be removed
without the consent of the Architect. If they have become the property of the Employer
the Contractor shall remain responsible for loss or damage to them except to the extent
that the loss or damage is due to an act or neglect of the Employer or any person for
whom the Employer is responsible.
(3) The Contractor shall indemnify the Employer against loss or damage to materials
and goods stored off-site that have become the property of the Employer, shall be
responsible for the cost of their storage, handling and insurance and shall not remove
them from where they are being stored except for use upon the Works.
17
17.1
17.2
(2) The Architect shall issue a Substantial Completion Certificate upon Substantial
Completion of each Section or Relevant Part except for the last one. Upon Substantial
Completion of the last Section or Relevant Part the Architect shall issue the Substantial
Completion Certificate for the Works and Substantial Completion of the whole of the
Works shall be deemed to have taken place on the date stated in that certificate.
34
17
17.3
Rectifying defects
(1) The Contractor shall rectify all defects, shrinkages or other faults which are identified
during the Defects Liability Period of the Works, a Section or a Relevant Part stated in
the Appendix, and are caused either by materials, goods or workmanship which are not
in accordance with the Contract, by natural causes or as a result of a Specified Peril
occurring during the construction period prior to Substantial Completion.
(2) The Architect shall list the defects to be rectified in schedules of defects which he
shall issue to the Contractor as Architect's instructions from time to time during the
Defects Liability Period. The final schedule of defects shall be issued not later than 14
days after the expiry of the Defects Liability Period.
(3) The Contractor shall rectify the defects specified in the schedules of defects to the
Architect's satisfaction within a reasonable time after receipt of those schedules.
(4) If the Contractor does not comply with the Architect's instruction to rectify the
defects listed in a schedule of defects within a reasonable time the provisions of clauses
4.3(3) and 4.3(4) shall apply.
(5) The Architect may instruct the Contractor not to rectify some or all of the defects
specified in the schedules of defects, in which case a reasonable reduction to the
Contract Sum shall be made for the defects not rectified.
17.4
(a) the Defects Liability Period for the Works has expired;
(b) the Contractor has satisfactorily completed all the uncompleted items of work on
the list issued with the Substantial Completion Certificate; and
(c) all defects required to be rectified under clause 17.3 have been satisfactorily rectified.
17.5
(2) Upon the completion of rectifying defects to the last Section or Relevant Part in
accordance with clause 17.4 the Architect shall issue a Defects Rectification Certificate
for the Works and the completion of rectifying defects for the whole of the Works shall
be deemed to have taken place on the date stated in the certificate.
35
17
17.6
17.7
18
18.1
18.2
Substantial Completion
Substantial Completion of the Relevant Part shall be deemed to have occurred on the
Relevant Date and the following shall take effect:
(a) the commencement of the Defects Liability Period for that Relevant Part and the
rectification of defects under clause 17;
(b) the exemption from liability for damage by a Specified Peril under clause 17.6; and
(c) the release of one-half of the Retention relating to that Relevant Part under clause
32.5.
18.3
36
18
18.4
18.5
19
19.1
Assignment
(1) Except where provided otherwise in clause 19.1, neither party shall, without the
written consent of the other, assign or transfer any of his rights or obligations under the
Contract.
(2) The Contractor must fulfil his organization, management, planning, supervision
and co-ordination obligations through the site management and supervisory team
referred to in clause 10 and he shall neither assign nor make arrangements for the
vicarious performance of those functions.
(3) The Employer may assign or transfer the whole or any part of the benefit of the
Contract after Substantial Completion of the Works, a Section or a Relevant Part without
the Contractor's consent. Any assignment shall be notified promptly to the Contractor.
(4) Subject to giving prior notice to the Employer, the Contractor may assign the whole
or any part of the benefit of the Contract for the purpose of obtaining financing for the
carrying out of the Works provided that the assignment does not adversely affect the
Contractor's fulfilment of his obligations under the Contract.
37
19
19.2
Sub-letting
The Contractor shall be permitted, unless prohibited by the Contract, to sub-let parts of
the Works provided that:
(a) he does not sub-let the whole of the Works or incrementally sub-let parts of the
Works to the same person to indirectly attain sub-letting of the whole, or substantially
the whole, of the Works and retains his management role as described in clause
19.1 (2) at all times;
(b) the terms of the agreement to sub-let are, so far as is reasonable, consistent with
the terms of the Contract;
(c) he submits a plan of his sub-contracting arrangement giving the names of his-key
sub-contractors with their scope of works and such other particulars as may be
required by the Architect;
(d) he does not sub-let any part of the Works to a sub-contractor against whom the
Architect has made an objection giving his reasons;
(e) he removes from the Works any sub-contractor he is instructed by the Architect to
remove; and
(f) the sub-letting of a part of the Works to a Domestic Sub-Contractor does not
relieve the Contractor from any liability or obligation under the Contract and he
remains responsible for carrying out and completing the Works in all respects in
accordance with the Contract and for the acts, defaults, omissions and neglect of
a Domestic Sub-Contractor as fully as if they were his own acts, defaults, omissions
or neglect.
20
38
21
21.1
21.2
(ii)
39
21
(a) a cross liability clause to the effect that the insurances shall cover the Employer,
the Contractor, his sub-contractors and their sub-contractors of all tiers as separate
insured, and
(b) a waiver of any right of subrogation which the insurers may have against any of the
insured.
(4) The third party liability insurances against injury or death to any person and injury
or damage to real or personal property under clause 21.2(1) shall each be effected with
the limit of indemnity stated in the Appendix for any one occurrence or series of
occurrences arising out of one event but unlimited in the aggregate amount for the
period of the insurance.
21.3
(2) The cover shall be in terms approved by the Architect but in any case cannot be
beyond the best terms currently available.
21.4
21.5
21.6
22
22.1
40
Policies to be produced
The party responsible for effecting the insurances under clause 21.2 shall provide
evidence of cover to the other party prior to the Commencement Date and shall produce
the policies of insurance and the premium receipts for inspection and approval by the
other party as soon as practicable afterwards.
Event of failure to insure
If either party defaults in effecting or in maintaining the insurance cover required by
clause 21, the other party may effect and maintain this insurance and the premium shall
be recoverable from the defaulting party as a debt.
No prejudice to Contractor's indemnity
The effecting and maintaining of insurances by either the Employer or the Contractor
under clause 21 is without prejudice to the Contractor's obligation to indemnify the
Employer under clause 20.
22
22.2
(g) loss or damage solely due to the total suspension of carrying out the Works where
the insured failed to take reasonable precautions to protect the property insured
and to avoid or reduce the amount of loss or damage;
(h) loss of any property by disappearance or by shortage where the loss is revealed
only by the making of an inventory or periodic stocktaking and is not traceable to
an identifiable event;
(i) loss or damage to materials, goods or work directly resulting from its own defect in
materials, goods or workmanship or fault, defect, error or omission in design, plan
or specification but not excluding resultant damage to any other materials, goods
or work which are lost or damaged as a consequence of those defective materials,
goods or work;
Q) loss or damage to property during the period between 14 days after Substantial
Completion and the date of issue of the Defects Rectification Certificate other than
loss or damage arising from a cause occurring prior to the commencement of that
period, or caused in the course of remedying defects or the testing and
commissioning of building services or other installations;
41
22
22.3
22.4
(a) a cross liability clause to the effect that the insurances shall cover the Employer,
the Contractor, his sub-contractors and their sub-contractors of all tiers and
suppliers as separate insured, and
(b) a waiver of any right of subrogation which the insurers may have against any of the
insured.
22.5
42
22
out
22.6
22.7
22A
(2) If the Contractor defaults in effecting or in maintaining the Contractors' All Risks
Insurance of the Works, the Employer may effect and maintain it himself and recover
the cost of the insurance premium from the Contractor in accordance with clause 40 or
as a debt.
Use of annual policy maintained by Contractor
22A.3 (1) If the Contractor maintains an annual policy of insurance which provides cover no
less than that required under clause 22A.1 , an endorsement attached to the annual
policy naming the Works, the Employer, the Contractor, his sub-contractors and their
respective sub-contractors of all tiers and suppliers shall be a discharge of the
Contractor's obligations under clause 22A.1.
43
22A
228
44
22C
Insurance of existing building and insurance of the Works by the Employer (Cont'd)
(2) If the Employer defaults in effecting or in maintaining the insurances under clauses
22C.1 and/or 22C.2, the Contractor may effect and maintain them himself and the cost
of the insurance premiums shall be added to the Contract Sum.
(3) The Contractor shall be given the right of entry and inspection to carry out a survey
and make an inventory of the existing building and its contents if the clause 22C.1
insurance is to be effected and maintained by the Contractor under clause 22C.3(2).
23
23.1
Possession of Site
(1) The Employer shall give possession of the Site to the Contractor on or before the
Date for Possession of the Site stated in the Appendix.
(2) Where the Contract provides for the Employer to give possession of the Site to the
Contractor in two or more parts on the dates stated in the Appendix, the Employer shall
give possession of the Site to the Contractor in parts on or before those dates.
23.2
23.3
(a) the postponement of the Date for Possession of the Site or a part of the Site;
(b) the postponement of the Commencement Date of the whole or a part of the Works;
or
(c) the postponement or suspension of the whole or a part of the Works.
24
24.1
(2) If a new Completion Date is fixed after the issue of the certificate referred to in
clause 24.1 (1 ), the fixing of the new Completion Date shall cancel that certificate and
the Architect shall, if appropriate, issue another certificate to correspond to the new
Completion Date.
45
24
24.2
(2) The Employer's notice under clause 24.2(1) shall not be given either before the
certificate under clause 24.1 (1) is issued or after the Final Certificate is issued.
(3) The rate per day of liquidated and ascertained damages for the Works or a Section
shall be as stated in the Appendix and adjusted in accordance with clause 18.4 in
regard to the completion of any Relevant Part.
(4) The Employer may recover the liquidated and ascertained damages from the
Contractor under clause 40 or as a debt.
24.3
25
25.1
Extension of time
Contractor's first notice of delay
(1) As soon as practicable but in any case within 28 days of the commencement of an
event likely to cause delay to the completion of the Works or a Section beyond the
Completion Date becoming apparent, the Contractor shall give notice (referred to in
Clause 25 as the 'first notice') to the Architect.
(2)
(a) state the likelihood and estimated length of the delay beyond the Completion Date;
(b) set out the material circumstances including the cause of the delay; and
(c) state if the Contractor considers that he is or may become entitled to an extension
of time due to the effects of an event listed in clause 25.1 (3) (referred to in clause
25 as a 'listed event') and if so identify which of the listed events he believes to be
the cause of the delay.
(3)
46
25
of work covered up or the testing of materials, goods or work and the consequential
making good where the cost of that opening up, testing and making good is required
by that clause to be added to the Contract Sum;
(h) an Architect's instruction under clause 13.1 requiring a Variation;
(i) an Architect's instruction under clause 13.2 resulting in an increase in the work to
be carried out of sufficient magnitude to cause delay, provided that the variance
was not apparent from the Contract Drawings;
the postponement of the Date for Possession of the Site or part of the Site;
(ii)
(iii) the postponement or suspension of the whole or a part of the Works, unless:
(k) compliance with clause 34.1 or with an Architect's instruction under clause 34.2
requiring the Contractor to permit the examination, excavation or removal by a
third party of an object of antiquity found on the Site;
(I) late instructions from the Architect, including those to expend a Prime Cost Sum
or a Provisional Sum, or the late issue of the drawings, details, descriptive schedules
or other similar documents referred to in clause 5.6 except to the extent that the
Contractor failed to comply with clause 5. 7(2);
47
25
(4)
(a) continuously use his best endeavours to prevent or mitigate delay to the progress
of the Works, however caused, and to prevent the completion of the Works being
delayed or further delayed beyond the Completion Date, provided that the words
'best endeavours' shall not be construed to mean that the Contractor is obliged to
spend additional money, without reimbursement under clause 26, to accelerate
the carrying out of the Works to recover delay that the Contractor did not cause;
and
48
25
(b) do all that may reasonably be required to the Architect's satisfaction to proceed
with the Works.
25.2
Where the listed event has a continuing effect the Contractor shall:
substantiation that the listed event is the cause of the delay; and
(ii)
interim particulars including details of the cause and effect and an estimate of
the length of the delay to the completion of the Works or a Section beyond the
Completion Date;
(b) make further submissions to the Architect at intervals not exceeding 28 days giving
further interim particulars and estimates of the length of the delay until the delay
ceases;
(c) within 14 days after the delay ceasing, submit to the Architect final particulars of
the cause, effect and length of the delay to the Works or a Section beyond the
Completion Date in sufficient detail to enable the Architect to make a decision
under clause 25.3(1).
25.3
49
25
(7) The Architect may fix a new Completion Date under clause 25 earlier or later than
that previously fixed, during the period of delay between the Completion Date and the
Date of Substantial Completion (if Substantial Completion takes place later than the
Completion Date) if it is fair and reasonable to do so having regard to any of the listed
events, whether by reviewing a previous decision, taking into account any further and
better particulars that may be submitted by the Contractor, or by taking into account
any extension of time granted under clause 25.3(6).
50
25
25.4
25.5
(2) After receiving the Architect's notification the Contractor may, at his own discretion
and with no entitlement to receive additional payment, take the measures that he
considers necessary to expedite the progress to complete the Works by the Completion
Date.
Nominated Sub-Contractors and Suppliers to be kept informed
25.6
(1) Where the first notice includes a reference to work carried out by a Nominated
Sub-Contractor or materials or goods supplied by a Nominated Supplier, the Contractor
shall give a copy of the first and second notices to the Nominated Sub-Contractor or
Nominated Supplier.
(2) The Architect shall notify each Nominated Sub-Contractor and Nominated Supplier
of any new Completion Date fixed under clause 25.3.
26
26.1
51
26
26.2
(2) Within 14 days of receiving the delay recovery proposals, the Architect shall notify
the Contractor in writing that either the delay recovery proposals are agreed, or disagreed,
or that he wishes to discuss and agree revised proposals with the Contractor.
26.3
{2) If the Architect and the Contractor cannot reach agreement on the Contractor's
delay recovery proposals within 14 days of the Architect's notice to discuss them under
clause 26.2{2), the Architect may, after receiving written directions from the Employer,
instruct the Contractor to carry out the measures in the absence of an agreement and
the Contractor shall do so in accordance with the Architect's instruction and:
{a) the Contractor shall prepare and submit to the Quantity Surveyor all the information
and documents relating to the cost of carrying out the measures that the Quantity
Surveyor may reasonably require; and
{b) the Quantity Surveyor shall ascertain the amount of additional payment to be made
to the Contractor for carrying out the measures, based on the extra cost incurred
by the Contractor with the addition of 15 percent for overheads and profit, within
a reasonable time after receiving the information and documents under clause
26.3{2){a).
26.4
52
26
26.5
(2) The Contractor shall submit to the Quantity Surveyor a statement of his costs with
full supporting details and the Quantity Surveyor shall ascertain the amount of additional
payment to be made as reimbursement to the Contractor.
27
27.1
(2)
the postponement of the Date for Possession of the Site or a part of the Site;
(ii)
(iii) the postponement or suspension of the whole or a part of the Works, unless:
53
27
(f) compliance with clause 34.1 or with an Architect's instruction under clause 34.2
requiring the Contractor to permit the examination, excavation or removal by a
third party of an object of antiquity found on the Site;
(g) late instructions from the Architect, including those to expend a Prime Cost Sum
or a Provisional Sum, or the late issue of the drawings, details, descriptive schedules
or other similar documents referred to in clause 5.6, except to the extent that the
Contractor failed to comply with clause 5. 7(2);
(h) delay or disruption caused by a sub-contractor or supplier nominated by the
Architect under clause 29.2(6) despite the Contractor's valid objection, subject to
clause 29.2(7);
(i) delay or disruption caused by a Specialist Contractor;
0) the failure of the Employer to supply or supply on time materials, goods, plant or
equipment that he agreed to provide for the Works;
(k) the failure of the Employer to give possession of the Site or, under clause 23.1 (2),
a part of the Site on the Date for Possession of the Site or the part of the Site
stated in the Appendix, or subsequently the Employer depriving the Contractor of
the whole or a part of the Site; and
(I) any other delay or disruption for which the Employer is responsible including an
act of prevention or a breach of contract.
27.2
(a) the direct loss and/or expense was incurred because the progress of the Works
was delayed or disrupted by the qualifying event set out in the Contractor's claim;
(b) the Contractor has not been and will not be reimbursed by a payment under any
other provisions of the Contract; and
(c) the Contractor has complied with clause 28.
(2) The ascertainment of the Contractor's claim shall be made as soon as practicable
but in any case within 60 days of receipt of the build-up of the claim and the particulars
submitted under clause 28.2(2)(a) to (d) or clause 28.2(4)(c), as the case may be.
54
27
27.3
27.4
28
28.1
55
28
28.2
(ii)
(ii)
56
28
28.3
29
29.1
.'
(a) an Architect's instruction under clause 13.1 requiring a Variation for additional or
substituted work;
(b) an Architect's instruction under clause 13.2 to expend a Provisional Sum; or
(c) an agreement between the Contractor and the Architect on behalf of the Employer,
the Architect shall issue an instruction to nominate:
(d) a sub-contractor to carry out the work provided for by the Prime Cost Sum and the
Contractor shall enter into a sub-contract with that sub-contractor, who shall then
become a Nominated Sub-Contractor, in accordance with the terms stipulated in
the instruction; or
(e) a supplier to supply the materials or goods provided for by the Prime Cost Sum
and the Contractor shall enter into a supply contract with that supplier, who shall
then become a Nominated Supplier, in accordance with the terms stipulated in the
instruction.
(2) The term 'Nominated Supplier' shall not apply to a supplier of materials or goods
which are specified in the Contract Bills to be incorporated into the Works unless the
materials or goods are the subject of a Prime Cost Sum even if that supplier is the sole
supplier of those materials or goods.
29.2
57
29
(ii)
instruct the Contractor to carry out the work himself or supply the materials or
goods himself through a supplier approved by the Architect in which case the
instruction shall have the same effect as an instruction to expend a Provisional
Sum under clause 13.2; or
(b) refuse to withdraw the nomination instruction and notify the Contractor accordingly.
(6) Where the Architect, notwithstanding his acceptance of the validity of the
Contractor's objection, either refuses to withdraw the sub-contractor's or supplier's
name from the tender list and subsequently nominates that sub-contractor or supplier,
or refuses to withdraw the nomination instruction, the Contractor shall enter into a subcontract with that sub-contractor or a supply contract with that supplier.
58
29
29.3
29.4
29.5
.'
29.6
59
29
29.7
29.8
29
29.9
61
29
(a) the Limit of Retention stated in the Appendix shall be reduced by the amount of
retention in respect of the sub-contract or supply contract; and
(b) the Contractor shall be discharged from any further liability for rectifying defects or
other faults in the sub-contract works or the goods during the Defects Liability
Period except for any defects not apparent at the time that the final payment was
made.
(4) Notwithstanding the final payment to a Nominated Sub-Contractor or Nominated
Supplier for the sub-contract works or the supply of goods, the Contractor shall remain
responsible for loss or damage to the whole of the Works including those sub-contract
works and the goods supplied and either clause 22A, 228 or 22C, whichever is
applicable, shall remain in full force and effect.
Re-nomination
29.13 (1) If the employment of a Nominated Sub-Contractor is determined or a supply contract
is terminated for any reason, the Architect, as soon as practicable, shall nominate a
replacement sub-contractor or supplier to complete the work sub-contracted to the
original Nominated Sub-Contractor or to supply the materials and goods, or the
equivalent of the materials or goods, that were to have been supplied by the original
Nominated Supplier, and the Contractor shall immediately enter into a sub-contract or
supply contract with the replacement sub-contractor or supplier.
62
29
'
'
(4) The provisions of clauses 29.13(1 ), 29.13(2) and 29.13(3) shall also apply in the
event of the determination of the employment of a replacement sub-contractor or the
termination of a supply contract with a replacement supplier.
(5) The Contractor shall have the same right of reasonable objection to the nomination
of a replacement Nominated Sub-Contractor or a replacement Nominated Supplier as
he had under clause 29.2 to the nomination of the original Nominated Sub-Contractor
or Nominated Supplier, and provided that the Contractor registers his objection giving
his reasons within 14 days of the nomination of a replacement Nominated Sub-Contractor
or replacement Nominated Supplier, the provisions of clause 29.2, where appropriate,
shall apply.
Architect's consent
29.14 The Contractor shall not determine the employment of a Nominated Sub-Contractor or
terminate a supply contract with a Nominated Supplier without the Architect's consent.
Employer not liable to a Nominated Sub-Contractor or Nominated Supplier
29.15 Neither the existence nor the exercise of the Employer's powers under clause 29 nor
anything else contained in these Conditions shall make him liable to a Nominated SubContractor or Nominated Supplier.
30
30.1
30.2
63
30
30.3
31
32
32.1
(2) The Interim Certificate shall state the amount due to the Contractor from the
Employer and the Employer shall pay that amount to the Contractor, less any monies
deductible by the Employer under clause 32.1 (6), within the period for payment of
certificates stated in the Appendix.
(3) After the issue of the Substantial Completion Certificate for the whole of the Works,
Interim Certificates sh&ll only be issued when further amounts are, in the Quantity
Surveyor's opinion, due to the Contractor.
(4) The Contractor shall submit to the Quantity Surveyor, at least 14 days before the
date on which an Interim Certificate is due to be issued, a statement setting out the
Contractor's estimate of the gross valuation of the work in progress including:
64
32
32.2
(a) the value of the permanent work properly carried out including any additional work
or obligation instructed as a Variation to the extent that this additional work or
obligation has been completed or fulfilled in whole or in part;
(b) the proportion of the value of temporary works properly carried out where their
value is included as a separate sum in the Contract Bills;
(c) the proportion of the value of a preliminary item properly provided or carried out by
the Contractor where its value is included as a separate sum in the Contract Bills;
65
32
(ii)
(iii) they are adequately protected against weather, other damage or theft;
(e) the value of materials or goods to be incorporated into the permanent Works before
they are delivered to or adjacent to the Site and to be included in an Interim
Certificate in accordance with clause 32.3;
(f) the amounts payable for work carried out by Nominated Sub-Contractors in
accordance with the sub-contracts;
(g) the amount payable in respect of a Contractor's tender accepted under clause
29.4 for work provided for by a Prime Cost Sum;
(h) the amounts payable for materials or goods supplied by Nominated Suppliers in
accordance with the supply contracts;
(i) the appropriate proportion of the sums included as separate items in the Contract
Bills for:
(i)
(ii)
(ii)
(iii)
(k) the amount ascertained as additional payment for direct loss and/or expense under
clause 27.2;
(I) the amount payable for reimbursement for increases in the costs of labour and/or
materials under clause 38 if applicable; and
(m) any other amount which is required by the Contract to be added to the Contract
Sum.
66
32
(ii)
32.3
32.4
67
32
32.5
Retention Rules
(1) The Retention shall be held upon trust by the Employer for the Contractor and for
any Nominated Sub-Contractor or Nominated Supplier (without obligation to invest)
subject to the rights of the Employer to have recourse to it for payment of any amount
which he is entitled to under the Contract or at law or to deduct from it any sum owed
to him by the Contractor, provided that the Employer gives notice to the Contractor in
accordance with clause 32.1 (6).
(2) The Architect shall issue an Interim Certificate for the payment of one-half of the
Retention held in respect of the whole of the Works, a Section or a Relevant Part, as the
case may be, 14 days after Substantial Completion of the whole of the Works, that
Section or Relevant Part.
(3) The amount of the Retention held in respect of a Section or Relevant Part shall be
deemed to bear the same relationship to the Retention held for the whole of the Works
as the estimated amount contained in the Contract Sum for that Section or Relevant
Part bears to the Contract Sum.
(4) The Architect shall issue an Interim Certificate for payment of all remaining Retention
within 14 days after the issue of the Defects Rectification Certificate for the whole of the
Works under clause 17.4 or 17 .5.
32.6
(2) The Quantity Surveyor shall send draft copies of the final account to the Contractor
and the relevant extracts to each Nominated Sub-Contractor or Nominated Supplier
from time to time as the preparation of the final account progresses.
(3) The Contractor shall submit to the Quantity Surveyor all the documents that are, in
the opinion of the Quantity Surveyor, reasonably necessary for the adjustment of the
Contract Sum, including those relating to the accounts of Nominated.Sub-Contractors
and Nominated Suppliers, not later than 6 months after Substantial Completion of the
whole of the Works or 3 months before the end of the period for the completion of the
final account, whichever is earlier.
(4) The submission of the documents referred to in clause 32.6(3) shall not be a
condition precedent to the Quantity Surveyor preparing the final account, and, if the
Contractor fails to comply with that clause, the Quantity Surveyor shall prepare the final
account based on the information that is available to him.
68
32
32.7
' '
(a) all Prime Cost Sums for work to be carried out by Nominated Sub-Contractors and
any Contractor's profit and attendance priced in the Contract Bills as separate
items on these sums included in the Contract Bills;
(b) all Prime Cost Sums for materials or goods to be supplied by Nominated Suppliers
and any Contractor's profit priced in the Contract Bills as separate items on these
sums included in the Contract Bills;
(c) all Provisional Sums and the value of all work for which Provisional Quantities or
Provisional Items are included in the Contract Bills;
(d) the total of all Valuations under clause 13.4 which result in a reduction in the Contract
Sum;
(e) the amounts deductible in lieu of:
(i)
(ii)
69
32
(ii)
if the Prime Cost Sum is included in the Contract Bills, the sum payable for
attendance shall be the price entered in the Contract Bills as a separate item
whether or not the Nominated Sub-Contract sum is greater or less than the
Prime Cost Sum; or
(ii)
if the Prime Cost Sum arose either from an instruction for the expenditure of a
Provisional Sum, an instruction requiring a Variation or by agreement between
the Architect and Contractor, the sum payable shall be based upon appropriate
rates in the Contract Bills, or shall be a reasonable sum;
(f) the total of all Valuations under clause 13.4 which results in an increase in the
Contract Sum;
(g) the total of the Valuation of work carried out by and any amount paid by the
Contractor in accordance with the instructions of the Architect as to the expenditure
of a Provisional Sum and of all work for which Provisional Quantities and Provisional
Items are included in the Contract Bills;
(h) the payments made and costs incurred for:
(i)
(ii)
opening up and testing materials, goods or work under clause 8.2; and
(iii) effecting and maintaining insurances resulting from the Employer's failure to
insure under clauses 22B.2(2) or 22C.3(2);
(i) the amount ascertained as additional payment for direct loss and/or expense under
clause 27.2;
0) the amount payable for reimbursement for increases in the costs of labour and/or
materials under clause 38; if applicable; and
70
32
32.8
32.9
71
32
72
33
33.1
Surety bond
Contractor to obtain guarantee from insurance company or bank
(1) The Contractor shall obtain the guarantee of an insurance company or bank,
approved by the Architect to be jointly and severally bound with the Contractor to the
Employer in the sum stated in the Appendix for the due performance of the Contract
under the terms of a surety bond.
(2} The Contractor shall deliver the bond duly executed by the insurance company or
bank within 28 days of the acceptance of the Contractor's tender.
(3) The surety bond shall be in the form set out in the Contract Bills or Specification or,
if not set out in either of those documents, in the form set out in Schedule 1 of the
Conditions, and the cost of obtaining the bond shall be borne by the Contractor.
33.2
33.3
34
34.1
(a) use his best endeavours not to disturb the fossil, antiquity or object and shall
cease work if and insofar as the continuance of work would endanger it or prevent
or impede its excavation or removal;
(b) take all measures which may be necessary to preserve the fossil, antiquity or object
in the exact position and condition in which it was found; and
(c) immediately inform the Architect of the discovery and precise location of the fossil,
antiquity or object.
34.2
35
Determination by Employer
35.1
Default by Contractor
(1) The Architect may give a notice of default to the Contractor before Substantial
Completion of the whole of the Works if the Contractor defaults by:
(a) completely or substantially suspending the carrying out of the Works without good
cause;
(b) not proceeding regularly and diligently with the Works;
(c) not complying with an instruction from the Architect under clause 8.3 for the
replacement, repair or reconstruction of materials, goods or work not in accordance
with the Contract resulting in the Works being materially affected;
(d) not complying with clause 19.1; or
(e) not complying with clause 19.2 by sub-letting the whole or substantially the whole
of the Works to the same person.
(2) The notice of default shall specify the default and state that a notice of determination
may be served if the default continues for a further 14 days after receipt of the notice of
default
(3) The Employer may give a notice of determination of the employment of the
Contractor if:
(a) the Contractor continues the default for 14 days after receipt of the notice given
under clause 35.1 (1);
(b) the Architect certifies this during the continuation of the default; and
(c) the notice of determination is given to the Contractor within 14 days of the issue of
the Architect's certificate under clause 35.1 (3)(b).
(4) The determination of the employment of the Contractor under clause 35.1 (3) shall
take effect on the date of receipt of the notice of determination.
(5) Where the Contractor ends the default, or the Employer does not give a notice of
determination, the Employer may still determine the employment of the Contractor if:
(a) the Contractor continues the default or resumes it at any time;
(b) the Architect certifies this during the continuation or resumption of the default; and
(c) the notice of determination is given to the Contractor within a reasonable time
after the issue of the Architect's certificate under clause 35.1 (5)(b).
(6) The determination of the employment of the Contractor under clause 35.1 (5) shall
take effect on the date of receipt of the notice of determination.
74
35
35.2
Insolvency of Contractor
(1) The Employer may give a notice of determination of the employment of the
Contractor if the Contractor:
(a) becomes bankrupt;
(b) makes a composition or arrangement with his creditors;
(c) has a petition for compulsory winding-up presented or made against him;
(d) enters into compulsory or voluntary liquidation except for the purpose of
reconstruction; or
(e) has a provisional liquidator or receiver appointed.
(2) The determination shall take effect on the date of receipt of the notice unless the
Employer, the Contractor and his trustee in bankruptcy, liquidator or receiver, as the
case may be, agree in writing to the continuation of the Contractor's employment.
35.3
35.4
(i)
the Contractor shall allow access to the Site for this purpose; and
(ii)
the Employer may recover the reasonable cost of providing site security in
accordance with clause 40 or as a debt.
Consequences of determination
(1) In addition to their other obligations under the Contract, the parties shall act in
accordance with clause 35.4 upon determination by the Employer under clause 35.
(2) The provisions of clauses 20 and 21 shall remain in effect until the Contractor has
left the Site notwithstanding determination of the employment of the Contractor.
(3) The Contractor shall return possession of the Site to the Employer immediately
upon determination, notwithstanding that he may dispute the validity of the determination.
In the event of a breach of contract by the Employer in determining the employment of
the Contractor, the only redress the Contractor shall have against the Employer is a
claim in damages.
75
35
(4) If the Architect so instructs, the Contractor shall immediately remove his materials,
goods, temporary buildings, plant and equipment with care so as to prevent injury,
death or damage to persons or property and ensure that other owners remove theirs
with similar care except to the extent that:
(a) they have become the property of the Employer; or
(b) the Architect instructs that some or all of them shall be left on the Site for use in
completing the Works.
(5) If the Contractor does not comply with clause 35.4(4) within a reasonable time, the
Employer may, without being responsible for any loss or damage, remove and sell the
Contractors' property and hold the proceeds, less all expenses incurred, to the credit
of the Contractor.
(6) The Employer may employ and pay other persons to complete the Works and to
rectify defects of the kind referred to in clause 17.3 and they shall be permitted by the
Contractor to enter the Site and use the materials, goods, temporary buildings, plant
and equipment left on the Site under clause 35.4(4).
(7) If instructed to do so by the Architect, the Contractor shall assign to the Employer,
so far as he is legally able to do so, without payment:
(a) all suppliers', manufacturers' and sub-contractors' warranties, guarantees or other
ancillary agreements for materials, goods and work relating to the Works, insofar
as they are required by the Contract, within 28 days of the date of determination;
and
(b) the remaining assignable benefit of any agreements for the supply of materials or
goods, carrying out of work and the hiring of plant and equipment within 14 days
of the date of determination.
(8) The Employer shall pay for materials, goods, work, plant and equipment, supplied,
carried out or hired after determination at the rates stated in the relevant agreements
between the Contractor and his sub-contractors or suppliers.
(9) The Employer may pay a sub-contractor or supplier for materials or goods delivered
to the Site and work carried out if the materials, goods or work have not already been
paid for by the Contractor. If the Contractor has been paid for the materials, goods or
work but has not paid the sub-contractor or supplier, the Employer may recover the
sum paid to the Contractor under clause 40 or as a debt.
(1 0) The Employer shall not be required to make any further payment to the Contractor
until the final settlement is made under clause 35.6, unless the provisions of clause
35.7 apply.
76
35
35.5
35.6
35.7
77
35
(a) the estimated value of the work in progress properly carried out up to the date of
determination calculated in accordance with clause 32.2(2);
(b) the amount of any deduction authorised by the Contract, the amount of any damage
including any liquidated and ascertained damages under clause 24 that would
have been due up to the date of determination and direct loss and/or expense
caused to the Employer by the determination; and
(c) the payments made or otherwise discharged in favour of the Contractor.
(6) The Architect shall certify for the purpose of the final settlement, the amounts set
out in the final account and the difference between the value of the work in progress
represented by clause 35. 7(5)(a) and the costs incurred by the Employer represented
by clause 35. 7(5)(b) and (c) shall be expressed as a debt due to the Contractor from the
Employer or to the Employer from the Contractor, as the case may be.
35.8
36
Determination by Contractor
36.1
Default by Employer
(1) The Contractor may give a notice of default to the Employer if the Employer defaults
by:
(a) not paying an amount certified due to the Contractor less any deductions authorised
by the Contract within the period for payment of certificates stated in the Appendix;
(b) interfering with or obstructing the issue of a certificate to the detriment of the
Contractor;
(c) not complying with clause 19.1 (1 );
(d) postponing the date for commencement of the whole of the Works or substantially
the whole of the Works for a period of 120 days or more due to an Architect's
instruction under clause 23.3; or
(e) causing the carrying out of the whole of the Works or substantially the whole of the
Works to be suspended for a continuous period of 120 days or more due to an
Architect's instruction under clause 23.3 unless notice of the suspension is given
in the Contract or the suspension was caused by a breach of contract or other
default of the Contractor or any person for whom the Contractor is responsible.
78
36
36.2
Insolvency of Employer
(1) The Contractor may give a notice of determination of his own employment if the
Employer:
(a) becomes bankrupt;
(b) makes a composition or arrangement with his creditors;
(c) has a petition for compulsory winding-up presented or made against him;
(d) enters into compulsory or voluntary liquidation except for the purpose of
reconstruction; or
(e) has a provisional liquidator or receiver appointed.
(2) The determination shall take effect on the date of receipt of the notice of
determination.
(3) The obligation of the Contractor to carry out and to complete the Works shall be
suspended immediately after the occurrence of any of the events set out in clause
36.2 and before any notice of determination of his own employment takes effect
79
36
36.3
80
36
36.4
36.5
36.6
81
36
36.7
36.8
37
37.1
37.2
Site security
(1) The Employer may provide site security if:
(a) either the Employer or the Contractor has served a notice of determination under
clause 37.1(1); and
(b) the Architect is not satisfied that adequate site security is being provided.
(2)
37.3
82
The Contractor shall allow access to the Site for the purpose of this clause.
Consequences of determination
(1) In addition to their other obligations under the Contract the parties shall act in
accordance with clause 37.3 upon determination of the employment of the Contractor
by either the Employer or the Contractor under clause 37.1 if the employment has not
been reinstated.
37
(2) The provisions of clauses 20 and 21 shall remain in effect until the Contractor has
left the Site notwithstanding determination of the employment of the Contractor.
(3) The Contractor shall immediately remove his materials, goods, temporary buildings,
plant and equipment with care so as to prevent injury, death or damage to persons or
property and ensure that other owners remove theirs with similar care except to the
extent that:
(a) they have become the property of the Employer, or
(b) the Architect instructs that some or all of them are to be left on the Site for use in
completing the Works.
(4) The Contractor shall return possession of the Site to the Employer immediately
upon completing the removal of all items referred to in clause 37.3(3) and in any case
not later than 28 days after determination notwithstanding that he may dispute the
validity of the determination. In the event of a breach of contract by the Employer in
determining the employment of the Contract the only redress the Contractor shall have
against the Employer is a claim in damages.
(5) If instructed to do so by the Architect, the Contractor shall assign to the Employer,
so far as he is legally able to do so, without payment:
(a) ail suppliers', manufacturers' and sub-contractors' warranties, guarantees or other
ancillary agreements for materials, goods and work relating to the Works, insofar
as they are required by the Contract, within 28 days of the date of determination;
and
(b) the remaining assignable benefit of any agreements for the supply of materials or
goods, carrying out of work and the hiring of plant and equipment within 14 days
of the date of determination.
(6) The Employer shall pay for materials, goods, work, plant and equipment supplied,
carried out or hired after determination at the rates stated in any relevant agreement.
(7)
(a) one-half of the Retention within 28 days of the date of determination, subject to
any accrued right of deduction which he had before the determination; and
(b) the remainder of the Retention as part of and in accordance with the final settlement
under clause 37.5.
37.4
83
37
(a) the estimated value of work in progress properly carried out up to the date of
determination calculated in accordance with clause 32.2(2);
(b) the estimated value of any work carried out for the protection of the Site and the
Works after determination;
(c) any amount, not included in the amount calculated under clause 37.4(4)(a), for the
cost of materials and goods delivered to or adjacent to the Site properly ordered
for the Works which the Contractor has paid for, or is legally bound to pay for, and
has or will transfer the property in to the Employer; -and
(d) the reasonable cost of removal of materials and goods not to be sold to the Employer
and temporary buildings, plant and equipment not to be left on the Site.
37.5
(a) the amount of the final account being the total of the amounts under clause
37.4(4); and
(b) the payments made or otherwise discharged in favour of the Contractor.
(2) The difference between the two amounts in clause 37 .5(1) shall be expressed in
the certificate as a debt due to the Contractor from the Employer, or to the Employer
from the Contractor, as the case may be, and shall be payable within 28 days after the
Architect's certificate.
37.6
38
38.1
84
38
38.2
39
Fluctuations (Cant' d)
Adjustment for fluctuations occurring after the Completion Date
If the Contractor fails to complete the Works by the Completion Date and the Architect
has issued a certificate to that effect under clause 24.1, the adjustments for fluctuations
occurring after the Completion Date shall be calculated based on the cost of labour
and materials current at the Completion Date.
Notices, certificates and other communications
Submission of notices, certificates and other communications
(1) All notices, certificates and other communications under the Contract shall be
submitted to the Employer, the Architect or the Contractor on the Site or sent to the
address stated in the Articles of Agreement or such other address in Hong Kong as
may be advised.
(2) Except for notices, certificates or other communications required to be sent by
special delivery, a notice, certificate or other communication shall be given by hand,
sent by post or, if both parties agree, sent by facsimile or electronic mail.
(3) Any notice, certificate or other communication sent by prepaid post shall be deemed
to be received two clear days, excluding general holidays, after posting.
40
41
Settlement of disputes
41.1
85
41
41.2
(2) The Designated Representatives shall meet within 7 days of receipt of a notice
from the Architect requesting them to resolve the dispute.
41.3
Reference to mediation
(1) If the dispute is not resolved by the Designated Representatives within 28 days of
the dispute being referred to them by the Architect under clause 41 .2, either party may
give a notice to the other party, by special delivery, to refer the dispute to mediation
and the person to act as the mediator shall be agreed between the parties.
(2) If the parties fail to agree on the person to act as the mediator within 21 days after
either party has given to the other a written request to do so, the mediator shall, on the
written request of either party, be appointed by the President or Vice-President for the
time being of The Hong Kong Institute of Architects co-jointly with the President or
Vice-President for the time being of the Hong Kong Institute of Surveyors.
(3) The mediation shall, unless otherwise agreed by the parties, be conducted in
accordance with and subject to the Hong Kong International Arbitration Centre Mediation
Rules except those provisions in the Rules relating to the appointment of the mediator.
(4) A dispute under Article 5 shall be immediately referred to arbitration without first
being referred to mediation.
41.4
Reference to arbitration
(1) If the dispute is not settled by mediation within 28 days of the commencement of
the mediation, either party may give a notice to the other party, by special delivery, to
refer the dispute to arbitration and the person to act as the arbitrator shall be agreed
between the parties.
(2) If the parties fail to agree on the person to act as the arbitrator within 21 days after
either party has given to the other a written request to do so, the arbitrator shall, on the
written request of either party, be appointed by the President or Vice-President for the
time being of The Hong Kong Institute of Architects co-jointly with the President or
Vice-President for the time being of the Hong Kong Institute of Surveyors.
(3) The Presidents or Vice-Presidents referred to in clause 41.4(2), if in agreement to
do so, may, at their discretion, request the Hong Kong International Arbitration Centre
to appoint the arbitrator, by a joint letter to the Chairman of that organization.
(4) If the Presidents or Vice-Presidents referred to in clause 41.4(2) fail to appoint the
arbitrator within 60 days after receiving the written request to do so under clause
41.4(2) then the arbitrator shall on the written request of either party be appointed by
the Hong Kong international Arbitration Centre.
86
41
(5) The arbitration shall be a domestic arbitration conducted in accordance with the
Arbitration Ordinance (Chapter 341, Laws of Hong Kong) and, unless otherwise agreed
by the parties, with the Domestic Arbitration Rules of the Hong Kong International
Arbitration Centre except those provisions in the Rules relating to the appointment of
the arbitrator.
41.5
Timing of arbitration
(1) The arbitrator shall have jurisdiction to hear the parties and commence the arbitration
of a dispute arising out of, under or in connection with the Contract at any time on a
question of whether:
(a) an Article 5 objection will be upheld;
(b) the Architect is empowered by the Conditions to issue an instruction;
(c) a certificate has been improperly withheld or was not issued in accordance with
the Conditions;
(d) the assessment of the Employer's loss of value under clause 7(2) is reasonable;
(e) the Contractor's objection to a Variation referred to in clause 13.1 (1 )(a) is reasonable;
and
(f) the Contractor's consent to the Employer taking possession of a Relevant Part
under clause 18.1 is unreasonably withheld,
41.6
Arbitrator's powers
The arbitrator's powers include:
(a) rectifying the Contract to accurately reflect the true agreement made by the parties;
(b) directing measurements or Valuations to determine the rights of the parties;
(c) assessing and awarding any sum which ought to have been the subject of or
included in a certificate; and
(d) opening up, reviewing and revising, without limitation, the giving, submitting or
issuing of any agreement, approval, assessment, authorization, certificate,
confirmation, consent, decision, delegation, direction, dissent, determination,
endorsement, instruction, notice, notification, opinion, request, requirement,
statement, termination or Valuation.
87
41
41.7
41.8
(2) The Contractor's compliance with clause 41.8(1) is without prejudice to any other
rights and remedies that he may possess.
88
Appendix
Clause
Clause
3.1
24.2
32.1
32.1
17.3
21.2
HK$
21.2
32.4
Retention Percentage
(if not stated, 10 per cent)
HK$
Umit of Retention
22.1
Percentage to cover
22.2
32.4
HK$
plus the Retention held in
respect of Nominated Sub-Contractors
and Nominated Suppliers
professional fees
Period for completion of the
32.6
final account
23.1
Commencement Date
23.2
33.1
HK$ __________________
Completion Date
23.2
Fluctuations
(The Contract Sum wf!l be
adjusted for fluctuations only if
it is expressly stated to be so
adjusted in the space below)
38
* Delete as applicable
89
SCHEDULE 1
FORM OF SURETY BONO
TO BE GIVEN BY THE CONTRACTOR TO THE EMPLOYER
Sealed with our respective seals/Signed and sealed respectively* (Note 3) and dated this
........................ day of ................................. 20 .............. .
.....................................................................................................................................................
90
('the Contract') the Contractor has agreed to develop the Architect's design to the extent
specified in the Contract, construct, complete and maintain the Works (as therein defined)
until the issue of the Defects Rectification Certificate and to perform the Contract in conformance
with the provisions thereof.
and whereas pursuant to the terms of the Contract, the Contractor has agreed to obtain the
guarantee of a surety to be bound unto the Employer in the sum of Hong Kong Dollars ........ .
and whereas at the request of and for the account of the Contractor, the Surety has agreed to
guarantee the Employer the due performance by the Contractor of its obligations under the
Contract.
The words and expressions in this Bond shall have the same meaning as in the Contract.
2.
The Contractor shall duly perform and observe all the terms, provisions, conditions,
obligations, stipulations and specification of the Contract acconding to the true purport intent
and meaning thereof and to the reasonable satisfaction of the Architect appointed by the
Employer in respect of the Works or if on default by the Contractor the Surety shall satisfy and
discharge the damages sustained by the Employer thereby as certified by the said Architect,
up to the amount of the above written Bond then his obligation shall be null and void but
otherwise his obligation shall be and remain in full force and effect.
3.
No alterations in terms of the Contract made by agreement between the Employer and
the Contractor or in the extent or nature of the development of the Architect's design to the
extent specified in the Contract, construction, completion and maintenance of the Works and
no allowance or extension of time given or to be given by the Employer under the Contract nor
any indulgence, forbearance, forgiveness, payment or concession to the Contractor in or in
respect of any matter or thing concerning the Contract on the part of the Employer or any
failure of supervision to prevent any fault by the Contractor shall in any way release the Surety
from any liability under the above written Bond.
4.
This Bond shall be binding upon the Contractor and the Surety and their respective
successors and assigns jointly and severally (provided that the Contractor and Surety may not
assign their respective rights and liabilities hereunder without the prior written consent of the
Employer) and shall inure to the benefits of the Employer and its successors and assigns.
5.
This Bond shall remain valid for receipt of claims as aforesaid until the date of issue of
the Defects Liability Certificate pursuant to the Conditions of the Contract and any release of
the Surety from the Bond shall be expressly subject to any claims made before this date.
6.
This Bond shall be governed and construed in accordance with the laws of the Hong
Kong Special Administrative Region and the Surety hereby agrees to the non-exclusive
jurisdiction of the Courts of the Hong Kong Special Administrative Region.
91
(Note 5)
)
)
)
(Signature of witness)
)
)
)
)
)
(Name and occupation of witness)
OR
THE COMMON SEAL of the Contractor
)
)
)
(Note 6)
)
)
(Signature of witness)
)
)
)
)
)
)
OR
SIGNED, SEALED AND DELIVERED for
)
)
)
)
)
)
................................................................by
in the presence of :-
)
)
)
)
)
)
(Signature of witness)
)
)
)
)
)
92
(Note 7)
(Note 6)
)
)
(Signature of witness)
)
)
)
OR
SIGNED, SEALED AND DELIVERED for
(Note 7)
)
)
)
)
)
)
)
by ...............................................................
)
)
in the presence of :-
(Signature of witness)
)
)
)
)
)
)
)
)
(1)
(2)
Delete content in [
(3)
* Delete as appropriate.
(5)
For use in the case of a sole proprietor or where all partners of a firm execute.
(6)
For use in the case of a limited company executing under its common seal.
(7)
For use in the case of a firm or a limited company executing through an attorney.
93
SCHEDULE 2
FORM OF WARRANTY TO BE GIVEN BY
THE NOMINATED SUB-CONTRACTOR TO
THE EMPLOYER IN CONSIDERATION OF NOMINATION
('the Contractor') under the terms of the Contract between the Employer and the Contractor
dated .............................................................................................. or the letter of acceptance
dated .................................................................................. of the Contractor's tender dated
............................................................................................................................................*and
In respect of our Tender for ........................................................................................................
{'the Sub-Contract Works') which are intended to form part of the Main Contract Works under
a Nominated Sub-Contract ('the Sub-Contract').
We ...............................................................................................................................................
('the Nominated Sub-Contractor') warrant that in consideration of your instructing the Architect
to nominate us as the Nominated Sub-Contractor for the Sub-Contract Works:(a)
We will commence and complete the Sub-Contract Works in accordance with the SubContract.
* delete as appropriate
94
(b)
We will indemnify the Employer against all extra costs that may be incurred by nonperformance of the Sub-Contract Works, by late completion of the Sub-Contract Works
or by any breach of these warranties.
(c)
We have exercised and will exercise all reasonable skill and care in :{i)
the design of the Sub-Contract Works insofar as the Sub-Contract Works have
been or will be designed by us; and
{ii)
the selection of materials and goods for the Sub-Contract Works insofar as such
materials and goods have been or will be selected by us.
{d)
We will comply with and satisfy any performance specification or requirements insofar
as such performance specification or requirements are included or referred to in the
Tender Documents and/or our Tender as part of the description of the Sub-Contract
Works.
{e)
We will supply the Architect and or Contractor with such information as either may
reasonably require and at such times that the Contractor shall not be delayed in completing
the Main Contract Works by the Completion Date by our failure to supply such information
or by delay on our part, provided always that no liability shall arise in respect of such
delay on our part until we have accepted the Contractor's order in respect of the SubContract Works.
{f)
Nothing in our Tender shall operate to exclude or limit our liabil!ty for breach of the
warranties set out herein.
(g)
We will obtain a surety bond in the form set out in Schedule 1 of the Sub-Contract with
the requisite changes in wording to reflect that the bond is to be given by the Nominated
Sub-Contractor to the Employer instead of to the Contractor. This bond will be duly
executed under seal by an approved insurance company or bank, acknowledging that
the insurance company or the bank is jointly and severally bound with us to the Employer
in the sum of 10% of the Sub-Contract Sum {rounded up the nearest thousand dollars)
against breach of the warranties hereof.
The words and expressions used in this Deed of Warranty shall have the same meaning as in
the Contract and the Sub-Contract.
95
)
)
)
)
)
(Signature of witness)
(Note 1)
)
)
)
)
OR
THE COMMON SEAL of the Sub-Contractor
(Note 2)
)
)
)
(Signature of witness)
)
)
)
)
OR
SIGNED, SEALED AND DELIVERED for
(Note 3)
)
attorney of the Sub-Contractor
)
)
)
................................................................by
)
)
in the presence of :-
)
)
)
)
(Signature of witness)
Notes (1) For use in the case of a sole proprietor or where all partners of a firm execute.
(2) For use in the case of a limited company executing under its common seal.
(3)
96
For use in the case of a firm or a limited company executing through an attorney.
SCHEDULE 3
FORM OF WARRANTY TO BE GIVEN BY
THE NOMINATED SUPPLIER TO
THE EMPLOYER IN CONSIDERATION OF NOMINATION
('the Contractor') under the terms of the Contract between the Employer and the Contractor
dated .............................................................................................. or the letter of acceptance
dated .................................................................................. of the Contractor's tender dated
............................................................................................................................................*and
In respect of our Tender for ........................................................................................................
the Supply Contract materials, goods, equipment and other things ('the Goods') which are
intended to be incorporated in the Main Contract Works under a Nominated Supply Contract
('the Supply Contract').
We ...............................................................................................................................................
('the Nominated Supplier') warrant that in consideration of your instructing the Architect to
nominate us as the Nominated Supplier for the Goods:(a)
We will commence and complete the delivery of the Goods and perform all the services
specified, in accordance with the terms of the Supply Contract.
* delete as appropriate
97
(b)
We will indemnify the Employer against all extra costs that may be incurred by nonperformance of the Supply Contract, by late delivery of the Goods or by any breach of
these warranties.
(c)
We have exercised and will exercise all reasonable skill and care in :(i)
the design of the Goods insofar as the Goods have been or will be designed by us;
and
(ii)
the selection of materials, goods and equipment for the Supply Contract insofar as
such materials, goods and equipment have been or will be selected by us.
(d)
We will comply with and satisfy any performance specification or requirements insofar
as such performance specification or requirements are included or referred to in the
Tender Documents and/or our Tender as part of the description of the Supply Contract.
(e)
We will supply the Architect and/or Contractor with such information as either may
reasonably require and at such times that the Contractor shall not be delayed in completing
the Main Contract Works by the Completion Date by our failure to supply such information
or by delay on our part, provided always that no liability shall arise in respect of such
delay on our part until we have accepted the Contractor's order in respect of the Supply
Contract.
(f)
Nothing in our Tender shall operate to exclude or limit our liability for breach of the
warranties set out herein.
(g)
We will obtain a surety bond in the form set out in Schedule 1 of the Supply Contract with
the requisite changes in wording to reflect that the bond is to be given by the Nominated
Supplier to the Employer instead of to the Contractor. This bond will be duly executed
under seal by an approved insurance company or bank, acknowledging that the insurance
company or the bank is jointly and severally bound with us to the Employer in the sum of
10% of the Supply Contract Sum (rounded up the nearest thousand dollars) against
breach of the warranties hereof.
The words and expressions used in this Deed of Warranty shall have the same meaning as in
the Contract and the Supply Contract.
98
(Signature of witness)
)
)
)
)
)
)
)
)
)
)
)
(Note 1)
)
)
)
)
)
)
)
)
)
)
)
(Note 2)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
(Note 3)
OR
THE COMMON SEAL of the Supplier
was hereunto affixed in the presence of:-
(Signature of witness)
(Signature of witness)
Notes (1) For use in the case of a sole proprietor or where all partners of a firm execute.
(2)
For use in the case of a limited company executing under its common seal.
(3)
For use in the case of a firm or a limited company executing through an attorney.
99
11
6.4 & 31
1.6&13.1(1)
4.3(3)
26.3(2)(b)
13.4(8)
1.6
1.6
8.1(3)
2.4
Antiquities ........................................................................................... .
41 .4(3)-(5)
41.3(3)
Arbitration ........................................................................................... .
41.4-41.7
Arbitrator ..............................................................................................
41.6
Architect ...............................................................................................
1.6
29.14
2.2, 12
5.12(1)
5.11 &29.3
1.7, 1.11(1),
2.1(1)(d)&19
35.2
36.2
25.1(4)(a) & 34.1(a)
25.1 (3)(c)
Bond .....................................................................................................
22.2(t) & 33
13.4{2)
32.8-32.12
29.10
32
27.4
12.1
1.9
39
29.9
25
ii
17 & 18
23.2
29.14
10.2
15 & 32
5.1
21.1(3)
32.1 (4)
Contractor's obligations ... ... ... .. .. . ... ..... .. .. ... . ... .. .. ... . . ... . .. ... . ... . . ... ... . .... ...
2.2
29.6
29.2
10
Cost of tests.........................................................................................
2.1(1)&22.2
1.6 &2.1(1)(h)
1.6 &23.1
24.2 &25.3
Daywork ...............................................................................................
iii
1 .1 0
17.7
Definitions ............................................................................................
1.6
13.4(9) & 27
26
25.3(2)-(3)
18.4 & 24
1.7&12.2
1.10
2.1&29.6
41
Determination .......................................................................................
35-37
29.14
1.10
27
29.8
8.5
41
3.3 &5
1.5
41 .4(5)
Drawings ..............................................................................................
5.10 & 7
Drawings, as-built ............................................................................... .
5.12
2.1
5.8
5.10
iv
2.1(f)
12
29.12
32.12
21.1
17.7
40
4.3(3)
Engineer ...............................................................................................
1.6,1.7&12.1
14.3(1 )-(2)
15
14.3
27
25
24.1 &29.11
4.3(3), 17.3(4)
&35.1
Failure to insure....................................................................................
8.3(a)
32.6, 32.8-32.9,
35.5-35.7, 36.3-36.6
& 37.4-37.5
32.6
38
25.1 (3)(a)
Fossils ..................................................................................................
34.1-34.2
1.3
1 .1
25.1 (3)
33.1
41.5(2)
1.6
41 .3(3) & 41 .4
25.1 (3)
25.1 (3)
20 & 21.6
29.12(1 )(c)
20 &21
21.1(3)
35.2
36.2
8.2
29.1 (d)
21
22
21.1
21 .2
32.13
24.3
vi
36.1(b)
29.7
32.1 (4)
24.3&32.13
32.13
1.1
1 & 5.1
7
17
29.15
21.2(4)
5.13
25.1-25.3
27
13.4(5)
5.11(1)
2.1 (1 )(g)
10.2
8.1
9.2
16
8.2
Measurement .......................................................................................
14.2
13.6
Mediation ............................................................................................ .
41.3
14.2
3.1(1)&3.3
vii
29.14
29.10
29.6
25.1 (3)(m)
25.1 (3)(o)
29.8
29.12
29.15
- generally .................................................................................... .
29
29.7(c)
25.6(1)
- re-nomination of ........................................................................ .
29.13
13.8
-warranty ..................................................................................... .
29.3
Nominated Sub-Contractor's
- claim for additional payment for Direct loss and/or expense .... .
27.4(2)-(3)
13.8
29.2(1)
21.1 (3)
27.1,27.4 &28
1.9 & 39
32.2(3)(a)
1.6
viii
6.4(2) & 31
17.7
18
32.2(3), 32.4(1),
32. 7(3)(i) & 32.9(1 )(d)
29.2(7)
24.3&32.13
18.2(c), 22.6(3),
32.4(1 ), 32.5,
36.3(8) & 37.3(7)
32.1 (2)
32
29.7,29.8 &29.12
32
32.6
30
1.6
20 &21
22.2
41.6
40
4.4
ix
13.4(2)(b)
3.2 & 25
27
25.5
5.3 - 5.9
1.6 & 13
29.1 (1 )(d)
8.1
14
5, 13-14,26-27,
29-30, 32 & 35-37
Rainfall .................................................................................................
25.1 (3)
25.5
13.4(2)
40
24.3
8.3
8.5
29.13
1 . 11 (2)
29.6
2.2
32.5
24.3
25.3
29.2
1.6
1.7
Royalties ..............................................................................................
13.4
17.3
1.8
3.1 (2)(a)
1.9 & 39
Setting-out ......................................................................................... ..
41.4-41.7
41.1 - 41.2
41.3
1.2
10
2.3
1.10
8.1
xi
6.4(2) & 31
29.2
29.5
29.3
35.4{7), 36.3(5)
& 37.3(5)
19
5.11
Sub-letting ...........................................................................................
29.10
1.6
2.1 & 8
33
22.2(g), 23.3(c),
25.1 (3)0) & 27.1 (2)(e)
Tests .....................................................................................................
23.2
25
8.1
17.1
8.2
32.2(3)(a)
8.3
29
6.4(2) & 31
xii
29 &32
1.11(1)
1.6
4 & 13
29.5
13.4(2)(b)
5.11
4.3(3), 17.3(4),
30 &31
4.3(3), 17.3(4)
& 35.1
8.3
2.1&22.7
17
23.2
25
18.1
23.3
23.2
1.9
xiii
Published by
The Hong Kong Institute of Architects
The Hong Kong Institute of Construction Managers
The Hong Kong Institute of Surveyors
Hong Kong SAR, China
The copyright of this publication is owned by The Hong Kong Institute of Architects, The Hong Kong Institute of Construction
Managers and The Hong Kong Institute of Surveyors.