General conditions of contract QM for constructionGENERAL CONDITIONS OF CONTRACT FOR CONSTRUCTION WORKS (2004) (First Edition) © Copyright 2004 by the South African Institution of Civil Engineering @ All rights reserved58.1.3 58.1.4 58.1.5 58.2 Ifthe 58.2.1 58.2.2 582.21 58.2.2.2 58.2.2.3, 5.2.2.4 58.2.2.5 58.2.2.6 58.2.2.7 58.2.3 should have been given. If the Contractor fails to do this within 28 days, the Employer shall be discharged from alll liability in connection with the claim or disagreement. All further references herein to a ruling shall relate to the ruling, or part thereof, set out in the Dispute Notice, as varied or added to by agreement between the Contractor and the Engineer or by the Mediator’s opinion or the Adjudicator’s decision to the extent that it has become binding in terms of Clauses 58.2.6 or 58.3. If either party shall have given notice in compliance with Clause 58.1, the dispute shall be referred immediately to adjudication or mediation, whichever is stated in the Contract Data, Notwithstanding that the parties may, in respect of a ruling, have given a Dispute Notice, the ruling shall be of full force and carried into effect unless and until otherwise agreed by both parties in terms of Clause 58.2.6 or as determined in an accepted adjudication decision or an arbitration award or a court judgement. Contract Data provides for dispute resolution by mediation: The mediation shall be conducted by a Mediator selected by agreement between the parties or, failing such agreement within 7 days after a written request by either party for such agreement, nominated on the application of either party by the President for the time being of the South African Institution of Civil Engineering, Neither party shall be entitled to be represented at any hearing before or at any meeting or in any discussion with the Mediator except by: The party himself, if @ natural person, A partner in the case of a partnership, A chief executive officer or an executive director in the case of a company, ‘A member in the case of a close corporation, The Engineer, A bona fide employee of the party concerned, A professional engineer appointed for the purpose by the party concerned. Such limitation shall not be construed as preventing any person from giving evidence as a witness. The Mediator shall, as he deems fit, follow formal or informal procedure and receive evidence or submissions orally or in writing, sworn or unsworn, at joint meetings with the parties or separately or from any person whom he considers can assist in the formulation of his opinion; 43 ionForeword The South African Institution of Civil Engineering has a strong tradition of developing, publisting and maintaining forms of contract and has over several decades published six editions of the General Conditions of Contract for Civil Engineering Works. The sixth edition of the General Conditions of Contract for Civil Engineering Works (GCC 1990) was modified by the Committee of Land Transport Officials’ and republished by SAICE as the General Conditions of Contract for Road and Bridge Works for State Road Authorities (COLTO 1998) The General Conditions of Contract for Construction Works (GCC 2004) replaces GCC 1990 and COLTO 1998, satisfies the Construction Industry Development Board requirements for a standard form of contract and is suitable for use in procurement documents that are prepared in accordance with the provisions of SANS 10403, Formatting and Compilation of Construction Procurement Documents. GCC 2004 retains the language, style and ethos of GCC 1990 and COLTO 1998 and as such, it retains as far as possible the current wording of these documents. It remains a form of contract primarily for use in contracts where the contractor undertakes construction on the basis of full designs issued by the employer and bills of quantities are used for payment purposes. Acknowledgements The South African Institution of Civil Engineering wishes to acknowledge the valuable contributions made by the following organisations in the develapment of GCC 2004: ‘+ Institution of Municipal Engineering in Souther Africa; * South African Association of Consulting Engineers; and + South African Federation of Civil Engineering Contractors First Edition (2004) For ease of reference the title of this document should be abbreviated to” General Conditions of Contract 2004” © Copyright 2004 by the South African Institution of Civil Engineering -CONTENTS Clause | Heading Page 1 DEFINITIONS, INTERPRETATIONS AND GENERAL PROVISIONS 1 14 | Definitions 1 1.2 | Delivery of notices 3 1.3 | Concessions not to constitute waivers 3 1.4 | Governing law 3 [4.5 | Extent of indemnification 3 1.6 Calculation of days 3 1.7 Authority of representatives 4 1.8 Singular and plural/masculine and feminine 4 [19 ‘Marginal notes or headings 4 2 ENGINEER AND ENGINEER'S REPRESENTATIVE 4 2.1 | Function of the Engineer 4 2.2 _| Engineer to consult with Contractor and Employer 4 2.3 __, Specific approval of Employer required 4 24 _| Nomination of Engineer’s Representative 4 las Authority of Engineer’s Representative 4 26 Limitation of authority of Engineer's Representative 5 2.7 _| Engineer's authority to delegate 5 2.8 | Contractor's right to refer to Engineer 5 2.9 _| Limitations on delegation of Engineer's powers 5 3 AMBIGUITY IN DOCUMENTS 5 3.1 | Discrepancy in documents 5 32 __| Additional Cost due to ambiguity 5 4 _| BASIS OF CONTRACT 6 4.1, | Extent of Contractor's obligations 6 4.2 | Contractor's liabilly for his own design errors 6 4.3 __| Work to be to Engineer's instructions 6 4.4 _| Instructions only from Engineer 6 45 | Compliance with applicable laws 6 5 _| ASSIGNMENT 6 54 ‘Assignment cession —_ 6 6 SUBCONTRACTING 6 6.1 | Subcontracting whole Contract 6 62 __| Subcontracting part of Contract 6 63 Selection of subcontractors in consultation with the Employer 6Clause Heading Page 64 | Contractor's liability unaffected 65 No consent required 66 Payment to subcontractor selected by Employer and Contractor 7 GUARANTEE 7A Guarantee 8 PAYMENT TO CONTRACTOR 84 Payment to the Contractor 9 COPYRIGHT a4 Copyright and intellectual property rights 10 COMMENCEMENT OF THE WORKS 10.1 Commencement of the Works " ACCESS TO THE SITE 41.1 Access to and possession of Site 11.2 | Delays in giving possession 12 PROGRAMME OF THE WORKS 12.1 | Order of the Works 12.2 | Programme 12.3 Supporting documents 12.4 | Adjustment of programme 12.5 _| No relief of Contractor's responsibilities elo|e © ©/clolc ©|e@|e e e|e\a\e/o/@\~ ~|~\s\o 13 INSTRUCTIONS AND DRAWINGS 18.1___| Drawings and instructions 13.2 __ Further drawings and instructions 13.3 | Contractor to give notice timeously 9 18.4 | Documents to be provided within reasonable times 10 13.5 | Contractor to give effect to drawings, ete 10 18.6 | Engineers falure to comply timeously 10 13.7 | Engineer to approve Contractor's designs and drawings 10 14 NOTICES AND FEES 10 14.1 Giving of notices and payment of fees 10 14.2 | Employer's responsibility for approval 10 143 | Contractor's responsibility for consents 10 14.4 | Contractor to be Compensated 11 15 FOSSILS W 15.1 | Fossils ete 1 16 _| PATENT RIGHTS 1" 16.1 _| Patent and protected rights "1Clause Heading Page 162 Payments for rights "1 17 __| POLLUTION AND EXCESSIVE TRAFFIC 1" 17.1 _ | Pollution prevention and interference with access 4 17.2 Excessive traffic W 17.3 Indemnity by Contractor “ 18 _ FACILITIES FOR OTHERS 12 E 8.1 | Opportunities afforded to other persons 12 18.2 _| Additional payment for providing facilities 12 19 _| CLEARANCE OF SITE 12 19.1 | Clearance of Site on completion 12 19.2 _| Possible action by Employer 12 20 CONTRACTOR'S EMPLOYEES 12 20.1 _| Engagement of employees 12 20.2 _| information in respect of employees 13 21 COMPETENT EMPLOYEES 13 21.1 _ | Competent employees 13 22_| CONTRACTOR'S SUPERINTENDENCE 13 22.1 | Contractor's superintendence 13 22.2 | Contractor's Site Agent 13 22.3 | Site Agent to receive instructions 13 23 _| MATERIALS, WORKMANSHIP AND CONSTRUCTION EQUIPMENT 13 23.1 Quality of materials and workmanship 13 23.2 | Quality of Construction Equipment 13 23.8 | Information in respect of Construction Equipment 14 23.4 | Samples 14 23.5 Test specimens 14 236 | Tests 14 23.7 _ | Cost of test specimens and tests, 14 238 __| Exchange of reports on tests 14 24 | ACCESS TO THE WORKS, 14 24.1 | Access to the Works 14 25 EXAMINATION OF THE WORKS 15 25.1___| Examination of work befdre covering up 18 25.2 _ | Notice to be given 18 25.3 _| Uncovering and making openings 15 26 REMOVAL OF IMPROPER WORK AND MATERIALS, 15 26.1 | Removal of improper work and materials 16Clause | Heading Page 26.2 Default of Contractor in compliance 15, 27 __ | SEARCH FOR DEFECT 16 27.4 | Contractor to search : 16 28 URGENT REMEDIAL WORK 16 28.1 | Urgent remedial work 16 29 VESTING OF MATERIALS 16 oe Vesting of materials 16 2.2 Definition of “materials” 16 29.3 _ Identification of materials 16 (29.4 | Prohibition on removal of materials 16 29.5 Noapproval by vesting 7 30 REMOVAL OF CONSTRUCTION EQUIPMENT 17 30.1 | Prohibition on removal of Construction Equipment 7 31 PROTECTION OF THE WORKS 7 31.1 | Protection of the Works, use of public roads and access to private properly | 17 (32 CARE OF THE WORKS, 17 32.1 | Care of the Works 17 32.2 Damage or physical loss 17 32.3 Excepted risks 18 33 INDEMNIFICATIONS 19 33.1 | Injury to persons and damage to property 19 33.2 | Indemnity by Employer 19 34 REPORTING OF ACCIDENTS 19 34.1 | Reporting of accidents 19 35 INSURANCES: 20 35.1 Insurances to be effected 20 35.2 Liability of deductibles 20 35.3 | Requirements relating to subcontractors 24 35.4 | Contractor to effect insurances obtainable 21 35.5 | Employer to approve insurance policy 21 35.6 _| Contractor to produce proof of payment 21 35.7 _| Remedy on Contractors failure to insure 21 35.8 _ | Legal provisions a1 36 VARIATIONS 21 36.1__| Variations at 36.2 _| Orders for variations to be in writing 22 36.3 | Changes in scheduled quantities 22Clause | Heading Page 36.4 Supplementary agreements 7 22 37 VALUATIONS OF VARIATIONS a 22 37.1 Valuation of variations 22 37.2 _ | Daywork 23 38 | NON-WORKING TIMES 24 38.1 _| Nan-working hours and special non-working days 24 39 _| SUSPENSION OF THE WORKS 24 39.1 | Suspension of works 24 39.2 | Suspension lasting more than 84 days 25 40 _| PROGRESS OF THE WORKS 25 40.1 | Rate of progress 25 40.2 | Work at night 25 40.3 _ | Instruction to accelerate 25 41 | DELAYS ATTRIBUTABLE TO THE EMPLOYER. 25 41A__| Delays attributable to the Employer 25 42 _ | EXTENSION OF TIME FOR COMPLETION 26 42.1 | Time for completion 26 42.2 _| Extension of time for completion 26 42.3 Some reasons for extensions of time 26 42.4 | Relevant adjustments to General items 26 43 PENALTY FOR DELAY 26 43.1__| Penalty for delay 26 [43.2 | Reduction of penalty 27 44 | MEASUREMENT OF THE WORKS 27 44.1 | Quantities 27 44.2 | Work to be measured 27 44.3 Engineer's intention to measure 27 44.4 | Contractor’ failure to comply 27 44.5 _| Method of Measurement 27 45 __| PROVISIONAL AND PRIME COST SUMS 28 45.1 _| Provisional Sums 28 452 _ | Prime Cost Sums 28 45.3 _| Provisional/ Prime Cost Sums and contingency allowance 28 45.4 _| Production of vouchers 28 46 ADJUSTMENTS IN PRICES 28 46.1 _| Rates and prices 28 46.2 _| Application of Contract Price Adjustment Factor 28 vClause Heading Page /46.3 Variation in cost of special materials 29 46.4 Subsequent changes in legislation 29 a7 ADVERSE PHYSICAL CONDITIONS 29 47.1 Adverse physical conditions and artificial obstructions 29 47.2 _ | Further notices 29 47.3 | Contractor to carry out additional work 29 47.4 _| Contractor's right to claim 29 48 CLAIMS PROCEDURE 30 48.1 | Claims procedure 30 48.2 | Extended period for claims 30 48.3 | Records of facts and circumstances 30 48.4 | Contractor's failure to comply 31 48.5 _ | Engineer's ruling 34 49 INTERIM PAYMENTS 32 49.1 _| Monthly payments 32 49.2 _ | Valuation of material brought onto Site 32 49.3 _| Retention money 33 49.4 _| Employer's obligation to pay 33 49.5 _| Time of payment of retention 33 49.6 | Guarantee in lieu of retention 33 49.7 _| Setoff and delayed payments 34 49.8 | Correction of certificates 34 49.3 | Contractor's completion statement 34 49.10 | Final Payment Certificate 4 50 VARIATIONS EXCEEDING 15 PER CENT 35 50.1 _| Variations exceeding 15 per cent 35 51 COMPLETION 35 51.1 | Certificate of Practical Completion 35 51.2 _| Issue of Certificate of Practical Completion 35 51.3 _| Employer's right to occupy completed Works 36 51.4 _ | Certificate of Completion of the Works 36 51.5 _ | Consequence of Certificate of Completion 36 51.6 _| Different dates of completion 36 52 APPROVAL CERTIFICATE 36 52.1 _| Final Approval Certificate 36 52.2 _ | Approval only by Final Approval Certificate 37 52.3 | Time limitation on claims in respect of defects 37 viClause Heading Page 53 DEFECTS 37 ame Defects Liability Period 37 53.2 _| Making good of defects 37 53.3 _| Cost of making good a7 53.4 | Remedy on Contractors failure to carty out required work 38 54 CANCELLATION OF THE CONTRACT 38 54.1, | Outbreak of war or armed hostilities 38 54.2 _| State of emergency 38 54.3 _| Increased Costs arising ftom war or state of emergency 39 544 | Payment if Contract is cancelled 39 54.5 _ | Over-riding provisions 39 55 TERMINATION BY EMPLOYER 39 55.1. | Termination by Employer 39 88.2 _ | Amounts Employer must pay a 56 CANCELLATION BY CONTRACTOR a 56.1 | Cancellation of Contract by Contractor a1 56.2 | Removal of materials, et and payment to Contractor 41 56.3 | Other rights of Gontractor 42 56.4 | Notices to trustee/iquidator 42 57 NOTICE OF DISAGREEMENT 42 57.1 _ | Notice of disagreement 42 57.2 _ | Engineer to rule on disagreements 42 58 SETTLEMENT OF DISPUTES a2 58.1 | Dispute Notice 42 582 | Mediation 43 58.3 | Adjudication 44 58.4 | Arbitration 45 58.5 _| Reference to Court 45 58.6 | Common provisions 45 58.7 _ | Special disputes 46 58.8 | Continuing validity of Clause 46 FORM OF OFFER AND ACCEPTANCE 47 CONTRACT DATA 51 FORM OF GUARANTEE 87 CONTRACT PRICE ADJUSTMENT SCHEDULE 59 LIST OF ENGINEER'S FUNCTIONS AND DUTIES 61 viiGENERAL CONDITIONS OF CONTRACT FOR CONSTRUCTION WORKS (2004) (First Edition) 1. DEFINITIONS, INTERPRETATIONS AND GENERAL PROVISIONS 1.1. In the Contract (as hereinatter defined) the following words and Definitions expressions shal have the meanings hereby assigned to them except where the context otherwise tequires: 144 “agreed’ means agreed by the Employer and the Contractor, unless specifically otherwise stated. 1.1.2 “Bill of Quantities” means the document so designated in the Pricing Data that lists the items of work and the quantities and rates associated with each item to allow the Contractor to be paid at regular intervals an amount equal to the agreed rate for the work multiplied by the quantity of work completed, 1.1.3 ‘Cettificate of Completion” means the cettificate issued by the Engineer signifying that the whole or portion of the works have reached a slate of readiness for occupation or use for the purposes intended, although some minor work may be outstanding, 1.1.4 “Commencement Date" means the date that the Agreement, made in terms of the Form of Offer and Acceptance, comes into effect. 115 ‘Construction Equipment” means all appliances or things of whatsoever nature required in or about the execution, completion oF defects correction of the Works but does not include materials or other things intended to form or forming part of the Permanent Works. 1.4.6 “Contract” means the subject of the Agreement made in terms of the Form of Offer and Acceptance and such amendments or additions to the Contract as may be agreed in writing between the parties. 1.1.7 “Contract Data” means the specific data, which together with these General Conditions of Contract, collectively describe the risks, liabilities and obligations of the contracting parties and the procedures for the administration of the Contract, 1.1.8 ‘Contractor’ means the natural or juristic person or partnership named in the Contract Data and whose offer has been accepted by of on behalf of the Employer and, where applicable, includes the Contractor's heits, executors, administrators, trustees, judicial managers or liquidators, as the case may be, but not, except with the written consent of the Employer, any assignee of the Contractor. 119 ‘Contract Price” means the total of prices provided for in the Agreement made in terms of the Form of Offer and Acceptance subject to Such addition thereto or deduction therefrom as may be made from time to time under the provisions of the Contract.4.4.10 44.01 14.12 14.13 1444 11.15 1.1.16 4AAT 4.4.18 4.4.19 1.1.20 “Cost” in relation to any provision of the Contract for payment to the Contractor for any delay, work, sesvice or supply, means, unless the provision otherwise specifies, compensation to the Contractor for such delay, work, service or supply concemed calculated, with the necessary changes, in terms of Clause 37. “Qefects Liability Period’ means the period commencing from the issuing of the Certificate of Completion during which the contractor has an obligation to make good defects in the materials and workmanship covered by the Contract. “General items” means items contained in the Bill of Quantities which relate to general obligations, site services and facilities or which cover elements of the cost of the work which are not considered as proportional to the quantities of the Permanent Works. “Due Completion Date” means the date of expiry of the time stated in the Contract Data for completing the execution of the Works, calculated from the Commencement Date and as adjusted by such extensions of time as may be allowed in terms of Contract. “Employer” means the natural of juristic person or partnership for whom the Works are to be executed and who is named as the Employer in the Contract Data and, where applicable, includes the Employer's heirs, executors, administrators, trustees, judicial managers or liquidators, as the case maybe, but not, except with the wiitlen consent of the Contractor, any assignee of the Employer. ‘Engineer’ means the natural or juristic person or partnership named as the Engineer in the Contract Data or any other natural or juristic person or partnership appointed from time to time by the Employer and notified in writing to the Contractor to act as Engineer fot the purposes of the Contract in place of the Engineer so named, “Engineer's Representative” means the person appointed from time to time by the Engineer in terms of the Contract, “Permanent Works" means the permanent works to be constructed in accordance with the Contract. “Pricing Data’ means the document that contains the Bill of Quantities and provides the criteria and assumptions which it will be assumed in the Contract that were taken into account by the Contractor when developing his prices. “Scope of Work" means the document that specifies and describes the Works, which are to be provided, and any other requirements and constraints relating to the manner in which the work i8 to be performed. “Site” means the land and other places, made available by the Employer for the purposes of the Contract, on under over in or through which the Works are to be executed or carried out.1.1.21 “Supplementary Agreement” means a new contract between the Employer and the Contractor for executing work, supplemental to the original Contract, which was not contemplated in the original Contract and is also not required for the proper completion of the original Contract. 1422 “Temporary Works” means the temporary works required for or in connection with the construction of the Permanent Works in accordance with the Contract. 1.1.23 “Works” means the Permanent Works together with the Temporary Works, 1.1.24 “Writing” means any hand-written, type-written or printed communication (whether comprising words, figures or drawings) including telex, telegram, cable, facsimile, _olectronic cammunication or any like communication and "in writing” and “written” shail have corresponding meanings. 1.2 Any written communication, including, but without limiting the generality of the word ‘communication’, any letter, notice, drawing, order. instruction, account, claim, determination, certification or site meeting minutes, to be delivered by the Employer or the Engineer to the Contractor, or by the Contractor ta the Employer or the Engineer, shall be deemed to have been duly delivered if: 1.2.1 Handed to the addressee or to his duly authorised agent, or 122 Delivered at the address of the addressee as stated in the Contract Data; Provided that the Employer, Engineer and Contractor shall be entitled by written notice to each other to change their said addresses. e No grant by the Employer or the Contractor to the other of any concession, waiver, condonation or allowance shall, in respect of any specific event or circumstance other than that in respect of which the grant was made, constitute a waiver of the tights of the grantor in terms of the Contract or an estoppel of the grantor's right to enforce the provisions of the Contract. 1.4. The law which is to apply to the Contract and according to which the Contract is to be interpreted shall be the law of the Republic of South Arica unless otherwise stated in the Contract Data. 1.5. In respect of any indemnification against liability to third parties given by either party to the other, the indemnification shall cover all claims, demands, proceedings, damages, costs, charges and expenses in relation thereto or arising therefrom. 1.6 “Day” shall mean a calendar day and where a specific number of days is, allowed in the Contract for the performance of any act or is stipulated for the extinction of any right or the duration of any event or circumstance, the special non-working days and the days falling within the year end break as stated in the Contract Data and the day from which the period concerned is stated to commence shall be excluded from the calculation of the number of days concerned, Delivery of notices Concessions not to constitute waivers Governing law Extent of indemnification Calculation of days1.7 The common or statute law shall determine whether any person acting or purporting to act on behalf of the Employer, Engineer or Contractor is duly authorised, save to the extent that any of the said parties shall, by written notice to each of the others, designate a person or the holder of any office, to the exclusion of another person or older of office, to have such authority or limit in any way or terminate the authority of any person or holder of office. 1.8 Where the context requires: 1.8.1 Words importing the singular also include the piural and vice versa, and 1.8.2 Words importing the masculine gender also include the feminine and the neuter. 1.9 The marginal notes or headings in these General Conditions shall not be deemed to be part thereof nor be taken into consideration in the interpretation or construction thereof or of the Contract. 2, _ ENGINEER AND ENGINEER'S REPRESENTATIVE 2.1. The function of the Engineer is to administer the Contract as agent of the Employer in accordance with the provisions of the Contract. He stall therefore carry out such duties and functions as are required in terms of the Contract 2.2 Whenever the Engineer intends, in terms of the Contract, to exercise any discretion or make or issue any ruling. contract interpretation or price determination, he shall first consult with the Contractor and the Employer in an attempt to reach agreement. Failing agreement, the Engineer shall make a fair decision in accordance with the Contract taking into account all relevant facts and circumstances. 2.3 In the event of the Engineer being required in terms of his appointment by the Employer to oblain the specific approval of the Employer for the execution of any part of his functions or duties, such requirement shall be set out in the Contract Data. 2.4 The Engineer shall be entitled by written notice to the Contractor to nominate a person as Engineer's Representative and shall have the power by further written notice from time to time to terminate or change such appointment. 2.5 The Engineer's Representative shall 2.5.41 Observe the execution of the Works, examine and test materials and workmanship, and receive from the Contractor such information as he shall reasonably require; 2.5.2 Have the authority Authority of representatives Singular and plural masculine and feminine Marginal notes or headings Function of the Engineer Engineer to consult with Contractor and Employer Specific approval of the Employer required Nomination of Engineer's Representative Authority of Engineer's Representative2524 Given to him by any provisions of the Contract, 2522 Given to him by the Engineer in terms of Clause 2.7, 25.2.8 To deliver to the Contractor oral or written communications from the Engineer. and 2.5.2.4 To receive on behalt of the Engineer oral or written communications from the Contractor. 2.6 Notwithstanding the aforegoing, the powers and authority of the Limitation of Engineer's Representative shall be subject tothe following conditions: authority of ngineer's 26.1 He shall have no authority to relieve the Contractor of any of his Representative obligations under the Contract and, unless he is authorised thereto in terms of Clause 2.7, he shall have no authority to order any work involving delay or any extra payment by the Employer or to make any variation of or in the Works; 2.6.2 Notwithstanding any authority given to him in terms of Clauses 2.5 and 2.7, failure by the Engineer's Representative to disapprove of any work, workmanship or materials shall not prejudice the power of the Engineer thereafter to disapprove thereof and exercise any ot his powers in terms of the Contract in respect thereof. 2.7 The Engineer may by notice in writing to the Contractor from time to time Engineer's authorise the Engineer's Representative, or any other person authority to responsible to the Engineer, to act on his behalf either generally in delegate respect of the Contract, or specifically in respect of particular provisions of the Contract, and the act of any such person within the scope of his authority shall, for the purposes of the Contract, constitute an act of the Engineer. Such authorisation shall continue in force until the Engineer shall notify the Contractor in writing that it is terminated. 2.8 If the Contractor shall be dissatisfied with any order or instruction of the Contractor's Engineer's Representative, or any other person appointed by tho tight to refer to Engineer to act on his behalf, he shall be entitled to refer the matter to Engineer the Engineer who shall confirm, reverse or vary such order or instruction. 2.9 No authority in terms of Clause 2.7 shall be given or be effective in Limitations on respect of any decision to be taken or certificate to be issued under delegation of Clauses 6,42,47,48,51,52,55, or 57. Engineer's, powers 3. AMBIGUITY IN DOCUMENTS. 3.1 If an ambiguity or discrepancy between the documents is found, the Discrepancy in Engineer shall issue any necessary clatification or instruction. documents 3.2 If compliance with any such instruction shall involve the Contractor in any Additional Cost delay of additional cost, which by reason of any such ambiguity or due to discrepancy the Contractor did not and had good reason not to ambiguity anticipate, he shall be entitled to make a claim in accordance with Clause 48.4. at 42 43 44 45 454 45.2 5A 61 62 63 64 BASIS OF CONTRACT The Contractor shall, save in so far as it is legally or physically impossible, design (10 the extent provided in the Contract), execute and complete the Works and remedy any defects therein in accordance with the provisions of the Contract. Where the Contract expressly provides that part of the Permanent Works shall be designed by the Contractor, he shall, notwithstanding any approval of the Engineer, be liable for any error or deficiency in any drawing or document supplied by him for that part of the Works and for any loss or damage arising out of such error or deficiency, The Contractor shall, in carrying out his aforesaid obligations, comply with the Engineer's instructions on any matter relating to the Works. The Contractor shall take instructions only from the Engineer, the Engineer's Representative or other person authorised by the Engineer in terms of Clause 2.7. The Contractor shall, in the performance of the Contract, comply with all applicable laws, regulations, statutory provisions and agreements, and shall in particular, on the request of the Engineer, provide proof that he has complied therewith with regard to amongst others: Wages and conditions of work, and Safely, ASSIGNMENT Neither the Contractor nor the Employer shall, without the written consent of the other, assign the Contract or any part thereof or any obligation under the Contract or cade any right or benefit thereunder. SUBCONTRACTING The Contractor shall not subcontract the whole of the Contract. Except where otherwise provided by the Contract, the Contractor shall not subcontract any part of the Contract without the prior written consent of the Engineer, which consent shall not be unreasonably withheld. The contractual relationship between the Contractor and any subcontractors selected by the Contractor in consultation with the Employer in accordance with the requirements of and a procedure contained within the Scope of Work, shall be the same as if the Contractor had appointed the subcontractor in terms of Clause 6.2. Any consent granted in accordance with Clause 6.2 or appointment of a subcontractor in accordance with Clause 6.3 shall not imply a contract between the Employer and the subcontractor, or a responsibilty or liability on the part of the Employer to the subcontractor and shall not relieve the Contractor from any liability or obligation under the Contract and he shall be liable for the acts, defaults and neglects of any subcontractor, his agents or employees as fully as if they were the acts, Extent of Contractor's oblig Contractor's liability for his ‘own design errors Work to be to Engineer's instructions Instructions only from Engineer Compliance with applicable laws Assignment cession ‘Subcontracting whole Contract Subcontracting part of Contract Selection of sub-contractors in consultation with Employer Contractor's liability unaffecteddefaults or neglects of the Contractor, his agents or employees. 6.5 The Contractor shall not be required to obtain such consent for: 65.1 The provision of labour, or 65.2 The purchase of materials which are in accordance with the Contract, or 65.3 The purchase or hire of Construction Equipment. 6.6 Before the Engineer in terms of Clause 49 hereof issues any certificate that includes any payment in respect of work done or goods supplied by any subcontractor appointed in accordance with the provisions of Clause 6.3, he shall be entitled to call upon the Contractor to furnish reasonable proof that all payments (less retention moneys) included in previous certificates in respect of the work or goods of such subcontractors have been made or discharged by the Contractor, in default of which, unless the Contractor: 66.1 Informs the Engineer in writing that he has reasonable cause for withholding or refusing such payment, and 6.6.2 Submits to the Engineer reasonable proof that he has so informed such subcontractor in writing the Employer shall be entitled to pay direct to such subcontractor on the Engineer's certificate all payments (less retention moneys) the Contractor has failed to make to such subcontractor and to deduct, by way of settlement, the amount so paid by the Employer from any moneys ‘owing to or that may become owing to the Contractor. Provided always that where the Engineer has certified and the Employer has paid direct as aforesaid, the Engineer shall, in issuing any further certificate in favour of the Contractor, deduct from the amount thereof the amount paid direct as aforesaid, but shall not withhold or delay the issue of the certificate itself when due to be issued under the terms of the contract. 7. GUARANTEE 7.1. The Contractor shall deliver to the Employer within such time as may be stated in the Contract Data a guarantee of an Insurance Company or Bank to be jointly and severally bound with the Contractor, in accordance with the provisions of the Form of Guarantee, in a sum equal to the amount stated in the Contract Data, for the due performance of the Contract. The said Company or Bank shall be subject to approval by the Employer. The Engineer shall be empowered to withhold all payment certificates until the Contractor has complied with his obligations in terms of this, Clause. Expenditure incurred in obtaining such guarantee and the Form of Guarantee to be entered into shall be borne by the Contractor unless the Contract otherwise provides. No consent required Payment to ‘subcontractor selected by Employer and Contractor GuaranteeThe Form of Guarantee shall be returned to the Guarantor within 14 days after the issue of the Certificate or Certificates of Completion in respect of the whole of the Permanent Works, 8 PAYMENT TO CONTRACTOR 8.1 As consideration for the construction, completion and defects correction of the Works, the Employer shall pay the Contractor in terms of the provisions of the Contract. 9. COPYRIGHT 9.1 The Contracto” shall retain the copyright and other intellectual property rights in the calculations, manuals, computer programmes and other software, drawings, manuals, models and other documents of a technical nature supplied to the Employer or Engineer under the Contract. The Contracto’ shall be deemed by signing the Contract to give to the Employer a non-terminable transferable non-exclusive royalty-free licence to copy, use and communicate the Contractor's Documents, including making and using modifications of them. 40. COMMENCEMENT OF THE WORKS. 10.1. The Contractor shall, save as may be otherwise provided in the Contract or be legally cr physically impossible, commence executing the Works within the number of days stated in the Contract Data calculated from the Commencement Date. 14. ACCESS TO THE SITE 11.1. The Employer shall, subject to any requirements in the Contract as to the, order in which the Works shall be executed: 11.1.1 On the Commencement Date, give to the Contractor right of access to the Site, the location of which is stated in the Site Information (including physical access to the extent stipulated in the Contract) and possession of so much of the Site as may be required to enable the Contractor to commence and proceed with the construction of the Works in accordance with the programme referred to in Clause 12, or otherwise in accordance with such reasonatle proposals of the Contractor as he shall make by notice in writing to the Engineer and, 11.1.2 From time to time as the Works proceed, give to the Contractor possession of such further portions of the Site as may be required to enable the Contractor to proceed with the construction of the Works with due dispatch in accordance with the said programme or proposals as the case may be. 11.2 If the Contractor suffers any delay or additional cost from failure of the Employer to give possession in accordance with the terms of this Clause, the Contractor shall be entitled to make a claim in accordance with Clause 48, for which purpose the time limit of 28 days provided in Clause 48.1.1 shall commence to run only from the time when possession of the Site has actually been given and may be extended by the Engineer at his 8 Payment to the Contractor Copyright and intellectual Property rights ‘Commencement of the Works. ‘Access to and possession of Site Delays in giving possession12. 124 12.2 123 discretion. PROGRAMME OF THE WORKS The order in which the Works are to be carried out and the programme of construction shall be subject to the approval of the Engineer, which approval shall not be unreasonably withheld. The Contractor shall deliver to the Engineer within the time stated in the Contract Data, calculated from the Commencement Date, a realistic programme showing the order of procedure, the duration of activities making up the programme and method which he proposes to use in carrying out the Works in order to meet the Due Completion Date. When required by the Engineer, the Contractor shall, within a reasonable time, also deliver to the Engineer documents in support of the programme and particulars in writing of the Contractor's resources planning, including: 12.3.1 The Contractor's arrangements for and method of carrying out the Works, and 12.3.2 The Construction Equipment and other resources which the Contractor intends to supply and use for the purpose of the Contract, and 12.3.3 Rates of progress for the various parts of the Works taking account of design, procurement, construction, testing, time risks and float; and 12.3.4 A detailed cash flow forecast. 12.4 12.5 13. 13.4 13.2 13.3 The programme and the cash flow forecast shall be subject to review and, if so instructed by the Engineer, shall be adjusted by the Contractor on a regular monthly basis, or at such intervals as circumstances may require, or when a specific probable future event or circumstance may increase the Contract Price or delay the execution of the Works. The submission to and approval by the Engineer of such programme or its adjustment, or the delivery of any relevant particulars, shall not relieve the Contractor of any of his duties or responsibilities under the Contract. INSTRUCTIONS AND DRAWINGS ‘On the Commencement Date the Engineer shall deliver to the Contractor copies of the drawings and any instructions required for the ‘commencement of the Works, The Engineer shall deliver to the Contractor from time to time, during the progress of the Works, drawings for construction purposes or instructions. as shall, in the Engineer's opinion, be necessary for the proper and adequate construction, completion and defects correction of the Works. The Contractor shall give adequate notice in writing to the Engineer of any requirements additional to that contained in the Scope of Work or drawings, which the Contractor may require for the execution of the Works and the Engineer shall deliver such instructions and drawings to 9 Order of the Works Programme Supporting documents Adjustment of programme No relief of Contractor's responsibilities Drawings and instructions Further drawings and Instructions Contractor to give notice timeously13.4 13.5 13.6 13.7 14, 144 the Contractor. The aforesaid instructions and drawings shall be delivered within times which are reasonable having regard to all the circumstances, and taking account of the provisions of any programme submitted to the Engineer in terms of Clause 12 and approved by him, The Contractor shall give effect to and be bound by any drawing or instruction given in terms of this Clause and, if the same shall require any variation of, addition to, or omission from the Works, the same shall be deemed to have been issued in terms of Clause 36. If by reason of a failure by the Engineer, after his receipt of written notice from the Contractor in terms of Clause 13.3, to comply timeously with the provisions of Clause 13.4, the Contractor shall suffer any delay or incur any cost, he shall be entitled to make a claim in accordance with Clause 48, for which purpose the time limit of 28 days in Clause 48.1.1 may be extended by the Engineer at his discretion. If the Contract expressly provides for the preparation by the Contractor of designs and details of any work to be supplied, he shall submit for approval by the Engineer, in triplicate, a drawing giving full details, dimensions and particulars together with all relevant information and erecting or operating instructions (if any) and shall obtain the Engineer's written approval, which shall be given within a reasonable time, before commencing the work. When any such drawing has been approved by the Engineer, it shall not be departed from in any way except with the written consent of the Engineer, NOTICES AND FEES The Contractor: 14.1.1 Shall in the execution of the Works comply with the provisions of, and give all notices and pay all fees, taxes, levies and other charges required to be given or paid in tertns of: 144.44 Any Act of Parliament, Ordinance, Regulation or By-law of 144 any local or ather statutory authority, and 12 Conditions imposed by any other body or person stated in the Scope of Work 14.1.2 Hereby indemnifies the Employer against any liability for any 142 14.3 breach of the provisions of Clause 14.1.1. The Employer shall be responsible for obtaining any planning approval required in respect of the Permanent Works and in respect of Temporary Works, which are specified or designed by the Engineer. The Contractor shall be responsible for obtaining all requisite consents, permissions and permits for the execution of the Works arising from the provisions referred to in Clause 14.1.1 and arising from the approvals referred to in Clause 14.2 10 Documents to be provided within reasonable times Contractor to give effect to drawings, ete Engineer's failure to comply timeously Engineer to approve Contractor's designs and drawings Giving of notices and payment of fees Employer's responsibility for approval Contractor's responsibility for consents14.4 The Employer shalt refund to the Contractor all such sums as the Engineer shall certify to have been properly payable and paid by the Contractor in compliance with the foregoing provisions of this Clause, unless the necessity for such payment was identified in the Pricing Data or such sums are payable by the Contractor in the ordinary course of his business. 15. FOSSILS 15.1 All fossils, coins, articles of value or antiquity and structures and other remains or things of geological or archaeological interest discovered on the Site shall, as between the Employer and the Contractor, be deemed to be the absolute property of the Employer. The Contractor shall take reasonable precautions to prevent any person from removing or damaging any such article or thing and shal, immediately upon discovery thereof and before removal, inform the Engineer of such discovery and carry cut the Engineer's instructions for dealing therewith, H, by reason of such instructions, the Contractor sufters any delay or incurs extra cost he shall be entitled to make a claim in accordance with Clause 48 16. PATENT RIGHTS 16.1 Save in respect of the Employer's or the Engineer's design of the Works or method of construction and proprietary brand materials specified by the Employer or the Engineer, the Contractor hereby indemnifies the Employer against any liabiity arising from infringement of any patent rights, design, trade-mark or name or other protected right in respect of any design work, Construction Equipment, machine, work, method of construction or material used for or in connection with the Works. 16.2 Except where otherwise specified in the Contract, the Contractor shall pay all amounts due by him in respect of the rights referred to in Clause 16.1 17, POLLUTION AND EXCESSIVE TRAFFIC 17.1 All operations necessary for the execution of the Works shall, as far as compliance with the requirements of the Contract permits, be carried on so as not to cause unnecessary noise or pollution, or to interfere unnecessarily or improperly with public services, or the access to, use and occupation of public or private roads and footpaths or properties, whether in the possession of the Employer or of any other person 17.2 The Contractor shall use every reasonable means to prevent any of the roads or bridges communicating with or in the vicinity of the Site from being subjected to damage by excessive loads or disruption due to excessive traffic occasioned by the Contractor's or his subcontractor’s ‘transport arrangements. 17.3 The Contractor hereby indemnifies the Employer against any liability arising out of the Contractor's non-compliance with his obligations in " Contractor to be Compensated Fossils, ete Patent and protected rights Payments for Rights Pollution prevention and interference with access Excessive traffic Indemnity by Contractor18. 18.1 terms of Clauses 17.1 and 17.2. FACILITIES FOR OTHERS The Contractor shall, in accordance with the Contract or the requirements of the Engineer, afford on the Site all reasonable opportunities for carrying out their work to: 18.1.1 The Employer, 18.1.2 Any other contractors employed and other persons authorised by the Employer, and 18.1.3 Any local or other statutory authorities, 18.2 who may be engaged in the execution on the Site of any work not included in the Contract, provided that adequate notice of the necessity therefor is given to the Contractor. Hf, pursuant to Clause 18.1, the Contractor on the written instruction of the Engineer: 18.2.1 Makes available to the Employer or to any such contractor or to any such authority any roads or ways for the maintenance of which the Contractor is responsible, or 18.2.2 Provides any other facility or service of whatsoever nature to any of 19. 19.4 19.2 20. 20.1 the said persons or authorities, ‘the Contractor shall, unless otherwise provided in the Contract, be entitled to make a claim in accordance with Clause 48 for any delay or additional cost incurred by him CLEARANCE OF SITE On completion of the Works the Contractor shall clear away and remove from the Site all Construction Equipment, surplus materials, rubbish and ‘Temporary Works of every kind and leave the whole of the Site and the Works clean and in a safe condition. All streams and watercourses shall he cleaned and restored to the condition as at the commencement of the Works If the Contractor does not, within a reasonable time, comply with the requirements of Clause 19.1, the Employer may have the Site cleared and recover the cost thereof from the Contractor. CONTRACTOR'S EMPLOYEES The Contractor shall, unless otherwise provided in the Contract, make his own arrangements for the engagement of all employees and for their payment, housing, feeding and transport (provided that any use of any part of the Site for the said purposes shall be subject to the prior 2pproval of the Engineer) and the Contractor hereby indemnifies the Employer against any liability arising out of the Contractor's said arrangements whether involving the use of the Site or otherwise 12 Opportunities afforded to other persons Additional payment for providing facilities Clearance of Site on completion Possible action by Employer Engagement of employees20.2 The Contractor shall, if instructed by the Engineer, deliver to the Engineer information, in such form and at such intervals as the Engineer may prescribe, in respect of employees from time to time employed by the Contractor on the Site. 21. COMPETENT EMPLOYEES 21.4 The Contractor shall employ on the Site, for the execution and completion of the Works, only such persons as are careful, competent and efficient in their several trades and callings The Engineer shall be entitled to instruct the Contractor to remove ‘orthwith from the Works any person employed by the Contractor in or about the execution of the Works who, in the opinion of the Engineer. misconducts himself or is incompetent or negligent in the proper performance of this duties, or whose presence on the Site is otherwise considered by the Engineer on reasonable grounds to be undesirable, and such person shall not again be employed on the Works without the permission of the Engineer. 22, CONTRACTOR'S SUPERINTENDENCE 22.1 The Contractor shall provide all necessary superintendence during the execution of the Works. 22.2 The Contractor or a competent and authorised agent or representative approved of in writing by the Engineer (which approval may at any time be withdrawn), hereinafter called the Contractor's Site Agent, shall be on the Site at all times when work is being performed or when the Engineer shall reasonably require. 22.3 The Contractor's Site Agent shall have authority to receive, on behalf of the Contractor, all oral or written communications from the Engineer or the Engineers Representative or other person authorised by the Engineer in terms of Clause 2.7. 23. MATERIALS, WORKMANSHIP AND CONSTRUCTION EQUIPMENT 23.1 All materials and workmanship shall be of the respective kinds specified and shall comply with the requirements set in the Scope of Work and in the Engineer's instructions or, failing requirements or instructions, of the respective kinds suitable for the purpose intended. 23.2 The nature and quality of all Construction Equipment to be provided by the Contractor for the execution and making good of defects of the Works shall be such that it corresponds with the requirements and scope of the Works and the Construction Equipment shail be in good working order and shall in particular be well suited to the purpose for which itis to be used. The Contractor shall provide and maintain sufficient Construction Equipment to meet all the requirements, and when so ordered by the Engineer the Contractor shall remove from the site all unsuitable, outdated and obsolete Construction Equipment. The approval of any Construction Equipment by the Employer or the Engineer shall not in any way release the Contractor of his obligations in terms of the Contract. 13 Information in respect of employees Competent employees Contractor's superinten- dence Contractor's Site Agent Site Agent to receive instructions Quality of materials and workmanship Quality of Construction Equipment23.3 23.4 23.5 236 23.7 The Contractor shall, if reasonably required by the Engineer, deliver to the Engineer information, in such form and at such intervals as the Engineer may prescribe, in respect of Construction Equipment ‘The Contractor shall, as provided in the Scope of Work or as instructed by the Engineer, provide at his own expense samples of materials intended to be incorporated into the Works. ‘The Contractor shall, as provided in the Scope of Work or as instructed by the Engineer, take and deliver to the Engineer test specimens from Portions of the Works already constructed, and make good any resultant damage to the Works. The Contractor shall, in accordance with the Scope of Work or if instructed by the Engineer, carry out tests on samples of materials intended to be incorporated into the Works and on any test specimens. from portions of the Works and shall carry out any other tests specified in the Scope of Works. The Contractor shall provide all necessary assistance, labour, materials, testing equipment and instruments for the purpose of such tests to be performed by himself or, if so instructed by the Engineer, for the purposes of tests to be performed by others. The following provisions shall apply in respect of the costs of the Contractor's services in terms of Clauses 23.5 and 23.6 23.7.1 The Contractor shall be deemed to have allowed in his prices for all such services as are required to be rendered by him, provided that the tests shall have been particularised in the Scope of Work in sufficient detail for him to allow for them, and 23.7.2 The Contractor shall be paid the cost of any services not covered 23.8 24. 244 by Clause 23.7.1; Provided that, if any test shall establish that the workmanship or the materials used do not comply with the Contract, the Contractor shall not be paid any amount in respect of the services concerned whether or not payment would otherwise have been due in terms of Clauses 23.7.1 or 23.7.2. The Engineer and the Contractor shall deliver to each other, within a reasonable time, accurate and complete copies of all reports on tests carried out by or on behalf of either of them, save to the extent that any such reports are prepared specifically for the purpose of proceedings in terms of Clause 58. ACCESS TO THE WORKS The Employer, the Engineer and any person authorised by either of them shall at all reasonable times have access to the Works and to the Site and to all workshops and places where work is being prepared or where materials, manufactured articles and machinery are being obtained for the Works, and the Contractor shall afford any necessary facility tor and assistance in obtaining the right to such access 14 Information in respect of Construction Equipment Samples, Test specimens Tests Cost of test specimens and tests Exchange of reports on tests ‘Access to the Works25. 25.4 25.2 25.3 26. 26.1 26.1 EXAMINATION OF THE WORKS No part of the Works or excavations shall be covered up or put out of view without the consent of the Engineer, and the Contractor shall afford full opportunity for the Engineer to examine and measwre the Works and to inspect the excavations before any Permanent Works are placed thereon. The Contractor shall give adequate notice to the Engineer whenever any part of the Works or excavations are ready or about to be ready for examination and the Engineer shall, unless he considers it unnecessary and advises the Contractor accordingly (in which event he shail be deemed to have given the consent required in terms of this Clause), attend as soon as practicable for the purpose of examining such work or excavations; Provided that, if there is any unreasonable delay in the Engineer's said attendance, the Contractor shall, in respect of that delay or any additional cost, be entitled to make a claim in accordance with Clause 48, The Contractor shall uncover any part or parts of the Works or make openings in or through the same as the Engineer may from time to time order and reinstate and make good such part or parts in accordance with the terms of the Contract. If any such part or parts have been covered up put out of view after compliance with the requirements of Ciauses 25.1 and 25.2 and are found to have been executed in accordance with the Contract, the Contractor shall in respect of any delay or additional cost, be entitled to make a claim in accordance with Clause 48, but in any other case the cost shall be borne by the Contractor and no extension of time shall be given. REMOVAL OF IMPROPER WORK AND MATERIALS The Engineer shall, during the progress of the Works, have the power to order in writing from time to time: 1 The removal from the Site, within such time or times as may be specified in the order, of any materials which are not in accordance with the Contract and the substitution of proper and suitable materials therefor, and 26.1.2 The removal and proper re-execution (notwithstanding any 26.2 previous test thereof or interim payment therefor) of any work which, in respect of materials or workmanship, is not in accordance. with the Contract In case of faiiure on the part of the Contractor to carry out such order within a reasonable time, the Employer shall be entitled to employ and pay other persons to cary out the same and all costs consequent thereon or incidental thereto, in excess of what would have been payable to the Contractor if the Contractor had carried out such order, shall be bore by the Contractor and shall be recoverable from him by the Employer. 15 Examination of work before covering up Notice to be given Uncovering and making ‘openings Removal of improper work and materials Default of Contractor in compliance27. 274 28. 28.1 29. 29.1 SEARCH FOR DEFECT The Contractor shall, if ordered by the Engineer in writing, search for the cause of any defect. If such defect shall be one for which the Contractor is not liable under the Contract, the cost of the work carried out by the Contractar in searching shall be paid to him, but if such defect shall be ‘one for which the Contractor is liable, the cost of such work shall be borne by the Contractor. URGENT REMEDIAL WORK if, by reason of any accident or failure or other event occurring to, on or in connection with the Works or any part thereof, either during the execution of the Works or during the Defects Liability Period (if any), any remedial or ather repair work shall be urgently necessary for the safety and protection of the Works or persons or property and the Contactor is not available or is unable to do such work, the Employer may by his own or other workmen have such work or repair done as may be necessary. The Engineer shall, as soon after the occurrence of any such emergency as may be reasonably practicable, notify the Contractor thereof in wiiting, if the work so done by the Employer is work which the Contractor was liable to do at his own expense under the Contract, all costs incurred by ‘the Empioyer in 60 doing shall be determined by the Engineer and shall on demand be paid by the Contractor to the Employer. VESTING OF MATERIALS All materials: 29.1.1 Brought on to the Site by or on behalf of the Contractor, or 29.1.2 Fabricated or stored at places other than the Site and agreed, in 29.3 29.4 writing, by the Employer and the Contractor to be governed by this, Clause, shall, immediately on delivery to the Site or, in the case of materials not on the Site, immediately on the conclusion of the said written agreement, be deemed to have become the Employer's property and to have been delivered to the Contractor to be held by him on behalf of the Employer. 2 The expression “materials’ used in this Clause shall include all construction materials, commodities, substances, plant, equipment and appliances all of which are to be incorporated in the Works. The Contractor shall hold, or cause to be held on behall of the Employer as owner, and be responsible for the care of all the materials referred to in Clause 29.1 and shall, in the case of materials referred to in Clause 29.1.2, cause such steps as the Engineer shall order to be taken to identity the materials as being the property of the Employer. The Contractor shall not remove from the Site any such materials which are on the Site or which are brought there from such place of fabrication or storage and shall use all such materials exclusively for incorporation in 16 Contractor to search Urgent remedial work Vesting of Definition of “materials” Identitic materials Prohibition on removal of materials29.5 30.1 31. tt 32. 32.4 92.2 the Permanent Works The operation of this Clause shall not be deemed to imply any approval by the Engineer of materials nor shall it prevent the cejection of any such materials at any time by the Engineer. REMOVAL OF CONSTRUCTION EQUIPMENT All Construction Equipment provided by the Contractor shall, when brought on to the Site, be deemed to be exclusively intended for the execution of the Works and the Contractor shall not remove the same from the Site without the consent in writing of the Engineer, which consent shall not be unreasonably withheld. The Contractor shall, in writing, notify the Engineer of the name and address of the owner of any such Construction Equipment not owned by the Contractor. PROTECTION OF THE WORKS The Contractor shall protect the Works properly and shall so arrange his operations that no danger and the least possible inconvenience are caused to the public and to vehicle and pedestrian traffic. For this purpose he shall, inter alia, provide and maintain sufficient Temporary Works, road signs, lights, barricades, fencing and guarding as may be necessary or required by any act, regulation or statutory authority. All operations required in connection with the execution and completion of the Works and Temporary Works shall, as far as the provisions of the Contract permit, not unnecessarily or in an improper manner encroach upon the use of public roads or upon access to private property, and the Contractor hereby indemnifies the Employer against any claims, demands, damage and legal costs that may arise in this regard. The Contractor shall be deemed to have allowed in his prices for all such obligations except in as far as provision is made in the Pricing Data for payment in respect of specific items pertaining to these obligations. CARE OF THE WORKS From the date when the Site is handed over to the Contractor to the date of the issue of a Certificate of Completion the Contractor shall take full responsibility for the care of the Works and of all materials on the Site intended for incorporation in the Works; Provided that, if in terms of Clause 51.6 the Engineer shall issue a Certificate of Completion in respect of any part of the Works, the Contractor shall cease to be responsible for the care of such part and responsibility therefor shall pass to the Employer. It any damage or physical loss shall happen to the Works or the said materials, or any part thereof: 32.2.1 From any cause whatsoever (other than the “excepted risks’ defined in Clause 32.3) while the Contractor is responsible for the care thereof, the Contractor shall at his own cost repair and make good the same so that, at the issue of the Certificate of Completion, the Works or the portions of the Works 40 which the 7 No approval by vesting Prohibition on removal of Construction Equipment Protection of the Works, use of public roads and access to private property Care of the Works Damage or physical loss92.22 32.2.3 Certificate relates shall be in good order and condition and in conformity with the Contract. Arising from any of the “excepted risks", the Contractor shall, if ordered by the Engineer, repair and make good the same and be paid the Cost of so doing Occasioned by the Contractor in the course of any operation carried out by him for the purpose of complying with his obligations under Clause 53 or in respect of work to be completed in terms of Clause 51.4, the Contractor shall be liable for such damage or loss. 32.3. The “excepted risks” are risks of damage or physical loss or any other loss caused by or arising directly or indirectly as a result of or as a consequence of 32.3.1 92.8.2 32.3.3 32.3.4 92.3.5 32.3.6 32.3.7 92.3.8 32.3.9 32.3.10 32.3.1 92.3.12 War, invasion, act of foreign enemies, hostilities or warlike operations (whether war be declared or not) or civil war, Insurrection, rebellion or revolution, Mutiny, military rising, military or usurped power, martial law or state of siege, or any other event or cause which determines the proclamation or maintenance of martial law or state of siege, Any event which, at the closing date of the tenders, is defined as a fisk in terms of insurance offered by the South African Special Risks Insurance Association, Any occurrence for which a fund has been established in terms of the War Damage Insurance and Compensation Act, as amended, The impact of meteorites, Pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds, lonising radiation or contamination by radioactivity from any nuclear fuel or from any nuclear waste ftom the combustion of nuclear fuels, The use of or occupation by the Employer or his employees or agents or other contractors (not employed by the Contractor) of any part of the Works, The design, specification or instruction of the Engineer, Employer or any of their employees or agents, or defects in the materials, supplied by the Employer for incorporation in the Works, The confiscation, commandeering, nationalisation, requisition or destruction of or damage to property by an order of government, or any public or local authority, The fact that the value of materials, as supplied by the Employer for incorporation in the Works, exceeds the value thereof as specified by or on behalf of the Employer at the time of delivery thereof by the Employer. 18 Excepted risks33. INDEMNIFICATIONS 83.1. The Contractor: 33.1.1 Hereby indemnifies the Employer against any liability in respect of damage to or physical loss of the property of any person or injury to or death of any person, and 33.1.2 Shall be liable to the Employer for damage to or physical loss of all property of the Employer not being portion of the Works nor of the Site arising directly from the execution of the Works; Provided that nothing herein contained shall render the Contractor liable in respect of 33.124 The permanent use or occupation of land by reason of the Works or any part thereof, 33.122 The right of the Employer to construct the Works or any part thereof over under in or through any land, 33.1.2.3 ‘Any nuisance, disturbance or interference arising necessarily by reason of the construction of the Works, 33.1.2.4 Interference, whether temporary or permanent, with any servitude or any other right which is the unavoidable result of the construction of the Works in accordance with the Contract, 33.1.25 Injuries or damage to persons or property resulting from any act, omission or neglect of the Employer, his agents, ‘employees or other contractors (not being employed by the Contractor), or 33.1.2.6 Any agreement by the Employer to pay any sum by way of indemnity or otherwise, unless liability for such payment would have existed in the absence of such agreement, 33.2 The Employer hereby indemnifies the Contractor against all liability in respect of the matters referred to in the proviso to Clause 33.1 34. REPORTING OF ACCIDENTS 34.1 tn addition to any statutory obligations, the Contractor shall, as soon as practicable, report to the Engineer every occurrence on the Works or the Site causing damage to property or injury or death to persons If required by the Engineer, the Contractor shall submit a report in writing to the Engineer within 48 hours of such requirement setting out full dotails of the occurrence. The Engineer shall have the right to make any enquiries either on the Site or elsewhere as to the cause and results of any such occurrence and the Contractor shall make available to the Engineer the necessary facilities for carrying out such enquiries 19 Injury to Persons and damage to property Indemnity by Employer Reporting of accidents35. INSURANCES 35.1. Except if provided otherwise in the Contract Data, the Contractor, without Insurances to limiting his obligations in terms of the Contract, shall before beetffected commencement of the Works at his own cost effect and maintain the following insurances in the joint names of the Employer and the Contractor: 35.1.1. Insurance of the Works and of all materials on the Site intended for incorporation in the Works against damage or physical loss fram whatsoever cause arising except the causes set out in Clause 92.3: 35.4.1.1 For which the Contractor is responsible for the Works in terms of Clause 42.1, and 35.1.1.2 For a sum insured which shall be the aggregate of 95.11.24 The Contract Price, 35.11.22 The amount stated in the Contract Data to cover the value of materials supplied by the Employer for incorporation in the Works and not included in the Contract Price, and 36.1.1.2.3 The amount stated in the Contract Data to cover professional fees, not included in the Contract Price, payable in respect of the repair or reinstatement of damage to the Works or said movables, 35.1.2 A Coupon Policy for Special Risks Insurance issued by the South African Special Risks Insurance Association unless otherwise stated in the Contract Data. 35.1.3 Liability insurance covering the Employer and the Contractor against their respective liability for the death of or injury to any person or loss of or damage to any property (other than property while itis insured in terms of Clause 35.1.1) arising out of or in the course of the performance of the Contract from the ‘Commencement Date to the date of the end of the Defects Liability Period, if there is one or otherwise to the issue of the Certificate of ‘Completion for a limit of indemnity stated in the Contract Data; Provided that the insurance shall inciude @ cross-liabilty clause such that the insurance shail apply to the Contractor and to the Employer as separate insured parties. 35.1.4 Such other additional or varied insurances as are stated in the Contract Data, 35.2 The Contractor shall be liable for the payment of the deductibles in Liability of respect of each claim settlement in terms of the policies effected by the deductibles 20