Article 20 scope of the subcontract works and subcontract price

20.1 Both Parties confirm that the Subcontract sets out the whole of the scope of Subcontract Works of the Subcontractor and the Subcontract Price. Unless otherwise agreed, the Subcontractor has no role in the financing of the Subcontract Works.

20.2 Separate agreements may be made at any time for construction of other works or matters not covered by the scope of this Subcontract.

Article 21 setting out on the site

21.1 The Subcontractor shall set out the Subcontract Works in relation to original points, lines and levels of reference set out in an Appendix (if any) or, if not so specified, given by the Main Contractor, or otherwise as agreed in writing as soon as reasonably possible but in any case not later than within 21 Days of the Start Date.

21.2 Unless otherwise agreed, errors in setting out or failure to provide accurate setout data that affect the performance of the Subcontract Works will be rectified at the cost of the Party that made the error. If appropriate, the Subcontractor will be entitled to an extension of the Time to Taking Over.

Article 22 site information for the subcontractor’s design and use

22.1 The Subcontractor should have informed itself in an objectively reasonable way about the risks it will face.

22.2 In order to allow the Subcontractor to be acquainted with the potential risks for the executing of the Subcontract Works at the Site, it shall be the Main Contractor’s responsibility to pass on all surveys of the Site and its surroundings that it has, including data on subsurface, hydrological and environmental aspects of the Site and environs, and the Main Contractor at the time of calling for Tenders, or at least 28 Days prior to the Reference Date, shall make all such data obtained from the Employer available to the Subcontractor for its study and use. The Main Contractor shall similarly make available to the Subcontractor all such data and other information relating to the Site and its surroundings that is or later comes into the Main Contractor’s possession.

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22.3 The Subcontractor shall be considered to have taken such data as made available to it in accordance with Article 22.2 into account in pricing the Subcontract Works. The Subcontractor shall further be considered to have entered into the Subcontract on the basis of an objectively reasonable examination and interpretation of the data and information relating to the Subcontract Works provided by the Main Contractor and of information that it could have obtained from a visual inspection of the Site, if access to it was available.

22.4 The preceding Article 22.3 will not apply to sub-surface conditions except to the extent that boreholes and similar information can be taken to be indicative of the quality of the sub-surface materials and, if applicable, hydrological conditions at the place the borehole was made.

Article 23 unexpected artificial or physical conditions or obstructions

23.1 The Subcontractor shall give Notice to the Main Contractor if, during the execution of the Subcontract Works, it encounters on the Site any artificial or physical conditions or obstructions (whether sub-surface or otherwise) that were not reasonably to be expected prior to the submission of the Tender on the basis of the examination of data provided by the Main Contractor under Article 22. If the Subcontractor has provided design or construction Assumptions prior to or at Tender that include statements of the conditions it expects, such Assumptions, to the extent they were not contradicted by the Main Contractor prior to signing the Subcontract, will be presumed to be determinative of the issue of whether or not the obstruction was expected.

23.2 If as a result of encountering on the Site any artificial or physical conditions or obstructions (whether sub-surface or otherwise) the Subcontractor considers it will incur or has incurred unexpected additional Cost or will require additional time to perform its obligations under the Subcontract, it shall submit proposals to take account of the unexpected artificial or physical conditions or obstructions encountered. If any re-design arising from such proposals is such as to require a significant change in:

  1. the selected construction methods; and/or
  2. the Design; and/or
  3. resources; and/or
  4. Temporary Subcontract Works;

the Main Contractor shall, after consulting the Subcontractor, by Notice determine the appropriate Cost and/or time implications arising from changes to the Method Statement, using the Method Statement and the Assumptions as the basis for such determination, and provisionally adjust the Subcontract Price and/or revise the Time to Taking-Over accordingly. These adjustments are binding unless and until the Subcontract Price and/or the Time to Taking-Over are further revised by agreement or under Chapter 13.

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Use of the Method Statement to determine the time or cost implications under this Article

23.3 Whenever required by the Main Contractor, or if it wishes on its own initiative to do so in order to ascertain valuations and for assessments of time or cost under this Article 23, the Subcontractor shall provide details to establish that:

  1. the selected Design, construction methods, resources and/or Temporary Subcontract Works and the Time Schedule were appropriate to the conditions envisaged in the Assumptions (if any);
  2. the change in the Design, construction methods, resources and/or Temporary Subcontract Works is/was directly necessitated by the conditions encountered being significantly different than the Assumptions; and
  3. any revision to the Time Schedule and extension of the Time to Taking- Over sought is directly necessitated by the conditions aforesaid.

23.4 Where, because of the circumstances surrounding the Subcontract, it is not possible or practicable to follow the requirements of Articles 23.2 and 23.3, the Parties will endeavour to agree on another appropriate methodology and decide the time and/or Cost implications in any event.

Fossils, mineral deposits of economic interest and items of archaeological interest

23.5 All fossils, coins, mineral deposits of economic interest, articles of value or antiquity and structures and other remains or items of geological or archaeological interest found on the Site shall be placed under the care and authority of the Main Contractor who shall deal with them in accordance with the law of the Country. The Subcontractor shall take reasonable precautions to prevent Subcontractor’s Personnel or other persons from removing or damaging any of these finds.

23.6 The Subcontractor shall, upon discovery of any such finding, promptly give Notice to the Main Contractor, who shall issue Instructions for dealing with it. If the Subcontractor suffers delay and/or incurs Costs, the Subcontractor shall give a further Notice to the Main Contractor and shall be entitled to an extension of the Time to Taking-Over affected by the discovery, and payment for the additional work in accordance with Articles 35 and 36.

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Article 24 safety

24.1 To the extent and because the Subcontractor has possession of Sections of the Site, it has responsibility for safety in those Sections. Accordingly, the Subcontractor shall:

  1. comply with all applicable safety regulations, and if none are applicable, Good Industry Practice;
  2. take care for the safety of all persons entitled to be on Site, and not knowingly create hazards for persons not entitled to be on its Section of the Site;
  3. use reasonable efforts to keep its Section of the Site and Subcontract Works clear of unnecessary obstructions so as to avoid danger to all persons; and
  4. if they are not provided by the Main Contractor or Employer, then, to the extent they are necessary, provide any Temporary Subcontract Works (including roadways, footways, guards, lighting and fences) that may be necessary, because of the execution of the Subcontract Works, for the use and protection of the public and of owners and occupiers of areas adjacent to the Site.

Article 25 public convenience

25.1 The Subcontractor shall not interfere unnecessarily or improperly with the convenience of the public, or the access to and use and occupation of all roads and footpaths, irrespective of whether they are public or in the possession of the Main Contractor, Employer or of others.

25.2 The Subcontractor shall use reasonable efforts to prevent any access route (including roads, bridges and water routes) from being damaged by the Subcontractor’s traffic or by the Subcontractor’s personnel, save to the extent such damage is caused by reasonable fair wear and tear. These efforts shall include the proper use of appropriate vehicles and routes. Any such damage caused by the Subcontractor shall be repaired by or on behalf of the Subcontractor at its own expense.

Article 26 environmental protection

26.1 Prior to the issuance of the Taking-Over Certificate, the Parties shall take reasonable steps not to damage the environment (either on or off the Site) or cause a nuisance to people or property from pollution, noise or other results of their operations and will comply with the applicable environmental legislation.10If such problems seem likely to arise, the Parties will seek guidance from the local authorities concerned.

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26.2 The Subcontractor shall not be responsible for any damage, nuisance or other effects to people or property resulting from pollution, noise or any other consequence of pre-existing conditions of the Site, or the activities of other contractors of the Main Contractor or the Employer or third parties.

26.3 The Parties are obliged to finally dispose of all waste, including but not limited to, hazardous waste and wastewater that is generated during the development of the Subcontract Works. This disposal shall be carried out in accordance with the applicable regulations and in a fashion that is consistent with international practices.

26.4 The Subcontractor is obliged to carry out the necessary activities to remove wastewater generated during the development of the Subcontract Works, in accordance with the Subcontract and applicable law. The Main Contractor shall support the Subcontractor so it can comply with the applicable legislation.

Article 27 services or supplies to be supplied by the main Contractor

27.1 The Main Contractor shall be responsible for the provision of all power, water and other services or supplies to the Site as set out in the Appendices or elsewhere in the Subcontract. If no such supplies are specified, the Subcontractor will be responsible for these supplies. Unless otherwise agreed, increases in the Costs to the Subcontractor for such supplies and services after the Reference Date over and above the rate of inflation in the Country will not be considered to have been included in the Subcontractor’s Tender.

Payment for services provided by the Main Contractor

27.2 If there are services supplied by the Main Contractor, the Subcontractor shall pay for these at the prices set out in an Appendix (if any) and/or as stated elsewhere in the Subcontract. If no price is stated, the price(s) shall be determined by a method to be agreed by the Parties prior to the Start Date. The quantities consumed shall be determined by agreement, and the Main Contractor shall include the amounts due as deductions in Payment Certificates.

27.3 In the event that the Subcontractor is delayed or suffers extra Cost in its execution of the Subcontract Works due to a failure or inadequacy in the supply of services from the Main Contractor referred to in this Article 27, the additional Cost and any delay shall be treated as a Variation.

27.4 The Subcontractor is not deemed to have included in its Tender the Costs of “unusual disruption” to services. Unless otherwise agreed, “unusual disruption” means interruption of supply for more than one hour in total per Day during working hours.

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Article 28 main Contractor/employer-supplied plant, materials or equipment

28.1 The Main Contractor undertakes to provide, either by itself or by and on behalf of the Employer, all goods, materials, Plant and Equipment, buildings and storage facilities specified in the Subcontract in accordance with the provisions of the Subcontract. The Main Contractor shall, at its risk and Cost, transport, or procure transport for, such items to the Subcontractor or the Site, as the case may be, at the time and place specified in the Subcontract, or upon agreement with the Subcontractor. Main Contractor-supplied goods, materials or Plant and Equipment are offered as being fit for the purposes for which they are intended.

28.2 The Subcontractor shall visually inspect items upon receipt at such place, and shall give Notice to the Main Contractor of any shortage, Defect or default; then, either the Main Contractor shall immediately rectify any shortage, Defect or default, or the Subcontractor (if the Subcontractor and the Main Contractor so agree) shall carry out such rectification as a Variation. After visual inspection, such items shall come under the care, custody and control of the Subcontractor. The Subcontractor's obligations of inspection, care, custody and control shall not relieve the Main Contractor of liability for any undetected shortage, Defect or default.

28.3 The Parties undertake, as applicable, to operate the items of Plant and Equipment in accordance with the details, arrangements and charges (if any) given in the Subcontract or in accordance with Good Industry Practice.

Article 29 responsibility for shipping and storing goods and materials

29.1 Unless otherwise agreed, the Subcontractor shall be responsible for packing, loading, transporting, receiving, unloading, storing and protecting all goods and other things to be supplied by or on its behalf and required for the Subcontract Works, and shall bear all expenses associated with these activities.

Article 30 ownership of goods, material, plant and equipment/liens, trusts and similar claims

30.1 Unless otherwise agreed and as between the Parties, all goods, materials, Plant and Equipment supplied hereunder by or on behalf of the Subcontractor belong to the Subcontractor until they are incorporated into the Subcontract Works, or are paid for, whichever is earlier. On incorporation or payment, the title to the goods, materials, Plant or Equipment is transferred to the Main Contractor. Temporary Subcontract Works and Subcontractor’s Equipment remain the property of the Subcontractor. This Article 30.1 does not affect the passing of risk.

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30.2 The Subcontractor warrants good title to all goods, materials, Plant and Equipment provided by it hereunder, and Subcontractor warrants that title and ownership thereto shall pass and vest in Main Contractor as described in Article 30.1 free and clear of any and all liens, claims, charges, security interests, encumbrances and rights of its other subcontractors. In case of breach of this warranty, the Subcontractor shall indemnify the Main Contractor against all claims resulting from such breach. In such case, Articles 34.8 through 34.11 shall apply accordingly, with the necessary changes being made.

30.3 Each Party warrants that prior to termination or the end of the Subcontract, it will not itself or through its agents in any way prevent the other Party from dealing with the other Party’s own goods, materials, Plant or Equipment or Main Contractor’s Equipment or levy execution against, place liens or trust declarations on or otherwise encumber the goods, materials, Plant or Equipment or allow any of their agents to levy execution against, place liens on or otherwise encumber the goods, materials, Plant or Equipment wherever they may be found.

Article 31 Keeping the site clear

31.1 During the course of the Subcontract Works, the Subcontractor shall clear away and remove from the Site any wreckage, rubbish, Temporary Subcontract Works or material no longer required.

31.2 Upon the issue of any Taking Over Certificate, the Subcontractor shall clear away and remove from that part of the Site to which such Taking-Over Certificate refers, all Subcontractor's Equipment, surplus material, wreckage, rubbish and Temporary Subcontract Works. The Subcontractor shall leave these parts of the Site and the Subcontract Works in a clean and safe condition.

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It is advised that a study be carried out to determine whether or not the soil is polluted (a Phase I study) before the Subcontractor begins to carry out its activities, or takes possession of the Site. 32