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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
Article 20 Scope of the Contract Price and Works
20.1 Both Parties confirm that the Contract sets out the whole of the scope of work of both Parties and the Contract Price.
Article 21 Setting out on the Site
21.1 The Contractor shall set out the Works in relation to original points, lines and levels of reference set out in the Special Conditions or, if not so specified, given by the Employer as agreed, or otherwise in writing within twenty-eight (28) Days of the Contract Date.
21.2 Unless otherwise agreed in writing, errors in setting out or failure to provide accurate set-out data that affect the performance of the Works shall be rectified. Errors attributable to the Employer shall be rectified at the Employer’s expense and the Contractor shall, if delayed or put to additional expense, be entitled to an extension of the Time to Taking-Over and/or payment as a Variation. The Contractor shall rectify, at its expense, any error attributable to the Contractor in the positions, levels, dimensions or alignment of the Works.
Article 22 Site information for the Contractor’s Design and use
22.1 The Employer shall be responsible for information relating to the Site and its physical elements at the time the Contractor takes possession of the Site. The Contractor shall have informed itself in an objectively reasonable way about the risks it will face.
22.2 Accordingly, in order to allow the Contractor to be acquainted with the potential risks for the construction of the Works at the Site, the Employer shall have made, make or cause to be made a diligent survey of the Site and its surroundings, including data on subsurface, hydrological and environmental aspects of the Site and environs, and at the time of calling for tenders, or at least Reference Date, shall make all such data obtained available to the Contractor for its study and use. The Employer shall similarly make available to the Contractor all such data and other information relating to the Site and its surroundings that is or later comes into the Employer’s possession.
22.3 The Contractor shall be considered to have taken such data as made available to it at the Reference Date in accordance with Article 22.2 into account in pricing the Works. The Contractor shall further be considered to have entered into the Contract on the basis of an objectively reasonable examination and interpretation of the data and information relating to the Works provided by the Employer 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 shall 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 Contractor shall notify the Employer if, during the execution of the 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 Employer under Article 22. If the Contractor 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 Employer prior to signing the Contract, will be presumed to be decisive of the issue of whether or not such artificial or physical condition or obstruction was reasonably to be expected, without need to re-determine the reasonableness requirement.
23.2 If as a result of encountering on the Site any artificial or physical conditions or obstructions (whether sub-surface or otherwise, which were not reasonably to be expected, as set out in Article 23.1) the Contractor considers it will incur or has incurred unexpected additional Cost and/or will require additional time to perform its obligations under the Contract, it shall submit proposals to
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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:
the Employer shall, after consulting the Contractor, 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 Contract Price and/or revise the Time to Taking-Over accordingly. These adjustments are binding unless and until the Contract Price and/or the Time to Taking-Over are further revised by agreement or under Chapter 13.
Use of the Method Statement to determine the time or cost implications under this Article
23.3 Whenever required by the Employer, 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 Contractor shall provide details to establish that:
a) The selected Design, construction methods, resources and/or Temporary Works and the Time Schedule were appropriate to the conditions envisaged in the Assumptions (if any);
b) The change in the Design, construction methods, resources and/or Temporary Works is/was directly necessitated by the conditions encountered being significantly different than the Assumptions; and
c) 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 Contract, it is not possible or practicable to follow the requirements of Articles 23.2 and 23.3, the Parties shall endeavour to agree on another appropriate methodology and decide the time and/or Cost implications in any event. If no agreement is reached within twenty-one (21) Days, then either Party may submit the Dispute for resolution in accordance with Chapter 13.
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 Employer who shall deal with them in accordance with the law of the Country. The Contractor shall take reasonable precautions to prevent Contractor’s Personnel or other persons from removing or damaging any of these finds.
23.6 The Contractor shall, upon discovery of any such finding, promptly give Notice to the Employer, who shall issue Instructions for dealing with it. If the Contractor suffers delay and/or incurs Costs, the Contractor shall give a further Notice to the Employer and this shall constitute a Variation in accordance with Article 35.
Article 24 Safety
24.1 Where the Contractor has possession of Sections of the Site, it has the primary responsibility for safety in those Sections. Accordingly, the Contractor shall:
24.2 The Contractor shall keep records concerning health, safety and incidents and such records shall be made available to the Employer at its request. Details of any accident shall be sent to the Employer as soon as reasonably possible after its occurrence.
24.3 As a part of its obligation to abide by all safety requirements and regulations in force at the Site or in relation to the Works (including safety requirements and regulations reasonably issued by the
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Employer), the Contractor shall make available all such requirements and regulations to the Contractor’s employees and Subcontractor(s) and instruct them to observe and abide by such requirements and regulations.
24.4 The Contractor shall, when preparing all sub-contracts and purchase orders, include terms requiring that all applicable safety requirements and security regulations for the Site and the Works shall be complied with, and a notice that the terms of all such requirements and regulations are available on request, and shall (when aware of them) notify the Employer of any violations of such requirements and regulations and recommend corrective actions thereof.
Article 25 Public convenience
25.1 The Contractor 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 Employer or of others.
25.2 The Contractor shall use reasonable efforts to prevent any access route (including roads, bridges and water routes) from being damaged by the Contractor’s traffic or by the Contractor’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 Contractor shall be repaired by or on behalf of the Contractor at its own expense.
Article 26 Environmental protection
26.1 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 its operations. If such problems seem likely to arise, the Parties shall seek guidance from the local authorities concerned.
26.2 The Contractor shall ensure that air emissions, noise, surface discharges and pollution from the construction activities shall not exceed the values indicated in the Contract (if any), in the relevant permits, third party licences or authority approvals, and shall not in any event exceed the values prescribed by applicable laws.
26.3 The Contractor 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 Employer or third parties.
26.4 Each Party shall store and handle Hazardous Materials it needs for the Works with care and diligence and pursuant to the applicable law and Good Practice. As between the Employer and the Contractor,
Article 27 Services or supplies to be supplied by the Employer or public utilities
27.1 The Employer 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 Contract. If no such supplies are specified, the Contractor shall be responsible for these supplies. Unless stated otherwise, the Contractor shall be entitled to recover increases in the Costs of such supplies and services due to inflation of the currency of the Country occurring after the Reference Date.
Payment for services provided by the Employer and public utilities
27.2 If there are services supplied by the Employer, the Contractor shall pay the Employer at cost.
27.3 In the event that the Contractor is delayed or suffers extra Cost in its execution of the Works due to a failure or inadequacy in the supply of services referred to in this Article 27, or services provided by any other service supplier of the Employer, the additional Cost and any delay shall be treated as a Variation.
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Article 28 Employer-supplied Plant, materials or Equipment
28.1 The Employer undertakes to provide the items of all goods, materials, Plant and Equipment, buildings and storage facilities in accordance with the provisions of the Contract. The Employer shall, at its risk and Cost, transport such items to the Contractor or the Site, as the case may be, at the time and place specified in the Contract, or upon agreement with the Contractor. Employer supplied goods, materials or Plant and Equipment are offered as being fit for the purposes indicated in the Employer’s Requirements and shall be insured by the Employer against damage or loss.
28.2 The Contractor shall visually inspect items upon receipt at such place, and shall notify the Employer of any shortage, defect or default; then, either the Employer shall within reasonable time rectify any shortage, defect or default, or the Contractor (if the Contractor and the Employer 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 Contractor. The Contractor’s obligations of inspection, care, custody and control shall not relieve the Employer of liability for any defect or default which could not be identified through visual inspection.
28.3 The Parties undertake, as applicable, to operate the items of Plant and Equipment in accordance with Good Practice and in accordance with the more specific details, arrangements and charges (if any) given in the Contract.
Article 29 Responsibility for shipping and storing goods and materials
29.1 Unless otherwise stated in the Contract, the Contractor 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 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 Contractor belong to the Contractor until Mechanical Completion, or are paid for, whichever is earlier. On Mechanical Completion or payment, the title to the goods, materials, Plant or Equipment is transferred to the Employer. Temporary Works and Contractor’s Equipment remain the property of the Contractor. This Article 30.1 does not affect the passing of risk.
30.2 The Contractor warrants good title to all goods, materials, Plant and Equipment provided by it hereunder, and Contractor warrants that title and ownership thereto shall pass and vest in Employer as described in Article 30.1 free and clear of any and all liens, claims, charges, security interests, encumbrances and rights of third parties. The Contractor shall indemnify the Employer against all claims resulting from any Breach of Warranty under this Article. In such case, Articles 34.7 through 34.10 shall apply accordingly, with the necessary changes being made.
30.3 Each Party warrants that prior to termination or the end of the Contract, it shall 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 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 Works, the Contractor shall clear away and remove from the Site any wreckage, rubbish, Temporary Works or material no longer required.
31.2 Upon the issuance of any Taking-Over Certificate, the Contractor shall clear away and remove from that part of the Site to which such Taking-Over Certificate refers, all Contractor’s Equipment, surplus material, wreckage, rubbish and Temporary Works. The Contractor shall leave these parts of the Site and the Works in a clean and safe condition.