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Conditions of Contract [Project Name] NZTA Contract No. [Contract Number]
DOCUMENT CHANGE FORMAT CODES This proforma document provides the basis for the development of physical works contract documents for Waka Kotahi NZ Transport Agency’s (Transport Agency) Design and Construct (contracts >$4.5M) and Design and Construct (Basic) (contracts up to $4.5M) specific project contracts. The purpose of the proforma is to provide consistency throughout the Transport Agency’s regional operations and to ensure that an appropriate level of detail is provided for tender documentation. Black Black text is mandatory and may not be changed without approval prior to issue by the Transport Agency’s Project Manager, who will consult with the Transport Agency’s HNO Procurement Team on all material changes made. Red Red text is used for data which requires fields to be updated or at least considered for each contract and marked at the beginning with [ and the end with ]. Text can also be used as is, modified or replaced. All red text adjustments must have the Transport Agency’s Project Manager’s approval. Red text must be converted to Black text, prior to tender document release. Blue Blue text is used for optional clauses which can be included as is or deleted in full. Blue text must be converted to Black text, prior to tender document release. Purple Purple text is used for prequalification clauses which are to be included for prequalification tenders only. Prequalification clause details must be prior approved with the Project Manager. Purple text must be converted to Black text, prior to tender document release. Blue text with yellow highlighting and marked at the beginning with > are guidance notes for the Tender Document creator. Guidance notes must be removed prior to tender document release.
[Insert Contract name] Waka Kotahi NZ Transport Agency
Contract No: [insert no] Conditions of Contract
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CONTENTS
CONTRACT AGREEMENT................................................................................................................................ 2
GENERAL CONDITIONS................................................................................................................................... 4
SCHEDULES TO THE GENERAL CONDITIONS OF CONTRACT.................................................................. 5
Schedule 1 – Special Conditions of Contract – Specific Conditions of Contract................................................ 5
Schedule 2 – Special Conditions of Contract – Other Conditions of Contract .................................................22
Schedule 3 – Form of Contractor’s performance bond .................................................................................... 34
Schedule 4 – Form of Principal’s bond ............................................................................................................. 35
Schedule 5 – Form of Contractor’s bond in lieu of retentions .......................................................................... 36
Schedule 6 – Form of Producer Statement - Construction............................................................................... 38
Schedule 7 – Information on Contractor arranged construction insurance ......................................................39
Schedule 8 – Information on Contractor arranged Plant insurance ................................................................. 41
Schedule 9 – Information on public liability insurance ...................................................................................... 43
Schedule 10 – Information on Contractor arranged motor vehicle insurance ..................................................46
Schedule 11 – Information on Contractor arranged professional indemnity insurance ...................................48
Schedule 12 – Information on Principal arranged construction insurance .......................................................49
Schedule 13 – Form of Contract (or Subcontractor) warranty.......................................................................... 50
Schedule 14 – Agreement for off-site Materials ............................................................................................... 51
Schedule 15 – Practical Completion Certificate ............................................................................................... 55
Schedule 16 – Final Completion Certificate ..................................................................................................... 56
Schedule 17 – Deed of Novation ...................................................................................................................... 57
Schedule 18 – Cost fluctuations ....................................................................................................................... 60
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CONTRACT AGREEMENT
CONTRACT FOR
CONTRACT NUMBER
THIS AGREEMENT is made on 20
BETWEEN (‘the Contractor’)
AND New Zealand Transport Agency (Waka Kotahi NZ Transport Agency), a (‘the Principal’)
Crown entity, established on 1 August 2008 by Section 93 of the Land
Transport Management Act 2003 (the Transport Agency)
IT IS AGREED as follows:
1. The Contractor shall carry out the obligations imposed on the Contractor by the Contract.
2. The Principal shall pay the Contractor the sum of $ ___________________________________
or such greater or less sum as shall become payable under the Contract together with goods and
services tax at the times and in the manner provided in the Contract.
3. Each party agrees to the terms and conditions as set out in the Contract.
4. The Contract comprises the following documents:
(a) This Contract Agreement;
(b) The notification of acceptance of tender or award of Contract;
(c) The following post-tender documents
(d) Schedule 2: Special Conditions of Contract – Other Conditions of Contract;
(e) Schedule 1: Special Conditions of Contract – Specific Conditions of Contract;
(f) The General Conditions of Contract NZS3916: 2013 (including other Schedules);
(g) The Principal’s Requirements and Specifications issued prior to the Date of Acceptance of
Tender;
(h) Drawings issued prior to the Date of Acceptance of Tender;
(i) The Schedule of Prices
(j) The Contractor’s tender;
(k) Notices to Tenderers :
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(l) The Schedule to the Conditions of Tendering;
(m) The Conditions of Tendering; and
(n) The following additional documents:
5. The documents comprising the Contract shall be taken as mutually explanatory.
6. This Contract shall constitute the entire agreement between the parties. This Contract supersedes all
prior negotiations, representations, and warranties, except insofar as the same are expressly
incorporated herein.
SIGNED BY Authorised Signatory of Contractor
SIGNED BY Authorised Signatory of Principal
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GENERAL CONDITIONS
The General Conditions of Contract shall be those included in NZS 3916: 2013 Conditions of Contract for
Building and Civil Engineering - Design and Construct and the following clauses.
.
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SCHEDULES TO THE GENERAL CONDITIONS OF
CONTRACT
Schedule 1 – Special Conditions of Contract – Specific Conditions of
Contract
(Clause numbers refer to General Conditions)
Contract for: [Contract Number, Contract Name]
Clause Title and subject matter Specific condition data
in General (Expand cells if required or add reference to further detail
Conditions provided in Schedule 2.)
1 INTERPRETATION
1.2 Definitions
The Principal is: The Principal is: New Zealand Transport Agency
(Waka Kotahi NZ Transport Agency), a Crown entity,
established on 1 August 2008 by Section 93 of the
Land Transport Management Act 2003 (the Transport
Agency)
of: Click to enter street address
1.2, 10.2 Separable Portions
• Are there any Separable Portions in this Select yes or no
Contract?
• If yes, the Separable Portions are as Click to enter reference
follows and as further defined in the
Contract.
2 THE CONTRACT
2.1 Type of Contract
2.1.1 This Contract is a:
(a) Lump sum contract governed by 2.2
2.4 Local authority contracts in public places, and road contracts
2.4.1 Is this Contract a local authority contract to Select yes or no
which 2.4.2 applies
2.4.3 Is this Contract a contract in a public place to Select yes or no
which B1 and B2 of Appendix B apply?
2.4.4 Is this Contract a road contract to which Select yes or no
Appendix B applies?
If yes, the allowance under B3 shall be: Refer to Schedule 2 – Special Conditions of Contract -
Other Conditions of Contract, Clause 10.3.1
2.5 Evidence of Contract
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Clause Title and subject matter Specific condition data
in General (Expand cells if required or add reference to further detail
Conditions provided in Schedule 2.)
2.5.2 How is the Contract Agreement executed?
(a) As stated in 2.5.2
2.6 Documents prepared by the Engineer or Principal
2.6.1 Copies of the Contract shall be supplied pdf
without charge to the Contractor in the
following electronic format:
2.7 Documents prepared by the Contractor
2.7.2 Copies of the Contract shall be supplied
without charge to the Engineer:
• Number of hard copy sets: Click to enter number
• In the following electronic form: pdf
3. BONDS
3.1 Contractor’s Bond
3.1.1 Is a Contractor’s Bond required? Select yes or no
Note - Bonds are accepted in principle from
3.1.2 If yes, the amount of the Contractor’s Bond Click to enter value ($) or % Contract Price
shall be:
3.2 Principal’s Bond
3.2.1 Is a Principal’s Bond required? Select yes or no
4. SUBCONTRACTS
4.1 General
4.1.1 Is the transfer of design agreements Select yes or no
required?
5. GENERAL OBLIGATIONS
5.1.10, Time for review of Design Documentation by (select one to apply, (a) or (b))
5.1.12, Engineer
5.1.14,
5.1.15
(a) 10 Working Days;
(b) Within the following time:
Click to enter reference
5.4 Possession of the Site
The Contractor shall be given possession of (select one to apply, (a) or (b)
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Clause Title and subject matter Specific condition data
in General (Expand cells if required or add reference to further detail
Conditions provided in Schedule 2.)
the Site
(a) 10 Working Days after the Date of
Acceptance of Tender:
(b) On the following date: Click to enter a date
On the date specified in the contract acceptance
letter
5.4.3 Limits on the Contractor’s right of entry to Nil or “As detailed in the Principal’s Requirements”
adjoining properties are:
5.5 Separate Contractors
5.5.1 Separate Contractors who may be carrying Contract Number, Contract Name [Contractor to be
out work on the Site concurrently with the named]
Contract Works are:
5.5.2 Are facilities for Separate Contractors Select yes or no
required?
If yes, details of facilities required are: Click to enter text
5.6 Care of works and Site
5.6.6(f) Further risks specifically excepted are: Nil
5.10 Programme
5.10.4 Is the programme required to be a Select yes or no
Comprehensive Programme?
5.10.4(e) If yes, other requirements for the Programme shall be consistent in principle, philosophy
Comprehensive Programme are: and milestones with the submitted Tender
Methodology and Tender Programme unless
exception is requested and approved by the Engineer.
5.10.5 The Comprehensive Programme shall us the Click to enter text
following software:
5.10.6 Updates of the Comprehensive Programme Click to enter text
shall be provided at the following intervals:
5.11 Compliance with laws
5.11.3 Exceptions to the Principal’s obligations to Nil
obtain licences under 5.11.3 are:
5.11.4 Exceptions to the Contractor’s obligations to Nil
give notices and obtain other licences under
5.11.4 are:
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Clause Title and subject matter Specific condition data
in General (Expand cells if required or add reference to further detail
Conditions provided in Schedule 2.)
5.11.5 Exceptions to the Contractor’s obligation to Nil
give notices and to obtain licences for
Temporary Works and for temporary
amenities and services under 5.11.5 are:
5.17 Safety plan
Is a Site-specific safety plan required to be Select yes or no
prepared by the Contractor?
5.18 Quality plan
Is a quality plan required to be prepared by Select yes or no
the Contractor?
5.19 Traffic management plan
Is a traffic management plan required to be Select yes or no
prepared by the Contractor?
5.20 As-built drawings and operation and maintenance manuals
5.20.1(a) Are as-built drawings required to be Yes
prepared by the Contractor, set out in the
project specification?
5.20.1(b) Are operation and maintenance manuals Yes
required to be prepared by the Contractor,
as set out in the project specification?
6. THE ENGINEER
6.1 Appointment of the Engineer
6.1.2 The Engineer is: Name, Company, Street Address
Whose professional qualification is: Click to enter text
6.4.6 The Principal will recover the cost for
reinspection, remeasuring or retesting at the
following rates:
• Engineer or other professional [$250.00] per hour (exclusive of GST)
• Other personnel [$200.00] per hour (exclusive of GST)
• Vehicle running [$1.00] per km (exclusive of GST)
• Sub-consultant invoices Cost plus [15%]
7. INDEMNITY
7.1.5 Liability Cap Insert amount of cap
7.1.6(h) Other Exclusions List any other exclusions or state “None”
7.1.7(h) Other Consequential Losses List any other consequential losses or state “No further
matters”
7.1.8 Exclusions List any other exclusions or state “No further
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Clause Title and subject matter Specific condition data
in General (Expand cells if required or add reference to further detail
Conditions provided in Schedule 2.)
exclusions”
8. INSURANCES
8.1 General
8.1.1 The party identified below shall arrange the
following insurances referred to in the
following clauses
8.3 or 8.8 Construction Select Contractor or Principal
8.8 Existing structure(s) and contents) Select Principal if insurance is required
8.4 Plant Contractor
.
8.5 or 8.9 Public liability Principal
8.5.2 Motor Vehicle Contractor
8.6 Professional Indemnity Contractor
8.1.6 The following forces of nature shall be
(a) Earthquake Select yes or no
(b) Tsunami Select yes or no
(c) Tornado Select yes or no
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Clause Title and subject matter Specific condition data
in General (Expand cells if required or add reference to further detail
Conditions provided in Schedule 2.)
(d) Cyclone Select yes or no
(e) Storm Select yes or no
(f) Flood Select yes or no
(g) Lightning strike Select yes or no
(h) Volcanic activity Select yes or no
8.3, 8.8 Construction insurance
(These items are required to be completed whether the Contractor or the Principal is the insuring party (see 8.1
above)
8.3.2, 8.8 The following shall have their respective
8.3.3, 8.8 Where construction insurance is required
(see 8.1 above), the amount of insurance to
be effected for the Contract Works and
Materials shall be for not less than the sum
of the Contract Price, after acceptance of the
tender or other offer, plus the following
allowances:
(a) An allowance for the Cost of demolition, (Select one to apply, (i) or (ii))
disposal and preparation for
replacement work, equal to:
(i) The amount in the right hand [$xxxxx]
column:
(ii) The percentage of the Contract [5%]
Price adjusted as above, stated in
the right hand column:
(b) An allowance for professional services (Select one to apply, (i) or (ii))
fees including the Cost of clerks of
works and inspectors, equal to:
(i) The amount in the right hand [$xxxxx]
column:
(ii) The percentage of the Contract [5%]
Price adjusted as above, stated in
the right hand column:
(c) An allowance for items to be (Select one to apply, (i) or (ii))
incorporated in the Contract Works, the
Cost of which is not included in the
Contract Price, equal to:
(i) The amount in the right hand [$xxxxx]
column:
(ii) The percentage of the Contract [5%]
Price adjusted as above, stated in
the right hand column:
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Clause Title and subject matter Specific condition data
in General (Expand cells if required or add reference to further detail
Conditions provided in Schedule 2.)
(d) An allowance for an increase in the (Select one to apply, (i) or (ii))
Contract Price due to Variations, equal
to:
(i) The amount in the right hand [$xxxxx]
column:
(ii) The percentage of the Contract [5%]
Price adjusted as above, stated in
the right hand column:
(e) An allowance for an increased (Select one to apply, (i) or (ii))
construction Costs due to inflation,
equal to:
(i) The amount in the right hand [$xxxxx]
column:
(ii) The percentage of the Contract [5%]
Price adjusted as above, stated in
the right hand column:
The insurance shall make provision for automatic change of cover for items (a) and (e) above, to
provide insurance for any additions to or deductions from the Contract Price which occur after
acceptance of the tender or other offer.
8.4 Contractor arranged Plant insurance
Where Plant is required to be insured (see (Select one to apply, (a) or (b))
8.1 above):
(a) The Contractor shall insure the following
items of Plant on Site for the amounts [list specific items]
stated:
(b) The Contractor shall insure each item of $200,000
Plant on the Site having a current market
8.5 Contractor arranged public liability insurance
8.5.1 Where required (see 8.1 above), public [$5,000,000]
liability insurance shall be effected by the
Contractor for an amount not less than:
Such public liability insurance may include
sub limits:
8.5.2 Where required (see 8.1 above), motor [$5,000,000]
vehicle third party liability insurance shall be
effected for an amount not less than:
8.6 Contractor arranged professional indemnity insurance
8.6.1 Where required (see 8.1 above),
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Clause Title and subject matter Specific condition data
in General (Expand cells if required or add reference to further detail
Conditions provided in Schedule 2.)
professional indemnity insurance for design
by the Contractor shall be effected for an
amount not less than:
• For any one claim: [$XXXXX]
• And for an amount in the aggregate of: [$XXXXX]
8.6.2 Sub limits of liability for design of parts of the [List specific parts] or [Not required]
Contract Works by Subcontracts shall not be
8.8 Principal arranged construction insurance (refer also to 8.3)
In accordance with 8.7.2, the insurance New Zealand Transport Agency (Waka Kotahi NZ
policy wording title for 8.8.1 and 8.8.2 (a), Transport Agency) (the Transport Agency) as Principal
(b), and (c) is: and its Contractors and their Sub Contractors for their
respective rights and interests
In accordance with 8.7.2, the extraordinary Specific policy wording applicable to this contract will
exclusions, conditions, warranties or be provided by Risk and Assurance
endorsements to the policy for 8.8.1 and
8.8.2 (a), (b) and (c) are:
8.8.1 Where the Principal is required to effect
construction insurance (see 8.1 above).
The lead insurer can be found at: https://www.marsh.com/nz/industries/transportation/nz-
transport-agency-pai.html
The Nominal Deductibles are:
Original Estimated Contract Value
>0 to >10m to >50m
10m 50m
Each loss $10,000 $25,000 $50,000
except as
below:
Major Perils $25,000 $50,000 $100,000
Wet Work $150,000 $200,000 $300,000
Contracts
Tunnelling $150,000 $200,000 $300,000
Contracts
(including
excavations
/
underpasses
>100m)
LEG 3/06 $150,000 $150,000 $250,000
Defects
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Clause Title and subject matter Specific condition data
in General (Expand cells if required or add reference to further detail
Conditions provided in Schedule 2.)
Claims
For this contract, the Original Estimate Contract Value
is in the range Select value
8.8.2(a) The existing structures are: N/A
8.8.2(b) Other structures in the vicinity are: N/A
8.8.2(c) Contents insurance are: N/A
8.9 Principal’s option to insure public liability
>
Where required (see 8.1 above), the Select an option
Principal shall effect public liability insurance
for an amount not less than:
The lead insurer can be found at: https://www.marsh.com/nz/industries/transportation/nz-
transport-agency-pai.html
The Nominal Deductibles are:
Original estimated contract value
0 to 5m >5m to >10m
10m
Each $10,000* $20,000* $25,000*
occurrence
(including
Maintenance
Contracts)
*Including costs and expenses
For this contract, the Original Estimate Contract Value
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Clause Title and subject matter Specific condition data
in General (Expand cells if required or add reference to further detail
Conditions provided in Schedule 2.)
is in the range Select value
In accordance with 8.7.2:
• The policy wording title is: Specific policy wording applicable to this contract will
be provided by Risk and Assurance
• Extraordinary exclusions, conditions, Specific policy wording applicable to this contract will
warranties, or endorsements to the policy be provided by Risk and Assurance
are:
9. VARIATIONS
9.3 Valuation of Variations
9.3.9 For On-site Overheads: (select one to apply, (a) or (b))
(a) The prices and rates in the Schedule of
Prices are inclusive of full allowance for
On-site Overheads;
(b) The prices and rates in the Schedule of (select one to apply, (i), (ii), (iii), or (iv))
Prices are exclusive of On-site
Overheads and the allowances for On-
site Overheads to be added in
accordance with 9.3.9 is:
(i) Agreed percentage: [XX%]
(ii) As nominated in the Schedule of
Prices.
(iii) As nominated in the Contractor’s
tender.
(iv) A reasonable percentage.
9.3.10 For Off-site Overheads and Profit: (select one to apply, (a) or (b))
(a) The price and rates in the Schedule of
Prices are inclusive of full allowance for
Off-site Overheads and Profit;
(b) The prices and rates in the Schedule of (select one to apply, (i), (ii), (iii), or (iv))
Prices are exclusive of Off-site
Overheads and the allowances for Off-
site Overheads and Profit to be added in
accordance with 9.3.10 is:
(i) Agreed percentage: [XX%]
(ii) As nominated in the Schedule of
Prices.
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Clause Title and subject matter Specific condition data
in General (Expand cells if required or add reference to further detail
Conditions provided in Schedule 2.)
(iii) As nominated in the Contractor’s
tender.
(iv) A reasonable percentage.
9.3.11 For time related Cost, the Working Day rate (select one to apply, (a), (b), (c,) or (d))
in compensation for time-related On-site
Overheads and Off-site Overheads and
Profit in relation to an extension of time to be
applied in accordance with 9.3.11 is:
(a) Agreed percentage: [XX%]
(b) As nominated in the Schedule of Prices.
(c) As nominated in the Contractor’s tender.
(d) A reasonable compensation.
9.3.15 For processing of Variations, the percentage (select one to apply, (a), (b), (c,) or (d))
to be paid in accordance with 9.3.15 is:
(a) Agreed percentage: [XX%]
(b) As nominated in the Schedule of Prices.
(c) As nominated in the Contractor’s tender.
(d) A reasonable Cost of processing the
10. TIME FOR COMPLETION
10.2 Due Date for Completion
10.2.1 The periods to be used for calculating the (select one to apply, (a), (b) or (c))
Due Date for Completion are:
(a) For the Contract Works: Click to enter number of Working Days
(Working Days)
(b) For any Separable Portions: Click to enter number of Working Days
(Working Days)
Click to enter details
(c) In respect of the Contract Works the Nil
Number of Weeks nominated by the
10.4 Practical Completion Certificate
10.4.5 Prior to issue of the Practical Completion (select one to apply, (a), (b) or (c))
Certificate:
(a) Producer Statements in the form of
Schedule 6 are required;
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Clause Title and subject matter Specific condition data
in General (Expand cells if required or add reference to further detail
Conditions provided in Schedule 2.)
(b) Producer Statements as set out in the
following parts of the Contract are [Project Specification Section X]
required:
(c) Producer Statements are not required.
10.5 Damages for late completion[Insert Contract name] Waka Kotahi NZ Transport Agency
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Clause Title and subject matter Specific condition data
in General (Expand cells if required or add reference to further detail
Conditions provided in Schedule 2.)
(a) No warranties are required;
11.6 Guarantees
11.6.1,
11.6.2
(a) No guarantees are required;
(b) The Contractor shall provide guarantees
in the following form: [State form]
12. PAYMENTS
12.1 Contractor’s payment claims
12.1.3(b) (iii) Advances for Materials delivered to the (select one to apply, (a) or (b))
Site
(a) Advances for Materials delivered to the
Site but which have yet to be
(b) Advances for Materials delivered to the
Site but which have yet to be [state any conditions]
incorporated in the Contract Works shall
be made, subject to the following
conditions:
12.1.3(b) (iv) Advances for Temporary Works or Plant (select one to apply, (a) or (b))
(a) Advances for Temporary Works or Plant
shall not be made.
(b) Advances for Temporary Works or Plant
shall be made, subject to the following [state any conditions]
conditions:
12.1.3(b) (iv) Advances for Materials not yet on Site (select one to apply, (a) or (b))
(a) Advances for Materials not yet on Site
shall not be made.
(b) Advances for Materials not yet on Site
shall be made, subject to the following
(a) The Contractor agrees to execute an
conditions:
Agreement in respect of off-site
materials in the form as set out in the
Fourteenth Schedule of these
Conditions of Contract or other
appropriate form as notified by the
Principal.
(b) The Contractor shall ensure that at all
times the Materials are fully insured in
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Clause Title and subject matter Specific condition data
in General (Expand cells if required or add reference to further detail
Conditions provided in Schedule 2.)
accordance with the provisions of
section 8 of the General Conditions of
Contract (as appropriate), and supply
evidence of same to the Principal.
(c) The Contractor shall keep the Principal
indemnified against loss, damage
costs, claims, expenses or liability
incurred by the Principal in respect to
any loss of, or damage to, or defect in
all or part of the Materials to the extent
that the Principal is not so indemnified
under section 7 of the General
Conditions of Contract
(d) Materials shall be stored on approved
sites in such a manner that will ensure
the preservation of the quality, fitness
for the work and security. They shall be
so located and disposed that prompt
and proper inspection may be made.
The Contractor warrants that in relation
to such Materials, those Materials
when incorporated into the Contract
Works will be compliant with any
technical requirements as required
under the Contract Document. The
Engineer shall be given reasonable
access to inspect the relevant
Materials.
(e) Following payment to the Contractor
ownership of the Materials shall vest in
the Principal as legal and beneficial
owner free of all charges and
encumbrances of any nature
whatsoever. The Contractor shall
ensure that all secured creditors of the
Contractor are given written notice of
the existence of the Principal’s
ownership of the Materials and of the
conditions of the relevant advance.
Should any portion of the Materials no
longer be required for the Contract
Works, the Contractor shall be
responsible for all costs of storage,
handling and disposal of the surplus
Materials. The Contractor shall only
dispose off such surplus Materials
following a written instruction from the
Engineer. Ownership of such surplus
Materials shall re-vest in the Contractor
as the Contractor disposes of such
surplus Materials. The Principal shall
recover the value of disposed material
from subsequent progress payments,
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Clause Title and subject matter Specific condition data
in General (Expand cells if required or add reference to further detail
Conditions provided in Schedule 2.)
at the same rates as paid to the
Contractor for the Materials stored off
site.
(f) The advance payment for the
Materials, shall be recovered
progressively by deduction from
progress payments as such Materials
are incorporated into the Contract
Works
12.3 Retention monies
12.3.1, The percentage to be retained from each (select one to apply, (a) or (b), and (c))
12.3.2 progress payment and the limit of the total
sums retained shall be in accordance with
the following:
(a) For the Contract Works, a total retention
of:
• 5% on the next $800,000, and
• 1.75% on amounts in excess of
$1,000,000, and
• With a maximum total retention
when aggregated of $200,000
(b) For the Contract Works, the retention
scale in the right hand column:
A total retention of:
• [XX%] on the first [$xxx,xxx], plus
• [x%] of the next [$xxx,xxx], plus
• [x%] on amounts in excess of [$xxx,xxx], and
• With a maximum total retention of [$xxx,xxx] when
aggregated
(c) For Key Personnel
Refer to Schedule 2 – Special Conditions of Contract -
Other Conditions of Contract, Clause 5.23
The amount to be retained in respect of the Contract Works in accordance with this clause shall not be
reduced, until all Asset Register (RAMM) information, all draft as-built drawings and all operations and
maintenance manuals required to be submitted at or before Practical Completion, have been submitted
to the Engineer. The retention monies shall not be reduced, until all RAMM information, all final as-built
drawings and all operations and maintenance manuals required to be submitted at or before the end of
the Defects Notification Period have been submitted to the Engineer
12.3.3 Bond in lieu of retention (select one to apply, (a) or (b))
(a) The Contractor may provide a bond in
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Clause Title and subject matter Specific condition data
in General (Expand cells if required or add reference to further detail
Conditions provided in Schedule 2.)
lieu of retentions. The percentage to be
retained from each progress payment
and the limit of the total sums retained
shall be nil if the Contractor provides a
Bond in Lieu of Retentions (Schedule 5).
The value of the bond shall be the
applicable retention amount plus a
further 10%
(b) The Contractor may not provide a bond
in lieu of retentions
12.8 Cost fluctuations (select one to apply, (a), (b) or (c))
(a) Cost fluctuations shall not be paid;
(b) Cost fluctuations shall be paid in
accordance with Appendix A;
(c) Cost fluctuations shall be paid in
accordance with the method described
12.13 Goods and services tax
12.13.2 Payment Schedules provided by the (select one to apply, (a) or (b))
Engineer:
(a) Shall not be in the form of a tax invoice;
(b) Shall be in the form of a buyer created
tax invoice and the parties agree not to
issue any other tax invoice for items
covered by the Payment Schedule.
13. DISPUTES
13.4 Arbitration
13.4.3 If required, the arbitrator shall be nominated [Name, Position]
by the following Person:
15. SERVICE OF NOTICES
15.1.2 For the purposes of service of written notice:
(a) The address of the Principal is:
Postal address:
Delivery address:
Mark the attention of:
Email address:
Other agreed means of electronic
communication and address detail:
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Clause Title and subject matter Specific condition data
in General (Expand cells if required or add reference to further detail
Conditions provided in Schedule 2.)
(b) The address of the Contractor is:
Postal address:
Delivery address:
Mark the attention of:
Email address:
Other agreed means of electronic
communication and address detail:
(c) The address of the Engineer is:
Postal address:
Delivery address:
Mark the attention of:
Email address:
Other agreed means of electronic
communication and address detail:
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Schedule 2 – Special Conditions of Contract – Other Conditions of
Contract
These conditions amend and supplement the General Conditions. Clause numbers refer to NZS 3916:2013.
Section 1 INTERPRETATION
In addition to 1.2 Definitions, add in the following definitions:
• BROADER OUTCOMES means the New Zealand Government’s priorities and expectations
of Government agencies with respect to their procurement activities secondary benefits
generated due to the way goods, services or works are produced or delivered, as further
described in the Government Procurement Rules (4th Ed) and at
https://www.procurement.govt.nz/broader-outcomes/, and in other such guidance materials
as notified by the Principal to the Contractor from time to time.
• DATA BREACH means any incident that:
(a) involves unauthorised access to, or use or disclosure of, any of the Principal’s
Personal Information; or
(b) exposes the Principal’s Personal Information to a more than negligible risk of
unauthorised access, use or disclosure (for example, losing an unencrypted storage
device, or storing information in an unsecured online repository); or
(c) would prompt a reasonable and prudent person in the Principal’s position to notify (or
consider notifying) the incident to the Privacy Commissioner and/or one or more
individuals under Privacy Laws.
• CONTRACTOR’S DESIGN means the design of the Contract Works including:
(a) The performance by or on behalf of the Contractor of any design investigation,
design feasibility study, design calculation, technical information calculation, design
drawing, design specification, design instruction, design procedure, monitoring or
testing of the design of the Contract Works by design personnel; and
(b) Development of all Design Documentation necessary to carry out and complete the
Contract Works; and
(c) Preparation of as-built Drawings, operation manuals and maintenance manuals as
required by the Contract Documents.
• DESIGNER means any Person / company who is employed or contracted by the Contractor
to design any part of the Contract Works.
• KEY PERSONNEL means the Contractor’s personnel nominated for the positions under the
relevant skills Form C in the Contractor’s tender submission and any other persons
identified by the Principal as key personnel with the Contractor’s prior approval.
• PERSONAL INFORMATION means any information about an individual (whether or not it is
possible to identify the individual from that information), and includes all ‘Personal
Information’ within the meaning of the Privacy Act 1993.
• PRINCIPAL’S PERSONAL INFORMATION means Personal Information made available to
the Contractor by or on behalf of the Principal, or collected by the Contractor for the
Principal, in connection with this Contract.
• PRIVACY LAWS means (i) the Privacy Act 1993, and any regulations, codes of practice
and approved information sharing agreements made under it; and (ii) any other laws insofar
as they regulate the collection, processing, storage, use and/or disclosure of information
about individuals; in each case as amended or replaced from time to time.
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• TENDERER’S NOMINATED PERSON means the person within the Tenderer’s own
organisation with whom all communication should be directed during the tender period.
• UNDERGROUND SERVICES means existing pipework, cables, conduits, conveying
services such as electricity, gas, water, waste and electronic communications, located
below the existing ground service.
• WILFUL DEFAULT means an intentional or reckless act or omission carried out with
disregard for harmful and avoidable consequences.
• WINTER PERIOD means the period [1 May] through [31 August] inclusive.
The following are modifications to the definitions in 1.2:
• CONTRACT WORKS means the works including the Temporary Works and the
Contractor's Design to be executed in accordance with the Contract.
• PRINCIPAL'S REQUIREMENTS means the Principal's written requirements for the
Contract Works included in the Contract and identified as the Principal’s Requirements
which:
(a) Shall include the purpose and performance requirements for the Contract Works; and
(b) May include outline or preliminary design, design concepts for the Contract Works,
and the Principal’s, time, cost and quality objectives for the Contract Works; and
(c) May include Drawings, Specifications, or other design document prepared by or on
behalf of the Principal; and
(d) May include any additions or modifications supplied by the Engineer to the
Contractor for the purpose of the contract.
• SUBCONTRACTOR means any Person who contracts with the Contractor to design, carry
out, or supply part of the Contract Works on behalf of the Contractor and includes any
Contractor's Designer or a Nominated Subcontractor.
Section 2 THE CONTRACT
Clause 2.2.5 is deleted and replaced with the following:
2.2.5 No discrepancy in the Schedule of Prices shall be treated as a Variation.
Section 4 SUBCONTRACTS
A new clause 4.2.8 is added as follows:
4.2.8 The Contractor shall be liable for all Costs associated with any delays or disruption caused by
Nominated Subcontractors. The Engineer may take any such delays or disruptions into account
in determining any extension of time. The Contractor shall not be entitled to compensation for
time related costs where an extension of time is granted on such grounds.
A new clause 4.3 Contractor’s Designers is added as follows:
4.3.1 The Contractor must ensure all Contractor's Designers are suitably experienced and hold
appropriate professional qualifications with regard to the design to be undertaken by that
Person.
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Section 5 GENERAL OBLIGATIONS
Clause 5.1.9 is deleted and replaced with the following:
5.1.9 The Contractor shall:
(a) as part of the programme it is to prepare under clause 5.10, submit to the Engineer for
approval a documentation program which makes allowance for draft Design
Documentation to be submitted to the Engineer in a manner and at a rate which will give
the Engineer a reasonable opportunity to review such documentation within the period of
time provided in this clause 5.1; and
(b) submit the Design Documentation it prepares to the Engineer in accordance with the
documentation program approved by the Engineer under 5.1.9(a)
New clauses 5.1.10 and 5.1.11 are added as follows:
5.1.10 The Contractor must comply with the Standards of Integrity and Conduct issued by the State
Services Commission (see https://www.procurement.govt.nz/assets/procurement-
property/documents/supplier-code-of-conduct.pdf) and any other relevant codes of conduct
notified by the Principal to the Contractor from time to time.
5.1.11 The Broader Outcomes from Rule 16 of the Government Procurement Rules apply to this
contract.
In order to ensure this Contract delivers, and enables the Principal to comply with its obligations
in relation to, the Broader Outcomes and otherwise meet best public value (Broader Outcomes
Compliance), the Contract Managers from both parties will meet within six months of contract
signing in order to assess such requirements and whether a Variation to this contract is
appropriate.
The Contractor must not require any unreasonable conditions (including unreasonable Charges)
to undertake a Variation relating to Broader Outcomes Compliance and must not refuse a
request for a Variation relating to Broader Outcomes Compliance unless the Contractor can
demonstrate the Principal’s reasonable satisfaction that the Variation: (a) is not technically
feasible; or (b) is not reasonably related or connected to the Services.
Without limiting any specific requirements incorporated by a Variation relating to Broader
Outcomes Compliance, the Contractor must use all reasonable endeavours to comply with and
achieve the Broader Outcomes, and not do anything that would result in the Principal from
failing to comply with its Broader Outcome obligations, in relation to this Contract and the
Services.
Add the following to clause 5.1.13:
5.1.13 No review of, comments upon, rejection or approval of, or failure to review or comment upon or
reject or approve, any Design Documentation prepared by the Contractor or any other direction
by the Engineer about the Design Documentation shall:
(a) relieve the Contractor from, or alter or affect, the Contractor's liabilities or responsibilities
whether under the Contract Documents or otherwise according to law; or
(b) prejudice the Principal's rights against the Contractor whether under the Contract
Documents or otherwise according to law.
A new clause 5.1.17 is added as follows:
5.1.17 During the term of the contract the Contractor must advise the Engineer to the Contract of any
potential or actual conflicts of interest with any individual or organisation engaged to complete
any of the contract works. This includes individuals and organisations engaged in any
subcontractor or other supply arrangement.
The Contractor must advise the Engineer to the Contract the means that they intend to use to
remove or mitigate such conflicts of interest.
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The Engineer must inform the Principal of any conflicts of interest notified to the Engineer by the
Contractor in accordance with this clause, and the Engineer will, in discussion with the Principal
and taking into account (but not bound by) the Contractor’s intended action, decide the
appropriate action required to remove or mitigate any actual or potential conflict of interest. The
Engineer must ensure the Contractor implements such required action.
A new clause 5.22 Risk Allocation is added as follows:
5.22.1 A number of risks may affect the performance of the services by the Contractor. This clause
schedules those risks that the Principal shall assume responsibility for. Where a risk is allocated
to the Principal, the Principal shall be solely responsible for the consequences of the relevant
event, except where limited by the provisions of this clause or as otherwise expressly provided
in the Contract Documents. To the extent that a risk is not identified in this clause as being
assumed by the Principal or is otherwise expressly provided in the Contract Documents, the
Contractor shall have responsibility for all consequences of the occurrence of the relevant
event, matter or circumstance which may impact on the performance of the Contractor of the
services or its obligations under the contract and no Variation or extension of time shall be due.
5.22.2 The Principal will bear the risk of the following:
(a) Any changes in legislation or the Transport Agency’s policy during the course of the
contract which affects the contract.
(b) Any issues relating to land acquisition initiated by the Principal (does not include general
liaison with landowners during the course of the contract).
(c) Any need for iwi construction monitoring fees that may be determined.
(d) Any time and risks associated with a flood even resulting in inundation which materially
affects the project works, with a probability of occurrence at the site equal to or less than
.04 in one year. (.04 is the probability of occurrence of a flood event within an average
recurrence interval of 25 years in one year).
(e) The excepted risks in 5.6.6 as interpreted in the context of clause 5.6 as a whole.
(f) Any need for random verification testing during the construction phase requested by the
Principal.
(g) Unreasonable delays arising from Principal arranged approvals.
(h) Unreasonable delays arising from any instruction, clarification or direction issued by the
Principal.
(i) Unreasonable delays arising from failure by the Principal to arrange for vacation of
property required for the construction of the Contract Works.
(j) Any instruction from the police and highway authority to clear the site due to “Incident
Management” requirements, which effects critical path operations in 40 hrs, including
reinstatements of work.
(k) Unreasonable delays and disruption arising from the employment of utility controlling
authorities, contractors, workmen, statutory bodies and any other companies as
described within Clause 5.3.1 of the Principal’s Requirements, the Engineer shall take the
circumstances into account to determine any extension of time, such extension of time
being granted solely (and without costs) to relieve the Contractor for payment to the
Principal of liquidated Damages due to such circumstances, all other risks remaining with
the Contractor.
5.22.3 Notwithstanding section 9.5 the Principal will bear the risks of the following, in respect of the
physical conditions encountered during earthworks, foundations, drainage or any other
construction works below ground or the using or disposal of excavated materials, unless these
risks could have been reasonably foreseen by a suitably experienced contractor advised by a
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suitably experienced geotechnical engineer at the time of tendering, in which case the risks
shall remain with the Contractor.
(a) Mine workings
(b) Treasure or unidentified archaeologically or culturally important materials
(c) Human remains
(d) Contaminated ground requiring specific treatment, removal and disposal
(e) Old dump site (waste, not earthworks fill)
(f) Except in the case of founding conditions for structures, which shall remain the risk of the
Contractor, materials of a nature completely different from those encountered within any
investigations or identifiable from ground features, available soil or geotechnical maps, or
the like.
A new clause 5.23 Key Personnel is added as follows:
5.23.1 The Contractor must use all reasonable endeavours to:
a) Supply and retain the Key Personnel and not remove the Key Personnel from their position
without the prior written approval of the Principal or Project Management Board.
b) Replace any of the Key Personnel if they are unable to undertake work due to termination
of employment, resignation, illness, disability or death or other circumstances reasonably
beyond the control of the Contractor. The parties acknowledge that the Contractor’s
primary focus is to ensure the continuity and quality of the performance of its obligations.
Consequently, the Contractor must:
(i) Promptly advise the Principal or Project Management Board if it is necessary to
replace Key Personnel; and
(ii) Provide a suitable replacement or substitute during the period of unavailability that has
at least the same or better status, skills, qualifications, expertise and experience as
the Key Personnel to be replaced; and
(iii) Consult with the Principal or Project Management Board in relation to any proposed
replacement; and
(iv) If requested by the Principal or Project Management Board, provide details of the
proposed replacement to the Principal or Project Management Board.
c) Ensure that each of the Key Personnel is available at the times set out in the Contractor’s
Tender or as otherwise required to ensure the completion of such portion of the services as
are assigned to them.
5.23.2 If any Key Personnel are not available to perform the role and responsibilities required of that
Key Personnel because of an act or omission of the Contractor, and the Contractor does not
within a period acceptable to the Principal and Project Management Board replace the relevant
Key Personnel with a person of equivalent skills and experience, the Principal reserves the right
to withhold [20%] of the value of the next contract progress payment due until such time as a
suitable replacement has been made and notified to the Principal and Project Management
Board. The monies retained, shall be paid to the Contractor by payment as part of the progress
payment due after the replacement has been made.
A new clause 5.24 Information and Security is added as follows:
5.24.1 The Contractor acknowledges that the Transport Agency has requirements for appropriate
security and information management processes that equally apply to its consultants and
subcontractors.
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Delivery of services by the Contractor must align with relevant legislation and guidelines,
inclusive of the Government’s Protective Security Requirements (PSR), Public Records Act
(PRA), Privacy Act, Crimes Act, Official Information Act, and any other legislation in so far as
relates to the provision of Services.
5.24.2 The Transport Agency expects the Contractor will ensure that it and its personnel providing the
Services will:
1. Consistently demonstrate principles and behaviours set out in the Transport Agency’s
information management and security policies, processes, procedures and supporting
controls. Any significant and/or repeated breaches of these standards shall be considered a
breach of this Contract and the Contractor shall indemnify the Transport Agency against
any consequences.
2. Not access Transport Agency information or systems except to the extent necessary to
provide the Services and for no other reason.
3. Take all reasonable steps to prevent breaches of records storage, information technology
systems and equipment, including:
a. preventing unauthorised use;
b. preventing unauthorised persons obtaining, or attempting to obtain access to the
Services or Deliverables or any Transport Agency data/information;
c. using or attempting to use any Transport Agency data/information for purposes not
authorised or permitted by this Contract;
d. taking all steps necessary to prevent the introduction, contamination and spread of any
virus or other malware into computer systems, and only use equipment, software and
parts which are free of viruses; and
e. except with the Transport Agency's written permission, not introduce or use magnetic
media, flash drives or any other form of portable data storage.
4. Provide interim and final data/information sets, created in the delivery of the service such as
research, asset, customer or geo-coded data in formats as agreed.
5. Provide immediate right of access to all data/information/records held by the Contractor, to
assess compliance.
6. Ensure no unlawful disposition or sharing of any data/information/records that are in the
Contractor’s possession during the Contract, including:
a. unauthorised destruction (destruction that is contrary to the Transport Agency’s
authorised current disposal authority);
b. transfer to a third party; and
c. loss, damage or alteration.
7. Complete the appropriate Transport Agency induction procedures.
8. Accept there will be occasions when enhanced physical security measures are adopted in
response to emergencies or a heightened threat environment, during which the Contractor
will be informed of their responsibilities and will promptly comply with all reasonable
measures (which may include spot audit checks and searches) in such situations.
9. Before performing any obligations under this Contract, have passed all probity checks and
obtained any relevant national security clearance required as necessary to provide the
Services to the Transport Agency; as well as attend and complete any additional specific
security training in so far as it relates to the provision of Services.
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10. Notify all information and security incidents and concerns to the Transport Agency in a
timely manner to facilitate a prompt response to help resolve issues and prevent or
minimise any potential damage to individuals, data/information, equipment and the
Transport Agency – incidents or concerns which have Health & Safety implications should
follow Health & Safety Incident Reporting procedures.
11. Without limiting any other provisions of the Contract, use all reasonable endeavours to
avoid damaging or adversely affecting the Transport Agency’s reputation.
12. Return all Transport Agency information and records at the end of the contract, noting that
these must comply with the Transport Agency’s information and record standards.
13. Return all material relating to physical and system access privileges immediately to the
Transport Agency at the end of the Contract.
14. Accept that any staff who hold a national security clearance will have ongoing obligations
under legislation which will survive after the end of the Contract.
5.24.3 The Contractor acknowledges that it is required to abide by the guidelines contained in the
official Transport Agency policy statements, including the Data Security Policy Statement, the
Data Security Policy Statement, and the Protective Security Policy Statements.
Section 7 INDEMNITY
New clauses 7.1.5-7.1.8 are added as follows:
7.1.5 Cap on Liability: Notwithstanding any other provision in this Contract, but subject to clauses 7.1.6
and 7.1.8 the Contractor’s maximum aggregate liability to the Principal under this Contract
(including any indemnity under this Contract) arising out of or in connection with the performance of
the Contract Works and any other obligation under this Contract shall be limited to the sum set out
in the Specific Conditions (‘the Liability Cap’).
7.1.6 Exclusions from the Cap on Liability: The Liability Cap does not exclude or limit the
Contractor’s ability:
a) For Wilful Default, fraudulent or criminal acts, including by the Contractor’s officers, employees,
contractors, consultants, or agents;
b) Arising from abandonment of the Contract Works;
c) As a result of the death of, or injury to, any person caused by, arising out of, or in any way in
connection with the Contract Works;
d) That cannot be excluded at Law;
e) For the amount of any insurance proceeds recovered under an insurance policy, including any
proceeds that would have been recovered, but for any failure to claim and/or breach of the
relevant Insurance Policy by the Contractor, or due to the failure by the Contractor to maintain
an insurance policy;
f) For the breach of any statutory obligation;
g) For liquidated damages or delay damages
h) [Any other matters set out in the Specific conditions of Contract]
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