JBCC PBA 6.1-2014-education.pdf

The Joint Building Contracts Committee® - NPC Principal Building Agreement – Edition 6.1 - March 2014 Preface JBCC® Constituents The Joint Building Contracts Committee® NPC (JBCC®) is representative of building owners and developers, py professional consultants and general and specialist contractors who contribute their knowledge and experiences to the compilation of the JBCC® documents. The JBCC® documents portray the consensus view of the constituent members and are published in the interests of standardisation and good practice with an equitable distribution of contractual risk The constituents are: co Association of Construction Project Managers Association of South African Quantity Surveyors Consulting Engineers South Africa Master Builders South Africa South African Black Technical and Allied Careers Organisation South African Institute of Architects South African Property Owners Association Specialist Engineering Contractors Committee n The Principal Building Agreement structure tio The agreement clauses follow the project execution sequence. The documents set out clear, balanced and enforceable procedures, rights and obligations which, when competently managed and administered, protect the employer, contractor and subcontractors alike. Specific employer and contractor requirements are recorded in a separate JBCC® PBA Contract Data form The JBCC® Nominated/Selected Subcontract Agreement replicates the JBCC® Principal Building Agreement with a common clauses retaining the same numbering. JBCC® publishes a comprehensive set of compatible forms and certificates for use in the administration of this agreement uc Warning! The JBCC® Principal Building Agreement Edition 6.1 has been coordinated with the JBCC® Nominated/Selected Subcontract Agreement Edition 6.1 and the JBCC® certificate forms and support documents. Forms from previous editions are not compatible with the JBCC® Principal Building Agreement Edition 6.1 ed Persons entering into or preparing contracts using the JBCC® suite of contract agreements and support documents are warned of the dangers inherent in modifying any part of it. Experience has shown that changes drafted by others, including members of the building professions, often have results different from those intended that may be prejudicial to either, or both, parties The JBCC® Documents C The JBCC® documents are obtainable from constituent members’ regional offices in South Africa listed on this page The JBCC® does not sell directly to users but may be contacted at [email protected] C The JBCC® Web Page www.jbcc.co.za provides current information regarding: Scheduled Seminars Frequently Asked Questions (FAQ’s) JB New Developments © Copyright Reserved The name ‘The Joint Building Contracts Committee® NPC’, the abbreviation JBCC® the electronic version eJBCC® and the JBCC logo are registered trademarks. The JBCC® claims authorship of this work. All rights are reserved. No part of this publication may be reproduced, stored in any retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, scanning, recording, or otherwise, without the prior permission in writing of the JBCC®. Unauthorised reproduction of the work is an infringement of the copyright. Judicial proceedings can and will be instituted to obtain relief and recovery of damages Page 2 of 32 Pages Actions by the parties / principal agent within a given time Clause Time period Action Purpose 1,0 2.0 1-7 CD parties or principal agent notices deemed to be received by e-Mail/post 3.0 4.0 5.0 6.4 5 WD contractor > principal agent non-performance of an agent i.t.o. this agreement 6.5 5 WD employer appoint another agent/contractor may object 7.0 py 8.0 9.0 10.3 10 WD party responsible proof/renewal of insurance – other party to accept 10.7 5 WD notice party responsible failure to insure - notice – insure + recover expense 10.8 10 WD notice - contractor no insurance = contractor suspend the works 11.1-4 15 WD parties provide securities [CD] 11.1.5/4.2 20 WD parties provide replacement security co 11.4.1 15 WD employer > contractor provide guarantee for payment [CD] 11.6 10 WD notice > employer no security, contractor notice to suspend works 11.7 10 WD parties return original/replacement security forms 12.2.2 15 WD contractor submit priced document 12.2.3 contractor provide guarantee for construction/ advance payment [CD] 12.2.6 15 WD contractor submit works programme 12.2.17 10 WD contractor start work on site 13.0 n 14.4.2 15 WD contractor > subcontractor submit security 14.5 5 WD employer (principal agent) pay subcontractor on default by contractor 14.6 5 WD notice contractor + subcontractor termination of subcontractor 15.2.2 15.5 16.0 17.3 18.0 19.1.1/3 15 WD 5 WD notice 5 WD days [CD] contractor > subcontractor employer (principal agent) contractor principal agent > contractor tio submit security pay subcontractor on default by contractor carry out a contract instruction, where practical inspection for practical completion 19.3.4 contractor rectify items on list for completion a 19.4 5 WD contractor > principal agent no ‘list’ > notice > deemed practically complete 19.6 5 WD/ 30 WD principal agent > contractor employer occupies, list for completion, fix defects 20.0 uc 21.3.1 10 WD contractor inspect before expiry of defects liability period 21.3.2 5 WD contractor > principal agent invite PA to inspect list for completion 21.4 5 WD notice contractor > principal agent inspect > list for final completion > certificate 21.5 5 WD notice principal agent > contractor no list for final completion > notice > complete 22.0 23.4.2* 20 WD notice contractor > principal agent notice of a possible delay, no details yet 23.5 40 WD contractor > principal agent delay ceased, details of delay and expenses ed 23.7 20 WD principal agent > contractor asses claim – accept/reduce/reject 24.0 25.2 date [CD] principal agent > contr/empl issue payment certificate and support forms 25.7 14 CD employer > contractor make payment from date of payment certificate 25.8 21 CD contractor > employer i.t.o. schedule from principal agent 25.11 7 CD contractor > subcontractor pay subcontractors ito schedule from principal agent 25.12 5 WD notice contractor > employer no/partial payment > suspend etc 25.12 5 WD principal agent > contractor final payment certificate after certificate of final completion C 26.5* 20 WD notice contractor > principal agent notice of possible expense and loss 26.6 40 WD contractor > principal agent substantiated claim 26.7 20 WD principal agent > contractor assess claim = accept/reduce/reject 26.10 90 CD principal agent > contractor issue final account C 26.11 45 CD contractor > principal agent accept final account 26.12 10 WD notice contractor + principal agent agree final account or deemed acceptance 27.2.9 5 WD notice to contractor remedy default before next recovery statement 28.1 5 WD notice contractor > employer - list of defaults to be remedied > suspend works 28.2 5 WD notice contractor > employer - suspension of works where defaults not remedied JB 29.2 10 WD employer > contractor intention to terminate if defaults not remedied 29.3 10 WD employer > contractor default not remedied, termination forthwith 29.7 10 WD employer > contractor instruction to vacate works and site 29.15 10 WD contractor > employer intention to terminate if defaults not remedied 29.17.1 forthwith contractor > employer default not remedied, termination forthwith 29.17.2 forthwith contractor remove construction equipment, temporary works, etc 29.21 10 WD either party intention to terminate > impossible to complete 29.29 20 WD principal agent + contractor? prepare status report 29.31 90 CD principal agent complete final account 30.2 10 WD either party disagreement not resolved > dispute 30.3 10 WD aggrieved party refer to adjudication 30.6.4 10 WD aggrieved party dissatisfied with adjudication 30.6.5 10 WD aggrieved party no adjudication/not accept adjudication ruling > arbitration 30.7.5 15 WD parties agree appointment of an arbitrator Abbreviations: WD = working days, CD = calendar days, *no notice, forfeit the opportunity to claim ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 3 of 32 Pages PRINCIPAL BUILDING AGREEMENT TABLE OF CONTENTS Section Clause No Description Page INTERPRETATION 1.0 Definitions and Interpretation 4 py 2.0 Law, Regulations and Notices 7 3.0 Offer and Acceptance 7 4.0 Assignment and Cession 7 5.0 Contract Documents 8 6.0 Employer’s Agents 8 7.0 Design Responsibility 8 co INSURANCE AND SECURITY 8.0 Works Risk 9 9.0 Indemnities 9 10.0 Insurances 10 11.0 Security 11 EXECUTION 12.0 Duties of the Parties 12 n 13.0 Setting out 14 14.0 Nominated Subcontractors 14 15.0 Selected Subcontractors 15 COMPLETION 16.0 17.0 18.0 19.0 tio Direct Contractors Contract Instructions (Interim Completion = N/S Subcontract Agreement) Practical Completion 17 17 18 18 20.0 Sectional Completion 19 a 21.0 Defects Liability Period and Final Completion 19 22.0 Latent Defects Liability Period 20 23.0 Revision of the Date for Practical Completion 20 uc 24.0 Penalty for Late or Non-Completion 22 PAYMENT 25.0 Payment 22 26.0 Adjustment of the Contract Value and Final Account 24 27.0 Recovery of Expense and/or Loss 25 ed SUSPENSION AND TERMINATION 28.0 Suspension by the Contractor 26 29.0 Termination 26 DISPUTE RESOLUTION 30.0 Dispute Resolution 29 AGREEMENT Agreement 32 C C JB ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 4 of 32 Pages INTERPRETATION 1.0 DEFINITIONS and INTERPRETATION 1.1 Definitions A word or phrase in bold type in this agreement shall have the meaning assigned to it in these definitions A word or phrase not in bold type shall be interpreted in the context of its usage py AGENT: An entity appointed by the employer to deal with specific aspects of the works AGREEMENT: This JBCC® Principal Building Agreement and the completed JBCC® PBA contract data BILLS OF QUANTITIES: The document drawn up in accordance with the measuring system [CD] co BUDGETARY ALLOWANCE: An amount included in the contract sum for work intended for execution by the contractor, the extent of which is identified but not detailed CALENDAR DAYS: Twenty four (24) hour days commencing at midnight (00:00) which include Saturdays, Sundays, proclaimed public holidays and recorded annual builders’ holiday periods [CD] n CERTIFICATE of FINAL COMPLETION: A certificate issued by the principal agent to the contractor with a copy to the employer stating the date on which final completion of the works, or of a section thereof, was achieved tio CERTIFICATE of PRACTICAL COMPLETION: A certificate issued by the principal agent to the contractor with a copy to the employer stating the date on which practical completion of the works, or of a section thereof, was achieved CONSTRUCTION EQUIPMENT: Equipment and/or plant provided by or belonging to the contractor and/or the subcontractor used during the construction period a CONSTRUCTION INFORMATION: All information issued by the principal agent and/or agents including uc the contract documents, specifications, drawings, schedules, notices and contract instructions required for the execution of the works CONSTRUCTION PERIOD: The period commencing on the intended date [CD] of possession of the site by the contractor and ending on the date of practical completion, excluding annual industry holiday periods ed CONTRACT DATA: The document listing the contract variables [CD]: The notation used where project specific information is recorded in the contract data CONTRACT DOCUMENTS: This agreement, the contract drawings, the priced document and other identified documents [CD] CONTRACT DRAWINGS: The drawings listed on which the accepted tender or the negotiated amount was C based [CD] CONTRACT INSTRUCTION: A written instruction issued by or under the authority of the principal agent to C the contractor, which may include drawings and other construction information CONTRACT SUM: The accepted tender amount, inclusive of tax, that is not subject to adjustment [CD] JB CONTRACT VALUE: A monetary value initially equal to the contract sum that is subject to adjustment in terms of this agreement CONTRACTOR: The party [CD] contracting with the employer for the execution of the works DEFECT: Any aspect of materials and workmanship forming part of the works that does not conform to the contract documents DIRECT CONTRACTOR: An entity appointed under separate agreement by the employer to do work on site prior to practical completion [CD] EMPLOYER: The party [CD] contracting with the contractor for the execution of the works ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 5 of 32 Pages FINAL ACCOUNT: The document prepared by the principal agent that reflects the final contract value of the works at final completion or termination FINAL COMPLETION: The stage of completion of the works as certified by the principal agent as being free of defects FINAL PAYMENT CERTIFICATE: The certificate issued by the principal agent after the issue of the certificate of final completion after the final account has been agreed, or deemed to have been agreed FORCE MAJEURE: An exceptional event or circumstance that: py (a) could not have been reasonably foreseen (b) is beyond the control of the parties, and (c) could not reasonably have been avoided or overcome Such an event may include but is not limited to: co Acts of war (declared or not), invasion, and hostile acts of foreign enemies Insurrection, rebellion, revolution, military or usurped power, war (whether declared or not), terrorism Civil commotion, disorder, riots, strike, lockout by persons other than the contractor’s employees or his subcontractors Sonic shock waves caused by aircraft or other aerial devices, and ionising or radioactive contamination n Explosive materials, except where attributable to the contractor’s use of such technology Natural catastrophes including earthquakes, floods, hurricanes, or volcanic activity tio FREE ISSUE: Materials and goods provided a t n o c o s t to the contractor by the employer for inclusion in the works whether stored on or off the site or in transit [CD] GUARANTEE for ADVANCE PAYMENT: A security in terms of the JBCC® Guarantee for Advance Payment form obtained by the contractor from an institution approved by the employer [CD] a GUARANTEE for CONSTRUCTION: A security in terms of the JBCC® Guarantee for Construction form obtained by the contractor from an institution approved by the employer [CD] uc GUARANTEE for PAYMENT: A security in terms of the JBCC® Guarantee for Payment form obtained by the employer from an institution approved by the contractor [CD] INTEREST: The bank rate applicable from time to time to registered banks borrowing money from the Central or Reserve Bank of the country [CD]. The ruling bank rate on the first calendar day of each month shall be used in calculating the interest due for such month ed JBCC®: The Joint Building Contracts Committee® NPC LATENT DEFECT: A defect that a reasonable inspection of the works by the principal agent and/or agents would not have revealed LAW: The law of the country [CD] C LIST for COMPLETION: A list issued by the principal agent where practical completion has been certified, listing defects and/or outstanding work to be completed C LIST for FINAL COMPLETION: An updated list for completion issued by the principal agent after the inspection of the works for final completion, where final completion has not been achieved, listing defects and/or outstanding work to be completed to achieve final completion JB LIST for PRACTICAL COMPLETION: A comprehensive and conclusive list issued by the principal agent after the inspection of the works for practical completion, where practical completion has not been achieved, listing the defects and/or outstanding work to be completed to achieve practical completion MATERIALS AND GOODS: Unfixed materials, goods and/or items fabricated for inclusion in the works whether stored on or off the site or in transit MORA INTEREST: The rate of interest applicable from time to time prescribed in the relevant Act NOTICE: A communication issued by either party, the principal agent and/or agents to the other party or any agent to, inter alia, record an event, request for outstanding information and/or where suspension and/or resumption of the works, or termination of this agreement is contemplated ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 6 of 32 Pages N/S SUBCONTRACT AGREEMENT: The JBCC® Nominated/Selected Subcontract Agreement (NSSA) and the completed JBCC® NSSA contract data, between the contractor and the subcontractor used in conjunction with the JBCC® Principal Building Agreement PARTY: The employer or the contractor and “parties” shall refer to both of them PAYMENT CERTIFICATE: A certificate issued at regular agreed intervals [CD] by the principal agent to the parties certifying the amount due and payable in terms of the JBCC® Payment Certificate format PENALTY: The stipulated amount per calendar day [CD] payable by the contractor to the employer where py the date or the revised date for practical completion, whichever is the later, has not been met PRACTICAL COMPLETION: The stage of completion as certified by the principal agent where the works or a section thereof has been completed free of patent defects other than minor defects identified in the list for completion and can be used for the intended purpose [CD] co PRELIMINARIES: The priced items listed in the preliminaries document with any additions, alterations or modifications thereof incorporated in the contract documents PRICED DOCUMENT: Bills of quantities, schedule of rates or other documents appropriate to this agreement [CD] PRIME COST AMOUNT: An amount included in the contract sum for the delivered cost of materials and n goods obtained from a supplier as instructed by the principal agent PRINCIPAL AGENT: The entity [CD] appointed by the employer with full authority and obligation to act in terms of this agreement tio PROGRAMME: A diagrammatic representation of the planned execution of units of work or activities indicating the dates for commencement and completion prepared and maintained by the contractor PROVISIONAL SUM: An amount included in the contract sum for the supply and installation of work by a a subcontractor RECOVERY STATEMENT: The statement prepared and issued in conjunction with each payment uc certificate by the principal agent in terms of the JBCC® Recovery Statement format SECTION: An identified portion of the works for which practical completion is required by a date earlier than that required for the works as a whole [CD] SECURITY: A monetary guarantee provided by the employer to the contractor, or the contractor to the ed employer in terms of this agreement [CD] from which either party may recover expense and loss in the event of default SITE: The land or place where the works is to be executed [CD] STATUS REPORT: A report compiled by the principal agent and/or agents in the event of termination of the agreement, or where the works has been suspended due to a force majeure event, or in the event of C termination of the n/s subcontract agreement by the contractor, to record the state of completion or otherwise of the works or the n/s subcontract works, as the case may be. Such status report may include marked up drawings and photographs C SUBCONTRACTOR: A nominated or a selected subcontractor appointed in terms of the n/s subcontract agreement by the contractor in accordance with a contract instruction for the supply and installation of work for which a provisional sum has been included in the contract sum [CD] JB SUSPENSION: The temporary cessation of the works by the contractor TAX: Value-added tax or any other tax, duty or levy applicable by law WORKING DAYS: Calendar days which exclude Saturdays, Sundays, proclaimed public holidays and recorded annual builders’ holiday periods [CD] WORKS: The extent of work to be executed by the contractor described in the contract documents and contract instructions, which includes free issue, and materials and goods. Work or installations to be executed by direct contractors and others responsible to the employer are excluded [CD] ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 7 of 32 Pages 1.2 Interpretation 1.2.1 In this document, unless inconsistent with the context, the words ‘accept, allow, appoint, approve, authorise, certify, decide, demand, designate, grant, instruct, issue, list, notice, notify, object, record, reduce, refuse, request, state and their derivatives require such acts to be in writing 1.2.2 The masculine gender includes the feminine and neuter genders and vice versa, the singular includes the plural and vice versa, and a person includes juristic or artificial persons 1.2.3 The headings of clauses are for reference purposes only and shall not be used in interpretation py 1.2.4 Reference to a clause number written as [54.3.2] means that specific clause; clause [54.3.2-4] means the sub-clauses 2 to 4 inclusively; clause [54.3.2 & 4] means the sub-clauses 2 and 4 only 1.2.5 The word ‘deemed’ shall be conclusive that something is fact, regardless of the objective truth co 2.0 LAW, REGULATIONS AND NOTICES 2.1 The contractor shall comply with the law, obtain permits, licenses and approvals required and pay related charges for the execution of the works. The employer shall comply with the law, obtain permits, planning, building or similar permissions and pay charges for the works other than those which are the responsibility n of the contractor [26.4.1] [CD] 2.2 Documents referred to in this agreement shall mean the current edition thereof with all amendments 2.3 tio thereto as at the date of submission of the contractor’s offer unless otherwise stated [CD] All communication or notices between the parties shall be in the language of this agreement and in a format that can be read, copied and recorded [CD] 2.4 Legal processes arising out of or concerning this agreement may validly be delivered to and served on the a parties at the physical address of the parties recorded in this agreement. Either party may, at any time, by notice to the other, change its physical address provided it is in the same country uc 2.5 Notices given in terms of this agreement shall be deemed to have been received where: 2.5.1 Delivered by hand - on the day of delivery 2.5.2 Sent by electronic mail - within one (1) working day ed 2.5.3 Sent by registered post - within seven (7) calendar days after posting 3.0 OFFER AND ACCEPTANCE 3.1 The objective of this agreement is the execution of and payment for the works for which there has been an C offer by the contractor and an acceptance by the employer 3.2 This agreement shall come into force on the date of acceptance by the employer (the contract date) and continue to be of force and effect until the end of the latent defects liability period - notwithstanding C termination or the certification of final completion and final payment [11.0; 29.0 & 30.0] 3.3 Where any provision of this agreement, which is not material to its efficacy as a whole, is rendered void, JB illegal or unenforceable under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. The parties shall endeavour in good faith to agree an alternative provision to the void, illegal or unenforceable provision 3.4 Failure by a party to enforce any provision of this agreement shall not constitute a waiver of terms of this agreement or affect such party’s rights to require the performance at any time in the future 4.0 ASSIGNMENT AND CESSION 4.1 Neither party shall assign or cede rights or obligations under this agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 8 of 32 Pages 4.2 The contractor shall not consent to a nominated subcontractor assigning or ceding rights or obligations in terms of this agreement without obtaining the prior written consent of the principal agent 4.3 Notwithstanding the above, where a party cedes any right to any monies due or to become due under this agreement as security in favour of a financial institution, consent shall not be required provided notice of such cession is given to the other party 5.0 CONTRACT DOCUMENTS py 5.1 The parties shall sign the original contract documents and shall each be issued with a copy thereof. The original signed contract documents shall be held by the principal agent [CD] 5.2 Persons authorised to act on behalf of the parties and/or agents appointed by the employer shall be identified in the construction information. Such authorised person may be changed by notice to the other co party 5.3 The priced document shall not be used as a specification of materials and goods or methods 5.4 The contract documents shall not be published or disclosed or used for any purpose other than that specified in this agreement by one party without the prior written consent of the other party 5.5 The principal agent shall timeously provide the number of copies [CD] of drawings, un-priced bills of n quantities and other construction information at no cost to the contractor 5.6 The contract documents shall be deemed to be mutually explanatory of one another. In the event of tio ambiguity, discrepancy, divergence or inconsistency in or between them, this agreement shall prevail over all other contract documents 6.0 EMPLOYER’S AGENTS a 6.1 The employer warrants that the principal agent has full authority and obligation to act and bind the employer in terms of this agreement. The principal agent has no authority to amend this agreement uc 6.2 The employer may appoint agents to deal with specific aspects of the works in terms of this agreement [CD]. The principal agent shall give notice to the contractor where such authority to issue contract instructions and perform duties for specific aspects of the works is delegated to agents. An agent appointed in terms of this clause shall not be entitled to subdelegate its authority without the prior written consent of the employer ed 6.3 The principal agent and agents shall declare any interest or involvement in the works other than a professional interest, where applicable [CD] 6.4 Where any agent fails to act in terms of delegated authority, the contractor shall give notice to the principal agent to rectify such default within five (5) working days. Where such default has not been rectified, the contractor may give notice to suspend the works [28.0] C 6.5 Where any agent fails to act or is unable to act, or ceases to be an agent, in terms of this agreement, the employer shall appoint another agent within five (5) working days of the date of such notice from the contractor. The employer shall not appoint an agent against whom the contractor makes reasonable objection within five (5) working days of receipt of notice of intention to make such an appointment C 6.6 The employer shall not interfere with or prevent the principal agent or an agent from exercising fair and reasonable judgement when performing their obligations in terms of this agreement JB 7.0 DESIGN RESPONSIBILITY 7.1 The contractor shall not be responsible for the design of the works other than the contractor’s and subcontractors’ temporary works. The contractor shall not be responsible for the coordination of design elements 7.2 Any design responsibility undertaken by a subcontractor shall not devolve on the contractor. All contractual or other rights the contractor has against such subcontractor arising from any design responsibility undertaken shall be ceded to the employer on the date of final completion or the date of termination of this agreement [9.2.3] ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 9 of 32 Pages 7.3 The contractor shall be responsible for the timeous submission of design documentation by a selected subcontractor for acceptance by the principal agent and/or agents [23.2.8] INSURANCE AND SECURITY 8.0 WORKS RISK py 8.1 The contractor shall take full responsibility for the works from the date on which possession of the site is given to the contractor and up to the date of issue of the certificate of practical completion or deemed achievement of practical completion for a section or the works as a whole. Thereafter responsibility for the works shall pass to the employer 8.2 The contractor shall make good physical loss and repair damage to the works caused by or arising from: co 8.2.1 Any cause before the date of practical completion [19.0] 8.2.2 Any act or omission of the contractor in the course of any work carried out in pursuance of the contractor’s obligations after the date of practical completion 8.3 The liability of the contractor in respect of any loss or damage shall include, but not be limited to: n 8.3.1 The cost of making good such physical loss and repairing damage to the works including clearing away and removing all debris, and any other costs to reinstate the works 8.3.2 8.3.3 tio The new replacement value of free issue [12.1.11] [CD] The cost of additional professional services 8.4 The limit of the contractor’s liability shall not exceed the Contract Works Insurance [CD]. Where the a contract value exceeds the contract sum by more than ten per cent (10%) or the percentage stated [CD] the insurance provisions shall be adjusted at the employer’s expense. The party responsible for effecting insurance shall provide written proof of such adjustment [10.0] uc 8.5 The contractor shall not be liable for the cost of making good physical loss and repairing damage to the works caused by or arising from: 8.5.1 The use or occupation of any part of the works by the employer, the employer's employees or agents and those for whose acts they are responsible ed 8.5.2 An act or omission of the employer, the employer's employees or agents and those for whose acts they are responsible 8.5.3 An act or omission by a direct contractor 8.5.4 The design of the works for which the contractor is not responsible [7.1] C 8.5.5 A defect in free issue or materials and goods specified by trade name where the contractor has no right of substitution. The contractor hereby cedes any right of action to the employer that may exist against the supplier and/or manufacturer of such free issue, and/or materials and goods C 8.5.6 Force majeure 8.6 Where the contractor is not liable for the cost of making good physical loss or repairing damage [8.5] such JB making good and/or expense and/or loss shall be measured and valued and added to the contract value by the principal agent [17.1.10] 8.7 The contractor shall immediately give notice to the principal agent on becoming aware of physical loss or damage to the works 9.0 INDEMNITIES 9.1 The contractor indemnifies the employer, the employer's employees or agents from all claims or proceedings for damages, expense and/or loss (including legal fees and expenses) in respect of or arising from the following events (except those attributable to an act or omission of the employer, the employer's employees or agents): ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 10 of 32 Pages 9.1.1 Death or bodily injury or illness of any person or physical loss or damage to any property other than the works [9.2.7] arising out of or due to the execution of the works or presence on and/or occupation of the site by the contractor. Should such an event occur, the contractor shall forthwith give notice to the principal agent 9.1.2 Non-compliance by the contractor with any law, regulation, or bylaw of any local or other authority and the failure by the contractor to obtain any permit, license or approval that the contractor is required to obtain in terms of this agreement [2.1] 9.1.3 Physical loss or damage to construction equipment or other property belonging to the contractor py or the contractor’s subcontractors but excluding direct contractors’ construction equipment or other property 9.2 The employer indemnifies and holds the contractor harmless from all claims or proceedings for damages, expense and/or loss (including legal fees and expenses) in respect of or arising from: co 9.2.1 An act or omission of the employer, the employer's employees or agents and those for whose acts they are responsible 9.2.2 An act or omission of a direct contractor [16.0] 9.2.3 Design of the works [7.1] where the contractor is not responsible for such design n 9.2.4 The use or occupation of any part of the works by the employer, tenants, direct contractors or others authorised by the employer 9.2.5 9.2.6 tio Proceeding with the works on instruction from the employer without the employer obtaining the required permission under the law in terms of this agreement [2.1] Interference with any servitude or other right not depicted in construction information issued to the contractor that is the unavoidable result of the execution of the works including the removal of or weakening of or interference with the support of land and property adjacent to or within the site a unless resulting from any negligent act or omission by the contractor or his subcontractors. Should such an event occur, the contractor shall forthwith give notice to the principal agent uc 9.2.7 Physical loss or damage to an existing structure and the contents thereof where this agreement is for alterations or additions to the existing structure [CD]. Should such an event occur, the contractor shall forthwith give notice to the principal agent 9.2.8 A defect in free issue [CD] ed 9.2.9 Physical loss or damage to the works where practical completion has been certified [19.0] or deemed to have been achieved 9.2.10 Advance payments certified and paid by the contractor to subcontractors [27.1.7; 27.2.4] 10.0 INSURANCES C 10.1 The party responsible for the respective insurances [CD] shall effect and keep in force in the joint names of the parties from the date of possession of the site until the contractor’s responsibility has ended: 10.1.1 Contract Works Insurance [CD] for the works that shall include free issue [CD], materials and C goods and temporary works (as defined in the insurance policy) and adequate cover for the clearing away and removing of all debris, and any other costs to reinstate the works and where required, damage to employer owned surrounding property [CD] in the care, custody or control of the JB contractor or to be worked upon by the contractor 10.1.2 Public Liability Insurance [CD] providing indemnity in respect of accidental death or injury to any person and accidental loss of or physical damage to tangible property, to remain in force until the date of final completion 10.1.3 Supplementary Insurance [CD] for the works against loss or damage caused by civil commotion, riot, strike, labour disturbance and lockout to the extent not insured under the Contract Works Insurance 10.1.4 Removal of Lateral Support Insurance [CD] where the employer considers that the execution of the works could cause the removal of or weakening of or interference with the support of land or property adjacent to or within the site and the consequences thereof. The employer shall appoint an agent to design and monitor appropriate support structures for use in excavations and/or in existing property that form part of the works and/or the site ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 11 of 32 Pages 10.2 Where practical completion in sections is required [20.0] or the works is for alterations and additions the employer shall effect and keep in force Contract Works Insurance, Public Liability Insurance, Supplementary Insurance and where applicable, Removal of Lateral Support Insurance, in the joint names of the parties until the date of final completion 10.3 The party responsible [10.1] for effecting insurances [10.1.1-4 and/or 10.2] shall provide proof of the insurances effected to the other party before the commencement of the construction period and, where required, provide proof of extension or renewal of such policy before expiry of the existing policy. Approval by the other party shall be deemed unless a reasonable objection is lodged within ten (10) working days of receipt of such proof py 10.4 Upon request the party responsible for effecting insurance shall provide the other party with the entire policy wording of such policies 10.5 The contractor shall be responsible for the policy deductibles [CD] in respect of the insurances arranged by the employer where an action or inaction by contractor is the cause of a claim co 10.6 Where this agreement is terminated [29.0] and the contractor is not required to make good the physical loss or repair damage to the works, the right to the proceeds of an insurance claim shall vest solely in the employer. The party responsible for the insurance shall give notice to the insurer to clarify the status of the insurance cover and/or further insurance obligations applicable to the works, Public Liability Insurance, Supplementary Insurance and Removal of Lateral Support Insurance n 10.7 Where a party [CD] fails to effect or maintain the required insurances [10.1] or fails to provide proof of such insurance [10.4] the other party may give five (5) working days notice to comply failing which the other party may, without prejudice to any other remedy, effect such insurance and recover the expense and/or 10.8 cost so incurred from the defaulting party tio Where the employer fails to effect the specified insurances within ten (10) working days after notice to do so by the contractor, the contractor may, on expiry of the notice period, suspend the works until such insurances have been effected [28.1.4] a 10.9 Any amounts not recovered from insurers shall be borne by the employer or contractor (as the case may be) in accordance with their respective obligations, liabilities and responsibilities under this agreement. However, where a party fails to effect and maintain insurance under this agreement, and the other party uc does not waive its right to demand such insurance be effected or maintained by that party and does not effect the insurance itself [10.7], any loss or damage which should have been recoverable under the insurance in question will be borne by the party responsible for effecting the insurance [CD] 10.10 The employer shall effect separate insurance in respect of direct contractors outside this agreement [CD] ed 10.11 The party responsible for effecting the insurance shall keep insurers informed of any relevant changes in respect of this agreement 11.0 SECURITY 11.1 The contractor shall: C 11.1.1 Provide to the employer a JBCC® Guarantee for Construction, where applicable [CD], within fifteen (15) working days of acceptance of the contractor’s offer and choose: C 11.1.2 A JBCC® Guarantee for Construction – (variable) [CD] initially equal to ten per cent (10%) of the contract sum and keep such security valid and enforceable until the final payment certificate has been issued to the contractor [25.6] JB Or … 11.1.3 A JBCC® Guarantee for Construction - (fixed) set at five per cent (5%) of the contract sum [CD] and a payment reduction of 5% of the value of each payment certificate up to a maximum of five per cent (5%) of the contract sum [25.3.3]. The contractor shall keep such security valid and enforceable until the only or last certificate of practical completion has been issued 11.1.4 A JBCC® Guarantee for Advance Payment where an advance payment is required equal in value to the aggregate amount of all such advance payments [CD]. The contractor shall keep such security valid and enforceable until the advance payment is repaid [11.2] ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 12 of 32 Pages 11.1.5 Extend or provide a replacement JBCC® Guarantee for Construction - (variable) or (fixed) and/or a JBCC® Guarantee for Advance Payment at least twenty (20) working days before such security is due to expire [11.1.2-4] 11.2 The amount of the JBCC® Guarantee for Advance Payment may be reduced by the amount repaid by the contractor as certified by the principal agent in payment certificates. If the advance payment is not repaid by the date a certificate of practical completion is issued or practical completion is deemed achieved, or by the date of termination by the employer due to contractor default [29.9], the entire outstanding amount shall immediately become due and payable py 11.3 Where the contractor fails to provide the security the employer may: 11.3.1 Hand over the site to the contractor and withhold in interim payment certificates to the contractor an amount equal to ten per cent (10%) of the contract sum. The amount withheld shall be reduced at practical completion [19.0] to two and one half per cent (2.5%) of the contract sum and to zero per cent (0%) in the final payment certificate [25.6] co Or … 11.3.2 Terminate this agreement [29.1.1] 11.4 The employer shall: n 11.4.1 Provide to the contractor a JBCC® Guarantee for Payment where required in the accepted offer [CD] within fifteen (15) working days of acceptance of the contractor’s offer 11.4.2 tio Keep such JBCC® Guarantee for Payment valid and enforceable in terms of the security form and/or provide a replacement JBCC® Guarantee for Payment at least twenty (20) working days before such security is due to expire [11.4.1] 11.5 Where the employer fails to provide the JBCC® Guarantee for Payment [CD], or such security has a expired, the contractor may, after ten (10) working days notice forthwith suspend the works until such security has been provided [28.1.1] uc 11.6 Where the contract value exceeds the contract sum by more than ten per cent (10%) the applicable security shall be adjusted at the employer’s expense. The party responsible for adjusting the security value shall provide written proof of such adjustment 11.7 A security held by either party shall be for the due fulfilment of the other party’s obligations in terms of this agreement ed 11.8 The parties shall return the original or the replacement security form within ten (10) working days after the expiry date, or after the date of termination 11.9 Where a party makes an unjustified call on a security, the amount paid and mora interest shall be paid to the other party C 11.10 The contractor shall waive his lien on receipt of JBCC® Guarantee for Payment from the employer EXECUTION C 12.0 DUTIES OF THE PARTIES JB 12.1 The employer shall: 12.1.1 Provide a JBCC® Guarantee for Payment [11.4.1], where applicable [CD] 12.1.2 Record specific requirements [CD] where the existing premises will be in use and occupied during the execution of the works, including restriction of working hours 12.1.3 Record and describe relevant natural features and known services [CD] where the contractor shall be responsible for their preservation 12.1.4 Define any restrictions to the site or areas that the contractor may not occupy [CD] 12.1.5 Identify access to water, sewer, stormwater and/or electricity connections to the site [CD] ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 13 of 32 Pages 12.1.6 List statutory and other notices the contractor must submit and/or comply with before possession of the site can be given 12.1.7 Give possession of the site to the contractor on the agreed date [CD] 12.1.8 Effect and keep in force insurances in the joint names of the parties, where the employer is responsible for procuring insurance [10.0] [CD] 12.1.9 Make payments by the due date [25.7] [CD] py 12.1.10 Make advance payments, where required [CD] 12.1.11 Permit reasonable access to the works by the contractor and/or subcontractors subsequent to practical completion to fulfil outstanding obligations [17.1.16] 12.1.12 Supply free issue to suit the programme [CD] co 12.1.13 Define the extent of work to be carried out by a direct contractor [CD] 12.1.14 Ensure that the principal agent and/or agents provide adequate construction information timeously to the contractor 12.1.15 Make direct payment where the contractor has failed to honour a n/s subcontract payment advice n after notice of default by a subcontractor [14.5 and/or 15.5] at the employer’s discretion 12.2 The contractor shall: 12.2.1 tio Have inspected the site and any existing structures and be thoroughly acquainted with the conditions under which the works is to be executed including means of access and any matters which may influence the execution and/or the pricing of the works 12.2.2 Submit to the principal agent the priced document with items priced to include all costs, overheads a and profit, extended and cast within fifteen (15) working days of acceptance of the contractor’s offer. The principal agent may instruct the contractor to adjust prices considered to be imbalanced or unreasonable and to eliminate errors or discrepancies without any change to the contract sum uc 12.2.3 Provide a JBCC® Guarantee for Construction [11.1.2-3, 11.1.5], where applicable [CD] 12.2.4 Provide a JBCC® Guarantee for Advance Payment [11.1.4; 11.1.5; 11.2], where applicable [CD] 12.2.5 Effect and keep in force insurances in the joint names of the parties where the contractor is ed responsible for procuring insurance [10.0] [CD] 12.2.6 Prepare and submit to the principal agent within fifteen (15) working days of receipt of construction information a programme for the works in sufficient detail to enable the principal agent to monitor the progress of the works 12.2.7 Coordinate the programme with subcontractors’ and direct contractors’ programmes C 12.2.8 Regularly submit to the principal agent a progress report and a schedule of outstanding construction information to avoid delays to the works C 12.2.9 Regularly update the programme to illustrate progress of the works, and revise the programme where the principal agent has revised the date for practical completion 12.2.10 Cooperate with the principal agent in the preparation of cash flow projections and the compilation of JB payment certificates [25.1-2] 12.2.11 Designate a competent person to continuously administer and control the works and to receive and implement notices and contract instructions on behalf of the contractor 12.2.12 Maintain daily records of categories of persons and construction equipment employed on the works and regularly provide copies to the principal agent 12.2.13 Keep on site a copy of all construction information required for execution of the works to which the employer and principal agent and/or agents shall have reasonable access 12.2.14 Allow the employer and principal agent and/or agents reasonable access to the works, workshops and other places where work is being prepared, executed or stored ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 14 of 32 Pages 12.2.15 Provide everything necessary for the proper execution of the works in compliance with the contract documents 12.2.16 Give notice forthwith to the principal agent and/or the employer where items of free issue have been received damaged prior to storage or, where on unpacking, are found not to be in good order before installing such items 12.2.17 On being given possession of the site commence the works within ten (10) working days and proceed with due diligence, regularity, expedition, skill and appropriate resources to bring the works to practical completion and to final completion py 12.2.18 Provide, maintain and remove on practical completion all temporary structures, construction equipment and notice boards 12.2.19 On achievement of practical completion hand over to the principal agent all information for the preparation of ‘as built’ documentation and applicable statutory/regulatory approval certificates co 12.2.20 On achievement of practical completion hand over to the principal agent all operating and instruction manuals, product guarantees and the like 12.2.21 Cede to the employer on the date of issue of the certificate of final completion any guarantee, warranty or indemnity, pertaining to the works. This cession shall not prejudice any other rights that the employer may have n 12.3 The principal agent and the contractor shall hold regular meetings to monitor progress of the works and to deal with technical and coordination matters. The principal agent shall record and timeously distribute the 13.0 minutes of such meetings [CD] SETTING OUT tio 13.1 The principal agent shall: a 13.1.1 Point out boundary pegs or beacons identifying the site and the datum level uc 13.1.2 Define the setting out points and levels required for the execution of the works 13.2 The contractor shall: 13.2.1 Be responsible for accurate setting out of the works notwithstanding checking by others ed 13.2.2 Be responsible for the preservation and the reinstatement of boundary pegs, beacons and other survey information and, where disturbed or destroyed, replace such items at his expense 13.2.3 Not be responsible for incorrect setting out if incorrect information was issued to the contractor. [9.2.6] In such event the contractor may be entitled to a revision of the date for practical completion and/or an adjustment of the contract value [23.2.5] C 13.2.4 Immediately suspend affected work to an appropriate extent where undocumented services, natural features, articles of value or relics are uncovered on site, and give notice to the principal agent who shall issue a contract instruction on how to proceed with the works. Any relics or other articles found on the site shall remain the property of the employer C 14.0 NOMINATED SUBCONTRACTORS JB 14.1 The principal agent and/or agents shall: 14.1.1 Prepare tender documents in conformity with the n/s subcontract agreement for work intended to be executed by a nominated subcontractor 14.1.2 Call for tenders 14.1.3 Scrutinise the received tenders for compliance with the tender documents, in consultation with the contractor, where appointed 14.1.4 Nominate a subcontractor and instruct the contractor [17.1.13] to appoint such subcontractor as a nominated subcontractor in terms of the n/s subcontract agreement and other tender requirements ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 15 of 32 Pages 14.1.5 Inform the contractor where an advance payment is to be made to the subcontractor for an amount included in the accepted offer and that a JBCC® Guarantee for Advance Payment shall be provided by the subcontractor for the amount stated [NSSA-CD] 14.2 The contractor may refuse to appoint such subcontractor: 14.2.1 Against whom the contractor makes a reasonable objection 14.2.2 Who refuses or fails to enter into a n/s subcontract agreement and/or to comply with other tender requirements py 14.2.3 Who is unable to provide a security, where specified [NSSA-CD] 14.3 Where such subcontractor is not appointed by the contractor for the reasons stated [14.2], or where the appointment of a subcontractor has been terminated, another subcontractor shall be nominated and appointed on instruction from the principal agent co 14.4 Where the subcontractor has complied with the tender requirements, on instruction from the principal agent, the contractor shall: 14.4.1 Appoint the subcontractor as a nominated subcontractor and forward a copy of the signed n/s subcontract agreement to the principal agent n 14.4.2 Provide a JBCC® NSSA Guarantee for Payment in the amount stated in the n/s subcontract data within fifteen (15) working days [14.1.5], where specified [NSSA-CD] 14.4.3 14.4.4 tio Forward the subcontractor’s regular payment claims to the principal agent and/or agent by the date stated [NSSA-CD] for inclusion in the contractor’s regular payment claim Notify the subcontractor of the amount included in the payment certificate using the JBCC® n/s subcontract payment advice format and the n/s subcontract recovery statement format to reconcile the amount due for payment with the amount stated in the n/s subcontract payment notification format a issued by the principal agent, and forward a copy to the principal agent 14.4.5 Pay the subcontractor the amount certified by the date stated in the n/s subcontract data [25.11] uc [NSSA-CD] 14.5 Where the contractor fails to provide proof of payment to the subcontractor within five (5) working days of a notice by the principal agent, the employer may instruct the principal agent to certify direct payment to the subcontractor and recover such amount from the contractor [25.11] ed 14.6 Where a nominated subcontractor has been declared insolvent, or where after notification by the contractor, the principal agent agrees that a nominated subcontractor is in default of a material term of the n/s subcontract agreement, the principal agent shall instruct the contractor to give notice to the subcontractor to rectify such default. The principal agent shall instruct the contractor to terminate the n/s subcontract agreement should such default continue for five (5) working days after such notice 14.7 Where a n/s subcontract agreement with a nominated subcontractor is terminated: C 14.7.1 The principal agent shall instruct the contractor to appoint another nominated subcontractor [14.1.4] to complete the n/s subcontract works C 14.7.2 Due to default or insolvency of the subcontractor, or default of the employer and/or agents, the n/s subcontract value shall be adjusted to include the cost of completing such n/s subcontract works [25.3.7] JB 14.7.3 Due to default or insolvency of the contractor any variation in the cost of completing the n/s subcontract works shall be for the account of the contractor. The employer may recover expense and/or loss [25.3.7] 14.8 There shall be no privity of contract between the employer and a subcontractor appointed by the contractor 15.0 SELECTED SUBCONTRACTORS 15.1 The principal agent and/or agents shall: ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 16 of 32 Pages 15.1.1 Prepare tender documents in conformity with the n/s subcontract agreement and this agreement for work intended to be executed by a selected subcontractor. Such preparation shall be carried out in consultation with and to the reasonable approval of the contractor 15.1.2 Call for tenders from a list of tenderers agreed between the contractor and the principal agent 15.1.3 Scrutinise the received offers for compliance with the tender documents in consultation with the contractor 15.1.4 In consultation with the contractor, choose the successful tenderer to be appointed as a selected py subcontractor in terms of the n/s subcontract agreement 15.1.5 Inform the contractor where an advance payment is to be made to the subcontractor for an amount included in the accepted offer and that a JBCC® Guarantee for Advance Payment shall be provided by the subcontractor for the amount stated [NSSA-CD] co 15.2 Where the subcontractor has complied with the tender requirements, on instruction from the principal agent, the contractor shall: 15.2.1 Appoint the subcontractor as a selected subcontractor and forward a copy of the signed n/s subcontract agreement to the principal agent 15.2.2 Provide a JBCC® NSSA Guarantee for Payment in the amount stated in the n/s subcontract data n within fifteen (15) working days [15.1.5], where specified [NSSA-CD] 15.2.3 Forward the subcontractor’s regular payment claims to the principal agent and/or agent by the 15.2.4 tio date stated [NSSA-CD] for inclusion in the contractor’s regular payment claim Notify the subcontractor of the amount included in the payment certificate using the n/s subcontract payment advice format and the n/s subcontract recovery statement format to reconcile the amount due for payment with the amount stated in the n/s subcontract payment notification format issued by the principal agent, and forward a copy to the principal agent a 15.2.5 Pay the subcontractor the amount certified by the date stated in the n/s subcontract data [25.11] [NSSA-CD] uc 15.3 The contractor may refuse to appoint such subcontractor: 15.3.1 Who refuses or fails to enter into a n/s subcontract agreement and/or to comply with other tender requirements ed 15.3.2 Who is unable to provide a security, where specified [NSSA-CD] 15.4 Where such subcontractor is not appointed by the contractor for the reasons stated [15.3], or where the appointment of a subcontractor has been terminated, another subcontractor shall be chosen and be appointed on instruction from the principal agent 15.5 Where the contractor fails to provide proof of payment to a subcontractor within five (5) working days of a C notice by the principal agent, the employer may instruct the principal agent to certify direct payment to the subcontractor and recover such amount from the contractor [25.11] 15.6 Where the selected subcontractor is in default of a material term of the n/s subcontract agreement, the C decision of whether or not to terminate the n/s subcontract agreement is that of the contractor 15.7 Where a n/s subcontract agreement with a selected subcontractor is terminated: JB 15.7.1 The contractor shall appoint another selected subcontractor [15.1.4] to complete the n/s subcontract works in consultation with the principal agent and/or agents 15.7.2 Due to default by the employer or agents, the n/s subcontract value shall be adjusted to include the cost of completing such n/s subcontract works [25.3.7] 15.7.3 Other than due to default by the employer or agents, any variation in the cost of carrying out and completing the n/s subcontract works shall be for the account of the contractor [25.3.7] 15.8 There shall be no privity of contract between the employer and a subcontractor appointed by the contractor ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 17 of 32 Pages 16.0 DIRECT CONTRACTORS 16.1 The contractor shall: 16.1.1 On instruction by the principal agent permit a direct contractor(s) to execute and/or install work as part of the works [CD]. Such access to the works shall not constitute deemed achievement of practical completion or occupation by the employer [19.6] 16.1.2 Make reasonable allowance in the programme for such work or installation [CD] py 16.1.3 Be entitled to claim expense and/or loss caused by a direct contractor(s) [26.5.4] 16.2 Payment of a direct contractor shall be the responsibility of the employer outside this agreement 16.3 There shall be no privity of contract between the contractor and a direct contractor appointed by the co employer 17.0 CONTRACT INSTRUCTIONS 17.1 The principal agent may issue contract instructions to the contractor regarding: n 17.1.1 Rectification of discrepancies, errors in descriptions or omissions in contract documents other than this agreement 17.1.2 17.1.3 tio Alteration to design, standards or quantity of the works provided that such contract instructions shall not substantially change the scope of the works The site [13.1-2] 17.1.4 Compliance with the law, regulations and bylaws [2.1] a 17.1.5 Provision and testing of samples of materials and goods, of finishes and assemblies of elements of the works uc 17.1.6 Opening up of work for inspection, removal or re-execution 17.1.7 Removal or re-execution of work 17.1.8 Removal or substitution of any materials and goods ed 17.1.9 Protection of the works 17.1.10 Making good physical loss and repairing damage to the works [8.0] 17.1.11 Rectification of defects [21.2] C 17.1.12 A list for practical completion specifying outstanding or defective work to be rectified to achieve practical completion and a list for completion and a list for final completion specifying outstanding or defective work to be rectified to achieve final completion C 17.1.13 Expenditure of budgetary allowances, prime cost amounts and provisional sums 17.1.14 Appointment of a subcontractor [14.0; 15.0] JB 17.1.15 Termination of a nominated n/s subcontract agreement [27.2.8] 17.1.16 Work by (a) direct contractor(s) [16.0] 17.1.17 Access by other or previous contractors to remedy defective work 17.1.18 Removal from the site of any person employed on the works 17.1.19 Removal from the site of any person not engaged on or connected with the works 17.1.20 On termination, protection of the works, removal of construction equipment and surplus materials and goods [29.0] ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 18 of 32 Pages 17.2 The contractor shall comply with and duly execute all contract instructions 17.3 Should the contractor fail to proceed with a contract instruction with due diligence, the principal agent may give notice to the contractor to proceed within five (5) working days of receipt of such notice. Where the contractor remains in default, the employer may engage others to carry out such contract instruction. The employer may recover expense and/or loss incurred [27.2.3] 17.4 The contractor shall not be obliged to execute contract instructions for additional work issued after the certified date of practical completion py 17.5 Oral instructions shall be of no force or effect COMPLETION co 18.0 INTERIM COMPLETION This clause applies only in the JBCC® N/S Subcontract Agreement and is included to retain matching clause numbers between the two agreements n 19.0 PRACTICAL COMPLETION 19.1 The principal agent shall: 19.1.1 tio Inspect the works at appropriate intervals to give the contractor interpretations and direction on the standard of work and the state of completion of the works required of the contractor to achieve practical completion [CD] 19.1.2 Issue a contract instruction [17.1.5-10] consequent on each such inspection, where necessary a 19.1.3 Inspect the works within the period stated [CD] uc 19.2 The contractor shall: 19.2.1 Inspect the works in advance of the (revised) date for practical completion to confirm that the standard of work required and the state of completion of the works for practical completion [CD] has been achieved ed 19.2.2 Give timeous notice to the principal agent of the anticipated date for the inspection for practical completion of the works to meet the (revised) date for practical completion [CD] 19.3 The principal agent shall after inspection of the works, or a section of the works, within the period stated [19.1.3] forthwith issue: 19.3.1 A comprehensive and conclusive list for practical completion [17.1.12] to the contractor where the C works has not reached practical completion specifying the defects to be rectified and work to be completed to achieve practical completion 19.3.2 An updated list for practical completion to the contractor, limited to items on the list for practical C completion that have not been attended to satisfactorily to be rectified and work to be completed to achieve practical completion. The contractor shall repeat the procedure until all items on the list for practical completion have been dealt with satisfactorily before the certificate of practical JB completion is issued by the principal agent Or … 19.3.3 A certificate of practical completion to the contractor with a copy to the employer stating the date on which practical completion of the works, or of a section, was achieved 19.3.4 A list for completion of items to be rectified and work to be completed with a copy to the employer that may include marked up drawings and photographs 19.4 Should the principal agent not issue a list for practical completion or the updated list within five (5) working days after the inspection period, [19.3] the contractor shall give notice to the employer and the principal agent. Should the principal agent not issue such list within a further five (5) working days of receipt of such notice, practical completion shall be deemed to have been achieved on the ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 19 of 32 Pages intended/revised date for practical completion and the principal agent shall issue the certificate of practical completion forthwith 19.5 On issue of the certificate of practical completion, the employer shall be entitled to possession of the works and the site subject to the contractor’s lien, where applicable 19.6 Where the employer takes possession of the whole or a portion of the works by agreement with the contractor, practical completion shall be deemed to have occurred. The principal agent, after inspection of the works, [19.3.3] shall issue a certificate of practical completion to the contractor with a copy to the employer within five (5) working days certifying the date of possession of the works by the employer and py the list for completion of items to be rectified and work to be completed within thirty (30) working days, or such additional period as the principal agent may allow 19.7 On achievement of practical completion of the works or a section of the works and where the principal agent instructs that installation work is to be executed by others, the employer and/or contractor shall allow access to the works or a section of the works for such other installations co 20.0 SECTIONAL COMPLETION 20.1 Where completion of sections is required [CD] the terms and conditions applicable to the works as a whole shall apply to each section n 20.2 The principal agent shall issue: 20.2.1 A certificate of practical completion [19.3.3] for each section, and 20.2.2 tio A certificate of final completion for each section, indicating if it is for the last section to reach final completion [21.4.2] 21.0 DEFECTS LIABILITY PERIOD AND FINAL COMPLETION a 21.1 The defects liability period for the works shall commence on the calendar day following the date of practical completion and end at midnight (00:00) ninety (90) calendar days from the date of practical uc completion [CD] or when work on the list for final completion has been satisfactorily completed [21.4.1], whichever is the later 21.2 Where defects become apparent during the defects liability period the principal agent may instruct the contractor to progressively attend to such items, whilst at all times minimising inconvenience to the ed occupants 21.3 The contractor shall: 21.3.1 Inspect and forthwith rectify all items on the list for completion at least ten (10) working days before the expiry of the defects liability period [19.3.4] 21.3.2 Give notice to the principal agent to inspect the works within five (5) working days of receipt of C such notice 21.4 Where items on the list for completion have not been attended to the principal agent shall notify the contractor of such outstanding items. The process [21.3] shall be repeated until all items on the list for C completion have been attended to 21.5 The contractor shall notify the principal agent when the items on the list for completion have been JB attended to. The principal agent shall inspect the works within five (5) working days of receipt of such notice 21.6 On the expiry of the ninety (90) calendar days defects liability period [21.1] or on notice from the contractor that all items on the list for completion have been completed, whichever is the later, the principal agent shall inspect the works and within ten (10) working days either: 21.6.1 Issue a list for final completion detailing all outstanding work or defects that must be attended to or rectified to achieve final completion Or … 21.6.2 Issue the certificate of final completion to the contractor with a copy to the employer ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 20 of 32 Pages 21.7 Where the principal agent issues a list for final completion the contractor shall promptly complete all outstanding work and rectify all the defects 21.7.1 The contractor shall notify the principal agent when all outstanding work has been completed and all the defects have been rectified 21.7.2 The principal agent shall, within five (5) working days of receipt of the contractor’s notice(s) [21.7.1] notify the contractor either that the items on the list for final completion have been completed, or issue an updated list for final completion of the items not completed and of any further defects that have become evident since the last inspection. py 21.8 Where the principal agent gives notice to the contractor of items on the list for final completion or an updated list for final completion that have not been completed and / or where further defects have become evident since the last inspection, the process [21.7.1-2] shall be repeated until all items on the (updated) list for final completion have been completed. On completion of all items on the (updated) list for final completion the principal agent shall forthwith issue the certificate of final completion to the co contractor with a copy to the employer 21.9 Where the principal agent has not issued the list for final completion or the updated list within five (5) working days after the inspection period, [21.4] the contractor shall give notice to the employer and the principal agent forthwith. Should the principal agent not issue such list within a further five (5) working days of receipt of such notice, final completion shall be deemed to have been achieved on expiry of such notice and the principal agent shall issue the certificate of final completion forthwith n 21.10 Where a subcontractor’s defects liability period extends beyond the contractor’s defects liability period: 21.10.1 21.10.2 tio The contractor’s obligations and liability concerning the subcontractor’s defects shall end on the date of issue of the certificate of final completion The remaining portion of the subcontractor’s defects liability period shall be ceded to the employer on the date of issue of the certificate of final completion a 21.11 Where the contractor, a subcontractor or a supplier is required to give a guarantee, warranty or indemnity, other than a security to the contractor, the rights under such guarantee, warranty or indemnity shall be ceded to the employer on the date of issue of the certificate of final completion. This cession shall not uc prejudice any other rights the employer may have 21.12 A certificate of final completion shall be conclusive as to the sufficiency of the works and that the contractor’s obligations [12.2.17] have been fulfilled other than for latent defects ed 22.0 LATENT DEFECTS LIABILITY PERIOD 22.1 The latent defects liability period for the works shall commence at the start of the construction period and end five (5) years from the certified date of final completion 22.2 Where termination of this agreement occurs before the date of final completion, the latent defects liability period shall end: C 22.2.1 Five (5) years from the date of termination [29.10] for the completed portion of the works only Or … C 22.2.2 On the date of termination where execution of the works has become impossible due to circumstances beyond the control of either party [29.20], or on the date of termination by the JB contractor due to default by the employer [29.16] 22.3 The contractor shall make good all latent defects that appear up to the date of expiry of the latent defects liability period [3.2] 23.0 REVISION OF THE DATE FOR PRACTICAL COMPLETION 23.1 The contractor is entitled to a revision of the date for practical completion by the principal agent without an adjustment of the contract value for a delay to practical completion caused by one or more of the following events: 23.1.1 Adverse weather conditions ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 21 of 32 Pages 23.1.2 Inability to obtain materials and goods where the contractor has taken reasonable steps to avoid or reduce such a delay 23.1.3 Making good physical loss and repairing damage to the works [8.2] where such risk is beyond the reasonable control of the parties 23.1.4 Late supply of a prime cost amount item where the contractor has taken reasonable steps to avoid or reduce such delay 23.1.5 Exercise of statutory power by a body of state or public or local authority that directly affects the py execution of the works 23.1.6 Force majeure 23.2 The contractor is entitled to a revision of the date for practical completion by the principal agent with an adjustment of the contract value [26.0], for a delay to practical completion caused by one or more of the co following events: 23.2.1 Delayed possession of the site [12.1.6] 23.2.2 Making good physical loss and repairing damage to the works [8.2] where the contractor is not at risk n 23.2.3 Contract instructions [17.1-2] not occasioned by the contractor’s default 23.2.4 Opening up and testing of work and materials and goods where such work is in accordance with the 23.2.5 23.2.6 contract documents [17.1.5-7] tio Late or incorrect issue of construction information [5.5; 6.4; 13.2.3; 17.1.1-2] Late supply of free issue, materials and goods for which the employer is responsible [12.1.11] a 23.2.7 Late appointment of a subcontractor in terms of the agreed programme where the contractor has taken reasonable steps to avoid or reduce such delay [14.4; 15.2] uc 23.2.8 Late acceptance by the principal agent and/or agents of a design undertaken by a selected subcontractor where the contractor’s obligations have been met [7.3] 23.2.9 An act or omission by a nominated subcontractor [14.0] or a direct contractor [16.0] 23.2.10 Insolvency of a nominated subcontractor [14.7.2] ed 23.2.11 Suspension or termination by a subcontractor due to default of the employer, the principal agent and/or any agent 23.2.12 Execution of additional work for which the quantity in the bills of quantities is not sufficiently accurate C 23.2.13 Suspension of the works [28.0] 23.3 Further circumstances for which the contractor may be entitled to a revision of the date for practical completion and an adjustment of the contract value are delays to practical completion due to any other C cause beyond the contractor’s reasonable control that could not have reasonably been anticipated and provided for. The principal agent shall adjust the contract value where such delay is due to the employer and/or agents JB 23.4 Should a listed circumstance occur [23.1-3] which could cause a delay to the date for practical completion, the contractor shall: 23.4.1 Take reasonable steps to avoid or reduce such delay 23.4.2 Within twenty (20) working days of becoming aware, or ought reasonably to have become aware of such delay, give notice to the principal agent of the intention to submit a claim for a revision to the date of practical completion, failing which the contractor shall forfeit such claim 23.5 The contractor shall submit a claim for the revision of the date of practical completion to the principal agent within forty (40) working days, or such extended period the principal agent may allow, from when the contractor is able to quantify the delay in terms of the programme ©Copyright reserved: JBCC® Principal Building Agreement, Edition 6.1 – March 2014 Page 22 of 32 Pages 23.6 Where the contractor requests a revision of the date for practical completion the claim shall in respect of each circumstance separately state: 23.6.1

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