Red 2017-28-144-86-90.pdf

GENERAL CONDITIONS (a) GUIDANCE (e) This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org (c) FORMS (b) (d) the amounts payable for any work carried out for which a price is stated in the Co...

GENERAL CONDITIONS (a) GUIDANCE (e) This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org (c) FORMS (b) (d) the amounts payable for any work carried out for which a price is stated in the Contract; the Cost of Plant and Materials ordered for the Works which have been delivered to the Contractor, or of which the Contractor is liable to accept delivery. This Plant and Materials shall become the property of (and be at the risk of) the Employer when paid for by the Employer, and the Contractor shall place the same at the Employer’s disposal; any other Cost or liability which in the circumstances was reasonably incurred by the Contractor in the expectation of completing the Works; the Cost of removal of Temporary Works and Contractor’s Equipment from the Site and the return of these items to the Contractor’s place of business in the Contractor’s country (or to any other destination(s) at no greater cost); and the Cost of repatriation of the Contractor’s staff and labour employed wholly in connection with the Works at the date of termination. The Engineer shall then proceed under Sub-Clause 3.7 [Agreement or Determination] to agree or determine the value of work done (and, for the purpose of Sub-Clause 3.7.3 [Time limits], the date the Engineer receives the Contractor’s particulars under this Sub-Clause shall be the date of commencement of the time limit for agreement under Sub-Clause 3.7.3). The Engineer shall issue a Payment Certificate, under Sub-Clause 14.6 [Issue of IPC], for the amount so agreed or determined, without the need for the Contractor to submit a Statement. 18.6 Release from Performance under the Law In addition to any other provision of this Clause, if any event arises outside the control of the Parties (including, but not limited to, an Exceptional Event) which: (a) (b) makes it impossible or unlawful for either Party or both Parties to fulfil their contractual obligations; or under the law governing the Contract, entitles the Parties to be released from further performance of the Contract, and if the Parties are unable to agree on an amendment to the Contract that would permit the continued performance of the Contract, then after either Party gives a Notice to the other Party of such event: (i) (ii) the Parties shall be discharged from further performance, and without prejudice to the rights of either Party in respect of any previous breach of the Contract; and the amount payable by the Employer to the Contractor shall be the same as would have been payable under Sub-Clause 18.5 [Optional Termination], and such amount shall be certified by the Engineer, as if the Contract had been terminated under that Sub-Clause. 19 Insurance 19.1 General Requirements 92 © FIDIC 2017 Without limiting either Party’s obligations or responsibilities under the Contract, the Contractor shall effect and maintain all insurances for which the Contractor is responsible with insurers and in terms, both of which shall Conditions of Contract for Construction This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org Whenever required by the Employer, the Contractor shall produce the insurance policies which the Contractor is required to effect under the Contract. As each premium is paid, the Contractor shall promptly submit either a copy of each receipt of payment to the Employer (with a copy to the Engineer), or confirmation from the insurers that the premium has been paid. If the Contractor fails to effect and keep in force any of the insurances required under Sub-Clause 19.2 [Insurances to be provided by the Contractor] then, and in any such case, the Employer may effect and keep in force such insurances and pay any premium as may be necessary and recover the same from the Contractor from time to time by deducting the amount(s) so paid from any moneys due to the Contractor or otherwise recover the same as a debt from the Contractor. The provisions of Clause 20 [Employer’s and Contractor’s Claims] shall not apply to this Sub-Clause. If either the Contractor or the Employer fails to comply with any condition of the insurances effected under the Contract, the Party so failing to comply shall indemnify the other Party against all direct losses and claims (including legal fees and expenses) arising from such failure. The Contractor shall also be responsible for the following: (a) (b) notifying the insurers of any changes in the nature, extent or programme for the execution of the Works; and the adequacy and validity of the insurances in accordance with the Contract at all times during the performance of the Contract. The permitted deductible limits allowed in any policy shall not exceed the amounts stated in the Contract Data (if not stated, the amounts agreed with the Employer). Where there is a shared liability the loss shall be borne by each Party in proportion to each Party’s liability, provided the non-recovery from insurers has not been caused by a breach of this Clause by the Contractor or the Employer. In the event that non-recovery from insurers has been caused by such a breach, the defaulting Party shall bear the loss suffered. 19.2 Insurance to be provided by the Contractor 19.2.1 The Contractor shall provide the following insurances: The Works The Contractor shall insure and keep insured in the joint names of the Contractor and the Employer from the Commencement Date until the date of the issue of the Taking-Over Certificate for the Works: (a) General Conditions © FIDIC 2017 the Works and Contractor’s Documents, together with Materials and Plant for incorporation in the Works, for their full replacement value. 93 GENERAL CONDITIONS The insurances required to be provided under this Clause are the minimum required by the Employer, and the Contractor may, at the Contractor’s own cost, add such other insurances that the Contractor may deem prudent. GUIDANCE FORMS be subject to consent by the Employer. These terms shall be consistent with terms (if any) agreed by both Parties before the date of the Letter of Acceptance. GENERAL CONDITIONS The insurance cover shall cover the Employer and the Contractor against all loss or damage from whatever cause arising until the issue of the Taking-Over Certificate for the Works. Thereafter, the insurance shall continue until the date of the issue of the Performance Certificate in respect of any incomplete work for loss or damage arising from any cause occurring before the date of the issue of the Taking-Over Certificate for the Works, and for any loss or damage occasioned by the Contractor in the course of any operation carried out by the Contractor for the purpose of complying with the Contractor’s obligations under Clause 11 [Defects after Taking Over] and Clause 12 [Tests after Completion]. However, the insurance cover provided by the Contractor for the Works may exclude any of the following: This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org FORMS GUIDANCE (b) The insurance cover shall extend to include loss and damage of any part of the Works as a consequence of failure of elements defectively designed or constructed with defective material or workmanship; and an additional amount of fifteen percent (15%) of such replacement value (or such other amount as may be specified in the Contract Data) to cover any additional costs incidental to the rectification of loss or damage, including professional fees and the cost of demolition and removal of debris. (i) (ii) (iii) (iv) 19.2.2 the cost of making good any part of the Works which is defective (including defective material and workmanship) or otherwise does not comply with the Contract, provided that it does not exclude the cost of making good any loss or damage to any other part of the Works attributable to such defect or non-compliance; indirect or consequential loss or damage including any reductions in the Contract Price for delay; wear and tear, shortages and pilferages; and unless otherwise stated in the Contract Data, the risks arising from Exceptional Events. Goods The Contractor shall insure, in the joint names of the Contractor and the Employer, the Goods and other things brought to Site by the Contractor to the extent specified and/or amount stated in the Contract Data (if not specified or stated, for their full replacement value including delivery to Site). The Contractor shall maintain this insurance from the time the Goods are delivered to the Site until they are no longer required for the Works. 19.2.3 Liability for breach of professional duty To the extent, if any, that the Contractor is responsible for the design of part of the Permanent Works under Sub-Clause 4.1 [Contractor’s General Obligations], and/or any other design under the Contract, and consistent with the indemnities specified in Clause 17 [Care of the Works and Indemnities]: (a) (b) 94 © FIDIC 2017 the Contractor shall effect and maintain professional indemnity insurance against liability arising out of any act, error or omission by the Contractor in carrying out the Contractor’s design obligations in an amount not less than that stated in the Contract Data (if not stated, the amount agreed with the Employer); and if stated in the Contract Data, such professional indemnity insurance Conditions of Contract for Construction This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org 19.2.4 The Contractor shall maintain this insurance for the period specified in the Contract Data. Injury to persons and damage to property The Contractor shall insure, in the joint names of the Contractor and the Employer, against liabilities for death or injury to any person, or loss of or damage to any property (other than the Works) arising out of the performance of the Contract and occurring before the issue of the Performance Certificate, other than loss or damage caused by an Exceptional Event. The insurance policy shall include a cross liability clause such that the insurance shall apply to the Contractor and the Employer as separate insureds. Such insurance shall be effected before the Contractor begins any work on the Site and shall remain in force until the issue of the Performance Certificate and shall be for not less than the amount stated in the Contract Data (if not stated, the amount agreed with the Employer). 19.2.5 Injury to employees The Contractor shall effect and maintain insurance against liability for claims, damages, losses and expenses (including legal fees and expenses) arising out of the execution of the Works in respect of injury, sickness, disease or death of any person employed by the Contractor or any of the Contractor’s other personnel. The Employer and the Engineer shall also be indemnified under the policy of insurance, except that this insurance may exclude losses and claims to the extent that they arise from any act or neglect of the Employer or of the Employer’s Personnel. The insurance shall be maintained in full force and effect during the whole time that the Contractor’s Personnel are assisting in the execution of the Works. For any person employed by a Subcontractor, the insurance may be effected by the Subcontractor, but the Contractor shall be responsible for the Subcontractor’s compliance with this Sub-Clause. 19.2.6 Other insurances required by Laws and by local practice The Contractor shall provide all other insurances required by the Laws of the countries where (any part of) the Works are being carried out, at the Contractor’s own cost. Other insurances required by local practice (if any) shall be detailed in the Contract Data and the Contractor shall provide such insurances in compliance with the details given, at the Contractor’s own cost. General Conditions © FIDIC 2017 95 GENERAL CONDITIONS GUIDANCE FORMS shall also indemnify the Contractor against liability arising out of any act, error or omission by the Contractor in carrying out the Contractor’s design obligations under the Contract that results in the Works (or Section or Part or major item of Plant, if any), when completed, not being fit for the purpose(s) for which they are intended under Sub-Clause 4.1 [Contractor’s General Obligations]. GENERAL CONDITIONS 20 Employer’s and Contractor’s Claims 20.1 Claims A Claim may arise: GUIDANCE (a) (b) This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org FORMS (c) if the Employer considers that the Employer is entitled to any additional payment from the Contractor (or reduction in the Contract Price) and/ or to an extension of the DNP; if the Contractor considers that the Contractor is entitled to any additional payment from the Employer and/or to EOT; or if either Party considers that he/she is entitled to another entitlement or relief against the other Party. Such other entitlement or relief may be of any kind whatsoever (including in connection with any certificate, determination, instruction, Notice, opinion or valuation of the Engineer) except to the extent that it involves any entitlement referred to in sub-paragraphs (a) and/or (b) above. In the case of a Claim under sub-paragraph (a) or (b) above, Sub-Clause 20.2 [Claims For Payment and/or EOT] shall apply. In the case of a Claim under sub-paragraph (c) above, where the other Party or the Engineer has disagreed with the requested entitlement or relief (or is deemed to have disagreed if he/she does not respond within a reasonable time), a Dispute shall not be deemed to have arisen but the claiming Party may, by giving a Notice refer the Claim to the Engineer and Sub-Clause 3.7 [Agreement or Determination] shall apply. This Notice shall be given as soon as practicable after the claiming Party becomes aware of the disagreement (or deemed disagreement) and include details of the claiming Party’s case and the other Party’s or the Engineer’s disagreement (or deemed disagreement). 20.2 Claims For Payment and/or EOT 20.2.1 If either Party considers that he/she is entitled to any additional payment by the other Party (or, in the case of the Employer, a reduction in the Contract Price) and/or to EOT (in the case of the Contractor) or an extension of the DNP (in the case of the Employer) under any Clause of these Conditions or otherwise in connection with the Contract, the following Claim procedure shall apply: Notice of Claim The claiming Party shall give a Notice to the Engineer, describing the event or circumstance giving rise to the cost, loss, delay or extension of DNP for which the Claim is made as soon as practicable, and no later than 28 days after the claiming Party became aware, or should have become aware, of the event or circumstance (the “Notice of Claim” in these Conditions). If the claiming Party fails to give a Notice of Claim within this period of 28 days, the claiming Party shall not be entitled to any additional payment, the Contract Price shall not be reduced (in the case of the Employer as the claiming Party), the Time for Completion (in the case of the Contractor as the claiming Party) or the DNP (in the case of the Employer as the claiming Party) shall not be extended, and the other Party shall be discharged from any liability in connection with the event or circumstance giving rise to the Claim. 96 © FIDIC 2017 Conditions of Contract for Construction