Second draft: 27.01.

2019

DATED [insert date]

(1) EXPO DUBAI 2020 LLC - SO

- and –

(2) [INSERT CONTRACTOR]

DESIGN, BUILD, MAINTENANCE, DISMANTLE AND

REINSTATEMENT CONTRACT FOR [INSERT TYPE OF
WORKS]
RELATING TO
THE EXPO 2020 DUBAI PROJECT
 TABLE OF CONTENTS
CONTRACT AGREEMENT

APPENDIX

GENERAL CONDITIONS

ANNEX 1 – EMPLOYER'S REQUIREMENTS

ANNEX 2 – CONTRACTOR'S PROPOSAL

ANNEX 3 – PRICING DOCUMENTS

ANNEX 4 – FORM OF PERFORMANCE BOND

ANNEX 5 – FORM OF ADVANCE PAYMENT BOND

ANNEX 6 – FORM OF TASK ORDER

ANNEX 7 – FORMS OF COLLATERAL WARRANTY

ANNEX 8 – FORM OF HIRED MATERIALS DIRECT AGREEMENT

ANNEX 9 – FORMS OF CERTIFICATES

ANNEX 10 – PROGRAMME SCHEDULE

1
 CONTRACT AGREEMENT
THIS Contract is made on [insert date] (the "Effective Date")

BETWEEN:-

(1) EXPO DUBAI 2020 LLC - SO, a limited liability company incorporated in Dubai, UAE holding
commercial license No. 664223 with its registered address at PO Box 2020, Dubai, United
Arab Emirates (the "Employer" which expression includes the Employer's successors and
assigns); and

(2) [INSERT NAME OF CONTRACTOR] (Company No. [insert number]) of [insert registered
office address] (the "Contractor" which expression includes the Contractor's successors and
permitted assigns).

WHEREAS:-

(A) The Employer desires that the execution of the Works and the Tasks (if any) and the provision of
the FM Services and the obligations set out in the Contract should be carried out and completed
by the Contractor, all in accordance with the Contract.

(B) The Contractor accepts and agrees to execute the Works and Tasks (if any) and the provide the
FM Services and to perform the obligations set out in the Contract, all in accordance with the
Contract.

THE EMPLOYER AND THE CONTRACTOR AGREE as follows:-

1. In this Contract words and expressions shall have the same meanings as are respectively
assigned to them in the Conditions of Contract referred to unless otherwise defined in this
Contract Agreement.

2. The following documents shall be deemed to form and be read and construed as to mean
the Contract (the "Contract"):-

(a) this Contract Agreement;

(b) the Appendix;
(c) the Conditions of Contract;
(d) the Employer's Requirements;
(e) the Task Orders;
(f) the Pricing Documents;
(g) the Programme Schedule;
(h) the Contractor's Proposal (if any); and
(i) the other Annexes.

3. If a conflict, ambiguity or discrepancy is found between any of the above documents forming
the Contract, such conflict, ambiguity or discrepancy shall be resolved in the descending
order of priority of the documents listed in paragraph 2 of this Contract Agreement.

4. The Employer hereby agrees to pay the Contractor the Contract Price as may be adjusted
expressly in accordance with the Contract in consideration of the Contractor executing the
Works and Tasks (if any) and providing the FM Services and performing the obligations set
out in the Contract, all in accordance with the Contract.

2
5. If any part of the Works, Tasks (if any), FM Services and/or any of the Contractor's
obligations have been executed or performed by the Contractor prior to the Effective Date
such part of the Works, Tasks (if any), FM Services and/or obligations shall be deemed to
have been executed and/or performed under the Contract.

6. The Contract shall come into full force and effect from the Effective Date.

IN WITNESS WHEREOF, the Parties have caused the Contract to be executed the day and year
stated above.

EXECUTED BY THE AUTHORISED EXECUTED BY THE AUTHORISED

SIGNATURE(S) OF THE EMPLOYER SIGNATURE(S) OF THE CONTRACTOR

Name ............................................................ Name ............................................................

Signature ....................................................... Signature .......................................................

Name ............................................................ Name ............................................................

Signature ....................................................... Signature .......................................................

3
 APPENDIX

Conditions
of Contract
Particulars of
Item Clause / Data
Contract
Sub-Clause
No.
1. Commencement 1.1.8 [The Effective Date] [This applies for all of the Works (if no Sections)
Date i.e. no dismantling phase]

If the Works are to be divided into Sections the following will apply:
Section No (if applicable) Commencement Date
and Description of
Section
Section 1 – [insert [Effective Date]
description]
Section 2 – [insert [Effective Date]
description]
Section 3 (Optional Works [insert] days from the date
1) – [insert description] the relevant Optional Works
is instructed under Clause
20 [Optional Works]
Section 4 (Optional Works [insert] days from the date
1) – [insert description] the relevant Optional Works
is instructed under Clause
20 [Optional Works]
Section 5 – [insert] days from the end of
[Reinstatement Works the Event
during dismantling phase]

2. FM Services 1.1.33 [The Effective Date] [This applies for all of the Works (if no Sections)
Period i.e. no dismantling phase]

If the Works are to be divided into Sections the following will apply:
Section No (if applicable) FM Services Period
and Description of
Section
Section 1 – [insert From the date of the Taking-
description] Over Certificate for this
Section until and including
10 April 2021
Section 2 – [insert From the date of the Taking-
description] Over Certificate for this
Section until and including
10 April 2021
Section 3 (Optional Works From the date of the Taking-
1) – [insert description] Over Certificate for this
Section until and including
10 April 2021
Section 4 (Optional Works From the date of the Taking-
1) – [insert description] Over Certificate for this
Section until and including
10 April 2021

3
 APPENDIX

Conditions
of Contract
Particulars of
Item Clause / Data
Contract
Sub-Clause
No.
Guidance Notes to Procurement Team: Optional Works are
3. Optional Works 1.1.43, 1.1.45
only optional and would apply to pre-defined scope of work for
and Nomination & 20
which EX20 wants time and cost certainty but EX20 is not sure if
Date
this would be instructed at the time of tender. Bidders will submit
the cost and programme schedule for the Optional Works at
tender stage. Given that EX20 gets time certainty, Bidders should
also specify the longstop date by which EX20 must instruct the
Optional Works it requires (i.e. Nomination Date) for inclusion in
the table below to ensure the programme schedule can be
achieved. If the Optional Works do not apply, insert "NOT USED".
Otherwise, complete the table below based on input from the
Bidders:

Option No (if applicable) Nomination Date

and Description of
Optional Works
Optional Works 1 – [insert
description]
Optional Works 2 – [insert
description]
[insert] days from the
Commencement Date
[insert] days from the
Commencement Date

4. Time for 1.1.75 Time for Completion of the Works is [insert no. of days] days from the
Completion of Commencement Date. [This applies for all of the Works (if no
the Works or Sections) i.e. no dismantling phase]
Section
If the Works are to be divided into Sections the following will
apply:

Section No (if applicable) Time for Completion

and Description of
Section
Section 1 – [insert [insert] days from the
description] Commencement Date for
this Section
Section 2 – [insert [insert] days from the
description] Commencement Date for
this Section
Section 3 (Optional Works [insert] days from the
1) – [insert description] Commencement Date for
this Section
Section 4 (Optional Works [insert] days from the
1) – [insert description] Commencement Date for
this Section
Section 5 – [insert] days from the
[Reinstatement Works Commencement Date for
during dismantling phase] this Section

4
 APPENDIX

Conditions
of Contract
Particulars of
Item Clause / Data
Contract
Sub-Clause
No.
Guidance Notes for Procurement Team: This milestone table is
5. Milestone and 1.1.40 and
not linked to the payment mechanism. This would apply if certain
Milestone 1.1.41 work activities (e.g. issuance of IFC drawings) need to be completed
Completion
by a specific date, failing which there could be critical delay or liability
Dates
to any third party (e.g. if a third party needs to approve the IFC
drawings). See note on delay damages for milestones at item 14
below. If this is not applicable, insert "NOT USED".
Milestone Description of Milestone Milestone
Completion Date

Milestone – [Insert no. of

M1 days] days from
the
Commencement
Date.

Milestone – [Insert no. of

M2 days] days from
the
Commencement
Date.

Milestone – [Insert no. of

M3 days] days from
the
Commencement
Date.

6. Governing Law 1.4 [The laws of the United Arab Emirates and the federal laws of the
of the Contract United Arab Emirates as applied in the Emirate of Dubai]

7. Access date to 2.1 [Date to be notified by the Employer to Contractor in writing.]

Site

8. Site Instruction 2.4 [Insert amount]

Threshold

9. Authorised 3.1 Name: [Insert]

person

10. Employer’s 3.2 Name: [Insert]

Representative
(if known) Address: [Insert]

11. Amount of
Performance 4.9 [Insert]% of the Contract Price for the Works
Bond

5
 APPENDIX

Conditions
of Contract
Particulars of
Item Clause / Data
Contract
Sub-Clause
No.
 Time for submission: Within [Insert] days of the
12. Programme 7.3
Commencement Date
Schedule
 The Contractor shall submit a revised Programme
Schedule to the Employer for approval if, for any reason,
there are any changes to the approved Programme
Schedule that might affect any Milestone Completion
Date or the Time for Completion of the Works.

 Form of Programme Schedule: [insert programme

schedule (e.g. Primavera P6)]

13. Delay damages 7.5 The delay damages for the Works are the sum of [insert currency]
for Works or [insert amount] per day. [This applies for all of the Works (if no
Sections Sections) i.e. no dismantling phase.]

If the Works are to be divided into Sections the following will

apply for delay penalties:

Section No (if applicable) Delay Penalties

and Description of
Section
Section 1 – [insert [insert amount] per day
description]
Section 2 – [insert [insert amount] per day
description]
Section 3 (Optional Works [insert amount] per day
1) – [insert description]
Section 4 (Optional Works [insert amount] per day
1) – [insert description]
Section 5 – [Reinstatement [insert amount] per day
Works during dismantling
phase]

The Contractor's maximum liability for delay damages for failure

to complete the Works by the Time for Completion is [20%] of the
Contract Price.

6
 APPENDIX

Conditions
of Contract
Particulars of
Item Clause / Data
Contract
Sub-Clause
No.
Guidance Notes for Procurement Team: This milestone table is
14. Delay Damages 7.6
not linked to the payment mechanism. This would apply if certain
for a Milestone
work activities (e.g. issuance of IFC drawings) need to be completed
by a specific date, failing which there could be critical delay or liability
to any third party (e.g. if a third party needs to approve the IFC
drawings). If the Contractor fails to achieve the milestones by the
relevant dates, then delay damages will be payable to compensate
EX20 for any loss incurred (e.g. any cost incurred by such third party,
including EX20's internal direct additional
administration/management cost). If this is not applicable, insert
"NOT USED".
Milestone Description of Milestone Delay Damages
[insert currency]
[insert amount] per
Milestone
day or part of a day
– M1

[insert amount] per

Milestone day
– M2

[insert amount] per

Milestone day
– M3

15. Hired Materials 4.15 Guidance Notes for Procurement Team: The list of Hired Materials
should be obtained from bidders during the tender stage, and the
bidders should also specify the buy back price for such materials. An
explanatory note could be included with reference to Clause 4.15 to
inform the bidders of the reason why this information is being
requested. In the event the contractor or a subcontractor becomes
insolvent, EX20 wants to option to buy to avoid liquidators from
attempting to recover and remove the materials from Site before or
during the Event. If a list is provided, such list with buy back prices
should be included in the Pricing Documents and referenced below.

The Hired Materials are:

[insert or include reference to the list in the Pricing Documents]

16. Service Level 8.6  The report shall be provided [each month]
Reports

7
 APPENDIX

Conditions
of Contract
Particulars of
Item Clause / Data
Contract
Sub-Clause
No.
17. Defects 9.1 & 11.5 [insert] days calculated from the date the Works are completed as
Notification stated in the Taking-Over Certificate. [This applies for all of the
Period Works (if no Sections) i.e. no dismantling phase]
If the Works are to be divided into Sections the following will
apply:

Section No (if applicable) Time for Completion

and Description of
Section
Section 1 – [insert [insert] days from the date of
description] the Taking-Over Certificate
for this Section
Section 2 – [insert [insert] days from the date of
description] the Taking-Over Certificate
for this Section
Section 3 (Optional Works [insert] days from the date of
1) – [insert description] the Taking-Over Certificate
for this Section
Section 4 (Optional Works [insert] days from the date of
1) – [insert description] the Taking-Over Certificate
for this Section
Section 5 – [insert] days from the date of
[Reinstatement Works the Taking-Over Certificate
during dismantling phase] for this Section

18. Contract Price 11.1 a. The Contract Price is [insert currency] [Insert amount], as
further broken down in the Pricing Documents and the
amounts payable for Tasks, as set out in the relevant
Task Orders instructed under Clause 19 [Task Order]

b. The Contractor's overhead and profit is: [insert %] of the

10.3 Cost

c. The Contractor’s overhead and profit for new rates and

prices is: [insert %] of the Cost.

19. Retention 11.3 [insert %] of the Contract Price for the Works

20. Percentage of 11.2 Percentage of value of Materials is [insert percentage] in accordance

value of with [insert relevant part of Contract].
Materials

21. Currency of 11.7 United Arab Emirates Dirham (AED)

payment

8
 APPENDIX

Conditions
of Contract
Particulars of
Item Clause / Data
Contract
Sub-Clause
No.
22. Advance 11.9 The advance payment amount is [insert %] of the Contract Price for
Payment the Works.

Number of instalments is one (1) instalment.

The amortisation rate is [insert %]

Guidance Notes for Procurement Team: advice should be sought
23. Insurances 14
from EX20's insurance broker and the table below should be
amended as appropriate before floating the tender as insurance
requirements would have an impact on tender prices.
Type of cover Amount of cover Periods of
Cover

The Works and the The Contract Price Until the last
Materials plus [insert %]. Taking-Over
Certificate is
issued

The Contractor’s Full replacement Until the expiry

Equipment cost of the last
Defects
Notification
Period

Third Party-injury to [insert amount] per Until the expiry

persons and damage any one of the last
to property (public occurrence Defects
liability insurance Notification
policy) Period

Workers [insert amount] or Until the expiry

Compensation such higher amount of the last
(Employer's Liability as required by Law Defects
Insurance) per any one Notification
occurrence Period

Professional [insert amount] per 10 years from

Indemnity Insurance any one the date of the
occurrence Performance
Certificate

9
 APPENDIX

Conditions
of Contract
Particulars of
Item Clause / Data
Contract
Sub-Clause
No.
Such other insurance Minimum amount Until the expiry
cover as may be as prescribed by of the last
prescribed by Law the Law Defects
Notification
Period

Motor Vehicle Minimum amount Until the expiry

Liability Insurance as prescribed by of the last
Law Defects
Notification
Period

24. Rules of 16.2 The Rules of Arbitration are [DIFC-LCIA Rules – we have
Arbitration extracted this from EX20's standard Greenbook template]

25. Seat of 16.2 [Dubai International Financial Centre – we have extracted this
Arbitration from EX20's standard Greenbook template]

26. Governing law 16.2 [The laws of the United Arab Emirates and the federal laws of the
of arbitration United Arab Emirates as applied in the Emirate of Dubai]
agreement
Guidance Notes for Procurement Team: this item 26 should be
identical to item 6.

27. SME 17.3 The penalty for failure to meet the SME participation level set is:
Engagement
[insert]

10
SHORT FORM OF CONTRACT

GENERAL CONDITIONS
FIRST EDITION 1999

ISBN-2-88432-024-5

FEDERATION INTERNATIONALE DES INGENIEURS-CONSEILS

INTERNATIONAL FEDERATION OF CONSULTING ENGINEERS
INTERNATIONALE VEREINIGUNG BERATENDER INGENIEURE
FEDERACION INTERNACIONAL DE INGENIEROS CONSOLTORES

11
GENERAL CONDITIONS OF CONTRACT

1. GENERAL PROVISIONS

1.1 Definitions

In the Contract as defined below, the capitalised words and expressions listed below shall have the
following meanings assigned to them, except where the context requires otherwise.

1.1.1 "Advance Payment Bond" means the advance payment bond to be provided to the Employer by the
Contractor under Sub-Clause 11.9 [Advance Payment] from a bank which has a long term unsecured
debt rating of at least A from S&P and A2 from Moody’s and is approved by the Employer in the
specimen form identified in Annex 5 (Form of Advance Payment Bond).

1.1.2 "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common
control with another entity.

1.1.3 "Annex" means any annex of this Contract.

1.1.4 "Appendix" means the document in this Contract that is so entitled.

1.1.5 "Authority" means any and all local, regional, territorial, municipal government, ministry, governmental
department, commission, board, bureau, agency, instrumentality, executive, judicial or administrative
body, having jurisdiction over any part of the Works or Section (as the case may be), Tasks (if any) and
FM Services, the Contractor, any Subcontractor and/or the Employer as well as its respective Affiliates

1.1.6 "Clause" means, except where otherwise stated, any clause of these Conditions and the term
"Clauses" shall be construed accordingly. "Sub-Clause" means, except where otherwise stated, any
sub-clause of these Conditions, and the term "Sub-Clauses" shall be construed accordingly.

1.1.7 "Commercial Partners" means premier partners, official partners, official providers or other suppliers
that enter a commercial agreement with the Employer in relation to Expo 2020 Dubai.

1.1.8 "Commencement Date" means the commencement date(s) stated in the Appendix (except in respect
of a Task).

1.1.9 "Conditions of Contract" or these "General Conditions" mean Clause 1 [General Provisions] to
Clause 20 [Optional Works] (inclusive).

1.1.10 "Condition Survey" has the meaning given to it at Sub-Clause 4.16.

1.1.11 "Confidential Information" means all information of a confidential nature disclosed by whatever
means by one party (the "Disclosing Party") either directly or from any person associated with the
Disclosing Party, to any other party (the "Receiving Party") which concerns the business, operations
or customers of the Disclosing Party or its affiliated companies and includes the provisions or subject
matter of this Contract, the Works, Tasks, FM Services or any agreements or documents executed by
the parties in connection with this Contract or the Works, Tasks or FM Services.

1.1.12 "Contract" has the meaning given to it in paragraph numbered 2 of the Contract Agreement.

1.1.13 "Contract Agreement" means the document in this Contract that is so entitled.

1.1.14 "Contract Price" means the prices identified in the Appendix and defined in Sub-Clause 11.1 [the
Contract Price], as may be adjusted expressly in accordance with this Contract.

1.1.15 "Contractor" means the person named as contractor in the Contract Agreement and their legal
successors in title.

1.1.16 "Contractor’s Design" has the meaning given to it in Sub-Clause 5.1 [Contractor's Design and
Document Submission].

12
1.1.17 "Contractor’s Documents" means all data, designs (including the Contractor's Design), drawings,
models, plans, sketches, specifications, design detail, photographs, brochures, reports, notes of
meetings, computer aided design, materials, labour records, Programme Schedule, any other
programme schedule, information stored in electronic format and any other materials and documents
developed or prepared by the Contractor under the Contract and all amendments or additions thereto
and any works, designs or inventions of the Contractor incorporated or referred to therein, including
the documents supplied by the Contractor in accordance with Sub-Clause 5.5 [As-Built documents]
and Sub-Clause 5.6 [Operation and Maintenance Manuals].

1.1.18 "Contractor's Equipment" means all apparatus, machinery, vehicles, facilities and other things
required for the execution of the Works, Tasks (if any) or FM Services but does not include Materials or
any other things intended to form or forming part of the permanent work to be executed as part of the
Works, Tasks (if any) or FM Services.

1.1.19 "Contractor's Proposal" means the document in Annex 2 which shows and describes the Contractor's
proposal for executing the Works, Tasks (to the extent instructed under Clause 19) and FM Services.

1.1.20 "Cost" means all expenditure reasonably and properly incurred (or to be incurred) by the Contractor,
whether on or off the Site for the execution of the Works and Tasks (if any) and the provision of the FM
Services, but excluding any overhead charges or any allowances or contingencies for the Contractor's
profit (or loss of profit). Unless otherwise stated in the Contract, such Cost shall be evaluated in
accordance with Sub-Clause 10.3 [Valuation of Variations].

1.1.21 "Country" means the Emirate of Dubai.

1.1.22 "Day" means a calendar day.

1.1.23 "Defects Notification Period" has the meaning given to it in Sub-Clause 9.1 [Remedying Defects].

1.1.24 "Dispute" has the meaning given to it at Sub-Clause 16.1 [Amicable Settlement].

1.1.25 "Effective Date" means the date of the Contract as stated in the Contract Agreement.

1.1.26 "Employer's Liabilities" means those matters listed in Sub-Clause 6.1 [Employer's Liabilities].

1.1.27 “Employer's Representative" means the person named in the Appendix as the Employer's
Representative or appointed from time to time by the Employer under Sub-Clause 3.2 [Employer's
Representative], who acts on behalf of the Employer for the purposes of the Contract.

1.1.28 "Employer's Requirements" means all the documents set out in Annex 1 (Employer's Requirements)
specifying the Works, Tasks (to the extent instructed under Clause 19), FM Services or otherwise
stating the Employer's requirements for the Works, Tasks (to the extent instructed under Clause 19),
FM Services (including the testing and commissioning requirements) and which includes such
requirements as may be modified from time to time by the Employer by a Variation.

1.1.29 "Errors" means any errors, mistakes, defects, inadequacies, inaccuracies, omissions, discrepancies,
inconsistencies, divergence, conflict or design or construction impracticalities or deficiencies.

1.1.30 "Employer's Policies" means all of the Employer's policies set out in Annex 1 and form part of the
Employer's Requirements.

1.1.31 "Event" means the Dubai Expo 2020 world exhibition which will be held in Dubai and shall start on
20th October 2020 and shall end on 10th April 2021.

1.1.32 "FM Services" means the facilities management and maintenance services for the completed Works
or a Section (as the case may be) or Tasks (if any) as set out in the Employer's Requirements.

1.1.33 "FM Services Period" means the period(s) stated in the Appendix, as may be extended in accordance
with this Contract.

13
1.1.34 "Fit for Purpose" means, with respect to the Works or Section, Tasks (if any) or any part of them (as
the case may be), fit for the purpose set out in the Employer's Requirements, and if no such purpose is
set out in the Employer's Requirements, in accordance with the ordinary purposes for which such
Works, Tasks (if any) or Section (as the case may be) are intended.

1.1.35 "Hired Materials" means those items of hired Materials identified in the Appendix which are hired by
the Employer from the Contractor in accordance with this Contract.

1.1.36 "Hired Materials Direct Agreement" means the direct agreement between the Employer, the
Contractor and a Subcontractor in the form specified in Annex 8 (Form of Hired Materials Direct
Agreement).

1.1.37 "Laws" means any law, decree, legislation, regulation, constitution, judgment, standard, code, order,
ordinance, treaty, consent or other requirement of any authority having the force of law in the Emirate
of Dubai, including the laws of the United Arab Emirates applicable in the Emirate of Dubai, as the
same may be amended, modified or consolidated from time to time.

1.1.38 "Losses" means losses, damages, penalties, fines, liabilities, claims, judgments, costs and expenses
(including legal costs and the costs of proceedings).

1.1.39 "Materials" means all plant, materials and goods intended to form or forming part of the Works, Tasks
(if any) or FM Services.

1.1.40 "Milestone" means each key stage of the Works as identified and specified in the Appendix.

1.1.41 "Milestone Completion Date" means the time for completing a Milestone as stated in the Appendix in
accordance with Sub-Clause 7.2 [Completion of Milestone] (as may be extended from time to time in
accordance with these Conditions), calculated from the Commencement Date.

1.1.42 "Milestone Payments" means the milestone payments comprising individual amounts of the Contract
Price as set out in the Pricing Documents.

1.1.43 "Nomination Date" means the date specified in the Appendix by which the Employer may instructing
Optional Works under Clause 20 [Optional Works].

1.1.44 "Others" means any third party engaged by the Employer on the Project or at the Site, but excluding
the Contractor and Subcontractor.

1.1.45 "Optional Works" means any one or more work options specified in the Appendix that may be
instructed by the Employer at its absolute discretion and sole option in accordance with Clause 20
[Optional Works] and carried out by the Contractor in accordance with this Contract.

1.1.46 “Overlay Works" means the works (including any Optional Works) to be executed in preparation for
the Event as set out in the Employer's Requirements including any temporary work and any Variation.

1.1.47 "Part" or "Part of the Works" means a part of the Works or a Section (as the case may be) which the
Employer has taken possession of under Sub-Clause 8.3 [Partial Completion] as such part of the
Works is identified in the Partial Taking-Over Certificate.

1.1.48 "Partial Taking-Over Certificate" has the meaning given to it under Sub-Clause 8.3 [Partial Taking-
Over Certificate] being the certificate issued under Sub-Clause 8.3 [Partial Taking-Over Certificate].

1.1.49 "Party" means the Employer or the Contractor, as the case may be, as the context requires and the
term "Parties" means the Employer and the Contractor.

1.1.50 "Performance Bond" means the performance bond to be provided to the Employer by the Contractor
under Sub-Clause 4.9 [Performance Bond] from a bank which has a long term unsecured debt rating
of at least A from S&P and A2 from Moody’s and is approved by the Employer in the specimen form
identified in Error: Reference source not found (Form of Performance Bond).

14
1.1.51 "Performance Certificate" means means the certificate issued under Sub-Clause 9.4 [Performance
Certificate] in the form set out in Annex 9 (Forms of Certificates)Error: Reference source not found.

1.1.52 "Pricing Documents" means the document so named as set out in Annex 3 (Pricing Documents).

1.1.53 "Proceedings" means an actual or threatened claim, suit, action, demand, investigation or proceeding,
whether civil or criminal, or any proceeding brought or threatened against the Employer, its Affiliates,
its employees and/or its officers and/or any other Third Party in relation to the Works, Section, Tasks (if
any), FM Services and/or the Contract, and/or arising out of, or in connection with, or in relation to the
performance or non-performance of the Contractor's obligations and/or any inspections by any
Authority relating to such Works or Section (as the case may be) or Tasks (if any) or FM Services.

1.1.54 "Programme Schedule" means the programme schedule identified in Annex 10 or the latest
programme schedule approved by the Employer in accordance with Sub-Clause 7.3 [Programme
Schedule]. The latest programme schedule approved by the Employer in accordance with Sub-Clause
7.3 [Programme Schedule] supersedes previous Programme Schedules.

1.1.55 "Project" means the development and construction of the Works, Tasks (if any) and provision of FM
Services and other related facilities in accordance with the Contract for the purpose of delivering the
Event.

1.1.56 “Reinstatement Works" means the removal of the Overlay Works and the reinstatement, repairs and
other ancillary works to the Site as set out in the Employer's Requirements including any temporary
work and any Variation.

1.1.57 “Required Action" has the meaning given to it at Sub-Clause 10.7.

1.1.58 “Rules" means the rules of arbitration specified in the Appendix.

1.1.59 "Section" means each part of the Works as specified in the Appendix as a Section (if any).

1.1.60 "Service Levels" means the service levels for providing the FM Services, as set out in the Service
Level Agreement.

1.1.61 "Service Level Agreement" means the service level agreement in relation to the provision of the FM
Services as set out in Annex 1 and which forms part of the Employer's Requirements.

1.1.62 "Senior Officers" has the meaning given to it at Sub-Clause 16.1 [Amicable Settlement].

1.1.63 "Senior Officers' Notice" has the meaning given to it at Sub-Clause 16.1 [Amicable Settlement].

1.1.64 "Site" means the places where the Works and Tasks (if any) are to be executed, to which Materials are
to be delivered, FM Services are to be provided, and any other places specified in the Contract as
forming part of the Site.

1.1.65 "Site Instruction Threshold" means the financial threshold specified in the Appendix.

1.1.66 "Snagging Items" mean minor defects, deficiencies or omissions of a snagging nature relating to the
Works or Section (as the case may be) or any part of them (as the case may be) which do not prevent
the issue of the Taking-Over Certificate and will not prevent or interfere with the Employer using the
Works or Section or any part of them (as the case may be) for their intended purpose.

1.1.67 "Stakeholder" means any stakeholder or entity notified to the Contractor by the Employer from time to
time.

1.1.68 "Subcontractor" means any person named in the Contract as a subcontractor, or any person
appointed with the Employer’s approval as a subcontractor by the Contractor for any part of the
execution of the Works and Tasks (if any) and the provision of the FM Services under the Contract or
which relate to the Contract; and the legal successors in title to each of these persons.

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1.1.69 "Taking-Over Certificate" means the certificate issued by the Employer under Sub-Clause 8.2
[Taking-Over Certificate] certifying that the Works or a Section (as the case may be) are completed and
in accordance with the Contract, in the form set out in Annex 9 (Forms of Certificates).

1.1.70 "Task" has the meaning given to it in Clause 19 [Task Orders].

1.1.71 "Task Order" means the Employer’s instruction to carry out a Task in the form set out in Annex 6.

1.1.72 "Task Completion" means when the Contractor has done all the work in the Task and corrected
defects which would have prevented the Employer or Others from using the completed work in the
Task.

1.1.73 "Task Completion Date" means the date for completion stated in the Task Order unless later changed
in accordance with this Contract.

1.1.74 "Tests" or "Testing" means the tests or testing which are specified in the Employer's Requirements
(including any testing and commissioning of the Works or a Section (as the case may be)) or agreed
by both Parties or instructed as a Variation, and which are carried out in accordance with Sub-Clause
8.4 [Tests] before the Works or a Section (as the case may be) are completed for the purposes of Sub-
Clause 8.2 [Taking-Over Certificate].

1.1.75 "Time for Completion" means the time for completing the Works or a Section (as the case may be) as
stated in the Appendix (except in respect of a Task) in accordance with Sub-Clause 7.1 [Execution of
the Works] (as may be extended from time to time in accordance with these Conditions), calculated
from the Commencement Date.

1.1.76 "Third Party Claims" means any claims made against the Employer, its Affiliates, its employees
and/or its officers by any third party, including any claim for Losses or arise out of, or in connection
with, Proceedings.

1.1.77 "Variation" means any change to the Works, Section, Tasks, FM Services or any other modification to
the Employer's Requirements that is instructed or approved as a variation by the Employer under Sub-
Clause 10.1 [Right to Vary].

1.1.78 "VAT" means Value Added Tax which applies by Law.

1.1.79 “Works" means the Overlay Works and the Reinstatement Works.

1.2 Interpretation

Words importing persons or parties shall include firms and organisations. Words importing singular or
one gender shall include plural or the other gender where the context requires. The reference to
"include", "includes", "including" and "included" shall not be construed restrictively but mean
"including but not limited to" or "including without limitation". All dates and periods of time
referred to in the Contract shall be ascertained in accordance with the Gregorian calendar. A reference
to a law includes regulations and other instruments enacted under it and consolidations, amendments,
re-enactments or replacements of any of them.
The words “execute the Works” or “execution of the Works” or "executing the Works"
means the design, construction and completion of the Works and the remedying of any
defects in the Works. The words “execute the Task (if any)” or “execution of the Task (if
any)” or "executing the Task (if any)" means the design, construction and completion of
the Task (if any) and the remedying of any defects in the Task (if any). The words
“provide the FM Services” or “provision of the FM Services” or "providing the FM Services
" means the execution, performance and completion of the FM Services and the
remedying of any defects in the FM Services.

1.3 Priority of Documents

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 The documents forming this Contract are to be taken as mutually explanatory of one another. If there is
a conflict, ambiguity or discrepancy between the documents forming this Contract such conflict,
ambiguity or discrepancy shall be resolved in accordance with the paragraph numbered 3 of the
Contract Agreement.

1.4 Law

The governing law of the Contract is stated in the Appendix.

1.5 Communications

Wherever the Contract provides for the giving or issuing of approvals, certificates, instructions,
consents, determinations, notices and requests and/or any other communications are given or issued
under or in connection with the Contract, unless otherwise specified in the Contract these
communications shall be written in the English language and shall comply with the procedures and
requirements specified in the Employer's Requirements.

1.6 Statutory Obligations

The Contractor shall comply with the laws of the countries where any activities in respect of the
Contract and/or the Works, Tasks (if any), the FM Services and the obligations are performed. Unless
otherwise specified in the Employer's Requirements, the Contractor shall give all notices, pay all taxes,
duties and fees as required by the applicable Laws in relation to the execution of the Works and Tasks
(if any) and provision of the FM Services. The Contractor shall indemnify and hold the Employer, its
Affiliates, its employees and its officers, harmless against and from the consequences of any failure to
do so.

1.7 Right of Audit

The Contractor shall permit the Employer and/or persons appointed by the Employer to inspect as
deemed necessary by the Employer the payment records and/or the Contractor’s accounts and
records relating to the payment of the Contractor’s interim/monthly liabilities to its supply chain directly
contracted to work on the Project and to have such accounts and records audited by auditors
appointed by the Employer if required by the Employer.

Such records shall be made available to the Employer during normal business hours at the Project
office without prior notice. In the event that no such location is available, then the payment records,
together with the supporting or underlying documents and records, shall be made available for audit at
a time and location that is convenient for the Employer.

The Contractor shall ensure that the Employer has these rights with Contractor’s employees, agents,
assigns, successors, and subcontractors, and the obligations of these rights shall be explicitly included
in any subcontracts or agreements formed between the Contractor and any subcontractors to the
extent that those subcontracts or agreements relate to fulfilment of the Contractor’s obligations to the
Employer. The Contractor may request exemption by the Employer from the inclusion of these of rights
within a particular subcontract.

The right of audit and inspections by the Employer shall remain at least 7 (seven) years after the
termination and/or expiration of the Contract.

1.8 General Actions

The Employer, the Contractor, and their representatives shall act as stated in this Contract and in a
spirit of mutual trust, collaboration, fairness, openness, co-operation and good faith to deliver the
Project.

2. THE EMPLOYER
2

2.1 Provision of Site

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 The Employer shall give the Contractor non-exclusive right of access to each part of the Site by the
later of:-

(a) the access dates stated in the Appendix; and

(b) dates for access in the Programme Schedule,

provided the Contractor complies with the Employer's Policies.

The Employer may withhold any such right or possession until the Performance Bond has been
received in accordance with Sub-Clause 4.9 [Performance Bond] and the Contractor has provided
satisfactory evidence of the insurances the Contractor is required to effect and maintain in accordance
with Clause 14 [Insurance].

2.2 Permits and Licences

The Employer shall provide such information or documentation in its possession as it is required to
provide to the Contractor as set out in the Employer's Requirements. The Employer may, entirely at its
own discretion, assist the Contractor in applying for permits, licences or approvals which are required
for the execution of the Works, Tasks (if any), FM Services and which are the responsibility of the
Contractor to obtain under the Contract.

2.3 Electricity and Water

The Contractor will, unless otherwise set out in the Employer's Requirements, procure the supply of
water and electricity at the Site throughout the duration of executing the Works and Tasks (if any) at no
cost to the Employer.
The Employer will, unless otherwise set out in the Employer's Requirements, procure the supply of
water and electricity at the Site throughout the duration of providing the FM Services at no cost to the
Contractor.
2.4 Employer’s Instructions

The Contractor shall comply with all instructions given by the Employer in respect of the Works, Tasks
(if any) and FM Services including the suspension of all or part of the Works, Tasks (if any) and FM
Services.

If the Employer or the Employer's representative gives an oral instruction to the Contractor, which in
the aggregate do not exceed the Site Instruction Threshold, the Contractor shall immediately comply
with such instruction and confirm the instruction as soon as possible after receiving the instruction.

If the Contractor considers that the Employer’s instruction constitutes a Variation:

(a) the Contractor shall notify the Employer in writing requesting the issuance of a Variation within
7 days of receipt of such instruction; and

(b) the provisions of Clause 10 [Variations and Claims] shall apply.

If the Contractor fails to comply with Sub-Clause 2.4(a) above, the Contractor shall not be entitled to
any additional payment or any extension of the Time for Completion, Task Completion Date, or of any
Milestone Completion Date, and the Employer shall be discharged from all liability in connection with
such instruction and the Contractor shall continue to give effect to such instruction.

2.5 Approvals

No approval or consent or absence of comment by the Employer or the Employer's representative

shall affect any of the Contractor's obligations, responsibilities and/or liabilities under or in connection
with the Contract.

3. EMPLOYER’S REPRESENTATIVES

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 3.1 Authorised Person

One or more of the Employer's personnel or authorised representatives shall have authority to act for
it. This authorised person or representative shall be as stated in the Appendix, or as otherwise notified
by the Employer to the Contractor from time to time.

3.2 Employer's Representative

The Employer may also appoint a firm or individual to carry out certain duties in respect of the Works,
Tasks (if any) and FM Services. The appointee may be named in the Appendix, or notified by the
Employer to the Contractor from time to time. The Employer shall notify the Contractor of the delegated
duties and authority of the Employer's Representative. The Employer's Representative may issue to
the Contractor (at any time) instructions which may be necessary for the execution of the Works, Tasks
(if any), FM Services, the remedying of any defects, and for the Contractor to perform its obligations
under the Contract.

4. THE CONTRACTOR

4.1 General Obligations

4

The Contractor shall execute the Works in accordance with the Contract and with the Employer’s
instructions (including instructions issued by the Employer's Representative), and shall remedy any
defects in the Works in accordance with the Contract and with the Employer’s instructions (including
instructions issued by the Employer's Representative). The Contractor shall provide all supervision,
labour, Materials, and the Contractor's Equipment which may be required for the Works, Tasks (if any)
and FM Services. The Contractor shall, and procure that all Subcontractors shall, comply at all times
with the Employer's Policies.

The Works, Tasks (if any) and FM Services shall include any work which is necessary to satisfy the
Employer’s Requirements, or is implied by the Contract, and all works which (although not mentioned
in the Contract) are necessary for stability or for the completion, or safe and proper operation, of the
Works, Tasks (if any) and FM Services.

4.2 Contractor’s Representative

The Contractor shall submit to the Employer, for consent, the name and particulars of the person
authorised to receive instructions on behalf of the Contractor.

4.3 Subcontracting

The Contractor shall:-

(a) not subcontract the whole of the Works, Tasks (if any) and FM Services;

(b) be responsible for the acts, omissions or defaults of any Subcontractor and their agents or
employees, as if they were the acts, omissions or defaults of the Contractor; and

(c) not appoint any Subcontractor without obtaining the prior written approval of the Employer. If
and to the extent that the Contractor wishes to subcontract any part of the Works, Tasks (if
any) or FM Services, the Contractor shall give the Employer 28 days' prior notice of the
proposed Subcontractor and the subcontract for the approval of the Employer.

Within 14 days of the Employer's request, the Contractor shall procure and deliver to the Employer a
collateral warranty from the relevant Subcontractors in favour of the Employer in the form identified in
Annex 7 (Forms of Collateral Warranty).

The Contractor shall execute and deliver, and shall procure that each Subcontractor from whom the
Contractor hires Hired Materials executes and delivers, to the Employer, no later than the date of
signature of that Subcontractor's subcontract, a Hired Materials Direct Agreement.

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If the Contractor does not deliver such collateral warranty and/or Hired Materials Direct Agreement as
required by this Sub-Clause, the Employer shall be entitled to withhold payment to the Contractor
under the Contract for such amount relating to that Subcontractor until the Contractor has delivered
such collateral warranty and/or Hired Materials Direct Agreement in accordance with this Sub-Clause.

20
 If any payment to a Subcontractor has been improperly and/or unreasonably withheld by the
Contractor, the Employer shall be entitled to give notice in writing to the Contractor that he intends to
make such payment directly to the Subcontractor. If after 14 days the payment is still withheld, and the
Contractor has failed to furnish adequate reason why the payment should be withheld from the
Subcontractor, the Employer may, except in the event of the Contractor becoming Insolvent, make
such payment to the Subcontractor.

Amounts paid by the Employer to the Subcontractor may be set-off or deducted from any sums
otherwise due from the Contractor in accordance with Clause 11 [Contract Price and Payment] and/or
will be a debt due from the Contractor to the Employer.

4.4 Avoidance of Interference

4.4.1 The Contractor shall not interfere unnecessarily or improperly with:-

(a) the convenience of the public: or

(b) the access to and use and occupation of all roads and footpaths, irrespective of whether
they are public or in the possession of the Employer or of any other Third Party.

4.4.2 The Contractor shall indemnify and hold the Employer, its Affiliates, its employees and its
officers harmless against and from all Losses resulting from any such unnecessary or improper
interference caused by or contributed to by the Contractor, the Contractor's personnel, agents
and/or Subcontractors.

4.5 Access Routes

The Contractor shall be deemed to have been satisfied as to the suitability and availability of access
routes to and from the Site.

4.6 Cooperation and Use of Site

The Contractor shall not use any portion of the Site for any purpose not connected with the Works,
Tasks (if any) and FM Services unless prior written approval of the Employer has been obtained.

The Contractor shall comply with the policies, rules, regulations and requirements of the Employer
including any policies, rules, regulations and requirements (including Site accreditation and access
requirements) referred to in the Employer's Requirements (including the Employer's Policies).

The Contractor shall (at its own cost) interface, coordinate and cooperate with the Employer and
Others for access to the Site as set out in the Employer's Requirements (including the Employer's
Policies) or as otherwise instructed by the Employer. The Contractor shall pay the costs incurred by
the Employer to Others as a result of any prevention, hindrance or delay to Others by the Contractor or
any Subcontractor. The costs incurred by the Employer under this sub-clause are in addition to delay
damages (if any) and Performance Failure Damages (if any) payable under the Contract.

4.7 Restriction of Access to the Employer’s Property

Except with the approval of the Employer, the Contractor (including its employees, agents and
Subcontractors) shall not enter or disrupt any part of the premises of the Employer not needed for the
execution of the Works and Tasks (if any) and the provision of the FM Services.

4.8 Permits, Licenses and Approvals

Unless otherwise stated in the Employer's Requirements, the Contractor shall obtain all necessary
permits, licenses and approvals required by the Laws and any Authority in relation to the execution of
the Works and Tasks (if any), and the provision of the FM Services. The Contractor shall indemnify and
hold the Employer, its Affiliates, its employees and its officers, harmless against and from the
consequences of any failure to do so.

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 4.9 Performance Bond

The value of the Performance Bond shall be the percentage value of the Contract Price as stated in
the Appendix.

The Contractor shall at no cost to the Employer deliver the Performance Bond to the Employer on the
Effective Date. The Performance Bond (including any replacement) shall be issued by a bank from
within the Country which has a long term unsecured debt rating of at least A from S&P and A2 from
Moody’s and is approved by the Employer. This shall be a condition precedent to the Employer's
obligation to make any payment to the Contractor under the Contract.

The Contractor shall ensure that the Performance Bond (including any replacement) is valid and
enforceable until 90 days after the date of the Performance Certificate. If the Performance Bond
specifies its expiry date which is prior to 90 days after the date of the Performance Certificate, the
Contractor shall at no cost to the Employer by the date 28 days prior to the expiry date of the
Performance Bond, extend the validity of the Performance Bond so that it is valid and enforceable until
90 days after the date of the Performance Certificate.

If the Contract Price is increased by a Variation or otherwise so that the value of the Performance Bond
is not equivalent to the percentage value of the Contract Price as stated in the Appendix, the
Contractor shall, within 5 days of such increase of the Contract Price, provide a replacement
Performance Bond to the Employer that is equivalent to the percentage value as stated in the
Appendix of such increased Contract Price.

The Contractor's obligations under this Sub-Clause 4.9 [Performance Bond] shall be a condition
precedent to the Employer's obligation to make any payment to the Contractor under the Contract.

The Contractor shall, within 14 days of the Employer's request, execute and deliver to the Employer a
collateral warranty in favour of the Stakeholders in the form set out in Annex 7 (Forms of Collateral
Warranty). If the Contractor fails to deliver such collateral warranty, the Employer shall be entitled to
withhold all further payments to the Contractor under the Contract until the Contractor has executed
and delivered such collateral warranty to the Employer in accordance with this Sub-Clause.

4.11 Confidentiality

Both Parties shall treat the details of the Contract as private and confidential, except to the extent
necessary to carry out obligations under it or to comply with applicable Laws. The contractor shall not
publish, permit to be published, or disclose any particulars of the Works, Tasks and FM Services in any
trade or technical paper or elsewhere without the prior written consent of the Employer.

Each Party shall keep, and shall procure that each of its affiliated companies keep, the Confidential
Information confidential and do not disclose it to any person, other than as permitted under this Sub-
Clause 4.11.

Sub-Clause 4.11 shall not apply to the disclosure of Confidential Information if and to the extent that
such disclosure is:

(a) required by any Law;

(b) required by any court of competent jurisdiction or any competent judicial, governmental,
supervisory or regulatory body;

(c) required by the listing rules of any stock exchange;

(d) the Disclosing Party has given written consent to the disclosure; or

(e) such information is in the public domain other than through breach of this Sub-Clause.

provided that in the case of paragraphs (a), (b) and (c), the Receiving Party shall to the extent
reasonably practicable and permitted by any such law or body promptly notify in writing the Disclosing
Party and co-operate with the Disclosing Party regarding the timing and content of such disclosure and
any action which the Disclosing Party may reasonably with to take to challenge the validity of such
22
requirement

23
 The Receiving Party may only use the Confidential Information for the purposes of this Contract and
may provide its employees, directors, agents, Subcontractors, lenders, rating agencies and
professional providers with access to Confidential Information on a strict "need-to-know" basis only.

The Receiving Party shall ensure that each separate recipient is bound to hold all Confidential
Information in confidence to the standard required under this Contract. Where such recipient is not an
employee or director of the relevant party (and is not under a professional duty to protect
confidentiality) the Receiving Party shall ensure that the recipient shall enter into a written
confidentiality undertaking with the Receiving Party on substantially equivalent terms to this Contract, a
copy of which shall be provided to the Disclosing Party upon written request.

The provisions of this Sub-Clause 4.11 [Confidentiality], will survive the expiration or termination of the
Contract.

4.12 Use of Name, Emblem or Official Seal

The Contractor shall not make reference to the Employer in a press release or any other written
statement in connection with the services performed under this Contract, if it is intended for use in the
public media, without acquiring the prior written approval of the Employer.

The Contractor shall not use or expressly authorise any of its Subcontractor, personnel or any other
person to use, publicly for publicity, promotion, or otherwise, any logo, name, trade name or trademark
of the Employer or its affiliates, without the Employer’s prior written consent, which may be given or
withheld in Employer’s sole and absolute discretion. Any violation of this provision shall be a material
breach of this Contract.

The Contractor shall not and shall ensure that its Subcontractor, personnel, sub-consultants,
representatives and agents shall not, without having first obtained on each occasion the express prior
written approval of the Employer:

(a) issue, disseminate, publish, cause to publish or divulge to any third party, alone or in conjunction
with any other person, any information, article, press release, drawing, photograph, illustration or
any other publicity relating to this Contract or the Event generally or use such information for any
purpose other than executing the Works and Tasks (if any) and providing FM Services, and/or

(b) take or publish any photographs or other audio, visual or audio-visual recordings, or collect or
collate any data, or make any other graphical or other reproduction (including film) at or of the
Event or the Site other than in connection with the execution of the Works and Tasks (if any) and
the provision of the FM Services.

4.13 Free-Issue Materials

The Employer may supply to the Contractor, free of charge "free-issue material" in accordance with the
Employer's Requirements as well as any other "free-issue material" as may be instructed by the
Employer during the execution and completion of the Works, Tasks (if any) and FM Services ("Free-
Issue Materials"). The Employer shall, at its risk and cost, provide the Free Issue Materials to the
Contractor at the place and manner stated in Employer's Requirements and by the later of:

(a) the date stated in the Employer's Requirements; and

(b) the date for supplying the Free-Issue Materials in the Programme Schedule,

at which time the Free Issue Materials shall come under the care, custody and control of the
Contractor and the Contractor shall ensure such Free-Issue Materials are protected against loss,
damage or deterioration.

The Contractor shall inspect the Free-Issue Materials within 7 days upon taking custody of the Free-
Issue Materials for any shortage, defect or default and for any non-compliance with the applicable
codes and standards and the relevant Laws and shall notify the Employer promptly and in any event
within 3 days of discovering such shortage, defect, default or non-compliance. The Contractor shall
remedy such shortage, defect, default or non-compliance in the Free-Issue Materials as soon as

24
reasonably practicable.

25
4.14 Title to Materials

Each item of Materials shall, to the extent consistent with the Laws of the Emirate of Dubai, become
the property of the Employer, and the title to such item of Materials shall transfer to the Employer free
of any lien, charge, encumbrance or any other interests, at whichever is the earlier of the following
times:

(a) when it is delivered to the Site; and

(b) when the Contractor is entitled to payment of the value of the Materials under Sub-Clause 11
[Contract Price and Payment].

Each item of Materials shall, to the extent consistent with the Laws of the Emirate of Dubai, become
the property of the Contractor, and the title to such item of Materials shall transfer to the Contractor
free of any lien, charge, encumbrance or any other interests, if it is removed from the Site with the
Employer's permission, at whichever is the later of the following times:

(a) when it is removed from the Site; and

(b) when the Employer receives payment of the value of the Materials, as such value is set out in
the Pricing Documents.

4.15 Hired Materials

Sub-Clause 4.14 [Title to Materials] shall not apply to Hired Materials unless a Notice of Purchase has
been issued by the Employer, in which case Sub-Clause 4.14 [Title to Materials] shall apply to those
items of Hired Materials that are to be purchased by the Employer from the Contractor and identified in
the notice to purchase.

The Contractor shall immediately notify the Employer upon becoming aware of:

(a) any dispute with any third party in relation to the Hired Materials, or any claim made by a third
party, or any right to make a claim which may arise in connection with the Hired Materials or any
allegation of the same; or

(b) any fact or circumstance which may result in the Hired Materials being or becoming unavailable
for any period which it is required under this Contract or any other fact or circumstance which
may give rise to a breach of this Contract on the part of the Contractor in relation to the Hired
Materials.

The Employer may at its discretion give to the Contractor a notice to purchase all or some of the Hired
Materials where:

(a) the Contractor or any Subcontractor providing the relevant Hired Materials becomes insolvent;

(b) the Contract is terminated for any reason; or

(b) the Employer at its absolute discretion and sole option chooses.

Upon the issue of the notice to purchase, the price of the Hired Materials shall be as set out in the
Pricing Documents and such amounts shall be added to the Contract Price and paid in accordance
with Clause 11 [Contract Price and Payment].

Legal title in the Hired Materials identified in the notice to purchase will vest in the Employer on the
date the Employer has paid or discharged payment to the Contractor for the purchased Hired Materials
and the Employer shall have no further obligation or liability to the Contractor to make payment for the
purchased Hired Materials identified in the notice to purchase other than as stated in this Sub-Clause
4.15 [Hired Materials].

4.16 Condition Survey

26
 Unless otherwise stated in the Employer's Requirements, the Parties shall:

(a) immediately prior to the possession by the Contractor of the Site to carry out Overlay Works;
and

(b) immediately prior to the Contractor vacating the Site once the relevant Reinstatement Works are
complete,

inspect and prepare an inventory of the Site in accordance with the requirements set out in the
Employer's Requirements in order to record the condition of the Site (the “Condition Survey”) and the
Parties shall bear their own costs.

The Contractor shall at its cost reinstate the Site to the condition set out in the Condition Survey (fair
wear and tear excepted) as part of the Reinstatement Works and completion of such work shall be a
condition precedent of the issuance of the last Taking-Over Certificate for Reinstatement Works.

Within 10 days after the completion of the inspection referred to in Sub-Clause 4.16 (b) above, if it is
found that any element of the Site is not in a condition consistent with the Condition Survey (fair wear
and tear excepted):

(i) the Employer shall notify the Contractor giving reasons; and

(ii) the Contractor shall forthwith provide to the Employer the Contractor's proposal as to the
works (if any) required to be carried out to procure that the Site will satisfy the Condition
Survey (fair wear and tear excepted).

Such works shall be completed within the time specified by the Employer, failing which the Employer
shall be entitled to instruct Others to carry out the works and recover all Losses incurred by the
Employer for carrying out such works from the Contractor.

5. DESIGN BY CONTRACTOR

5.1 Contractor’s Design and Document Submission

The Contractor shall carry out the design of the Works or Tasks (if any) as stated and described in the
Employer's Requirements and Task Orders (as applicable). The Contractor shall promptly submit to
the Employer all drawings or other design documents in respect of the Works and, Tasks (if any) (the
"Contractor's Design") and all other Contractor's Documents relating to the Works, Tasks (if any) and
FM Services for the Employer's approval.

Within 14 days of receipt of the Contractor’s Design and/or other Contractor's Documents, the
Employer shall:

(a) notify the Contractor of its approval of the Contractor’s Design and/or other Contractor's
Documents; or

(b) notify the Contractor of its comments on the Contractor’s Design and/or other Contractor's
Documents; or

(c) if the Contractor's Design and/or any other Contractor's Documents submitted are not in
accordance with the Contract, reject them stating the reasons.

The Contractor shall not construct any part of the Works, Tasks (if any) or FM Services (as the case
may be) unless the Contractor's Design and other Contractor's Documents relevant to such part of the
Works, Tasks (if any) and FM Services (as the case may be) have been approved under Sub-Clause
5.1(a).

The Contractor's Design and Contractor's Documents that have been rejected under Sub-Clauses
5.1(c) shall be promptly amended and resubmitted by the Contractor to the Employer for approval in
accordance with the process in this Sub-Clause 5.1 [Contractor's Design and Document Submission].

27
The Contractor shall resubmit all Contractor's Designs and Contractor's Documents on which
comments have been received in accordance with the process in this Sub-Clause 5.1 [Contractor's
Design and Document Submission] and shall comply in all respects with any comments made by the
Employer on the Contractor's Design and Contractor's Documents.

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5.2 Responsibility for Design

The Contractor shall:-

(a) be responsible for the design of the Works and Tasks (if any) and accepts full responsibility for
the design of the Works and Tasks (if any) (including any design criteria, calculations and any
drawings, if any) which may be contained in the Employer's Requirements or otherwise;

(b) be responsible for ensuring that the Works and Tasks (if any) are in accordance with the
requirements of the Contract and are otherwise Fit for Purpose; and

(c) if required by the Employer, provide at no cost to the Employer any design criteria, calculations
or such other information as may be requested by the Employer relating to the Works and
Tasks (if any).

5.3 Errors in Design

The Contractor shall be deemed to have reviewed and verified the accuracy and completeness of the
Employer's Requirements and all other information relating to the Contractor's Proposal, Contractor's
Design and Contractor's Documents, whether received from the Employer or otherwise. If the
Contractor identifies any Errors in the Employer's Requirements, the Contractor's Proposal, the
Contractor's Design and/or the Contractor's Documents, the Contractor shall immediately give notice
to the Employer. Thereafter, the Contractor shall submit revised documents to the Employer in
accordance with the procedure in Sub-Clause 5.1 [Contractor's Design and Document Submission]
with its proposals for the correction of such Errors. Any correction of such Errors shall not extend the
Time for Completion, Task Completion Date and/or any Milestone Completion Date and the Contract
Price shall not be adjusted.

5.4 Intellectual Property Rights

The Contractor grants to the Employer a perpetual, non-terminable, non-exclusive, royalty-free license,
to copy, use and communicate without restriction the Contractor's Documents, including making and
using modifications (including translations into other languages) and to combine and incorporate the
Contractor's Documents or such material from the Contractor's Documents with any other material in
each case for any purpose. The license granted under this Sub-Clause 5.4 [Intellectual Property
Rights] shall include the right to grant sub-licenses, transfer, novate to or assign for the foregoing
purposes on like terms to any person without further limitation and at no cost to the Employer or any
such person. This licence shall:-

(a) apply throughout the actual or intended working life (whichever is longer) of the relevant parts of
the Works and Tasks (if any);

(b) entitle any person in proper possession of or with a right over the relevant part of the Works and
, Tasks (if any) to copy, use and communicate the Contractor’s Documents for the purposes of
the construction, re-construction, completion, operation, maintenance, demolition, modification,
extension, repair, use, advertisement, letting, sale, financing and/or investment in the Works,
Tasks (if any) or any part thereof; and

(c) in the case of Contractor’s Documents which are in the form of computer programs and other
software, permit their use on any computer required by the Employer, its Affiliates, its
employees and its officers.

The Contractor shall indemnify the Employer, its Affiliates, its employees and its officers, and keep them
indemnified at all times against all or any Losses incurred by the Employer, its Affiliates, its employees
and its officers, or for which the Employer, its Affiliates, its employees and its officers, may become
liable with respect to any third party intellectual property infringement claim or any other claim relating to
any of the Contractor's Documents supplied by or on behalf of the Contractor under or in connection
with the Works, Tasks (if any) and/or the Contract.

The obligations of the Contractor under this Sub-Clause 5.4 [Intellectual Property Rights] shall continue
indefinitely notwithstanding any termination, suspension or otherwise under the Contract or at Law.

29
 5.5 As-built documents

The Contractor shall prepare and submit for the Employer’s approval: (a) provisional (marked-up) as-
built documents; and (b) final as-built documents, of the Works or a Section (as the case may be) or
Tasks (if any) at the time and in the manner set out in accordance with the Employer's Requirements.
The Works or a Section (as the case may be) and Tasks (if any) shall not be considered as complete
under Sub-Clause 7.1 [Execution of the Works] and under Sub-Clause 8.2 [Taking-Over Certificate]
and Clause 19 [Task Orders] (as applicable) until the Employer has received and approved the final
as-built documents in accordance with the Employer’s Requirements and this Sub-Clause 5.5 [As-built
documents].

5.6 Operation and Maintenance Manuals

The Contractor shall supply to the Employer operation and maintenance manuals in accordance with
the Employer's Requirements. The Works or a Section (as the case may be) and Tasks (if any) shall
not be considered as complete under Sub-Clause 7.1 [Execution of the Works] and under Sub-Clause
8.2 [Taking-Over Certificate] and Clause 19 [Task Orders] (as applicable) until the Employer has
received and approved all of the operation and maintenance manuals in accordance with this Sub-
Clause 5.6 [Operation and Maintenance Manuals].

5.7 Employer's Requirements

The Contractor warrants, undertakes and represents to the Employer that it has reviewed, checked
and verified the contents of the Employer's Requirements (including the Employer's Policies).

The Contractor accepts that the Employer makes no representations or gives any warranty, whether
express or implied, as to the accuracy, adequacy, sufficiency, suitability or completeness of the
Employer's Requirements (including the Employer's Policies).

If the Contractor becomes aware of any Errors in or between any of the documents forming the
Contract the Contractor shall give notice to the Employer of such Errors and the Employer shall issue
an instruction to resolve such Errors unless they are in the design of the Works and Tasks (if any) in
which case such Errors shall be resolved by the Contractor in accordance with Sub-Clause 5.3 [Errors
in Design]. The Contractor shall not be entitled to any extension of the Time for Completion, any
Milestone Completion Date and/or any Task Completion Date, or additional payment or to recover any
Cost or any other adjustment to the Contract Price for complying with an instruction issued by the
Employer arising out of the matters described in this Sub-Clause.

5.8 Contractor's Proposal

The Contractor:

(a) acknowledges that the acceptance by the Employer of the Contractor's Proposal by including it
in the Contract does not in any way limit or absolve the Contractor's responsibility to ensure
that the Works meet the requirements of the Employer's Requirements and the other
requirements in the Contract;

(b) warrants, undertakes and represents to the Employer that the Works, Tasks and FM Services
when completed, shall be Fit for Purpose and otherwise in accordance with the requirements
of the Contract.

The Contractor acknowledges and accepts that:

(a) if there is a conflict between the Employer's Requirements and the Contractor's Proposal, the
Employer's Requirements shall take precedence over the Contractor's Proposal;

(b) if the Works, Tasks and/or FM Services fail to comply with the requirements in the Employer's
Requirements, the Contractor shall have no defence that it has complied with the Contactor's
Proposal; and

(c) if the Works, Tasks and/or FM Services fail to comply with the requirements in the Contractor's
Proposal, the Contractor shall have no defence that it has complied with the Employer's
30
Requirements, (except if there is a conflict between the Employer's Requirements and the
Contractor's Proposal in which case the Employer's Requirements shall prevail over the
Contractor's Proposal).

31
6. EMPLOYER’S LIABILITIES

6.1 Employer’s Liabilities

In this Contract, Employer's Liabilities, insofar as they directly affect the execution of the Works and
Tasks (if any), and the provision of the FM Services, mean:-

(a) a Variation (except if a Variation has been issued under Sub-Clause 10.2 [Variation Procedure]
and the extension of time and/or Cost has been agreed or disapproved by the Employer);

(b) any delay, impediment or prevention to the extent caused by or attributable to the Employer or
the Employer’s Representative on the Site; and

(c) a suspension under Sub-Clause 12.6 [Suspension] unless it is attributable to a fault, breach or
default of the Contractor (including any Subcontractor).

7. TIME FOR COMPLETION

7.1 Execution of the Works

The Contractor shall commence the Works on the Commencement Date and shall proceed
expeditiously and without delay. The Contractor shall complete the Works or Section (as the case may
be) on or before the Time for Completion for the Works or Section (as the case may be), including
completing all work which is stated in the Contract as being required for the Works or Section (as the
case may be) to be considered to be completed for the purposes of Sub-Clause 8.2 [Taking-Over
Certificate] including:-

(a) the achievement of the passing of the Tests and obtaining the approval of the certified report of
the results of these Tests under Sub-Clause 8.4 [Tests];

(b) delivery of each and every collateral warranty and Hired Materials Direct Agreement required to
be delivered by the Contractor under Sub-Clauses 4.3 [Subcontractors] and 4.9 [Performance
Bond];

(c) having submitted and obtained the approval of the final 'as-built documents' under Sub-Clause
5.5 [As-built documents];

(d) having submitted and obtained the approval of the operation and maintenance manuals under
Sub-Clause 5.6 [Operation and Maintenance Manuals];

(e) having obtained all certificates and provided the Employer with all documentation required for
completion of the Works or Section (as the case may be); and

(f) having obtained all approvals, permissions or permits as required by, or to satisfy, the
Employer's Requirements and otherwise by any Laws and provided these to the Employer.

7.2 Completion of Milestone

The Contractor shall complete each Milestone on or before each Milestone Completion Date in
accordance with the requirements of the Contract. The Contractor shall notify the Employer when the
Milestone is, in the Contractor's opinion, complete in accordance with the Contract. The Employer shall
determine whether each Milestone has been completed in accordance with the Contract and shall
certify when each Milestone has been completed in accordance with the Contract.

7.3 Programme Schedule

Within the time stated in the Appendix, the Contractor shall submit to the Employer a Programme
Schedule for the Works and FM Services. Each Programme Schedule shall be in the form and detail
as the Employer shall prescribe, and such detail shall include:

(a) the order of sequence in which the Contractor intends to carry out the Works identifying each

32
 Section and Milestone (where applicable) and provide the FM Services;

(b) the anticipated timing of each stage of procurement, manufacture of equipment, inspection,
delivery to Site, construction, erection and testing of the Works and provision of the FM Services
as required by the Contract including a critical path network;

(c) the anticipated date for submission of each of the Contractor's Documents (including the
Contractor Design and the relevant review period in accordance with Sub-Clause 5.1);

(d) the anticipated date for completion of the Works, taking over of the Works by the Employer and
provision of the FM Services;

(e) all activities (to the level of detail specified in the Employer's Requirements), logically linked and
showing the earliest and latest start and finish dates for each activity, the total float allocated to
each activity and the free float between activities, time risk allowances allocated to an activity for
risks that have a significant chance of occurring and are at the Contractor's risk under the
Contract (if any), dependencies (if any) between activities and the critical path;

(f) any other information required by the Employer; and

(g) all activities in the detailed time Programme Schedule or revised Programme Schedule shall be
cost loaded to enable the generation of cash flow and earned value analysis as required by
Employer.

The Contractor shall also submit a revised Programme Schedule to the Employer for approval at no
longer interval than the interval stated in the Appendix until the whole of the Works are completed in
accordance with Sub-Clause 8.2 [Taking-Over Certificate] and the FM Services are completed in
accordance with the Contract. The Contractor shall also submit progress reports to the Employer for
review at no longer intervals than the intervals stated in the Appendix until the whole of the Works are
completed in accordance with Sub-Clause 8.2 [Taking-Over Certificate] and the FM Services are
completed in accordance with the Contract.

If the Contractor fails to submit the Programme Schedule in accordance with this Sub-Clause 7.3
[Programme Schedule] the Employer shall be entitled to withhold any payments due to the Contractor
under the Contract until the Programme Schedule is submitted in accordance with this Sub-Clause 7.3.

Nothing stated in any Programme Schedule shall relieve the Contractor of any of its duties,
responsibilities, obligations and/or liabilities under the Contract or extend or revise the Time for
Completion and/or any Milestone Completion Date. Nothing stated in any Programme Schedule shall
constitute a notice under a Sub-Clause of these Conditions.

7.4 Extension of Time for Completion, Task Completion Date and Milestone Completion Dates

The Contractor shall be entitled to claim an extension to the Time for Completion and/or each
Milestone Completion Date and/or each Task Completion Date if it is or will be delayed by any of the
Employer's Liabilities provided that the Contractor has complied with Sub-Clause 10.6 [Claims].

On receipt of an application from the Contractor under Sub-Clause 10.6 [Claims], the Employer shall
consider all supporting details provided by the Contractor. The Employer shall then proceed to
determine such extension of the Time for Completion and/or each Milestone Completion Date and/or
each Task Completion Date as reasonable in the circumstances and the Time for Completion and/or
Milestone Completion Date shall be adjusted accordingly. The Employer shall notify the Contractor of
the adjusted Time for Completion and/or Milestone Completion Date and/or each Task Completion
Date whereupon within 7 days of the Employer's notification, the Contractor shall submit a revised
Programme Schedule with the adjusted Time for Completion and/or Milestone Completion Date and/or
each Task Completion Date to the Employer for approval.

7.5 Delay Damages for the Works or Section

33
 If the Contractor fails to complete the Works or a Section (as the case may be) for the purposes of
Sub-Clause 8.2 [Taking-Over Certificate], the Contractor's liability to the Employer for such failure shall
be to pay the Employer the amount stated in the Appendix for every day which shall elapse between
the Time for Completion of the Works or a Section (as the case may be) and the date stated in the
Taking-Over Certificate issued under Sub-Clause 8.2 [Taking-Over Certificate]. However, the total
amount due under this Sub-Clause 7.5 [Delay Damages for the Works or Section] shall not exceed the
maximum amount of delay damages for failure to complete the Works or a Section (as the case may
be) by the Time for Completion as stated in the Appendix. The Contractor's liability for delay damages
under this Sub-Clause 7.5 [Delay Damages for the Works or Section] shall not be the Employer's
exclusive remedy for delay under the Contract and shall continue notwithstanding any termination or
suspension or otherwise of this Contract.

7.6 Delay Damages for a Milestone

If the Contractor fails to complete a Milestone on or before a Milestone Completion Date in accordance
with Sub-Clause 7.2 [Completion of Milestone], the Contractor's liability to the Employer for such failure
shall be to pay the amount stated in the Appendix for every day which shall elapse between the
relevant Milestone Completion Date and the date the Contractor completes the Milestone in
accordance with Sub-Clause 7.2 [Completion of Milestone]. The total amount due under this Sub-
Clause 7.6 [Delay Damages for a Milestone] shall not exceed the maximum amount of delay damages
for the failure to complete a Milestone as stated in the Appendix.

The Contractor's liability for delay damages under this Sub-Clause 7.6 [Delay Damages for a
Milestone] shall continue notwithstanding any termination or suspension or otherwise of this Contract.
For the avoidance of doubt, the Contractor’s liability for delay damages for failure to complete any
Milestone shall be in addition to any liability for delay damages under Sub-Clause 7.5 [Delay Damages
for the Works or Section] and shall not be the Employer's exclusive remedy for delay under the
Contract.

8. Completion and Testing

8.1 Completion of the Works

The Contractor shall apply by notice to the Employer for a completion certificate not earlier than 14
days before the Works or a Section (as the case may be) will, in the Contractor’s opinion, be complete
for the purposes of Sub-Clause 7.1 [Execution of the Works].

8.2 Taking-Over Certificate

The Employer shall, within 28 days after receiving the Contractor’s application under Sub-Clause 8.1
[Completion of the Works], notify the Contractor:-

(a) if it considers that the Contractor has completed the Works or a Section (as the case may be) in
accordance with the Contract by issuing a certificate stating the date the Contractor has
completed the Works or a Section (as the case may be) in such certificate (" Taking-Over
Certificate"); or

(b) if it considers that the Works or a Section (as the case may be), although not fully complete in all
respects, are complete save for any Snagging Items, the Employer may (at its discretion) issue
the Taking-Over Certificate subject to the Snagging Items which are to be completed in
accordance with Sub-Clause 8.5 [Snagging Items]; or

(c) reject the application, giving reasons and specifying the work required to be done by the
Contractor to enable the Taking-Over Certificate to be issued for the Works or a Section (as the
case may be).

The Contractor shall complete the work referred to in Sub-Clause 8.2(c) before making a further
application under Sub-Clause 8.1 [Completion of the Works] for the Works or a Section (as the case
may be).

The Employer shall take possession of the Works or a Section (as the case may be) upon the issue of
the Taking-Over Certificate issued under sub-paragraph (a) or (b) of Sub-Clause 8.2 when
34
responsibility for the care of the Works or a Section (as the case may be) shall pass to the Employer.
The Contractor shall promptly complete any outstanding work and defects referred to in such notice
and, subject to Sub-Clause 8.5 [Snagging Items] (if applicable) and Clause 9 [Remedying Defects],
clear the Site to the satisfaction of the Employer.

35
8.3 Partial Completion

If at any time before the issue of the Taking-Over Certificate, the Employer wishes to take possession
of any Part or Parts of the Works before they are complete for the purposes of Sub-Clause 7.1
[Execution of the Works], the Employer may at its absolute discretion take possession of such Part or
Parts of the Works in accordance with this Sub-Clause 8.3 [Partial Completion]. The Employer shall
issue a certificate identifying the part or parts of the Works taken into possession by the Employer
("Partial Taking-Over Certificate").

If the Employer issues a Partial Taking-Over Certificate for any Part of the Works:

(a) the Part identified in the Partial Taking-Over Certificate shall be taken into possession by the
Employer on the date stated in the Partial Taking-Over Certificate; and

(b) the Contractor shall cease to be responsible for the care of such Part of the Works as from the
date referred to in sub-paragraph (a) above, when responsibility for the care of such Part of the
Works shall pass to the Employer save that the Contractor shall remain responsible for its
obligations under Clause 9 [Remedying Defects] for such Part.

After the Employer has issued a Partial Taking-Over Certificate for a Part of the Works, the Contractor
shall be given the earliest opportunity to take such steps as may be necessary to carry out any Tests
and complete any outstanding work in respect of such Part of the Works. The Contractor shall carry
out these Tests and complete the outstanding work by such date to be fixed by the Employer (or on its
behalf). If the Contractor fails to carry out these Tests and complete the outstanding work within such
time as is notified and fixed by the Employer, the Employer may (at its sole and absolute discretion)
carry out the work itself or by Others, in a reasonable manner and at the Contractor's cost and risk,
and the Contractor shall pay to the Employer the costs incurred by the Employer to carry out these
Tests and complete the outstanding work without any deduction or set-off.

If a Partial Taking-Over Certificate has been issued for a Part of the Works, the delay damages under
Sub-Clause 7.5 [Delay Damages for the Works or Section] thereafter for completion of the remainder
of the Works shall be reduced. This reduction shall be calculated as the proportion which the value of
the Part (except the value of any outstanding works and/or defects to be remedied) bears to the value
of the Works as a whole. The provisions of this Sub-Clause shall only apply to the day rate of delay
damages under Sub-Clause 7.5 [Delay Damages for the Works or Section] and shall not affect or
diminish the maximum amount of delay damages under Sub-Clause 7.5 [Delay Damages for the
Works or Section].

8.4 Tests

The Contractor shall carry out the Tests in accordance with the Employer's Requirements and the
other requirements in the Contract. The Contractor shall give to the Employer not less than 21 days’
notice (unless a different time period is stated in the Employer's Requirements) of the date after which
the Contractor will be ready to carry out the Tests. Unless otherwise agreed, Tests on Completion shall
be carried out within 7 days after this date, or on such day or days as the Employer shall instruct. As
soon as the Works or a Section (as the case may be) have passed the Tests, the Contractor shall
submit a certified report of the results of these Tests to the Employer for the Employer's approval. The
Works or a Section (as the case may be) shall not be considered as complete under Sub-Clause 7.1
[Execution of the Works] and under Sub-Clause 8.2 [Taking-Over Certificate] until the Works or a
Section (as the case may be) have passed the Tests and the Employer has received and approved the
certified report of the results of these Tests in accordance with this Sub-Clause 8.4 [Tests].

8.5 Snagging Items

In the event the Taking-Over Certificate for the Works or a Section (as the case may be) is issued
subject to Snagging Items, the Employer shall, at the same time it issues the Taking-Over Certificate,
issue to the Contractor a list of the Snagging Items. Within 3 days of receipt from the Employer of the
Taking-Over Certificate with the list of the relevant Snagging Items, the Contractor shall provide to the
Employer a Programme Schedule for rectifying each of the Snagging Items identifying when it
anticipates to start and complete rectification of each Snagging Item.

The Contractor shall ensure that each and every Snagging Item is rectified as soon as practicable and
36
in any event within 7 days of the issue of the Taking-Over Certificate so as to ensure that the Works or
a Section (as the case may be) are Fit for Purpose and otherwise in accordance with the requirements
of the Contract. The Contractor shall refer such Programme Schedule for the approval of the Employer
and the Employer shall in its absolute discretion have the right to approve or provide its disapproval to
such Programme Schedule. The Contractor shall ensure that each Snagging Item is rectified in
accordance with this Sub-Clause 8.5 [Snagging Items], the Programme Schedule approved by the
Employer and to the satisfaction of the Employer. If the Contractor fails to rectify such Snagging Item in
accordance with the this Sub-Clause, or the Contractor fails to submit such Programme Schedule, or
fails to obtain the approval of the Employer on the Programme Schedule, the Employer may (at its sole
and absolute discretion) carry out the rectification of the Snagging Item by itself or by Others, in a
reasonable manner and at the Contractor's cost and risk, and the Contractor shall pay to the Employer
the costs incurred by the Employer in rectifying such Snagging Item on demand without any deduction
or set-off.

37
8.6 FM Services and Service Levels

The Contractor shall provide the FM Services in accordance with the Employer's Requirements
(including the Employer's Policies and the Service Level Agreement set out in the Employer's
Requirements) and this Contract for the relevant completed Works or a Section (as the case may be)
and Tasks (if any) during the relevant FM Services Period. The Contractor shall provide the FM
Services to ensure that such completed Works or Section (as the case may be) and Tasks (if any)
remain Fit for Purpose during the relevant FM Services Period.

The Contractor shall comply with the requirements of the approved operation and maintenance
manuals provided by the Contractor as referred to in the Employer's Requirements. No significant
alteration to such arrangements and methods shall be made without the prior approval of the
Employer.

If at any time, actual performance of the FM Services is not in accordance with the Contract and/or the
Contractor has not achieved or will not achieve the target stated in the Employer's Requirements, the
Employer may, without prejudice to any other rights or remedies under or in connection with this
Contract, instruct the Contractor to submit a plan for review by the Employer and approval with a
supporting report describing the revised methods which the Contractor proposes to adopt in order to
ensure the FM Services are performed in accordance with the Contract.

Throughout the FM Services Period, the Contractor shall (at its own cost) report to the Employer its
performance against each Service Level. Such reports shall be provided at the intervals stated in the
Appendix.

9. REMEDYING DEFECTS AND PERFORMANCE CERTIFICATE

9.1 Remedying Defects

The Employer may at any time prior to the expiry of the period(s) stated in the Appendix ("Defects
Notification Period"), notify the Contractor of any defects, damage or outstanding work in the Works
or a Section (as the case may be) including any Part of the Works. The Contractor shall promptly
remedy at no cost to the Employer any outstanding work, defects or damage arising due to the
Contractor's Design, Materials, or workmanship or any part of the Works or a Section (as the case may
be) otherwise not being in accordance with the Contract. If a defect or outstanding work appears or
damage occurs, the Employer shall notify the Contractor of the defect, outstanding work or damage
and shall fix a date by which such defect, outstanding work or damage is to be remedied by the
Contractor.

9.2 Failure to Remedy Defects or Damage

If the Contractor fails to remedy any defect or damage within such time as is notified and fixed by the
Employer as referred to in Sub-Clause 9.1 [Remedying Defects], the Employer may (at its sole and
absolute discretion) carry out the work itself or by Others, in a reasonable manner and at the
Contractor's cost and risk, and the Contractor shall pay to the Employer the costs incurred by the
Employer in remedying the defect or damage on demand without any deduction or set-off.

9.3 Uncovering and Testing

The Employer may give instructions to the Contractor as to the uncovering and/or testing of any work
carried out by the Contractor or any Subcontractor. Unless as a result of any uncovering and/or testing
it is established that the Contractor's Design, Materials, or workmanship are not in accordance with the
Contract, the Contractor shall be paid for such uncovering and/or testing as a Variation and Clause 10
[Variations and Claims] shall apply.

9.4 Performance Certificate

Performance of the Contractor’s obligations during the Defects Notification Period shall not be
considered to have been completed until the Employer has issued the Performance Certificate to the
Contractor, stating the date on which the Contractor completed its obligations during the Defects
38
Notification Period.

39
 The Employer shall issue the Performance Certificate within 28 days after the latest of the expiry dates
of the Defects Notification Periods, or as soon thereafter as the Contractor has supplied all the
Contractor’s Documents and completed all the Works, including remedying any defects.

Only the Performance Certificate shall be deemed to constitute acceptance of the Works and all work
executed to remedy defects or damage notified by or on behalf of the Employer prior to the end of the
Defects Notification Period. The Performance Certificate shall not be deemed to constitute acceptance
of any latent defect which is subsequently found after the issue of the Performance Certificate.

10. VARIATIONS AND CLAIMS

10.1 Right to Vary

The Employer may at any time prior to the end of the Defects Notification Period issue Variations either
by an instruction to the Contractor or by a request for the Contractor to submit a proposal. The
Contractor shall execute and be bound by each Variation.

Each Variation may include:

(a) changes to the quantities of any item of work included in the Contract;

(b) changes to the quality and other characteristics of any item of work;

(c) changes to the levels, positions and/or dimensions of any part of the Works and Tasks (if any);

(d) omission of any work;

(e) any additional work, Materials or services necessary for the Works and Tasks (if any), including
any associated Tests, (if any);

(f) changes to the sequence or timing of the execution of the Works and Tasks (if any); or

(g) modifications to the Employer's Requirements or to the Contractor's Proposal or to the design
of the Works and Tasks (if any) or to the provision of the FM Services.

The Contractor shall not make any alteration and/or modification to the Works and/or FM Services,
unless and until the Employer instructs or approves a Variation.

If the Employer issues a Variation for the omission of any work under Sub-Clause 10.1 [Right to Vary],
the Employer shall be entitled to instruct Others to carry out such omitted work and the Employer shall
have no liability to the Contractor for any loss of profit, loss of overheads or any other losses or other
liability in Law or otherwise whatsoever or howsoever arising from such Variation for the omission of
such work.

10.2 Variation Procedure

If the Employer instructs a Variation or requests a proposal prior to instructing a Variation, the
Contractor shall respond in writing as soon as practicable but in any event within 7 days (or such other
period as may be proposed by the Contractor and agreed by the Employer) by submitting a notice
containing the following items to the Employer:

(a) a description of the work to be performed in an instruction to execute a Variation or a

description of the proposed work to be performed (as the case may be) and a Programme
Schedule for the execution of such work;

(b) the Contractor’s proposal for any necessary alterations to the Programme Schedules referred
to in Sub-Clauses 7.3 and 19.5 (as applicable) and to the Time for Completion and/or to any
Milestone Completion Date and/or Task Completion Date (as applicable); and

40
 (c) the Contractor’s proposal for evaluation of the cost for the Variation which shall be valued in
accordance with Sub-Clause 10.3 [Valuation of Variations]

The Employer shall, as soon as practicable, after receiving the items listed in sub-paragraphs (a), (b)
and (c) of Sub-Clause 10.2 [Variation Procedure] respond with approval, disapproval or comments (as
the case may be). The Contractor shall not delay execution of the Works, Tasks (if any) and the
provision of the FM Services whilst awaiting a response unless otherwise instructed by the Employer.

The Employer may (at his option) instruct the Contractor to provide further or additional information or
instruct the Contractor to revise the previously submitted items listed under sub-paragraphs (a), (b)
and (c) of Sub-Clause 10.2 [Variation Procedure] and state a date for re-submitting such revised items
to the Employer. If the Employer notifies the Contractor of its disapproval of the Contractor's re-
submitted revised items, the Employer shall be entitled to proceed to agree or determine such
extension of the Time for Completion, Task Completion Date and/or of any Milestone Completion Date
(if any) and any adjustments to the Contract Price (if any) as a result of the Variation and such
determination shall be binding between the Parties unless it is referred as a Dispute under Clause 16
[Resolution of Disputes].

Each instruction to execute a Variation, with any requirements for the recording of extension of the
Time for Completion, Task Completion Date and/or of any Milestone Completion Date (if any) and any
adjustments to the Contract Price (if any) as a result of the Variation shall be issued by the Employer to
the Contractor, who shall acknowledge receipt. The Employer and the Contractor may enter (at the
Employer's discretion) a supplemental agreement to amend and/or revise the Time for Completion,
Task Completion Date and/or of any Milestone Completion Date (if any) and any adjustments to the
Contract Price (if any) as a result of the Variation (including any changes required to the Appendix and
the other documents forming part of the Contract).

Each Variation shall be evaluated in accordance with Sub-Clause 10.3 [Valuation of Variations] unless
the Employer instructs or approves otherwise in accordance with this Sub-Clause.

The Parties, however, may agree that instead of extending the Time for Completion, Task Completion
Date and/or any Milestone Completion Date to reflect the delay arising directly from such Variation, the
Employer may pay to the Contractor the Cost for the Contractor to accelerate (including the Cost to
employ additional resource, additional equipment and to employ other methods) so as to either:

(a) achieve completion of the Works by the Time for Completion and/or so as to achieve completion
of a Milestone by the relevant Milestone Completion Date and/or achieve Task Completion by
the relevant Task Completion Date as a result of such Variation; or

(b) reduce the extent of the delay arising directly from such Variation in order to mitigate the effect of
such Variation.

10.3 Valuation of Variations

All Variations shall be valued in the following order:

(a) at a lump sum price agreed between the Parties; or

(

(b) using the rates in the Pricing Documents including an allowance for overheads and profit as
stated in the Appendix; or

(c) if there is no specified rate or item in the Pricing Documents a new rate or price as may be
agreed or which the Employer considers appropriate (as the case may be) including an
allowance for overheads and profit as stated in the Appendix.

10.4 Early Warning

The Contractor shall notify the Employer as soon as it is aware of any circumstance which may delay
or disrupt the Works or a Milestone or Tasks (if any) or provision of FM Services, give rise to a claim for
additional payment or affect the work of the Employer or Others on the Site. The Contractor shall take

41
 all reasonable steps to minimise these effects.

10.5 Right to Claim

If the Contractor incurs a Cost as a direct result of any of the Employer's Liabilities, the Contractor shall
be entitled to claim such Cost which shall be added to the Contract Price provided that the Contractor
has complied with Sub-Clause 10.6 [Claims]. If as a result of any of the Employers Liabilities, it is
necessary to change the Works, Tasks (if any) and/or FM Services, this shall be dealt with as a
Variation.

10.6 Claims

If the Contractor considers itself entitled to any extension of the Time for Completion, Task Completion
Date and/or a Milestone Completion Date and/or any additional payment under any Sub-Clause of
these Conditions or otherwise in connection with this Contract, the Contractor shall give notice to the
Employer describing the event or circumstance giving rise to the claim as a result of the Employer's
Liabilities. The notice shall be given as soon as practicable, and not later than 28 days after the
Contractor became aware, or should have become aware, of the event or circumstance giving rise to
the claim as a result of the Employer's Liabilities. The notice shall include the basis of the Contractor's
claim with full particulars in support of its claim for an extension of time and/or additional payment
claimed.

However, if the Contractor fails to comply with Sub-Clause 10.6 [Claims], the Time for Completion,
Task Completion Date and/or the Milestone Completion Date shall not be extended, the Contractor
shall not be entitled to additional payment and the Contract Price shall not be adjusted, and the
Employer shall be discharged from all liability in connection with the claim as a result of the Employer's
Liabilities.

10.7 Employer Step-In

If the Employer reasonably believes that it needs to take action in connection with the Works, Task
and/or FM Services, the Employer shall be entitled to take action in accordance with this Sub-Clause
10.7.
If Sub-Clause 10.7 applies and the Employer wishes to take action, the Employer shall notify the
Contractor in writing of the following:

(a) the action it wishes to take;

(b) the reason for such action;

(c) the date it wishes to commence such action

(d) the time period which it believes will be necessary for such action; and

(e) to the extent practicable, the effect on the Contractor and its obligation to execute the Works
and/or Tasks, and/or provide the FM Services during the period such action is being taken.

Following service of such notice, the Employer shall take such action as notified under this Sub-Clause
10.7 and any consequential additional action as it reasonably believes is necessary (together the
Required Action) and the Contractor shall give all reasonable assistance to the Employer while it is
taking such Required Action.

If the Contractor is not in breach of its obligations under this Contract then for so long as and to the
extent that the Required Action is taken, and this prevents the Contractor from executing any part of
the Works and/or Tasks and/or providing any part of the FM Services:

(a) the Contractor shall be relieved from its obligations to execute such part of the Works and/or
Tasks and/or provide such part of the FM Services; and

42
 (b) in respect of the period in which the Employer is taking the Required Action and provided that
the Contractor provides the Employer with reasonable assistance (such assistance to be at the
expense of the Employer to the extent incremental costs are incurred), the amount payable by
the Employer to the Contractor shall equal the unpaid balance of the value of the Works and/or
Tasks and/or FM Services affected by the Required Action which have been executed by the
Contractor, as assessed in accordance with Clause 11 [Contract Price and Payment].

If the Required Action is taken due to the Contractor being in breach of its obligations under this
Contract then for so long as and to the extent that the Required Action is taken, and this prevents the
Contractor from executing any part of the Works and/or Tasks and/or providing any part of the FM
Services;

(a) the Contractor shall be relieved of its obligations to execute such part of the Works and/or Tasks
and/or provide such part of the FM Services; and

(b) in respect of the period in which the Employer is taking Required Action, the amount payable by
the Employer to the Contractor shall equal:

(i) the unpaid balance of the value of the Works and/or Tasks and/or FM Services affected
by the Required Action which have been executed by the Contractor, as assessed in
accordance with Clause 11 [Contract Price and Payment],

(ii) less an amount equal to all the Employer’s costs in taking the Required Action (including
the additional losses suffered or costs incurred by the Employer in completing the
execution of the Works and/or Task and/or providing the FM Services affected by the
Required Action).

10.8 Acceleration

The Employer may at any time instruct the Contractor to accelerate the execution of the Works and/or
Tasks (if any) and/or the provision of the FM Services for any reason. If the Contractor is entitled to an
extension of time under the Contract, the Employer may, in lieu of granting an extension of time,
instruct the Contractor to accelerate the execution of the Works and/or Tasks (if any) and/or the
provision of the FM Services so as to overcome the delay for which the Contractor is entitled to an
extension of time under the Contract.

The Contractor shall be entitled to all additional Costs, as assessed by the Employer, necessarily
incurred by the Contractor in complying with an acceleration order under this Sub-Clause, except
where such order was issued as a consequence of a breach or default by the Contractor or its
Subcontractors of the Contractor's duties and obligations under the Contract.

11. CONTRACT PRICE AND PAYMENT

11.1 The Contract Price

The Contract Price is:

(a) a fixed lump sum for the execution the Works, the provision of the FM Services, and for the
Contractor's obligations under the Contract; and

(b) the amount payable for the Tasks instructed under Clause 19 [Task Order], as such amount is
1 specified in the relevant Task Orders for the execution of the Tasks.

The Contract Price shall only be subject to adjustments agreed in accordance with the Contract.
Notwithstanding any provision to the contrary in the Contract and without prejudice to any other right of
set-off of the Employer, the Employer may at any time, set off any liability of the Contractor to the
Employer against any liability of the Employer to the Contractor, whether either liability is present or
future, liquidated or unliquidated, and whether or not either liability arises under this Contract.

11.2 Monthly Statement

43
 The Contractor shall be entitled to be paid for the Works, Tasks (if any) and FM Services in accordance
with this Sub-Clause 11.2 [Monthly Statement].

The Contractor shall be entitled to be paid the percentage stated in the Appendix of the value of
Materials delivered to the Site provided that the Contractor has marked the Materials as the
Employer's property in accordance with the Employer's instructions and delivered such Materials to
Site at a reasonable time subject to any additions or deductions which may be due.

The Contractor shall submit each month to the Employer a statement showing:

(a) in relation to the Works executed during such month,

(i) the amount to which it considers itself entitled as set out in the Pricing Documents; or

(ii) if the amounts payable are to be paid based on milestone payments, the amount of the
milestone payment(s) to which it considers itself entitled on completion of the relevant
milestone during such month (if any) as set out in the Pricing Documents;

(b) in relation to the FM Services, the amount to which it considers itself entitled for completion of
1 the FM Services during such month, as set out in the Pricing Documents; and

(c) in relation to Tasks, the amount to which it considers itself entitled for completion of the Tasks (if
any) during such month, as set out in the relevant Task Order.

The Contractor shall comply with the process, procedures and requirements stated in the Employer's
Requirements in respect of applying for payment under the Contract.

If the Pricing Documents specify instalments in which the Contract Price will be paid:

(a) the instalments quoted in the Pricing Documents shall be treated as the estimated contract
1 values for the purposes of Sub-Clauses 11.2 and 11.3; and

(b) if the instalments are not defined by reference to actual progress achieved in the execution of
the Works and actual progress is found by the Employer to differ from that on which the Pricing
Documents are based,

then the Employer may proceed to agree or determine revised instalments. Such revised instalments
shall take account of the extent to which progress differs from that on which the Pricing Documents are
based.

11.3 Interim Payments

Within 30 days of delivery of each statement, the Employer shall pay the Contractor the amount shown
in the Contractor's statement less:

(a) advance payment deductions at the rate stated in Sub-Clause 11.9 [Advance Payment];

(b) retention at the rate stated in the Appendix; and

(c) any amount for which the Employer has specified his reasons for disagreement in a notice to the
Contractor.

The Employer shall be entitled to correct any amount shown in the Contractor's statement to reflect
any amount which has previously been paid by the Employer.

The Employer may withhold interim payments until he receives the performance security under Sub-
Clause 4.9 [Performance Bond] and evidence of the insurances which the Contractor is to effect and
maintain under Clause 14 [Insurance].

11.4 Payment of First Half of Retention

44
 When the Taking-Over Certificate has been issued for the Works, one first half of the retention shall be
paid by the Employer to the Contractor. If a Taking-Over Certificate is issued for a Section or Part of
the Works, an agreed proportion of the retention shall be paid by the Employer to the Contractor. Such
payment shall be made within 45 days after the date of the relevant Taking-Over Certificate.

11.5 Payment of Second Half Retention

After the latest of the expiry dates of the Defects Notification Periods, the outstanding balance of the
retention shall be paid by the Employer to the Contractor. If a Taking-Over Certificate is issued for a
Section, an agreed proportion of the second half of the retention shall be paid by the Employer to the
Contractor for the Section. Such payment shall be made within 45 days after the latest of the expiry
dates of the Defects Notification Periods.

11.6 Final Payment

Within 45 days of the date of the Performance Certificate, the Contractor shall submit a final account to
the Employer together with any documentation reasonably required to enable the Employer to
ascertain the Contract Price (including all adjustments to the Contract Price under the Contract).

Within 45 days after the submission of this final account, the Employer shall pay to the Contractor any
amount due. If the Employer disagrees with any part of the Contractor's final account, he shall specify
his reasons for disagreement when making payment.

11.7 Currency

Payment shall be in the currency stated in the Appendix.

11.8 Delayed Payment

The Parties have agreed that the Contractor shall not be entitled to receive financing charges, interest
or other compensation if the Contractor does not receive payment in accordance with the time periods
stated under Clause 11 [The Contract Price].

11.9 Advance Payment

The Employer shall make an advance payment, as an interest-free loan for mobilisation, when the
Contractor submits an Advance Payment Bond issued by a bank from within the Country which has a
long term unsecured debt rating of at least A from S&P and A2 from Moody’s and is approved by the
Employer. The Advance Payment Bond shall be in an amount equal to the advance payment. The total
advance payment and the number of instalments shall be as stated in the Appendix.

The Employer shall pay the advance payment within 14 days after receiving an Advance Payment
Bond in accordance with this Sub-Clause 11.9 [Advance Payment].

The Contractor shall ensure that the Advance Payment Bond is valid and enforceable until the
advance payment has been repaid in full, but its amount may be progressively reduced by the amount
repaid by the Contractor as indicated in the interim payments. If the terms of the Advance Payment
Bond specify its expiry date, and the advance payment has not been repaid by the date 28 days prior
to the expiry date, the Contractor shall extend the validity of the Advance Payment Bond until the
advance payment has been repaid.

The advance payment shall be repaid through percentage deductions in amounts due under Sub-
Clause 11.3 [Interim Payments] at the amortisation rate of the percentage identified in the Appendix of
the amount of each interim payment (excluding the advance payment and deductions and repayments
of retention) in the currencies and proportions of the advance payment, until such time as the advance
payment has been repaid.

45
 If the advance payment has not been repaid prior to the issue of the last Taking-Over Certificate under
Sub-Clause 8.2 [Taking-Over Certificate] or prior to termination of the Contract, the whole of the
balance then outstanding shall immediately become due and payable by the Contractor to the
Employer and the Contractor shall make payment of such balance to the Employer immediately
without any deduction or set-off.

11.10 Value Added Tax

All amounts due under or in connection with the Contract are exclusive of VAT.

The Contract Price is exclusive of VAT and in relation to each payment to the Contractor the Employer
shall pay the amount of any VAT properly chargeable in respect of it.

If and to the extent that any payment becomes due and payable to the Employer from the Contractor
under or in connection with the Contract and such payment is or becomes chargeable to VAT, the
Contractor shall pay the amount of any VAT properly chargeable in respect of it.

The Contractor shall provide the Employer with any information reasonably requested by the Employer
in relation to the amount of VAT chargeable in accordance with the Contract and payable by the
Employer to the Contractor.

If any supply made or referred to in the Contract is or becomes chargeable to VAT then the Party
receiving the supply ("Recipient") shall in addition pay the person making the supply ("VAT Supplier")
the amount of that VAT against receipt by the Recipient from the VAT Supplier of a proper and valid
VAT invoice in accordance with the Law in respect of that supply.

Where under the Contract any amount is calculated by reference to any amount or sum which has or
may be incurred by any person, the amount or sum shall include any VAT in respect of that amount or
sum only to the extent that such VAT is not recoverable as input tax by that person (or a member of the
same VAT group), whether by set off or repayment.

12. TERMINATION AND SUSPENSION

12.1 Default by Contractor

The Employer shall be entitled to terminate the Contract if:

(a) the Contractor fails to comply with Sub-Clause 4.9 [Performance Bond] or Sub-Clause
11.9 [Advance Payment];

(b) the Contractor abandons the Works, Tasks (if any) or FM Services or otherwise plainly
demonstrates the intention not to continue performance of his obligations under the
Contract;

(c) the Contractor without reasonable excuse fails:

(1) to proceed with the Works, Section and/or Milestone in accordance with Sub-
Clauses 7.1 and/or 7.2 (as applicable);

(2) to provide the FM Services in accordance with Sub-Clause 8.6; or

(3) to carry out a Task under a relevant Task Order in accordance with Clause 19
[Task Order];

(d) the Contractor subcontracts the whole of the Works, Tasks (if any) or FM Services or
otherwise fails to comply with Sub-Clause 4.3 [Subcontracting] or assigns the Contract
without the required consent;

(e) the Contractor fails to:

46
 (1) obtain a Taking-Over Certificate for the Works or a Section (as the case may
be) within 30 days after the relevant Time for Completion; or

(2) complete a Task within 14 days after the relevant Task Completion Date.

(f) the cap on the Contractor’s liability to pay delay damages under Sub-Clauses 7.5, 7.6
and/or 19.4 is reached;

(g) the Contractor is in persistent breach or material breach or default of the Contract;

(h) the Contractor gives or offers to give (directly or indirectly) to any person any bribe, gift,
gratuity, commission or other thing of value, as an inducement or reward, for doing or
forbearing to do any action in relation to the Contract or for showing or forbearing to
show favour or disfavour to any person in relation to the Contract;

(i) the Contractor is in persistent breach of, or continually fails to comply with, the Service
Level Agreement.
In any of these events or circumstances, the Employer may, upon giving 14 days' notice to the
Contractor, terminate the Contract and expel the Contractor from the Site. However, in the case of
sub-paragraph (e), (f), or (h), the Employer may by notice terminate the Contract immediately.

The Employer's election to terminate the Contract shall not prejudice any other rights of the
Employer, under the Contract or otherwise.

47
 12.2 Default by the Employer

If the Employer fails to pay any amount properly due to the Contractor in accordance with the Contract,
the Contractor may give notice referring to this Sub-Clause and stating the default. If the default is not
remedied within 60 days after the Employer's receipt of this notice, the Contractor may suspend the
execution of all or parts of the Works, Tasks (if any) and/or FM Services.

If the default is not remedied within 60 days after the Employer's receipt of the Contractor's notice, the
Contractor may by a second notice given within a further 30 days, terminate the Contract.

12.3 Insolvency
If a Party:

(a) is declared insolvent under any applicable Law, or

(b) goes into liquidation, or enters into administration, or receivership or is admitted to any
procedure for a settlement of debts, or is declared bankrupt, or enters or becomes involved in
any other similar insolvency state or ceases to carry on business; or

(c) other than for the purposes of a bona fide reconstruction or amalgamation, passes a resolution
for its winding up, or a court of competent jurisdiction makes an order for it to be wound up or
dissolved; or

(d) is otherwise dissolved,

the other Party may by notice terminate the Contract immediately.

12.4 Payment upon Termination

After termination, the Contractor shall be entitled to payment of the unpaid balance of the value of the
Works, Tasks (if any) and FM Services executed and of the Materials delivered to the Site using the
rates in the Pricing Documents for the purposes of valuation, adjusted by the following:-

(a) if the Employer has terminated under Sub-Clause 12.1 [Default by Contractor] or the
Contractor's insolvency under Sub-Clause 12.3 [Insolvency];

(i) any sums incurred by the Employer for executing and completing, or procuring Others to
execute and complete the Works, Tasks (if any), FM Services, remedying the defects in
the Works, Tasks (if any) and FM Services and for performing the Contractor's
obligations; and

(ii) any Losses incurred or suffered by the Employer in the event of termination; or

(b) if the Contractor has terminated under Sub-Clause 12.2 [Default by the Employer] or 12.3
[Insolvency] or the Employer has terminated under Sub-Clause 12.7 [Termination for
Convenience], the Contractor shall be entitled to the Cost of his suspension and demobilisation.

The net balance due shall be paid or repaid within 60 days of receipt of the notice of termination.
Notwithstanding any other provisions of this Contract, the Employer shall not be liable to the
Contractor for any loss of profit or any indirect or consequential losses whatsoever and howsoever
arising under or in connection with this Contract or at Law.

12.5 No Court Order

The Parties expressly agree that no court order, judgment, ruling, decision, award or any other judicial
action or intervention shall be required in connection with the termination notice under this Clause 12
[Termination and Suspension].

12.6 Suspension

48
 The Employer may at any time instruct the Contractor to suspend progress of all or any part of the
Works, Tasks (if any) and/or FM Services. During such suspension, the Contractor shall protect, store
and secure such Materials and any part of the Works and Tasks (if any) against any deterioration, loss
or damage, all as instructed by the Employer.

The Contractor shall not be entitled to an extension of time for, or to payment of the Cost incurred in,
making good the consequences of the Contractor’s faulty design, workmanship or materials, or of the
Contractor’s failure to protect, store or secure in accordance with Sub-Clause 12.6 [Suspension].

The Contractor shall be entitled to payment of the value (as at the date of suspension) of the Materials,
if:

(a) the suspension has continued for more than 28 days; and

(b) the Contractor has marked the Materials as the Employer’s property in accordance with the
Employer’s instructions and delivered such Materials to Site,

unless the suspension is attributable to a fault, breach or default of the Contractor (including any
Subcontractor).

If permission or instruction to proceed is given by the Employer, the Contractor and the Employer shall
jointly examine the Works, Tasks (if any) and the Materials affected by the suspension. The Contractor
shall make good any deterioration or defect in or loss of the Works, Tasks (if any) or Materials, which
has occurred during the suspension.

12.7 Termination for Convenience

The Employer shall be entitled to terminate the Contract, at any time for the Employer’s convenience,
by giving written notice of such termination to the Contractor. The termination shall take effect 7 days
after the date the Contractor receives this written notice.

The Employer (at its absolute discretion) shall be entitled to terminate the Contract under this Sub-
Clause and may carry out any execution of the Works and Tasks (if any), and the provision of the FM
Services itself or to arrange for Others to carry out the execution of the Works and Tasks (if any), and
the provision of the FM Services.

12.6 Cessation of Work and Removal of Contractor’s Equipment

After a notice of termination under this Clause 12 [Termination and Suspension] has taken effect, the
Contractor shall promptly:

(a) cease all further work, except for such work as may have been instructed by the Employer for
the protection of life or property or for the safety of the Works and Tasks (if any) or in order to
protect the Materials stored on Site against loss, damage or deterioration or in order to protect
any part of the Works and Tasks (if any) against loss, damage or deterioration;

(b) hand over Contractor’s Documents, Materials and other work, for which the Employer has paid
or discharged payment to the Contractor; and

(c) remove all rubbish and other temporary equipment from the Site except as necessary for safety
and leave the Site clean, unless otherwise instructed by the Employer.

13. RISK AND RESPONSIBILITY

13.1 Contractor’s Care of the Works

The Contractor shall take full responsibility for the care of the Works from the Commencement Date
until the date the Taking-Over Certificate is issued for the Works under Sub-Clause 8.2 [Taking-Over
Certificate], after which responsibility for the care of the Works shall then pass to the Employer. If a
Partial Taking-Over Certificate is issued for a Part of the Works, responsibility for the care of such Part
of the Works shall then pass to the Employer. If any loss or damage happens to the Works during the
period for which the Contractor is responsible for the Works, the Contractor shall rectify such loss or
49
damage so that the Works are in accordance with the Contract.

50
 After responsibility for the care of the Works has passed to the Employer, the Contractor shall remain
responsible for its obligations under Clause 9 [Remedying Defects], and for any obligations that remain
outstanding (including those obligations under Sub-Clause 8.5 [Snagging Items] (if applicable)).

The provisions of this Clause 13.1 is without prejudice to the Contractor's obligations to provide the FM
Services and shall not affect any of the Contractor's obligations, responsibilities and/or liabilities under
or in connection with the FM Services.

14. INSURANCE

14.1 Extent of Cover

The Contractor shall, prior to commencing the Works, effect and thereafter maintain insurances in the
joint names of the Contractor and the Employer:

(a) for loss and damage to the Works, Tasks (if any), Materials, and the Contractor's Equipment,

(b) for liability of the Contractor and the Employer for loss, damage, death or injury to third parties or
their property arising out of the Contractor's performance of the Contract, including the
Contractor's liability for damage to the property of the Employer other than the Works and Tasks
(if any), and

(c) for liability of the Contractor and the Employer and of any employee, officer or representative of
the Employer for death or injury to the Contractor's personnel except to the extent that liability
arises from the gross negligence of the Employer, and employees, officers or representatives of
the Employer; and

(d) such other insurances as set out in the Appendix.

14.2 Arrangements

All insurances shall conform with any requirements detailed in the Appendix. The policies shall be
issued by insurers and in terms approved by the Employer. The Contractor shall provide the Employer
with evidence that any required policy is in force and that the premiums have been paid. The
Contractor shall ensure that all such insurances (except the professional liability insurance referred to
in Sub-Clause 14.3 [Professional Indemnity Insurance]) waive all rights of subrogation against the
Employer, its Affiliates, its employees, its officers, and/or its representatives.

All payments received from insurers relating to loss or damage to the Works and Tasks (if any) shall be
held jointly by the Parties and used for the repair of the loss or damage or as compensation for loss or
damage that is not to be repaired.

14.3 Professional Indemnity Insurance

The Contractor shall effect and maintain at its own cost professional indemnity insurance cover with a
reputable insurance company with a limit of indemnity of not less than the amount stated in the
Appendix in respect of each and every claim against the Contractor in relation to the Works, Tasks (if
any), FM Services and its other professional obligations under the Contract (except in respect of
pollution, contamination and date recognition, in which case such insurance cover shall be in
aggregate) and without any unusual exclusions or limitations, from the Commencement Date and for
such period as stated in the Appendix to cover the Contractor's liabilities and obligations under the
Contract.

14.4 Failure to Insure

If the Contractor fails to effect or keep in force any of the insurances referred to in the previous Sub-
Clauses, or fails to provide satisfactory evidence, policies or receipts in respect thereof, the Employer
may, without prejudice to any other right or remedy, effect insurance for the cover relevant to such
default and pay the premiums due and recover the same as a deduction from any other monies due to
the Contractor.

51
15. INDEMNITIES

The Contractor will indemnify and hold harmless the Employer, its Affiliates, its employees, its officers
and its representatives to the fullest extent permitted by the Law, in respect of:-
bodily injury, sickness, disease or death, of any person whatsoever arising out of or in the course
(a)
of or by reason of the execution the Works and Tasks (if any), provision of the FM Services
and/or otherwise arising out of, in connection with or in relation to the performance or non-
performance of the Contractor's obligations under the Contract, except to the extent that any
such bodily injury, sickness, disease or death is attributable to any gross negligence or wilful act
by the Employer, its Affiliates, its employees, its officers and its representatives;

damage to or loss of any property, real or personal arising out of or in the course of or by reason
(b)
of the execution the Works and Tasks (if any), provision of the FM Services and/or otherwise
arising out of, in connection with, or in relation to the performance or non-performance of the
Contractor's obligations under the Contract, except to the extent that any such damage or loss
is attributable to any gross negligence or wilful act by the Employer, its Affiliates, its employees,
its officers and its representatives; and

any Third Party Claims arising out of, or in connection with, or in relation to the performance or
(c)
non-performance of the Contractor's obligations under the Contract.

16. RESOLUTION OF DISPUTES

16.1 Amicable Settlement

(a) Any dispute, controversy or claim arising out of or relating to this Contract (including any
amendments) including its formation, validity, binding effect, interpretation, performance, breach
or termination, and/or any non-contractual claims (each a "Dispute") must first be referred to the
respective Chief Executive Officers of the Parties (or, if they are not available, their appointed
deputies) ("Senior Officers") for resolution by mutual agreement between those Senior Officers.

(b) Either Party may initiate a Dispute resolution process by serving a written notice (a "Senior
Officer’s Notice") upon the other Party requiring that the Dispute be referred to the Senior
Officers.

(c) The Senior Officers must, within ten (10) days of the date of the Senior Officer’s Notice, meet in
good faith and use their best efforts to resolve the Dispute amicably between the Parties.

(d) If the Senior Officers fail to so resolve the Dispute within twenty-eight (28) days of the date of the
Senior Officer’s Notice then either Party may refer the Dispute to arbitration in accordance with
the provisions set out in Sub-Clause 16.2 [Arbitration].

16.2 Arbitration

(a) If either Party refers the Dispute to arbitration pursuant to Sub-Clause 16.1 [Amicable Settlement],
then the Dispute shall be finally resolved by arbitration in accordance with Sub-Clause 16.2
[Arbitration]. The Tribunal (which shall have the meaning given to it in the Rules (the " Tribunal"))
shall consist of a sole arbitrator. The arbitrator(s) shall be appointed in accordance with the Rules
in force as at the date of the Dispute.
All arbitration proceedings shall be carried out in accordance with the Rules in force as at the date
(b)
of the Dispute. The seat or legal place of arbitration shall be as stated in the Appendix and the
language of the arbitration shall be English. The governing law shall be the laws stated in the
Appendix.

Neither the existence of any Dispute nor any reference to arbitration in accordance with the
(c)
provisions of Clauses 16 shall relieve either Party from observing and performing its obligations
under the Contract, including the Contractor's obligation to carry out the Works, Tasks (if any) and
FM Services in accordance with the Contract.

52
17. SME ENGAGEMENT POLICY

17.1 The Contractor hereby acknowledges the importance and impact of the Project and hereby undertake
to fully comply with the terms and conditions of the Employer’s Policies on SME engagement set out in
the Employer's Requirements.

17.2 The Contractor shall comply with the SME participation level set out in the Employer's Requirements.
The Contractor must provide documentary evidence of compliance with the SME participation level to
the Employer.

17.3 If the information provided by the Contractor reveals that the Contractor has failed to meet the SME
participation level set out in the Employer's Requirements, the Employer may impose the penalty
stated in the Appendix.

17.4 The Contractor must permit the Employer to undertake an audit of the information provided to the
Employer under this clause, upon providing reasonable notice to the Contractor. The Employer shall
use best endeavours to minimise disruption to the Contractor’s business while conducting the audit.

18. OBLIGATIONS OF THE CONTRACTOR IN RESPECT OF THE EMPLOYER’S COMMERCIAL

PARTNERS

18.1 The Employer may enter into commercial arrangements with multiple suppliers of goods, equipment
and services as part of the sponsorship arrangements of the Event. Any Employer’s sponsorship
agreement will entitle Commercial Partners to provide proposals to the Contractor and its
Subcontractors for the supply of goods, equipment and services in accordance with the contract
specifications.

18.2 The Employer will provide the Contractor with details of all official Commercial Partners of Expo 2020
and the Contractor will be required to obtain proposals for the goods, equipment and services offered
by the Commercial Partners. Commercial Partners will evolve and be added on an ongoing basis. The
Employer shall be responsible for updating the list and providing contacts.

18.3 The Contractor shall be responsible for providing a procurement timetable and contacts for Contractor
that will be shared with Commercial Partners.

18.4 The Contractor will be responsible for ensuring that all Commercial Partner proposals comply with the
contract specifications, meet the programme requirements for the delivery of the project and are priced
competitively.

18.5 The Contractor will be responsible for the agreement and execution of subcontract or supply
agreements between the Contractor and the Commercial Partner. The Employer shall not be liable for
any default by Commercial Partners under the terms of their agreements nor will acceptance of a
Commercial Partners’ proposal constitute a Variation under Clause 10 [Variations and Claims].

18.6 The Contractor is required to notify the Employer within 14 days of the receipt of a Commercial
Partner’s proposal whether the proposal has been accepted or rejected. If the Contractor has chosen
to reject a Commercial Partner’s proposal the notification must state the reasons for the rejection and a
meeting must be scheduled between the Employer and the Commercial Partner to review to decision.

18.7 In the event that a Commercial Partner’s proposal is rejected the Contractor shall immediately submit
an alternative subcontractor or supplier for approval in accordance with the Contract requirements.

19. TASK ORDERS

19.1 The Employer may instruct the Contractor to carry out and complete any work as a Task Order under
this Clause 19 (“Task”). A Task Order shall include:

(a) a detailed description of the work in the Task;

(b) prices for each work activities (as applicable);

53
 (c) the commencement dates and Task Completion Dates for each Task;

(d) access date(s) to the Site;

(e) period within which defects in the work in the Task must be corrected;

(f) the amount of delay damages for the late completion of the Task;

(g) the interval for submission of revised Task Order programme schedules (if required);

(h) the total amount payable for the Task which shall be added to the Contract Price; and

(i) changes to the Employer's Requirements to reflect the work to be carried out for the Task.

19.2 . The amount payable for a Task under a Task Order shall be calculated as:

(a) a lump sum price using the rates or prices in the Pricing Documents; and/or

(b) the reasonably cost incurred by multiplying the quantities of work completed by the rates or prices
in the Pricing Documents,

as set out in the relevant Task Order and such amount shall be added to the Contract Price.

19.3 The scope of each Task as set out in the Task Order shall be deemed to be included and reflected in
the Employer's Requirements when a Task Order has been instructed by the Employer under this
Clause 19. The Contractor shall not start any work included in the Task until the Employer has
instructed it to carry out the Task and the Contractor shall carry out the work so that Task Completion is
on or before the Task Completion Date in accordance with the Contract and Task Order. No Task
Order shall be issued after the expiry of the FM Services Period. The Contractor shall notify the
Employer when the Task is, in the Contractor's opinion, complete in accordance with the Contract. The
Employer shall determine whether each Task has been completed in accordance with the Contract and
shall certify when each Task has been completed in accordance with the Contract.

19.4 If Task Completion is later than the Task Completion Date, the Contractor shall pay delay damages at
the rate stated in the Task Order from the Task Completion Date until Task Completion. However, the
total amount due under this Sub-Clause 19.4 shall not exceed the maximum amount of delay damages
for failure to complete the Task as stated in the relevant Task Order. The Contractor's liability for delay
damages under this Sub-Clause 19.4 shall not be the Employer's exclusive remedy for delay under the
Contract and shall continue notwithstanding any termination or suspension or otherwise of this
Contract.

19.5 At the request of the Employer, the Contractor shall submit a programme schedule for each Task Order
to the Employer's approval within the period stated in the Task Order. Such programme schedule and
any revised programme schedules shall be in accordance with Sub-Clause 7.3 [Programme Schedule]
save that all references to the term "Works" shall be replaced with "Tasks".

19.6 The Contractor shall promptly remedy at no cost to the Employer any outstanding work, defects or
damage arising due to the Contractor's Design, Materials, or workmanship or any part of the Tasks
otherwise not being in accordance with the Contract as notified by the Employer. If the Contractor fails
to remedy any defect or damage within such time as is notified and fixed by the Employer as referred
to in the Task Order or notified by the Employer, the Employer may (at its sole and absolute discretion)
carry out the work itself or by Others, in a reasonable manner and at the Contractor's cost and risk,
and the Contractor shall pay to the Employer the costs incurred by the Employer in remedying the
defect or damage on demand without any deduction or set-off.

20. OPTIONAL WORKS

20.1 The Employer may at its absolute discretion and sole option instruct the Contractor on or before the
relevant Nomination Date to start the relevant Optional Works. On receipt of such instruction, the
Contractor shall start the relevant Optional Works and the Contractor acknowledges and accepts that it
shall not be entitled to any extension of time or additional cost.

54
20.2 Notwithstanding the foregoing, the Employer may at its absolute discretion and sole option instruct the
Contractor after the relevant Nomination Date to start the relevant Optional Works and the Contractor
shall be entitled to:

(a) an extension to the Time for Completion for the relevant part of the Optional Works, and

(b) adjustment to the prices for each part of the Optional Works as stated in Pricing Documents,

that are subject to an instruction issued after the relevant Nomination Date by the Employer.

20.3 Upon receipt of a written instruction from the Employer to the Contractor to start each part of the
Optional Works under Sub-Clause 20.1, the following will apply:

(a) the Contractor shall carry out the work for the relevant part of the Optional Works in accordance
with this Contract;

(b) the total amount payable for the Optional Works shall be the fixed lump sum amount stated in the
Pricing Documents, subject to any adjustments in accordance with Sub-Clause 20.2;

(c) the Contractor shall submit a revised programme schedule including the instructed part(s) of the
Optional Works for the Employer's approval in accordance with Sub-Clause 7.3 [Programme
Schedule];

(d) the Contractor shall complete the work for each part of the Optional Works so that completion is
on or before the relevant Time for Completion for each part of the Optional Works, subject to
changes allowed under Sub-Clause 20.2; and

(e) the Contractor shall complete the work for each part of the Optional Works so the condition stated
for a Milestone Completion Date for each part of the Optional Works is achieved, subject to
changes allowed Sub-Clause 20.2.

20.4 The Contractor acknowledges and accepts that:

(a) all or any part of the Optional Works may be instructed by the Employer at its absolute discretion
and sole option;

(b) the Contractor shall not be entitled to payment for all or any part of the Optional Works unless the
Contractor has received an instruction from the Employer in accordance with this Clause 20
[Optional Works] to start such part of the Optional Works;

(c) the Contractor shall only be entitled to payment for all or any part of the Optional Works identified
in the instruction given by the Employer in accordance with this Clause 20 [Optional Works];

(d) the Contractor shall have no claim against the Employer nor will the Employer have any liability to
the Contractor for any Losses if the Contractor is not instructed to carry out all or any part of the
Optional Works; and

(e) the Employer reserves the right to instruct Others to carry out all or any part of the Optional
Works and not instruct the Contractor to carry out all or any part of the Optional Works.

55
 ANNEX 1

EMPLOYER'S REQUIREMENTS

[INSERT ALL DOCUMENTS INCLUDING GENERAL REQUIREMENTS, EMPLOYER'S POLICIES AND

SERVICE LEVEL AGREEMENT]

56
 ANNEX 2

CONTRACTOR'S PROPOSAL

[INSERT CONTRACTOR'S PROPOSAL. IF A CONTRACTOR PROPOSAL DOCUMENT WAS NOT

REQUESTED AND PROVIDED AT TENDER STAGE, INSERT "NOT USED"]

57
 ANNEX 3

PRICING DOCUMENTS

58
 SUB-ANNEX 1

PRICING SCHEDULE

Guidance Note to Procurement/Commercial Teams – the Contract Price could be based on

milestones payment or monthly valuation of works.
If it is based on milestone, then the description of the milestone must be clearly set out in the table
below. The Contractor will only be entitled to payment of the milestone amount on completion of the
milestone. The description of the milestone should be clear to ensure that the Employer could easily
determine when a milestone has been completed.

If payment is based on valuation of the works and the Contractor has provided estimated instalments
to show how the total of the Contract Price is broken down, then the value of the works will be
evaluated each month using the BOQ. The instalments will only be estimates as stated in the last
paragraph of 11.2 (i.e. the Contractor will not be paid the instalment amount for the item of work, and
will only be paid for the value of work actually executed so it is progress-based).

It is easier to administer the payment mechanism using milestones payments, so we recommend that
milestone payments should be used rather than valuation of the works using a BOQ. If BOQ is used,
then the breakdown of Contract Price should be carefully scrutinised.

1.0 Contract Price for the Works (excluding Optional Works)

It is agreed between the Parties that the Contract Price for the Works shall be a fixed lump sum
amount payable based on [[the milestone payments only on completion of each milestone] OR [value
of the works completed during the relevant payment application period using the Bill of Quantities in
this Annex for the valuation, the estimates of which are specified in the instalments] SELECT ONE]
set out below.

Payment1

Milestone Milestone Description Amount

CONTRACT PRICE

1
Need to ensure the milestones correspond with the Works Sections in the Appendix
59
 OR

[INSERT INSTALMENT TABLE]

2.0 Contract Price for the Optional Works

It is agreed between the Parties that the Contract Price for the Optional Works instructed in
accordance with Clause 20 [Optional Works] shall be a fixed lump sum amount payable based on
[[the milestone payments only on completion of each milestone] OR [value of the works completed
during the relevant payment application period using the Bill of Quantities in this Annex for the
valuation, the estimates of which are specified in the instalments] SELECT ONE] as set out below.

Payment2

Milestone for Optional Milestone Description Amount

Works

CONTRACT PRICE

2
Need to ensure the milestones correspond with the Optional Works Sections in the Appendix
60
 OR

[INSERT INSTALMENT TABLE]

3.0 Contract Price for FM Services (planned preventative maintenance)

It is agreed between the Parties that the overall amount payable to the Contractor for the planned
preventative maintenance elements of the FM Services as set out in the Employer's Requirements
shall be [the fixed monthly lump sum of [insert amount if there is no Section]] OR [the fixed monthly
lump sum for each Section as set out in the table below SELECT ONE].

Payment3

Section Monthly Lump Sum

CONTRACT PRICE

4.0 Contract Price for FM Services (reactive maintenance)

It is agreed between the Parties that the overall amount payable to the Contractor for the reactive
maintenance elements of the FM Services as set out in the Employer's Requirements shall be the
fixed lump sum calculated by multiplying the quantity of work by the rates and prices set out in Sub-
Annex 2 of this Annex 3.

3
Need to ensure the Sections correspond with the Appendix
61
 SUB-ANNEX 2

SCHEDULE OF RATES AND PRICES

The rates and prices set out below shall only be used for the valuation of Variations [and for the
valuation of the works completed - SELECT THIS IF THE CONTRACT PRICE IS NOT PAID
BASED ON MILESTONE PAYMENTS]. [Alternatively, BOQ could be included in this sub-annex.
If payments are to be milestone based, then the purpose of the BOQ will solely be for the valuation of
Variations. If payments are not milestone based, then a BOQ or other document setting out the
detailed breakdown of every item of work should be included to make it easy to value the works
completed during the billing periods]

Schedule of Rates and Prices for Materials

Item / Description Unit Rate

Schedule of Rates for Contractor's personnel and labour

Name Position Rate

62
 ANNEX 4

(FORM OF PERFORMANCE BOND)

63
 ANNEX 5

(FORM OF ADVANCE PAYMENT BOND)

64
 ANNEX 6

(FORM OF TASK ORDER)

65
 ANNEX 7

(FORMS OF COLLATERAL WARRANTIES)

66
 ANNEX 8

(FORM OF HIRED MATERIALS DIRECT

AGREEMENT)

67
 ANNEX 9

(FORMS OF CERTIFICATES)

68
 SUB-ANNEX 1

FORM OF TAKING-OVER CERTIFICATE

[INSERT]

69
 SUB-ANNEX 2

FORM OF PERFORMANCE CERTIFICATE

[INSERT]

70
 ANNEX 10

(PROGRAMME SCHEDULE)

71