CONTENTS

CLAUSE PAGE
1.0 Definitions
2.0 Articles of Agreement
3.0 General obligations of the Employer
4.0 General obligation of the Contractor
5.0 General obligations of the Architect
6.0 General obligations of the Quantity surveyor
7.0 Contract documents
8.0 Contract bills and contract price
9.0 Contractor’s site agent and other staff
10.0 Clerk of Works
11.0 Liability against injury to person and property
12.0 Insurance against injury to persons and property
13.0 Insurance of the Works (Contractor’s Liability)
14.0 Insurance of the Works (Employer’s Liability)
15.0 Insurance of the Works (Employer’s liability)
16.0 Insurance of the Works (work of alteration etc)
17.0 Performance bond
18.0 Programme of Works
10.9 Access to the Works
20.0 Possession of site and commencement of
21.0 Leveling and setting out
22.0 Architect’s Instructions
23.0 Specifications of goods, materials and workmanship
24.0 Samples and tests
25.0 Royalties and patent rights
26.0 Assignment
27.0 Subletting
28.0 Suspension of the Works by the Architect
29.0 Suspension of the Works by the Contractor
30.0 Variations
31.0 Nominated sub-contractors
32.0 Nominated suppliers
33.0 Work by other persons engaged by the Employer
34.0 Payments
35.0 Fluctuations
36.0 Extension of time
37.0 Loss and expense cause4d by disturbance of regular progress of the works
37.0 Termination of the contract by the Employer
39.0 Termination of the contract by the Contractor
40.0 Termination of the contract by either party
41.0 Practical completion and defects liability
42.0 Sectional completion
43.0 Damages for delay in completion
44.0 Antiquities and other objects of value
45.0 Settlement of disputes
Appendix
Form of performance bond by the Contractor
Form of payment bond by the Employer

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1.0 DEFINITIONS
1.1 Architect’s instructions – Means instructions issued by the Architect to the Contractor in
accordance with these conditions and includes instructions issued by other agents or the
Employer appointed under article 2.13 of the agreement

1.2 Bills of quantities of contract bills – means the document drawn up by the Quantity Surveyor
and priced by the Contractor to arrive at the contract price

1.3 Certificate of practical completion – means a certificate issued by the Architect to the
Contractor to signify that the Works have been carried out and completed in accordance with
the terms of this contract and that all adjustments to the contract price have been made in
accordance therewith

1.4 Final certificate – Means a certificate issued by the Architect to the Contractor signifying that
the Works have been carried out and completed in accordance with the terms of this contract
and that all adjustments to the contract price have been made in accordance therewith.

1.5 Contract period – Means the period agreed for the construction of the Works and stated in the
appendix to these conditions or extended in accordance therewith.

1.6 Contract price – Means the price for the Works as stated in article 2.5 of the agreement or as
adjusted in accordance with the contract.

1.7 Contract – Means the person or firm named in the articles or agreement with whom the
Employer had entered into contract and includes the legal successors in title and permitted
assigns.

1.8 Contractor’s equipment – Means all machinery, vehicles, tools, apparatus and other things
required for the carrying out and completion of the Works and the remedying of any defects

1.9 Employer - Means the person or firm named in the articles of agreement with whom the
Contractor has entered into contract and includes the legal successors in title and permitted
assigns.

1.10 Defect – Means any aspect of the Works which is not in accordance with the contract or to the
reasonable satisfaction of the Architect.

1.11 Force Majeure – means an event, occurrence or circumstance which;

1.1.1 Is beyond a party’s control,

1.11.2 Such party could not reasonably have foreseen before entering into contract,

1.11.3 Having arisen, such party could not reasonably have avoided or overcome,

1.11.4 And is not substantially attributable to either party.

1.12 Patent defect - Means a defect which a reasonable inspection by the Architect would disclose

1.13 Latent defect – Means a defect which a reasonable inspection by the Architect would not
disclose.

1.14 Final account – Means the document prepared by the Quantity Surveyor containing all the
adjustments to the contract price in accordance with the conditions of contract and which in his
opinion is the total value of the Works at final completion.

1.15 Materials and goods – Means things of all kinds and all supplies delivered by the Contractor,
sub-contractors, suppliers or by others for incorporation in the Works whether stored on site or
elsewhere but not yet incorporated in the Works

1.16 Prime Cost sum – Means a sum included in the contract bills for works or services to be
executed by a nominated sub-contractor, statutory or other authority or for materials or goods
to be obtained from a nominated supplier.

1.17 Provisional sum – Means a sum included in the contract bills for the execution of work which
cannot be entirely foreseen, defined or detailed at the time the tender documents are issued.

1.18 Site – Means the place or places where the permanent works are to be carried out and to

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 which materials and goods are to be delivered and includes workshops or other places where
materials, goods or work are being prepared for incorporation the Works either by the
Contractor, sub-contractors or by others.-

1.19 Works – Means the permanent works designed for the Employer by the Architect or other
agents for execution by the Contractor and as described in the contract documents. It shall
include work of all sub-contractors and suppliers as well as materials and goods supplied for
incorporation in the Works

1.20 All reference to days shall mean calendar days of 24 hours duration and shall include non
working days unless otherwise stated.

1.21 Unless inconsistent with the context, the masculine includes the feminine, the singular includes
the plural and vice versa, and persons shall include bodies corporate.

1.22 Titles and headings are for reference purposes only and do not form part of these conditions.
They shall not be taken into consideration in the interpretation of these conditions or the
contract.

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2.0 ARTICLES OF AGREEMENT

2.1 This agreement is made on the ………………… day of ……………… BETWEEN

………………………………………………………………………..

Of (or whose registered office is situated at ) ……………………… Kenya (hereinafter called “the
Employer”) of the one part

AND
…………………………………………………………

of (or whose registered office is situated at) ……………………………………………………………………….

(hereinafter called “the Contractor”) of the other part.

2.2. WHEREAS the Employer is desirous of

…………..………………………………………………………………………………………………………………………………………

……………………………………………………………………………………………………………………………………………………

……………………………………………………………………………………………………………………………………………………

hereinafter called “the Works” at ………………………………………………...……………………………………………….

On Land Reference No. ……………………………. And has caused drawings, bills of quantities and
specifications showing and describing the work to be done to be prepared by or under the directions of
an Architect.

2.3 AND WHEREAS the Contractor has supplied the employer with a priced copy of the said bills of
quantities (which copy is hereinafter referred to as “the contract bills”) AND WHEREAS the said
drawings numbered: ……………………………………………………………………………………………………………………

…………………………………………………………………………………………………………………………………………………..

…………………………………………………………………………………………………………………………………………………..
(hereinafter referred to as “the contract drawings”) the contract bills and the specifications have been
signed by or on behalf of the parties hereto.

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NOW IT IS HEREBY AGREED AS FOLLOWS:
2.4 For the consideration hereinafter stated, the Contractor shall upon and subject t o the conditions
annexed hereto carry out and complete the Works shown upon the contract drawings and described by
or referred to in the contract bills, the specifications and in the conditions of contract.

2.5 The Employer shall pay the Contractor the sum of Kshs. (in words) ………………………………………………

…………………………………………………………………………………………………………………………………………………….

……………………………………………………………………………………………………………………………………………………

(Kshs. ………………………………………………………………….. (hereinafter referred to as “the contract price”)

or such sums as shall become payable hereinafter at the times and in the manner specified in the said
conditions.

2.6 The Employer shall appoint a representative whose name shall be communicated in writing to the
Contractor, the Architect and the Quantity Surveyor. The powers and duties of the representative shall
be deemed to be the same as those of the Employer unless otherwise stated in writing.

2.7 The term “the Architect” in these conditions shall mean M/S …………………………………

of ………………………………Nairobi Kenya and in the event of his ceasing to be the Architect for the
purposes of this contract, the Employer shall appoint another person for that purpose. Such a person
shall not be a person against whom the Contractor shall object for reasons considered to be sufficient
by an Arbitrator appointed in accordance with clause 45.0 of these conditions.

2.8 No person subsequently appointed to be the Architect under this contract shall be entitled to disregard
or overrule any certificate, opinion, decision, approval or instruction given or expressed by the pervious
Architect.

2.9 The Architect shall appoint a representative whose name shall be communicated in writing to the
contractor, the Employer and the Quantity Surveyor. The powers and duties of the representative shall
be deemed to be the same as those of the Architect unless otherwise stated in writing.

2.10 The term “the Quantity Surveyor” in these conditions shall mean M/S …………………………………..

of ……………………. and in the event of his ceasing to be the Architect for the purposes of this
contract, the Employer shall appoint another person for that purpose. Such a person shall not be a
person against whom the Contractor shall object for reasons considered to be sufficient by an Arbitrator
appointed in accordance with clause 45.0 of these conditions.

2.11 No person subsequently appointed to be the Quantity Surveyor under this contract shall be entitled to
disregard or overrule any valuation, opinion, or assessment given or expressed by the pervious Quantity
Surveyor.

2.12 The Quantity Surveyor shall appoint a representative whose name shall be communicated in writing to
the Contractor, the Employer and the Architect. The powers and duties of the representative shall be
deemed to be the same as those of the Architect unless otherwise stated in writing.

2.13 The Employer may appoint Engineers, specialists and other consultants to tender professional services
under the contract. Where so appointed, such Engineer’s specialist and other consultants shall be
deemed, for the purpose of this contract, to be tendering such services under the delegated authority of
the Architect.

2.14 In the event of the need to appoint a replacement Architect, Quantity Surveyor, Engineer or other
specialist (whether named in this agreement r not) the Employer shall make such appointment as soon
as practicable after the need for such appointment arises

2.15 Where the contract does not incorporate bills of quantities, the terms “contract bills” and “bills of
quantities” wherever appearing shall be deemed deleted and replaced with the term “Schedule of rates”
as applicable.

2.16 AS WITNESS the hands of the said parties;

Signed by the said

………………………………………………………………………………………………………………………………….……………….
(Employer)

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 ……………………………………………………………………………………………………………………………………………………

In the presence of:

Name: ………………………………………………………………………………….……………………………………………………..

Address: ………………………………………………………………………………………………………………………………………

Signed by the said:

…………………………………………………………………………………………………………………………………………………….
(Contractor)

…………………………………………………………………………………………………………………………………………………….

In the presence of:

Name: ………………………………………………………………………………………………………………………………………….

Address: ……………………………………………………………………………………………………………………………………...

2.17 CAUTION
The words ‘Architect’, Quantity Surveyor’ and ‘Engineer’ are prescribed and protected by statute for
the use of persons registered as such under the relevant laws. If this document is used by other
than such a registered person, the references appropriate thereto must be deleted or amended.

2.18 NOTE

The Contract shall be under seal;

2.18.1 When the articles of association of a limited company which is a party to the contract so
require, or

2.18.2 When either party is a non-trading corporation such as a hospital or school board.

2.18.3 If the contract is to be executed under seal delete “as witness the hands of” and insert
“signed and sealed by”.

CONDITIONS OF CONTRACT
3.0 GENERAL OBLIGATIONS OF THE EMPLOYER

The Employer shall upon the execution of the agreement

3.1 Clearly identify the site upon which the Works will be carried out and the access thereto

3.2 Confirm that the said site is in his legal possession and that it free from all material
encumbrances.

3.3 Ascertain and confirm to the Contractor that the proposed works comply with all
statutory requirements, local authority planning and design by laws or regulations as the
case may be,

3.4 Make adequate financial arrangements to ensure that all payments to the Contractor
under these conditions are made within the periods and in the manner stipulated in the
contract and shall provide such evidence to the Contractor on request.

4.0 GENERAL OBLIGATIONS OF THE CONTRACTOR

The Contractor shall upon the execution of the agreement;

4.1 Carry out, superintend upon and complete the Works and rectify any defects appearing
therein in accordance with the contract and to the reasonable satisfaction of the
Architect, unless it is legally or physically impossible to do so.

4.2 Give a written notice to the Architect specifying any discrepancy, ambiguity or
divergence in these conditions, the contract drawings, the contract bills or specifications
immediately such discrepancy or divergence is detected. The Architect shall thereupon
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 issue instructions in regard thereto as soon as is practicable.

4.3 Not withstanding any obligation of the Architect to the Employer and whether or not the
Employer appoints a Clerk of Works, the Contractor shall remain wholly responsible for
carrying out and completing the Works in all respects in accordance with the contract
and whether or not the Architect or the Clerk of Works, if appointed, being prepared to
inspect or approve the same or otherwise.

5.0 GENERAL OBLIGATIONS OF THE ARCHITECT

The Architect shall upon the execution of the agreement;

5.1 Issue comprehensive drawings and all necessary details and other information required
by the Contractor for the proper carrying out of the Works.

5.2 Expeditiously supply information, instructions and interpretations required or requested

by the Contractor to ensure the timely carrying out of the Works.

5.3 Issue all necessary approvals and certificates and take other required action as soon as
practicable.

5.4 Where the Architect is required under the contract to exercise his discretion by giving his
decision, opinion, consent or approval or by taking any other action which may affect
the rights and obligations of the Employer or the Contractor, he shall exercise such
discretion impartially within the terms of the contract.

6.0 GENERAL OBLIGATIONS OF THE QUANTITY SURVEYOR

The Quantity Surveyor shall, upon the execution of the agreement;

6.1 Expeditiously provide the necessary advice, opinion, assessment, measurements,

computations, or valuations as the case may be of any matter required of him under
these conditions, while giving advice, opinion, assessment, measurements, computations
or valuations, he shall carry out the task impartially within the terms of the contract.

7.0 Contract Documents

7.1 The Contract documents for use in the carrying our of the works shall be:-

7.1.1 The agreement and these conditions

7.1.2 Contract drawings as listed in the articles of agreement.

7.1.3 Contract bills of quantities or schedule or rates as applicable.

7.1.4. Specifications as separately supplied or as contained in he contract bills.

7.2 All the original contract documents shall remain in the custody of the Architect or the
Quantity Surveyor during the construction period. They shall be available at all
reasonable times for the inspection for the Employer or the Contractor. Upon the issue
of the final certificate, the original contract documents shall be handed over to the
Employer

7.3 Upon the execution of the contract, the Employer shall register the agreement with the
relevant statutory authority and pay all fees, charges, taxes and all costs arising there
from.

7.4 Immediately after the execution of the contract, the Architect or the Quantity Surveyor
shall furnish the Employer with one certified set of all contract documents.

7.5 The Architect and the Quantity Surveyor shall, without charge to the Contractor, furnish
him with:-

7.5.1 A registered counterpart of the agreement and these conditions.

7.5.2 One certified copy of the contract bills, where applicable.

7.5.3 Three certified copies of all contract drawings.

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 7.5.4 Two certified copies of the unpriced bills of quantities where applicable

7.5.5. Two certified copies of the contract specifications, if not included in 7.5.4.
above.

7.6 So soon as is practicable after the execution of this contract, the Architect shall, without
charge to the Contractor, furnish him (unless he shall have been previously necessary
for use in carrying out the Works. Provided that nothing contained in the said
descriptive schedules or other documents shall impose any obligation beyond those
imposed by the contract documents.

7.7. As and when necessary the Architect, without charge to the Contract, shall furnish him
with three copies of such further drawings or details as are reasonably necessary either
to explain or amplify the contract drawings, or to enable the Contractor to carry out and
complete the Works in accordance with these conditions

7.8 The Contractor shall keep one copy of the contract drawings, a copy of the unpriced
bills of quantities, one copy of the specifications descriptive schedules or other like
documents referred to in sub-clause 7.5 of this condition, and one copy of the
drawings, details and descriptive schedules referred to in sub-clauses 7.6 and 7.7 of this
condition upon the Works so as to be available to the Architect or his representatives at
all reasonable times

7.9 Upon final payment under clause of these conditions, the Contractor, shall, if so
requested by the Architect, forthwith return to the Architect all drawings, details,
specifications, descriptive schedules and other documents of a like nature which bear
the architect’s name.

7.10 The contract documents are to be taken as mutually explanatory of one another. For
the purposes of interpretation, the priority of the documents shall be in accordance
with the following sequence;

7.10.1 The letter of award of contract

7.10.2 The agreement and these conditions

7.10.3 The bills of quantities

7.10.4 The specifications

7.10.5 The drawings

7.10.6 The schedules and other documents forming part of the contract.

7.11 None of the documents hereinbefore mentioned shall be used by the Contractor or the
employer for any purpose other than this contract and neither the Employer, the
Architect not the Quantity Surveyor shall divulge or use any of the prices in the contract
bills except for the purposes of this contract.

8.0 CONTACT BILLS AND CONTRACT PRICE

8.1 The Employer shall be deemed to have provided to the Contractor before the
submission of tender all available data concerning the site and its surroundings. The
Contractor shall be responsible for interpreting such data

8.2 Notwithstanding the above, the Contractor shall be deemed to have obtained all
necessary information which may affect the tender or the Works and to have satisfied
himself as to the correctness and sufficiency of his tender for the carrying out of the
works.

8.3 The quality and quantity of the work included in the contract price shall be deemed to
be that which is set out in the contract bills. The bills, unless otherwise expressly stated
therein, shall be deemed to have been prepared in accordance with the principles of the
latest edition of the Standard Method of Measurement of Building Works for East Africa.

8.4 Any error in description or in quantity or any omission of items from the Contract bills or
specifications shall not vitiate this contract but shall be corrected and deemed to be a
variation required by the Architect.

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 8.5 The contract price shall not be adjusted or altered in any way whatsoever otherwise
than in accordance with the express provisions of these conditions.

8.6 Subject to sub-clause 8.4 of this condition, any error whether arithmetical or not in the
computation of the contract price shall be deemed to have been accepted by the parties
hereto.

9.0 CONTRACTOR’S SITE AGENT AND OTHER STAFF

9.1 The Contractor shall constantly keep upon the Works a competent site agent who is
able to understand and interpret the contract documents and to superintend upon the
Works. The site agent shall be literate in the English language. Any instructions given to
him by the Architect shall be deemed to have been issued to the Contractor

9.2 The Contractor shall make his own arrangements for the engagement of all labour and
other workmen, both local or otherwise, required for the Works and shall comply with
statutory, industrial or other rules and regulations governing the employment and
working terms and conditions of labour.

9.3 The Contractor shall be responsible for the observance, by all sub-contractors (whether
nominated or not) of all the foregoing provisions.

9.4 The Architect may (but not unreasonably or vexatiously) issue instructions requiring the
dismissal from the Works of any person employed thereon.

10.0 CLERK OF WORKS

10.1 The Employer shall be entitled to appoint a Clerk of Works whose primary duty shall be
to act as inspector of the Works on behalf of the Employer under the direction of the
Architect. The Contractor shall afford every reasonable facility for the performance of
that duty.

10.2 Where a Clerk of Works is appointed, the Employer may also appoint other persons to
assist the Clerk of Works in the exercise of his functions. Directions given by the
assistants shall be deemed to be those of the Clerk of works unless otherwise stated in
writing.

10.3 The employment f a Clerk of Works shall not relive the Contractor from any of his duties
and obligations under the contract.

10.4 Directions given by the clerk of Works in writing to the Contractor or to his site agent
shall be deemed to be Architect’s instructions in respect of;

10.4.1 The interpretation of Architect’s instructions, drawings, specifications or

bills of quantities.

10.4.2 The removal from the site of any work, materials or goods which are not
in accordance with the contract.

10.4.3 Matters of urgency involving the safety or protection of persons or

property, and

10.4.4 Any other matters in respect of which the Architect is expressly

empowered by these conditions to issue instructions and on which the
Architect has authorized in writing the Clerk of Works so to act.
10.5 Any other directions given by the Clerk of works to the Contractor or the site agent shall
be of no effect.

11.0 LIABILITY AGAINST INJURY TO PERSONS AND PROPERTY

11.1 The Contractor shall be liable for and shall indemnify the Employer against any
expenses, liability, loss, claim or proceedings whatsoever arising under any statute or at

9
 common law in respect of personal injury to or the death of any person arising out of
or in the course of or caused by the carrying out of the Works, unless the injury or
death is due to any act or neglect of the Employer or of any person for whom the
Employer is responsible.

11.2 Except for such loss or damage as is at the risk of Employer under clause 14.0 or clause
15.0 of these conditions (if applicable), the Contractor shall be liable for an shall
indemnify the Employer against any expense, liability, loss, claim or proceedings as such
injury or damage arises out of or in the course of or by reason of the carrying out of the
works. Provided always that the injury or damage is due to any negligence, omission or
default of the Contractor his servants or agents or of any sub-contractor hi servants or
agents.

12.0 INSURANCE AGAINST INJURY TO PERSONS AND PROPERTY

12.1 Without prejudice to his liability to indemnify the Employer under clause 11.0 of these
conditions, the Contractor shall maintain and shall cause any sub-contractor to maintain;

12.1.1. Such insurances as are necessary to cover the liability of the Contractor or
as the case may be, of such sub-contractor, in respect of personal injuries
or deaths arising out of or in the course of or caused by the carrying out
of the Works, and

12.1.2 Such insurances as are necessary to cover the liability of the Contractor or
as the case may be, of such sub-contractor, in respect of injury or
damage to property real or personal arising out of or in the course of or
by reason of the carrying out of the works and caused by any negligence,
omission or default of the Contractor, his servants or agents or, as the
case may be, of such sub-contractor, his servants or agents.

12.2 As and when he is reasonably required to do so by the Architect, the Contractor shall
produce and shall cause any sub-contractor to produce for inspection by the employer,
documentary evidence that the insurances required by sub-clause 12.1.1 and 12.1.2.
are properly maintained but, on occasion, the Employer may require to have produced
for his inspection, the policy or policies and the receipts in question.

12.3 The Contractor shall maintain in the joint names of the Employer and the Contractor,
insurances for such amounts of indemnity as may be specified by way of provisional
sum items in the contract bills in respect of any expenses, liability, loss, claim, or
proceedings which the Employer may incur or sustain by reason of damage to any
property other than the Works caused by collapse, subsidence, vibration, weakening or
removal of support or lowering of ground water arising out or in the course of or by the
carrying out of the Works, excepting damage.

12.3.1. Caused by the negligence, omission or default of the Contractor, his

servants or agents or any sub-contractor, his servants or agents.

12.3.2 Attributable to errors or omissions in the designing of the works.

12.3.3. Which can reasonably be foreseen to be inevitable having regard to the

nature of the work to be executed of the manner of its execution.

12.3.4. Which is at the risk of the Employer under clause 14.0 or clause 15.0 of
these conditions (if applicable).

12.3.5 Arising from a nuclear risk or war risk.

12.4 The insurances shall be placed with insurers to be approved by the Employer. The
Contractor shall deposit with the Quantity surveyor the policy or policies and the
receipts in respect of premiums paid.

12.5 Should the Contractor or any sub-contractor make default in insuring or in continuing to
insure as provided in sub-clauses 12.1.1., 12.1.2 and 12.3 of these conditions, the
Employer may himself insure against any risk with respect to which the default shall
have occurred and may deduct a sum equivalent to the amount paid by him in respect
of premiums from any money due to become due to the Contractor.

13.0 INSURANCE OF THE WORKS (CONTRACTOR’S LIABILITY)

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 13.1 In the erection of new buildings, if the Contractor is required by the contract to insure
the Works, he shall before the commencement of the works, procure insurances in the
joint names of the Employer and the Contractor against loss and damage by fire,
earthquake, fire following earthquake, lightning, explosion, storm, tempest, flood,
bursting or overflowing of water tanks, apparatus or pipes, aircraft and other aerial
devices or articles dropped there from riot and civil commotion for the full value thereof
(plus the percentage, if any named in the appendix to these conditions to cover
professional fees). The insurances shall cover all work executed and all unfixed
materials and goods delivered to, placed on or adjacent to the Works and intended
therefore but excluding temporary buildings and equipment owned or hired by the
Contractor of any sub-contractor. He shall keep such work, materials and goods so
insured until practical completion of the Works.

13.2 Such insurances shall be with insurers approved by the employer. The Contractor shall
deposit the policy or policies and the receipts in respect of premiums paid with the
Quantity Surveyor. Should the Contractor make default in insuring or continuing to
insure as aforesaid, the Employer may himself insure against any risk in respect of
which the default shall have occurred and deduct a sum equivalent to the amount paid
by him in respect of premiums from any money due or to become due to the Contractor

13.3 Provided always that if the Contractor shall independently of his obligations under this
contract maintain a policy of insurance which covers (inter alia) the said work, materials
and goods against the aforesaid contingencies to the full value thereof (plus the
aforesaid percentage, if any), then the maintenance by the Contractor of such policy
shall if the Employer’s interest is endorsed thereon, be a discharge of the Contractor’s
obligation to insure in the joint names of the Employer and the Contractor

13.4 As long as the Contractor is able to produce for inspection documentary evidence that
the said policy is properly endorsed and maintained as and when he is reasonably
required to do so by the Architect, then the Contractor shall be discharged from his
obligation to deposit a policy or policies and receipts with the Quantity surveyors but on
any other occasion, the Employer may require to have produced for his inspection the
policy and receipts in question.

13.5 Upon settlement of any claim under the insurance aforesaid, the Contractor with due
diligence shall restore work damaged, replace or repair any unfixed materials or goods
which have been destroyed or injured, remove and dispose or any debris and proceed
with the carrying out and completion of the Works. All money received from such
insurances (less only the aforesaid percentage, if any) shall be aid to the Contractor by
installments under certificates of the Architect issued at the periods of interim
certificates stated in clause 34.0 of these conditions. The Contractor shall not be entitled
to any payment in respect of the restoration of work damaged, the replacement and
repair of any unfixed materials or goods, and the removal and disposal of debris other
than the money received under the said insurances.

14.0 INSURANCE OF THE WORKS (EMPLOYER’S LIABILITY)

14.1 In the erection of new buildings, if the Employer is required by the contract to insure
the Works, all work executed and all unfixed materials and goods, delivered to, placed
on or adjacent to the Works and intended therefore but excluding temporary buildings
and equipment owned or hired by the Contractor or any sub-contractor shall be at the
sole risk of the Employer as regards loss or damage by fire, earthquake, fire following
earthquake, lightening, explosion, storm, tempest, flood, bursting or overflowing of
water tanks, apparatus or pipes, aircraft and other aerial devices or articles dropped
there from, riot and civil commotion. The Employer shall maintain a proper policy of
insurance against such risks until practical completion of the Works.

The policy or policies and the receipts for the last premium paid for renewal shall, upon
request, be produced for inspection by the Contractor.

14.2 If the Employer shall at any time fail upon request to produce any receipt showing such
a policy as aforesaid to be effective, the Contractor may in the name and on behalf of
the Employer, insure all work executed and all unfixed materials and goods as aforesaid
against loss or damage occasioned by the said contingencies and shall, upon production
of the receipt for any premium paid by him be entitled to have its amount added to the
contract prices

14.3 If any loss or damage affecting the Works or any part thereof, or any such unfixed

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 materials or goods is occasioned by any one or more of the said contingencies, then,

14.3.1 The occurrence of such loss or damage shall be disregarded in

computing any amounts payable to the Contractor under or by virtue of
the contract, and

14.3.2. The Contractor with due diligence shall restore work damaged, replace
or repair any unfixed materials or goods which have been destroyed or
injured, remove and dispose of any debris and proceed with the
carrying out and completion of the Works

14.3.3. The restoration of work damaged, the replacement and repair of

unfixed materials and goods and the removal and disposal of debris
shall be deemed to be a variation required by the Architect.

15.0 INSURANCE OF WORKS (WORKS OF ALTERATIONS ETC)

15.1 In works of alterations, repair or extensions, the Employer shall solely take the risk for the
existing structures together with all the contents thereof owned by him or for which he is
responsible and the Works and all unfixed materials and goods intended for, delivered to
and placed on or adjacent to the works and intended therefore but excluding temporary
buildings and equipment owned or hired by the Contractor or any sub-contractor.

The Employer shall maintain proper policy of insurance against the risks or loss or damage
by fire, earthquake, fire following earthquake, lightning, explosion, storm, tempest, flood,
bursting or overflowing of water tanks, apparatus or pipes, aircraft and other aerial devices
or articles dropped there from, riot and civil commotion until practical completion of the
Works. The policy and the receipts for the lat premium paid for the renewal of the
insurance cover shall, upon request, be produced for inspection by the Contractor.

15.2 If the Employer shall at any time fail, upon request, to produce any receipt showing such a
policy as aforesaid to be effective, the Contractor may in the name and on behalf of the
Employer insure the existing structures together with all the contents thereof, the Works
and all unfixed materials and goods as aforesaid against loss or damage occasioned by the
said contingencies. He shall have such right of entry and inspection as may be required to
make a survey and inventory of the existing structures and contents therein. Upon
production of receipts for any premium paid by him, the Contractor shall be entitled to
have its amount added to the contract price.

15.3 If any loss or damage affecting the Works or any part thereof or any such unfixed
materials or goods is occasioned by any one or more of the said contingencies, then;

15.3.1 The occurrence of such loss or damage shall be disregarded in computing

any amounts payable to the Contractor under or by virtue of this contract.

15.3.2 If the contract is not terminated in accordance with sub-clause 40.3, the
Contractor with due diligence shall reinstate or make good all loss or damage
and proceed with the carrying out and completion of the Works.

15.3.3 The Architect may issue instructions requiring the Contractor to remove and
dispose of any debris, and

15.3.4 The reinstatement and making good of such loss or damage and (when
required) the removal and disposal of debris shall be deemed to be a
variation required by the Architect

16.0 PERFORMANCE BOND

16.1 Before commencing the works, the Contractor shall provide one surety who must be an
established bank or insurance company to the approval of the Employer and who will be
bound to the Employer in the sum equivalent to ten percent (10%) of the contract price
for the due performance of the Contract until the certified date of practical completion. No
payments shall be made to the Contractor before the said bond is provided

16.2 Where stated in the contract, the Employer shall be provided one surety who must be an
established bank or insurance company to the approval of the Contractor who will be
bound to the Contractor in the sum equal to one half of the limit of retention fund for the
due performance of the Employer’s payment obligations until the final certificate is issued
and honoured.

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17.0 COMPLIANCE WITH REGULATIONS NOTICES, ETC

17.1 The Contractor shall comply with and give all notices required by any enactment or
regulation of any statutory or other authority of any public service company which had any
jurisdiction with regard to the Works or with whose system the same are or will be
connected. The Contractor, before making any variation from the contract drawings,
specifications or the contract bills necessitated by such compliance, shall give to the
Architect written notice specifying and giving the reason for such variation and the
Architect Amy issue instructions in regard thereto. If within fourteen days of having given
the said notice the Contractor does not receive any instructions in regard to the matters
therein specified, he shall proceed with the work complying with the enactment or
regulations in question and any variation thereby necessitated shall be deemed to be a
variation required by the Architect.

17.2 The employer shall be responsible for obtaining all planning and similar permits and
approvals and shall serve all statutory and other notices and shall pay and indemnify the
Contractor against liability in respect of any fees or charges (including any rates or taxes)
legally demandable under any enactment or regulation of any statutory or other authority
or any public service company in respect of the Works and the site upon which the works
are to be constructed

17.3 The Employer’s responsibility and liability under sub-clause 17.2 herein shall subsist
irrespective of whether or not such fees, charges, rates, taxes etc are covered by way of
prime cost of provisional sums or arise as a result of an Architect’s instructions issued
under clause 22.0 of these conditions.

17.4 In the event of the Employer failing to comply with the provisions of sub-clause 17.2
herein, the Contractor may pay such fees, charges, rates, taxes, etc. Any costs or
expenses incurred by the Contractor in making such payments shall be assessed by the
quantity surveyor and added to the contract price and if an interim certificate is issued
after the date of assessment, the said amount shall be added to the amount which would
otherwise be stated as due in such a certificate.

18.0 PROGRAMME OF WORKS

18.1 The Contractor shall, within the period stated in the appendix to these conditions, submit
for the approval of the Architect a programme of Works in such form and details as the
Architect shall reasonably prescribe.

18.2 Should actual progress not match the programme, the Contractor shall amend the
programme accordingly and submit the revisions to the Architect. In the event that a
Contractor fails to submit or amend a programme within a reasonable time after being so
instructed by the Architect, the Employer may withhold half of the amount due to the
Contractor in subsequent payment certificates until the fault is rectified

18.3 Neither the submission of the programme by the Contractor not its approval by the
Architect shall in any way relive the Contractor from any of his duties and obligations
under the contract.

19.0 ACCESS TO THE WORKS

19.1 The Employer, the Architect, Quantity Surveyor, Engineers and other agents of the
Employer shall, at all reasonable times, have access to the works and to the workshops or
other places where work is being prepared for the contract.

19.2 Where work is to be prepared in workshops or other places of a subcontractor (whether

nominated or not) the Contractor shall as far as possible secure a similar right of access to
those places for the persons mentioned above.

20.0 POSSESSION OF SITE AND COMMENCEMENT OF WORKS

20.1 Within the period stated in the appendix to these conditions, the Employer, or the
Architect on his behalf, shall five possession of site to the Contractor and such access as
may be necessary to enable the Contractor to commence and proceed with the Works in
accordance with the contract.

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 20.2 On or before the date for commencement stated in the appendix to these conditions, the
Contractor shall commence the execution of the Works and shall regularly and diligently
proceed with the same and complete on or before the date stated in the appendix to these
conditions as the date for practical completion.

21.0 LEVELLING AND SETTING OUT

21.1 The employer shall be responsible for the proper identification of the site and the
establishment of boundary pegs and beacons and the correctness of the datum levels on
which the Architect’s drawings are based. Such pegs, beacons and datum levels shall be
identified to the Contractor by the Employer or by the Architect on his behalf.

21.2 The Contractor shall take all necessary precautions to preserve such pegs, beacons and
datum levels and should they become disturbed he shall replace or reinstate them at his
cost.

21.3 The Architect shall determine any levels which may be required for the execution of the
Works and shall furnish to the Contractor, by way of accurately dimensioned drawings,
such information as shall enable the Contractor to set out the Works

21.4 The Contractor shall provide all necessary equipment and assistance to enable the
accuracy of the setting out to be checked by the Architect. Checking of the setting out
shall not relive the Contractor of his responsibility for the correctness thereof. Unless the
Architect shall otherwise instruct, the Contractor shall be responsible for and entirely at his
own cost corre4ct any errors arising from his own inaccurate setting out. If the Architect
otherwise instructs, an appropriate deduction shall be made from the contract price to
reflect the cost of such errors.

22.0 ARCHITECT’S INSTRUCTIONS

22.1 The Contractor shall (subject to sub-clauses 22.3 and 22.4 of these conditions) forthwith
comply with all instructions issued to him by the Architect in regard to any matter in
respect of which the Architect is expressly empowered by these conditions to issue
instructions.

22.2 If within fourteen days after receipt of a written notice from the Architect requiring
compliance with an instruction the Contractor does not comply therewith, then the
Employer may employ and pay other persons to execute any work whatsoever which may
be necessary to give effect to such instructions.

All costs incurred in connection with such employment shall be recoverable from the
Contractor by the employer as a debt of any be deducted by him from any money due or
to become due to the Contractor under this contract.

22.3 Upon receipt of what purports to be an instruction issued to him by the Architect, the
Contractor may request the Architect to specify in writing the provisions of these
conditions which empower the issue of the said instruction. The Architect shall comply with
any such request, and if the Contractor shall thereafter comply with the said instructions,
then the issue of the same shall be deemed for all the purposes of this contract to have
been empowered by these conditions.

22.4 All instructions issued by the Architect shall be in writing. Any instruction issued orally shall
be of no immediate effect, but shall be confirmed in writing by the Contractor to the
Architect within seven days. If not dissented from in writing by the Architect within seven
days from receipt of the contractor’s confirmation, the oral instruction shall take effect as
from the expiration of the latter said seven days provided always that;

22.4.1 If the Architect shall within seven days of giving such an oral instruction
himself confirm the same in writing, then the Contractor shall not be obliged
to confirm as aforesaid and the said instruction shall take effect as from the
date of the Architect’s confirmation.

22.4.2 If neither the Contractor not the Architect shall confirm such an oral
instruction in the manner and at the time aforesaid, but the Contractor shall
nevertheless comply with the same, then the Architect may confirm the
same in writing at any time prior to the issue of the final certificate and the
said instruction shall there upon be deemed to have taken effect on the sate
on which it was issued.

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 22.5 Any instructions given directly by the Employer to the Contractor shall be of no immediate
effect but shall be confirmed by the Architect within seven days, failing which the
Contractor shall confirm the same in writing in the same manner as is provided for in sub-
clause 22.4. If confirmed by the Contractor, such instructions shall be deemed to be
Architect’s instructions.

23.0 SPECIFICATION OF GOODS, MATERIALS AND WORKMANSHIP

23.1 All materials, goods and workmanship shall be so far as procurable be of the respective
kinds and standards described in the contract bills, the drawings and the specifications.

23.2 The Contractor shall, upon request by the Architect, furnish him with trade catalogues or
manufacturer’s brochures to prove that the materials and goods comply with sub-clause
23.1 of this condition.

23.3 If the Contractor shall fail to obtain materials or goods of the respective kinds and
standards shown in the contract drawings and described or referred to in the contract bills
and specifications, he shall forthwith give to the Architect a written notice specifying the
non-availability. The Architect shall within fourteen days of receipt or such notice issue
instructions in regard thereto.

23.4 Where not so described, the materials, goods and workmanship shall be to a standard
appropriate to the Works and to the reasonable satisfaction of the Architect.

23.5 Notwithstanding the generality of his powers, if any work, materials or goods are not in
accordance with the contract, the Architect may in his discretion allow any or all such
work, materials or goods to remain in the works. If so allowed, an appropriate deduction
shall be assessed by the Quantity surveyor and the contract price adjusted accordingly.

23.6 The Architect may issue instructions requiring the Contractor to open up for inspection any
work covered up or to arrange for or carry out tests of any materials or goods (whether or
not already incorporated in the Works) or of any executed work. The cost of such opening
up of testing, together with the cost of making god in consequence thereof, shall be added
to the contract price unless provided for in the contract bills or unless the inspection of test
shows that the work, materials or goods are not in accordance with the contract.

23.7 Where materials or goods are specified by a trade or brand name, the Contractor shall not
be liable for any latent defects therein, if any. The Contractor shall be deemed to have
assigned to the Employer any right of action that may exist against the supplier or the
manufacturer in case of failure arising from such defects.

23.8 The Architect may issue instructions in regard to the removal from the site of any work,
materials or goods which are not in accordance with the contract.

24.0 SAMPLES AND TESTS

24.1 The Contractor shall arrange for and furnish to the Architect, samples of any materials,
goods or workmanship and perform any tests that may be called for by the Architect for
his approval. Any samples and tests approved by the Architect shall be deemed to
represent the minimum standard for the part of the Works to which they apply.

24.2 Where the Contractor fails to comply with the provisions of sub-clause 24.1, the Architect
may arrange with other parties to provide the requisite samples or carry out the necessary
tests. The Contractor shall be obliged to conform with the standards set by such samples
or tests. All costs and expenses incurred in the procurement of such samples and tests
shall be borne by the Contractor.

25.0 ROYALTIES AND PATENT RIGHTS

25.1 All royalties or other sums payable in respect of the supply and use of any patented
articles, processes or inventions in carrying out the Works s described by or referred to in
the contract bills and the specifications, shall be deemed to have been included in the
contract price.

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 25.2 The Contractor shall indemnify the employer from and against all claims, proceedings,
damages, costs and expenses which may be brought or made against the Employer or to
which he may be put by reason of the Contractor infringing or being held to have infringed
any patent rights in relation to any such articles, processes or inventions.

25.3 Where the Contractor shall supply and use in carrying out the Works any patented articles;
processes or inventions in compliance with Architect’s instructions, the Contractor shall not
be liable in respect of any infringement or alleged infringement of any patent rights in
relation to any such articles, processed and inventions. All royalties, damaged or other
money which the Contractor may be liable to pay to the persons entitled to such patent
rights shall beaded to the contract price.

26.0 ASSIGNMENT

26.1 Neither the Employer not the Contractor shall, without the written consent of the other,
assign this contract. Provided that the approval of assignment shall not relive either party
of his obligations for the part of the contract already performed or the part not assigned.

26.2 It shall be a condition of any assignment that the employment of any assigns shall
terminate immediately upon the termination for whatever reason) of the Contractor’s
employment under the contract

27.0 SUBLETTING

27.1 The Contractor shall not sublet the whole of the Works without the written consent of the
employer and the Architect. He may sub-let part of the Works upon giving notice to the
Architect.

27.2 The Contract or shall remain liable under the contract for all work sublet under this clause
as if he had himself carried out such work.

27.3 It shall be a condition in any sub-letting, that the employment of the sub-contractor shall
terminate forthwith upon the termination (for whatever reason) of the Contractor’s
employment under the contract.

28.0 SUSPENSION OF THE WORKS BY THE ARCHITECT

28.1 The Architect may issue instructions to postpone the carrying out of any work included in
this contract.

28.2 The Architect may issue instructions to suspend the carrying out of any work included in
this contract, if;

28.2.1 The Contractor fails to comply with an Architect’s instructions requiring the
dismissal from the Works of any person employed thereon, or

28.2.2 There arises any matters of urgency involving the safety or protection of
persons or property, or

28.2.3 The Contractor fails to comply with the contract provisions to insure the
Works, or

28.2.4. The Contractor fails to comply with an Architect’s instructions in regard to

the removal from the site of any work, materials or goods which are not in
accordance with the contract, or

28.2.5 The Contractor assigns the contract or sub-lets the whole of the Works
without the written consent of the Employer

28.3 Except for suspension under sub-clause 28.2.2, all other instructions to suspend shall be
accompanied by a seven days notice.

28.4 Instructions for postponement or suspension shall be copied to the Employer

28.5 The suspension shall not take effect if the matter occasioning the notice is rectified within
the period of the notice. Such suspension shall cease immediately the matter occasioning
the notice is rectified.

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 28.6 Should the Works be suspended under this clause, the Contractor shall be liable for all
expenses arising there from.

29.0 SUSPENSION OF THE WORKS BY THE CONTRACTOR

29.1 The Contractor may suspend the carrying out of the Works, if;

29.1.1. He has not received a payment certificate which he applied for in accordance
with Clause 34.0 of these conditions and the default continues for thirty days
after expiry of the stated period, or

29.1.2. He has not received payment within the period for honouring certificates
provided in clause 34.0 of these conditions and the default continues for
thirty days after expiry of the stated period, or

29.1.3 The Contractor notified the Architect that it has become impossible or
impracticable to produce goods and materials for the Works for reasons
beyond the Contractor’s control and the Architect has not given appropriate
instructions in accordance with sub-clause 23,3, or

29.1.4 Delay occurs in the nomination or re-nomination of a sub-contractor or

supplier which delay materially affects the progress of the works, or

29.1.5 Delay occurs in the appointment of a replacement Architect, quantity

surveyor or Engineer which delay materially affects the progress of the
works.

29.2 Where the Contractor intends to suspend the carrying out of the Works, he shall give the
Employer a seven days notice in writing to that effect, with a copy t the Architect.

29.3 The Contractor shall not suspend the carrying out of the Works if the matter occasioning
the notice is rectified within the period of the notice. Such suspensions shall cease
immediately the matter occasioning the notice is rectified.

29.4 During the period of suspension either under clause 28.0 or herein the Contractor shall
properly protect and secure the Works to the reasonable satisfaction of the Architect.

30.0 VARIATIONS

30.1 The term ‘variation’ as used in these conditions shall mean the alteration of modification of
the design, quality or quantity of the Works as shown upon the contract drawings and
described by or referred to in the contract bills and specifications and includes

30.1.1. The addition, omission or substitution of any item of work.

30.1.2. The alteration of the kind or standard of any of the materials or goods to be
used in the Works.

30.1.3. The removal from the site of any work, materials, or goods brought upon
the Works by the Contractor for the purposes of the Works other than work,
materials, or goods which are not in accordance with the contract.

30.1.4 The issue of instructions by the Architect in regard to the expenditure of

prime cost and provisional sums included in the contract bills and of prime
cost sums which arise as a result of instructions issued in regard to the
expenditure of provisional sums.

30.2 The Architect may issue instructions requiring a variation and he may sanction in writing
any variation made by the contractor otherwise than pursuant to an instruction of the
Architect. No variation required by the Architect or subsequently sanctioned by him shall
vitiate this contract, provided that no such instructions shall substantially change the scope
or object of the contract without the consent of the Employer and the Contractor.

30.3 If the net value of all variations should equal 15% of the builders work, the Architect shall
not issue any further instructions requiring a variation for additional work without the
consent of the employer and the Contractor.

30.4 All instructions for variations shall be copied to the Employer.

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30.5 All variations required by the Architect or subsequently sanctioned by him in writing and
all work executed by the Contractor for which provisional sums are included in the contract
bills (other than work for which a tender made under sub-clause 31.11 of these conditions
had been accepted) shall be assessed by the Quantity Surveyor who shall give to the
Contract an opportunity of being present at the time of such assessment and of taking
such notes and measurements as the Contractor may require.

30.6 The valuation of variations and of work executed by the Contractor for which a provisional
sum is included in the contract bills (other than work for which a tender has been accepted
as aforesaid) unless otherwise agreed, shall be made in accordance with the following
rules:

30.6.1 The prices in the contract bills shall determine the valuation of work or
similar character executed under similar conditions as work priced therein.

30.6.2. The said prices, where work is not of a similar character or executed under
similar conditions as aforesaid, shall be the basis of prices for the same so
far as may be reasonable, failing which a fair calculation thereof shall be
made

30.6.3 Where work cannot properly be measured and valued, the Contractor shall
be allowed day-work rates on the prices prevailing when such work is carried
out (unless otherwise provided in the contract bills). The day-work rates will
be;

30.6.3.1 Rates, if any, insert by the Contract in the contract bills or in a schedule of
rates, or

30.6.3.2 When no such rates have been inserted, at rates to be agreed between the
Quantity Surveyor and the Contractor

30.6.3.3 Vouchers specifying the times daily spent upon the work (and if required by
the Architect, the workmen’s names) the equipment and the materials used
hall be delivered for verification to the Quantity Surveyor not later than the
end of the week following that in which the work was executed.

30.6.4 The prices in the contract bills shall determine the valuation of items
omitted. Provided that if omissions substantially vary the conditions under
which any remaining items of work are carried out, the prices for such
remaining items shall be valued as set out in sub-clause 30.6.2.

30.7 Effect shall be given to the measurement and valuation of variations under sub-clause 20.6
of this condition in interim certificates and by adjustment of the contract price. Effect shall
also be given to the measurement and valuation of work for which a provisional sum is
included in the contract bills under the said sub-clause in interim certificates and by
adjustment of the contract price in accordance with sub-clause

30.8 If upon written Application being made by the Contractor, the Quantity Surveyor is of the
opinion that a variation or the execution by the Contractor of work for which a provisional
sum is included in the contract bills (other than work for which a tender made under
clause 31.0 of these conditions had been accepted) has involved the Contractor in direct
loss and or expense for which he would not be reimbursed by payment in respect of a
valuation made in accordance with the rules contained in sub clause 30.6 of this condition
and if the said application is made with supporting details within thirty days f the loss or
expense having been incurred, the Quantity Surveyor shall assess the amount of such loss
or expense. Any amount so assessed for time to time shall be added to the contract price,
and if an interim certificate is issued after the date of assessment the said amount shall be
added to the amount which would otherwise be stated as due in such certificate.

30.9 Should any part of the Works be omitted from the contract and that part is carried out by
others, the Contractor shall be entitled to reimbursement of the profit he would have made
had he carried out the omitted part. Such loss of profit shall be assessed by the quantity
Surveyor and if an interim certificate is issued after the date of assessment the said
amount shall be added to the amount which would otherwise be stated as due in such a
certificate.

30.10 No instructions for variations shall be issued after the practical completion certificate is
issued without the consent of the Contractor.

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 30.11 Where a variation is necessitated by the default or breach of the contract by the
Contractor, any additional cost attributable to such a variation shall be borne by the
Contractor.

30.12 Except as expressly stated in the contract, the Architect shall have no authority to alter or
amend the terms and conditions of the contract or to relive the Contract of any of his
obligations under the contract

30.13 Where the Architect, with the consent of the Employer and the Contractor, issues
instructions requiring a variation beyond the limit provided in sub-clause 30.3, the
Employer may require an additional performance bond over and above that provided under
sub-clause 16.1. The Contractor shall be reimbursed for the provision of the additional
bond pro-rata to the amount priced for the bond in the contract.

30.14 The Architect shall not issue an instruction requiring a variation for additional work
exceeding 0.01% of the contract price without the prior approval of the Employer unless
otherwise communicated by the Employer t the Architect and to the Contractor.

31.0 NOMINATED SUB-CONTRACTORS

31.1 The following provisions shall apply where prime cost sums are included in the contract
bills or arise as a result of Architect’s instructions given in regard to the expenditure of
provisional sums in respect of persons to be nominated by the Architect to supply and fix
or install materials or goods or to carry out work.

31.2 Such sums shall be expended in favour of such persons as the Architect shall instruct, with
the consent of the Employer, and all specialists or others who are nominated by the
Architect are hereby declared to be sub-contractors employed by the Contractor, and are
referred to in these conditions as ‘nominated sub-contractors’.

31.3 The Architect shall not nominate any person as a sub-contractor against whom the
Contractor shall make reasonable objection.

31.4 The nominated sub-Contractor shall carry out and complete the sub-contract works in
every respect to the reasonable satisfaction of the Contractor and of the Architect and in
conformity with all the reasonable directions and requirement of the Contractor.

31.5 The Contractor and the nominated sub-contractor shall enter into a sub-contract
agreement which provides (inter alia):

31.5.1 That the nominated sub-contractor shall observe, perform and comply with all
the provisions of this contract on the part of the Contractor to be observed,
performed and complied with (other than clause 13.0 of these conditions, if
applicable) so far as they relate and apply to the sub-contract works or to any
portion of the same.

31.5.2 That the nominated sub-contractor shall indemnify the Contractor against the
same liabilities in respect of the sub-contract works as those for which the
Contractor is liable to indemnify the Employer under this Contract.

31.5.3 That the nominated sub-contractor shall indemnify the Contractor against
claims in respect of any negligence, omissions or default of such sub-
contractor, his servants or agents or any misuse by him or them of any
scaffolding or other equipment, and shall insure himself against any such
claims and produce the policy or policies and receipts in respect of premiums
paid as and when required by either the Architect or the Contractor.

31.5.4 That the sub-contract works shall be completed within the period or (where
they are to be comp0leted in sections) periods therein specified.

31.5.5 That the Contractor shall not without the written consent of the Architect,
grant any extension of time for the completion of the sub-contract works or
any section thereof, and that the Contractor shall inform the Architect of any
representation made by the nominated sub-contractor as to the cause of any
delay in the progress or completion of the sub-contract works or any section
thereof.

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 31.5.6 That if the nominated sub-contractor shall fail to complete the sub-contract
works or (where the sub-contract works are to be completed in sections) any
section thereof, within the period therein specified or within any extended
time granted by the Contractor with the written consent of the Architects and
the Architect certifies in writing to the Contractor that the same ought
reasonably so to have been completed, the nominated sub-contractor shall
pay or allow to the Contractor either a sum calculated at the rate therein
agreed as liquidated damages for the period during which the said works or
any section thereof, as the case may be, shall so remain or have remained
incomplete or (where no such rate is therein agreed), a sum equivalent to any
loss or damage suffered or incurred by the Contractor and caused by the
failure of the nominated sub-contractor as aforesaid.

31.5.7 That payment in respect of any work, materials or goods comprised in the
sub-contract shall be made within fourteen days after receipt by the
Contractor or the sum to which the Contractor shall be entitled by virtue of
the Architect’s certificates issued under clause 34.0 of these conditions which
states as due an amount calculated by including the total value of such work,
materials or goods, and shall when due be subject to retention by the
Contractor or the sums stated in sub-clause 31.5.8 of this condition

31.5.8 That the Contractor shall retain from the sum directed by the Architect as
having been included in the calculation of the amount stated as due in any
certificate issued under clause 34.0 of these conditions in respect of the total
value for work, materials or goods executed or supplied by the nominated
subcontractor the percentage of such value retained up to a total amount not
exceeding a sum which bears the same ratio to the sub-contract price as the
unreduced sum named in the appendix of these conditions as the limit of
retention funds bears to the contract price.

31.5.9 That the Contractor’s interest in any sums so retained (by whomsoever held)
shall be fiduciary as trustee for the nominated sub-contractor (but without
obligation to invest), and that the nominated sub-contractor’s beneficial
interest in such sums shall be subject only to the right of the Contract to have
recourse thereto from time to time for payment of any amount which he is
entitled under the sub-contract to deduct fro any sum due or to become due
to the nominated sub-contractor; and that if and when such sums or any part
thereof are released to the nominated sub-contractor, they shall be paid in
full.

31.5.10 That the Employer, the Architect, Quantity Surveyor, Engineers and other
agents of the Employer, shall have a right of access to the workshops and
other places of the nominated sub-contractor where work is being prepared as
provided for in clause 19.0 of these conditions.

31.6 The Architect shall direct the Contractor as to the total value of the work, materials or
goods executed or supplied by a nominated sub-contractor included in the calculation of
the amount stated as due in any certificate issued under clause 34.0 of these conditions
and shall forthwith inform the nominated sub-contractor in writing of the amount of the
said total value. The sum representing such total value shall be paid by the Contractor
within fourteen days after receipt by the Contractor or the sum to which the Contractor
shall be entitled by virtue of the certificate less only.

31.6.1 Any retention money which the Contractor may be entitled to deduct under the
terms of the sub-contract, and

31.6.2 Any sum to which the Contractor may be entitled in respect of delay in the
completion of the sub-contract works or any section thereof, and

31.6.3 Amounts already paid under previous certificates

31.7 Before issuing any certificate under clause 34.0 of these conditions, the Architect may
request the Contractor to furnish to him reasonable proof that all amounts included in the
calculation of the amounts stated as due in previous certificates in respect of the total
value of the work, materials or goods executed or supplied by any nominated sub-
contractor have been duly paid and if the Contractor fails to comply with any such request
the Architect shall issue a certificate to that effect and thereupon the Employer may
himself pay such amounts to nay nominated sub-contractor concerned and deduct the
same from any money due or to become due to the Contractor.

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31.8 The Contractor shall not grant to any nominated sub-contractor any extension of the
period within which the sub-contract works, or (where the sub-contract works are to be
completed in sections) any section thereof is to be completed without the written consent
of the Architect. Provided always that the Contractor shall inform the Architect of any
representations made by the nominated sub-contract as to the cause of any delay in the
progress or completion of the sub-contractor works or any section thereof. The consent of
the Architect shall not be unreasonably withheld. Any extension of time granted under this
clause shall be copied to the Employer

31.9 If any nominated sub-contractor fails to complete the sub-contract works or (where the
sub-contract works are to be completed in sections) any section thereof within the period
specified in the sub-contract or within any extended time granted by the Contractor with
the written consent of the Architect, then if the same ought reasonably so to have been
completed, the Architect shall certify in writing accordingly. Immediately upon issue, the
Architect shall send a copy of any such certificate to the nominated sub-contractor and to
the Employer.

31.10 If the Architect desires to secure final payment to any nominated sub-contractor before
final payment is due to the Contractor, and if such sub-contractor has satisfactorily
indemnified the Contractor against any latent defects, the Architect may in an interim
certificate include an amount to cover the said final payment, and the Contractor shall pay
to such nominated sub-contractor the amount so certified within fourteen days of receipt
of the payment. Upon such final payment, the amount named in the appendix to these
conditions as limit of retention fund shall be reduced by the sum which bears the same
ratio to the said amount as does such sub-contractors sub-contract price to the contract
price, and save for latent defects, the Contractor shall be discharged from all liability for
the work, materials or goods executed or supplied by such sub-contractor under the sub-
contract to which the payment relates.

31.11 Where the Contractor in the ordinary course of his business directly carried our works for
which prime cost sums are included in the contract bills and where he has so informed the
Architect, the Contractor shall be permitted to tender for the same or any of them but
without prejudice to the Employer’s right to reject the lowest or any tender.

31.12 Where a prime cost sum arises under Architect’s instructions issued under sub-clause
30.1.4, of these conditions, it shall be deemed for the purposes of this sub-clause to have
been included in the contract bills.

31.13 It shall be a condition of any tender accepted under sub-clause 31.11 that clause 30.0 of
these conditions shall apply in respect of the items of work included in the tender as if the
reference therein to the contract drawings, specifications and the contract bills were
references to the equivalent documents included in or referred to in the tender.

31.14 Where the terms of a contract between the Contractor and a nominated sub-contractor so
require or the Architect shall so authorize in writing, the Contractor shall make advance
payment to the sub-contractor before delivery of the materials or goods, and Contractor
shall be allowed simple interest for the period of such advance payment calculated at the
commercial bank lending rate in force at the time of the advance until the value of the said
materials or goods is included in a certificate in accordance with Clause 34.0

31.15 If a nominated sub-contractor terminated the sub-contract or the Contractor terminates

the sub-contract on the advice of the Architect, the Architect shall made a further
nomination of a sub-contractor as may be necessary to carry out and complete the work
left incomplete by the sub-contractor whose employment has been terminated. Any
additional costs arising there from shall be borne by the Employer.

Notwithstanding the above, the Architect may instruct, with the consent of the Contractor,
that the incomplete work shall be executed by the Contractor and such instruction shall be
deemed to be a variation to the contract.

31.16 Provided that where a nominated sub-contractor terminates the sub-contract as a result of
a default by the Contractor, or the Contractor terminates the sub-contract without the
written advice of the Architect, the Contractor shall be liable to the Employer for any
additional costs arising there from

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 31.17 Where a nominated sub-contract provides a defects liability period which extends beyond
the Contractor’s defects liability period, the Contractor’s obligations and liabilities in
connection with the defects of the nominated sub-contract shall nevertheless terminate at
the end of the Contractor’s defects liability period. The remaining portion of the nominated
sub-contractor’s defects liability period shall be subject to a direct agreement between the
Employer and the nominated sub-contractor and shall not form part of this agreement.

31.18 Where a sub-contractor is required to give a guarantee or warranty relating to the

subcontract works such guarantee or warranty shall be assigned by the sub-contractor’s to
the Employer prior to the issue of the final certificate.

31.19 The Employment of a nominated sub-contractor under these conditions shall terminate
forthwith upon the termination (for any reason) of the Contractor’s employment under the
contract.

31.20 Neither the existence not the exercise of the foregoing powers nor anything else contained
in these conditions shall render the Employer in any way liable to any nominated sub-
contract.

32.0 NOMINATED SUPPLIERS

32.1 The following provisions shall apply where prime cost sums are included in the contract
bills, or arise as a result or Architect’s instructions given in regard to the expenditure of
provisional sums in respect of any materials or goods to be supplied by others and fixed or
installed by the Contractor

32.2 Such sums and the term prime cost, when included or arising as aforesaid, shall be
understood to mean the net cost to be defrayed as a prime cost after deducting any trade
or other discount and shall include customs duty or other taxes, and the cost of packing,
carriage and delivery. Provided that, where in the opinion of the Architect the Contractor
has incurred expenses for special packing or special carriage, such special expenses shall
be allowed as part of the sums actually paid by the Contractor.

32.3 Such sums shall be expended in favour of such persons as the Architect shall instruct. All
specialists, merchants, tradesmen or others who are so nominated by the Architect to
supply materials or goods are hereby declared to be suppliers to the Contractor and are
referred to in these conditions as ‘nominated suppliers’

32.4 The Architect shall not nominate as a supplier, a person who will not enter into a contract
of sale which provides (inter alia):

32.4.1 That the materials or goods to be supplied shall be of the reasonable

satisfaction of the Architect.

32.4.2 That the nominated supplier shall make good by replacement or otherwise
any defects in the materials or goods supplied which appear within such
period as is therein stated and shall bear any expenses reasonably incurred
by the Contractor as a direct consequence of such defects provided that:-

32.4.2.1 Where the materials or goods have been used or fixed such
defects are not such that examination by the Contractor
ought to have revealed them before using or fixing, and

32.4.2.2 Such defects are due solely to defective workmanship or

defects in the materials or goods supplied and shall not have
been caused by improper storage by the Contractor or by
misuse or by any act or neglect of either the Contractor, the
Architect or the Employer or by any person or persons for
whom they may be responsible.
32.4.3 That delivery of the materials or goods supplied shall be commenced and
completed at such times as the Contractor may reasonably direct.

32.4.4. All payments by the Contractor for materials or goods supplied by a

nominated supplier shall be in full and shall be paid within thirty days of the
end of the month during which delivery is made. Failure by the contractor to
pay the nominated supplier as stipulated shall entitle the Employer to pay
the relevant sums direct and deduct the same from any money due or to
become due to the Contractor.

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 32.4.5 Where the terms of a contract between the Contractor and a nominated
supplier so require, or the Architect shall so authorize in writing, the
Contractor shall make advance payments to the supplier before delivery of
the materials or goods. The Contractor shall be allowed simple interest for
the period of such advance payment calculated at the commercial bank
lending rate in force at the time of the advance until the value of the said
materials or goods is included in a certificate in accordance with clause 34.0

33.0 WORK BY OTHER PERSONS ENGAGED BY THE EMPLOYER

33.1 The Contractor shall permit the carrying out of work not forming part of this contract, but
described in the contract bills, by the Employer or by other persons employed or otherwise
engaged by him.

33.2 Where the work is not described in the contract bills, the Employer may arrange the
carrying out of such work only with the consent of the Contractor, which consent shall not
be unreasonably withheld.

33.1 Every person employed or otherwise engaged by the Employer under this clause shall be
deemed to be a person for whom the Employer is responsible and not a sub-contractor

34.0 PAYMENTS

34.1 At intervals stated in the appendix to these conditions, the Contractor shall submit to the
Quantity Surveyor an application for payment giving sufficient details of the work done and
the materials on site and the amounts, which the Contractor considers himself to be
entitled to. The application or payment shall be copied to the Architect and the Employer.

34.2 Upon receipt of the application and after verifying the amounts, the Quantity Surveyor
shall prepare within seven days an interim valuation of work done and materials on site
during the relevant period and forward the same to the architect. The valuation shall be
copied to the Employer.

34.3 The Architect shall issue an interim payment certificate within seven days from the date of
receipt of the Quantity Surveyor’s valuation. The payment certificate shall be copied to the
employer.

34.4 Neither the Quantity Surveyor not the Architect shall be bound to issue a valuation or a
payment certificate, as the case may be, whose value is less than the amount stated in the
appendix to these conditions as the minimum amount of a payment certificate before the
issue of the certificate of practical completion of the whole of the Works or any section
thereof.

34.5 The Contractor shall, on presenting any interim payment certificate to the Employer, be
entitled to payment thereof within fourteen days from presentation.

34.6 If a certificate remains unpaid beyond the period for honouring certificates stated herein,
the Employer shall pay or allow to the Contractor simple interest on the unpaid amount for
the period it remains unpaid at the commercial bank lending rate in force during the period
or default. The Quantity Surveyor shall assess the amounts to be included in an interim
certificate as the interest due for the delay and if an interim certificate is issued after the
date of any such assessment, the amount shall be added to the amount which would
otherwise be stated as due in such a certificate.

34.7 The payment of interest for late payment of certified sums shall not relieve the Employer
from his obligation to honour payment certificates when due.

34.8 The Architect may, by a subsequent or supplementary certificate, make any correction,
amendment or modification to any previously issued certificate and shall have the
authority, if work is not carried out to his satisfaction, to omit or reduce the value of such
work in any certificate.

34.9 The amount stated as due in an interim certificate shall, subject to any agreement
between the parties as to stage payments, be the total value of work properly executed
and the value of materials and goods required for use in the Works which have been
delivered to the Works.

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34.10 The Architect may, with the consent of the employer, include in an interim certificate the
value of materials and goods, which have been stored elsewhere in safe custody by the
Contractor.

34.11 Provided that such interim certificate shall only include the value of such materials and
goods as and from such time as they are reasonably, properly and not prematurely
brought to the Works or stored as aforesaid and are adequately stored and protected
against weather and other casualties and are covered by proper insurance and have
passed to the legal ownership of the Contractor. There shall be deducted from the amount
of the certificate such sums as may be retained by the Employer as hereinafter provided
and less any amounts previously certified under this clause.

34.12 The Employer may retain the percentage of the total value of the work, materials and
goods referred to in sub-clause 34.9 of this conditions which is named in the appendix of
these conditions as percentage of certified value retained. Provided always that when the
sum of the amounts so retained equals the amount named in the said appendix as limit of
retention fund, or that amount as reduced pursuant to sub-clause, 31.10, 42.7, and 42.8 of
these conditions, as the case may be, no further amount shall be retained by virtue of this
clause.

34.13 Where any certificate of which the Contractor has received payment in accordance with
sub-clause 34.5 of these conditions, includes the value of any unfixed materials and goods
required for use in the Works, such materials and goods shall become the property of the
Employer and shall not be removed without the authority of the Architect except for use
upon the Works. The Contractor shall remain responsible for any loss of or damage to such
materials and goods whether the same are stored on site or elsewhere.

34.14 The following amounts, when included in interim certificates, shall not be subject to
retention:-

34.14.1 Payment for taxes, levies and charges in respect of which the Contractor
pays or indemnifies the Employer under the provisions of sub-clause 17.4
of these conditions.

34.14.2 Payment made for inspections and tests carried out by the Contractor or
by third parties under clauses 23.0 and 24.0

34.14.3 Payment to the Contractor for the provisions of a performance bond under
clause 16.1 of these conditions.

34.14.4 Payment of the Contractor for the provision of insurances under clauses
12.0, 13.0, 14.0, and 15.0 of these conditions, as applicable

34.14.5 Payment for goods and materials supplied by nominated suppliers under
clause 32.0.

34.14.6 Any amounts to which the Contractor is entitled in accordance with sub-
clause 34.28.

34.15 The Employer and the Contractor may agree to open a joint interest earning bank account
where all retention money shall be deposited. Such account, if opened, shall be operated
jointly by the Employer and the Contractor. All interest accruing to the deposited retention
fund shall be periodically released to the Contractor at the times agreed between the
parties and inserted in the appendix to these conditions.

34.16 The amounts retained by virtue of sub-clause 34.12 of this condition shall be subject to the
following rules;

34.16.1 The Employer’s interest in any amount so retained shall be fiduciary as

trustee for the Contractor (but without obligation to invest) and the
Contractor’s beneficial interest therein shall be subject only to the right of
the Employer to have recourse thereto from time to time for payment of
any amount which he is entitled under the provisions of this contract to
deduct from any sum due or to become due to the Contractor.

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 34.16.2 On the issue of the certificate of practical completion, the Architect shall
issue a certificate for one half of the total amount then so retained and
the Contractor shall, on presenting any such certificate to the Employer,
be entitled to payment of the said amount within fourteen days from
presentation.

34.16.3 On the expiration of the defects liability period named in the appendix to
these conditions, or on the issue of the certificate of completion of
rectification of defects, whichever is the later, the Architect shall issue a
certificate for the balance of the amount then so retained and the
Contractor shall be entitled to payment of the said balance within fourteen
days from presentation

34.17 The measurement and valuation of the Works shall be completed within the period of final
measurement and valuation stated in the appendix to these conditions calculated from the
date of practical completion, and the Contractor Shall be supplied with a copy of the final
account not later than the end of the said period and before the issue of the final
certificate under sub-clause 34.21 of this condition

34.18 Either before or within a reasonable time after practical completion of the Works, the
Contractor shall send to the Quantity Surveyor all documents and calculations necessary
for the purposes of the computations required by these conditions including all documents
relating to the account of nominated sub-contractors and nominated supplier. The Quantity
Surveyor may request he contractor to submit further documents, as he may deem
necessary for the computation of the final account.

34.19 In the settlement of accounts, the amounts paid or payable under the appropriate
contracts by the Contractor to nominated sub-contractors or nominated suppliers, the
amount paid or payable by virtue of clause 17.0 of these conditions in respect of fees or
charges for which a provisional sum is included in the contract bills, the amounts paid or
payable in respect of any insurances maintained in compliance with sub-clause 13.2 of
these conditions, the tender price (or such other sum as may be appropriate in
accordance with the terms of the tender) for any work for which a tender made under sub-
clause 31.11 of these conditions is accepted and the value of any work executed by the
Contractor for which provisional sum is included in the contract bills of rising under
Architect’s instructions issued under clause 30.1.4 of these conditions as the case may be.
The balance, after allowing in all cases pro rata for the Contractor’s profit at the rates
shown in the contract bills, shall be added to or deducted from the contract price. Provided
that no deduction shall be made in respect of any damaged paid or allowed to the
Contractor by any sub-contractor r supplier.

34.20 The final account shall be agreed between the Quantity Surveyor, the Contractor and the
Architect. If the Contractor does not sign the final account within thirty days after being so
requested to do, the Architect may issue the final certificate based on the final account
prepared by the Quantity surveyor. The final account shall be copied to the Employer.

34.21 So soon as the Quantity Surveyor has prepared the final account but before the expiration
for sixty days from the end of the defects liability period stated in the appendix to these
conditions, or from completion of rectification of defects under clause 41.6 of these
conditions, or from receipt by the Quantity surveyor of the documents referred to in
paragraph 34.18 of this condition, whichever is the latest, the Architect shall issue the final
certificate.

The final certificate shall state:

34.21.1 The sum of the amounts certified to the Contractor under interim
certificates and the amount named in the said appendix as limit of
retention fund, and

34.21.2 The contractor price adjusted as necessary in accordance with the terms
of these conditions, and as reflected in the final account

34.21.3 The difference (if any) between the two sums shall be expressed in the
said certificate as a balance due to the Contractor from the Employer or to
the Employer from the Contractor, as the case may be. Subject to any
deductions authorized by these conditions, the said balance as from the
fourteenth day after presentation of the final certificate by the Contractor
to the Employer shall be a debt payable by the Employer to the Contractor
or by the Contractor to the Employer, as the case may be.

25
 34.22 Unless a written request to concur in the appointment of an Arbitrator shall have been
given under clause 45.0 of these conditions by either party before the final certificate has
been issued, or within thirty days after such issue, the said certificate shall be conclusive
evidence in any proceedings arising out of this contractor (whether by arbitration under
clause 45.0 of these conditions or otherwise) that the Works have been properly carried
out and completed in accordance with the term of this contract and that any necessary
effect has been given to all the terms of this contract which require an adjustment to be
made to the contract price, and insofar as any sum mentioned in the said certificate is
erroneous by reason of;

34.22.1 Fraud, dishonesty or fraudulent concealment relating to the Works, or any

part thereof, or to any matter dealt with in the said certificate, or

34.22.2 Any defects including any omission in the works or any part thereof which
reasonable inspection or examination at any reasonable time during the
carrying out of the works or before the issue of the said certificate would
not have disclosed, or

34.22.3 Any accidental inclusion or exclusion or any work, materials, goods or figure
in any computation or any arithmetical error in any computation.

34.23 Save as aforesaid, no certificate of the Architect shall of itself be conclusive evidence that
any Works, materials or goods to which it relates are in accordance with this contract

34.24 If the Architect shall delete or reduce any sum in the final certificate which was previously
certified in respect of works done or goods and materials supplies or services rendered by
a nominated sub-contractor or supplier, which sum has already been paid by the
Contractor to the nominated sub-contractor or supplier, the Employer shall reimburse the
Contractor the amount of any sum so overpaid to the extent that the contractor is unable
to recover the said overpayment

34.25 The Employer shall be entitled to deduct from or set off against any money due from him
to the Contractor in interim certificates any sum or sums which the Contractor is liable to
pay to the Employer arising under or in connection with the contract.

34.26 All certificates to be issued by the Architect under this conditions hall be issued to the
Contractor except that the Architect may issue a special payment certificate to others for
payment by the Employer where the Employer;

34.27.1 Engages Others to execute work in accordance with sub-clause 22.2.

34.27.2 Elects to pay nominated sub-contractors or nominated suppliers direct in

accordance with clauses 31.7 and 32.4.

34.27.3 Elects to pay direct statutory and similar services providers in accordance
with clause 17.2

34.28 Any penalties or fines imposed on the Contractor by the relevant authority for delay in the
payment of Value Added Tax and other taxes levied in the building industry arising from a
delay in the honouring of a payment certificate shall be reimbursed by the Employer to the
Contractor.

34.29 The contractor shall be given an advance payment he requests for provided the amount
does not exceed 30% of the contract sum. The amount shall be recovered at a rate of
30% of the interim payments value till the full amount is recovered.

35.0 FLUCTUATIONS

35.1 The Contract price shall be deemed to have been calculated to include all duties on
materials and goods to be incorporated into the finished Works unless otherwise stated in
the contract. If at any time during the period of the contract the duties shall be varied and
this shall affect the cost of the Contractor of such materials, then the Quantity surveyor
shall assess the net difference in cost of such materials. Any amount from time to time so
assessed shall be added to or deducted from the contract price, as the case may be. For
example purposes of this clause, ‘duties’ shall include all customs and excise charges,
tariffs, V.A.T. and other taxes and duties imposed by statutory or other authority in the
country where the Works are being carried out.

26
 35.2 The contract price shall be deemed to be based on exchange rates current at the date of
tender in calculating the cost to the Contract of materials to be specifically imported (by
express provisions in the contract bills of specifications) for permanent incorporation in the
Works. Unless otherwise stated in the contract, if at any time during the period of the
contract the exchange rates hall be varied and this shall affect the cost to the Contractor of
such materials, then the Quantity Surveyor shall assess the net difference in the cost of
such materials. Any amount from time to time so assessed shall be added to or deducted
from the contract price, as the case may be

35.3 Unless otherwise stated in the contract, the contract price shall be deemed to have been
calculated in the manner set out below and in sub-clause 35.4 and 35.5 and shall be
subject to adjustment in the events specified there under;

35.3.1 The prices contained in the contract bill shall be deemed to be based upon
the rates of wages and other emoluments and expenses as determined by
the Joint Building Council of Kenya (J.B.C) and set out in the schedule of
basic rates annexed to the contract bills.

35.3.2 Upon J.B.C determining that any of the said rates of wages or other
emoluments and expenses are increased or decreased, then the contract
price shall be increased or decreased by the amount assessed by the
quantity Surveyor based upon the difference, expressed as a percentage,
between the rate set out in the annexed schedule of basic rates and the
rates published by the J.B.C and applied to the quantum of labour
incorporated within the amount of work remaining to be executed at the
date of publication of such increase or decrease

35.3.3. No adjustment shall be made in respect of changes in the rates of wages

and other emoluments and expenses which occur after the date of practical
completion except during such other period as may be granted as an
extension of time under clause 36.0 of these conditions

35.4 The prices contained in the contract bills shall be deemed to be based upon the basic
prices of materials to be permanently incorporated in the Works as determined by the
J.B.C and set out in the schedule of basic rates annexed to the contract bills.

35.5 Upon the J.B.C determining that any of the said basic prices are increased or decreased
then the contract price shall be increased or decreased by the amount to be assessed by
the Quantity Surveyor based upon the difference between the price set out in the schedule
of basic rates and the rate published by the J.B.C and applied to the quantum of the
relevant materials which have not been taken into account in arriving at the amount of any
interim certificate under clause 34.0 of these conditions issued before the date of
publication such increase or decrease.

35.6 No adjustment shall be made in respect of changes in basic prices which occur after the
date for practical completion except during such other period as may be granted as an
extension to time under clause 36.0 of these conditions.

35.7 The provisions of sub-clauses 35.1 and 35.2 herein shall not apply in respect of any
materials included in the annexed schedule of basic rates.

35.8 The provision of sub-clause 35.3 to 35.5 shall not apply to nominated sub-contractors and
nominated suppliers except in so far as shall be specifically provided in any sub-contract
agreement.

36.0 EXTENSION OF TIME

36.1 Upon it becoming reasonably apparent that the progress of the works is delayed, the
Contractor shall forthwith give written notice of the cause of the delay to the Architect with
supporting details showing the extent of delay caused or likely t be caused. Thereafter the
Architect shall evaluate the information supplied by the Contractor and if in his opinion the
completion of the Works is likely to be or has been delayed beyond the date for practical
completion stated in the appendix to these conditions or beyond any extended time
previously fixed under this clause.

36.1.1. By force majeure, or

36.1.2. By reason of any exceptionally adverse weather conditions, or

27
 36.1.3. By reason of loss or damage occasioned by any one or more of the
contingencies referred to in clauses 13.0, 14.0, or 15.0

36.1.4 By reason of civil commotion, strike or lockout affecting any of the trades
employed upon the Works or any of the trades engaged in the
preparation, manufacture or transportation of any f the gods or materials
required for the Works, or

36.1.5 By reason of Architect’s instructions issued under clauses 22.0, 28.1, and
30.0 of these conditions, or

36.1.6 By reason of the Contractor not having received in due time necessary
instructions, drawings, details or levels from the Architect for which he
specifically applied in writing on a date which having regard to the date for
practical completions stated in the appendix to these conditions or to any
extension of time then fixed under this clause was neither unreasonably
distant from not unreasonably close to the date on which it was necessary
for him to receive the same, or

36.1.7 By delay on the part of artists, tradesmen or other engaged by the

Employer in executing work not forming part of this contract, or

36.1.8 By reason of delay by statutory or other services providers or similar

bodies engaged directly by the Employer, or

36.1.9 By reason of the opening up for inspection of any work covered up or of

the testing of any of the work, materials or goods in accordance with sub-
clause 23.6 these conditions (including making good in consequence of
such opening up to testing), unless the inspection or test showed that the
work, materials or goods were not in accordance with this contract, or

36.1.10 By the Contractor’s inability for reasons beyond his control and which he
could not reasonably have foreseen at the date of this contract, to obtain
delivery upon the Works of such goods or materials as are essential to the
proper carrying out of the works, or

36.1.11 By reason of carrying out the Works having been suspended by the
Contractor in accordance with clause 29.0, or

36.1.12 By reason of delay in appointing a replacement Architect, Quantity

Surveyor of Engineers, or

36.1.13 By reason of delay caused by the late supply of goods or materials or in

executing work for which the Employer or his agents are contractually
obliged to supply or to execute as the case may be, or

36.1.14 By reason of delay caused by nominated subcontractors of nominated

suppliers which delay the Contractor has taken all reasonable measures to
avoid or reduce the effects or, or

36.1.15 By reason of the Contractor’s inability, for reasons beyond his control, to
secure such skills labour and other workmen essential to the proper
carrying out of the Works,

36.1.16 By delay arising from the nomination of re-nomination of a sub-contractor

or supplier, or

36.1.17 By delay in receiving possession of or access to the site.

36.2 Then the Architect shall so soon as he is able to estimate the length of the delay beyond
the date or time aforesaid, but in any case not later than thirty days after receiving an
application for extension of time in the manner prescribed, make in writing a fair and
reasonable extension of time for the completion of the Works.

36.3 Provided always that should a cause of delay be of continuing effect, the Architect shall
make an interim decision within the said thirty days and a final decision made within thirty
days of the end of the cause of delay.

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 36.4 The Contractor shall use constantly his best endeavors to prevent delay and shall do all
that may reasonably be required of him to the satisfaction of the Architect to proceed with
the Works.

36.5 If the Architect’s decision on extension of time is not communicated to the Contractor
within the said thirty days, and no justifiable grounds are given for the failure to act, the
time applied for by the Contractor shall be deemed to have been accepted by the Architect
as being a fair extension of time for the completion of the Works. Such a decision shall
take effect not earlier than fourteen days after the expiry of the thirty day period.

36.6 If by the Architect’s instructions the scope of the Works is reduced and in the opinion of
the Architect the time for completion of the Works has been or is likely to be reduced, the
Architect shall as soon as he is able to estimate the reduction in time, make in writing a
fair and reasonable reduction to the time for completion of the Works. Provided always
that such a reduction in the time for completion of the Works shall be notified to the
Contractor within thirty days from the sate of issue of such Architect’s instructions.

36.7 The Architect shall not be bound to evaluate a request for extension of time which is
submitted more than thirty days after the events listed in sub-clause 36.1 have occurred.

36.8 All applications for extension of time and all decision on the same shall be copied to the
Employer at the time of application or decision, as the case may be.

37.0 LOSS AND EXPENSE CAUSED BY DISTURBANCE OF REGULAR PROGRESS OF THE WORKS

37.1 If upon written application being made to him by the Contractor the Architect is of the
opinion that the Contractor has been involved in direct loss and or expense for which he
would not be reimbursed by a payment made under any other provision in this contract by
reason of the regular progress of the Works or of any part thereof having been materially
affected by;

37.1.1. The Contractor not having received in due time necessary instructions,
drawings, details or levels from the Architect for which he specifically
applied in writing, on a date which having regard to the date for practical
time then fixed under clause 36.0 of these conditions was neither
unreasonably distant from not unreasonably close to the date on which it
was necessary for him to receive the same, or

37.1.2 The opening up for inspection of any work covered up or the testing of
any work, materials or goods in accordance with clause 23.0 of these
conditions (including making good in consequence of such opening up or
testing), unless the inspection or test showed that the work, materials, or
goods were not in accordance with this contract, or

37.1.3 Delay in appointing a replacement Architect, Quantity Surveyor or

Engineer, or

37.1.4 Any discrepancy in or divergence in these condition, the contract

drawings, specifications and or the contract bills, or

37.1.5 Delay on the part of artists, tradesmen or others engaged by the Employer
in executing work not forming part of this contract; or

37.1.6 Delay by statutory or other services providers or similar bodies engaged

directly by the Employer, or

37.1.7 Architect’s instructions issued in regard to the postponement of any work

to be carried out under the provisions of this contract, or

37.1.8 Delay arising from the nomination or re-nomination of a sub-contract or

supplier, or

37.1.9 The Contractor suspending the carrying out of the Works in accordance
with clause 29.0 of these conditions, except under sub-clause 29.1.3., or

37.1.10 Delay caused by the late supply of goods or materials or in executing

work for which the Employer or his agents are contractually obliged to
supply or to execute as the case may be, or

29
 37.1.11 Delay in receiving possession of or access to the site.

37.2 And if the written application is accompanied by detailed particulars of the claim and it is
made within the period stated in sub-clause 37.4 herein upon it becoming apparent that
the progress of the Works or of any part thereof had been affected as aforesaid, the
Quantity Surveyor shall as soon as practicable assess the amount of such loss and or
expense. Any amount from time to time so assessed shall be added to the contract price,
and if an interim certificate is issued after the date of assessment, any such amount shall
be added to the amount which would otherwise be stated as due in such a certificate

37.3 Upon the happening of any of the events listed at sub-clause 37.1.1 to 37.1.11, the
Contractor shall maintain such records as may be necessary to support any claim he may
wish to make. The Quantity Surveyor may request any further information as he may deep
necessary for a fair and just assessment of the claim.

37.4 The Contractor shall give written notice to the Architect of his intention to make a claim
within thirty days after the event giving rise to the claim has first arisen. The claim shall be
submitted within thirty days thereafter.

37.5 Provided always that should the event giving rise to the claim be of continuing effect, the
Contractor shall submit an interim claim within the said thirty days and a final claim within
thirty days of the end of the event giving rise to the claim.

37.6 If the Contractor fails to comply with any provisions of this clause in respect of any claim
he seeks to make, his entitlement to payment in respect thereof shall not exceed such
amount as the Quantity Surveyor or any Arbitrator appointed under clause 45.0 shall
consider to be verified by contemporary records submitted at the time the event occurred.

37.7 All applications for the reimbursement of loss and or expense made by the Contractor, and
all assessments of loss and expense made by the Quantity Surveyor, shall be copied to the
Employer.

38.0 TERMINATION OF THE CONTRACT BY THE EMPLOYER

38.1 Without prejudice to any other rights and remedies which the Employer may possess, if the
Contractor shall make default in any other or more of the following respects, that is to say,

38.1.1 If he without reasonable cause wholly suspends the carrying out of the
works before completion thereof, for a period exceeding fourteen days, or

38.1.2 If he fails to proceed regularly and diligently with the Works, or

38.1.3 If he fails to commence the Works within thirty days of the date for
commencement, or

38.1.4 If he refuses or persistently neglects to comply with a written notice from

the Architect requiring him to remove defective work or improper materials
or goods, and by such refusal or neglect the Works are materially affected,
or

38.1.5 If he fails to comply with the provisions of clause 26.0 and 27.0 of these
conditions, or

38.1.6 If despite previous notices from the Architect in writing he persistently of

flagrantly neglects to comply with any of his obligations under the
contract,

38.2 Then the Architect may give to the Contractor a notice by registered post or recorded
delivery specifying the default, and if the Contractor either shall continue such default for
fourteen days after receipt of such notice or shall at any time thereafter repeat such
default then the employer may within fourteen days after such continuance or repetition by
notice by registered post or recorded delivery, forthwith terminate the contract, provided
that such notice shall not be given unreasonably or vexatiously.

30
38.3 In the event of the Contractor becoming bankrupt or making a composition or
arrangement with his creditors or having a winding up order made or (except for purposes
of reconstruction) a resolution for voluntary winding up passed or a receiver or manager of
his business or undertaking duly appointed or possession taken by or on behalf of the
holders of any debentures secured by a floating charge or any property comprised in or
subject to the floating charge, then the contract shall automatically terminate but it may be
reinstated and continued if the Employer and the Contractor, his trustee is bankruptcy,
receiver or manager, as the case may be, shall so agree.

38.4 In the event of the contract being terminated as aforesaid and so long as it has not been
reinstated and continued, the following shall be the respective rights and duties of the
employer and the Contractor;

38.4.2 So soon as it is practicable, the Architect shall arrange a joint inspection

with the Contractor and the Quantity Surveyor for the purposes of taking a
record of the work done, materials and goods delivered on site, the
Contractor’s equipment, and temporary buildings

38.4.3 The Quantity Surveyor shall, within a reasonable time after the inspection,
prepare a final account for that part of the Works carried out by the
Contractor by the date of termination of the contract

38.5 The Employer may employ and pay other persons to carry out and complete the Works
and to rectify any defects and he or they may enter upon the Works and use all temporary
buildings, equipment, goods and materials intended for, delivered to an placed on or
adjacent to the Works, and may purchase all materials and goods necessary for the
carrying out and completion of the Works.

38.6 The Contractor shall, if so required by the Employer, within fourteen days of the date of
termination, assign to the Employer without payment the benefit of any agreement for the
supply of materials or goods and or for the execution of any work for the purposes of this
contract, but on the terms that a supplies or sub-contractor shall be entitled to make any
reasonable objection to any further assignment thereof by the Employer. In any case, the
Employer may pay any supplies or sub-contractor for any materials or goods delivered or
works executed for the purposes of this contract (whether before or after the date of
termination) insofar as the cost thereof has not already been paid by the Contractor. The
Employer’s rights under this sub-clause 31.7 of these conditions and payments made under
this sub-clause may be deducted from any money due or to become due to the Contractor.

38.7 The Contractor shall as and when required in writing by the Architect so to do (but not
before) remove from the Works any temporary buildings, equipment, goods and materials
belonging to or hired by him. If within thirty days after any such requirement has been
made the Contractor has not complied therewith, then the Employer may (but without
being responsible for any loss or damage) remove and sell any such property of the
Contractor holding the proceeds less all costs incurred to the credit of the Contractor.

38.8 The Contractor shall allow or pay to the Employer in the manner hereinafter appearing, the
amount any direct loss and or damage caused to the Employer by the termination. Until
after completion of the Works under sub-clause 38.5, the Employer shall no be bound by
any provision of this contract to make any further payments to the Contractor, but up on
such completion and the verification within a reasonable time of the accounts therefore,
the Quantity Surveyor shall assess the amount of expenses properly incurred by the
Employer and the amount of any direct loss and or damage caused to the Employer by the
termination and, if such amounts when added to the money paid to the Contractor before
the date of termination exceed the total amounts which would have been payable on due
completion in accordance with this contract, the difference shall be a debt payable to the
Employer by the Contractor. If the said amounts when added to the money paid to the
Contractor be less than the said total amount, the difference shall be a debt payable by the
Employer to the Contractor.

38.9 The Contractor shall not be relieved of any of his obligations and liabilities in regard to that
part of the Works carried out by him.

31
39.0 TERMINATION OF THE CONTRACT BY THE CONTRACTOR

39.1 Without prejudice to any other rights and remedies which the Contractor may possess, if:

39.1.1 The Contractor does not receive a payment certificate which he applied
for in accordance with clause 34.1 of these conditions within fourteen
days of the application and the default continues for sixty days after
expiry of the stated period, or

39.1.2 The Employer does not pay to the Contractor the amount due on any
certificate within the period of honouring certificates named in clause
34.5 of these conditions and continues such act for sixty days after
expiry of that period, or

39.1.3 The Employer interferes with or obstruct us the issue of any certificate
due under this contract, and continues such act for sixty days after a
notice of default has been issued by the Contractor, or

39.1.4. The carrying out of the whole or substantially the whole of the
uncompleted Works (other than the execution of work required under
sub-clause 41.6 of these conditions) is suspended for a continuous
period of sixty days by reason of;

39.1.4.1 Delay in receiving possession of or access to the site,

or

39.1.4.2 Architect’s instructions issued under clauses 22.0,

28.1, or 30.0 or these conditions, or

39.1.4.3 The Contractor not having received in due time

necessary instructions, drawings, details or levels
from the Architect for which he specifically applied in
writing on a date which having regard to the date for
practical completion stated in the appendix to these
conditions, or to any extension of time granted under
clause 36.0 of these conditions, was neither
unreasonably distant from not unreasonably close to
the date on which it was necessary for him to receive
the same, or

39.1.4.4 Delay in appointing a replacement Architect, Quantity

surveyor or Engineer, or

39.1.4.5 Delay on the part of artists, tradesmen of others

engaged by the Employer in executing works not
forming part of this contract, or

39.1.4.6 Delay by statutory of other services providers or

similar bodies engaged directly by the Employer, or

39.1.4.7 Delay due to the opening up for inspection on any

work covered up or the testing of any of the work,
materials or goods in accordance with sub-clause
23.6 of these conditions (including making good in
consequence of such opening up or testing), unless
the inspection or test showed that the work,
materials or goods were not in accordance with the
contract, or

39.1.4.8 The Contractor having suspended the carrying out of

the works in accordance with clause 29.0 of these
conditions, except under sub-clause 29.1.3, or

39.2.4.9 Delay arising from the nomination of re-nomination

of a sub-contractor or supplier.

32
39.2 The Employer becomes bankrupt or makes a composition or arrangement with his creditors
or has a winding up order made or (except for the purposes of reconstruction) a resolution
for voluntary winding up passed or a receiver or manager of his business or undertaking is
duly appointed or possession is taken by r on behalf of the holders of any debentures
secured by a floating charge of any property comprised in or subject to the floating charge.

39.3 Then the Contractor may give the Employer a notice by registered post or recorded
delivery with a copy to the Architect specifying the default and should the default continue
for fourteen days after receipt of such notice, the Contractor may forthwith terminate the
contract.

39.4 Upon such termination, then without prejudice to the accrued rights or remedies of either
party or to any liability mentioned in clause 11.0 of these conditions which may accrue
either before the Contractor or any sub-contractors shall have removed their temporary
buildings, equipment, goods or materials or by reason of their so removing the same, the
respective rights and liabilities of the Contractor and the Employer shall be as follows, that
is to say;

39.4.1. The carrying out of the Works by the Contractor shall cease forthwith and
the Contractor shall vacate the site thereby relinquishing possession
thereof and the responsibility and care of the site and the Works shall
henceforth pass to the Employer.

39.4.2 So soon as it is practicable, the Architect shall arrange a joint inspection

with the Contractor and the Quantity Surveyor for the purpose of taking
record of the work done, materials and goods delivered on site.

39.4.3 Thereafter, the Contractor shall with all reasonable dispatch and in such
manner and with such precautions as will prevent injury, death or damage
in respect of which before the date of termination he was liable to
indemnify the Employer under clause 11.0 of these conditions, remove
from the site all his temporary buildings, equipment, goods and materials
and shall give facilities to his sub-contractors to do the same, but subject
always to the provisions of sub-clause 39.5.4. of this condition.

39.5 After taking into account amounts previously paid under this contract, the Contractor shall
be paid by the Employer,

39.5. After taking into account amounts previously paid under this contract, the contractor shall
be paid by the Employer;

39.5.1. The total value of work completed at the date of termination.

39.5.2. The total value of work begun and executed but not completed at the date
of termination, the value being assessed in accordance with clause 30.6 of
these conditions as if such work were a variation required by the Architect.

39.5.3. Any sum assessed in respect of direct loss and or expense under clause
7.0 of these conditions (whether assessed before of after the date of
termination).

39.5.4. The cost of materials or goods properly ordered for the Works for which
the Contractor shall have paid or for which the Contractor shall be legally
bound to pay, and which have been recorded in accordance with sub-
clause 39.4.2, and on such payments by the Employer, any materials or
goods so paid for shall become the property of the Employer and shall not
be removed from the site without any authority of the Employer.

39.5.5. The reasonable cost of removal under sub-clause 39.4.3

39.5.6. Any direct loss and or damage caused to the Contractor by the
termination.

33
40.0 TERMINATION OF THE CONTRACTOR BY EITHER PARTY

40.1 If during the progress of the Works the Government and people of the country in which
the site is located shall become engaged in war, war like operations or hostilities or kindred
activities which either directly or indirectly involve or would involve either party in loss or
expense beyond that provided for in or reasonably contemplated by this contract, then the
contract may be terminated by either party giving to the other fourteen days notice by
registered post or recorded delivery. Upon termination the Contractor shall be paid by the
Employer in respect of the work carried out before such termination in accordance with the
provisions of sub-clauses 39.5.1. to 39.5.5. of these conditions.

40.2 In the event of the Works or any part thereof of any goods or materials brought on the site
for use in the Works being destroyed or damaged by war, warlike operations or hostilities
or kindred activities as the case may be, the Contractor shall be under no liability
whatsoever to repair, reinstate or make good the destruction or damage so caused and
shall be entitled;

40.2.1 To be paid the full value of all work carried out before such event and for
all materials on the site for use in the works (including the work or
materials so damaged or destroyed), and

40.2.2 To be paid for any work done and materials or goods supplied in the
reinstatement of making good of any destruction or damage so caused
upon such terms as may be agreed between the parties, and in default of
agreement, upon the basis of prime cost plus a reasonable profit to be
assessed by the Quantity Surveyor.
40.3 In the case of works of alterations, repairs or extensions, if the Works are damaged by any
of the contingencies referred to in clause 15.0 and if it is just and equitable to do so, the
contract may within sixty days of the occurrence of such loss or damage be terminated at
the option of either party upon giving a fourteen days notice by registered post or
recorded delivery. Within fourteen days of receiving such a notice either party may give to
the other a written request to concur in the appointment of an Arbitrator under clause 45.0
of these conditions in order that I may be determined whether such termination will be
just and equitable. Upon the giving or receiving by the Employer of such a notice of
termination or, where a reference to arbitration is made as aforesaid, upon the Arbitrator
unholding the notice of termination, the provisions of sub-clause 39.5.5. to 39.5.5. of these
conditions shall apply

40.4 If the carrying out of the whole or substantially the whole of the uncompleted Works
(other than the execution of work required under sub-clause 41.6 of these conditions) is
suspended for a continuous period of sixty days by reason of;

40.4.1. Force majeure, or

40.4.2. Loss or damage occasioned by any one or more of the contingencies

referred to in clauses 13.0 and 14.0 of these conditions (if applicable), or

40.4.3 Loss or damage arising from nuclear activity,

40.5 Then either party may, upon giving a fourteen days notice by registered post or recorded
delivery, terminate the contract, provided that such notice shall not be given unreasonably
or vexatiously. Upon such termination, the Contractor shall be paid by the employer in
respect of the work executed before such termination in accordance with the provisions of
clause 39.5.1. to 39.5.5.

41.0 PRACTICAL COMPLETION AND DEFECTS LIABILITY

41.1 When in the opinion of the Contractor the whole of the Works are practically complete, he
shall give a notice in writing to the Architect to that effect. The notice shall be
accompanied by an undertaking to complete any outstanding work within a reasonably
time or within such time as the Architect may direct.

41.2 Within fourteen days of the issue of such notice, the Architect shall inspect the Works and
if in his opinion the Works are practically complete, he shall issue the certificate of practical
completion, and the defects liability period shall be deemed to commence on the date of
issue of the said certificate. If the Works are not practically complete, he shall specify in
writing to the Contractor the work which in his opinion requires to be completed before the
certificate can be issued.

34
 41.3 The Contractor shall retain possession of the site of the works up to and including the date
of issue of the certificate of practical completion and subject to clause 42.0 hereof, the
Employer shall not be entitled to take possession of any part or parts of the Works until
that date.

41.4 Upon the Employer taking possession of any part of the Works, (hereinafter refereed to as
the relevant part), the relevant part of the Works taken over shall be at the sole risk of the
Employer in every respect as from the date of such taking over.

41.5 Should the Employer take over the whole of any part of the Works before the issue of a
certificate of practical completion, practical completion shall be deemed to have taken
place on the date of taking over of the whole or any part of the Works.

41.6 Any defects, shrinkages or other faults which shall appear within the defects liability period
stated in the appendix to these conditions, and which are due to materials or workmanship
not being in accordance with the contract shall be specified by the Architect in a schedule
of defects which he shall deliver to the Contractor not later than thirty days after the
expiration of the said defects, shrinkages and other faults therein specified shall be
rectified by the Contractor and (unless the Architect shall otherwise instruct,) entirely at his
own cost. If the Architect so instructs, then an appropriate deduction shall be assessed by
the Quantity Surveyor and made to the contract price in respect of any such defects,
shrinkages or other faults not rectified.

41.7 Notwithstanding the provisions of sub-clause 41.6 of this condition, the Architect may
whenever he considers it necessary to do so, issue instructions requiring any defect,
shrinkage or other fault which shall appear within the defects liability period named in the
appendix to these conditions and which is due to materials or workmanship being not in
accordance with this contract to be rectified and the Contractor shall within a reasonable
time after receipt of such instructions, comply with the same and (unless the architect shall
otherwise instruct, in which case the contract price shall be adjusted accordingly), entirely
at his own cost. Provided that no such instructions shall be issued after delivery of a
schedule of defects or after thirty days from the expiration of the said defects liability
period.

41.8 Not withstanding the provisions of sub-clause 30.10 and sub-clause 41.6 herein, where
defects shrinkages or other faults shall occur during the period of rectification of defects
which are not due to materials or workmanship not being in accordance with the contract,
the Architect may instruct their rectification. Such instruction shall be treated as a variation
and shall be valued in accordance with sub-clause 30.6 of these conditions

41.9 When in the opinion of the Architect any defects, shrinkages or other defaults which he
may have required to be rectified under sub-clause 41.6 of this condition shall have been
rectified he shall issue a certificate to that effect, and completion of rectification of defects
shall be deemed for all the purposes of this contract to have taken place on the day named
in such certificate.

42.0 SECTIONAL COMPLETION

42.1 If at any time or times before practical completion of the Works the Employer with the
consent of the Contractor, shall take possession of any part of parts of the same (any such
part being hereinafter in this clause referred to as ‘the relevant part’) then notwithstanding
anything expressed or implied elsewhere in this contract,

42.2 Within fourteen days from the date on which the Employer shall have taken possession of
the relevant part, the Quantity Surveyor shall prepare a valuation stating his estimate of
the approximate total value of the said part. The Architect shall thereafter issue a
certificate for the relevant part and for all purposes of this conditions (but for no other) the
value stated in the certificate shall be deemed to be the total value of the said part.

42.3 For the purposes of sub-clauses 41.2, 41.6 and 41.7 of these conditions, practical
completion of the relevant part shall be deemed to have occurred and the defects liability
period in respect of the relevant part shall be deemed to have commenced on the date of
which the Employer shall have taken possession thereof.

42.4 When in the opinion of the Architect any defects, shrinkages or other faults in the relevant
part which he may have required to be rectified under sub-clause 41.6 and 41.7 of these
conditions shall have been rectified he shall issue a certificate to that effect.

35
 42.5 The Contractor shall reduce the value insured under sub-clause 13.1 of these conditions (if
applicable) by the full value of the relevant part, and the said relevant part shall as from
the date on which the Employer shall have taken possession thereof, be at the sole risk of
the Employer as regards any of the contingencies referred to in the said sub-clause.

42.6 In lieu of any sum to be paid or allowed by the Contractor under clause 43.0 of these
conditions in respect of any period during which the Works may remain incomplete
occurring after the date on which the Employer shall have taken possession of the relevant
part, there shall be paid or allowed apart from the provisions of this condition, as does the
contract price less the total value of the said relevant part to the contract price.

42.7 Within thirty days of the date on which the Employer shall have taken possession of the
relevant part, there shall be paid to the Contractor from the sums then retained under
clause 34.0 of these conditions (if any), one half of such amount as bears the same ratio of
the unreduced amount named in the appendix to these conditions as limit of retention
fund as does the total value of the said relevant part to the contract price, and the amount
named in the appendix to these conditions as limit of retention fund shall be reduced by
the amount so paid to the Contractor.

42.8 On the expiration of the defects liability period named in the appendix to these conditions
in respect of the relevant part, or one the issue of the certificate of completion of
rectification of defects in respect of the relevant part, whichever is the later, there shall be
paid to the Contractor from the sums then retained under sub-clause 34.12 of these
conditions (if any), the balance of the amount referred to in sub clause 42.7 and the
amount named in the appendix to these conditions as limit of retention fund shall be
reduced by the amount of such payment.

43.0 DAMAGES FOR DELAY IN COMPLETION

43.1 If the Contractor fails to complete the Works by the date for practical completion stated in
the appendix to these conditions, or within any extended time fixed under clause 36.0 of
these conditions, and the Architect certifies in writing that in his opinion the same ought
reasonably so to have been completed, the Contractor shall pay or allow to the Employer a
sum calculated at the rate stated in the said appendix as liquidated damages for the period
during which the Works shall so remain or have remained incomplete, and the Employer
may deduct such sum from any money due or become due to the Contractor under the
contract or recover the same from the Contractor as a debt.

43.2 The payment or deductions of such damages shall not relive the Contractor from his
obligations to complete the Works or any part thereof or from any other obligations and
liabilities under the contract.

44.0 ANTIQUITIES AND OTHER OBJECTS OF VALUE

44.1 All fossils, antiquities and other objects of interest or value which may be found on the site
or in excavating the same during the progress of the work, shall become the property of
the Employer. The Contractor shall carefully take out and preserve all such objects and
shall immediately or as soon as convenient after the discovery or such articles, delivery the
same into the possession of the Architect or of the Clerk of Works uncleaned and as
excavated

44.2 If in the opinion of the Architect, compliance with the provisions of the proceeding sub-
clause has involved the Contractor in direct loss and or expense for which he would not be
reimbursed by a payment made under any other provision in this contract, then the
quantity Surveyor shall assess the amount of such loss and or expense. Any amount form
time to time so assessed shall be added to the contract price, and if an interim certificate is
issued after the date of assessment, any such amount shall be added to the amount which
would otherwise be stated as due in such a certificate.

36
45.0 SETTLEMENT OF DISPUTES

45.1 In case any dispute or difference shall arise between the Employer or the Architect on his
behalf and the Contractor, either during the progress or after the completion or
abandonment of the Works, such dispute shall be notified in writing by either party to the
other with a request to submit it to arbitration and to concur in the appointment of an
Arbitrator within thirty days of the notice. The dispute shall be referred to the arbitration
and final decision of a person to be agreed between the parties. Failing agreement to
concur in the appointment of an Arbitrator, the Arbitrator shall be appointed by the
Chairman or Vice Chairman of The Architectural Association or Kenya or by the Chairman
or Vice Chairman of the Chartered Institute of Arbitrators, Kenya Branch, on the request of
the applying party.

45.2 The arbitration may be on the construction of this contract or on any matter or thing of
whatsoever nature arising there under or in connection therewith, including any matter or
thing left by this contract to the discretion of the Architect, or the withholding by the
Architect of any certificate to which the Contractor may claim to be entitled or the
measurement and valuation referred to in clause 34.0 of these conditions, or the rights and
liabilities of the parties subsequent to the termination of contract.

45.3 Provided that no arbitration proceedings shall be commenced on any dispute or difference
where notice of a dispute or difference has not been given by the applying party within
ninety days of the occurrence of discovery of the matter or issue giving rise to the dispute.

45.4 Notwithstanding the issue of a notice as stated above, the arbitration of such a dispute of
difference shall not commence unless an attempt has in the first instance been made by
the parties to settle such dispute or difference amicably with or without the assistance of
third parties.

45.5 In any event, no arbitration shall commence earlier than ninety days after the service of
the notice of a dispute or difference.

45.6 Notwithstanding anything stated herein the following matters may be referred to
arbitration before the practical completion of the works or abandonment of the Works or
termination of the contract by either party

45.6.1 The appointment of a replacement Architect, Quantity Surveyor or

Engineer upon the said persons ceasing to act.

45.6.2 Whether or not the issue of an instruction by the Architect is empowered

by these conditions.

45.6.3 Whether or not a certificate has been improperly withheld or is not in

accordance with these conditions.

45.6.4 Any dispute or difference arising in respect of war risks or war damage.

45.7 All other matters in dispute shall only be referred to arbitration after the practical
completion or alleged practical completion of the Works, or abandonment of the Works, or
termination of alleged termination of the contract, unless the Employer and the Contractor
agree otherwise in writing.

45.8 The Arbitrator shall, without prejudice to the generality of his powers, have powers to
direct such measurements, computations, tests or valuations as may in his opinion be
desirable in order to determine the rights of the parties and assess the award any sums
which ought to have been the subject of or included in any certificate.

45.9 The Arbitrator shall, without prejudice to the generality of his power, have powers to open
up, review and revise any certificate, opinion, decision, requirement or notice and to
determine ass matters in dispute which shall be submitted to him in the same manner as if
no such certificate, opinion, decision, requirement or notice had been given.

45.10 The award of such Arbitrator shall be final and binding upon the parties

37
APPENDIX CLAUSE

Percentage of cover professional fees for insurance purposes only

13.0

Name of Contractor’s surety 16.1

Amount of surety 16.1

Name of Employer’s surety 16.2

Amount of surety 16.2

Period of submission of programme 18.1

Period of possession of site 20.1

Contract period 20.2

Date of commencement of Works 20.2

Date for practical completion 20.2

Name of the bank for purposes of interest calculation 31.14

32.4.5
34.6

Interval for application of payment certificates 34.1

Minimum amount of payment certificate 34.4

Percentage of certified value retained 34.12

Limit of retention fund 34.12

Periods for release of interest on retention money to Contractor

34.15

Period of final measurement and valuation 34.17

Defects liability period 41.6

Damages for delay in completion 43.1 at the rate of Kshs.

Signed by the said:

_______________________________ __________________
EMPLOYER CONTRACTOR

38
 CONTRACTORS PERFORMANCE BOND

BY THIS AGRREMENT, we …………………………………………………………………………………………………………..(SURETY)

of …………………………………………………………………..…………………………………………………………………..… are bound

to …………………………………………………………………………………………. (EMPLOYER) in the sum of Kenya Shillings

……………………………………………………………………………………………………… (Kshs. ……………………………) to be paid

by us to the said ………………………………………………………………………………………………….……………….. (EMPLOYER)

WHEREAS by an agreement in writing dated …………………………………………………………….……………….

……………………………………………………………………………………………………………………….. (CONTRACTOR) entered

into contract with ………………………………………………………………………………………………………………… (EMPLOYER)

to carry out and complete the works therein stated in the manner and by the time therein specified all in
accordance with the provisions of the said contract, namely; (description of Works)

NOW the condition of the above written bond in such that if the said Contractor his executors, administrators,
successors or assigns shall duly perform his obligations under the contract, or if on default by the Contractor the
Surety shall satisfy and discharge the damages sustained by the Employer thereby up to the amount of the
above written bond, then this bond shall be void, otherwise it shall remain in full force and effect. Upon default,
and without prejudice to his other rights under the contract, the Employer shall be entitled to demand forfeiture
of the bond and we undertake to honor the demand in the amount stated above.

PROVIDED always and it is hereby agreed and declared that no alteration in the terms of the said contract or in
the extent or nature of the works to be carried out and no extension of time by the Architect under the contract
shall in any way release the Surety from any liability under the above written bond.

IN WITNESS whereof we have set out hands this …………………………………….………. days of …………………….…..

………………………………………………………………. ……………………………………………………………..
Surety Witness

Authorized by Power of Attorney No …………………..

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