outcome maintenance contract conditions of contract · conditions of contract draft 3a, ......

Outcome Maintenance

Contract

Conditions of Contract

© NZ Transport Agency

www.nzta.govt.nz

<<This page is to be left blank.>>

Document Change Format Codes

Black

Black text is mandatory and may not be changed without approval from the OMC Model Control

Group.

Black

Struckout black text is used for removing mandatory content that has been prior approved by

the OMC Model Control Group to be removed. Struckout text provides transparency of changes

to an otherwise nationally consistent document. All struckout text must be confirmed within

Section 7.1 of the MS.

Red

Red text is used for data which requires fields to be updated or at least considered for each

contract. Text can also be used as is, modified or replaced. All red text adjustments must have

the State Highway Manager’s approval.

Blue

Blue text is used for optional clauses which can be included as is or deleted in full.

Purple

Purple text is used for prequalification clauses which are to be included for prequalification

tenders only. Prequalification clause details must be prior approved with the Group Manager,

Highway and Network Operations.

Green

Green text is used where prequalification is not used. Non-prequalification clause details must

be prior approved with the Group Manager, Highway and Network Operations.

<<Guidance Notes>>

Blue text with yellow highlighting and marked at the beginning with << and the end with >> are

guidance notes for the Tender Document creator. Guidance notes must be removed prior to

tender document release.

NZ Transport Agency Page CC 3 of 38


Draft 3A, 19 April 2013

Contents

1 General Conditions 5

2 First Schedule: Schedules to the General

Conditions of Contract - Special Conditions of

Contract 6

3 Second Schedule: Contract Agreement for Contract 18

4 Third Schedule: Form of Contractor’s Performance

Bond for Contract: 20

5 Fifth Schedule: Form of Contractor’s Bond In Lieu

of Retentions For Contract 22

6 Sixth Schedule: Form of Producer Statement -

Construction for Contract 24

7 Seventh Schedule: Information as to Contract

Works Insurance 25

8 Eighth Schedule: Information as to Public Liability

Insurance 27

9 Ninth Schedule: Information as to the Contractors

Machinery Insurance for Contract 29

10 Tenth Schedule: Information as to the Contractor’s

Motor Vehicle Insurance for Contract 30

11 Eleventh Schedule: Information as to the

Contractor’s Professional Indemnity Insurance 31

12 Twelfth Schedule: Cost Fluctuations 32

13 Thirteenth Schedule: Contract Risk Profile 34



Draft 3B, 11 June 2013

1 General Conditions

The General Conditions of contact shall be those included in NZS 3910: 2003

Conditions of Contract for Building and Civil Engineering Construction and the

following clauses.

Page CC 6 of 38 NZ Transport Agency



2 First Schedule: Schedules to the General Conditions

of Contract - Special Conditions of Contract

(Clause numbers refer to General Conditions)

<<Guidance note: remove all “guidance notes” for final publication.>>

PART A – SPECIFIC CONDITIONS OF CONTRACT

1.2

The Principal is The NZ Transport Agency and <<Insert Local Authority Name if

Joint Principals>>, a Crown entity, established on 1 August 2008 by Section 93 of the

Land Transport Management Act 2003 of <<insert street address>>.

<< Guidance note: Where the contract has joint principals the following clauses (a) to

(d) are to be added otherwise delete these clauses.>>

(a) References to the Principal

References to the Principal in the Contract Documents are references to the <<Insert

Name>> Council and New Zealand Transport Agency. Subject to the provisions allowed

for under this Contract, where the entities comprising the Principal are referred to

individually, all provisions in the Contract Documents relating to the Principal shall be

deemed to the references to the entities comprising the Principal acting jointly.

(b) Several Liability of Principal

Notwithstanding the provisions of that above, the liability of each of New Zealand

Transport Agency and the <<Insert Name>> Council under the Contract Documents

shall not be joint, nor a joint and several liability but shall be a several liability, to the

intent that:

(i) New Zealand Transport Agency’s several liability is limited to acts, omissions,

liabilities and obligations of the Principal in relation to those State Highways for

which New Zealand Transport Agency has statutory responsibility as described in

the Schedule of Prices and the Maintenance Specification.

(ii) The <<Insert Name>> Council’s several liability is limited to acts, omissions,

liabilities and obligations of the Principal in relation to those local roads for

which the <<Insert Name>> Council has statutory responsibility as described in

the Schedule of Prices and the Maintenance Specification.

(iii) Neither New Zealand Transport Agency nor the <<Insert Name>> Council is liable

to the Contractor for the separate acts or omissions of either of them.

(iv) Neither New Zealand Transport Agency nor the <<Insert Name>> Council is liable

for any breach of any obligation or warranty in the Contract Documents by the

other of them.

(c) Payment for Services




In accordance with the principle of several liability of those quantities comprising the

Principal, the lump sum and measure and value payments for services by the Principal

is divided into two separate amounts referable to the services being provided by the

Contractor to New Zealand Transport Agency (in respect to the State Highways) and to

the <<Insert Name>> Council (in respect to the local roads) respectively, the separate

lump sums and measure and value being specified in the Contract Agreement, and all

provisions in the Contract Documents relating to payment for Services and adjustment

to payment for the services shall be deemed to be the respective entities comprising

the Principal, and adjustments to those payments. Accordingly, clause 12.2 and clause

12.4 of the General Conditions of Contract in relation to claims for payment for

Services by the Contractor, require the Contractor to apportion the value of such

claims to the respective entities comprising the Principal in accordance with their

respective several obligations and liabilities specified in B above.

(d) Principals Joint Venture Agreement

<<include joint Principal’s agreement.>>

(a) Subject to Clause 14 and the performance management framework requirements

as set out in Section 4 of the Maintenance Specification, the term of the contract

is :

<<delete which is not applicable.>>

(i) 5 Years with a maximum term of 7 years.

(ii) 7 Years with a maximum term of 9 years.

2.5

This contract is:

(b) A term maintenance contract (including a road maintenance contract).

2.6.1

This contract is:

(a) This is a local authority contract and NZS 3910, clause 2.6 shall apply.

(b) Not a local authority contract.

<<Where the contract includes local authority roads delete (b) otherwise delete (a),

above.>>

2.8.1

<<Insert number of sets that will be supplied.>>

X sets of Contract Documents shall be supplied free of charge to the Contractor upon

the acceptance of tender in addition to tender, consent, and Contract Agreement sets.

3.1.1

A Contractor's Bond:

(b) Is not required.

3.2.1




A Principal's bond:

(a) Is not required.

5.4.1

Subject to Clauses 10.8, the Contractor shall be given possession of the site on

<<define day/month/year>>

5.5.1

The Principal may engage separate contractors including (but not limited to):

<<delete or add where applicable.>>

Traffic Counting,

Bridge Consultancy,

Structure Bridge Renewals,

Tunnels,

Traffic Signals,

Street Lighting,

Street Cleaning,

High Speed Data,

RAMM Condition Rating.

5.6.6

(g) Risks specifically excepted are listed in the Thirteenth Schedule.

5.11.1

(b) There are no parts of the Contract Works to which Appendix D applies.

5.17.1

Quality management systems:

(a) Are required and details shall be submitted by the time specified in the contract

documents, Maintenance Specification, Sections 4 and 6.

5.18.1(a)

(b) As-built drawings are not required.

5.18.1(b)

(b) Operation and maintenance manuals are not required.

6.1.2

The Engineer is <<insert name>> whose professional qualification is <<insert

qualification>>.

6.4.6

The Engineer's costs will be based on the following rates, excluding GST:

(a) Engineer $XXX.XX/hour




(b) Engineer's Representative $XXX.XX/hour

(c) Contract Manager and other personnel $XX.XX/hour

(d) Vehicle running $X.XX/km

8.1 and 8.6

(b) The Principal shall insure as provided for in 8.6.

8.2.1

Contractor’s Plant insurance is required for each item of construction machinery on the

site owned by the Contractor that has a market value of more than:

(a) $50,000; or

(b) $ XXX.XX

(Delete provision which does not apply.)

8.3 and 8.7

(b) The Principal shall insure as provided for in 8.7.

8.3.2

Motor vehicle third party liability insurance shall be effected for an amount not less

than $5,000,000.

8.4.1

<<For high risk project specific contracts Insurance Levels must be reviewed and

approved by the “Insurance Risk Sub VAC” via Appendix XXIII of SM021 Manual

([email protected]). Contracts are high risk where: 1) the contract period is

greater than 3 years, OR 2) the term Maintenance contract value is greater than

$50M, OR 3) bridge construction cost is greater than $10M OR 4) the contract involves

works considered to be of a high risk in nature.>>

(a) Professional indemnity insurance for design by the Contractor shall be effected

for an amount not less than $XXX.XX

8.6

For the insurance policies required under the following clauses:

The insurers are:

8.6.2(a) Great Lakes, Corporate Branch UK

8.6.2(b) Great Lakes, Corporate Branch UK

8.6.2(c) Great Lakes, Corporate Branch UK

The deductibles are:

8.6.2(a) Refer to http://www.nzta-pai.aon.co.nz

8.6.2(b) Refer to http://www.nzta-pai.aon.co.nz

8.6.2(c) Refer to http://www.nzta-pai.aon.co.nz

mailto:[email protected]

http://www.nzta-pai.aon.co.nz/






The exclusion and other limitations, if any, are:

8.6.2(a) Refer to http://www.nzta-pai.aon.co.nz

8.6.2(b) Refer to http://www.nzta-pai.aon.co.nz

8.6.2(c) Refer to http://www.nzta-pai.aon.co.nz

8.6.1

The amount of the insurance to be effected in respect of the Contract Works and

Materials has been set out in the Seventh Schedule.

8.7.1

Public liability insurance shall be affected for an amount as specified in Eighth

Schedule.

10.2.1

The period to be used for calculating the Due Date for Completion (the "Contract

Period") will be determined in accordance with Clause 10.8, terminating at 12 noon.

Subject to Clause 10.8 and the performance management framework requirements as

set out in Section 4 of the Maintenance Specification, the contract period is:

<<delete which is not applicable.>>

i. 3 years, with up to 4 additional extensions of 1 year each.

ii. 3 years, with up to 6 additional extensions of 1 year each.

10.4.5

Prior to the issue of certificate of Practical Completion:

(c) A producer statement is not required.

11.1.1

The Period of Defects Liability shall be:

(a) In respect of the Contract Works:

i. Sealed Road Resurfacing, 52 Weeks

ii. Pavement Rehabilitation, 52 weeks

iii. All Other Works not i or ii above, 0 weeks.

11.3.2

Prior to the issue of the Defects Liability Certificate:

(c) A producer statement is not required;

11.5.1

(b) No guarantees are required.







12.1.2(b)(iv)

(b) Advances for Temporary Works, Plant or Materials not yet on site shall not be

made to the Contractor.

12.3.1

The percentage to be retained from each progress payment and the limit of the total

sums retained shall be nil if the Contractor provides a Bond in Lieu of Retentions (see

Fifth Schedule). The value of the bond shall be the applicable retention amount plus a

further 10%. Otherwise the total sums retained shall be:

(a) In respect of the Contract Works:

Total 10% for the first $200,000, plus

5% for the next $800,000, plus

1.75% for any amount in excess of $1,000,000 with a maximum of $100,000.00

when aggregated.

Defects liability retention

50% of total retention.

12.8.2

Cost fluctuation adjustments:

(c) Shall be paid as set out in the Twelfth Schedule.

12.9.1

(a) Provisional Sums are included in the schedule of quantities.

12.10.1

(c) There are no Prime Cost Sums.

12.11.1

The contingency sum to be included in the contract is $0.00.

15.1.2

For the purpose of service of notices, the postal address of:

(a) The Principal is the New Zealand Transport Agency, PO Box <<insert Box number,

City>>

For the attention of: <<insert name>>

Fax Number: <<insert fax number>>

(b) The Engineer is <<insert name, title, address, City>>



(c) The Contractor is the successful tenderer as identified in the Second Schedule

(completed after award)






NOTE – The General Conditions of Contract also provide in the following clauses for

matters which may be dealt with by further specific conditions of contract:

2.4.1 Cost reimbursement contract details.

2.7.2 Execution of Contract Agreement.

2.8.3 Variation or modification of General Conditions.

5.4.3 Access to adjoining properties.

5.5 Separate contractors.

5.9.1 Exceptions to Contractor’s obligation to supply.

5.9.3 Advances for Plant or Materials.

5.10.1 Programme.

7.1.2(d) Risks specifically excepted.

8.8.1(d) Risk, loss or damage not covered by Principal’s insurance.

9.4.2 Variations carried out on Daywork basis.

12.1.1 Frequency of payment claims.

12.3.3 Contractor’s bond in lieu of retentions.

12.12.2 Goods and services tax.




PART B - OTHER CONDITIONS OF CONTRACT

1.2 Definitions

The following definitions are provided in addition to the existing definitions.

CONTRACT MANAGEMENT PERSONNEL means the Contractor's Representative or

Contract Manager (see Tender Documents, Clause 4.4).

CONTRACT PERIOD means the period defined in clause 10.2.1.

ENSURE means to undertake the specified service to the required duty of care as

limited only by the level(s) of service specified in the contract documents and taking all

demonstrably practicable steps to secure the project from the introduction of

unnecessary risk.

NETWORK means the network described in Specification, Section 1.

Delete the existing working day definition and replace with the following:

WORKING DAY means any calendar day other than Sunday, or a Public Holiday where

the day observed as the Public Holiday falls on any day of the week, except a Sunday.

Delete 2.1.1 and replace with:

2.1.1 This contract is a combined Lump Sum and Measure and Value contract.

In addition to Section 5 of the General Conditions, there shall be a special

condition as follows:

5.1.7 During the term of the contract the Contractor must advise the Engineer to

the Contract of any potential or actual conflicts of interest with any individual or

company engaged to complete works included within the scope of the contract. This

includes individuals and companies engaged in any subcontractor or other supply

arrangement.

The Contractor must advise the Engineer to the Contract the means that they intend to

use to remove or mitigate such conflicts of interest.

The Engineer to the Contract must then refer the matter to the Principal, and, the

Principal will, in discussion with the Engineer to the Contract, decide the appropriate

action required to remove or mitigate any actual or potential conflict of interest. The

Engineer to the Contract must ensure the Contractor implements any action required.

A new clause 5.19 is added as follows:

5.19.1 All intellectual property rights of the Contractor that are not developed,

commissioned or created under or in connection with this contract remain the property

of the Contractor.

5.19.2 All new intellectual property rights that are developed, commissioned or

created under or in connection with this contract (including any intellectual property




rights in photographs or video footage taken by the Contractor at the Site will be

owned by the Principal as such rights are created.

5.19.3 Without limiting clause 5.19.2, in all cases where the Principal does not own

the intellectual property rights in the Contract Works, the Contractor grants (or shall

procure the grant) to the Principal a perpetual, non-exclusive, worldwide and royalty-

free licence to use, copy, modify and distribute all such intellectual property rights for

any purpose.

5.19.4 For the purposes of this clause, “intellectual property rights” means all

intellectual property rights and interests, including copyright, trademarks, designs,

patents and other proprietary rights, recognised or protected by law.

Delete 6.2.1 and replace with:

6.2.1 The role of the Engineer in the administration of this contract is:

a) Independently of either contracting party, fairly and impartially make

decisions entrusted to him or her under the Contract Documents, to

confirm the valuation of the work and issue certificates at due times,

and

b) To deal with contract administration other than issues relating to:

The day to day programming and management of general

maintenance activities, and

Directing the Contractor on which defects to repair and/or

accepting or rejecting completed maintenance works.

c) Not to supervise the Contract Works.

Delete 6.4.2 and replace with

6.4.2 The providing of samples or making and reporting tests ordered by the

Engineer, the Cost, including any Costs incurred by the Engineer or the Principal, shall

be borne by the Contractor.

In addition to Section 8 of the General Conditions, there shall be a special

condition as follows:

Delete 8.5.4 and replace with

8.5.4 The Contractor shall, prior to the commencement of the Contract Works,

deposit with the Engineer information from insurers or insurance brokers on Clause

8.4.1 of the Special Condition of Contract (Professional Indemnity) required by the

General Conditions and Special Conditions. The Principal under Clause 8.5.6 reserves

the power to require production at any time of policies, receipts or certificates of

currency for all the insurances required by the General Conditions and Special

Conditions.

Section 8, Clause 8.8.2 of the General Conditions, is deleted and replaced with the

following if “8.1 and 8.6 (b)” option is chosen by Contractor:




8.8.2 Insurances under 8.6 or 8.7 may be subject to any deductible, exclusion,

condition or warranty provided under the policy. The Contractor shall be liable for

such deductibles and where any exclusion applies.

In addition to Section 8 of the General Conditions, there shall be special conditions

as follows if “8.3 and 8.7 (b)” option is chosen by Contractor:

8.8.8 Specific policy wording, cover deductibles, exclusions, conditions and

warranties provided for under the policy applicable to this contract which can be read

at the following website: http://www.nzta-pai.aon.co.nz.

8.9 Contractor to insure against motor vehicle third party liability risks

8.9.1 The Contractor shall effect motor vehicle third party insurance against legal

liability to third parties arising from the use of any motor vehicle belonging to or under

the care, custody or control of the Contractor in connection with the execution of the

Contract Works. In this clause 8.9 the term “motor vehicle” shall mean any item of

construction machinery which is licensed or required by law to be licensed as a motor

vehicle. The insurance shall be for an amount not less than $5,000,000.00 for any one

claim or series of claims arising out for the same occurrence.

Amend Section 9 - Variations

In Clauses 9.1.1, 9.1.2, 9.1.3, 9.2.1, 9.2.2 and 9.4.2 the term Engineer is deleted and

replaced with the term Engineer’s Representative.

Section 10, new Clauses 10.1.3 and 10.8 are added as follows:

10.1.3 No sealing operations shall take place over the Winter Period without the prior

approval from the Engineer.

10.8 Contract Period and extensions

10.8.1 The Contract Period shall be a minimum of 3 years and may be extended in

accordance with clauses 10.8.2 to 10.8.5. Nothing in this clause 10.8 prejudices the

Principal’s right to terminate this contract in accordance with any other provision

contained in the Contract Documents.

10.8.2 Extensions of the Contract Period ("Extensions") are earned or lost in 1 year

increments as set out below in the following table. <<delete column not applicable to

contract term>>

Table 10.8: Contract Extensions

End of

Contract

Year

Five Year Contract Term Seven Year Contract Term

Extension Years

available to be

Earned

Extension Years

available to be

Lost

Extension Years

available to

Earned

Extension Years

available to be

Lost

1 0 1 0 2

2 1 1 1 2





Table 10.8: Contract Extensions

End of

Contract

Year

Five Year Contract Term Seven Year Contract Term

Extension Years

available to be

Earned

Extension Years

available to be

Lost

Extension Years

available to

Earned

Extension Years

available to be

Lost

3 1 1 1 1

4 1 1 1 1

5 1 0 1 1

6 0 0 1 1

7 0 0 0 0

10.8.3 Extensions are earned and lost in each Contract Year as stated in table above

as follows:

a) at the end of each Contract Year where the overall annual performance level is

rated Minimum Condition of Satisfaction, Best Practice or Outstanding (as per the

Maintenance Specification), the stated Extension is earned; and

b) at the end of each Contract Year where the overall annual performance level is

rated Poor, the stated Extension is lost.

To avoid doubt where Extensions are lost, the number of Extensions may be a

negative number but that shall not reduce the Contract Period below 3 years.

10.8.4 The Principal shall give written notice to the Contractor of any Extension

earned or lost not less than <<insert notice period>> before the expiry of the then

current term.

10.8.5 Notwithstanding anything else in the Contract Documents, the Principal is not

obliged to grant any Extensions if, at its absolute discretion, it determines that an

Extension is not in the interests of its operational requirements.

Section 11, Clause 11.2.1 of the General Conditions, is deleted and replaced with

the following:

11.2.1 The Contractor shall remedy all defects in the Contract Works arising prior to

or within the Period of Defects Liability, from defective workmanship or Materials. The

Engineer’s Representative shall give notice in writing to the Contractor during the

Period of Defects Liability or within five Working Days thereafter of defects to be

remedied, including a date by which their remedy is required. In setting this date, the

Engineer’s Representative shall make an assessment of what is a reasonable time for

the remedy of each of the defects identified. That date shall not be more than 20

working days from the date the defect is notified to the Contractor unless the

Engineer’s Representative agrees otherwise in writing.




Section 11, Clause 11.2.3 of the General Conditions, is deleted and replaced with

the following:

11.2.3 If the Contractor fails to complete the remedial works by the required date as

set out under 11.2.1, the Principal shall be entitled, after giving the Contractor notice,

to employ others to carry out such remedial work. The Principal shall be entitled to

recover the Cost of such work from the Contractor, including all costs and expenses of

assessment and supervision whether by the Engineer or otherwise, and a reasonable

allowance for associated administrative and professional costs and expenses.

Section 12, Clause 12.1.2 (c) is deleted and replaced with the following:

(c) Indicate the due date for payment which shall be the Principal’s payment date

which occurs no less than 17 Working Days after the date of service of the

payment claim. The Principal’s payment dates are on the 5th

and 20th

of the

Month, or the first Working Day there-after.

Add Section 12, Clause 12.1.2 (f):

(f) For the purposes of clause 12.2, be deemed to be received 17 Working Days

prior to the due date for payment as defined in clause 12.1.2 (c).

Add new 12.2.8

12.2.8 The Contractor acknowledges that the Principal’s right to deduct moneys from

payments otherwise due to the Contractor under the Contract Documents where that

right of deduction arises from the implementation of schemes covered in:

Section 2 of the Maintenance Specification known as the Value Management

Proposition (and referred to in the Instructions for Tendering),

Sections 6.1.2 and 6.1.3 of the Maintenance Specification known as the Pavement

Rehabilitation and Sealed Road Resurfacing respectively.

This is a right in addition to and not in substitution for the Principal’s rights under the

Contract Documents arising from any breach by the Contractor of its obligations under

the Contract Documents.




3 Second Schedule: Contract Agreement for Contract

Contract for: <<Insert number and name>>

THIS AGREEMENT is made on the <<insert Number>> day of <<Insert Month Year>>

Parties

1. The NZ Transport Agency, a Crown entity, established on 1 August 2008 by

Section 93 of the Land Transport Management Act 2003 (the “Principal”).

And

2. <<insert Name>> of <<insert Location>>

(the “Contractor).

IT IS AGREED as follows:

1. THE Contractor shall carry out the obligations imposed on the Contractor by the

Contract Documents.

2. THE Principal shall pay the Contractor the sum of $<< insert amount in

numbers>> or such greater or lesser sum as shall become payable under the

Contract Documents together with Goods and Services Tax at the times and in

the manner provided in the Contract Documents.

3. EACH party shall carry out and fulfil all other obligations imposed on that party

by the Contract Documents.

4. THE Contract Documents are this Contract Agreement and the following which

form part of this agreement:

a. The Conditions of Tendering.

b. Notices to Tenderers (give details with dates).

c. The Contractor’s tender.

d. The notification of acceptance of tender.

e. The General Conditions of Contract, NZS 3910:2003.

f. The Special Conditions of Contract.

g. Specifications issued prior to the Date of Acceptance of Tender.

h. Drawings issued prior to the Date of Acceptance of Tender.

i. The Schedule of Prices.




j. The following additional documents. (Identify any additional documents to

be included, for example, agreed correspondence).

SIGNED for and on behalf of In the presence of a WITNESS

The NZ Transport Agency by Signature:

Name: Name:

acting pursuant to delegated authority Occupation:

Address:

SIGNED for and on behalf of In the presence of a WITNESS

The Contractor by Signature:

Signature: Name:

Name: Occupation:

Occupation: Address:

Address:




4 Third Schedule: Form of Contractor’s Performance

Bond for Contract:


<<Exclude if Part A Clause 3.1.1 (a) is selected, delete below and replace with. “Not

included for this Contract>>

THIS DEED is made on the <<insert Number>> day of <<insert Month Year>>

By

1. <<insert Name>> of <<insert Company Name and Location>>

(the “Contractor”).

And


(the “Sureties”).

IT IS MADE in the following circumstances:

a. The Contractor has entered into an agreement with the NZ Transport Agency

(“the Principal”) to carry out and fulfil the obligations imposed on the Contractor

by the Contract Documents forming part of the agreement including any to

design, construct, complete, and deliver, and remedy defects in, certain works

described in the Contract Documents.

b. The Contract Documents require the Contractor to provide the Principal with

security in the form of a bond to ensure performance of the Contractor’s

obligations under the Contract Documents.

BY THIS DEED:

1. THE Contractor and Sureties are jointly and severally held and bound to the

Principal in the sum of $ <<insert amount in numbers>> and bind themselves,

their successors and assigns jointly and severally for the payment of that sum.

2. THE condition of this bond is that it shall be null and void if:

a. The Contractor duly carries out and fulfils all the obligations imposed on

the Contractor by the Contract Documents prior to the commencement of

the Period of Defects Liability referred to in the Contract Documents; or

b. The Contractor satisfies and discharges the damages sustained by the

Principal in respect of all defaults by the Contractor up to the

commencement of the Period of Defects Liability or the termination of the

contract; or




c. The Sureties satisfy and discharge up to the amount of the bond the

damages sustained by the Principal in respect of all defaults by the

Contractor up to the commencement of the Period of Defects Liability or

the termination of the contract; or

d. A Practical Completion certificate has been issued in respect of the

Contract Works in accordance with Clause 10.4 of the General Conditions

of Contract.

3. EXCEPT as provided in Clause 2 above this bond shall be and remain in full force

and effect.

4. THE Sureties shall not be released from any liability under this bond:

a. By any alteration in the terms of the contract between the Principal and the

Contractor;

b. By any alteration in the extent or nature of the Contract Works to be

completed, delivered and having defects remedied;

c. By any allowance of time by the Principal or by the Engineer appointed by

the Principal under the Contract Documents;

d. By any forbearance or waiver by the Principal or by the Engineer in respect

of any of the Contractor’s obligations or in respect of any default on the

part of the Contractor.

5. THIS bond shall be governed by New Zealand law.

THE COMMON SEAL of

<<insert Name>>

Was affixed in the presence of Name:

Signature:

THE COMMON SEAL of

<<insert Name>>


Signature:

Note:

This bond must be executed by the Contractor and by the Surety or Sureties in the

manner required for execution of a deed. Any of these parties which is a company or

body corporate must execute by affixing its seal, which may be attested in the manner

provided in its articles of association or other constitution. Alternatively, a company

may execute the bond by having it signed, under the name of the company, by two or

more directors. If there is only one director, it is sufficient if the bond is signed under

the name of the company by that director, but the signature must be witnessed. In the

case of a party who is an individual, the party must sign and the signature must be

witnessed by another person. The witness must not only sign but must also add their

occupation and address.




5 Fifth Schedule: Form of Contractor’s Bond In Lieu of

Retentions For Contract


THIS DEED is made on the <<insert Number>> day of <<insert Month Year>>

By


(the “Contractor”).

And


(the “Sureties”).

IT IS MADE in the following circumstances:

a. The Contractor has entered into an agreement with the NZ Transport Agency

(“the Principal”) to carry out and fulfil the obligations imposed on the Contractor

by the Contract Documents forming part of the agreement including any to

design, construct, complete, and deliver, and remedy defects in, certain works

described in the Contract Documents.

b. The Contractor has agreed to provide the Principal with security in the form of a

bond in lieu of retentions additional to any other bond required under the

Contract Documents.

BY THIS DEED:

1. THE Contractor and Sureties are jointly and severally held and bound to the

Principal in the sum of $ <<insert amount in numbers>> ("the bond amount") and

bind themselves, their successors and assigns jointly and severally for the

payment of that sum.

2. THE condition of this bond is that it shall be null and void if:

a. The Contractor duly carries out and fulfils all the obligations imposed on

the Contractor by the Contract Documents prior to the issue of the Defects

Liability Certificate referred to in the Contract Documents; or

b. The Contractor satisfies and discharges the damages sustained by the

Principal in respect of all defaults by the Contractor up to the issue of the

Defects Liability Certificate or the termination of the contract; or

c. The Sureties satisfy and discharge up to the amount of the bond the

damages sustained by the Principal in respect of all defaults by the

Contractor up to the issue of the Defects Liability Certificate or the

termination of the contract.




3. EXCEPT as provided in Clause 2 above this bond shall be and remain in full force

and effect.

4. THE Sureties shall not be released from any liability under this bond:

a. By any alteration in the terms of the contract between the Principal and the

Contractor;

b. By any alteration in the extent or nature of the Contract Works to be

completed, delivered and having defects remedied;

c. By any allowance of time by the Principal or by the Engineer appointed by

the Principal under the Contract Documents;

d. By any forbearance or waiver by the Principal or by the Engineer in respect

of any of the Contractor’s obligations or in respect of any default on the

part of the Contractor.

5. THIS bond shall be governed by New Zealand law.

THE COMMON SEAL of

<<insert Name>>


Signature:

THE COMMON SEAL of

<<insert Name>>


Signature:

Note:

This bond must be executed by the Contractor and by the Surety or Sureties in the

manner required for execution of a deed. Any of these parties which are a company

must execute the bond by having it signed, under the name of the company, by two or

more directors. If there is only one director, it is sufficient if the bond is signed under

the name of the company by that director, but the signature must be witnessed by

another person. The witness must not only sign but must also add their occupation

and address. Alternatively, companies may execute under power of attorney. Any

party which is a body corporate (other than a company) must execute by affixing its

seal, which must be attested in the manner provided for in the rules of, or applicable

to, the body corporate. In the case of a party who is an individual, the party must sign

and the signature must be witnessed by another person. The witness must not only

sign but must also add their occupation and address.




6 Sixth Schedule: Form of Producer Statement -

Construction for Contract

Contract for: <<insert number and name>>

Issued by:

<<insert Name of Contractor>>

(Contractor)

To:

The NZ Transport Agency

(Principal)

In respect of:

<<insert Description of Contract Works>>

(Description of Contract Works)

At:

<<insert Address>>

(Address)

<<insert Contractor>> (“Contractor”) has contracted to the NZ Transport Agency

(“Principal”) to carry out and complete certain building works in accordance with a

Contract, titled <<insert Name of Project>> (“the Contract”).

I, <<insert Name of Authorised Agent>> a duly authorised representative of <<insert

Contractor>> believe on reasonable ground that <<insert Contractor>> has carried out

and completed:

all

part only as specified in the attached particulars

of the building works in accordance with the Contract.

<<insert Name of Authorised Agent>>, on behalf of <<insert Name of Contractor>>

Signature: Date:

Title: Address:




7 Seventh Schedule: Information as to Contract

Works Insurance


<<Insert the below note for contracts with a base estimate of less than $50M pa) Note:

For Contracts with a base estimate of less than $50M (pa), NZTA will download the

Principal Arranged Insurance (PAI) Schedule 7 from http://www.nzta-pai.aon.co.nz

and replace the below Schedule 7 template within the Contract Documents before the

RFT is issued.>>

To: New Zealand Transport Agency

Address: <<insert Postal Address>>

From: <<insert Name of Insurance Company>>


We confirm having effected Contract Works Insurance for:

<<insert name of Contractor>> (“the Contractor”)

<<insert name of Principal>> (“the Principal”)

In respect of <<insert Contract Title>> (“Project Title”)

8.1.2 The Sums Insured are:

Contract Price $ (Plus GST)

8.1.2(a) Costs of Demolition $ (Plus GST)

8.1.2(b) Professional Fees $ (Plus GST)

8.1.2(c) Value of items incorporated or to be

incorporated

$ (Plus GST)

8.1.2(d) Increased construction costs $ (Plus GST)

Total Sum Insured $ (Plus GST)

The policy deductibles are:

Non earthquake $ (GST inclusive)

Earthquake $ (GST inclusive)

Other

(List)

$ (GST inclusive)

$ (GST inclusive)





We advise that the ‘special’ terms, copy attached, have been

applied to this policy

Yes/No

8.5.3,

8.8.4

Policy cover terms included are:

(a) Automatic reinstatement Yes/No

No cancellation for non-payment without prior notification Yes/No

Severally insured Yes/No

No settlement delay due to exercise of subrogation Yes/No

Project specific policy Yes/No

8.1.3 Construction

period

Defects liability

period

(both subject to alteration under construction date)

Annual run-off policy Yes/No

8.1.5 Annual cut-off policy

Policy expiry date Yes/No

We undertake that this policy will not be cancelled or amended by us within the period

of insurance without written advice to the insured party which has arranged the

insurances.

The insurance issued is subject to the terms and conditions of the policy. We do not

warrant that this policy complies with the requirements of NZS 3910:2003.

Insurance Company Stamp

Signature: Date:

Signatory’s Title:




8 Eighth Schedule: Information as to Public Liability

Insurance


<<Guidance note: Insert the below note for contracts with a base estimate of less than

$50M pa) Note: For Contracts with a base estimate of less than $50M (pa), NZTA will

download the Principal Arranged Insurance (PAI) Schedule 8 from

http://www.nzta-pai.aon.co.nz and replace the below Schedule 8 template within the

Contract Documents before the RFT is issued.>>




Address: <<Insert Postal Address>>

We confirm having effected Public Liability Insurance for:




Annual

Policy Yes/No Policy Expiry Date

8.3.1 The Limit of Indemnity $ (Plus GST)

8.3.1(a) Sub limit insured for Forest and Rural Fires Act $ (Plus GST)

8.3.1(b) Sub limit insured for vibration, removal or

weakening of support

$ (Plus GST)

8.3.1(c) Sub limit insured for damage to underground

services

$ (Plus GST)

We advise that the ‘additional’ terms, copy attached, have been

specifically applied to this project

Yes/No

The policy covers Liability arising out of:

The ownership/use of construction machinery not required to be

registered for road use

Yes/No

The use of hired plant Yes/No

The ownership/use of watercraft up to 8m Yes/No

The ownership/use of aircraft Yes/No

The use of explosives Yes/No





8.5.3,

8.8.4

Policy cover terms included are:

Automatic reinstatement Yes/No


Severally insured Yes/No


We undertake that this policy will not be cancelled or amended by us within the

period of insurance without written advice to the insured party which has arranged

the insurances.

The insurance issued is subject to the terms and conditions of the policy. We do

not warrant that this policy complies with the requirements of NZS 3910:2003.


Signature: Date:





9 Ninth Schedule: Information as to the Contractors

Machinery Insurance for Contract






We confirm having effected Plant Insurance for:




Annual Policy Yes/No Policy Expiry Date

8.2.1 The sums insured are:

Schedule of construction machinery attached $ (Plus GST)

The policy deductible is $ (GST inclusive)

We advise that ‘special’ terms, copy attached, have been applied to

this policy

Yes/No

8.5.3 Policy cover terms included are:

Automatic reinstatement Yes/No



We undertake that this policy will not be cancelled or amended by us within the period

of insurance without written advice to the insured party which has arranged the

insurances.




Signature: Date:





10 Tenth Schedule: Information as to the Contractor’s

Motor Vehicle Insurance for Contract





Address: << insert Postal Address>>

We confirm having effected Motor Vehicle Insurance for:




Annual Policy

Yes/

No Policy Expiry Date

8.3.2 8.9.1

(PAI)

The sums insured are:

Section 2 - Liability $ (Plus GST)

The policy deductibles are:

Section 2 $ (GST inclusive)

We advise that ‘special’ terms, copy attached, have been

applied to this policy

Yes/No

8.5.3 Policy cover terms included are:

(a) Automatic reinstatement Yes/No

No cancellation for non-payment without prior

notification

Yes/No




the insurances.




Signature: Date:





11 Eleventh Schedule: Information as to the

Contractor’s Professional Indemnity Insurance


To: <<insert Principal’s name>>



Branch: <<insert Branch Name>>


We confirm having effected Professional Indemnity Insurance for:


In respect of <<insert Contract Number and Name>> (“Project Title”)

Annual Policy Yes/No Policy Expiry Date

8.4.1 The limit of indemnity $ (Plus GST)

Deductible $ (GST inclusive)

The policy covers:

The number of automatic reinstatements Yes/No

We advise that additional terms (copy attached) have been

applied to this project.

Yes/No



the insurances.




Signature: Date:


(Clause numbers refer to NZS 3910:2003 and are for information only.)




12 Twelfth Schedule: Cost Fluctuations


<< Guidance note: This version of the Schedule is to be used for an HNO Primary

supplier maintenance contract.

Cost fluctuation adjustment payments are comprised of two components. The formula

for C (cost fluctuation adjustment for the month) is C = CI + CB where CI is based on

the value of work completed and the change in an NZTA index since tenders closed,

and CB is based on the volume of bitumen applied and the change in the NZTA bitumen

cost adjustment series since tenders closed.

The components CI and CB are expressed in the following terms below;

CI = [ (Value x (p / 100)) x (I / I’ – 1) ]

CB = [ Volume x (Bit – Bit’ ) ]

The NZTA index to be used will be a composite index (part NZTA reseals index (costs

excluding bitumen) - and part NZTA road maintenance index). >>

1. The provisions of this Schedule shall apply when provided for in the Special

Conditions.

2. Subject to the remainder of this Schedule, the amounts payable by the Principal,

to the Contractor under the Contract shall be adjusted up or down by amounts

calculated in accordance with the following formula:

C = [ (Value x (p / 100)) x (I / I’ – 1) ] + [ Volume x (Bit – Bit’ ) ]

Where

C = Cost fluctuation adjustment for the month under consideration

Value = Valuation of work completed during the month under consideration

taken from the Payment Schedule but without deduction for

retentions and excluding the cost fluctuation adjustment

p = The proportion of costs excluding bitumen (an estimate of total

contract costs excluding bitumen divided by an estimate of total

contract costs) is fixed for the duration of the contract and has a

value of Z% <<specify the value of Z% >>

I / I’ = The value of the index defined in Clause 3 for the month under

consideration divided by the value of the index for the month during

which tenders closed

Volume = Volume of residual bitumen binder applied during the month under

consideration (litres) taken from the Payment Schedule. Residual

bitumen is the non-volatile fraction of the bitumen binder that

remains in service after evaporation. Volume is measured at 15

degrees Celsius

Bit = Value of the NZTA Bitumen cost adjustment series for the month

under consideration, published on the NZTA website




Bit’ = Value of the NZTA Bitumen cost adjustment series for the month

during which tenders closed, published on the NZTA website.

3. The index shall be a composite index calculated from the NZTA road

maintenance index and the NZTA reseals index (costs excluding bitumen) –

applying weights of 0.X and 0.Y to each respectively and rounding to the nearest

whole number. Both indexes as published on the NZTA website.

4. Cost Fluctuation provisions shall be applied from the commencement of the

Contract period.

5. Cost Fluctuations are calculated on a monthly basis in accordance with this

section.

6. For the purpose of calculating the cost fluctuation adjustment in Clause 2, any

Day work, Prime Cost Sums, Variations and other payment items which are based

on actual cost, or current prices and any advances shall be excluded from the

valuation of work completed.

7. The Contractor shall not be entitled to claim cost fluctuation adjustment for work

completed after the Due Date for Completion greater than that which would

apply had the work been completed on the Due Date for Completion.

8. The index values to be used in the calculation of the cost fluctuation in Clause 2

shall be those first published by the NZTA for the appropriate quarter.

9. Where the index for the quarter has not yet been published, interim payments

shall be made on the basis of the index for the most recent quarter for which an

index is available. A correction to the interim monthly payment will be made

following the publication of the applicable index and will be processed with

subsequent progress payments.

10. If at any time any of the Statistics New Zealand indexes which are inputs into the

NZTA index(es) referred to in Clause 2 or later clauses are no longer published,

or if the basis of any index is materially changed, the adjustment shall thereafter

be calculated by using such other input index, or in such other manner as will

fairly reflect the changes as previously measured by that index.

11. If at any time any of the inputs into the NZTA bitumen cost adjustment series

referred to in Clause 2 or later clauses are no longer published, or if the basis of

the NZTA bitumen cost adjustment series is materially changed, the adjustment

shall thereafter be calculated by using such other inputs, or in such other

manner as will fairly reflect the changes as previously measured by the NZTA

bitumen cost adjustment series.




13 Thirteenth Schedule: Contract Risk Profile


The Contract Risk Profile describes known risks and states whether the risk is included

(Risk included) or excluded (Risk excluded) from the Contract Price.

All other risks not specifically listed in the following schedule are deemed to be risk

included and therefore need to be considered in the Contract Price.

Contract Risk Profile

Risk Description Risk Status

Contract Works

1 Changes to Network centreline length. Risk Excluded

2 Maintaining private accessways and pedestrian

facilities located outside the kerb line and/or

edge of seal in the urban areas as defined in the

RAMM database.

Risk Excluded

3 Legislative, regulatory or Principal’s policy

changes during contract period.

Risk Excluded

4 Maintaining pavement and surfacing, within 7m

of any rail, at railway level crossings.

Risk Excluded

Value Management Proposition

5 Any change in any individual KRA or KPI

weightings.

Risk Included

6 Asset additions and deletions during the

contract period.

Risk Excluded

7 Changes to the accumulated annual pavement

rehabilitation programme as reconciled against

the Contractor’s tendered accumulated

Pavement Rehabilitation Baseline Plan.

Risk Excluded

8 Up to 10% change to the accumulated annual

resurfacing programme as reconciled against

the Contractor’s tendered accumulated

Resurfacing Baseline Plan.

Risk Included

Contract Management

9 Unscheduled General, Principal & Special

Structure Inspections and Reporting after a flood

(or similar) event.

Risk Excluded

10 Maintenance, use of and management of

Stockpile and Disposal Sites.

Risk Included

11 Liability for damages to services and assets

caused by the Contractor’s operation.

Risk Included






12 Lump Sum activity related Land Entry

Agreements.

Risk Included

13 Deterioration to assets beyond the Limit of

Works resulting from any traffic diversion or

detour:

a) to the extent that the event causing the

traffic diversion or detour is the

Principal’s risk;

b) where the traffic diversion or detour is

instructed or implemented by the New

Zealand Police, provided that the

Contractor diligently completes works to

allow the highway to be reopened to

traffic.

Risk Excluded

14 Traffic growth greater than the length weighted

mean (=sum (treatment length x AADT)/total

contract area length) growth rate of 5%

compounded annually or 10 HCVs per day

whichever is the greater.

Risk Excluded

Network Management

15 RAMM updating as a result of third party

activities or other Principal engaged contract

works.

Risk Excluded

16 Asset integrity after defects liability period for

third party works that have been consent

approved by the Principal and monitored by the

Contractor.

Risk Included

17 Defects on projects completed by other Principal

engaged suppliers within the individual liability

periods.

Risk Excluded

18 Incident Response up to a declared Civil

Emergency.

Risk Included

19 Resource Consent application and compliance

activities for all lump sum work completed

during this contract.

Risk Included

20 Resource Consent and Designation compliance

activities that existed prior to commencement of

the contract, as shown in Appendix 5.3,

Resource Consents and Designations.

Risk Included

21 Routine surveillance of Bridges & Other

Structures and reporting.

Risk Included

22 General and Principal Bridges and Other

Structures Inspection and Reporting.

Risk Excluded






23 Treatment of Priority A sites, as identified within

the annual skid resistance exception report, on

surface renewals treated by the Contractor that

have exceeded the agreed design life and the

exception has been generated by material other

than bitumen or pavement defects.

Risk Excluded


the annual skid resistance exception report, on

road sections not treated by the Contractor and

the exception has been generated by material

other than bitumen or pavement defects.

Risk Excluded


the annual skid resistance exception report,

where the exception is generated from excess

bitumen or pavement defect.

Risk Included

Physical Works

26 Work required to address vibration and road

noise complaints as a result of work completed

by the Contractor or completed by third parties

who were consent approved, was monitored by

the Contractor and the work is outside the

defects liability period.

Risk Included

27 Work required addressing vibration and road

noise complaints for pavements that are

otherwise in good condition (i.e. no defect(s)).

Risk Excluded

28 Completion of second Coat Seals on Capital

works projects completed by other contracts.

Risk Excluded

29 Reinstatement of all traffic detector loops and

weather meters as a result of lump sum work

completed under this contract.

Risk Included

30 Renewal or installation of culverts. Risk Excluded

31 All bridge and other structures structural

component repairs.

Risk Excluded

32 Bridge and Other Structures Component

Replacements; with the exception of any:

Sight rails

Handrails

Risk Excluded

33 Reinstatement of structure railings, guardrail

and wire rope as a result of vehicle crash

damage greater than 20m in length.

Risk Excluded

34 Reinstatement of guardrail terminal end systems

as a result of vehicle crash damage.

Risk Excluded

35 Repair of debris protection fences. Risk Excluded






36 Maintaining privately owned signs, such as

Heritage Trail Signs and signs owned by local

authorities.

Risk Excluded

37 Vandalism (other than graffiti), theft and vehicle

crash damage to all standard and non-standard

signs and supports with a sign area greater than

2.025m2

area.

Risk Excluded

38 Renewal or component replacement of sign

gantries.

Risk Excluded

39 Replacement of signs with an area greater than

2.025m2

area.

Risk Excluded

40 Cleaning of signs with an area greater than

2.025m2

area.

Risk Included

41 Renewal of noise walls. Risk Excluded

42 Maintenance of noise walls. Risk Included

43 Rectification of existing barrier height and

alignment non-compliance.

Risk Excluded

44 All Frost and Ice Gritting work, excluding the

inspection and monitoring for the need.

Risk Excluded

45 All Snow Clearance work, excluding the

inspection and monitoring for the need.

Risk Excluded

46 Renewal of non-repairable rest area furniture,

and facilities, including rubbish bins.

Risk Excluded

47 Emptying of Stock effluent disposal receptors. Risk Excluded

48 Structural maintenance of weigh station

platform and control gear.

Risk Excluded

49 Maintenance of heavy commercial facilities. Risk Excluded

50 Cleaning of electronic signs. Risk Included

51 Replacement, maintenance and repair of

electronic signs.

Risk Excluded

52 Replacement of Audio Tactile Profiled Road

Marking by lump sum activities e.g. resurfacing,

pavement rehabilitation, rip and remake or

other maintenance activities.

Risk Excluded

53 Maintenance of Audio Tactile Profiled road

markings.

Risk Excluded

54 Energy costs associated with operating the

Principal’s assets.

Risk Excluded

55 Maintenance of all electrical wiring beyond the

Montrose box. In the absence of a Montrose

box, beyond the base of a pole.

Risk Excluded

56 Crash damage or structural renewal for street

light assets.

Risk Excluded






57 Work qualifying as Emergency Works under

Work Category 30, see NZTA’s Programming

and Funding Manual.

Risk Excluded

58 Removal of slips less than 50 cubic metres in

total volume.

Risk Included

59 Slips onto the road exceeding 50 cubic metres,

truck measure, of cut to waste material required

to reshape and reinstate the road corridor

profile to its pre-existing standard following any

single slip event.

Risk Excluded

60 Road slumping settlement / slumping / dropout

/ washout of any part of the formation and

pavement between the edge lines where more

than:

a) 300mm of gradual vertical subsidence or

horizontal movement has occurred at

each location and every such site in any

calendar year;

b) 150mm of vertical subsidence or

horizontal movement has occurred at

each location and every such site in any

single event.

Risk Excluded

61 Road slumping settlement / slumping / dropout

/ washout / over slip of any part of the

formation and pavement on the sites listed

within Appendix 6.10, Recurring Hazards.

Risk Excluded

Schedule of Prices and Basis of Payment

62 Accuracy of Principals RAMM information

provided to Supplier at tender and

commencement

Risk Included

The Contractor will not be non-compliance penalised on a performance measure where

the defect lies within a Principal risk item. The Contractor will be expected to manage

the process for bringing these items within compliance through collaboration with the

Principal.

If a Principal’s risk eventuates as a result of a Contractor’s non-compliance then the

risk exclusion for that event becomes the Contractor’s risk including all costs and

reinstatement.