SPECIAL CONDITIONS OF CONTRACT (FOR USE WITH THE ACQS HKIA/HKIS STANDARD FORM OF BUILDING CONTRACT WITH QUANTITIES 2005 EDITION)
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- Emil Ross
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1 (FOR USE WITH THE ACQS HKIA/HKIS STANDARD FORM OF BUILDING CONTRACT WITH QUANTITIES 2005 EDITION) Context General A. These Special Conditions of Contract are to be read in conjunction with the Conditions of Contract which shall be the General Conditions contained in the Agreement and Schedule of Conditions of Building Recommended Contract for use in the Hong Kong Special Administrative Region, Private Edition - With Quantities, 2005 Edition published by the Hong Kong Institute of Architects, the Hong Kong Institute of Construction Managers and the Hong Kong Institute of Surveyors (hereinafter the General Conditions ). Wherever these Special Conditions vary from the General Conditions the terms of the Special Conditions shall take precedence. Special Conditions take precedence B. Typographical Errors Correcting typographical errors The following typographical errors in the Conditions shall be corrected :- (a) Clause 13.4(1)(a), add the word or at the end of the Clause. (b) Clause 35.4(8) first line, the comma after the word equipment shall be deleted. (c) Clause 40(2) second line 40.1(1) shall be changed to 40(1). ACQS SCC V,1.0 - SCC/1 - April 2009
2 General (Cont'd) C. Clause Numbering Each SCC Clause number matches the clause number of the General Conditions clause to be amended. Therefore the SCC numbers may not run in sequence. Essential Explains clause numbering system ACQS SCC V,1.0 - SCC/2 - April 2009
3 SCC-1 1/1 Delete sub-clause (vii) in Clause 1.6 under the Variation sub-heading at Page 15 and replace with the following sub-clause:- Interpretation and definitions (vii) the sequence or timing of carrying out or completing work; Optional Allows the Architect to specify the sequence and timing of selected elements of the works if he chooses to do so. ACQS SCC V,1.0 - SCC/3 - April 2009
4 SCC-2 2/1 Delete sub-clause 2.1(2) at Page 16 and replace with the following :- Optional. Contractor s obligations (2) Where the Contract requires the Contractor to carry out the design or the development of the Architect s design, the design or the development of the Architect s design shall be carried out with reasonable skill and care and shall be fit for the purpose and the Contractor shall be responsible to the Employer for such work. Such design work: shall constitute part of the Works; shall, if appropriate, include selection of proprietary articles; shall be carried out in due time by a trained and experienced person competent in the relevant field; and shall follow the relevant Standard Codes of Practices and/or good practice, to meet conditions imposed by the Specification, the environment, the expected life of the building and other relevant factors. The Contractor warrants each and every such design accordingly. A review by the Architect of the visual intent of the design of permanent work and its compliance with the contract terms shall be obtained, but this shall not constitute any waiver of the design responsibility of the Contractor, or of any actual or implied warranty of the Contractor or the supplier to him of any proprietary article. (3) Where the Contract requires the Contractor to prepare details, or shop drawings or installation drawings, the details, or shop drawings or installation drawings shall be carried out with reasonable skill and care and the Contractor shall be responsible to the Employer for such work. This option should only be used where the Employer decides to adopt fitness for purpose under 2.1(2). Contractor must design to fit the purpose except for shop drawings ACQS SCC V,1.0 - SCC/4 - April 2009
5 SCC-2 2/2 Delete lines 1 and 2 of Clause 2.4(1) at Page 17 and replace with the following :- Optional Contractor s obligations (Cont'd) (1) The Contractor shall as soon as practicable but in any event within 30 days after his receipt of any of the following documents carefully check and inform the Architect if the Contractor finds any ambiguity or discrepancy in or divergence between the following documents: Specify time limit for checking discrepancies 2/3 Add the following as new Clause 2.4(3) :- (3) If in the opinion of the Architect (which shall not be exercised Optional unreasonably) any discrepancy or divergence is one which should have been apparent to a reasonably competent contractor and notified by the Contractor in compliance with clause 2.4(1) and if such discrepancy or divergence was not in fact notified by the Contractor; then, in determining the entitlement of the Contractor to any extension of time or any direct loss and/or expense to which the Contractor would otherwise be entitled in consequence of an instruction issued by the Architect under this clause, the Architect shall exclude from such extension or direct loss and/or expense (as applicable) any delay or direct loss and/or expense which could reasonably have been avoided had the discrepancy or divergence been notified in accordance with clause 2.4(1) and the Contractor s entitlements shall be limited accordingly. Contractors failure to identify and flag discrepancies may be taken into account by the Architect when assessing any claims for EOT or L&E to the extent that they have been affected by such failure. ACQS SCC V,1.0 - SCC/5 - April 2009
6 SCC-2 2/4 Add the following as new Clause 2.4(4) :- Optional Contractor s obligations (Cont'd) (4)(a) The Contractor shall in the course of carrying out the Works take full responsibility for the adequate stability and safety of all operations on the Site other than those of persons for whom the Employer is responsible under clause 30.1 and have full regard for the safety of all persons on the Site. No additional requirements but promotes safety and includes safety requirements as contractual conditions (b) (c) The Contractor shall comply with the Building Ordinance, the Construction Site (Safety) Regulations, all Labour Department Regulations, all Electrical and Mechanical Services Department Regulations, the Factories and Industrial Undertakings (Safety Officers and Safety Supervisors) Regulations and all other statutory requirements regarding safety on construction sites. The Contractor shall employ at least the number of safety officers and safety supervisors prescribed by the Factories and Industrial Undertakings (Safety Officers and Safety Supervisors) Regulations for the time being in force as at the date of the Contract. The Safety Officers shall be registered by the Commissioner for Labour under the Factories and Industrial Undertakings (Safety Officers and Safety Supervisors) Regulations and shall be employed on a full-time basis to undertake all duties entailed by the Factories and Industrial Undertakings (Safety Officers and Safety Supervisors) Regulations and any additional duties as specified in the Contract. Cont d on next page ACQS SCC V,1.0 - SCC/6 - April 2009
7 SCC-2 Contractor s obligations (Cont'd) Cont d from previous page None of the requirements of this clause shall in any way relieve the Contractor of his obligations under clause 6 of the Conditions. In particular, the Contractor shall not be relieved of his obligations to employ Safety Supervisors, any additional Safety Officers and/or any other safety personnel in excess of the number required by this clause as may be separately required by any Act or Ordinance of Government, instrument, rule, order, regulation or by-law as may be in force at any time during the progress and continuance of the Works. ACQS SCC V,1.0 - SCC/7 - April 2009
8 SCC-3 3/1 At Page 19 renumber existing Clause 3.3 as Clause 3.4 and insert the Recommended following new clause 3.3:- Master Programme 3.3 If the Contractor does not comply with the provisions of clauses 3.1 or 3.2 to the satisfaction of the Architect, the Employer may employ and pay others to carry out such programming activities as, in the Architect s opinion, are sufficient for the Architect to monitor, update and forecast the Contractor s progress on site. All costs incurred in connection therewith shall be recoverable from the Contractor by the Employer as a debt or may be deducted by the Employer from any monies due or to become due to the Contractor under the Contract. Provides response to Contractor s non-compliance with SCC-3. ACQS SCC V,1.0 - SCC/8 - April 2009
9 SCC-5 5/1 Delete clause 5.12(1) at Page 23 and replace with the following :- Optional. Time for submission of as-built drawings Documents forming the Contract (1) The Contractor shall submit to the Architect 2 copies of the as-built Only drawings which are required by the Contract, Nominated Sub-Contracts or Nominated Supply Contracts within 60 days of the date when, in the Architect s opinion, substantial completion of any particular trade or portion of the Works occurred. recommended where as-built drawings are a pre-requisite to the issue of the Substantial Completion Certificate. ACQS SCC V,1.0 - SCC/9 - April 2009
10 SCC-6 Statutory Obligations 6/1 Delete clause 6.1 at Page 24 and replace with the following:- Optional Changes risk allocation so that contractor takes risk of changes to Statutory 6.1 The Contractor shall comply with and give the notices required by any Ordinance, regulation, rule, order or by-law applicable to the Works and Requirements and also. any changes thereto upto and including the Date of Substantial Completion of the Works ( the Statutory Requirements ) Delete clause 6.3(1) and replace with the following :- (1) The Contractor shall pay and indemnify the Employer against liability in respect of all fees or charges legally demandable or which shall become legally demandable during the course of the Works under the Statutory Requirements.. takes risk of future increase in taxes or levies Delete clause 6.3(2). with no adjustment to the Contract Sum. On the sixth line of clause 6.4(1) after legally demandable insert or which shall become legally demandable... and also statutory undertakers &. utilities ACQS SCC V,1.0 - SCC/10 - April 2009
11 SCC-8 8/1 Add the following as new Clause 8.1(7) to clause 8.1 :- Optional Materials, goods, workmanship and work (7) Without prejudice to the generality of the foregoing, the Contractor shall carry out the Works : (a) using materials which are new, free of defects and of good quality; and Additional requirements regarding quality (b) using methods of construction which are in accordance with sound practice and which are not likely to endanger any existing structures or finishes, adjacent property or the safety of the public. ACQS SCC V,1.0 - SCC/11 - April 2009
12 SCC-8 Materials, goods, workmanship and work (Cont'd) 8/2 Add the following as new Clause 8.2(4) to clause 8.2 :- Optional (4) Where the Specification requires any item of work to be inspected prior to being covered up, then the Contractor shall notify the Architect in writing before work is covered up and give him at least 2 full working days notice to inspect. Should any work be covered up without the required notice being given then, whether or not the work is in accordance with the Contract, the Contractor will be responsible for all costs of the testing, opening up for inspection, and any consequential making good and the Contractor shall not be entitled to any extensions of time or to any adjustment of the Contract Sum or other additional monetary compensation in respect of any delay or disruption caused thereby any such entitlement being hereby irrevocably waived. Additional requirements regarding notices before covering up 8/3 Delete the word individual in the first line of clause 8.5 at Page 27 and replace with the words person or persons. Optional Minor extension of definition of who Architect may dismiss for incompetence ACQS SCC V,1.0 - SCC/12 - April 2009
13 SCC-12 12/1 Delete the words to be resident on the Site in the second line of the first paragraph of clause 12.1 at Page 28 and replace with the following :- Architect s representative who may or may not be resident on the Site. Recommended Architect s representative may or may not be resident on Site 12/2 Add the following as new Clause 12.4 to clause 12 :- Recommended 12.4 No act or omission by the Architect s representative in the performance of any of his duties or exercise of any of his powers under the Contract shall in any way operate to relieve the Contractor of any of the duties, responsibilities, obligations or liabilities imposed upon him by any of the provisions of the Contract. Contractor not relieved of obligations by any act of Architect s Representative. ACQS SCC V,1.0 - SCC/13 - April 2009
14 SCC-13 13/1 Delete clause 13.1(1) and replace with the following:- Recommended Variations, Provisional Quantities, Provisional Items and Provisional Sums (1) The Architect may issue an instruction requiring a Variation. 13/2 Add the following clause 13.4(1)(v) at Page 31:- (v) For work which is to be the subject of a fair valuation under clause 13.4(1) (iii), the Contractor shall obtain, if so requested by the Quantity Surveyor, three competitive tenders, and the fair valuation shall be based upon the most competitive tender so received by the Contractor together with an adjustment for the Contractor s profit and overheads as may be agreed with the Quantity Surveyor. Recommended Architect s authority to issue Variation instruction deletion of provisions allowing Contractor to object Allow QS to request Contractor to obtain competitive quotes for work to be valued as fair valuation 13/3 Add the following to the end of clause 13.4(3)(b) at Page 31:- Provided that no such adjustments shall be made if the omission of work is Optional due to omission of work which is included in or covered by any Provisional Quantities, Provisional Items or Provisional Sums. No adjustment for expense where an omission of work is due to firming up of provisional elements. 13/4 Add the following new clause at the end of clause 13.4:- Recommended Self explanatory (10) If required by the Architect the Contractor shall within fourteen (14) days of the Architect s written request submit a detailed estimate of the value of any variation. ACQS SCC V,1.0 - SCC/14 - April 2009
15 SCC-14 Contract Bills 14/1 Insert the words and Contract Drawings after the words the Specification in the third line of clause Recommended Item description in Bills to be read in context of Specification and Drawings rather than just the Specification. 14/2 Insert the words or as part of the relevant bill item descriptions or headings between the words Bills and and in the third line of clause 14.2(2). Recommended SMM departures may be specifically stated in bill description as well as (or instead of) Prelims and Preambles 14/3 Add the following clauses at the end of clause 14:- Recommended 14.4 Any correction made in accordance with clause 14.3 shall not entitle the Contractor to any extension of time under the provisions of clause 25 unless the correction results in an increase in the work to be carried out of sufficient magnitude to cause delay and provided that the error in description was not apparent from the Contract Drawings. Correction of BQ errors does not entitle Contractor to EOT or L&E except under specific circumstances 14.5 Any correction made in accordance with clause 14.3 shall not entitle the Contractor to any loss and/or expense under the provisions of clause 27 unless the correction results in an increase in the work to be carried out of sufficient magnitude to cause delay or disruption and provided that the error in description was not apparent from the Contract Drawings. ACQS SCC V,1.0 - SCC/15 - April 2009
16 SCC-17 17/1 Delete clause 17.1 at Page 34 and replace with the following:- Optional Substantial Completion and defects liability 17.1 The Architect shall issue the Substantial Completion Certificate for the Works when he is satisfied that the Works have been substantially completed and have passed the inspections and tests that are required by the Contract to be carried out and completed before Substantial Completion and that any approvals, permits or temporary permits required by the Contract have been issued by the relevant authorities or, if any such approval, permit or temporary permit, remains unissued it is not as a consequence of any default if the Contractor and that (subject to any written undertaking the Architect may require) all unfinished items of work shall be completed as soon as practicable after the issue of the Substantial Completion Certificate, or as instructed by the Architect, and in any case before the expiry of the Defects Liability Period. Clarifies position of approvals and undertakings for Completion Cert issue ACQS SCC V,1.0 - SCC/16 - April 2009
17 SCC-17 17/2 Delete clause 17.3(5) at Page 35 and replace with the following:- Substantial Completion and defects liability (Cont'd) (5) The Architect may instruct the Contractor not to rectify some or all of Optional the defects specified in the schedules of defects, in which case the Quantity Surveyor shall assess a fair value for defects not rectified and reduce the Contract Sum accordingly. Clarifies process for assessing set-off when Architect opts to accept unrectified defects. 17/3 Delete the word and at the end of clause 17.4(b) at Page 35. Optional Delete. at the end of clause 17.4(c) and add ; and at the end of clause 17.4(c). Add the following sub-clause to the end of clause 17.4 :- Adds submission and approval of guarantees and warranties to requirements for Defects Cert. (d) the Contractor (or the relevant Nominated Sub-Contractors/Suppliers) has submitted all specified guarantees and warranties as required by the Contract and all such guarantees and warranties have been approved by the Architect. ACQS SCC V,1.0 - SCC/17 - April 2009
18 SCC-18 18/1 Delete clause 18.1(1) and replace with the following :- Optional Partial possession by Employer (1) The Employer may take possession of a part of the Works or where sectional completion is provided for in the Contract a part of a Section before Substantial Completion if the Architect considers such part of the Works or part of a Section is capable of occupation or use by the Employer and that part of the Works or part of a Section shall be referred to as a Relevant Part. Removes requirement for Contractor to consent to Employer taking possession of part of the Works SCC-19 19/1 Add the following as new clause 19.2(g) to clause 19.2 :- Recommended Self explanatory Assignment and sub-letting (g) it shall be a condition in any sub-letting which may occur that the employment of the sub-contractor under the sub-contract shall determine immediately upon the determination (for any reason) of the Contractor s employment under this Contract. ACQS SCC V,1.0 - SCC/18 - April 2009
19 SCC-21 Insurance against injury to persons or property 21/1 Insert the words the Employer, after the words names of in the third line of clause 21.1(1) at Page 39. Optional 21/2 In sub-clause 21.1(1), at Page 39, delete the words the Contractor s or any Recommended sub-contractor s of all tiers employees and replace with employees of the Contractor or any sub-contractor of all tiers Employer becomes jointly named in Employees Compensation Policy Clarifies original wording. 21/3 Add the following new sub-clause at the end of Clause 21.2:- (5) The Contractor s attention is drawn to clause 20 which sets out his Optional contractual obligations to indemnify the Employer against certain damage, expense, liability or loss in respect of any claim or proceedings. If the Contractor considers the limit of indemnity referred to in clause 21(4) for any one occurrence or series of occurrence of loss or damage to be inadequate to cover these contractual obligations he is at liberty to take out a policy with an increased limit of indemnity but any additional premium or differential in premium shall be at his own expense. Stated Limit of Indemnity is a minimum figure and Contractor may opt for a higher loss at his own expenses. 21/4 In sub-clause 21.2(1)(b)(ii) replace the, with ; or Recommended Grammatical correction ACQS SCC V,1.0 - SCC/19 - April 2009
20 SCC-22 22/1 Add the following words at the beginning of the second sentence of clause Optional use 22.4(1) at Page 42: only if optional Insurance of the sub-clause Works Subject to clause 22.4(4), 22.4(4) is adopted. and the following word The shall be replaced by the word the. Amended to tie in with new sub-clause 22.4(4). 22/2 Add the following as new sub-clause 22.4(4) to clause 22.4 :- Optional check with Employer (4) The Contractors All Risks Insurance Policy shall be extended beyond the period of 14 days after the issue of the Substantial Completion Certificate required under clause 22.4(1) above to and PM to ascertain if required or not. extend the period of cover to include the carrying out of unfinished items of work and works of repair or maintenance etc. by the Contractor, his sub-contractors and their sub-contractors of all tiers during the Defects Liability Period. CAR policy extended to cover outstanding items and maintenance work during DLP. 22/3 Add the words (less only any amount included for the professional fee as Recommended stated in clause 22.2(b)) after the words of the Works in the third line of clause Clarifies that Contractor may not retain any amount in respect of professional fees included in CAR payout. ACQS SCC V,1.0 - SCC/20 - April 2009
21 SCC-22 22/4 Add the following as new sub-clause 22.8 to clause 22 where clause 22B or Recommended 22C is applicable to the Contract :- where 22B or Insurance of the Works (Cont'd) 22.8 (a) 22C is adopted. Where insurance policies are effected and maintained by the Employer as referred to in clauses 21.2, 22B or 22C as appropriate, the Contractor shall be deemed to have examined such insurance policies effected and maintained and to have made allowance in his tender for any insufficiencies for which he may consider additional cover is required. The Contractor shall conform to the conditions of the insurance policies and all requirements of the insurer in connection with the prevention of accidents, the recovery of losses and the settlement of claims and shall bear at his own expense all consequences of any failure to do so. Contractor reminded that, where the Employer has taken out insurance, he may consider additional insurance at his own expense to fully cover his liabilities and that he must comply with the terms of the Employer s policies or risk losing the benefits. ` (b) The Contractor shall be liable for all excesses (deductibles) contained in the policies and all exclusions or limitations under the said policies (insofar as they concern risks for which he is responsible under the terms of the Contract). (c) (d) In the event of any claims under the insurances, insofar as excesses are concerned they shall be recoverable from the Contractor by the Employer as a debt. If the Contractor requires that the excesses (deductibles) be reduced to lesser amounts, then the Contractor shall bear any additional premium payable entirely at his own expense. ACQS SCC V,1.0 - SCC/21 - April 2009
22 SCC-24 Damages for non-completion 24/1 In Clause 24.2(1) at Page 46 delete the words between the Completion Date and the Date of Substantial Completion in the last line and replace with the words commencing from the date by which the Architect Recommended certified the Works or Section ought to have been completed under Clause 24.1(1) upto and including the date by which they were ultimately completed as certified under the Substantial Completion Certificate. Revised wording to clarify period when LAD s are payable. SCC-25 25/1 Delete clauses 25.1(3)(b), 25.1(3)(c), 25.1(3)(i), 25.1(3)(m), 25.1(3)(n) and Optional Delete EOT for:- 25.1(3)(t) at Pages 47 and 48. Extension of time (b) Inclement weather (c) Signal 8 or Black Rainstorm Warning (i) AI causing significant additional work (m) NSC delays (n) Supplier delays (t) Government approvals & consent delays SCC27 27/1 Delete clauses 27.1(2)(d) and 27.1(2)(h) at Pages 53 and 54. Optional Delete L&E for: Direct loss and/or expense (d) AI causing significant additional work (h) NSC and Nominated Supplier delays ACQS SCC V,1.0 - SCC/22 - April 2009
23 SCC-29 Nominated Sub-Contractors and Nominated Suppliers 29/1 Delete clause 29.2(1)(c) at Page 58. Optional should be approved by Employer Removes Contractors right to refuse to enter sub-contract if Contractor considers tender sum is not financially viable 29/2 Delete clause 29.2(7) at Page 59. Optional should be approved by Employer Removes Contractors right to claim EOT where a NSC has delayed the work and the delay relates to an earlier objection raised by the Contractor to the appointment of the NSC. ACQS SCC V,1.0 - SCC/23 - April 2009
24 SCC-32 Certificates and Payments 32/1 Insert the following words at the beginning of Clauses 32.1(1) and at 32.1(5) at Pages 64 and 65:- Provided the Contractor complies with the requirements of Clause 32.1(4) then Optional Architect & QS obligations to prepare Interim Certificate only arises provided Contractor delivers statement of work done 32/2 Insert the words with copies to the Architect and the Engineer as Recommended appropriate after the words Quantity Surveyor in the first line of clause 32.1(4) at Page 64. Self explanatory. 32/3 Add the following words to the end of Clause 32.1(5) at Page 65:- Optional or such other time as may be agreed between the Architect and the Quantity Surveyor provided always that the Quantity Surveyor shall submit the valuation prior to the Architect s due date under Clause 32.1(1). Deals with deadline on QS which in practice may be difficult to maintain ACQS SCC V,1.0 - SCC/24 - April 2009
25 SCC-32 32/4 EITHER Certificates and Payments (Cont'd) Delete Clause 32.3 and replace with the following: For the avoidance of doubt it is confirmed that clause 32.3 shall not be applicable to this Contract. Optional Removes discretionary provision for inclusion of off-site materials or goods in Interim Payment OR Add the following to the end of clause 32.3 : When the value of off-site materials or goods is to be included in an Interim Certificate, the following conditions shall apply:- Optional Amplifies requirements for verification of materials off-site. (a) such materials or goods must be intended for inclusion in the Works; (b) such materials or goods must be in accordance with the Contract; (c) the Contractor must furnish to the Quantity Surveyor reasonable proof that the premises where the materials or goods have been assembled or stored are owned or leased by the Contractor; Cont d on next page ACQS SCC V,1.0 - SCC/25 - April 2009
26 SCC-32 Cont d from previous page Certificates and Payments (Cont'd) (d) (e) (f) such materials or goods must have been set apart at the premises where they have been assembled or stored, and have been clearly and visibly marked, individually or in sets, so as to identify: (i) the person to whose order they are held, and (ii) their destination as being the Works; the Contractor must furnish to the Quantity Surveyor evidence that such materials or goods are insured against the perils set out in clause 22 of these Conditions; the Contractor must furnish to the Quantity Surveyor reasonable proof that the property in such materials or goods lies with the Contractor and that the conditions set out in paragraphs (a) to (e) of this sub-clause have been complied with. ACQS SCC V,1.0 - SCC/26 - April 2009
27 SCC-32 Certificates and Payments (Cont'd) 32/5 Delete the words 14 days after Substantial Completion in the third line of Recommended Clause 32.5(2) at Page 68 and replace with the words within 14 days after the issue of the Substantial Completion Certificate. Original wording requires release of half retention 14 days after Substantial Completion which, in practice, may be difficult if the Substantial Completion Cert is back dated. 32/6 At Page 69 in Clause 32.6(5) at line 1 insert the words the Architect., before the words the Quantity Surveyor. Optional Reflects actual practice of the final account also being signed by the Architect 32/7 Delete clause 32.7(3)(h)(i) at Page 70. Optional must See SCC6 be adopted if SCC6 is adopted. 32/8 Insert the word within before the words 28 days in the third line of clause 32.8(4) at Page 71. Recommended Avoids having to comply with the exact number of days ACQS SCC V,1.0 - SCC/27 - April 2009
28 SCC-32 Certificates and Payments (Cont'd) 32/9 Delete clause 32.9(1)(a) at Page 71. Optional Deletes requirements for Architect s Final Certificate to constitute conclusive evidence of compliance with Contract. Discuss with Architect/Lead Consultant & Employer prior to inclusion some Consultants may not wish to give effect to the original clause. ACQS SCC V,1.0 - SCC/28 - April 2009
29 SCC-33 Surety Bond 33/1 Delete the words or, if not set out in either of those documents, in the form set out in Schedule 1 of the Conditions, in clause 33.1(3). Optional check with Lead Consultant/ Employer whether Schedule 1 is acceptable Schedule 1 is an on-default bond rather than an on-demand bond and hence has limited value. 33/2 EITHER (Part 1) Delete clause 33.2 at Page 73 and replace with the following : The insurance company or bank shall be released from the surety bond upon the issue of the Defects Rectification Certificate for the whole of the Works. OR Recommended Corrects mis-match between 33.2 and Schedule 1 At Page 91 in Schedule 1 Clause 5 at line 2 delete the words the Defects Liability Certificate and replace with the Substantial Completion Certificate. Cont d on next page ACQS SCC V,1.0 - SCC/29 - April 2009
30 SCC-33 (Part 2) Cont d from previous page Surety Bond (Cont'd) EITHER Insert the following words in sub-clause 33.3 in line 3 between the words Employer and, at : or the issue of the Defects Rectification Certificate for the Works, whichever occurs first,. OR Recommended Consistency regarding expiry condition of bond Ensure the choice is consistent with the amendment to 33.2 noted above Insert the following words in sub-clause 33.3 in line 3 between the words Employer and,at : or the issue fo the Substantial Completion Certificate for the Works, whichever occurs first,. ACQS SCC V,1.0 - SCC/30 - April 2009
31 SCC-33 33/3 Add the following at the end of clause 33.3 at Page 73:- Recommended Surety Bond (Cont'd) The amount so withheld shall be held upon trust by the Employer for the Contractor (without obligation to invest) subject to the rights of the Employer to have recourse to it for payment of any amounts which he is entitled to under the Contract or at law or to deduct from it any sum owed to him by the Contractor, provided that the Employer gives notice to the Contractor in accordance with clause 32.1(6). Clarifies actions available if Contractor fails to produce bond. The above principles shall also apply to any Nominated Sub-Contract where the Nominated Sub-Contractor is required to provide a specific Surety Bond to the Employer under the Form of Warranty to be given by the Nominated Sub-Contractor to the Employer in consideration of nomination. ACQS SCC V,1.0 - SCC/31 - April 2009
32 SCC-35 35/1 Add the following as new sub-clause 35.1(f) to clause 35.1:- Recommended Self explanatory Determination by Employer (f) persistently or significantly breaching his obligations under this Contract to the material detriment of the Employer. Delete the word or from clause 35.1(d) and at the end of clause 35.1(e). shall be deleted and replaced by ;or. ACQS SCC V,1.0 - SCC/32 - April 2009
33 SCC-35 35/2 Renumber clause 35.8 as clause 35.9 and the following shall be inserted as Recommended new sub-clause clause 35.8:- Determination by Employer 35.8 In addition to the grounds for determination given in clause 35 of the Conditions, the Employer shall be entitled to immediately, determine the employment of the Contractor under this Contract and the Contractor shall be liable to pay to the Employer the amount of any loss to the Employer resulting from such determination, if the Contractor has offered, given or agreed to give to any person any bribe, gift, loan or advantage of any kind as defined in the Prevention of Bribery Ordinance, Cap 201 as an inducement or reward for doing or forbearing to do or for having done or forborne to do any action in relation to the obtaining or execution of this Contract or any other contract with the Employer, or for showing or any forbearing to show favour or disfavour to any person in relation to this Contract or other contract with the Employer, or if the like acts shall have been done by any person employed by the Contractor or acting on his behalf whether with or without the knowledge of the Contractor. Bribery or corruption becomes a cause for determination In the first line of the renumbered clause 35.9 delete the clause reference 35.7 and replace with the clause reference ACQS SCC V,1.0 - SCC/33 - April 2009
34 SCC-38 38/1 EITHER Fluctuations For the avoidance of doubt it is confirmed that clause 38 shall not be applicable to this Contract. No adjustment to the Contract Sum shall be Optional made for any rises or falls in the cost of labour or materials, fluctuations in exchange rates, freight charges, insurance premium or for any other reasons whatsoever. Clarifies mechanism for fluctuations OR It is expressly agreed that clause 38 shall apply to this Contract. The amount in each Interim Certificate as being due in respect of fluctuation in the cost of labour and materials for the Works shall be adjusted upwards or downwards in accordance with the provisions set out in the Contract. ACQS SCC V,1.0 - SCC/34 - April 2009
35 SCC-39 39/1 Delete clause 39(3) and replace with the following :- Recommended Notices, certificates and other communications (3) Any notice, certificate or other communication to be given or made under the Contract shall be deemed to have been delivered : in the case of delivery by electronic mail immediately following transmission (provided that the correct response is received by the sender); or, in the case of delivery by facsimile machine immediately following transmission; or, in the case of a document sent by post two days after the document has been posted in the case of a recipient in Hong Kong (irrespective of whether ordinary or registered post or recorded delivery is used) or seven days after the document has been posted in the case of an overseas recipient (irrespective of whether standard airmail, speedpost or any other form of airmail is used); or, in the case of a document delivered by hand or courier, at the time of delivery (provided receipt is obtained noting the time of delivery). ACQS SCC V,1.0 - SCC/35 - April 2009
36 SCC-41 41/1 In clauses 41.3(2) and 41.4(2) at Page 86 delete the words:- Optional Settlement of disputes the Hong Kong Institute of Architects co-jointly with the. Delete clause 41.4(3) at Page 86 and replace with the following:- Leaves the appointment solely in the hands of President HKIS to avoid any difference of opinion between two appointing parties. The President or Vice-President referred to in clause 41.4(2) may, at his discretion, request the Hong Kong International Arbitration Centre to appoint the arbitrator, by letter to the Chairman of that organization. Delete clause 41.4(4). ACQS SCC V,1.0 - SCC/36 - April 2009
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