EXHIBIT 22
PNG REFINERY PROJECT - INTEROIL LIMITED
CONSTRUCTION - CONDITIONS OF
CONTRACT SCHEDULE AND
ANNEXURES CLOUGH NIUGINI LIMITED
CONDITIONS OF CONTRACT
ENGINEERING, PROCUREMENT & EQUIPMENT REFURBISHMENT
AND
CONSTRUCTION OF INTEROIL REFINERY
AT NAPA NAPA
PAPUA NEW GUINEA
PNG REFINERY PROJECT - INTEROIL LIMITED
CONSTRUCTION - CONDITIONS OF
CONTRACT SCHEDULE AND
ANNEXURES CLOUGH NIUGINI LIMITED
TABLE OF CONTENTS
VOLUME I
TERMS AND CONDITIONS
1. INTERPRETATION AND CONSTRUCTION OF CONTRACT...................................................... 8
1.1 Definitions............................................................................ 8
1.2 Interpretation......................................................................... 15
2. NATURE OF CONTRACT............................................................................... 16
2.1 Performance and payment................................................................ 16
2.2 Early Work............................................................................. 16
2.3 Principal Supplied Equipment........................................................... 16
2.4 Notice to Proceed...................................................................... 17
2.5 Taxes.................................................................................. 17
2.6 Condition Precedent.................................................................... 18
3. SEPARABLE PORTIONS............................................................................... 18
4. THE CONTRACTOR'S PRIMARY OBLIGATIONS............................................................. 18
5. WARRANTIES OF THE CONTRACTOR AND THE PRINCIPAL................................................... 19
6. YEAR 2000 COMPLIANCE............................................................................. 22
7. SECURITY......................................................................................... 23
7.1 Provision.............................................................................. 23
7.2 Recourse............................................................................... 23
7.3 Reduction and release.................................................................. 24
7.4 Deed of Guarantee, Undertaking and Substitution........................................ 24
7.5 No Payment Until Security Lodged....................................................... 24
8. EVIDENCE OF CONTRACT............................................................................. 24
9. SERVICE OF NOTICES............................................................................... 24
9.1 Notices................................................................................ 24
9.2 Authorised Signatories................................................................. 25
10. CONTRACT DOCUMENTS............................................................................... 25
10.1 Discrepancies.......................................................................... 25
10.2 Principal Supplied Information......................................................... 26
10.3 Contractor Supplied Documents.......................................................... 26
10.4 Availability........................................................................... 27
10.5 Confidential Information............................................................... 27
10.6 Media.................................................................................. 28
10.7 Records and Access to Records.......................................................... 28
11. ASSIGNMENT AND SUBCONTRACTING.................................................................... 29
11.1 Assignment............................................................................. 29
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11.2 Subcontracting generally............................................................... 29
11.3 Contractor's responsibility............................................................ 30
12. WARRANTY REQUIREMENTS............................................................................ 30
12.1 Warranties on Materials or Goods....................................................... 30
13. INTELLECTUAL PROPERTY RIGHTS..................................................................... 31
13.1 Warranties............................................................................. 31
13.2 Intellectual Property Rights granted to the Principal.................................. 31
13.3 Future Design Documents................................................................ 31
13.4 Moral Rights........................................................................... 31
14. LEGISLATIVE REQUIREMENTS......................................................................... 32
14.1 Compliance............................................................................. 32
14.2 Changes................................................................................ 32
14.3 Specific Legislative Requirements and Community Relations.............................. 31
14.4 Major External Approvals and Responsibilities.......................................... 41
14.5 Compliance with the Foreign Corrupt Practices Act...................................... 34
15. REFURBISHMENT, DELIVERY AND OWNERSHIP OF EQUIPMENT............................................... 35
15.1 Refurbishment.......................................................................... 35
15.2 Delivery and Security of Equipment..................................................... 35
15.3 Ownership in Equipment Procured by the Contractor...................................... 35
16. PROTECTION OF PEOPLE AND PROPERTY................................................................ 35
17. URGENT PROTECTION................................................................................ 36
18. CARE OF THE WORK AND REINSTATEMENT OF DAMAGE..................................................... 36
18.1 Care of work under the Contract........................................................ 36
18.2 Reinstatement.......................................................................... 36
18.3 Excepted Risks......................................................................... 37
18.4 Force Majeure.......................................................................... 37
19. DAMAGE TO PERSONS AND PROPERTY OTHER THAN WORK UNDER THE CONTRACT................................ 38
19.1 Indemnity by the Contractor............................................................ 38
19.2 Indemnity by the Principal............................................................. 38
20. LIMITATION OF LIABILITY AND CONSEQUENTIAL DAMAGES................................................ 39
20.1 Survival and Security.................................................................. 39
20.2 Limit of Liability of the Contractor................................................... 39
20.3 Mutual Exclusion of Consequential Damages.............................................. 39
21. INSURANCE OF THE WORK UNDER THE CONTRACT......................................................... 40
21.1 Principal to insure.................................................................... 40
22. PUBLIC LIABILITY INSURANCE....................................................................... 41
22.1 Principal to insure.................................................................... 41
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CONSTRUCTION - CONDITIONS OF
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TABLE OF CONTENTS
23. INSURANCE OF EMPLOYEES........................................................................... 41
24. PROFESSIONAL INDEMNITY INSURANCE................................................................. 42
24.1 Contractor............................................................................. 42
24.2 Consultants............................................................................ 42
25. INSPECTION AND PROVISIONS OF INSURANCE POLICIES.................................................. 42
25.1 Proof of insurance..................................................................... 42
25.2 Failure to produce proof of insurance.................................................. 42
25.3 Notices from or to insurer............................................................. 42
25.4 Notices of potential claims............................................................ 43
25.5 Settlement of claims................................................................... 43
25.6 Cross liability........................................................................ 43
25.7 Insurance Generally.................................................................... 43
26. PRINCIPAL'S REPRESENTATIVE....................................................................... 44
27. SITE SUPERVISORS................................................................................. 44
28. NO PERSONAL LIABILITY............................................................................ 44
29. CONTRACTOR'S REPRESENTATIVE...................................................................... 45
30. CONTRACTOR'S EMPLOYEES AND SUBCONTRACTORS........................................................ 45
30.1 Generally.............................................................................. 45
31. CONTRACTOR'S PROJECT MANAGEMENT TEAM............................................................. 45
32. SITE ....................................................................................... 46
32.1 Possession............................................................................. 46
32.2 Access for Principal and others........................................................ 46
32.3 Minerals, fossils and relics........................................................... 46
33. SETTING OUT THE WORKS............................................................................ 47
33.1 Setting out............................................................................ 47
33.2 Errors in setting out.................................................................. 47
33.3 Care of Survey Marks................................................................... 47
34. CLEANING UP...................................................................................... 47
34.1 Clean and Tidy Site.................................................................... 47
34.2 Hazardous Materials.................................................................... 48
35. LATENT CONDITIONS................................................................................ 48
35.1 Site................................................................................... 48
35.2 Principal Supplied Equipment........................................................... 48
35.3 Notification........................................................................... 48
35.4 Deemed Variation....................................................................... 48
36. MATERIALS, LABOUR AND CONSTRUCTION PLANT......................................................... 49
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TABLE OF CONTENTS
37. QUALITY.......................................................................................... 49
37.1 Quality of material and work........................................................... 49
37.2 Quality assurance...................................................................... 49
37.3 Defective work......................................................................... 50
37.4 Acceptance of defective work........................................................... 50
37.5 Timing................................................................................. 51
38. PROCESS PERFORMANCE TEST AND RELIABILITY TEST.................................................... 51
38.1 Conditions precedent to the Process Performance Test and Reliability Test.............. 51
38.2 Conducting the Process Performance Test and Reliability Test........................... 51
39. EXAMINATION AND TESTING.......................................................................... 51
39.1 Tests.................................................................................. 51
39.2 Covering up............................................................................ 52
39.3 Who conducts........................................................................... 52
39.4 Notice................................................................................. 52
39.5 Delay.................................................................................. 52
39.6 Completion and Results................................................................. 52
39.7 Costs.................................................................................. 52
40. WORKING HOURS.................................................................................... 52
41. PROJECT SCHEDULE................................................................................. 52
41.1 Submission and Approval of Project Schedule............................................ 52
41.2 Application of the Project Schedule.................................................... 53
42. SUSPENSION
42.1 Suspension by the Principal's Representative........................................... 53
42.2 Suspension by the Contractor........................................................... 53
42.3 Recommencement......................................................................... 53
42.4 Cost................................................................................... 54
43. TIME AND PROGRESS................................................................................ 54
43.1 Progress............................................................................... 54
43.2 Notice of delay........................................................................ 54
43.3 Claim.................................................................................. 54
43.4 Assessment............................................................................. 54
43.5 Extension of time...................................................................... 55
43.6 Reduction of Time...................................................................... 55
43.7 Mechanical Completion.................................................................. 55
43.8 Pre-commissioning, Commissioning, Facilities Testing................................... 56
43.9 Practical Completion................................................................... 57
43.10 Liquidated damages..................................................................... 57
43.11 Delay damages.......................................................................... 57
43.12 Reports................................................................................ 58
44. DEFECTS LIABILITY................................................................................ 59
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TABLE OF CONTENTS
45. VARIATIONS....................................................................................... 59
45.1 Directing Variations................................................................... 59
45.2 Proposed Variations.................................................................... 59
45.3 Contractor Proposed Variations......................................................... 60
45.4 Pricing................................................................................ 61
45.5 Notification of Variations............................................................. 62
46. PAYMENT CLAIMS AND PAYMENTS...................................................................... 62
46.1 Advance Payment........................................................................ 62
46.2 Payment Claims......................................................................... 63
46.3 Payment Certificates and Calculations.................................................. 64
46.4 Payment................................................................................ 65
46.5 Certificates of Mechanical Completion and Practical Completion......................... 65
46.6 Effect of Certificates................................................................. 66
46.7 Set-Off................................................................................ 66
46.8 Ownership of Equipment................................................................. 66
46.9 Final Payment Claim and Certificate.................................................... 66
46.10 Interest............................................................................... 67
46.11 Deferred Payment Option................................................................ 68
47. PAYMENT OF WORKERS AND SUBCONTRACTORS............................................................ 68
47.1 Workers and Subcontractors............................................................. 68
47.2 Withholding payment.................................................................... 68
47.3 Direct payment......................................................................... 68
47.4 Liens and Claims....................................................................... 69
48. DEFAULT OR INSOLVENCY............................................................................ 69
48.1 Preservation of other rights........................................................... 69
48.2 Contractor's default................................................................... 69
48.3 Principal's notice to show cause....................................................... 70
48.4 Principal's rights..................................................................... 70
48.5 Take out............................................................................... 70
48.6 Adjustment on completion of work taken out............................................. 71
48.7 Principal's default.................................................................... 71
48.8 Contractor's notice to show cause...................................................... 72
48.9 Contractor's rights.................................................................... 72
48.10 Termination............................................................................ 72
48.11 Insolvency............................................................................. 72
48.12 No Insolvency.......................................................................... 73
49. TERMINATION FOR FRUSTRATION...................................................................... 74
50. TERMINATION FOR CONVENIENCE...................................................................... 74
51. NOTIFICATION OF CLAIMS........................................................................... 76
51.1 Communication of claims................................................................ 76
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CONSTRUCTION - CONDITIONS OF
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TABLE OF CONTENTS
51.2 Liability for failure to communicate................................................... 76
51.3 Principal's Representative's decision.................................................. 76
52. DISPUTE RESOLUTION............................................................................... 77
52.1 Notice of dispute...................................................................... 77
52.2 Conference............................................................................. 77
52.3 Arbitration............................................................................ 78
52.4 Summary relief......................................................................... 78
53. WAIVER OF CONDITIONS............................................................................. 78
54. CO-ORDINATION WITH PRINCIPAL AND OTHERS.......................................................... 78
55. INDEPENDENT CONTRACTOR........................................................................... 78
56. SURVIVAL......................................................................................... 79
57. ENTIRE AGREEMENT................................................................................. 79
SCHEDULE............................................................................................... 79
ANNEXURES.............................................................................................. 86
ANNEXURE 1 SUBCONTRACTOR'S CONSENT DEED & DEED OF NOVATION................................... 87
ANNEXURE 2 APPROVED FORM OF UNDERTAKING...................................................... 96
ANNEXURE 3 DEED OF GUARANTEE, UNDERTAKING AND SUBSTITUTION................................... 97
ANNEXURE 4 TERMS OF INSURANCE................................................................ 104
ANNEXURE 5 PRO FORMA CONSENT DEED............................................................ 110
ANNEXURE 6 PROJECT AGREEMENT................................................................. 111
ANNEXURE 7 SCHEDULE OF RATES FOR VARIATIONS.................................................. 112
ANNEXURE 8 FORM OF SUBCONTRACTOR'S FINAL RELEASE AND STATUTORY DECLARATION................... 113
ANNEXURE 9 LEGISLATIVE RESPONSIBILITIES AND PERMITS.......................................... 114
ANNEXURE 10 CONTRACTOR'S PROJECT MANAGEMENT TEAM.............................................. 117
ANNEXURE 11 PROJECT SCHEDULE.................................................................. 118
ANNEXURE 12 FORMAL INSTRUMENT OF AGREEMENT.................................................... 119
ANNEXURE 13 FORM OF FINAL RELEASE............................................................. 122
ANNEXURE 14 CONTRACTOR'S PLANT HIRE CHARGES................................................... 123
ANNEXURE 15 DEED OF NOVATION - REFURBISHMENT CONTRACTS........................................ 123
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TABLE OF CONTENTS
ANNEXURE 16 DEFERRED PAYMENT OPTION........................................................... 126
ANNEXURE 17 PRE-AWARD MEETING MINUTES......................................................... 128
VOLUME II
ANNEXURE 18 PRINCIPAL'S PROJECT REQUIREMENTS.................................................. 130
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CONSTRUCTION - CONDITIONS OF
CONTRACT SCHEDULE AND
ANNEXURES CLOUGH NIUGINI LIMITED
1. INTERPRETATION AND CONSTRUCTION OF CONTRACT
1.1 DEFINITIONS
In the Contract, except where the context otherwise requires:
BASIC DESIGN means the design for the Works included in the Principal's
Project Requirements.
CERTIFICATE OF PRACTICAL COMPLETION has the meaning given in clause
43.9.
COMMISSIONING has the meaning given to it in the Principal's Project
Requirements.
COMPENSABLE CAUSE means any act, default or omission of the Principal's
Representative, the Principal or its consultants, agents or other
contractors (not being engaged by the Contractor) and includes any
blockade or picketing of the Site which prevents access for the
delivery of materials to the Site or the access of personnel pursuant
to clause 18.3.1(e), except where such blockade or picketing is caused
by an act, default or omission of the Contractor.
CONSENT DEED means the tripartite deed between the Principal,
Contractor, the Contractor's parent company and OPIC contained in
ANNEXURE 5 which provides direction under certain events referred to in
the Contract.
CONSTRUCTION PLANT means appliances, plant, equipment tools and
temporary facilities used in the carrying out of work under the
Contract but not forming part of the Works, supplied by the Contractor
but not with the intention of such items becoming the Principal's
property.
CONTRACT, THE CONTRACT, THIS CONTRACT, CONSTRUCTION CONTRACT and THE
EPC CONTRACT all mean:
(a) the Formal Instrument of Agreement;
(b) these Conditions of Contract and the Schedule to these Conditions
of Contract;
(c) the Annexures to these Conditions of Contract; and
(d) the Basic Design.
CONTRACT CURRENCY AMOUNT means each of the amounts specified in ITEM
11.
CONTRACT SUM means the aggregate lump sum of the Contract Currency
Amounts, excluding any additions or deductions which may be required to
be made under the Contract, expressed as the US Dollar equivalent
(calculated on the basis of the average of the buy and sell rates
quoted by Citibank applicable at the opening of business on the date of
the Contract) in ITEM 11 for the purpose only of specifying an
aggregate lump sum of those Contract Currency Amounts.
CONTRACTOR means the person bound to carry out and complete work under
the Contract and named in ITEM 3.
CONTRACTOR'S DESIGN OBLIGATIONS means all tasks necessary to design and
specify the Works required by the Contract, including preparation of
the Design Documents.
CONTRACTOR'S PROJECT MANAGEMENT TEAM members are listed in ANNEXURE 10.
CONTRACTOR'S MARGIN means the Contractor's profit margin on its costs
expended on the work under the Contract specified in ITEM 19.
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CONTRACTOR'S PROPOSAL means the proposal dated 15 February 2002,
submitted to and accepted by the Principal.
CONTRACTOR'S REPRESENTATIVE means the person named in ITEM 5 as the
Contractor's Representative or other person from time to time appointed
in writing by the Contractor under clause 29.
CRUDE FEEDSTOCK has the meaning given to it in the Principal's Project
Requirements.
DATE COMPLIANT means, in respect of any equipment, that the equipment
functions and operates (and has been designed, developed and/or
programmed to ensure that it functions and operates) properly,
accurately and without interruption before, during and after the year
2000 and, without limitation, that:
(e) the equipment correctly processes and deals properly with dates
and the transition between dates including year 2000 dates;
(f) the equipment correctly processes and deals properly with all
calculations and functions based on dates;
(g) the equipment correctly processes year 2000 as a leap year and all
subsequent leap years;
(h) the equipment stores and provides output of date information in
ways that are unambiguous as to the century; and
(i) the equipment functions and operates properly as a component of
the Works and is compatible with proper functioning and operation
of the Works including any other equipment or material forming
part of the Works.
DATE FOR MECHANICAL COMPLETION means the last day of the period of time
for Mechanical Completion specified by ITEM 12, but if any extension of
time to the Date for Mechanical Completion is directed by the
Principal's Representative or any reduction is directed by the
Principal's Representative pursuant to clause 43.6, or allowed in any
arbitration or litigation, it means the date resulting therefrom.
DATE FOR PRACTICAL COMPLETION means the last day of the period of time
for Practical Completion specified by ITEM 12, but if any extension of
time to the Date for Mechanical Completion or Date for Practical
Completion is directed by the Principal's Representative or any
reduction is directed by the Principal's Representative pursuant to
clause 43.6, or allowed in any arbitration or litigation, it means the
date resulting therefrom.
DATE OF MECHANICAL COMPLETION means:
(a) the date evidenced in a Mechanical Completion Certificate under
clause 43.7.4(b) as the date when Mechanical Completion in respect
of the entire Works was reached; or
(b) where another date is determined in any arbitration or litigation
as the date upon which Mechanical Completion was reached, that
other date.
DATE OF PRACTICAL COMPLETION means:
(a) the date evidenced in a Certificate of Practical Completion under
clause 43.9.3 as the date upon which Practical Completion was
reached in respect of the entire works; or
(b) where another date is determined in any arbitration or litigation
as the date upon which Practical Completion was reached, that
other date.
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DAY means calender day of the Gregorian Calendar.
DEED OF GUARANTEE, UNDERTAKING AND SUBSTITUTION has the meaning in
clause 7.4 and means the Deed of Guarantee, Undertaking and
Substitution contained in ANNEXURE 3.
DEFECTS LIABILITY PERIOD has the meaning in clause 44 and means the
last to expire of the period stated in clause 44.1.1 and the period
pursuant to clause 44.1.3(b).
DESIGN DOCUMENTS means the drawings, specifications and other
information, samples, models, patterns and the like required by the
Contract created (including where stated those created by the
Contractor) for the construction of the Works including the Basic
Design and Detailed Design.
DETAILED DESIGN has the meaning given to it in the Principal's Project
Requirements.
DISPUTE has the meaning in clause 52.
DIRECTION includes agreement, approval, assessment, authorisation,
certificate, decision, demand, determination, explanation, instruction,
notice, order, permission, rejection, request or requirement.
EARLY WORK, unless otherwise agreed in writing, means all work relating
to the work under the Contract performed by the Contractor prior to the
date of the Notice to Proceed and includes earthworks and Site
preparation (excluding the causeway) and all Design Documents required,
in accordance with the Principal's Project Requirements, to Refurbish
Principal Supplied Equipment.
EQUIPMENT means all:
(a) Principal Supplied Equipment provided to the Contractor;
(b) equipment to be procured by the Contractor on behalf of the
Principal under the Contract and incorporated into the Works; and
(c) unfixed plant and equipment to be procured by the Contractor on
behalf of the Principal under the Contract, which if not used in
the work under the Contract or incorporated in the Works, becomes
the Principal's property.
EXCEPTED RISK has the meaning in clause 18.3.
FACILITIES TESTING means both Process Performance Test and Reliability
Test in accordance with the Principal's Project Requirements.
FINAL CERTIFICATE has the meaning in clause 46.9.
FINAL PAYMENT has the meaning in clause 46.9.
FINAL PAYMENT CLAIM means the final payment claim referred to in clause
46.9.
FORCE MAJEURE means acts of the public or foreign enemies, hostilities
or wars (declared or undeclared), civil disturbances, rebellions,
revolutions, insurrections, riots, military or usurped power, martial
law, confiscation or other action by any government or public
authority, epidemics, landslides, earthquakes, lightning, explosions
and any other cause, event or circumstance which is unpredictable and
similar to the kind herein enumerated or equivalent forces, not within
the reasonable control of the party affected thereby and which that
party is unable to overcome by the exercise of due diligence. Force
Majeure does not include financial distress of either party, strikes,
lock-outs or other industrial disputes by or caused by employees of the
Contractor or the Principal or Subcontractors; events involving a
previous or concomitant fault; late delivery of equipment, plant or
materials or late
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performance of the Contractor, unless such late delivery or performance
is itself caused by Force Majeure. For the avoidance of doubt the
events contemplated in clauses 14.2 and 18.3.1(e) are not events of
Force Majeure.
FORMAL INSTRUMENT OF AGREEMENT means the form of agreement set out in
ANNEXURE 12.
GAS TURBINES has the meaning described in the Principal's Project
Requirements.
GROSS NEGLIGENCE means any act or omission done or omitted to be done
intentionally or with reckless disregard for any damage or loss such
action or omission causes or may cause or which could have been
reasonably foreseen to be caused.
INTELLECTUAL PROPERTY means any patent, registered design, trademark or
name, copyright or other protected right.
LEGISLATIVE REQUIREMENT includes:
(a) Acts, Ordinances, regulations, by-laws, orders, awards and
proclamations of the jurisdiction where work under the Contract or
the particular part thereof is being carried out;
(b) certificates, licences, consents, permits, approvals and
requirements of organisations having jurisdiction in connection
with the carrying out of work under the Contract; and
(c) fees and charges payable in connection with the foregoing.
LENDER means the entity stated in ITEM 7.
LIEN means any lien, security interest or other charge or encumbrance
of any kind, including the lien or retained title for security of a
vendor and any mechanic's lien asserted in connection with and in
respect of moneys legitimately owed by the Contractor and relating to
work under the Contract or the Works.
MECHANICAL COMPLETION means the stage in the carrying out and
completion of work under the Contract as set out in the Principal's
Project Requirements when:
(a) all:
(i) Design Documents;
(ii) procurement of equipment and materials;
(iii) construction and installation;
(iv) Pre-commissioning, including commissioning of all utilities,
systems, components and structures of the Works,
have been completed as is necessary for Commissioning of the Works
and the Works are ready for the introduction of crude feedstock in
accordance with the Principal's Project Requirements;
(b) the Works have instrument control and electrical integrity
demonstrated by the Contractor by testing practices generally
accepted in the industry;
(c) the Works have achieved satisfactory (to the Principal
Representative) mechanical and structural integrity as
demonstrated by testing by the Contractor as required by the
Design Documents;
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(d) all systems, components and structures necessary to safely operate
the Works and to undertake Commissioning and the Process
Performance Test and Reliability Test are installed; and
(e) all major defects or deficiencies in the Works have been rectified
to the reasonable satisfaction of the Principal's Representative.
MECHANICAL COMPLETION CERTIFICATE has the meaning given in clause
43.7.4.
NON-QUALIFYING CAUSE OF DELAY means any delay not a Qualifying Cause of
Delay.
NOTICE OF MECHANICAL COMPLETION has the meaning given to it in clause
43.7.2.
NOTICE TO PROCEED means a notice issued to the Contractor by the
Principal in accordance with clause 2.4.
OPIC means Overseas Private Investment Corporation, a United States
Government agency.
PAYMENT CERTIFICATE has the meaning in clause 46.3.
PAYMENT CLAIM means a claim for payment defined in clause 46.2.1.
PRACTICAL COMPLETION is that stage in the carrying out and completion
of work under the Contract when:
(a) the Works are complete except for minor defects or punch list
items:
(i) which do not prevent the Works from being reasonably capable
of being used for their intended purpose;
(ii) which the Principal's Representative determines the
Contractor has reasonable grounds for not promptly
rectifying; and
(iii) the rectification of which will not prejudice the convenient
use of the Works;
(b) those tests which are required by the Contract to be carried out
and passed before the Works reach Practical Completion, including
but not limited to the Process Performance Test and Reliability
Test have been carried out and passed;
(c) documents and other information:
(i) required under the Contract;
(ii) which, in the Principal's Representative's opinion, are
essential for the use, operation and maintenance of the
Works,
have been supplied, including the warranties required under clause
6.1.5 and clause 12.1;
(d) necessary permits, registrations, approvals, certifications,
consents or licences required to be obtained by the Contractor in
accordance with clause 14 have been provided to the Principal's
Representative; and
(e) the Contractor has complied with the requirements of clause 6.1.3.
PRE-COMMISSIONING has the meaning given to it in the Principal's
Project Requirements.
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PRESCRIBED NOTICE has the meaning given in clause 51.1.
PRINCIPAL means the party described in ITEM 1.
PRINCIPAL'S PROJECT REQUIREMENTS means the written summary or outline
of the Principal's requirements for the Works described in ANNEXURE 18
and includes, without limitation:
(a) the stated purpose for which the Works are intended; and
(b) the Principal's design requirements for the Works.
PRINCIPAL'S REPRESENTATIVE means the Principal's Representative and any
other individual appointed in writing by the Principal under clause 27.
PRINCIPAL SUPPLIED EQUIPMENT has the meaning given in clause 2.3.
PRINCIPAL SUPPLIED INFORMATION means any documented information, other
than the Principal's Project Requirements, supplied or made available
to the Contractor by or on behalf of the Principal before or after the
date of the Notice to Proceed.
PROCUREMENT PLAN has the meaning given to it in the Principal's Project
Requirements.
PROCESS PERFORMANCE TEST has the meaning given to in the Principal's
Project Requirements.
PROJECT AGREEMENT means the agreement between the Government of the
Independent State of Papua New Guinea, E.P. InterOil, Ltd. and the
Principal in relation to the construction and operation of the
Refinery, a copy of which is attached hereto as ANNEXURE 6.
PROJECT SCHEDULE has the meaning given in the Principal's Project
Requirements and in clause 41 and is included in the Contract as
ANNEXURE 11.
PUBLIC LIABILITY POLICY has the meaning given in clause 22.
QUALIFYING CAUSE OF DELAY means:
(a) any act, default or omission of the Principal's Representative,
the Principal or its consultants, agents or other contractors (not
being engaged by the Contractor) including any delay in delivery
of the Refurbished Equipment and other Principal Supplied
Equipment to the Site;
(b) Variations directed under clause 45;
(c) a substantial breach of the Contract by the Principal which
prevents the Contractor from discharging its obligations;
(d) Excepted Risks pursuant to clause 18.3; and
(e) an event of Force Majeure requiring an extension of time to
mitigate the effects of delays caused by Force Majeure under
clause 18.4.
REFURBISHMENT and REFURBISH mean, in relation to Principal Supplied
Equipment, rectify defects, renovate and modify as necessary so that
the subject equipment has a utility and performance capability that is
fit for the purpose of incorporation into the Works.
REFURBISHMENT PLAN has the meaning given to it in the Principal's
Project Requirements.
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RELIABILITY TEST means the 30 day reliability test specified in the
Principal's Project Requirements.
SCHEDULE OF RATES means the list of prices in ANNEXURE 7 which, in
respect of any work to be carried out as part of a Variation, shows the
rate or respective rates of payment for the execution of that work and
which may include lump sums, other sums, quantities and prices.
SEPARABLE PORTION means a portion of the Works identified as such in
the Contract or which the Principal's Representative has determined
pursuant to clause 3.
SITE means the lands and other places to be made available and any
other lands and places made available to the Contractor by the
Principal for the purpose of the Contract.
SOLE DISCRETION means, where the Principal or the Principal's
Representative may act in its or his "sole discretion" the Principal or
the Principal's Representative is:
(a) not obliged to comply with any expressed or implied condition of
the Contract or the general law to act reasonably, fairly or in
good faith;
(b) not obliged to give consideration to any effect:
(i) the exercise or non-exercise of that discretion, or
(ii) the exercise or non-exercise of the right, or
(iii) the taking or non-taking of any action relating to that
discretion
may have on the Contractor, and
(c) not obliged to give reasons for its action, inaction or the
exercise of its right,
and any decision made, action taken or exercise of right by the
Principal in its sole discretion is not subject to review under the
Contract, by an arbitrator or under the general law. If the immunity
from review of the exercise of that discretion is invalid or otherwise
unenforceable at law, under statute or in equity, that immunity from
review may be severed from this definition.
STEERING COMMITTEE has the meaning in clause 52.2.
SUBCONTRACTOR includes consultants.
SUBCONTRACTOR'S CONSENT DEED means the deed set out in ANNEXURE 1.
SUBSYSTEM MECHANICAL COMPLETION CERTIFICATE means a certificate
delivered by the Principal's Representative to the Contractor pursuant
to clause 43.7.4 acknowledging that a subsystem of the Works as
specified therein has achieved Mechanical Completion;
PRINCIPAL'S REPRESENTATIVE means the person stated in ITEM 9 as the
Principal's Representative or other person from time to time appointed
in writing by the Principal to be the Principal's Representative and
notified as such in writing to the Contractor by the Principal and, so
far as concerns the functions delegated by the Principal's
Representative to a Site Supervisor, that Site Supervisor.
SURVEY MARK in clause 33 means a survey peg, bench mark, reference
mark, signal, alignment, level mark or any other mark for the purpose
of setting out, checking or measuring work under the Contract.
TEMPORARY WORKS means work used in carrying out and completing work
under the Contract, but not forming part of the Works.
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TEST has the meaning given in clause 39.1 and includes examination and
measurement.
VARIATION has the meaning given in clause 45.
WORKING DAYS means calendar days on which the commercial banks in
Queensland are open for business.
WORKS means:
(a) the whole of the work to be carried out and completed in
accordance with the Contract, including Variations provided for by
the Contract, which by the Contract is to be handed over to the
Principal; and
(b) includes any Early Work within the meaning in (a) above.
WORK UNDER THE CONTRACT means the work which the Contractor is or may
be required to carry out and complete under the Contract,and includes:
(a) Early Work;
(b) provision of materials;
(c) procurement of all Equipment other than Principal Supplied
Equipment, and shipping and handling of Equipment as provided
elsewhere in the Contract;
(d) the Contractor's Design Obligations, including development of the
Basic Design and preparation of the Detailed Design to the
Principal's satisfaction; and
(e) Works, Variations, remedial work, Construction Plant and Temporary
Works.
1.2 INTERPRETATION
In the Contract:
1.2.1 References to a person include an individual, firm or a body, corporate
or unincorporated.
1.2.2 The time for doing any act or thing under the Contract shall, if it
ends on a Saturday, Sunday or Statutory or Public Holiday in the
country in which the work is being done, be deemed to end on the day
next following which is not a Saturday, Sunday or Statutory or Public
Holiday.
1.2.3 Clause headings and subclause headings in these Conditions of Contract
shall not form part of these Conditions of Contract and shall not be
used in the interpretation of the Contract.
1.2.4 A reference to an ANNEXURE is a reference to an Annexure attached to
these Conditions of Contract unless the context requires otherwise.
1.2.5 A reference to an ITEM is a reference to an Item in the SCHEDULE.
1.2.6 Words in the singular include the plural and words in the plural
include the singular, according to the requirements of the context.
1.2.7 Words importing a gender include every gender.
1.2.8 Where general words are associated with specific words which define a
class, the general words are not limited by reference to that class.
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1.2.9 Communications between the Principal, the Principal's Representative
and the Contractor shall be in the English language.
1.2.10 Measurements of physical quantities shall be in legal units of
measurement of the jurisdiction in ITEM 14.
1.2.11 Unless otherwise provided in the Contract, prices are in the currencies
in ITEM 15 and payments shall be made in those currencies at the place
in ITEM 16, and unless otherwise stipulated all references to "dollars"
and "$", are references to US Dollars.
1.2.12 The law governing the Contract, its interpretation and construction,
and any agreement to arbitrate, is the law of the jurisdiction in ITEM
14.
1.2.13 If any part of this Contract is or becomes illegal, invalid or
unenforceable the legality, validity or enforceability of the remainder
of the Contract will not be affected and the Contract will be read as
if the part had been deleted.
1.2.14 No rule of construction applies to the interpretation of the Contract
to the disadvantage of one party on the basis that such party prepared
the Contract or any relevant part of it.
1.2.15 A reference to any statute or any provision of any statute includes all
legislation, regulations and instruments issued under that statute or
provision and any modification, consolidation, amendment, re-enactment
or replacement of that statute or provision.
1.2.16 A reference to a party to the Contract or any instrument includes that
party's successors and permitted assigns.
1.2.17 The rights and obligations of the parties are subject to the provisions
of the executed Consent Deed.
2. NATURE OF CONTRACT
2.1 PERFORMANCE AND PAYMENT
2.1.1 The Contractor shall carry out and complete work under the Contract in
accordance with the Contract and directions authorised by the Contract.
2.1.2 The Principal shall pay the Contract Currency Amounts together with any
additions or deductions made pursuant to the Contract. The Contract
Currency Amounts shall not be adjusted for rise and fall.
2.2 EARLY WORK
2.2.1 The Principal authorised the Contractor to perform and the Contractor
has performed Early Work prior to the date of the Notice to Proceed.
2.2.2 Despite the prior performance of the Early Work by the Contractor and
the prior payment to the Contractor by the Principal for the
performance of the Early Work, which the Contractor acknowledges as
having been received in full, all Early Work is deemed included in the
work under the Contract.
2.2.3 All rights and obligations of the Principal and the Contractor under
the Contract apply to Early Work, except that the Principal retains all
risk of and responsibility for loss of or damage to the earth works
forming and comprising the Site and the earthen causeway.
2.3 PRINCIPAL SUPPLIED EQUIPMENT
2.3.1 The Principal shall make available CIF Site to the Contractor,
Principal Supplied Equipment as set out in the Principal's Project
Requirements.
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2.3.2 The Contractor takes full responsibility for the fitness for purpose of
the Design Documents provided for the Refurbishment of such Principal
Supplied Equipment.
2.3.3 The Contractor shall not be entitled to any extension of time to the
Date for Mechanical Completion or Date for Practical Completion nor any
extra payment because of the Design Documents provided for the
Refurbishment of any Principal Supplied Equipment not being fit for
purpose.
2.4 NOTICE TO PROCEED
2.4.1 The Principal shall authorise the Contractor to commence the remaining
work under the Contract, other than Early Work, by a Notice to Proceed.
2.4.2 The Contractor shall not be authorised to proceed with work under the
Contract except upon receipt of a Notice to Proceed. The Contractor
may, at its own expense, proceed with preparation for work under the
Contract prior to the receipt of a Notice to Proceed and the Principal
agrees to cooperate with the Contractor in such preparation, provided
that the Principal shall incur no monetary obligation and shall not be
required to act in any manner not required by or not in compliance with
this Contract
2.5 TAXES
2.5.1 Imported Equipment, Plant and Materials:
(a) This clause 2.5.1 shall apply to all equipment, plant and material
for incorporation into the Works.
(b) The Contractor shall import all equipment, plant and material for
incorporation into the Works into the Independent State of Papua
New Guinea in the name of the Principal as consignee. The
Contractor shall ensure that all Subcontractors and suppliers of
the Contractor comply with this requirement, and except to the
extent caused by breach of this clause 2.5.1(b) by the Contractor,
the Principal shall pay directly to the Internal Revenue
Commission of Papua New Guinea (IRC) all import duty and value
added tax (VAT) as applicable to the equipment, plant and
materials imported into the Independent State of Papua New Guinea
in compliance with this clause 2.5.1(b).
(c) The Contractor shall be responsible for the importation, bonding
and re-export of all Construction Plant and Temporary Works
imported into the Independent State of Papua New Guinea and used
in the performance of the work under the Contract. The Contractor
shall ensure that all Subcontractors and suppliers of the
Contractor comply with this requirement.
(d) The Contractor shall pay directly to the Internal Revenue
Commission of Papua New Guinea (IRC) all import duty and value
added tax (VAT) as applicable to the equipment, plant and
materials imported into the Independent State of Papua New Guinea
in compliance with clause 2.5.1(c).
2.5.2 Non-imported work under the Contract
If the Contractor has complied with clause 2.5.3, the Principal shall
pay to or reimburse the Contractor for any value added tax (VAT) in
relation to the performance of work under the Contract including for
the provision of equipment, plant and materials that is not imported
into the Independent State of Papua New Guinea.
2.5.3 Contractor's Assistance
The Contractor shall provide all reasonable assistance to the Principal
and provide all documentation specified by the Principal as necessary
for the Principal to be able to receive
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a refund of VAT, sales taxes, import duties and any other taxes to
which the Principal is entitled, including any refund under the Project
Agreement.
2.5.4 Income Tax Liability
The Contractor must file all returns and promptly pay when due all
income taxes, employee related taxes, levies, fees, assessments and
other similar charges measured or based upon the Contractor's receipts,
income or profits which are imposed by governmental authorities of any
country having jurisdiction to levy such charges in connection with the
Contractor's performance under the Contract and the Contractor's
compensation therefor. Except as otherwise provided in the Contract,
the Contractor shall pay all taxes, employee related taxes, levies,
fees duties, assessments and charges imposed with respect to the
performance of the Contractor's obligations under the Contract.
2.6 CONDITION PRECEDENT
The Contract is subject to:
(a) the Contractor entering into and executing the Consent Deed
contained in ANNEXURE 5 prior to or coincidentally with the
execution of the Contract;
(b) the establishment to the Contractor's reasonable satisfaction of
all necessary insurance to be provided by the Principal under the
Contract; and
(c) receipt by the Contractor from the Principal of written
verification by the Lender that the Principal is entitled to draw
on its OPIC loan.
3. SEPARABLE PORTIONS
The Principal's Representative may at any time determine that any part
of the Works shall be a Separable Portion. The Principal's
Representative shall clearly identify for each Separable Portion the:
(a) portion of the Works;
(b) Date for Practical Completion; and
(c) respective amounts for security, liquidated damages and delay
damages (all calculated pro-rata according to the ratio of the
Principal's Representative's valuation of the Separable Portion to
the Contract Sum).
4. THE CONTRACTOR'S PRIMARY OBLIGATIONS
4.1.1 Without limiting the generality of the Contractor's responsibilities,
the Contractor shall ensure the Principal's Project Requirements are
met and shall, without limitation, carry out the following obligations:
(a)
(i) design the Works in accordance with the Contract, including
without limitation, prepare the Detailed Design, in
accordance with the Basic Design to the satisfaction of the
Principal;
(ii) take delivery of all Principal Supplied Equipment CIF Site;
(iii) procure Equipment (other than Principal Supplied Equipment)
and materials;
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(iv) construct the Works in accordance with the Contract,
including the Principal's Project Requirements and the
Detailed Design as approved in writing by the Principal;
(v) carry out Pre-commissioning and ensure the Works progresses
to and reaches Mechanical Completion by the Date for
Mechanical Completion in accordance with the Contract;
(vi) carry out Commissioning, Process Performance Testing and
Reliability Testing; and
(vii) ensure that the work under the Contract progresses to and
reaches Practical Completion by the Date for Practical
Completion in accordance with the Contract;
(b)
(i) satisfy and ensure that all its Subcontractors satisfy all
Legislative Requirements; and
(ii) arrange for all permits and approvals set out in ANNEXURE 9
as the responsibility of the Contractor;
(c) complete the Works in accordance with the Contract for the
Contract Currency Amounts adjusted by any additions or deductions
which may be required to be made under the Contract;
(d) be responsible for and control, co-ordinate, administer and direct
all activities for the planning of the work under the Contract;
(e) execute the Consent Deed and Subcontractor's Consent Deed and
shall ensure Subcontractors execute the Subcontractor's Consent
Deed in accordance with the Contract;
(f)
(i) comply with;
(ii) ensure all Subcontractors comply with; and
(iii) ensure the Principal does not breach,
the terms of the Project Agreement in respect of the Contractor's
performance of the work under the Contract;
(g) perform work under the Contract with due regard to the traditions
and customs of the Independent State of Papua New Guinea and Napa
Napa in particular; and
(h) comply with and ensure that all Subcontractors comply with the
(US) Foreign Corrupt Practices Act and all legislation with
respect to the employment of minors.
5. WARRANTIES OF THE CONTRACTOR AND THE PRINCIPAL
5.1.1 Without limiting the generality of clause 2.1.1, the Contractor
warrants to the Principal that:
(a) all Early Work has been performed in accordance with the Contract,
is free from defects, and is fit for the purpose of the
Principal's Project Requirements;
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(b) the Contractor:
(i) has carefully prepared and checked the Basic Design for the
Works and warrants to the Principal that such Basic Design
is suitable, appropriate and adequate for the purpose stated
in and is in accordance with the Principal's Project
Requirements;
(ii) has carefully checked and satisfied itself that and warrants
to the Principal that all Principal Supplied Equipment is:
A free from defects, except for latent conditions ;
B fit for its intended purpose in accordance with the
Principal's Project Requirements; and
C except in the event of a latent condition, fit for
incorporation into the Works without further cost to
the Principal or extension of time to the Date for
Mechanical Completion or the Date for Practical
Completion;
(iii) shall at all times be suitably qualified and experienced,
and shall exercise due skill, care and diligence in the
execution and completion of the work under the Contract;
(iv) shall execute and complete the Contractor's Design
Obligations and produce the Design Documents in accordance
with the Principal's Project Requirements;
(v) shall execute and complete the work under the Contract in
accordance with the Design Documents so the Works, when
completed:
A are fit for their intended purpose; and
B comply with all the requirements of the Contract and
all Legislative Requirements; and
(vi) has examined, carefully checked and accepts and has allowed
for in the Contract Sum all costs relating to and arising
out of compliance with clause 14; and
(c) the Contractor:
(i) is a corporation validly existing under the laws of its
place of incorporation;
(ii) has the corporate power to enter into and perform its
obligations under the Contract and to carry out the
transactions contemplated by it;
(iii) has taken all necessary corporate action to authorise the
entry into and performance of this Contract and to carry out
the transactions contemplated by it;
(iv) acknowledges that the Contract is the Contractor's valid and
binding obligation enforceable in accordance with its terms;
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(v) acknowledges that the execution and performance by it of
this Contract and the transactions contemplated under it
did not and will not violate in any respect any provision
of:
A any law or treaty or any judgment, ruling, order or
decree binding on it;
B its constitution or other constituent documents; or
C any other document or agreement which is binding on it
or its assets;
(vi) acknowledges that all its representations and warranties in
the Contract are true and not misleading;
(vii) has not entered into the Contract in reliance on, or as a
result of, any statement or conduct of any kind by or on
behalf of the Principal, the Lender or any of their
respective related bodies corporate (as defined in the
Corporations Act 2001 (Cth)) except as expressly set out in
the Contract;
(viii) has not received any notice of any transfer, mortgage,
charge, execution or other dealing in relation to the
Contract nor any notice under s218 of the Income Tax
Assessment Act 1936 (Cth) or the Income Tax Assessment Act
1997 (Cth) or any similar provision in the Income Tax Act
1959 (PNG);
(ix) has recent relevant experience with major projects in the
Independent State of Papua New Guinea and is familiar with
the traditions and customs of the Independent State of
Papua New Guinea and Napa Napa in particular.
5.1.2 The Contractor acknowledges that the warranties in clauses 5.1.1(a)
and 5.1.1(b) shall remain unaffected notwithstanding:
(a) any Variations under clause 45;
(b) that the Contractor has entered into a novation of any prior
contract between the Principal and a consultant or supplier of the
Principal and thereafter has retained that consultant or supplier
in connection with the work under the Contract; and
(c) any receipt or review of, or comment or direction on, the Design
Documents by the Principal's Representative.
5.1.3 The Principal warrants to the Contractor that the Principal:
(a) is a corporation validly existing under the laws of its place of
incorporation;
(b) has the corporate power to enter into and perform its obligations
under the Contract and to carry out the transactions contemplated
by it;
(c) has taken all necessary corporate action to authorise the entry
into and performance of this Contract and to carry out the
transactions contemplated by it;
(d) acknowledges that the Contract is the Principal's valid and
binding obligation enforceable in accordance with its terms;
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(e) acknowledges that the execution and performance by it of this
Contract and the transactions contemplated under it did not and
will not violate in any respect any provision of:
(i) any law or treaty or any judgment, ruling, order or decree
binding on it;
(ii) its constitution or other constituent documents; or
(iii) any other document or agreement which is binding on it or
its assets;
(f) acknowledges that all its representations and warranties in the
Contract are true and not misleading;
(g) has not entered into the Contract in reliance on, or as a result
of, any statement or conduct of any kind by or on behalf of the
Contractor or any of its related bodies corporate (as defined in
the Corporations Act 2001 (Cth)) except as expressly set out in
the Contract;
(h) has not received any notice of any transfer, mortgage, charge,
execution or other dealing in relation to the Contract nor any
notice under s218 of the Income Tax Assessment Act 1936 (Cth) or
the Income Tax Assessment Act 1997 (Cth) or any similar provision
in the Income Tax Act 1959 (PNG).
6. YEAR 2000 COMPLIANCE
6.1.1 The Contractor warrants that all Equipment provided under the Contract
(in any format and including all releases, updates or amendments to the
original Equipment provided) is Date Compliant.
6.1.2 If the Contractor becomes aware that any Equipment provided in
connection with the Contract is not or will not be Date Compliant at
any time, the Contractor must immediately notify the Principal in
writing.
6.1.3 If any Equipment provided in connection with the Contract is not Date
Compliant at any time or the Principal reasonably considers that any
Equipment provided in connection with the Contract is not likely to be
Date Compliant at any time, the Contractor must promptly on receipt of
notification from the Principal:
(a) demonstrate to the Principal that the Equipment is Date Compliant
and provide test cases and expected and actual results to prove
the Equipment is Date Compliant; or
(b) make the Equipment Date Compliant (by providing such updates,
replacement of equipment or services as may be required by the
Principal),
at no cost to the Principal.
6.1.4 The Contractor shall indemnify and keep the Principal indemnified
against all liabilities, claims, costs, losses, damages or expenses
which the Principal may suffer or incur arising out of or resulting
from the failure of any Equipment provided in connection with the
Contract to be Date Compliant.
6.1.5 If the Contractor proposes to enter into a subcontract or supply
contract in relation to any part of the Works and the subcontract or
supply contract involves any Equipment then (unless exempted by the
Principal in writing) the Contractor must obtain a Date Compliant
warranty in the form required by the Principal. The Contractor shall
obtain the warranty and shall hand over to the Principal all original
warranties duly executed by the relevant Subcontractor or supplier and
the Contractor prior to and as a condition precedent to the Works
reaching Practical Completion. If the Contractor does not comply with
this clause,
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the Principal's Representative may withhold the issue of the
Certificate of Practical Completion under clause 43.9.
6.1.6 The warranties and obligations in this clause are in addition to and do
not limit any other warranties or obligations of the Contractor under
the Contract and shall survive the issue of a Final Certificate or the
termination of the Contract.
7. SECURITY
7.1 PROVISION
7.1.1 The Contractor shall provide within 28 days of the date of the Notice
to Proceed security in the form set out in ANNEXURE 2 issued by a
trading bank in Australia approved by the Principal and the Lender to
ensure the due and proper performance of the Contract. The security
shall be for an amount equal to the amount stated in ITEM 17.
7.1.2 If the Contract Currency Amounts are varied under the Contract, the
Principal's Representative may direct the Contractor to cause the
issuer of the security to increase or decrease the amount of the
security to the actual amount of the Principal's entitlement.
7.2 RECOURSE
7.2.1 The Principal may have recourse to security provided under the Contract
and may convert into money security that does not consist of money if:
(a) the Contractor commits a substantial breach of Contract,
including:
(i) the Contractor fails to complete all work under the Contract
in accordance with the Contract; or
(ii) the Contractor fails to pay an amount payable to the
Principal; or
(b) the Principal is otherwise entitled to exercise a right under the
Contract in respect of security;
and:
(c) the Principal has given the Contractor notice in writing for the
period of 10 days, of the Principal's intention to have recourse
to the security;
(d) the period of 10 days has elapsed since the notice was given; and
(e) the Contractor has failed to remedy the circumstances under Clause
7.2.1(a).
7.2.2 Provided that clause 7.2.1(c) and (d) is complied with, the Contractor
shall not take any steps to enjoin or otherwise restrain:
(a) any issuer of the security from paying the Principal pursuant to
the security;
(b) the Principal from taking any steps for the purposes of making a
demand under the security or receiving payment under the security;
or
(c) the Principal using the moneys received under the security.
7.2.3 The Principal shall not be liable for any loss occasioned by the
conversion of security under the Contract.
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7.3 REDUCTION AND RELEASE
7.3.1 Mechanical Completion
Upon the issue of the Certificate of Mechanical Completion, the
Principal's entitlement to security, including additional security
pursuant to clause 7.1.2, shall be reduced by 50% of the amount then
held, and the reduction shall be effected within 14 days after such
issue or upon receipt of the replacement security whichever is later.
7.3.2 Practical Completion
Upon the issue of the Certificate of Practical Completion the
Principal's entitlement to security, including additional security
pursuant to clause 7.1.2, shall be reduced by 50% of the amount then
held, and the reduction shall be released and returned within 14 days
to the Contractor.
7.3.3 Final Completion
The Principal shall release the balance of the security then held
within 14 days after the issue of the Final Certificate, provided the
Contractor has provided to the Principal all releases required pursuant
to clause 46.9.
7.4 DEED OF GUARANTEE, UNDERTAKING AND SUBSTITUTION
Immediately upon request by the Principal the Contractor shall provide
a duly executed and enforceable Deed of Guarantee, Undertaking and
Substitution given in favour of the Principal in the form provided in
ANNEXURE 3.
7.5 NO PAYMENT UNTIL SECURITY LODGED
The Principal may refuse to make any payment otherwise due to the
Contractor until the Contractor has fully complied with its obligations
to lodge security under this clause 7.
8. EVIDENCE OF CONTRACT
8.1.1 Until a Formal Instrument of Agreement is executed by the parties, the
agreement in writing between the parties for the execution of the work
under the Contract, including documents or parts of documents to which
reference may properly be made to ascertain the rights and obligations
of the parties, shall evidence the Contract.
8.1.2 The Principal and the Contractor shall execute 2 copies of the Formal
Instrument of Agreement.
8.1.3 The Principal shall have both copies stamped (unless they are exempt
from stamp duty) and forward one copy to the Contractor.
8.1.4 The Principal shall bear the cost of any stamp duty payable on the
Contract.
8.1.5 The Principal and Contractor shall show evidence of acceptance of the
Contract by initialling each page of the Contract.
9. SERVICE OF NOTICES
9.1 NOTICES
9.1.1 A notice in connection with the Contract:
(a) must be signed by the party or on behalf of the party by a person
authorised to do so by the party giving the notice;
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(b) must be in writing;
(c) must be delivered by hand or sent by prepaid ordinary post
(airmail if posted to or from a place outside Australia) to the
address of the addressee or sent by facsimile to the facsimile
number of the addressee; and
(d) if a notice is sent by email it must be confirmed in accordance
with paragraphs (a), (b) and (c) above.
9.2 AUTHORISED SIGNATORIES
9.2.1 The authorised signatories to notices are those specified in ITEM 18
and such other persons as are notified from time to time in writing by
one party to the other.
9.2.2 A notice (and other documents) shall be deemed to have been given and
received:
(a) if addressed or delivered to the relevant address in the Contract
or last communicated in writing to the person giving the notice;
and
(b) on the earliest date of:
(i) actual receipt;
(ii) confirmation of correct transmission of facsimile; or
(iii) 14 days after posting.
9.2.3 Any notice given to the Contractor's Representative, identified in a
notice to the Principal's Representative under clause 29, shall be
deemed to have been given to the Contractor.
10. CONTRACT DOCUMENTS
10.1 DISCREPANCIES
10.1.1 The several documents forming the Contract are to be taken as mutually
explanatory of one another. If either party discovers any ambiguity or
discrepancy in or between the documents comprising the Contract, that
party shall notify the Principal's Representative in writing of the
ambiguity or discrepancy. In the event of an ambiguity or discrepancy
being discovered and brought to the attention of the Principal's
Representative, or discovered by the Principal's Representative, the
Principal's Representative shall direct the Contractor as to the
interpretation to be followed by the Contractor in carrying out the
work under the Contract, however:
(a) if there is an ambiguity or inconsistency between any express
standards, then the standard to be achieved shall be the higher of
the standards prescribed;
(b) if a standard of workmanship, material, finish or any other aspect
of the Works is not specified then the standard of such
workmanship, material, finish, or other aspect shall be equivalent
to the standard prescribed for similar parts of the Works; and
(c) figures shall prevail over scaled dimensions in a discrepancy.
10.1.2 If an ambiguity or discrepancy exists in any term or terms of the
documents comprising the Contract, or any one or more of them, then
these documents shall be given that interpretation which resolves the
ambiguity or discrepancy consistent with the terms of the Contract as a
whole and no rule of construction shall apply to the disadvantage of
one party on the basis that that party put forward the documents
comprising the Contract or any of them.
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10.1.3 Subject to clauses 10.1.1 and 10.1.2 a discrepancy between the
documents comprising the Contract shall be resolved in accordance with
the order or precedence set out in the Formal Instrument of Agreement.
10.1.4 The Principal's Representative's direction under clause 10.1.1 shall
not entitle the Contractor to a variation, any extra payment or an
extension of time.
10.2 PRINCIPAL SUPPLIED INFORMATION
10.2.1 The Principal Supplied Information shall:
(a) remain the Principal's property and be returned to the Principal
within 7 days after the Date of Practical Completion or on written
demand; and
(b) not be used, copied nor reproduced for any purpose other than work
under the Contract.
10.2.2 The documents comprising the Principal's Project Requirements and the
Detailed Design shall remain the property of the Principal.
10.2.3 In respect of all Principal Supplied Information supplied by the
Principal to the Contractor prior to or in conjunction with entering
into the Contract, the Contractor agrees:
(a) unless the Principal expressly agrees otherwise in writing, any
Principal Supplied Information:
(i) has been provided only for the Contractor's convenience;
(ii) has not been relied upon by the Contractor for the purpose
of entering into the Contract;
(b) the Principal does not:
(i) assume any responsibility or duty of care in respect of; or
(ii) warrant, guarantee or make any representation as to,
the Principal Supplied Information (including its accuracy or
adequacy for the purposes of the Contract);
(c) the Principal shall not be liable to the Contractor in contract,
tort, equity, under statute or otherwise arising from or in
connection with the provision of the Principal Supplied
Information or the non-provision of any other information by the
Principal; and
(d) except as expressly provided by the Contract, the Contractor shall
not be entitled to any extension of time to the Date for
Mechanical Completion or the Date for Practical Completion,
adjustment to the Contract Currency Amounts or other claim arising
from or in connection with the accuracy or adequacy of the
Principal Supplied Information covered under this clause 10.2.3.
10.3 CONTRACTOR SUPPLIED DOCUMENTS
10.3.1 The Contractor shall supply to the Principal's Representative the
documents and number of copies thereof, both stated in the Principal's
Project Requirements.
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10.3.2 If the Contractor submits documents to the Principal's Representative,
then except where the Contract otherwise provides:
(a) the Principal's Representative shall not be required to check such
documents for errors, omissions, inconsistencies, ambiguities,
discrepancies or compliance with the Contract;
(b) notwithstanding clause 25.7.3, any Principal's Representative's
acknowledgment or approval shall not prejudice the Contractor's
obligations; and
(c) if the Contract requires the Contractor to obtain the Principal's
Representative's direction about such documents, the Principal's
Representative shall give, within the time stated in ITEM 21, the
appropriate direction, including reasons if the documents are not
suitable.
10.3.3 Copies of documents supplied by the Contractor shall be the Principal's
property for its sole use at its sole discretion.
10.3.4 The Contractor shall, during the progress of the work under the
Contract, keep a record of all differences between the drawings used by
the Contractor and how the Works were actually constructed by the
Contractor, and the Contractor shall supply a copy of such record to
the Principal under clause 10.3.3.
10.3.5 A direction by the Principal's Representative to vary anything in the
Design Documents shall be a Variation to work under the Contract only
to the extent that the Design Documents, before such Variation,
complied, or would have complied, with the Principal's Project
Requirements.
10.4 AVAILABILITY
The Contractor shall, during the work under the Contract, keep
available to the Principal's Representative and the Principal:
(a) on Site, one complete set of documents affecting work under the
Contract and supplied by a party or the Principal's
Representative; and
(b) at the place of manufacture or assembly of any significant part of
work under the Contract off-Site, a set of the documents affecting
that part.
10.5 CONFIDENTIAL INFORMATION
10.5.1 The parties shall ensure that they keep confidential such documents,
samples, models, patterns and other information as are clearly
identified as confidential and shall ensure that they are not disclosed
to a third party other than as directed by the Principal's
Representative.
10.5.2 Without limiting its other obligations under this clause, the
Contractor must not:
(a) disclose to any person, other than the Lender; or
(b) use for any purpose other than the carrying out of work under the
Contract,
any of the contents of the Contract or any other information obtained
by the Contractor in the course of or in connection with its carrying
out work under the Contract unless:
(c) the Principal has given its prior consent in writing; or
(d) as required by law.
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10.5.3 The Contractor's obligations under this clause shall apply after the
issue of a Final Certificate or termination of the Contract for any
reason (whether or not the Contractor signs a separate agreement under
this clause).
10.6 MEDIA
The Contractor shall not disclose any information concerning the project
for distribution through any communications media without the Principal's
prior written approval (which shall not be unreasonably withheld). The
Contractor shall refer to the Principal any inquiries from any media
concerning the project.
10.7 RECORDS AND ACCESS TO RECORDS
10.7.1 The Contractor shall make and keep and the Contractor shall ensure all
Subcontractors make and keep accurate records of the work under the
Contract including but not limited to:
(a) all documents referred to in this Contract, and the Principal's
Project Requirements;
(b) Design Documents;
(c) calculations and mark-ups;
(d) records as to progress of the works;
(e) diary records of daily tasks;
(f) complete photographic records;
(g) quality system documents, records and reports;
(h) manning and equipment records;
(i) results of the examination and testing of any work or materials;
(j) time records;
(k) all cost records relating in any way to delays;
(l) Variations;
(m) all Consultant's reports and opinions obtained by the Contractor in
relation to the matters referred to in this clause; and
(n) all necessary supporting documents, invoices, records and related
financial statements whether in writing or stored on any other
medium whatsoever.
10.7.2 Subject to the Contractor's right to claim legal professional privilege
in respect of any record, which is hereby maintained, the Principal or
any other person nominated by the Principal shall have the right upon the
Principal's reasonable request, to inspect, copy and audit at any time
any record referred to in clause 10.7.1. The Contractor shall make
available forthwith upon request such facilities as may be necessary to
enable a legible reproduction of any records referred to in this clause
10.7.1 stored on a medium other than writing to be provided to the
Principal.
10.7.3 The Contractor's records referred to in clause 10.7.1 shall not be
destroyed and the Principal shall have right of access under clause
10.7.2 prior to:
(a) 6 years after the issue of the Final Certificate under clause 46.9;
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(b) 6 years after the lawful termination of the Contract; or
(c) the resolution of all claims under or arising out of the Contract
whichever is the later in time.
11. ASSIGNMENT AND SUBCONTRACTING
11.1 ASSIGNMENT
11.1.1 The Contractor shall not assign, novate, mortgage, encumber or otherwise
deal with the Contract or any of its interests, rights and obligations
under or in connection with the Contract.
11.1.2 Subject to the terms of the Consent Deed, the Principal may at any time
in its absolute discretion and without any consent from the Contractor,
assign, novate, mortgage, encumber or otherwise deal with the Contract or
any of its interests, rights and obligations under or in connection with
the Contract provided that the assignee, novatee or mortgagee:
(a) has the necessary powers and assets to enable it to perform the
Principal's obligations under the Contract; and
(b) enters into a covenant with the Contractor that the assignee,
novatee or mortgagee will duly perform the Principal's obligations
in the Contract (including this clause).
11.1.3 Subject to the terms of the Consent Deed, the Contractor must, if
requested by the Principal, execute a deed of novation on terms
reasonably required by the Principal giving effect to the assignment,
novation, mortgage, encumbrance or other dealing.
11.1.4 The Contractor shall enter into the:
(a) Subcontractor's Consent Deed contained in ANNEXURE 1 in respect of
the subcontracts set out in ITEM 22(a) promptly upon entering into a
subcontract; and
(b) Subcontractor's Novation Deed, contained in ANNEXURE 1 upon request
by the Principal,
and promptly provide the executed documents to the Principal .
11.1.5 For the purposes of effecting the terms of such documents contemplated by
this clause 11.1 only, the Contractor hereby irrevocably appoints the
Principal's Representative to be the Contractor's attorney with authority
to execute the documents referred to in clauses 11.1.4(a) and 11.1.4(b)
as are necessary to give effect to the terms of each document and to bind
the Contractor accordingly.
11.2 SUBCONTRACTING GENERALLY
11.2.1 Unless otherwise agreed in writing by the Principal, the Contractor shall
not without the Principal's Representative's prior written approval
(which shall not be unreasonably withheld):
(a) subcontract or allow a Subcontractor to subcontract any work
described in ITEM 22(b); or
(b) allow a Subcontractor to assign a subcontract or any payment or any
other right, benefit or interest thereunder.
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11.2.2 With a request for approval, the Contractor shall give the Principal's
Representative written particulars of the work to be subcontracted and
the name and address of the proposed Subcontractor. The Contractor shall
give the Principal's Representative other information, which the
Principal's Representative reasonably requests, including the proposed
subcontract documents with all terms and conditions including prices.
11.2.3 Within 14 days of the Contractor's request for approval, the Principal's
Representative shall give the Contractor written notice of approval or of
the reasons why approval is not given.
11.2.4 Unless otherwise agreed in writing by the Principal, the Contractor shall
ensure:
(a) all Subcontractors set out in ITEM 22(A) execute the Subcontractor's
Consent Deed:
(b) all subcontracts contain:
(i) provision that the Subcontractor shall not assign nor
subcontract without the Contractor's written consent; and
(ii) provisions which may be reasonably necessary to enable the
Contractor to fulfil the Contractor's obligations to the
Principal;
(iii) provision that if the Contract is terminated and upon the
Subcontractor being paid the sum certified by the Principal's
Representative as owing to the Subcontractor, the Contractor
and the Subcontractor shall, after the Principal has done so,
promptly execute a Subcontractor's Novation Deed in the form
provided in ANNEXURE 1;
(iv) provision that all warranties in the subcontract are made in
favour of the Principal and the Lender;
(v) provision that the subcontract may be charged or otherwise
secured in favour of the Lender; and
(vi) without limiting clause 11.2.4(b)(ii), provisions that the
Subcontractor must comply with the Worker Rights Requirements
set out in ITEM 34 in connection with its subcontractors,
employees, agents or those for whom it is responsible.
11.3 CONTRACTOR'S RESPONSIBILITY
11.3.1 Except where the Contract otherwise provides, the Contractor shall be
liable to the Principal for the acts, defaults and omissions of
Subcontractors and employees and agents of Subcontractors as if they were
those of the Contractor.
11.3.2 The Principal's approval to subcontract shall not relieve the Contractor
from any liability or obligation under the Contract.
12. WARRANTY REQUIREMENTS
12.1 WARRANTIES ON MATERIALS OR GOODS
12.1.1 The Contractor shall obtain a warranty from Subcontractors and other
suppliers or manufacturers of the materials or goods which are material
in nature to the functionality of the Works in favour of the Principal
and the Lender.
The warranties provided pursuant to this clause 12.1.1 must be reasonably
satisfactory to the Principal, be in the name of each of the Principal,
the Lender and the Contractor as beneficiaries and allow for the
Principal and the Lender to assign, charge or otherwise deal
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with the benefits of these warranties. The Contractor shall give an
executed copy of such warranties to the Principal's Representative before
the Date for Practical Completion.
12.1.2 The warranties which are required by this clause 12 shall not be
construed in any way to modify or limit any of the rights, powers or
remedies of the Principal against the Contractor whether under the
Contract or otherwise. In respect of the materials or goods the subject
of a warranty, the Contractor must discharge the Contractor's obligations
under this Contract in respect of any defective work in respect of
materials or goods for which such a warranty has been obtained despite
the Principal having the benefit of the warranty.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 WARRANTIES
13.1.1 The Principal warrants that, unless otherwise provided in the Contract,
design, materials, documents and methods of working, each specified in
the Contract or provided or directed by the Principal or the Principal's
Representative shall not infringe any Intellectual Property right.
13.1.2 The Contractor warrants that any other design, materials, documents and
methods of working, each provided by the Contractor, shall not infringe
any Intellectual Property right.
13.1.3 Each party shall indemnify the other against such respective
infringements.
13.2 INTELLECTUAL PROPERTY RIGHTS GRANTED TO THE PRINCIPAL
13.2.1 Copyright and property in the Design Documents contained in the Contract
documents and any part of the Principal's Project Requirements, Basic
Design and Detailed Design hereby vest in the Principal and the Principal
grants to the Contractor an irrevocable and royalty free licence
effective from the date of the Notice to Proceed to reproduce, adapt and
utilise the Design Documents for the purpose of performing the work under
the Contract only.
13.2.2 The Contractor shall do everything necessary to perfect such vesting.
13.2.3 The Contractor shall ensure that the Design Documents are not used,
copied or supplied for any purpose other than the work under the Contract
without the written consent of the Principal or as required by law.
13.3 FUTURE DESIGN DOCUMENTS
Pursuant to Section 197 of the Copyright Act 1968 (Cth), Section 19(2) of
the Designs Act 1906 (Cth), Section 14 of the Patents Act 1990 (Cth), the
Copyright and Neighbouring Rights Act 2000 (PNG), the Patents and
Industrial Designs Act 2000 (PNG) and pursuant to any equity and common
law rights, all Intellectual Property (including copyrights, patent
rights, design rights, confidential information, trade secrets and any
other property of an intellectual nature) as and when the Design
Documents are developed, created, made or manufactured by or through the
Contractor, will automatically be owned by the Principal.
13.4 MORAL RIGHTS
13.4.1 The Contractor shall, upon the Principal's reasonable request in writing,
procure from each person ("AUTHOR") engaged in the production of
copyright work contained in the Contractor's Design Obligations in
relation to the work under the Contract, a written consent from that
Author permitting the Principal to:
(a) reproduce, publish, transmit, copy or make an adaptation of any
copyright work produced by the Author without identifying the Author
as the author of the work; or
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(b) subject any copyright work produced by the Author to any derogatory
treatment within the meaning of Section 195AG of the Copyright Act
1968 (Cth) including materially altering the copyright work in a way
that is prejudicial to the Author's moral reputation,
and the Contractor shall indemnify, keep indemnified and hold the
Principal harmless from and against any failure by the Contractor to
comply with such request.
14. LEGISLATIVE REQUIREMENTS
14.1 COMPLIANCE
14.1.1 The Contractor shall satisfy:
(a) all Legislative Requirements and obtain all permits and otherwise
satisfy its responsibilities as specified in ANNEXURE 9;
(b) such Legislative Requirements as a Contractor carrying out work
similar to work under the Contract would ordinarily be required to
satisfy except as are required to be satisfied by the Principal in
clause 14.4; and
(c) all Legislative Requirements and obtain all permits directed by the
Principal's Representative to be satisfied by or obtained on behalf
of the Principal.
14.1.2 The Contractor, upon finding that a Legislative Requirement is at
variance with the Contract, shall promptly give the Principal's
Representative written notice thereof.
14.2 CHANGES
14.2.1 If a Legislative Requirement:
(a) necessitates a change:
(i) to the Works;
(ii) to so much of work under the Contract as is considered
material by the Principal's Representative;
(iii) being the provision of services by a municipal, public or
other statutory authority in connection with work under the
Contract; or
(iv) in a fee or charge or payment of a new fee or charge;
(b) comes into effect after the date of the Contractor's Proposal but
could not reasonably then have been anticipated by a competent
contractor; and
(c) causes the Contractor to incur more or less cost than otherwise
would have been incurred,
the difference shall be assessed by the Principal's Representative under
clause 45.4.1 and added to or deducted from the Contract Currency Amounts.
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14.3 SPECIFIC LEGISLATIVE REQUIREMENTS AND COMMUNITY RELATIONS
14.3.1 Specific Legislative Requirements
Without limiting the Contractor's obligations under clauses 14.1 and 16:
(i) the Contractor shall:
A carry out the work under the Contract in accordance
with;
B ensure that Subcontractors comply with; and
C ensure that neither the Contractor nor its
Subcontractors cause the Principal to breach,
the requirements contained in ANNEXURE 6 in relation to the
performance of the work under the Contract;
(ii) the Contractor shall take all action necessary to protect and
preserve the environment from harm or damage arising from or
in connection with the carrying out of work under the
Contract;
(iii) the Contractor shall comply with all Legislative Requirements
relating to the protection or preservation of the environment;
and
(iv) despite:
A any termination of the Contract, or
B the issue of the Final Certificate pursuant to clause
46.9, or
C the exercise by the Principal of its rights pursuant to
clause 48.4,
to the maximum extent permitted by law, the Contractor shall
indemnify and keep indemnified the Principal and the Principal's
employees and agents against all claims, demands, actions, costs
(including legal costs), charges, expenses, damages, loss and other
liability (including without limitation in tort, under any law, in
respect of making good environmental damage or in defending claims)
arising from or contributed to by acts or omissions of the
Contractor, its employees, its Subcontractors or their employees
(whether wilful, negligent or otherwise) amounting to a breach by
the Contractor of its obligations under this clause 14.
14.3.2 Community Relations
Subject to any other provision of the Contract:
(a) The Principal shall be primarily responsible for community relations
associated with the performance of the work under the Contract.
(b) The Contractor shall have no direct involvement in community
relations outside the Site unless in accordance with a direction
from the Principal, but shall assist the Principal in its
relationships and dealings with members of the community and
community groups and co-operate with the Principal in dealing with
matters arising out of or relating to community involvement or
activity in relation to the performance of the work under the
Contract.
(c) The Contractor shall communicate and liaise closely with the
Principal with respect to the employment of members of the local
community and the creation of business opportunities for the local
community during the period of the Project,
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and the Contractor shall assist the Principal in complying with the
Principal's obligations under clause 12 of the Project Agreement,
provided that the Contractor is not otherwise commercially adversely
affected by providing such assistance but subject to clause 14.1.1.
(d) The Principal and the Contractor shall inform each other of any
community relations matter coming to their knowledge, which may
affect the performance of the work under the Contract or the
operation of the Works.
(e) In consultation with the Contractor, the Principal shall direct the
Contractor as to any course of action the Principal may require in
relation to matters arising that relate to this clause. The
Contractor shall comply with the Principal's reasonable directions
under this clause. If the Contractor incurs more or less cost than
it could reasonably have anticipated at the time of the Notice to
Proceed as a result of complying with a Principal's direction under
this clause such costs shall be valued under clause 45.4.
14.4 MAJOR EXTERNAL APPROVALS AND RESPONSIBILITIES
14.4.1 Major approvals required to be obtained by the Contractor and the
Principal during the design and construction of the Works and the
responsibility for obtaining such approvals are listed in ANNEXURE 9. All
costs in respect of such approvals (other than those in respect of
Temporary Works) are the responsibility of the Principal; all such costs
in respect of the Temporary Works are the responsibility of the
Contractor.
14.4.2 Where the obtaining of the approval is the Principal's responsibility,
the Contractor shall provide the Principal with the necessary information
and in the form and by the time required by the Principal. Delays in the
Contractor providing the Principal necessary information or obtaining
approvals that are the Contractor's responsibility as detailed shall not
be grounds for an extension of time to the Date for Mechanical Completion
or the Date for Practical Completion under clause 43.
14.4.3 Prior to Practical Completion the Contractor shall deliver all licences,
permits, registrations, approvals or consents obtained by the Contractor
in respect of the Works except those provided for in this clause 14 which
are the responsibility of the Principal.
14.4.4 The Contractor shall, and shall cause its Subcontractors to, comply with
the Worker Rights Requirements set out in ITEM 34.
14.5 COMPLIANCE WITH THE FOREIGN CORRUPT PRACTICES ACT
The Contractor hereby represents, warrants and agrees as follows:
(a) None of the Contractor's directors, officers, employees, agents and
representatives is now, and shall not be during the term of this
Contract, a candidate for office or an employee, officer or
representative of the government of Papua New Guinea or any
government agency, government instrumentally, or political party of
Papua New Guinea.
(b) The Contractor shall not use any portion of the compensation paid by
the Principal hereunder to make any payment of gift, either directly
or indirectly, to any employee, officer or representative of the
government of Papua New Guinea or any other government.
(c) The Contractor maintains and shall continue to maintain a system of
internal accounting controls consistent with its obligations under
this clause.
(d) The Contractor shall ensure that all Subcontracts include terms that
mirror clauses 14.5(a), (b) and (c) above.
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15. REFURBISHMENT, DELIVERY AND OWNERSHIP OF EQUIPMENT
15.1 REFURBISHMENT
15.1.1 The Principal shall arrange Refurbishment of Principal Supplied Equipment
to the standard set out in the Design Documents provided by the
Contractor and supply the Principal Supplied Equipment set out in the
Principal's Project Requirements.
15.1.2 The Principal shall, with the Contractor's approval, arrange 3rd party
certification that Refurbished Principal Supplied Equipment has been
refurbished in accordance with the Design Documents by a person competent
and qualified to issue such certificate prior to such Equipment being
transported for loading for shipping and delivery CIF Site.
15.1.3 Upon receipt of the 3rd party certification referred to in clause 15.1.2
and acceptance thereof by the Contractor (such acceptance not to be
unreasonably withheld), the Principal will submit and the Contractor
agrees to enter into a deed of novation (in the form attached as ANNEXURE
15) of the Principal's refurbishment contracts.
15.2 DELIVERY AND SECURITY OF EQUIPMENT
15.2.1 The Principal shall deliver the Principal Supplied Equipment, including
the Refurbished Equipment, to the Contractor, and the Contractor shall
accept such Equipment CIF Site in accordance with the Principal's Project
Requirements.
15.2.2 Any Principal Supplied Equipment delivered to the wharf at Site must be
transferred from the point of delivery by the Contractor as a matter of
priority so as to minimise demurrage costs.
15.2.3 The Contractor shall deliver Equipment (other than Principal Supplied
Equipment) and materials necessary for the Works in accordance with the
Procurement Plans provided by the Contractor pursuant to the Principal's
Project Requirements and at such times that the Contractor determines
necessary to comply with the Contract.
15.2.4 All Equipment procured by the Contractor under the Contract shall be
imported into the Independent State of Papua New Guinea nominating
InterOil Limited as consignee.
15.2.5 The Contractor shall take all reasonable measures necessary to protect
Equipment from loss or damage occurring before the Date of Practical
Completion, except Principal Supplied Equipment until delivered in
accordance with the Contract.
15.3 OWNERSHIP IN EQUIPMENT PROCURED BY THE CONTRACTOR
Ownership of, and unencumbered title in, Equipment or any part of it
procured by the Contractor under the Contract shall pass to the Principal
upon payment to the Contractor in respect of such Equipment. Upon
Practical Completion or prior to removal from Site, whichever is earlier,
the Principal shall be entitled to first right of refusal to acquire all
Construction Plant at the residual value of that Plant as specified in
ANNEXURE 14 plus any duty or tax payable upon such acquisition.
16. PROTECTION OF PEOPLE AND PROPERTY
16.1.1 Insofar as the Contract permits and subject to the provisions of the
Contract, the Contractor shall:
(a) provide all things and take all measures to protect people and
property;
(b) avoid unnecessary interference with the passage of people and
vehicles; and
(c) prevent nuisance and unreasonable noise and disturbance,
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in carrying out the work under the Contract.
16.1.2 Without limiting the generality of the Contractor's obligations, they
include the provision of barricades, guards, fencing, temporary roads,
footpaths, warning signs, lighting, watching, traffic flagging, safety
helmets and clothing, removal of obstructions and protection of services,
the work under the Contract and the Works.
16.1.3 If the Contractor or the employees or agents of the Contractor damage
property, including but not limited to public utilities and services and
property on or adjacent to the Site, the Contractor shall, subject to
clauses 18.1.1(a), 18.3 and 19.2, promptly make good the damage and pay
any compensation which the law requires the Contractor to pay.
16.1.4 If the Contractor fails to comply with an obligation under this clause,
the Principal, after the Principal's Representative has given reasonable
written notice to the Contractor and in addition to the Principal's other
rights and remedies, may have the obligation performed by others. The
cost thereby incurred shall be certified by the Principal's
Representative as moneys due from the Contractor to the Principal.
17. URGENT PROTECTION
17.1.1 If urgent action is necessary to protect work under the Contract, the
Works and other property or people and the Contractor fails to take the
action, in addition to any other remedies of the Principal, the
Principal's Representative may take the necessary action. If the action
was action which the Contractor should have taken at the Contractor's
cost, the cost incurred by the Principal shall be a debt due from the
Contractor to the Principal.
17.1.2 If time permits, the Principal's Representative shall give the Contractor
prior written notice of the intention to take action pursuant to this
clause.
18. CARE OF THE WORK AND REINSTATEMENT OF DAMAGE
18.1 CARE OF WORK UNDER THE CONTRACT
18.1.1 Except as provided in clause 18.3, the Contractor shall be responsible
for care of:
(a) the whole of work under the Contract, including all Equipment (other
than Principal Supplied Equipment until delivered in accordance with
the Contract), from and including the date of commencement of work
under the Contract to 4:00 pm on the Date of Practical Completion,
at which time responsibility for the care of the Works shall pass to
the Principal; and
(b) the issue of a Certificate of Practical Completion shall not relieve
the Contractor from responsibility for the completion of outstanding
work and items to be removed from the Site by the Contractor after
4:00 pm on the Date of Practical Completion until completion of
outstanding work or compliance with clauses 37, 39 and 44.
18.1.2 Without limiting the generality of clause 18.1.1, the Contractor shall be
responsible for the care of all unfixed equipment the value of which has
been included in a certificate under clause 46 and the care and
preservation of equipment, plant and material entrusted to the Contractor
by the Principal or brought onto the Site by Subcontractors for carrying
out work under the Contract.
18.2 REINSTATEMENT
18.2.1 If loss or damage, other than that caused by an Excepted Risk, occurs to
work under the Contract, including any Equipment, during the period of
the Contractor's care, the Contractor shall, at the Contractor's cost,
rectify such loss or damage.
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18.2.2 In the event of loss or damage being caused by any of the Excepted Risks
(whether or not in combination with other risks), the Contractor shall,
if and to the extent directed by the Principal's Representative, rectify
the loss or damage and which shall be deemed to be a Variation. If loss
or damage is caused by a combination of Excepted Risks and other risks,
any such direction and consequential valuation made under clause 45.4
shall take into account the proportional responsibility of the parties.
18.3 EXCEPTED RISKS
18.3.1 The Excepted Risks causing loss or damage, for which the Principal is
liable, are:
(a) any negligent act, inaction or omission of the Principal's
Representative, the Principal or its consultants, agents, employees
or other contractors (not the Contractor or engaged by the
Contractor);
(b) any risk specifically excepted elsewhere in the Contract;
(c) ionising radiations or contamination by radioactivity from any
nuclear fuel or from any nuclear waste from the combustion of
nuclear fuel not caused by the Contractor or its Subcontractors or
their employees or agents;
(d) use or occupation of any part of work under the Contract by the
Principal or its consultants, agents or other contractors (not being
employed by the Contractor);
(e) blockade or picketing of the Site which prevents the access for the
delivery of materials to the Site or the access of personnel, except
to the extent caused by the Contractor or its Subcontractors or the
Contractor's or its Subcontractors' employees or agents; and
(f) war, invasion, acts of foreign enemies, hostilities or warlike
operations (whether war is declared or not), civil war, mutiny,
riots, strikes (except strikes by Contractor's employees or
Subcontractor's employees), lock-out, civil commotion assuming the
proportions of or amounting to a popular rising, military rising,
insurrection, rebellion, revolution, military or usurped power, and
act of terrorism committed by persons acting on behalf of or in
connection with any organisation, conspiracy, confiscation,
commandeering, requisition or destruction or damage by order of any
government de jure or de facto or by any public authority, as and if
excluded from time to time under the insurance policies required
under clause 21.
18.4 FORCE MAJEURE
18.4.1 If either the Principal or the Contractor is temporarily rendered unable,
wholly or in part by Force Majeure to comply with its obligations under
the Contract, and notice of such Force Majeure is given to the other
party in writing within 48 hours after becoming aware of the occurrence
of the event of Force Majeure relied on, then such obligations (excluding
any obligation to make a payment under the Contract due or becoming due
immediately prior to the event of Force Majeure) of the party affected
are suspended for so long as this inability continues by reason of Force
Majeure. The party so affected must give written notice to the other
party of the ending of that event within 48 hours after becoming aware
thereof.
18.4.2 Neither the Principal nor the Contractor will be liable one to the other
for delays caused by Force Majeure if notice thereof is given in
accordance with clause 18.4.1.
18.4.3 Any claim on the part of the Contractor for an extension of time or an
adjustment to the Project Schedule by reason of a suspension under this
clause 18.4 must be made within a reasonable time after the end of the
suspension, and the Contractor must promptly submit a revised Project
Schedule to the Principal's Representative for review.
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18.4.4 If there is a dispute as to the existence of a Force Majeure event, the
party claiming to be affected by the Force Majeure must bear the burden
of proving that it is so affected.
18.4.5 Where both parties have accepted that a Force Majeure event is in
existence, the party affected must do everything reasonably possible to
minimise the effects of the Force Majeure. Each party must bear its own
financial consequences of the Force Majeure event and no extra payment or
compensation will be due to either the Principal or the Contractor as a
result of any suspension of activity attributable to the Force Majeure.
18.4.6 The Contractor must, insofar as is reasonably possible in the
circumstances, maintain all safety and security measures during the
period of the suspension.
19. DAMAGE TO PERSONS AND PROPERTY OTHER THAN WORK UNDER THE CONTRACT
Insofar as this clause 19 applies to property, it applies to property
other than the work under the Contract.
19.1 INDEMNITY BY THE CONTRACTOR
19.1.1 Subject to clause 19.1.2, the Contractor shall indemnify, keep
indemnified, release the Principal from and hold the the Principal
harmless against all claims for:
(a) loss of or damage to the Contractor's property or the property of
third parties, including employees, consultants, agents and
contractors of the Contractor; and
(b) death of or injury to third parties, including employees of the
Contractor and of its consultants, agents and contractors,
arising out of or as a consequence of the carrying out of work under the
Contract on the Site even if caused or contributed to by the negligence of
the parties referred to under clause 19.2.
The indemnity and release in this clause 19.1.1 shall not apply to claims
in respect of loss of or damage to property of, or injury to or death of a
party who is referred to in clause 19.2.
19.1.2 Subclause 19.1.1 shall not apply to:
(a) the extent that the Contractor's liability is limited by another
provision of the Contract;
(b) exclude any other right of the Principal to be indemnified by the
Contractor;
(c) the Contractor's obligations under clause 18.1;
(d) claims in respect of the right of the Principal to have the work
under the Contract carried out.
19.2 INDEMNITY BY THE PRINCIPAL
The Principal shall indemnify, keep indemnified, release the Contractor
from and hold the Contractor harmless against all claims:
(a) referred to in clause 19.1.2(d);
(b) for loss of or damage to property of the Principal or the
Principal's employees, agents or contractors or employees of the
Principal's agents or contractors;
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(c) for death of or injury to the Principal's employees, consultants,
agents or other contractors (not being employed by the Contractor),
arising in anyway on the Site even if caused or contributed to by the
negligence of the parties referred to under clause 19.1.1.
20. LIMITATION OF LIABILITY AND CONSEQUENTIAL DAMAGES
20.1 SURVIVAL AND SECURITY
All limitations on each party's liability contained in the Contract shall
survive the issue of the Final Certificate under clause 46.9 and
termination of the Contract and are not intended to restrict the rights
to security provided for in clause 7.1.1 or in clause 46.1.3.
20.2 LIMIT OF LIABILITY OF THE CONTRACTOR
20.2.1 Notwithstanding anything to the contrary in the Contract and subject to
clause 20.2.2, the aggregate liability of the Contractor to the Principal
arising out of this Contract from any and all causes shall in no event
exceed fifty percent (50%) of the Contract Sum.
20.2.2 Notwithstanding anything in the foregoing to the contrary, the limits of
the Contractor's liability set forth in this clause 20.2 shall:
(a) not apply to any claims for fraud, Gross Negligence or willful
misconduct;
(b) not apply to:
(i) the Contractor's obligations under clauses:
A 18 (Care of the Work and Reinstatement of Damage);
B 43.10 (Liquidated damages); and
C 44 (Defects Liability);
(ii) the Contractor's indemnities contained in clauses:
A 6;
B 14; and
C 19;
(iii) receipt of proceeds of insurance claims under the insurance
policies required under clause 21; and
(c) not affect the Contractor's agreement and obligation to perform work
under the Contract in accordance with this Contract regardless of
whether the actual costs incurred by the Contractor in connection
with completing the work under the Contract will exceed the Contract
Currency Amounts or the amount that the Contractor may have
originally budgeted for completion of work under the Contract.
20.3 MUTUAL EXCLUSION OF CONSEQUENTIAL DAMAGES
Other than the Contractor's liability for liquidated damages under clause
43.10, neither party shall be liable to the other party, whether based on
contract, tort, indemnity, under any warranty or otherwise arising out of
or related to the work under the Contract or this
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Contract, for any consequential, indirect, special, exemplary or
incidental loss or damage being any:
(a) loss of use of property, equipment or systems;
(b) loss by reason of plant shutdown or service interruption;
(c) costs of capital or expenses thereof;
(d) loss of profits or revenues or the loss of use thereof;
(e) claims of either party's customers or any other third party,
caused by or resulting from any act or omission by the Principal's
Representative, the parties or their employees, agents, consultants,
subcontractors or other contractors' work under the Contract and each
party hereby releases the other party from any liability for all such
losses, costs, loss of profits and claims.
21. INSURANCE OF THE WORK UNDER THE CONTRACT
21.1 PRINCIPAL TO INSURE
21.1.1 On or before the date of the Notice to Proceed, the Principal shall
insure the work under the Contract, other than Construction Plant, under
policies in terms no less beneficial to the insured than the Contractor's
All Risk policy included in ANNEXURE 4. The Principal shall ensure that
the Lender, the Contractor and all Subcontractors are named as
co-insureds and must maintain such insurance while ever the Contractor
has an interest in work under the Contract.
21.1.2 The Contractor shall be responsible for:
(a) all "excesses" under the policy of insurance held by the Principal
in respect of any claim made by:
(i) the Contractor or its Subcontractors, or
(ii) the Lender or the Principal where such claim is caused or
contributed to by the Contractor (in the latter case the
Contractor's responsibility for the excess shall be limited to
its proportional contribution);
(b) all items or matters excluded from the policy of insurance for which
the Contractor or its Subcontractors are otherwise liable under the
provisions of this Contract; and
the Contractor's liability for excesses under this clause 21.1.2 shall not
relieve the Contractor from any of its other liabilities under the
Contract.
21.1.3 The Contractor shall indemnify the Principal against any and all loss
(howsoever arising) due to the Contractor or any of its Subcontractors
having failed to and the Principal shall not be responsible for any claim
by reason that the Contractor or any of its Subcontractors have failed
to:
(a) fully inform itself or themselves of, or comply with, the express
terms and conditions of the policy held by the Principal with the
exception of any reference to the Principal's proposal or other
representations or disclosures to the insurer; and
(b) comply in any respect with the claim procedures set down in the
policy.
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22. PUBLIC LIABILITY INSURANCE
22.1 PRINCIPAL TO INSURE
22.1.1 On or before the date of the Notice to Proceed, the Principal shall
effect in relation to work under the Contract, a Public Liability Policy
in terms no less beneficial to the insured than that policy included in
ANNEXURE 4. The Principal shall ensure that the Lender, the Contractor
and all Subcontractors are named as co-insureds and must maintain such
insurance while ever the Contractor has an interest in work under the
Contract.
22.1.2 The Contractor shall be responsible for:
(a) all "excesses" under the policy of insurance held by the Principal
in respect of any claim made by:
(i) the Contractor or its Subcontractors, or
(ii) the Lender or the Principal where such claim is caused or
contributed to by the Contractor (in the latter case the
Contractor's responsibility for the excess shall be limited to
its proportional contribution);
(b) all items or matters excluded from the policy of insurance for which
the Contractor or its Subcontractors are otherwise liable under the
provisions of this Contract; and
the Contractor's liability for excesses under this clause 22.1.2 shall
not relieve the Contractor from any of its other liabilities under the
Contract.
22.1.3 The Contractor shall indemnify the Principal against any and all loss
(howsoever arising) due to the Contractor or any of its Subcontractors
having failed to and the Principal shall not be responsible for any claim
by reason that the Contractor or any of its Subcontractors have failed
to:
(a) fully inform itself or themselves of, or comply with, the express
terms and conditions of the policy held by the Principal with the
exception of any reference to the Principal's proposal or other
representations or disclosures to the insurer; and
(b) comply in any respect with the claim procedures set down in the
policy.
23. INSURANCE OF EMPLOYEES
23.1.1 Before commencing the work under the Contract, the Contractor shall
insure against liability for death of or injury to persons employed by
the Contractor, including liability by statute and at common law. Such
insurance cover shall be maintained until the completion of all work
under the Contract.
23.1.2 Where permitted by law, the insurance policy or policies shall be
extended to provide indemnity for the Principal's statutory liability to
the Contractor's employees and if permitted by law shall note the
interests of the Lender.
23.1.3 The Contractor shall ensure that all Subcontractors have similarly
insured their employees.
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24. PROFESSIONAL INDEMNITY INSURANCE
24.1 CONTRACTOR
24.1.1 Before the Contractor commences work under the Contract, the Contractor
shall effect a professional indemnity insurance policy with cover in
relation to the work under the Contract for any one claim and with a
total aggregate cover of not less than the sum stated in ITEM 25.
24.1.2 The policy and such level of cover shall be maintained until the Final
Certificate is issued pursuant to clause 46.9 or termination of the
Contract and thereafter for a period as is stated in ITEM 25.
24.2 CONSULTANTS
24.2.1 The Contractor shall ensure that every Consultant, if within a category
stated in ITEM 25, is insured for professional indemnity with a cover not
less than the sum stated in ITEM 25.
24.2.2 Each Consultant's policy shall be maintained until the Final Certificate
is issued pursuant to clause 46.9 or termination of the Contract and
thereafter for a period as is stated in ITEM 25.
25. INSPECTION AND PROVISIONS OF INSURANCE POLICIES
25.1 PROOF OF INSURANCE
25.1.1 Before the Contractor commences work under the Contract and whenever
requested in writing by the other party, a party liable to insure shall
provide satisfactory evidence of such insurance effected and maintained.
25.1.2 Insurance shall not limit liabilities or obligations under other
provisions of the Contract.
25.2 FAILURE TO PRODUCE PROOF OF INSURANCE
If a party responsible for providing insurance fails promptly to provide
satisfactory evidence of compliance with the insurance obligations
required by this Contract or fails to effect or keep in force any of the
insurances required by this Contract to the approval of the other party
that party may effect and maintain the insurance and pay the premiums.
The amount so paid shall be a debt due from the party in default to the
other party. The rights given by this clause 25.2 are in addition to any
other right.
25.3 NOTICES FROM OR TO INSURER
The party responsible for the insurance shall ensure that each insurance
policy contains provisions acceptable to the other party which:
(a) requires the insurer to inform both parties, whenever the insurer
gives a party or a Subcontractor a notice in connection with the
policy;
(b) provides that a notice of claim given to the insurer by either
party, the Principal's Representative or a Subcontractor shall be
accepted by the insurer as a notice of claim given by both parties,
the Principal's Representative and the Subcontractor; and
(c) requires the insurer, whenever the party fails to maintain the
policy, promptly to give written notice thereof to both parties and
prior to cancellation of the policy.
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25.4 NOTICES OF POTENTIAL CLAIMS
The Contractor shall, as soon as practicable, inform the Principal in
writing of any occurrence that may give rise to a claim under a policy of
insurance and shall keep the Principal informed of subsequent developments
concerning the claim. The Contractor shall ensure that Subcontractors in
respect of their operations similarly inform the Principal.
25.5 SETTLEMENT OF CLAIMS
Upon settlement of a claim under the insurance required by clause 21:
(a) to the extent that reinstatement has been the subject of a payment
or allowance by the Principal to the Contractor, if the Contractor
has not completed such reinstatement, insurance moneys received
shall, if requested by either party, be paid into an agreed bank
account in the joint names of the parties. As the Contractor
reinstates the loss or damage, the Principal's Representative shall
certify, on a monthly basis, against the joint account for the cost
of reinstatement; and
(b) to the extent that reinstatement has not been the subject of a
payment or allowance by the Principal to the Contractor, the
Contractor shall be entitled immediately to receive from insurance
moneys received, the amount of such moneys so paid in relation to
any loss suffered by the Contractor.
25.6 CROSS LIABILITY
Except for the insurance of employees policy, any insurance required to
be effected in joint names in accordance with the Contract shall include
a cross liability clause in which the insurer agrees to waive all rights
of subrogation or action against any of the persons constituting the
insured and for the purpose of which the insurer accepts the term
'insured' as applying to each of the persons constituting the insured as
if a separate policy of insurance had been issued to each of them
(subject always to the overall sum insured not being increased thereby).
25.7 INSURANCE GENERALLY
25.7.1 Before the Contractor commences the work under the Contract, the
Contractor must acquire and maintain Construction Plant Insurance for the
full replacement value of the Construction Plant and any other item of
plant or equipment that is owned, hired or leased and is used by the
Contractor in the performance of the work under the Contract. The
Contractor must ensure that all Subcontractors' Construction Plant is
similarly insured. The Contractor must ensure that all such Construction
Plant Insurance names the Principal and the Lender as additional
insureds.
25.7.2 All insurances which the Principal or the Contractor effects under the
Contract must :
(a) be effected with insurers who, as a minimum, have a claim paying
ability with a rating of no less than A as determined by Standard
and Poors' Australia (or a corresponding rating issued by another
rating agency);
(b) not contain any exclusion, endorsement or alteration effected after
the inception date of the policy which may materially affect the
work under the Contract, unless it is first approved by the
Contractor or the Principal as the case may be, and the Lender; and
(c) except for non-project specific insurance contain a term which
requires the insurer to notify the Principal and the Lender in
accordance with clause 25.3(c).
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25.7.3 As and when required in accordance with the progress of work under the
Contract, the Principal shall effect, in relation to work under the
Contract and in relation to the Contract, insurance policies in terms no
less beneficial to the insured than those policies referred to in
ANNEXURE 4 in addition to the policies required under clauses 21 and 22.
The Principal shall ensure that the Contractor and all Subcontractors
are named as co-insureds under these additional policies and must
maintain such insurance while ever the Contractor has an insurable
interest in work under the Contract. The provisions of clauses 22.1.2 and
22.1.3 shall also apply hereunder mutatis mutandis.
25.7.4 The Principal shall be responsible for insuring all equipment, plant and
materials for incorporation into the Works which is transported by ship
or other means to the Site by the Contractor and is consigned to the
Principal, including by road from the wharf in Port Moresby to the Site,
provided that the Contractor notifies the Principal in writing with
details of cargo prior to shipment and provides the Principal with a copy
of the bill of lading upon shipment.
26. PRINCIPAL'S REPRESENTATIVE
26.1.1 The Principal shall ensure that at all times there is a Principal's
Representative. The Principal's Representative shall act as agent for and
in the interest of the Principal, except that in the role of valuer and
certifier and in making determinations the Principal's Representative
shall act reasonably and in good faith.
26.1.2 Except where the Contract otherwise provides, the Principal's
Representative may give a direction orally but shall as soon as
practicable confirm it in writing. If the Contractor in writing requests
the Principal's Representative to confirm an oral direction, the
Contractor shall not be bound to comply with the direction until the
Principal's Representative does so. If pursuant to a provision of the
Contract enabling the Principal's Representative to give directions, the
Principal's Representative gives a direction, the Contractor shall comply
with the direction.
27. SITE SUPERVISORS
27.1.1 The Principal may from time to time appoint individuals (SITE
SUPERVISORS) to exercise certain functions designated by the Principal
and specific delegated Principal's Representative's functions, provided
that:
(a) no aspect of any function shall at any one time be the subject of
appointment or delegation to more than one Site Supervisor;
(b) delegation shall not prevent the Principal's Representative
exercising any function;
(c) the Principal's Representative forthwith gives the Contractor
written notice of, respectively:
(i) the appointment, including the Site Supervisor's name and
appointed or delegated functions; and
(ii) the termination of each appointment.
28. NO PERSONAL LIABILITY
The Contractor and the Principal agree that neither the Principal's
Representative nor any other Site Supervisor shall be under any personal
liability to the Contractor or the Principal (as the case may be) for
anything done or omitted to be done in the exercise of the functions of
the Principal's Representative or Site Supervisor (as the case may be).
The Contractor agrees that this agreement may be pleaded as a defence to
any claim by the Contractor against the Principal's Representative or
Site Supervisor (as the case may be).
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29 CONTRACTOR'S REPRESENTATIVE
29.1.1 The Contractor shall supervise work under the Contract directly through a
competent representative (CONTRACTOR'S REPRESENTATIVE). Matters within
the Contractor's Representative's knowledge (including directions
received) shall be deemed to be within the Contractor's knowledge.
29.1.2 The Contractor shall forthwith give the Principal's Representative
written notice of the name of Contractor's Representative and any
subsequent changes.
29.1.3 If the Principal's Representative at any time makes a reasonable
objection to the appointment or continuation in office of the
Contractor's Representative, the Contractor shall terminate the
appointment and appoint another representative in his place.
29.1.4 Without limiting the generality of this clause, the Contractor shall
assign adequate supervisory personnel to ensure that the work under the
Contract is being performed in accordance with the Contract. In the event
the Principal's Representative is not satisfied that this is being
achieved, the Principal's Representative may instruct the Contractor to
assign additional or alternative personnel to the Contract.
30. CONTRACTOR'S EMPLOYEES AND SUBCONTRACTORS
30.1 GENERALLY
30.1.1 The Principal's Representative may direct the Contractor to have removed,
within a stated time, from the Site or from any activity of work under
the Contract, any person employed on work under the Contract who, in the
Principal's Representative's opinion, is incompetent, negligent or
guilty of misconduct.
30.1.2 The Contractor shall provide an adequate number of qualified personnel to
perform engineering, design, architectural or other professional services
and qualified and competent supervisory staff, crafts persons and other
personnel to perform the work under the Contract.
30.1.3 If requested by the Principal's Representative, the Contractor shall
furnish the Principal's Representative with the names and addresses of
the Contractor's Subcontractors, field employees of the Contractor
and its Subcontractors, and others who have performed or are performing
the work under the Contract hereunder.
30.1.4 The Contractor shall be solely responsible for the engagement and
management of the Contractor's Subcontractors in the performance of the
work under the Contract, for all work under the Contract performed by
Contractor's Subcontractors and for all acts and omissions of the
Contractor's Subcontractors as provided in the Contract.
31. CONTRACTOR'S PROJECT MANAGEMENT TEAM
31.1.1 The Contractor:
(a) must ensure the members of Contractor's Project Management Team
listed in ANNEXURE 10 are engaged in the provision of work under
the Contract in the respective capacities also set out in
ANNEXURE 10;
(b) must only replace members of Contractor's Project Management Team:
(i) in circumstances of death, serious illness, change of
employment or request by the Principal's Representative; and
(ii) with others (having equivalent skill and experience) approved
by the Principal's Representative; and
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(c) must promptly fill any vacancy of the Contractor's Project
Management Team with a person approved by the Principal's
Representative.
32. SITE
32.1 POSSESSION
32.1.1 Provided the Contractor has complied with clause 25.1, the Principal
shall before the expiry of the time in ITEM 26, give the Contractor
possession of such of the Site necessary for commencement of work under
the Contract on Site. If the Principal has not given the Contractor
possession of the whole Site by that time, the Principal shall give the
Contractor possession of such further portions of the Site as may, from
time to time, be necessary for carrying out work under the Contract.
Subject to clause 48.7, delay by the Principal in giving possession shall
not be a breach of the Contract.
32.1.2 Possession of the Site shall confer on the Contractor a right to only
such use and control as is necessary to enable the Contractor to carry
out work under the Contract and shall exclude any purpose not
connected with work under the Contract, unless approved by the
Principal's Representative.
32.2 ACCESS FOR PRINCIPAL AND OTHERS
32.2.1 The Principal and the Principal's employees, consultants and agents may,
at any time after reasonable written notice to the Contractor, have
access to any part of the Site for any purpose. The Contractor shall
coordinate and facilitate the execution of the work on the Site by the
Principal's employees, consultants, and agents and shall cooperate with
them and coordinate the Contractor's work (including programming) with
their work. If requested by the Contractor, the Principal shall give to
the Contractor the names and roles of the persons so engaged.
32.2.2 The Contractor shall at all reasonable times give the Principal's
Representative, the Principal and other persons authorised in writing by
the Principal access to work under the Contract at any place where the
work under the Contract is being carried out or materials are being
prepared or stored. The Contractor shall assist the Principal's
Representative, the Principal or other persons authorised in writing by
the Principal in carrying out design, review and inspection.
32.2.3 The Principal shall ensure that none of the persons referred to in this
clause 32.2 impedes the Contractor.
32.2.4 The Principal shall ensure that its employees, consultants and agents who
enter the Site shall comply with the requirements of the Contractor in
relation to workplace health and safety.
32.2.5 The Contractor shall not, without the approval of the Principal's
Representative, permit entry to the Site by any person not required on
the Site for the performance of the work under the Contract.
32.3 MINERALS, FOSSILS AND RELICS
32.3.1 Valuable minerals, fossils, articles or objects of antiquity or of
anthropological or archaeological interest, treasure trove, coins and
articles of value found on the Site shall as between the parties be and
remain the property of the Principal. Immediately upon the discovery of
these things the Contractor shall:
(a) take precautions to prevent their loss, removal or damage; and
(b) give the Principal's Representative written notice of the
discovery.
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32.3.2 All costs so incurred by the Contractor shall be assessed by the
Principal's Representative and added to the Contract Currency Amounts.
33. SETTING OUT THE WORKS
33.1 SETTING OUT
The Principal shall ensure that the Principal's Representative gives the
Contractor the data, Survey Marks and like information necessary for the
Contractor to set out the Works, together with those Survey Marks
specified in the Contract. Thereupon the Contractor shall set out the
Works in accordance with the Contract.
33.2 ERRORS IN SETTING OUT
The Contractor shall rectify every error in the position, level,
dimensions or alignment of any work under the Contract after promptly
notifying the Principal's Representative and unless the Principal's
Representative within 3 days directs otherwise. If the error was caused
by incorrect data, Survey Marks or information given by the Principal's
Representative, the cost incurred by the Contractor in rectifying the
error shall be assessed by the Principal's Representative and added to
the Contract Currency Amounts.
33.3 CARE OF SURVEY MARKS
33.3.1 The Contractor shall keep in their true positions all Survey Marks
supplied by the Principal's Representative.
33.3.2 The Contractor shall reinstate any Survey Mark disturbed, after promptly
notifying the Principal's Representative and unless the Principal's
Representative within 3 days directs otherwise.
33.3.3 If the disturbance was caused by the Principal's Representative or a
person referred to in clause 32.2 other than the Contractor, the cost
incurred by the Contractor in reinstating the Survey Mark shall be
assessed by the Principal's Representative and added to the Contract
Currency Amounts.
34. CLEANING UP
34.1 CLEAN AND TIDY SITE
34.1.1 The Contractor shall keep the Site and work under the Contract clean and
tidy and regularly remove rubbish and surplus material.
34.1.2 Within 14 days after the Date of Practical Completion, the Contractor
shall remove Temporary Works and Construction Plant. The Principal's
Representative may extend the time to enable the Contractor to perform
remaining obligations.
34.1.3 If the Contractor fails to comply with the preceding obligations in this
clause, the Principal's Representative may direct the Contractor to
rectify the non-compliance and the time for rectification. If:
(a) the Contractor fails to comply with such a direction; and
(b) that failure has not been made good within 5 days after the
Contractor receives written notice from the Principal's
Representative that the Principal intends to have the subject work
carried out by others,
the Principal may have that work so carried out and the Principal's
Representative shall certify the cost incurred as moneys due from the
Contractor to the Principal. The rights given by this paragraph are
additional to any other rights and remedies.
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34.2 HAZARDOUS MATERIALS
Contractor shall comply with all governmental, national and local laws,
both in effect and in the process of ratification at the date of signing
of this Contract including any state law or regulation defining hazardous
substance or hazardous waste, and any materials containing
polychlorinated biphenyls or asbestos that is or may become friable.
All normal construction materials such as petroleum products shall be
properly stored, dispensed and safeguarded by Contractor. Any spills or
other contamination under the control of the Contractor, or the
Contractor's Subcontractors shall be the sole responsibility of the
Contractor to contain, clean up and properly dispose of.
35. LATENT CONDITIONS
35.1 SITE
Latent conditions with respect to the Site are physical conditions on the
Site or its surroundings, including artificial things which differ
materially from the physical conditions which should reasonably have been
anticipated by the Contractor at the time of the Contractor's Proposal if
the Contractor had:
(a) examined all Principal Supplied Information; and
(b) inspected the Site and its surroundings, in respect of which the
Contractor acknowledges that it had carried out the Early Work in
relation to the Site.
35.2 PRINCIPAL SUPPLIED EQUIPMENT
Latent conditions with respect to Principal Supplied Equipment shall mean
defects not discovered during Refurbishment of the Principal Supplied
Equipment and which are detrimental to the safe and efficient operating
life of the Principal Supplied Equipment, and cause the Principal
Supplied Equipment to be unfit for its intended purpose.
35.3 NOTIFICATION
35.3.1 The Contractor, upon becoming aware of a latent condition while carrying
out work under the Contract, shall promptly, and where possible before
the latent condition is disturbed, give the Principal's Representative
written notice of the general nature thereof.
35.3.2 If required by the Principal's Representative promptly after receiving
notice under clause 35.3.1, the Contractor shall, as soon as practicable,
give the Principal's Representative a written statement of:
(a) the latent condition encountered and the respects in which it
differs materially;
(b) the additional work, resources, time and cost which the Contractor
estimates to be necessary to deal with the latent condition; and
(c) other details reasonably required by the Principal's Representative
including without limitation the Contractor's proposal for dealing
with the latent condition.
35.3.3 The Contractor shall take all necessary action to overcome the affect of
a latent condition to the reasonable satisfaction of the Principal.
35.4 DEEMED VARIATION
The effect of the latent condition shall be a deemed Variation, priced
having no regard to additional cost incurred more than 28 days before the
date on which the Contractor gave the notice required by clause 35.3.1
but so as to include the Contractor's other costs for each compliance
with clause 35.3.2.
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36 MATERIALS, LABOUR AND CONSTRUCTION PLANT
36.1.1 Except where the Contract otherwise provides, the Contractor shall supply
everything necessary for the proper performance of the Contractor's
obligations and discharge of the Contractor's liabilities.
36.1.2 In respect of the Equipment and any Construction Plant and other
equipment, plant and materials to be supplied by the Contractor in
connection with the Contract, the Principal's Representative may direct
the Contractor to:
(a) supply particulars of the mode and place of manufacture, the source
of supply, the performance capacities and other related
information; and
(b) arrange reasonable inspection at such place or sources by the
Principal's Representative, the Principal and persons authorised by
the Principal.
36.1.3 The Principal's Representative may give the Contractor a written
direction not to remove Temporary Works, Construction Plant or other
equipment, plant and materials from the Site. Thereafter the Contractor
shall not remove them without the Principal's Representative's prior
written approval (which shall not be unreasonably withheld).
36.1.4 The Equipment, Temporary Works, Construction Plant and other equipment,
plant and materials used by the Contractor in the course of the Contract
must be in good order, be regularly well maintained in accordance with
accepted industry standards and be so as not to prejudice the execution
of the work under the Contract in accordance with the Contract.
36.1.5 The Contractor shall be responsible for any temporary facilities for gas
water and electricity necessary for construction. The Principal shall be
responsible for the provision of potable water necessary for the
construction camp facilities.
36.1.6 Temporary buildings and utilities (other than the construction camp) may
be erected by the Contractor only with the prior written approval of
Principal's Representative and shall be built with labour and materials
furnished by Contractor. The temporary buildings and utilities shall
remain the property of the Contractor (unless otherwise designated in the
Contract) and shall be removed by the Contractor and the site of
temporary facilities shall be returned to its original condition by the
Contractor at its own expense upon completion of the work under the
Contract.
36.1.7 The Contractor shall use only established Site roadways, or use temporary
Site roadways and designated access routes when and as authorised by the
Principal's Representative. When materials and equipment are transported
during the work under the Contract, vehicles shall not be loaded beyond
the loading capacity prescribed by Legislative Requirements. The
Contractor shall not block any fire lanes.
36.1.8 The Contractor must ensure all Equipment, Construction Plant and other
equipment, plant and materials used on the Site comply with all relevant
Legislative Requirements.
37. QUALITY
37.1 QUALITY OF MATERIAL AND WORK
The Contractor shall use the materials and standards of workmanship
required by the Contract. In the absence of any requirement to the
contrary, the Contractor shall use suitable new materials and proper and
tradesmanlike workmanship.
37.2 QUALITY ASSURANCE
37.2.1 The Contractor shall establish, implement and maintain a quality
assurance program which shall be submitted to the Principal for review
and approval.
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37.2.2 The Contractor shall ensure that all provisions for quality assurance
apply equally to all Subcontractors.
37.2.3 Within 6 weeks after the date of the Notice to Proceed or a mutually
agreed time the Contractor shall submit to the Principal for review the
Contractor's quality plan.
37.2.4 Any changes to the Contractor's quality plan as reasonably requested by
the Principal in order to provide assurance of satisfactory compliance
to the documents must be implemented by the Contractor.
37.2.5 The Contractor shall participate in and allow reasonable access to the
Principal's agents to periodically audit the Contractor's quality
assurance program and quality plan.
37.2.6 Any such quality system shall be used only as an aid to achieving
compliance with the Contract and to document such compliance. Such
system shall not discharge the Contractor's other obligations under the
Contract.
37.3 DEFECTIVE WORK
37.3.1 If the Principal's Representative becomes aware of work under the
Contract carried out (including material provided) by the Contractor
which does not comply with the Contract, the Principal's Representative
shall as soon as practicable give the Contractor written details
thereof. If the subject work under the Contract has not been rectified,
the Principal's Representative may direct the Contractor to do any one
or more of the following (including times for commencement and
completion):
(a) remove the material from the Site;
(b) demolish the work;
(c) reconstruct, replace or correct the work; and
(d) not deliver it to the Site.
37.3.2 If
(a) the Contractor fails to comply with such a direction; and
(b) that failure has not been made good within 8 days after the
Contractor receives written notice from the Principal's
Representative that the Principal intends to have the subject
work rectified by others,
the Principal may have that work so rectified and the Principal's
Representative shall certify the cost incurred as moneys due from the
Contractor to the Principal.
37.4 ACCEPTANCE OF DEFECTIVE WORK
37.4.1 Instead of a direction pursuant to clause 37.3, the Principal's
Representative may direct the Contractor that the Principal elects to
accept the subject work, whereupon there shall be a deemed Variation.
37.4.2 The Principal's Representative may also direct a Variation in
connection with work under the Contract.
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37.4.3 In assessing the adjustment to be made to the Contract Currency Amounts
following the acceptance of a Variation in connection with work under
the Contract, the Principal's Representative may have regard to:
(a) the reduction in the value of the Works resulting from that
acceptance or Variation; and
(b) the costs which would have been incurred by the Contractor in
rectifying the subject work if it had not been accepted or the
Variation had not been directed.
37.5 TIMING
37.5.1 The Principal's Representative may give a direction pursuant to this
clause 37 at any time before the expiry of the last Defects Liability
Period.
37.5.2 The Contractor agrees:
(a) the Principal's Representative's rights under clause 37 are
not prejudiced or otherwise affected by any Payment
Certificate or payment under clause 46, test or failure to
test, approval or acceptance by the Principal's Representative
or Principal in respect of any work; and
(b) the rights of the Principal's Representative under this clause
37 do not prejudice or otherwise affect any other rights of
the Principal's Representative or Principal in respect of
defective work.
38. PROCESS PERFORMANCE TEST AND RELIABILITY TEST
38.1 CONDITIONS PRECEDENT TO THE PROCESS PERFORMANCE TEST AND RELIABILITY
TEST
The Process Performance Test and Reliability Test shall not be
conducted until the Principal's Representative issues a Mechanical
Completion Certificate for the Works.
38.2 CONDUCTING THE PROCESS PERFORMANCE TEST AND RELIABILITY TEST
The Process Performance Test and Reliability Test shall be conducted in
accordance with the Principal's Project Requirements.
39. EXAMINATION AND TESTING
39.1 TESTS
39.1.1 At any time before the expiry of the last Defects Liability Period, the
Principal's Representative may direct that any work under the Contract
be tested. The Contractor shall give such assistance and samples and
make accessible such parts of the work under the Contract as may be
directed by the Principal's Representative.
39.1.2 Where the Contract provides that all or any part of the Works shall
comply with performance criteria, other than the Process Performance
Test and Reliability Test the Principal's Representative may direct
that a formal performance trial be carried out to verify that the
relevant part of the Works comply with those performance criteria.
39.1.3 If at any time in the opinion the Principal's Representative the
performance of the relevant part of the Works is below the criteria
specified in the Contract, the Contractor shall forthwith carry out
such modifications or additional work as may be necessary to achieve
such performance criteria.
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39.2 COVERING UP
The Principal's Representative may direct that any part of work under
the Contract shall not be covered up or made inaccessible without the
Principal's Representative's prior written direction.
39.3 WHO CONDUCTS
Tests shall be conducted as provided elsewhere in the Contract or by
the Principal's Representative or a person (which may include the
Contractor) nominated by the Principal's Representative.
39.4 NOTICE
The Principal's Representative or the Contractor (whichever is to
conduct the Test) shall give reasonable written notice to the other of
the date, time and place of the Test. If the other does not attend, the
Test may nevertheless proceed.
39.5 DELAY
Without prejudice to any other right, if the Contractor or the
Principal's Representative delays in conducting a Test, the other,
after giving reasonable written notice of intention to do so, may
conduct the Test.
39.6 COMPLETION AND RESULTS
39.6.1 On completion of the Tests, the Contractor shall make good work under
the Contract so that it fully complies with the Contract.
39.6.2 Results of Tests shall be promptly made available by each party to the
other and to the Principal's Representative.
39.7 COSTS
Costs in connection with testing pursuant to this clause 39 shall be
borne by the Principal unless the Test is consequent upon or reveals a
failure of the Contractor to comply with the Contract (including this
clause 39) in which case they shall be borne by the Contractor.
40. WORKING HOURS
If the working hours and working days on the Site are not stated
elsewhere in the Contract, they shall be as notified by the Contractor
to the Principal's Representative before commencement of work on Site.
They shall not be varied without the Principal's Representative's prior
written approval, except when, in the interests of safety of persons or
property, the Contractor finds it necessary to carry out work under the
Contract otherwise, whereupon the Contractor shall give the Principal's
Representative written notice of those circumstances as early as
possible.
41. PROJECT SCHEDULE
41.1 SUBMISSION AND APPROVAL OF PROJECT SCHEDULE
41.1.1 The Contractor shall update the Project Schedule on a monthly basis
from the date of the Notice to Proceed and be in the form required by
the Principal's Project Requirements.
41.1.2 The Principal's Representative shall comment on the Project Schedule
within 14 days of its receipt except when such longer period has been
agreed.
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41.2 APPLICATION OF THE PROJECT SCHEDULE
41.2.1 The Project Schedule forms part of the Contract and is the basis for
the Contractor's rights and obligations under clause 43.5.
41.2.2 The Project Schedule may be used by the Principal's Representative to
evaluate claims for an extension of time to the Date for Mechanical
Completion or the Date for Practical Completion under clause 43.3.
41.2.3 Despite any other provision of this clause 41.2:
(a) any program or schedule prepared by the Contractor shall not
be used as a Project Schedule for the purposes of this clause
41 until it has been approved by the Principal's
Representative;
(b) the Principal's Representative may require the provision of an
updated Project Schedule after a change in the Date for
Practical Completion or any circumstances affecting the
progress of work under the Contract;
(c) the Principal's Representative may direct the time that
various stages or portions of the work under the Contract
shall be carried out including without limitation accelerating
the progress of the work under the Contract and bringing
forward the Date for Practical Completion by a reasonable
period having regard to the Principal's Representative's
direction;
(d) the Contractor shall not be entitled to any addition to the
Contract Currency Amounts arising from a direction of the
Principal's Representative under this clause 41.2.3. unless
the Contractor has notified the Principal's Representative
that the direction will result in the Contractor incurring
more cost (together with an estimate of that cost) within 7
days after receipt by the Contractor of the direction and
before the Contractor gives effect to the direction, and the
Principal's Representative then confirms the direction in
writing.
42. SUSPENSION
42.1 SUSPENSION BY THE PRINCIPAL'S REPRESENTATIVE
Subject to the terms of the Consent Deed, the Principal's
Representative may direct the Contractor to suspend the carrying out of
the whole or part of work under the Contract for such time as the
Principal's Representative thinks fit, if the Principal's
Representative is of the opinion that it is necessary:
(a) because of an act, default or omission of:
(i) the Principal's Representative, the Principal or its
employees, consultants, agents or other contractors
(not being employed by the Contractor); or
(ii) the Contractor, a Subcontractor or the employees or
agents of either;
(b) for the protection or safety of any person or property; or
(c) to comply with a court order.
42.2 SUSPENSION BY THE CONTRACTOR
42.2.1 Subject to the terms of the Consent Deed, if the Contractor wishes to
suspend the carrying out of the whole or part of work under the
Contract, otherwise than pursuant to clause 48.9, the Contractor shall
obtain the Principal's Representative's prior written approval. The
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Principal's Representative may approve the suspension and may impose
conditions of approval.
42.2.2 The Contractor shall not be entitled to any extension of time to the
Date for Mechanical Completion or the Date for Practical Completion in
connection with a suspension approved by the Principal's Representative
under this clause 42.2.
42.3 RECOMMENCEMENT
As soon as the Principal's Representative becomes aware that the reason
for any suspension no longer exists, the Principal's Representative
shall direct the Contractor to recommence suspended work under the
Contract as soon as reasonably practicable. The Contractor may
recommence work under the Contract suspended pursuant to clause 42
after receiving such direction or if the suspension is under clause
48.9 at any time after giving reasonable notice to the Principal's
Representative.
42.4 COST
42.4.1 The Contractor shall bear the cost of suspension pursuant to clause
42.1(a)(ii) and clause 42.2. If the Contractor made the protection,
safety or court order necessary, the Contractor shall bear the cost of
suspension pursuant to clauses 42.1(b) or 42.1(c). If the Contractor
otherwise incurs more or less cost than otherwise would have been
incurred, the difference shall be assessed by the Principal's
Representative and added to or deducted from the Contract Currency
Amounts.
43. TIME AND PROGRESS
43.1 PROGRESS
The Contractor shall ensure that work under the Contract reaches
Mechanical Completion and Practical Completion by the Date for
Mechanical Completion and the Date for Practical Completion
respectively. The Contractor shall proceed with the work under the
Contract with due expedition and without delay.
43.2 NOTICE OF DELAY
A party becoming aware of anything which will probably cause delay to
work under the Contract shall as soon as practicable and within 21 days
of becoming so aware give the Principal's Representative and the other
party written assessment of that cause and the estimated delay.
43.3 CLAIM
43.3.1 The Contractor shall be entitled to such extension of time for carrying
out work under the Contract (including reaching Mechanical Completion
or Practical Completion) as the Principal's Representative assesses,
if:
(a) the Contractor is or will be delayed in reaching Mechanical
Completion or Practical Completion by a Qualifying Cause of
Delay; and
(b) the Contractor gives the Principal's Representative, within 14
days after the commencement of the delay, a written claim for
an extension of time for reaching Mechanical Completion or
Practical Completion evidencing the facts of causation and of
the delay to work under the Contract (including extent).
43.3.2 If further delay results from a Qualifying Cause of Delay evidenced in
a claim under clause 43.3.1(b), the Contractor shall as soon as
becoming aware of the delay claim an extension of time for reaching
Mechanical Completion or Practical Completion for such delay by
promptly giving the Principal's Representative a written claim
evidencing the facts of that
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delay, within 14 days of giving a written claim for an extension of
time under clause 43.3.1(b).
43.4 ASSESSMENT
43.4.1 When both Non-Qualifying Causes of Delay and Qualifying Causes of Delay
overlap, the Contractor shall be entitled to an extension of time for
reaching Mechanical Completion or Practical Completion provided that
the Qualifying Cause of Delay is a critical path item on the Project
Schedule.
43.4.2 In assessing each extension of time the Principal's Representative may
have regard as to whether:
(a) work under the Contract can nevertheless reach Mechanical
Completion or Practical Completion without an extension of
time for reaching Mechanical Completion or Practical
Completion;
(b) the Contractor can accelerate; or
(c) the Contractor has taken all reasonable steps to preclude the
occurrence of the cause and minimise the consequences of the
delay.
43.4.3 For the avoidance of doubt, in determining an extension of time for
reaching Mechanical Completion or Practical Completion the Principal's
Representative may have regard to the Project Schedule at the date of
the event or events on which the claim is based.
43.5 EXTENSION OF TIME
43.5.1 Within 28 days after receiving the Contractor's claim for an extension
of time, the Principal's Representative shall give to the Contractor
and the Principal a written direction evidencing the extension of time
for reaching Mechanical Completion or Practical Completion so assessed.
A delay by the Principal or failure of the Principal's Representative
to grant a reasonable extension of time within that 28 day period shall
not cause the Date for Mechanical Completion or Date for Practical
Completion to be set at large, but nothing in this clause 43.5.1 shall
prejudice any right of the Contractor to damages.
43.5.2 Notwithstanding that the Contractor is not entitled to or has not
claimed an extension of time for reaching Mechanical Completion or
Practical Completion, the Principal's Representative may at any time
and from time to time before issuing the Final Certificate direct an
extension of time for reaching Mechanical Completion or Practical
Completion.
43.6 REDUCTION OF TIME
Where any direction given by the Principal's Representative (including
any Variation) has the effect of reducing the amount of time required
by the Contractor to achieve Mechanical Completion or Practical
Completion:
(a) the Principal's Representative may give to the Contractor and
the Principal a written direction bringing forward the Date
for Mechanical Completion or Date for Practical Completion by
a reasonable period; and
(b) the Date for Mechanical Completion and the Date for Practical
Completion for all purposes under the Contract shall be the
date so directed.
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43.7 MECHANICAL COMPLETION
43.7.1 Entire Works
Mechanical Completion may be accomplished on a subsystem by subsystem
basis, the sum total of which and the integrated operation thereof
shall constitute Mechanical Completion of the Works. However, a
Mechanical Completion Certificate shall be issued with respect to the
Works only when the entire Works has achieved Mechanical Completion.
43.7.2 Notice of Mechanical Completion
The Contractor shall give the Principal's Representative at least 14
days written notice of the date upon which the Contractor anticipates
that Mechanical Completion will be reached.
Whenever the Contractor believes that Mechanical Completion of the
Works or any subsystem thereof has occurred, the Contractor shall so
notify the Principal's Representative in writing ("Notice of Mechanical
Completion") with respect to the Works or subsystem, provided that:
(a) the Contractor shall not submit Notices of Mechanical
Completion with respect to more than five (5) subsystems
within any seven (7) day period; and
(b) the Contractor shall submit an overall Notice of Mechanical
Completion with respect to the Works even if Subsystem
Mechanical Completion Certificates for all subsystems of the
Works have been previously issued, but nothing herein shall
require an overall joint inspection of the Works to determine
whether Mechanical Completion has occurred.
43.7.3 Joint Inspection
(a) If all subsystems of the Works have each been the subject of a
Certificate of Mechanical Completion under 43.7.4 below the
Principal and the Principal's Representative shall not be
obliged to conduct a joint inspection of the Works under
43.7.3(b) below.
(b) Subject to 43.7.3(a), promptly after the Principal's
Representative's receipt of the Contractor's Notice of
Mechanical Completion for the Works or any subsystem, the
Principal, the Principal's Representative and the Contractor
shall conduct a joint inspection of the Works or subsystem to
determine whether the applicable conditions of Mechanical
Completion have been satisfied.
43.7.4 Mechanical Completion Certificate
(a) Within 7 days after the Principal's Representative's receipt
of the Contractor's Notice of Mechanical Completion for a
subsystem, the Principal's Representative shall provide to the
Contractor a Subsystem Mechanical Completion Certificate
setting out the date on which Mechanical Completion of the
subsystem occurred or provide to the Contractor a notice
pursuant to clause 43.7.5.
(b) Within 7 days after the Principal's Representative's receipt
of the last of the Contractor's Notices of Mechanical
Completion with respect to all subsystems of the Works and
submission by the Contractor of a Notice of Mechanical
Completion with respect to the entire Works, the Principal's
Representative shall provide to the Contractor a Mechanical
Completion Certificate for the Works setting out the date on
which Mechanical Completion of the Works occurred or provide
to the Contractor a notice pursuant to clause 43.7.5.
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43.7.5 Objection to Notice of Mechanical Completion
If the Principal's Representative objects to any Notice of Mechanical
Completion, the Principal's Representative shall respond by notice in
writing within seven (7) days of its receipt setting forth in
reasonable detail the reasons for such objection. The Contractor shall
perform such corrective measures as may be required, including any
necessary re-testing, if applicable, to respond properly to any
objections properly raised in the Principal's Representative's response
and may thereafter again deliver its Notice of Mechanical Completion
for the Works or subsystem. The provisions of this clause 43.7.5 shall
apply to each new Notice of Mechanical Completion delivered hereunder.
43.8 PRE-COMMISSIONING, COMMISSIONING, FACILITIES TESTING
43.8.1 Not later than 90 days prior to the date on which Pre-commissioning is
indicated to commence in the Project Schedule, the Contractor shall
provide to the Principal the Contractor's written procedures for
Pre-commissioning, Commissioning and Facilities Testing. The procedures
shall be in sufficient detail to enable the Principal to review the
Contractor's procedures to assess the number of trained operators and
maintenance personnel to meet the Principal's obligations under clause
43.8.3. The Contractor shall cooperate with the Principal in any review
undertaken by the Principal and shall be reasonable in terms of the
personnel required.
43.8.2 Not later than 28 days prior to the date on which the Contractor
anticipates that the work under the Contract will reach a stage where
Pre-commissioning can commence, the Contractor shall notify the
Principal in writing of the anticipated date of such commencement.
43.8.3 The Principal must supply sufficient trained operators and maintenance
personnel in a timely manner to work under the Contractor's supervision
in the Commissioning and Facilities Testing of the Works.
43.8.4 The Principal shall replace promptly any trained operator or
maintenance person the subject of a reasonable objection by the
Contractor to the Principal against that person on the grounds of
competency or attitude to safety.
43.9 PRACTICAL COMPLETION
43.9.1 The Contractor shall give the Principal's Representative at least 14
days written notice of the date upon which the Contractor anticipates
that Practical Completion will be reached.
43.9.2 When the Contractor is of the opinion that Practical Completion has
been reached the Contractor shall in writing request the Principal's
Representative to issue a Certificate of Practical Completion.
43.9.3 Within 5 days after receiving the request, the Principal's
Representative shall give the Contractor and the Principal either a
Certificate of Practical Completion evidencing the Date of Practical
Completion or written reasons for not doing so.
43.9.4 If the Principal's Representative is of the opinion that Practical
Completion has been reached, the Principal's Representative may issue a
Certificate of Practical Completion even though no request has been
made.
43.10 LIQUIDATED DAMAGES
43.10.1 Nothing in this clause 43.10 is intended to restrict the rights to
security provided for in clause 7 or rights of set-off under clause
46.7.
43.10.2 If the work under the Contract does not reach Practical Completion by
the Date for Practical Completion, the Principal's Representative shall
certify, as due and payable to the Principal,
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liquidated damages stated in ITEM 29 for every day after the Date for
Practical Completion to and including the earliest of the Date of
Practical Completion or termination of the Contract.
43.10.3 If an extension of time to the Date for Practical Completion is
directed after the Contractor has paid or the Principal has set off
liquidated damages under clause 43.10.2, the Principal shall forthwith
repay to the Contractor such of those liquidated damages as represent
the days the subject of the extension of time.
43.10.4 The liability of the Contractor to the Principal under this clause
43.10 for failure to reach Practical Completion by the Date for
Practical Completion) shall in no event exceed the amount stated in
ITEM 30.
43.11 DELAY DAMAGES
43.11.1 Entitlement to damages
The Contractor shall not be entitled to any delay damages for any delay
or disruption in the completion of the work under the Contract except
where:
(a) an extension of time to the Date for Mechanical Completion or
Date for Practical Completion has been made or should properly
have been allowed for arising from a Compensable Cause; and
(b) any additional expenses incurred by the Contractor due to the
delay or disruption have not been included in the value of any
Variation and are not payable by virtue of any other provision
of the Contract; and
(c) the Contractor gives the Principal's Representative a claim
for costs as incurred by the Contractor by reason of the delay
arising from the Compensable Cause pursuant to clause 51.1.
43.11.2 Quantum of damages
(a) Subject to 43.11.3, where the conditions of clause 43.11.1 are
satisfied the Principal shall pay the Contractor such costs as
are directly incurred by the Contractor by reason of the
delay.
(b) The Contractor shall not be entitled to any amount for profit
or loss of profit in relation to delay or disruption to the
performance of the work under the Contract.
43.11.3 Limitation of Liability
(a) The total amount payable by the Principal by way of delay
damages for all claims referred to in clause 43.11.1 shall not
exceed the amount stated in ITEM 31.
(b) The amount payable by the Principal to the Contractor under
clauses 43.11.1 and 43.11.2 above is the agreed damages
payable by the Principal to the Contractor and shall be paid
in full satisfaction of all claims, demands, actions,
proceedings or suits for damages which the Contractor may make
or bring against the Principal arising in connection with all
and any delay or disruption encountered by the Contractor in
execution of work under the Contract.
43.12 REPORTS
The Contractor shall schedule and coordinate the details of the work
under the Contract being performed to meet Practical Completion. The
Contractor's monthly report will be in a format agreed between the
Contractor and the Principal's Representative.
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44. DEFECTS LIABILITY
44.1.1 The Defects Liability Period shall commence at the time and on the date
and be for the period stated in ITEM 32.
44.1.2 The Contractor shall carry out rectification at times and in a manner
causing as little inconvenience to the occupants or users of the Works
as is reasonably possible. As soon as possible after the Date of
Practical Completion, the Contractor shall rectify all defects existing
at the Date of Practical Completion.
44.1.3 During the Defects Liability Period, the Principal's Representative may
give the Contractor a direction to rectify a defect which:
(a) shall identify the defect and the date for completion of its
rectification; and
(b) may state a date for commencement of the rectification and
whether there shall be a separate Defects Liability Period
therefor (not exceeding that in ITEM 32, commencing at 4:00 pm
on the date the rectification is completed and governed by
this clause) for specific equipment items repaired or
replaced.
44.1.4 If the rectification is not commenced or completed by the stated dates,
the Principal may have the rectification carried out by others but
without prejudice to any other rights and remedies the Principal may
have. The cost thereby incurred shall be certified by the Principal's
Representative as moneys due and payable to the Principal.
45. VARIATIONS
45.1 DIRECTING VARIATIONS
45.1.1 The Contractor shall not vary work under the Contract except as
directed in writing by the Principal's Representative.
45.1.2 Subject to the terms of the Consent Deed, the Principal's
Representative, before the Date of Practical Completion, may direct the
Contractor to vary the work under the Contract by any one or more of
the following which is nevertheless of a character and extent
contemplated by, and capable of being carried out under, the provisions
of the Contract:
(a) change the design;
(b) increase, decrease or omit any part;
(c) change the character or quality;
(d) change the levels, lines, positions or dimensions;
(e) carry out additional work;
(f) demolish or remove material or work no longer required by the
Principal;
(g) change the time the various stages or portions of work under
the Contract shall be carried out, including accelerating the
progress of the work under the Contract.
45.1.3 The Contractor shall not be bound to execute a Variation directed after
Practical Completion unless the Variation is in respect of
rectification work referred to in clause 44.
45.2 PROPOSED VARIATIONS
45.2.1 The Principal's Representative may give the Contractor written notice
of a proposed Variation.
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45.2.2 The Contractor shall as soon as practicable after receiving such
notice, notify the Principal's Representative whether the proposed
Variation can be effected, together with, if it can be effected, the
Contractor's estimate of the:
(a) effect on the Project Schedule (including the Date for
Practical Completion and the Date for Mechanical Completion);
(b) cost (including all time-related costs, if any); and
the Contractor shall confirm the effect on any applicable warranty of
the proposed Variation.
45.2.3 The Principal's Representative may direct the Contractor to give a
detailed quotation for the proposed Variation supported by measurements
or other evidence of cost.
45.2.4 The Contractor's reasonable costs for each compliance with this
subclause shall be certified by the Principal's Representative as
moneys due to the Contractor.
45.2.5 If the parties cannot agree on the affect of any Variation on
warranties and indemnities given under the Contract by the Contractor
any party may give to the other written notice of Dispute under clause
52, meanwhile all warranties and representations given under the
Contract by the Contractor shall continue unaffected.
45.3 CONTRACTOR PROPOSED VARIATIONS
45.3.1 The Contractor may propose in writing an increase or decrease to the
scope of the Works and that the Principal's Representative direct a
Variation to the work under the Contract. Such proposal shall include
the details of the proposed Variation. It is the intention of the
parties that any cost savings resulting from a Variation proposed by
the Contractor should benefit the Contractor and the Principal equally.
45.3.2 The Principal's Representative may give written notice to the
Contractor requiring it to give to the Principal's Representative:
(a) details of:
(i) the proposed Variation in addition to those details
provided in accordance with clause 45.3.1;
(ii) the reason for the proposed Variation;
(iii) the effect of the proposed Variation on other parts
of the work under the Contract;
(iv) the effect of the proposed Variation on the Project
Schedule (including the Date for Practical Completion
and the Date for Mechanical Completion); and
(v) the cost effect of the proposed Variation including
proposals for:
A sharing any cost savings (if any) in a way
which benefits the Principal and the
Contractor equally, and
B additions to or deductions from the Contract
Currency Amounts (if any);
(b) a written statement and warranty that the proposed Variation
will not adversely effect:
(i) the functional integrity of the Works;
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(ii) the performance standards of the Works required under
the Contract;
(iii) the quality requirements of the Works required under
the Contract;
(iv) any indemnity or warranty given by the Contractor
under the Contract;
(v) life cycle costs of the Works; and
(c) any other information and supporting documentation the
Principal's Representative may reasonably require.
45.3.3 The Principal's Representative may give written approval of any
Variation to the work under the Contract the Contractor proposes with
the agreement of the Principal. The Principal's Representative may
agree to a Variation proposed by the Contractor under this clause 45.3
at the Principal's Representative's sole discretion.
45.3.4 If the Contractor requests a Variation that relates to the
Refurbishment of the Principal Supplied Equipment, the Principal's
Representative will respond to such request within 14 days. All other
Contractor Variation requests will be responded to within 28 days by
the Principal's Representative.
45.4 PRICING
45.4.1 Where the value of a Variation has not been mutually agreed, the
Principal's Representative shall, as soon as possible, value each
Variation:
(a) using the following, in order of precedence:
(i) an amount determined in accordance with the rates or
prices contained in ANNEXURE 7 to the extent that it
is reasonable to use them;
(ii) other applicable rates or prices stipulated in the
Contract;
(iii) insofar as the Variation requires:
A work by a Subcontractor, by addition of the
actual increase in the existing subcontract
contract sum or the contract sum of the new
subcontract as the case requires; or
B reduced work by a Subcontractor, by
deduction of the actual decrease in the
subcontract contract sum; and
(iv) reasonable rates or prices as determined by the
Principal's Representative; and
(b) if the valuation is:
(i) an increase or decrease in a fee or charge;
(ii) a new fee or charge; or
(iii) the provision of services by a municipal, public or
other statutory authority in connection with work
under the Contract,
under Clauses 14.2.1(a)(iii) and 14.2.1(a)(iv), the value
shall be the actual increase or decrease or the actual amount
of the new fee or charge or the actual cost of the services
without regard to overheads or profit;
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(c) for the purposes of a valuation other than as provided in
clause 45.4.1(a)(i) or clause 45.4.1(b) above, include an
amount equal to that stated in ITEM 33 for profit and off-Site
overheads.
45.4.2 The amount of the Principal's Representative's valuation pursuant to
clause 45.4.1 shall be added to or deducted from the Contract Currency
Amounts.
45.5 NOTIFICATION OF VARIATIONS
45.5.1 Despite any other provision of the Contract, if the Principal's
Representative at any time gives the Contractor a direction which, in
the opinion of the Contractor involves a Variation (other than a
direction which the Principal's Representative expressly acknowledges
in writing involves a Variation) the Contractor must notify the
Principal's Representative of the Contractor's assessment that the
direction is a Variation within 7 days after receipt by the Contractor
of the direction and not give effect to the direction until receipt of
the Principal's Representative's response pursuant to clause 45.5.2.
45.5.2 Within 7 days of the Contractor's notice pursuant to clause 45.5.1 the
Principal's Representative shall:
(a) confirm in writing agreement with the Contractor's assessment
of the direction as being a Variation; or
(b) give the reasons why the Principal's Representative does not
agree and instruct the Contractor to give effect to the
direction.
45.5.3 The Contractor shall not be entitled to an extension of time to the
Date for Mechanical Completion or Date for Practical Completion,
adjustment to the Contract Currency Amounts or any other claim in
connection with the Principal's Representative's direction unless the
Principal's Representative agrees in writing that the direction is a
Variation.
45.5.4 Nothing in this clause 45.5 shall reduce the Contractor's obligations
to comply with a direction of the Principal's Representative under
clause 25.7.3 or prevent the Contractor proceeding in accordance with
clause 52.
46. PAYMENT CLAIMS AND PAYMENTS
46.1 ADVANCE PAYMENT
46.1.1 The Contractor shall on receipt of the Notice to Proceed deliver to the
Principal by facsimile and e-mail (in the manner provided under clause
46.2.2) the following claims for advance payments in accordance with
the following schedule:
(a) four percent (4%) of each of the Contract Currency Amounts
upon issue of the Notice to Proceed;
(b) four percent (4%) of each of the Contract Currency Amounts at
the end of the fourth month after the Notice to Proceed is
issued;
(c) two percent (2%) of each of the Contract Currency Amounts at
the end of the eighth month after the Notice to Proceed is
issued.
46.1.2 If the Contractor has provided security to the Principal in accordance
with clause 7 and clause 46.1.3, the Principal shall pay to the
Contractor the amount of each of the claims within 28 days after
receipt of the claim or the security, whichever is the later.
46.1.3 The Contractor shall provide within 28 days of the Notice to Proceed
security equivalent to the sum of the claims for advance payments under
clause 46.1.1 in the form set out in
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ANNEXURE 2 issued by a trading bank in Australia approved by the
Principal and the Lender to ensure the repayment of the advance payment
under this clause 46.1.
46.1.4 The Contractor may from time to time cause the issuer of the security
referred to in clause 46.1.3 to decrease the amount of the security to
the total amount of the advance payments outstanding for repayment at
that time.
46.2 PAYMENT CLAIMS
46.2.1 Entitlement
(a) Nothing in this clause 46 shall entitle the Contractor to
payment of an amount greater or less than the Contract
Currency Amounts together with any additions or deductions
which may be required to be made under the Contract.
(b) On the last day of each month and within the time prescribed
by clause 46.9, the Contractor shall be entitled to submit a
claim for payment (PAYMENT CLAIM) in the aggregate of the
costs paid by the Contractor in the performance of the work
under the Contract that is in accordance with the Contract up
to the date of the Payment Claim (excluding VAT or Goods and
Services Tax (GST) components paid to third parties), less all
amounts previously claimed (but excluding amounts claimed
under clause 46.1 as the Advance Payment).
(c) Payment Claims shall be in the appropriate currency as set out
in the price breakdown structure contained in the Contract and
must include evidence, to the satisfaction of the Principal's
Representative, of the amount claimed by the Contractor,
including:
(i) Subcontractor and supplier costs:
Registers of invoices from Subcontractors and
suppliers for work under the Contract which have been
paid to the date of the claim, net of any VAT or GST
component paid to third parties or any retention
amount held. These registers shall include as a
minimum:
I the cheque or wire or telegraphic transfer
number;
II invoice numbers and the number of invoices
paid;
III date of payment;
IV Subcontractor's or other supplier's name;
and
V amount paid net of any retention amount held
in respect of any such Subcontractor or
supplier, stating net amounts, any VAT or
GST component and gross amounts, and
currency of payment.
(ii) Labour:
Details of all labour costs paid by the Contractor to
the date of the Payment Claim.
(iii) Plant Hire:
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Details of the cost of all plant hire, including
internal plant hire charges, paid by the Contractor
to the date of the Payment Claim showing numbers of
units and rates in accordance with ANNEXURE 14.
(iv) Profit and overheads:
The percentage stated in ITEM 19 of the aggregate of
items referred to in clause 46.2.1(c)(i) to (iii)
above (inclusive) for the Contractor's profit and
overheads (VAT and GST components must be excluded
for the purposes of calculation).
(v) Details of any other amount due under the Contract.
(vi) Documentary evidence of the payment of moneys paid
to:
A workers of the Contractor; and
B Subcontractors,
in respect of work under the Contract the subject of
the Payment Claim.
(vii) A signed lien release provided by the Contractor
stating that the Contractor will indemnify the
Principal from all claims made by Subcontractors for
non-payment for work performed to the date of the
Payment Claim and that all previous payments made to
the Contractor have been applied to the Works in
accordance with the Contract.
46.2.2 Means of making Payment Claims
(a) All Payment Claims made under this clause 46 shall be by
facsimile transmitted simultaneously to the Principal's Cairns
Office marked to the attention of the Financial Controller and
to the Principal's Representative at the Principal's Port
Moresby office. Copies of each such Payment Claim must also be
sent at the same time by e-mail addressed to the Principal's
Representative and the Principal's Commercial Manager at the
Principal's Port Moresby office.
(b) If the time for any Payment Claim falls due on a day which is
a Saturday, Sunday, statutory or a public holiday in
Queensland, the Contractor shall submit the Claim on the
previous working day.
46.3 PAYMENT CERTIFICATES AND CALCULATIONS
46.3.1 Subject to receiving a Payment Claim in accordance with clause
46.2.1(c), within 14 days after receipt of a Payment Claim, the
Principal's Representative shall assess the Payment Claim to determine
if all required documentation is contained in the Payment Claim and
shall issue to the Principal and to the Contractor a Payment
Certificate stating the amount of the payment.
46.3.2 The Principal's Representative shall set out in the Payment Certificate
the calculations employed to arrive at the amount and, if the amount is
more or less than the amount claimed by the Contractor, the reasons for
the difference. The Principal's Representative shall also set out in a
Payment Certificate:
(a) the aggregate of the costs paid by the Contractor in the
performance of the work under the Contract to the date of the
Payment Claim (excluding VAT or GST components paid to third
parties);
(b) the amount in aggregate already paid by the Principal for the
work under the Contract; and
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(c) any other amount due to the Contractor from Principal or from
the Contractor to the Principal,
resulting in the balance due to the Contractor or to the Principal as
the case may be.
46.4 PAYMENT
46.4.1 Subject to the provisions of the Contract, within 28 days of receipt by
the Principal's Representative of a Payment Claim or within 14 days of
issue by the Principal's Representative of the Principal's
Representative's Payment Certificate, whichever is the earlier, and
within 14 days of the issue of a Final Certificate, the Principal shall
pay to the Contractor or the Contractor shall pay to the Principal, as
the case may be, an amount (or amounts) not less than the amount (or
amounts) shown in the Payment Certificate as due to the Contractor or
to the Principal, as the case may be.
46.4.2 The advance payments made in accordance with clause 46.1 will be repaid
by the Contractor to the Principal as follows:
(a) Upon the Contractor issuing a Payment Claim which brings the
total claimed to $45 million or more, all payments by the
Principal to the Contractor of that Payment Claim and of all
subsequent Payment Claims, but subject to clause 46.4.2 (b),
will be reduced by $500,000.
(b) Upon the Contractor issuing a Payment Claim which brings the
total claimed to $70 million or more, all payments by the
Principal to the Contractor of that Payment Claim and of all
subsequent Payment Claims, but subject to clause 46.4.2 (c),
will be reduced by $750,000.
(c) Upon the Contractor issuing a Payment Claim which brings the
total claimed to the sum of the total Contract Currency
Amounts, the Principal shall, by notice to the Contractor,
direct the Contractor as to the repayment of any remaining
advance payments so as to ensure that any remaining advance
payments are fully repaid prior to or as payment of the Final
Payment Claim, and the Contractor must comply with such
direction
46.4.3 Upon full repayment of the advance payments the Principal shall release
the security provided by the Contractor under clause 46.1.3.
46.4.4 A payment made pursuant to this clause 46.4 shall not prejudice the
right of the Principal's Representative to amend a previous Payment
Certificate or of either party to dispute under clause 52 whether the
amount so paid is the amount properly due and payable and on
determination (whether under clause 52 or as otherwise agreed) of the
amount so properly due and payable, the Principal or the Contractor, as
the case may be, shall be liable to pay the difference between the
amount of such payment and the amount so properly due and payable.
46.4.5 All payments by the Principal and by the Contractor shall be made to
the credit of the Contractor or the Principal as the case may be, or as
directed by the Contractor or the Principal, at the financial
institutions indicated in ITEM 16, in the currencies requested and as
indicated in ITEM 15, or as may be directed by the Contractor or the
Principal.
46.4.6 Payment of moneys shall not be evidence of the value of work or an
admission of liability or evidence that work has been executed
satisfactorily but shall be a payment on account only, except as
provided under clause 46.9.
46.5 CERTIFICATES OF MECHANICAL COMPLETION AND PRACTICAL COMPLETION
The Contractor and the Principal's Representative shall give the
notices and certificates required under and otherwise comply with the
requirements of clauses 43.7 and 43.9.
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46.6 EFFECT OF CERTIFICATES
The issue of a Payment Certificate or a Certificate of Mechanical
Completion or a Certificate of Practical Completion shall not
constitute approval of any work or other matter nor shall it prejudice
any claim by the Principal or the Contractor.
46.7 SET-OFF
46.7.1 Without limiting the Principal's rights under any other provision in
this Contract the Principal may deduct from any moneys due to the
Contractor any sum which is due by the Contractor to the Principal
under or in connection with the work under the Contract, including:
(a) all payments, charges, damages and expenses which the
Principal has paid or incurred and in respect of which the
Contractor is liable under the Contract to pay or reimburse
the Principal, but has failed to do so;
(b) all amounts owing by the Contractor to the Principal on any
account whatever under this Contract; and
(c) the full amount of any Lien on the Works, Contractor's
security or any portion thereof imposed by or on behalf of any
Subcontractor for any reason or any claim of which the
Principal has notice from any Subcontractor.
46.7.2 If the moneys due to the Contractor are insufficient to discharge the
liability of the Contractor to pay any of the foregoing amounts to the
Principal, the Principal may have recourse to the security provided by
the Contractor for payment of such amounts.
46.7.3 Nothing in this clause shall affect the right of the Principal to
recover from the Contractor the whole of such moneys or any balance
that remains owing or otherwise limit the rights of the Principal in
relation to security provided by the Contractor in accordance with
clause 7.
46.8 OWNERSHIP OF EQUIPMENT
The Contractor warrants and agrees that ownership of and property in
any Equipment incorporated or to be incorporated in the Works or
otherwise intended to remain the Principal's property shall pass to the
Principal upon the earlier of:
(a) payment to the Contractor of the amount claimed by the
Contractor in respect of that Equipment or in accordance with
clause 15.3; or
(b) the delivery of the Equipment to the Site; or
(c) a specific designation by a Subcontractor that such Equipment
is for the Works or the property of the Principal.
46.9 FINAL PAYMENT CLAIM AND CERTIFICATE
46.9.1 Within 7 days after the latest to expire of the period stated in ITEM
32 or the period stated under clause 44.1.3(b), the Contractor shall
give the Principal's Representative a written Final Payment Claim
endorsed 'Final Payment Claim' being a Payment Claim together with all
other claims whatsoever in connection with the subject matter of the
Contract. Each of the following shall constitute conditions precedent
to the issue of the Final Certificate:
(a) the Principal has received, with respect to each Subcontractor
performing services or delivering Equipment or materials
comprising any part of work under the Contract, a final
release in the form of ANNEXURE 8 stating that all amounts due
to such Subcontractor have been satisfied in full, provided
that, if any Subcontractor fails for any valid reason to
provide such a release, the Principal may, at its option,
withhold from release of security at Final Certificate in
accordance with clause 7.3
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an amount sufficient to cover the amounts claimed to be due to
such Subcontractor and waive the Contractor's obligations
under this clause to the extent that the undrawn amount of the
security at Final Certificate is sufficient to cover such
claims in addition to all other claims which may be made
against it;
(b) the Principal has received a statutory declaration from the
Contractor setting forth in reasonable detail each alleged
liability or other amount owing to Subcontractors which is
disputed by the Contractor and which the Contractor knows or
has reason to believe may result in a claim thereafter being
made against the Principal; and
(c) the Principal has received from the Contractor a statutory
declaration of final release in the form of ANNEXURE 13
stating that all amounts due to all Subcontractors have been
satisfied in full.
46.9.2 Subject to clause 46.9.1, within 42 days after the expiry of the last
Defects Liability Period, the Principal's Representative shall issue to
both the Contractor and the Principal a Final Certificate evidencing
the moneys finally due and payable between the Contractor and the
Principal on any account whatsoever in connection with the subject
matter of the Contract. In the Final Certificate the Principal's
Representative shall also set out:
(a) amounts paid under the Contract and amounts otherwise due from
the Principal to the Contractor and/or due from the Contractor
to the Principal arising out of or in connection with the
Contract including but not limited to any amount due under any
provision of the Contract;
(b) the Contract Currency Amounts together with any additions or
deductions made pursuant to the Contract; and
(c) the total value of all previous certificates, claims and
securities issued pursuant to the Contract.
46.9.3 Those moneys certified as due and payable shall be paid by the
Principal or the Contractor, as the case may be, within 14 days after
the debtor receives the Final Certificate. Such payment is hereby
defined as the "FINAL PAYMENT".
46.9.4 The Final Certificate shall be conclusive evidence of accord and
satisfaction, and in discharge of each party's obligations in
connection with the subject matter of the Contract except for:
(a) fraud or dishonesty relating to work under the Contract or any
part thereof or to any matter dealt with in the Final
Certificate ;
(b) any defect or omission in the Works or any part thereof which
was not apparent at the end of the last Defects Liability
Period, or which would not have been disclosed upon reasonable
inspection at the time of the issue of the Final Certificate;
(c) any accidental or erroneous inclusion or exclusion of any work
or figures in any computation or an arithmetical error in any
computation;
(d) unresolved issues the subject of any notice of dispute
pursuant to clause 52, served before the 7th day after the
issue of the Final Certificate; and
(e) any liability of the both parties under clauses 5, 10.5 and
20.1.
46.10 INTEREST
46.10.1 Interest in ITEM 37 shall be due and payable after the date of any
default in payment.
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46.10.2 Despite any other provision of the Contract, interest shall only accrue
on moneys payable by a party to the other party and a party shall only
be taken to be in default in payment after the other party has given to
that party a notice in writing that payment is overdue.
46.11 DEFERRED PAYMENT OPTION
Principal may, in its sole discretion, elect to defer payment of up to
$5 million of the Contract Sum by notice in writing to the Contractor
not later than 30 days prior to the time when the total sum paid by the
Principal to the Contractor under the Contract reaches the sum of the
Contract Currency Amounts less $5 million, the actual date of the
election to be agreed by the parties in advance. This option is subject
to the Principal entering into a subordinate loan agreement for
repayment of the deferred payment amount prior to the time of such
deferment, and such agreement receiving prior OPIC approval. The
parties agree that the subordinate loan agreement will be based
substantially on the terms contained in ANNEXURE 16.
47. PAYMENT OF WORKERS AND SUBCONTRACTORS
47.1 WORKERS AND SUBCONTRACTORS
47.1.1 The Contractor shall give to the Principal's Representative in respect
of a Payment Claim, documentary evidence of the payment of moneys due
and payable to:
(a) workers of the Contractor and of the Subcontractors; and
(b) Subcontractors,
in respect of work under the Contract the subject of that Payment
Claim.
47.1.2 If the Contractor is unable to give such documentary evidence, the
Contractor shall give other documentary evidence of the moneys so due
and payable to workers of the Contractor and of the Subcontractors.
47.1.3 Documentary evidence, except where the Contract otherwise provides,
shall be to the Principal's Representative's satisfaction.
47.2 WITHHOLDING PAYMENT
47.2.1 Subject to clause 47.2.2 the Principal may withhold from moneys due to
the Contractor an amount reasonably estimated by the Principal to be
due and payable to workers of the Contractor and of the Subcontractors
and to Subcontractors until the Contractor complies with clause 47.1.
47.2.2 The Principal shall not withhold payment of such money in excess of the
amount reasonably estimated to be due under clause 47.2.1.
47.3 DIRECT PAYMENT
47.3.1 Before Final Payment , the Principal, if not aware of a relevant
relation-back day (as defined in the Corporations Act 2001 (Cth)) may
pay unpaid moneys the subject of clause 47.1 directly to a worker or a
Subcontractor where:
(a) permitted by law;
(b) given a court order in favour of the worker or Subcontractor;
or
(c) requested in writing by the Contractor.
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47.3.2 Such payment and a payment made to a worker or Subcontractor in
compliance with a Legislative Requirement shall be deemed to be part
satisfaction of the Principal's obligation to pay pursuant to clause
46.4 or clause 46.9, as the case may be.
47.4 LIENS AND CLAIMS
47.4.1 Title indemnity
The Contractor shall indemnify the Principal from and against any and
all Liens and all expenses and solicitors' fees incurred in discharging
any Lien.
47.4.2 Principal's right to discharge Liens:
(a) If the Contractor shall default in discharging any Lien, the
Principal shall promptly notify the Contractor, and the
Contractor shall then satisfy or otherwise cause to be
released any such Lien, provided that the Contractor shall
have the right to contest any such Lien, if the Contractor
first provides to the Principal a bond or other collateral
security in an amount, form and substance satisfactory to the
Principal and otherwise complies with applicable Legislative
Requirements.
(b) If the Contractor either does not promptly satisfy such Lien
or does not give the Principal reasons in writing satisfactory
to the Principal for not paying such Lien, or (according to
the Principal's Representative) is seen to be acting
unreasonably with respect to the Lien, within 10 days of the
Contractor's receipt of such notice, the Principal shall have
the right, at its option, after providing notice to the
Contractor, to pay or settle such Lien, and the Contractor
shall, within 5 days of request by the Principal, reimburse
the Principal for all costs incurred by the Principal to
discharge such Lien, costs and solicitors' fees and other
expenses.
48. DEFAULT OR INSOLVENCY
48.1 PRESERVATION OF OTHER RIGHTS
If a party breaches (including repudiates) the Contract nothing in this
clause shall prejudice the right of the other party to recover damages
or exercise any other right or remedy.
48.2 CONTRACTOR'S DEFAULT
If the Contractor commits a substantial breach of the Contract the
Principal may, by hand or by certified post, give the Contractor a
written notice to show cause. Substantial breaches include:
(a) failing to:
(i) provide security;
(ii) provide evidence of insurance;
(iii) comply with a direction of the Principal's
Representative pursuant to clause 37.3;
(iv) use the materials or standards of work required by
the Contract;
(v) perform properly the Contractor's Design Obligations;
or
(vi) establish, implement and maintain a quality assurance
program in accordance with clause 37.2;
(b) wrongful suspension of work;
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(c) substantial departure from the Project Schedule without
reasonable cause or the Principal's Representative's approval;
(d) failing to proceed with due expedition and without delay; and
(e) in respect of clause 46.9, knowingly providing documentary
evidence containing an untrue statement.
48.3 PRINCIPAL'S NOTICE TO SHOW CAUSE
A notice under clause 48.2 shall state:
(a) that it is a notice under clause 48 of the Contract;
(b) the alleged substantial breach;
(c) that the Contractor is required to show cause in writing why
the Principal should not exercise a right referred to in
clause 48.4;
(d) the date and time by which the Contractor must show cause
(which shall not be less than 7 clear days after the notice is
received by the Contractor); and
(e) the place at which cause must be shown.
48.4 PRINCIPAL'S RIGHTS
48.4.1 Subject to the terms of the Consent Deed, if the Contractor fails to
show reasonable cause by the stated date and time, the Principal may by
written notice to the Contractor:
(a) take out of the Contractor's hands the whole or part of the
work under the Contract remaining to be completed and suspend
payment until it becomes due and payable pursuant to clause
48.6; or
(b) terminate the Contract.
48.4.2 Upon giving a notice under clause 48.2, the Principal may not suspend
payments to the Contractor until the date which is a day following the
last date for showing cause in the notice under clause 48.2.
48.4.3 If the Principal exercises the right under clause 48.4.1(a), the
Contractor shall not be entitled to any further payment in respect of
the work under the Contract taken out of the hands of the Contractor
unless payment becomes due to the Contractor under clause 48.6.
48.5 TAKE OUT
48.5.1 The Principal shall complete work under the Contract taken out of the
Contractor's hands and may:
(a) use Design Documents, Equipment and other equipment, plant and
materials, intended for work under the Contract; and
(b) without payment of compensation to the Contractor:
(c) take possession of, and use such of the Construction Plant,
Temporary Works and other temporary facilities, equipment,
tools, plant and material on or in the vicinity of the Site as
were used by the Contractor; and
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(d) contract with such of the Contractor's Subcontractors (and for
such purpose such contracts require the Contractor to novate
any subcontract in accordance with the Subcontractor's Consent
Deed),
as are reasonably required by the Principal to facilitate completion of
work under the Contract.
48.5.2 If the Principal takes possession of Design Documents, Construction
Plant or other equipment, plant and material, the Principal shall
maintain them and, subject to clause 48.6, on completion of the work
under the Contract, shall return such of them as are surplus.
48.5.3 The Principal's Representative shall keep records of the cost of
completing the work under the Contract.
48.6 ADJUSTMENT ON COMPLETION OF WORK TAKEN OUT
48.6.1 When work under the Contract taken out of the Contractor's hands has
been completed, the Principal's Representative shall assess the cost
thereby incurred and shall certify as moneys due and payable
accordingly the difference between that cost (showing the calculations
therefor) and the amount which would otherwise have been paid to the
Contractor if such work under the Contract had been completed by the
Contractor.
48.6.2 If the Contractor is indebted to the Principal, the Principal may
retain Construction Plant or other equipment, plant and material taken
under clause 48.5 until the debt is satisfied. If after reasonable
notice, the Contractor fails to pay the debt, the Principal may sell
the Construction Plant or other equipment, plant and material and apply
the proceeds to the satisfaction or part satisfaction of the debt and
the costs of sale. Any excess shall be paid to the Contractor.
48.6.3 Subject to clause 20.3, in assessing the cost incurred in relation to
work under the Contract taken out of the Contractor's hands the
Principal's Representative must include the following items of cost to
the Principal:
(a) any costs being incurred by the Principal by reason of its
ownership or holding of the Site for any period; and
(b) any other costs, losses, expenses or damages,
arising from or in connection with the Contractor's breach.
48.7 PRINCIPAL'S DEFAULT
48.7.1 If the Principal commits a substantial breach of the Contract then
subject to the terms of the Consent Deed, the Contractor may, by hand
or by certified post, give the Principal a written notice to show
cause.
48.7.2 Substantial breaches include the Principal's failure to:
(a) produce evidence of insurance;
(b) rectify inadequate Contractor's possession of the Site if that
failure continues for longer than the time stated in ITEM 38;
or
(c) make a payment due and payable pursuant to the Contract,
including ensuring the timely payment of insurance moneys to
the Contractor in accordance with clause 25.5 for the costs of
any reinstatement the subject of a settled claim under the
insurance required under clause 21; and
(d) give a Certificate of Practical Completion or reasons as
referred to in clause 43.9.
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48.8 CONTRACTOR'S NOTICE TO SHOW CAUSE
A notice given under clause 48.7 shall state:
(a) that it is a notice under clause 48 of the Contract;
(b) the alleged substantial breach;
(c) that the Principal is required to show cause in writing why
the Contractor should not exercise a right referred to in
clause 48.9;
(d) the date and time by which the Principal must show cause
(which shall not be less than 7 clear days after the notice is
received by the Principal); and
(e) the place at which cause must be shown.
48.9 CONTRACTOR'S RIGHTS
48.9.1 If the Principal fails to show reasonable cause by the stated date and
time, then subject to the terms of the Consent Deed, the Contractor
may, by written notice to the Principal, suspend the whole or any part
of work under the Contract.
48.9.2 The Contractor shall remove the suspension if the Principal remedies
the breach.
48.9.3 Subject to the terms of the Consent Deed, the Contractor may, by
written notice to the Principal, terminate the Contract, if within 28
days of the date of suspension under this subclause, the Principal
fails:
(a) to remedy the breach; or
(b) if the breach is not capable of remedy, to make other
arrangements to the reasonable satisfaction of the Contractor.
48.9.4 Subject to clause 20.3, damages suffered by the Contractor by reason of
the suspension shall be assessed by the Principal's Representative, who
shall certify them as moneys due and payable to the Contractor.
48.10 TERMINATION
48.10.1 If the Contract is terminated pursuant to clause 48.4.1(b) or clause
48.9, the parties' remedies, rights and liabilities shall be the same
as they would have been under the law governing the Contract had the
defaulting party repudiated the Contract and the other party elected to
treat the Contract as at an end and recover damages.
48.10.2 In the event of termination under clause 48.4.1(b) the Principal may
also, without payment of compensation, take possession of the Temporary
Works, Construction Plant, Design Documents, drawings, specifications
and other information, samples, models, patterns and the like created
for the construction of the Works and take an assignment of
subcontracts.
48.11 INSOLVENCY
48.11.1 Subject to the terms of the Consent Deed, if:
(a) a party informs the other in writing or creditors generally,
that the party is insolvent or is financially unable to
proceed with the Contract;
(b) execution is levied against a party by a creditor;
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(c) in relation to a party being a corporation:
(i) notice is given of a meeting of creditors with a view
to the corporation entering a deed of company
arrangement;
(ii) it enters a deed of company arrangement with
creditors;
(iii) a controller or administrator is appointed;
(iv) an application is made to a court for its winding up
and not stayed within 14 days;
(v) a winding up order is made in respect of it;
(vi) it resolves by special resolution that it be wound up
voluntarily (other than for a member's voluntary
winding up); or
(vii) a mortgagee of any of its property takes possession
of that property;
(viii) it takes or has taken or instituted against it any
action or proceeding whether voluntarily or
compulsory which has an object or may result in the
winding up of the company, other than a voluntary
winding up by members for the purpose of
reconstruction or amalgamation or is placed under
official management or enters into a compromise or
other arrangement with its creditors or a receiver
and a party is appointed to carry on the Contractor's
business for the benefit of creditors or any of them;
(ix) execution is levied by creditors, debenture holders
or trustees or under a floating charge;
(x) a receiver of the property or part of the property of
that party is appointed;
(xi) a meeting of creditors is called with a view to:
A entering a scheme of company arrangement or
composition with creditors; or
B placing that party under official
management,
then, subject to the terms of the Consent Deed, where the other party
is:
(d) the Principal, the Principal may, without giving a notice to
show cause, exercise the right under clause 48.4.1(a); or
(e) the Contractor, the Contractor may, without giving a notice to
show cause, exercise the right under clause 48.9.
48.11.2 The rights given by this clause 48.11 are in addition to any other
rights and may be exercised notwithstanding that there has been no
breach of contract.
48.12 NO INSOLVENCY
48.12.1 The Contractor acknowledges that neither:
(a) the enforcement of any right by or on behalf of the Lender
over the Principal (or any of its assets) under a security; or
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(b) any action by a third party in relation to the Principal or
its assets, which results in the Lender exercising its rights
under clause 48.12.1(a),
will entitle the Contractor to exercise its rights under clause 48.9 or
clause 48.11.
48.12.2 The rights and remedies given by this subclause are additional to any
other rights and remedies. They may be exercised notwithstanding that
there has been no breach of contract.
49. TERMINATION FOR FRUSTRATION
49.1.1 Subject to the terms of the Consent Deed, if the Contract is
frustrated:
(a) the Principal's Representative shall issue a Payment
Certificate under clause 46.2 for work under the Contract
carried out to the date of frustration, evidencing the amount
which would have been payable had the Contract not been
frustrated and had the Contractor been entitled to and made a
Payment Claim on the date of frustration;
(b) the Payment Certificate under clause 49.1.1(a) shall evidence
and the Principal shall pay the Contractor:
(i) the amount due to the Contractor evidenced by all
unpaid certificates;
(ii) the cost of Equipment and other equipment, plant and
materials reasonably ordered by the Contractor for
work under the Contract and which the Contractor is
liable to accept, but only if:
A those items will become the Principal's
property upon payment free of any Lien; and
B the value of such items is not included in
the amount payable under clause
49.1.1(b)(i); and
(iii) the costs reasonably incurred:
A removing Temporary Works and Construction
Plant;
B returning to their place of engagement the
Contractor, Subcontractors and their
respective employees engaged in work under
the Contract at the date of frustration; and
C by the Contractor in expectation of
completing work under the Contract and not
included in any other payment; and
(c) the Principal shall promptly release and return all security
provided by the Contractor.
50. TERMINATION FOR CONVENIENCE
50.1.1 Subject to the terms of the Consent Deed, the Principal may at any time
and for any reason terminate the Contract by 7 days prior notice to the
Contractor in which case the Contractor shall, upon receipt of the
notice:
(a) cease carrying out work under the Contract;
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(b) if directed by the Principal to do so:
(i) assign or novate in favour of the Principal any
subcontracts (including for the provision of any
Equipment and other equipment, plant and materials)
or rights under any subcontracts entered into or
obtained by the Contractor in connection with the
carrying out of work under the Contract or completion
of the Works;
(ii) terminate any other outstanding subcontracts and
recover from the Subcontractor any property,
documentation, material or information of the
Principal or the Principal's Representative; and
(iii) deliver to the Principal, all property, documentation
or information of the Principal provided to the
Contractor in connection with its carrying out work
under the Contract; and
(c) deliver to the Principal any of the Equipment and other
equipment, plant and materials or work under the Contract
which under the Contract has become the property of the
Principal.
50.1.2 Upon termination of the Contract under this clause:
(a) the Principal shall pay the Contractor:
(i) the amount due to the Contractor evidenced by all
unpaid certificates;
(ii) for any work under the Contract performed by
Contractor prior to and up to the date of termination
in addition to work under the Contract described in
clause 50.1.2(a)(i);
(iii) the cost of Equipment and other equipment, plant and
materials reasonably ordered by the Contractor for
work under the Contract and which the Contractor is
liable to accept, but only if:
A those items will become the Principal's
property upon payment free of any Lien; and
B the value of such items is not included in
the amount payable under clauses
50.1.2(a)(i) and 50.1.2(a)(ii) ; and
(iv) the costs reasonably incurred including overheads:
A of removing Temporary Works and Construction
Plant;
B of returning to their place of engagement
the Contractor, Subcontractors and their
respective employees engaged in work under
the Contract at the date of termination; and
C by the Contractor in expectation of
completing work under the Contract and not
included in any other payment; and
(b) the Contractor shall have no claim against the Principal for
any overhead, loss of profits, costs, expenses, damages,
losses or other liabilities arising from or in connection with
the termination in respect of the unexecuted work under the
Contract.
(c) the Principal shall promptly release and return all security
provided by the Contractor.
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51. NOTIFICATION OF CLAIMS
51.1 COMMUNICATION OF CLAIMS
51.1.1 The Prescribed Notice is a written notice and shall include particulars
of all of the following:
(a) the breach, act, omission, direction, approval or
circumstances on which the claim is based;
(b) the provision of the Contract or other basis for the claim;
and
(c) the quantum of the claim.
51.1.2 As soon as practicable after a party becomes aware of any claim in
connection with the subject matter of the Contract and not later than
28 days after the first occurrence of the breach, act, omission,
direction, approval or circumstances on which the claim is based, the
party shall give to the other party and to the Principal's
Representative the Prescribed Notice or a notice of Dispute under
clause 52.1.
51.1.3 This clause 51.1 and clause 51.3 shall not apply to any claim,
including a claim for payment (except for claims which would, other
than for this clause 51.1, have been included in the Final Payment
Claim), the communication of which is required by another provision of
the Contract.
51.2 LIABILITY FOR FAILURE TO COMMUNICATE
51.2.1 If the Contractor does not:
(a) give to the Principal and the Principal's Representative a
Prescribed Notice of a claim pursuant to clause 51.1; or
(b) give to the Principal's Representative in accordance with the
requirements of the Contract any other notice required to be
given by a provision of the Contract in connection with
circumstances potentially giving rise to an extension of time
to the Date for Mechanical Completion or the Date for
Practical Completion, adjustment to the Contract Currency
Amounts or any other claim,
the Contractor shall not be entitled to the claim or to any extension
of time to the Date for Mechanical Completion or the Date for Practical
Completion, adjustment to the Contract Currency Amounts or other claim
arising from those circumstances.
51.2.2 For the purposes of this clause, "claim" shall include a claim in
contract, equity (including for quantum meruit), tort (including for
negligence), under statute or otherwise.
51.3 PRINCIPAL'S REPRESENTATIVE'S DECISION
51.3.1 If within 28 days of giving the Prescribed Notice the party giving it
does not notify the other party and the Principal's Representative of
particulars of the claim, the Prescribed Notice shall be deemed to be
the claim.
51.3.2 Within 56 days of receipt of the Prescribed Notice the Principal's
Representative shall assess the claim and notify the parties in writing
of the decision.
51.3.3 Unless a party within a further 28 days of such notification gives a
notice of dispute under clause 52.1 which includes such decision, the
Principal's Representative shall certify the amount of that assessment
to be moneys then due and payable.
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52. DISPUTE RESOLUTION
52.1 NOTICE OF DISPUTE
52.1.1 If a difference or dispute (together called a 'Dispute') between the
parties arises in connection with the subject matter of the Contract,
including a dispute concerning:
(a) a Principal's Representative's direction; or
(b) a claim:
(i) in tort;
(ii) under statute;
(iii) for restitution based on unjust enrichment or other
quantum meruit; or
(iv) for rectification or frustration,
or like claim available under the law governing the Contract,
then either party shall, by hand or by certified mail, give the other
and the Principal's Representative a written notice of Dispute
adequately identifying and providing details of the Dispute.
52.1.2 Notwithstanding the existence of a Dispute, the parties shall, subject
to clauses 48, 49 and 52.4, continue to perform the Contract.
52.2 CONFERENCE
52.2.1 At the time of execution of the Contract the Steering Committee members
are those persons stated in ITEM 8.
52.2.2 The Contractor and the Principal may replace their Steering Committee
member(s) at any time, or nominate a substitute to represent it on
specific matters, by giving notice in writing to the other and to the
Principal's Representative and Contractor's Representative at least
twenty-four (24) hours prior to the change in representation.
52.2.3 In respect of any decision which is required to be made by the Steering
Committee under this clause 52, the Steering Committee members are
hereby authorised to bind the party to the Contract that they represent
to the decisions of the Steering Committee.
52.2.4 Steering Committee members may bring to meetings of the Steering
Committee such advisers as they consider necessary provided that:
(a) they advise each of the other Steering Committee members of:
(i) the names of those advisers, and
(ii) the nature of the advice it is anticipated such
advisers will give,
twenty-four (24) hours in advance of the meeting; and
(b) no reasonable objection against the bringing of such adviser
is made by another Steering Committee member.
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52.2.5 All decisions by the Steering Committee will be by vote as follows:
(a) Each Steering Committee member will be entitled to cast one
vote.
(b) All votes must be cast.
(c) Every decision or determination by the Steering Committee must
be unanimous.
52.2.6 The parties to the Contract must implement all decisions and directions
of the Steering Committee in respect of the work under the Contract
given in accordance with this clause 52.
52.2.7 Within 14 days after receiving a notice of Dispute, the Steering
Committee shall confer at least once to endeavour to resolve the
Dispute or to agree on methods of doing so. All aspects of every such
conference except the fact of occurrence shall be privileged.
52.2.8 If the Dispute has not been resolved within 28 days of service of the
notice of Dispute, that Dispute shall be and is hereby referred to
arbitration.
52.3 ARBITRATION
52.3.1 Arbitration shall be affected at the place stated in ITEM 39(a) and in
the language stated in ITEM 39(b) by an arbitrator, who shall be agreed
by the parties or, if no agreement is reached within 14 days, by an
arbitrator appointed by the President for the time being of the
Australasian Dispute Centre. The arbitration shall be conducted in
accordance with the UNCITRAL Model Law on International Commercial
Arbitration current as at the date of execution of the Contract.
52.4 SUMMARY RELIEF
Nothing herein shall prejudice the right of a party to institute
proceedings to enforce payment due under the Contract or to seek
injunctive or urgent declaratory relief.
53. WAIVER OF CONDITIONS
Except as provided at law or in equity or elsewhere in the Contract,
none of the provisions of the Contract shall be varied, waived,
discharged or released, except with the prior written consent of the
parties.
54. CO-ORDINATION WITH PRINCIPAL AND OTHERS
The Contractor acknowledges that it has made reasonable allowance in
the Contract Currency Amounts, the Project Schedule and the Date for
Practical Completion, for coordinating the work of and cooperating with
other contractors of the Principal.
55. INDEPENDENT CONTRACTOR
The Contractor warrants to the Principal as at the date of the Contract
and at all times during the performance of the work under the Contract
that it will:
(a) act as an independent contractor and will not act as the agent
of the Principal or the Principal's Representative in
executing the work under the Contract and maintaining control
over its employees and Subcontractors; and
(b) execute the work under the Contract in accordance with its own
methods, subject to complying with the Contract, and nothing
contained in the Contract or any subcontract ordered by the
Contractor will create any contractual relationship between
any Subcontractor and either the Principal or the Principal's
Representative.
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56. SURVIVAL
Each agreement, representation, warranty, covenant, right and
obligation contained or referred to in the Contract shall survive the
performance of the Contract, and shall terminate only when the Works
are complete, all amounts due or to become due under the Contract are
paid in full and the Contract is otherwise fully performed by both
parties.
57. ENTIRE AGREEMENT
The Contract, the Consent Deed and the Deed of Guarantee, Undertaking
and Substitution embody the entire agreement between the Principal and
the Contractor and supersedes all other statements, representations,
undertakings and agreements between them. The parties are not bound by
or liable for any statement, representation, promise, inducement or
understanding not set forth in the Contract. No change, amendment or
modification of any of the terms or conditions of the Contract is valid
unless reduced to writing and signed by both parties.
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SCHEDULE
ITEM DESCRIPTION DETAIL
1. Principal INTEROIL LIMITED
(Clause 1.1)
incorporated in the Independent State of Papua New Guinea
2. Principal's Address and Facsimile Number Level 6, Defens Haus
PO Box 1971
Port Moresby, PNG
675-320-2601
3. Contractor CLOUGH NIUGINI LIMITED
(Clause 1.1)
incorporated in the Independent State of Papua New Guinea
4. Contractor's Address and Facsimile Number C/- PricewaterhouseCoopers, Credit House, Cuthbertson Street, Port
Moresby, PNG
675 321 1428
5. Contractor's Representative Lambert Brau
6. Contractor's Representative Address and C/- Level 6, 251 St Georges Terrace
Facsimile Number Perth WA 6000
FAX 61-(0)8-9481 6699
7. Lender Overseas Private Investment Corporation of
(Clause 1.1) 1100 New York Avenue, N.W., Washington, D.C. 20527, USA
Fax 1 202 408 9866
8. Steering Committee Principal's Steering Committee representatives:
(Clause 1.1)
Roger Grundy or successor by appointment of the Principal
Graeme Alexander or successor by appointment of the Principal
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ITEM DESCRIPTION DETAIL
Contractor's Steering Committee Representatives:
Colin Percival or successor by appointment of the Contractor
David Jones or successor by appointment of the Contractor
9. Principal's Representative Alexander R Nairn
(Clause 1.1) Project Director
10. Principal's Representative's Address and C/- InterOil Limited
Facsimile Number Level 6, Defens Haus
PO Box 1971
Port Moresby, PNG
675-320-2601
[deleted for confidentiality]
11. Contract Currency Amounts
Contract Sum
(Clause 1.1)
$[deleted for confidentiality] (Indicative only)
12. Period of time for:
(a) Mechanical Completion 20 months from the date of the Notice to Proceed with work under the
(Clause 1.1) Contract pursuant to clause 2.4
(b) Practical Completion 6 months from the Date for Mechanical Completion
(Clause 1.1)
13. The Principal's Project Requirements are Principal's Project Requirements
described in the following documents
(Clause 1.1) Annexure 18
14. Governing Law Queensland Law
(Clause 1.2.11)
15. Currency US$, AU$, Euro, Sing $, PNG Kina
(Clause 1.2.10)
16. Place for Payments Payment by the Principal - Banks nominated by Contractor
(Clause 1.2.10)
Payment to the Principal - Banks nominated by the Principal
17. The amount of security 10% of the Contract Sum
(Clause 7.1.1)
18. Authorised Signatories For the Principal:
(Clause 9)
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ITEM DESCRIPTION DETAIL
The Principal's Representative and other nominated Principal's
Representatives
For the Contractor:
Contractor's Representative
[deleted for confidentiality]
19. Contractor's Margin
(Clause 46.2.1(c)(iv))
20. Not used NOT USED
21. Time for Principal's Representative's Direction 14 days
about Documents
(Clause 10.3.2(c))
22. Subcontracts
(a) Subcontractors required to execute Suppliers of
Subcontractor's equipment, goods
Consent Deed; and and materials
which are material
in nature to the
functionality of
the Works.
(b) Subcontract Work requiring Approval Suppliers of equipment, goods and materials which are material in
nature to the functionality of the Works.
(Clause 11)
23. Not used Not used
24. Limitation of the Contractor's liability 50% of the Contract Sum
(Clause 20.2)
25. Professional Indemnity Insurance:
(Clause 24)
(a) Contractor:
(i) The amount of the Contractor's Professional [deleted for confidentiality]
Indemnity
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ITEM DESCRIPTION DETAIL
(ii) The excess shall not exceed $200,000
(iii) The policy shall be maintained for the period
following Final Certificate or 6 years
termination
(b) Consultants:
(i) The amount of the Consultant's Professional Not less than A$1 million any one claim
Indemnity
(ii) The excess shall not exceed Not used
(iii) The policy shall be maintained for the period
following Final Certificate or 6 years
termination
26. Time for Giving Possession Within 7 Days of Notice to Proceed
(Clause 32.1)
27. Latent Conditions in Principal Supplied
Equipment for Refurbishment
(a) The time by which a survey of Principal Not used
Supplied Equipment for latent conditions
is to be undertaken
(b) The time by which the Contractor shall notify Not used
the Principal's Representative of any
latent condition
28. Time for issuing the Certificate of Mechanical
Completion for the Works
(Clause 43.7.4(a) & 43.7.4(b))
(a) Subsystems Not used
(b) Works Not used
29. Liquidated Damages, Rate $30,000 per day subject to clause 43.10.4
(Clause 43.10)
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ITEM DESCRIPTION DETAIL
30. Aggregate liability of the Contractor for delay 5% of the Contract Sum
in reaching Mechanical Completion and Practical
Completion under clause 43.10 LIQUIDATED DAMAGES
(Clause 43.10.4)
31. The limitation to the Principal's liability for 2.5% of the Contract Sum
delay damages under clauses 43.11.1 and 43.11.2
(Clause 43.11.3)
32. Defects Liability Period The sooner of:
(clause 44)
18 months from 4.00pm on the Date of Mechanical Completion; and
12 months from 4.00pm on the Date of Practical Completion;
33. The amounts to be included in valuation of (i) Increase in work: Direct costs (inclusive of on-Site
variation as profit and off-Site overheads - overhead) plus off-Site overheads and
(Clauses 45.4.1) profit at 6.8% and 4.2%
respectively of the actual direct
cost
(ii) Reduction in work: Direct costs (exclusive of on-Site
overhead) plus off-Site overheads
and profit at 6.8% and 4.2%
respectively of the actual direct
cost
34. Worker Rights Requirements The Contractor shall not, and shall cause its Subcontractors not to,
take any action to prevent its employees from lawfully exercising
their right of association and their right to organise and bargain
collectively and shall observe applicable laws relating to a minimum
age for employment of children, acceptable conditions of work with
respect to minimum wages, hours of work and occupational health and
safety, and not to use forced labour. In addition, the Contractor
agrees, and shall cause its Subcontractors to agree that (i) no person
under the age of fourteen (14) years shall be employed by either the
Contractor or its Subcontractors and that no person under the age of
sixteen (16) years shall be employed by either the Contractor or its
Subcontractors in the performance of any hazardous activity and (ii)
every person employed by either the Contractor or its Subcontractors
shall have the right to remove himself or herself from dangerous work
situations without jeopardising his or her continued employment in
connection with the Contract. The Contractor shall, and shall cause
each Subcontractor to, require each of its subcontractors to comply
with the foregoing undertakings (the "Worker Rights Requirements")
with respect to employees of such subcontractors. The Contractor
shall, and shall cause it Subcontractors to, use commercially
reasonable efforts to monitor the compliance of contractors and
subcontractors with the Worker Rights Requirements. In the event
information concerning non-compliance or potential non-compliance with
the Worker Rights Requirements with respect to employees of either the
Contractor,
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ITEM DESCRIPTION DETAIL
Subcontractors (or their subcontractors) comes to the
attention of a responsible officer of either the Contractor or a
Subcontractor, the Contractor shall, or, if applicable, shall cause
the Subcontractor to, give prompt notice thereof to the Principal and
shall investigate the circumstances of such non-compliance or
potential non-compliance. In the event of non-compliance, the
Contractor shall, or, if applicable, shall cause the Subcontractor to
(i) cure such non-compliance or use its best efforts to cause the
relevant subcontractor to cure, such non-compliance, in all cases to
the satisfaction of the Principal, and (ii) terminate such
Subcontract, or cause such Subcontractor to terminate the relevant
subcontract, unless such non-compliance is cured to the satisfaction
of the Principal within ninety (90) days after such notice, or notice
from the Principal to the Subcontractor, whichever first occurs.
Notwithstanding the foregoing, neither the Contractor nor its
Subcontractors (or their subcontractors) shall be responsible for
non-compliance with the Worker Rights Requirements resulting from
actions of a government.
35. Payment Claims Once monthly
(Clause 46)
36. Times for Payment Claims To be submitted on the last day of each month
(Clause 46.2)
37. Interest rate on Overdue payments 3 month London Interbank Offered Rate(LIBOR)
(Clause 46.10)
38. Time for Principal to rectify Inadequate 14 days
Possession
(Clause 48.7.2(b))
39. Arbitration
(Clause 52.3)
(a) Place of Arbitration Brisbane, Queensland
(b) Language of Arbitration English
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PNG REFINERY PROJECT -
CONSTRUCTION - CONDITIONS OF
CONTRACT SCHEDULE AND
ANNEXURES ANNEXURE 1 SUBCONTRACTOR'S CONSENT DEED & DEED OF NOVATION
SUBCONTRACTOR'S CONSENT DEED
This DEED is made on the day of 2002
BETWEEN
1. INTEROIL LIMITED incorporated in the Independent State of Papua New
Guinea of Level 6, Defens Haus, cnr Champion Parade & Hunter Street,
Port Moresby, Papua New Guinea (with its successors and permitted
assigns) ("the PRINCIPAL");
2. CLOUGH NIUGINI LIMITED incorporated in the Independent State of Papua
New Guinea of C/- PricewaterhouseCoopers, Credit House, Cuthbertson
Street, Port Moresby, Papua New Guinea (with its successors and
permitted assigns) ("the CONTRACTOR");
3. INSERT NAME OF SUBCONTRACTOR
A C N INSERT ACN
of ....................................................... ............
................................(with successors and permitted assigns)
(the SUBCONTRACTOR); and
4. OVERSEAS PRIVATE INVESTMENT CORPORATION, an agency of the United States
of America, of 1100 New York Avenue, N.W., Washington, D.C 20527,
U.S.A. (with its successors and permitted assigns) ("the LENDER").
RECITALS
A The Contractor has entered into the Design and Construction Contract
with the Principal to carry out the Works.
B The Subcontractor has been engaged by the Contractor pursuant to the
Subcontract to carry out the Subcontract Work
C The parties have agreed to enter into this Deed for their mutual
benefit.
IT IS AGREED AS FOLLOWS.
2. DEFINITIONS AND INTERPRETATION
2.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
DEED means this Deed.
DESIGN AND CONSTRUCTION CONTRACT means the agreement dated 15 February
2002 between the Principal and the Contractor.
NOVATION NOTICE means a notice given under Clause 3.1, which requires
the Subcontractor to perform the Subcontract in favour of the Incoming
Contractor.
SUBCONTRACT means the agreement dated 15 February 2002 between the
Contractor and the Subcontractor.
SUBCONTRACT WORK means all the obligations and all the work, which is
to be carried out by the Subcontractor under the Subcontract.
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SUBCONTRACTOR'S CONSENT DEED
2.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules apply unless the context requires otherwise.
(a) The singular includes the plural and the converse.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms
have a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) Unless stated otherwise, a reference to a clause or schedule
is a reference to a clause of, or schedule to, this Deed.
(f) Reference to a party to this deed or another agreement or
document includes the party's successors and permitted
substitutes or assigns.
(g) A reference to legislation or to a provision of legislation
includes a modification or re-enactment of it, a legislative
provision substituted for it and a regulation or statutory
instrument issued under it
(h) A reference to writing includes a facsimile transmission and
any means of reproducing words in a tangible and permanently
visible form.
(i) A reference to conduct includes an omission, statement or
undertaking, whether or not in writing.
(j) Mentioning anything after include, includes or including does
not limit what else might be included.
3. SUSPENSION AND TERMINATION
The Subcontractor undertakes not to exercise at any time prior to the
novation of the Subcontract, any right under or arising out of the
Subcontractor's employment under the Subcontract to suspend or
terminate the Subcontract Work or the Subcontract or to release itself
or the Contractor from any or all of their respective obligations under
the Subcontract ("Right to Terminate or Suspend"), unless:
(a) it has given, to the Principal and the Contractor, a written
notice fully specifying the circumstances and each and every
ground (of which it is aware) upon which the Right to
Terminate or Suspend has accrued to the Subcontractor, and
specifically states any terms of the Subcontract which give
rise to or underlie that right ("Notice of Right"); and
(b) the Principal has not given the Subcontractor a Novation
Notice within 30 days of receipt of the Notice of Right.
4. NOVATION
4.1.1 If the Principal:
(a) exercises its rights under Clauses 48 of the Design and
Construction Contract ; or
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SUBCONTRACTOR'S CONSENT DEED
(c) receives a Notice of Right,
then the Principal shall, within 30 days, give to the Subcontractor and
the Contractor, written notice stating whether or not the Principal or
other person appointed by the Principal ("Incoming Contractor")
requires the Subcontractor to perform the Subcontract in favour of the
Incoming Contractor, rather than in favour of the Contractor.
4.1.2 Provided that the Incoming Contractor undertakes to pay all unpaid
moneys due under the Subcontract, upon receipt of the Novation Notice,
the Subcontract shall be novated so that the Incoming Contractor shall
take the place of the Contractor under the Subcontract as though the
Incoming Contractor had always been party to the Subcontract instead of
the Contractor.
4.1.3 The Subcontractor undertakes to release the Principal from all suits,
actions, demands and claims for costs (except for the unpaid moneys due
under the Subcontract referred to in Clause 4.1.2), expenses, damages
and losses (including consequential loss) arising out of or incidental
to the Subcontract and any work which may have been performed by the
Subcontractor under the Subcontract with the Contractor prior to the
novation.
4.1.4 The Contractor undertakes to indemnify the Principal for the moneys
payable under Clause 4.1.2.
5. NOTICES
A notice given:
(a) personally will be served on delivery;
(b) by post will be served seven days after posting;
(c) by facsimile transmission will be served on receipt of a
transmission report by the machine from which the facsimile
was sent indicating that the facsimile had been sent in its
entirety to the facsimile number specified in this Deed or
such other number as may have been notified by the receiving
party. If the facsimile has not been completely transmitted by
5.00 pm (determined by reference to the time of day at the
recipient's address) it will be deemed to have been served on
the next day.
2. ENTIRE AGREEMENT
This Deed contains the entire agreement of the parties with respect to
its subject matter. It sets out the only conduct relied on by the
parties and supersedes all earlier conduct by the parties with respect
to its subject matter.
3. AMENDMENT
This Deed may be amended only with the express written consent of the
Lender and by another deed executed by all parties who may be affected
by the amendment.
4. NO WAIVER
No failure to exercise and no delay in exercising any right, power or
remedy under this Deed will operate as a waiver. Nor will any single or
partial exercise of any right, power or remedy preclude any other or
future exercise of that or any other right, power or remedy.
5. STAMP DUTY
The Principal shall bear any stamp duty chargeable on this Deed and on
any instruments executed under this Deed.
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ANNEXURES
6. GOVERNING LAW
The laws of Queensland govern this Deed. The parties submit to the
non-exclusive jurisdiction of courts exercising jurisdiction there.
7. COUNTERPARTS
This Deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
EXECUTED AS A DEED
Sign Sealed and Delivered on behalf of INTEROIL )
LIMITED by its duly authorised signatories: )
)
....................................................... ) .....................
Director ) Director/Secretary
)
....................................................... ) .....................
Name of Director - please print ) Name of Director/
) Secretary - please
) print
Sign Sealed and Delivered on behalf of CLOUGH )
NIUGINI LIMITED by its duly authorised signatories: )
)
....................................................... ) .....................
Director ) Director/Secretary
)
....................................................... ) .....................
Name of Director - please print ) Name of Director/
) Secretary - please
) print
Sign Sealed and Delivered by )
INSERT NAME OF SUBCONTRACT or ACN INSERT ACN by )
its attorney: )
)
....................................................... ) .....................
Name of Attorney - please print ) Signature of Attorney
)
under power of the attorney number................... )
who certifies that at the time of execution of this )
instrument he/she has no notice of the revocation of the )
power of attorney in the presence of: )
)
....................................................... )
Signature of Witness
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ANNEXURES
Signature of Witness )
)
Name of Witness - please print )
)
of................................................... )
...................................................... )
Address of Witness )
Sign Sealed and Delivered by OVERSEAS PRIVATE )
INVESTMENT CORPORATION by )
its attorney: )
)
....................................................... ) .....................
Name of Attorney - please print ) Signature of Attorney
)
under power of the attorney number ................... )
who certifies that at the time of execution of this )
instrument he/she has no notice of the revocation of the )
power of attorney in the presence of: )
)
....................................................... )
Signature of Witness )
)
....................................................... )
Name of Witness - please print )
)
of.................................................... )
...................................................... )
Address of Witness )
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CONTRACT SCHEDULE AND ANNEXURES DEED & DEED OF NOVATION
- --------------------------------------------------------------------------------
SUBCONTRACTOR'S DEED OF NOVATION
This Deed made the ...................... day of ....................... 2002
Between:
1. INTEROIL LIMITED, incorporated in the Independent State of Papua New
Guinea of Level 6 Defens Haus, cnr Champion Parade & Hunter Street, Port
Moresby, Papua New Guinea (with its successors and permitted assigns)
("the PRINCIPAL");
2. CLOUGH NIUGINI LIMITED incorporated in the Independent State of Papua New
Guinea of C/- PricewaterhouseCoopers, Credit House, Cuthbertson Street,
Port Moresby, Papua New Guinea (with its successors and permitted assigns)
("the CONTRACTOR");
3. INSERT NAME OF SUBCONTRACTOR A C N INSERT ACN of ............. (with
successors and permitted assigns) (the SUBCONTRACTOR); and
4. INSERT NAME OF INCOMING CONTRACTOR INSERT ACN of
............................... (with successors and permitted assigns)
("the INCOMING CONTRACTOR");
Witnesses that
1. Upon receipt by the subcontractor of the sum certified by the Principal's
Representative as owing under the prior contract prescribed in the
Schedule hereto:
(a) the prior contract shall be discharged;
(b) the subcontractor shall release the Contractor from the further
performance of the prior contract and from all claims and demands in
connection with the prior contract;
(c) the Incoming Contractor shall punctually perform the obligations of
the Contractor under the prior contract as far as they are not
performed. The Incoming Contractor acknowledges itself bound by the
provisions of the prior contract as if the Incoming Contractor had
been named in the prior contract; and
(d) the subcontractor shall punctually perform like obligations and be
bound to the Incoming Contractor as if the provisions of the prior
contract were incorporated herein.
2. The Principal and subcontractor each warrant to the Incoming
Contractor that:
(a) subcontract work carried out to the date hereof is in accordance
with the provisions of the prior contract; and
(b) all claims and demands in connection with the prior contract have
been made to the Contractor.
3. The Principal and subcontractor each indemnifies the Incoming Contractor
from all claims and demands of the Contractor, Principal and subcontractor
in connection with the prior contract.
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- --------------------------------------------------------------------------------
4. A dispute or difference between:
(a) the Principal and the subcontractor in connection with the
Principal's Representative's certification of the sum owing under
the prior contract; or
(b) the Incoming Contractor and the Subcontractor in connection with
clause 1(c) and 1(d);
shall be resolved pursuant to the provisions of the subcontract between
the Subcontractor and the Contractor which for the purposes of this clause
4 are incorporated herein .
5. This Deed shall be governed by the laws in force in the State or Territory
stated in the provisions of the agreement between the Principal and
Contractor and in the event that no State or Territory is so stated then
in accordance with the law for the time being in force in that State or
Territory in which the project is being carried out.
SCHEDULE
PRIOR CONTRACTS
.....................................................................
.....................................................................
.....................................................................
.....................................................................
.....................................................................
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- --------------------------------------------------------------------------------
EXECUTED AS A DEED
Sign Sealed and Delivered on )
behalf of INTEROIL LIMITED by )
its duly authorised )
signatories: )
)
....................................... ) .....................................
Director ) Director/Secretary
)
....................................... ) .....................................
Name of Director - please print ) Name of Director/Secretary - please
) print
Sign Sealed and Delivered on )
behalf of CLOUGH NIUGINI )
LIMITED by its duly authorised )
signatories: )
....................................... ) .....................................
Director Director/Secretary
....................................... ) .....................................
Name of Director - please print Name of Director/Secretary - please
print
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CONTRACT SCHEDULE AND ANNEXURES & Deed of NOVATION
SUBCONTRACTOR'S DEED OF NOVATION
Sign Sealed and Delivered by )
INSERT NAME OF SUBCONTRACTOR ACN INSERT )
ACN INSERT ACN by its attorney: )
.................................... ) .....................
Name of Attorney - please print ) Signature of Attorney
)
under power of the attorney number ..................... )
who certifies that at the time of execution of this )
instrument he/she has no notice of the revocation of the )
power of attorney in the presence of: )
)
......................................................... )
Signature of Witness )
)
......................................................... )
Name of Witness - please print )
)
Of...................................................... )
......................................................... )
Address of Witness
)
Sign Sealed and Delivered by )
INSERT NAME OF INCOMING CONTRACTOR ACN )
INSERT ACN by its attorney: )
)
......................................................... ) .....................
Name of Attorney - please print ) Signature of Attorney
)
under power of the attorney number ..................... )
who certifies that at the time of execution of this )
instrument he/she has no notice of the revocation of the )
power of attorney in the presence of: )
)
......................................................... )
Signature of Witness )
)
......................................................... )
Name of Witness - please print )
Of...................................................... )
......................................................... )
Address of Witness
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CONSTRUCTION - CONDITIONS OF
CONTRACT SCHEDULE AND ANNEXURES ANNEXURE 2 APPROVED FORM OF UNDERTAKING
Contract for: CONSTRUCTION OF OIL REFINERY, NAPA NAPA, PAPUA NEW GUINEA (PNG
REFINERY PROJECT) ("CONTRACT")
At the request of CLOUGH NIUGINI LIMITED incorporated in the Independent State
of Papua New Guinea of C/- PricewaterhouseCoopers, Credit House, Cuthbertson
Street, Port Moresby, Papua New Guinea ("Contractor")
and in consideration of INTEROIL LIMITED incorporated in the Independent State
of Papua New Guinea of Level 6 Defens Haus, cnr Champion Parade & Hunter Street,
Port Moresby, Papua New Guinea ("Principal") accepting this undertaking in
respect of the Contract,
Insert name of financial institution ACN Insert ACN Insert (the "Financial
Institution") unconditionally undertakes to pay on demand any sum or sums which
may from time to time be demanded by the Principal to a maximum aggregate sum
of..............................................................................
.................................................................................
Insert amount of Security.
This undertaking is to continue:
1 until notification has been received from the Principal that the sum is no
longer required by the Principal; or
2. until this undertaking is returned to the Financial Institution; or
3. until payment to the Principal by the Financial Institution of the whole
of the sum.
Should the financial Institution be notified in writing, purporting to be signed
by INSERT NAME OF PERSON OF SIGN REQUEST FOR PAYMENT UNDER THIS GUARANTEE HERE
for and on behalf of the Principal that the Principal desires payment to be made
of the whole or any part or parts of the sum, it is unconditionally agreed that
the Financial Institution will make payment or payments to the Principal
forthwith without reference to the Contractor and notwithstanding any notice
given by the Contractor not to pay same.
Provided always that the financial Institution may at any time without being
required so to do pay to the Principal the amount of
.............................................................................
.......................................................INSERT AMOUNT OF SECURITY
less any amount or amounts it may previously have paid under this undertaking or
such lesser sum may be required and specified by the Principal and thereupon the
liability of the Financial Institution hereunder shall immediately cease.
DATED at ................................ day of ................... 200 ....
SIGNED for and on behalf of .................. (Financial Institution) ........
................................................................................
By its Attorney(s) .............................................................
......................................................................... (Names)
Pursuant to Power of Attorney No ................... }
who hereby warrant that he has/they have not received }
notification of revocation of his/their appointment. }.................Attorney
in the presence of - .................................}..................Witness
Branch of Issue: ..........................Telephone: .........................
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CONTRACT SCHEDULE AND
ANNEXURES ANNEXURE 3 DEED OF GUARANTEE, UNDERTAKING
AND SUBSTITUTION
THIS DEED is made on the...............day of..........................2002
PARTIES:
1. CLOUGH LIMITED (ABN 59 008 678 813)
of Level 6 251 St Georges Terrace Perth, Western Australia, and
("GUARANTOR").
2. CLOUGH NIUGINI LIMITED
c/o PricewaterhouseCoopers, Credit House, Cuthbertson Street, Port
Moresby, Papua New Guinea, a subsidiary of Clough Engineering Limited
("CONTRACTOR")
3. INTEROIL LIMITED
of Level 6 Defens Haus, cnr Champion Parade & Hunter Street, Port Moresby,
Papua New Guinea (with its successors and permitted assigns) ("THE
PRINCIPAL").
BACKGROUND:
A. The Principal has entered into the Contract for the execution and
performance by the Contractor of the work under the Contract relating to
the engineering, procurement and construction of an oil refinery at Napa
Napa, Port Moresby Harbour, Papua New Guinea.
B. Under the Contract, the Contractor must procure that the Guarantor
provides to the Principal a deed of guarantee, undertaking and
substitution in the form of this Deed.
C. The Guarantor has fully informed itself of the obligations and liabilities
of the Contractor under the Contract and is prepared to give and execute
the guarantee, undertaking and agreements contained in this Agreement.
D. The consideration for the Guarantor entering into this Deed is the
Principal awarding the Contract to the Contractor. The Guarantor
acknowledges that the Principal awarded the Contract to the Contractor on
the basis that the Guarantor would enter into this Deed. The Guarantor
admits good consideration flows to it from the Principal for its execution
of this Deed.
OPERATIVE PROVISIONS:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed unless the context otherwise requires:
CONTRACT means the contract mentioned in paragraph A of the Background;
WORKS and WORK UNDER THE CONTRACT means the Works and work under the
Contract respectively referred to in the Contract;
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1.2 INTERPRETATION
In this Deed unless the context otherwise requires:
(a) Reference to a person includes any other entity recognised by
law vice versa;
(b) Words importing the singular include the plural and vice
versa;
(c) Words importing one gender include every gender;
(d) Any reference to any parties by their defined terms includes
that party's executors, administrators, or permitted assigns
or being a company, its successors or permitted assigns;
(e) Every agreement or undertaking expressed or implied by which
more than one person agrees or undertakes any obligation or
derives any benefit binds or enures for the benefit of those
persons jointly and each of them severally;
(f) Clause headings are for reference purposes only;
(g) Reference to a statute includes all regulations under and
amendments to that statute any statute passed in substitution
for that statute or incorporating any of its provisions to the
extent that they are incorporated.
2. GUARANTEE BY GUARANTOR
2.1 PERFORMANCE OF OBLIGATIONS
(a) The Guarantor guarantees to the Principal the due and punctual
performance by the Contractor of the obligations on the part
of the Contractor to be performed under the Contract or in
respect of the Works.
(b) At any time and from time to time while the Contractor is in
default under any provision of the Contract the Principal may,
after giving 7 days notice to the Contractor, by written
demand require the Guarantor to remedy the default.
(c) The Guarantor must:
(i) if the default is capable of being remedied within 10
days, remedy the default within that period;
(ii) if the default is not capable of being remedied
within 10 days, take all reasonable steps to commence
the remedy of the default within that period and
shall continue thereafter to promptly remedy the
default to the reasonable satisfaction of the
Principal.
(d) If the Guarantor is required to carry out all or part of the
Works to remedy the default it must, at its option, either:
(i) if it holds all requisite licences, itself carry out
the Works in accordance with the Contract; or
(ii) procure a contractor satisfactory to the Principal to
carry out the Works in accordance with the Contract.
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(c) The Guarantor is entitled to rely on any defence available to
the Contractor; and the parties agree that nothing in this
Deed is intended to make the Guarantor's liability to the
Principal more extensive than the Contractor's liability under
the Contract.
(d) The rights of the Principal under this Deed may be exercised
either separately or together and from time to time with any
other rights held by the Principal (whether under this Deed,
the Contract or otherwise).
(e) The parties agree that nothing in this Deed will cause an
increase to the Principal's liability under the Contract.
2.2 PAYMENT OF MONEY
Subject to clause 2.1, the Guarantor must, from time to time, pay to
the Principal on demand any sum which is payable by the Contractor to
the Principal under or in respect of the Contract whether or not
arising by way of damages (liquidated or unliquidated), debt
restitution or otherwise.
3. INDEMNITY BY GUARANTOR
3.1 INDEMNITY AGAINST LOSS ETC.
Subject to clause 2.1(e), the Guarantor indemnifies the Principal and
agrees to keep the Principal indemnified against all loss damage costs
and expenses suffered or incurred by the Principal as a result of any
failure by the Contractor to perform any of its obligations under the
Contract or in respect of the work under the Contract or as a result of
any breach of any of the terms covenants and conditions contained in or
implied by the Contract or as a result of any failure by the Guarantor
to performs any of its obligations under this Deed.
3.2 BASIS OF INDEMNITY
The indemnity in clause 3.1 applies whether or not:
(a) the Contract or any transaction relating to the Contract was
void or illegal or has been subsequently avoided; or
(b) any matter or fact relating to that transaction was or ought
to have been within the knowledge of the Principal.
4. CONTINUING GUARANTEE AND INDEMNITY
This Deed is continuing guarantee and indemnity (it being the intent of
the Guarantor that the guarantee and indemnity will be absolute and
unconditional in all circumstances) and is irrevocable and will remain
in full force and effect until the obligations of the Contractor under
the Contract have been fully satisfied, even if the Contract has been
terminated.
5. NO DISCHARGE
This Deed will not be considered as wholly or partially discharged by:
(a) the payment at any time of any money on account or by any
time, credit, indulgence, or concession extended by the
Principal to the Contractor, the Guarantor or any other
person; or
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(b) any compounding compromise, release, abandonment, waiver,
variation, relinquishment, or renewal of any rights of the
Principal against the Contractor or the Guarantor or any other
person; or
(c) the delay, neglect or omission of the Principal to enforce any
rights against the Contractor or the Guarantor; or
(d) all or any part of any document or agreement held by the
Principal at any time or of any right, obligation, power or
remedy changing, ceasing or being transferred (this includes
amendment, variation, novation, replacement, rescission,
invalidity, extinguishment, repudiation, avoidance,
unenforceability, frustration, failure, expiry, termination,
loss, release, discharge, abandonment or assignment)
(e) winding up or bankruptcy of any party to the Contract; or
(f) disclaimer of the Contract by a liquidator or any one else; or
(g) the Contractor completing the Works; or
(f) any other dealing, matter or thing or by any alteration,
modification, variation, or addition to the Contract.
Without limitation, this Guarantee will not be discharged, modified or
abrogated by any variation to the Works agreed between the Contractor
and the Principal, even if the Guarantor is not aware of or does not
consent to that variation.
6. NO SUBSTITUTION OF RIGHTS
6.1 PRINCIPAL OBLIGATION
This Deed is a principal obligation of the Guarantor and will not be
treated as ancillary or collateral to any other obligation to the
intent that this Guarantee is enforceable although the Contract or any
other obligation arising between the Principal and the Contractor or
any other person becomes in whole or part unenforceable for any reason.
6.2 RIGHT TO ENFORCE AGAINST GUARANTOR FIRST
This Deed is in addition to and not in substitution for any other
rights which the Principal may have under or because of the Contract
and, subject to clause 2.1, may be enforced against the Guarantor
without first having recourse to any of those rights and without taking
any steps or proceedings against the Contractor.
6.3 NO AFFECT ON SECURITY
This Deed does not prejudicially affect and is not prejudicially
affected by any other security or guarantee or indemnity at any time
held by the Principal but that other security is deemed to be
collateral and the Guarantor may not as against the Principal in any
way claim the benefit or seek the transfer of any security or any part
of that security.
6.4 CONTRACTOR'S LIABILITY UNDER CONTRACT
If for any reason the Contractor ceases to be bound by any of the terms
and conditions of the Contract or the obligations of the Contractor
under the Contract are affected or modified other than by the
Contractor's performance of them or by express written agreement or if
the Contract is or becomes void or voidable then the Guarantor on a
full indemnity basis must pay to the Principal an amount equal to the
total direct loss or damage incurred by the Principal as a result.
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The obligations of the Guarantor under this paragraph are original and
independent and are in addition to the Principal's other rights. If a
liquidator or anybody else on behalf of the Contractor disclaims the
Contract, or if for any other reason the Contract is not enforceable in
full against the Contractor, the Guarantor (or any one of them
nominated by the Principal) must promptly after demand by the Principal
enter into a contract on the same terms as the Contract (amended as
required by the effluxion of time) for the completion of the Works.
7. BANKRUPTCY OF CONTRACTOR
7.1 ASSIGNMENT OF RIGHTS BY GUARANTOR
If the Contractor becomes bankrupt or enters into any scheme of
arrangement in favour of creditors or, being a company enters into
liquidation, the Guarantor assigns to the Principal the whole of its
right to claim, if any, against the official receiver or liquidator so
that the Principal will be entitled to receive the whole of that
entitlement in reduction of the amount due under the Guarantee.
7.2 NO COMPETITION BY GUARANTOR
Unless and until the Works are completed in accordance with the
Contract and the Principal has received all money due under the
Contract, the Guarantor may not claim any subrogation against the
Contractor, the Principal or the Lender without the prior written
consent of the Principal.
7.3 RIGHTS OF SUBROGATION
After the Works are completed in accordance with the Contract and the
Final Payment (if any) has been paid in full, the Guarantor will not
exercise any right of subrogation or any other right which might
require the Principal to repay any money received by the Principal.
8. ADMINISTRATIVE PROVISIONS
8.1 NOTICES
(a) Any notice, approval, request, demand or other communication
(notice) to be given for the purposes of this Deed must be in
writing and must be:
(i) served personally; or
(ii) sent by ordinary or certified mail (airmail if
overseas) to the address of the party specified in
this Deed ( or such other address as that party
notifies in writing); or
(iii) sent by facsimile transmission to the facsimile
number of that party specified in this Deed, (or such
other facsimile number as that party notifies in
writing).
(b) A notice given:
(i) personally will be served on delivery;
(ii) by post will be served seven days after posting;
(iii) by facsimile transmission will be served on receipt
of a transmission report by the machine from which
the facsimile was sent indicating that the facsimile
had been sent in its entirety to the facsimile number
specified in this Deed or such other number as may
have been notified by the receiving party. If the
facsimile has not been completely transmitted by 5.00
pm (determined by reference to the time of
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CONTRACT SCHEDULE AND ANNEXURES AND SUBSTITUTION
day at the recipient's address) it will be deemed to
have been served on the next day.
8.2 STAMP DUTY AND COSTS
8.2.1 The Principal must pay all stamp duty on or arising in connection with
this Deed and any other related documentation.
8.2.2 Each party must bear its own legal and other costs and expenses arising
directly or indirectly with respect to the preparation, execution,
completion and performance of this Deed or any related documentation.
8.3 GOVERNING LAW
This Deed will be governed by the laws of Queensland. The parties
submit to the non-exclusive jurisdiction of the courts of Queensland.
8.4 SEVERABILITY
If any part of this Deed is or becomes illegal, invalid or
unenforceable in any relevant jurisdiction, the legality, validity or
enforceability of the remainder of the Deed will not be affected and
this Deed will be read as if the part had been deleted in that
jurisdiction only.
8.5 MERGER
The obligations contained in this Deed will continue until satisfied in
full.
8.6 EXECUTION BY COUNTERPARTS
This Deed may consist of one or more counterpart copies and all
counterparts will, when taken together, constitute the one document.
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EXECUTED AS A DEED
Signed Sealed and Delivered on behalf )
of CLOUGH LIMITED ABN )59 008 678 813 )
by its duly authorised signatories: )
)
_____________________________________ ) ______________________________________
Director ) Director/Secretary
)
_____________________________________ ) ______________________________________
Name of Director - please print ) Name of Director/Secretary -
) please print
Signed Sealed and Delivered on )
behalf of CLOUGH NIUGINI LIMITED by )
its duly authorised signatories: )
)
_____________________________________ ) ______________________________________
Director ) Director/Secretary
)
_____________________________________ ) ______________________________________
Name of Director - please print ) Name of Director/Secretary - please
) print
Signed Sealed and Delivered on )
behalf of INTEROIL LIMITED by its )
duly authorised signatory in the )
presence of: )
)
_____________________________________ ) ______________________________________
Witness ) Authorised Signatory
)
_____________________________________ ) ______________________________________
Name and address of Witness ) Name of Signatory - please print
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PNG REFINERY PROJECT -
CONSTRUCTION - CONDITIONS OF
CONTRACT SCHEDULE AND ANNEXURES ANNEXURE 4 TERMS OF INSURANCE
1. PUBLIC LIABILITY INSURANCE
Refer to the attached Foreign Commercial General Liability policy dated
30 August 2000 with limits of $2,000,000 per occurrence and in the
aggregate.
The parties agree to review the definitions and usages of the terms
"insured" and "named insured" as used in this policy and seek
amendments thereto to the their mutual satisfaction.
2. MARINE LIABILITY
Marine liability insurance for the Insured's liability arising out of
claims for bodily injury or property damage arising out of any vessel
or barge owned, rented or chartered by an Insured with a minimum
$25,000,000 limit per occurrence. This insurance shall be extended or
endorsed to cover liabilities arising out of specialist construction
activities or operations related to the work under the Contract.
3. MARINE TERMINAL OPERATOR'S LIABILITY
Coverage for the Insured's liability arising out of claims for bodily
injury or property damage including physical damage to vessels,
property of others or cargo during docking/undocking, loading/unloading
or while in the custody of the Insured with a minimum limit of
$25,000,000 per occurrence. A maximum deductible or self-insured
retention of $250,000 per occurrence shall be allowed.
4. ENVIRONMENTAL IMPAIRMENT LIABILITY
Environmental Impairment Liability insurance for the Insured's
liability arising out of the release of pollutants that cause
environmental damage or bodily injury or property damage to third
parties and first party clean-up expenses with a minimum limit of
$50,000,000. A maximum deductible or self-insured retention of
$1,000,000 per claim shall be allowed. The Principal shall not be
required to obtain such insurance earlier than the sixtieth (60th) day
prior to the date crude oil is first introduced into the Project.
5. UMBRELLA LIABILITY INSURANCE
Refer to the attached Commercial Umbrella liability policy dated 31
August 2000 with per occurrence and general aggregate limits of
$25,000,000.
Notwithstanding the terms of clause 22.1.1 of the Contract, the
Principal shall, within 60 days after the Notice to Proceed is issued,
acquire an umbrella liability insurance policy with terms no less
beneficial than those available in the Australian insurance market,
which will be taken out on a full occurrence basis, and shall maintain
such insurance while ever the Contractor and each other insured party
has an insurable interest under the Contract, but in no event less than
for a period of 5 years following the issue of the Final Certificate in
respect of products and completed operations liabilities coverage. Such
policy shall replace the attached Commercial Umbrella liability policy,
and if the Principal should fail to provide proof of the replacement
insurance within the 60 day period the Contractor may proceed in
accordance with clause 25.2 of the Contract.
The policy shall be for a minimum of $25,000,000 for each and every
occurrence and only limited in the aggregate in respect of product and
completed operations liabilities with a self-insured retention not
greater than $50,000 for each and every occurrence. This policy shall
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also provide difference in conditions coverage and for amounts in
excess of the self-insured retention.
Co-insureds under this policy must include the following parties:
1) InterOil Corporation, EP InterOil, Ltd, InterOil Limited;
2) Overseas Private Investment Corporation;
3) Clough Limited, Clough Engineering Ltd, Clough Niugini Limited;
4) each of the subsidiaries of each of the above;
5) each of the Subcontractors of each of the above; and
6) each of the agents, employees and directors of each of the above.
The policy will include:
1) a cross liability clause;
2) full waiver of subrogation;
3) blanket contractual liabilities;
4) a "worker to worker" clause;
5) motor vehicle "gap" cover;
6) world wide cover specifically including USA and Canada jurisdictions
for claims;
7) any professional indemniyty exclusion not to apply to personal
injury or property damage or liability arising from the Insureds' Site
first-aid staff; and
8) a condition clearly stating that this insurance is primary and no
other insurance shall be called upon to contribute.
The Policy shall be in excess of the following underlying policies:
Underlying Policy Level of Cover
- ----------------- --------------
1) Foreign General Liability Insurance or $2 million each and every occurrence and in the
equivalent aggregate
2) PNG Employer's Liability Insurance Kina 5 million each and every occurrence
3) Extra-territorial Workers Compensation Cover A$ 1 million each and every occurrence
4) Motor Vehicle Third Party Liability Insurance Kina 5 million limit per occurrence
5) Marine Liability Insurance US$ 25 million each and every occurrence
6) Marine Terminal Operator's Liability US$ 25 million each and every occurrence
Insurance
6. CONTRACTORS' ALL RISKS
Refer to the attached Contractor's All Risk (Collective) Policy dated 1
December 2001 # issued by American Home Assurance Company, Port
Moresby, Papua New Guinea.
The parties agree that the Principal will use its best endeavours to
secure the following amendments to the Contractor's All Risk policy
document. If the Principal is unable to secure the majority of these
amendments within 60 days after the Notice to proceed is issued, the
Contractor may arrange a suitable difference in conditions (DIC) policy
on commercial terms acceptable to the Principal, and the Principal will
reimburse the Contractor its costs in acquiring and maintaining such
DIC policy.
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POLICY REFERENCE COMMENT
Page 1 The final paragraph (after 2) should be indented
so that it lines up as part of General Exclusion
2; in addition, the reference to "Exclusion
General Exclusions a)should be amended to read "Exclusion 2) a)"."
Page 3 The word "immediately" should be replaced with "as
soon as practicable".
General Conditions
4 b and 5 a)
Page 3 14 days should be amended to 30 days.
General Condition 5
Page 3 The final paragraph of General Condition 5 should
be deleted.
General Condition 5
Page 4 Insert the word "First" in front of the words
"Named Insureds" on line 3, which would then be
amended to "Named Insured".
General Condition
10
Page 4 The words "Insured Business" should be amended to
"insured business".
General Condition
11 b)
Page 5 The word "financial" should be inserted between
"consequential" and "loss" on the 1st line.
Special Exclusion b)
Page 5 In order of priority:
(a) The exclusion should be amended to provide for
Design Exclusion 5;
Special Exclusion c) (b) failing that it should provide for Design
Exclusion 4; and
(c) failing all of the above, the word "portion"
in the 2nd paragraph should be amended to
"fragment".
Page 5 The references to "files" and "drawings" should be
deleted.
Special Exclusion g)
Page 6 The last paragraph should be deleted entirely.
Provisions applying
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to Section 1 - Memo
1 - Sums Insured
Page 7 The Extended Maintenance Period should be amended
from a specific period to 12 months from the Date
for Practical Completion.
Period of Insurance This needs to contemplate that there will be
several different dates as various stages are
completed and must also allow for a further period
of 12 months from the date of rectification of any
latent defect, subject to an overall maximum
period of 24 months - ie if a latent defect is
discovered on the 364th day, a further period of
cover of 12 months will be required from that
date.
Page 9 The values of items 1.2, 2, and 3 are not "NIL",
as these interests are included in the overall sum
insured of US$153m. These items therefore need to
be amended to read "Included in Item 1.1 above".
Sums Insured
Page 9 Item 1.1 should be amended to read "Contract
Price/Limit of Liability".
Sums Insured
Page 9 Marsh are to advise if the sub limits are included
in the overall limit of US$153m - ie the policy
cover is not US$153m PLUS the various sub limits.
Limits of Liability
Page 9 The sub limit for Inland Transit should be
increased from US$1,000,000 to US$1,500,000.
Limits of Liability
Page 9 The sub limit for Offsite Storage and Fabrication
should be increased from US$1,000,000 to
US$1,500,000.
Limits of Liability
Page 9 The percentage limit for Expediting Expenses
should be increased from 20% to 25%.
Limits of Liability
Page 9 The percentage limit for Debris Removal should be
increased from 10% to 25%.
Limits of Liability
Page 9 Marsh are to advise on the meaning of "named
perils" that apply to this cover.
Limits of Liability -
First Party Pollution
Page 9 The sub limit should be stated as "PNG Kina
equivalent of US$5,000,000 any one occurrence", to
be consistent with the sub limit referred to on
Page 14
Limits of Liability
-Temporary
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Removal
Page 9 Marsh are to advise if sub limits can be
accumulated on sub limits
Limits of Liability
Page 16 The sub limit should be stated as "PNG Kina
equivalent of US$5,000,000 any one occurrence", to
be consistent with the sub limit summarised on
Page 9.
Professional Fees
Page 16 The limit under this clause should be increased to
the "PNG Kina equivalent of US$100,000".
Plans and Documents
Page 17 This provision should be completed as follows:
Lenders Loss "All claims payments for loss or damage to the
Payee Clause InterOil Refinery Construction Project shall be
paid solely into the joint account in the names of
InterOil Limited and Clough Niugini Limited held
at Wells Fargo in Lubbock Texas and administered
under and pursuant to the Collateral Account
Agreement between InterOil Limited and Overseas
Private Investment Corporation.
The registered mailing address of the Lender Loss
Payee is:
Overseas Private Investment Corporation 1100 New
York Avenue, N.W. Washington, D.C. 20527
USA
(Attention: Vice President, Finance)
Re: InterOil Refining Project (Papua New Guinea)
(Facsimile: 1 202 408 9866)
A Claim release form signed by Overseas Private
Investment Corporation shall be a complete release
of Insurer's liability in respect of the subject
claim."
Page 18 (a) Under paragraph (vi), the words "always
excepting the First Named Insured" should be added
after the words "...vitiating party as an Insured"
Multiple Insureds at the end of the clause.
Clause
(b) Under paragraph (vii), delete the word "not"
in line 2.
Page 19 Marsh is to advise why the policy is subject to
United Kingdom of Great Britain law practice and
jurisdiction.
Law and Jurisdiction The Insureds would prefer that the policy is
subject to the laws of the
Page 108
State of Queensland and the Commonwealth of
Australia and the jurisdiction of the courts of
the State of Queensland.
Page 19 (a) Marsh is to advise why these clauses have been
included in this policy; and
Special Conditions
Concerning Fire (b) whether they can be deleted.
Fighting Facilities
(c) If the answer to (b) is "No", the opening
paragraph should be modified to read that the
First Named Insured will use their best endeavours
to ensure the following requirements are met.
Page 21 Delete the reference to this clause being a
warranty and rename it "Storage".
Warranty concerning
storage
Page 22 Any additional premium to be paid by the first
named Insured should not exceed the pro rata
premium for the period.
Reinstatement of Sum
Insured Clause
Page 23 Delete the words in bold in the last paragraph.
Automatic Increase
Clause
Page 32 Add Special Condition 6 Waiver of Subrogation, to
bring the policy into line with the contract
conditions.
Special Conditions
applicable to Section II
7. MARINE CARGO AND TRANSIT INSURANCE
Open marine cargo and transit insurance insuring the Insured, as their interests
may appear, on a "warehouse to warehouse" basis including land, air and marine
transit insuring "all risks" of loss or damage on a replacement cost basis plus
freight and insurance from the time the goods are in the process of being loaded
for transit until they are finally delivered to the Site including during
shipment deviation, delay, forced discharge, re-shipment and transshipment. Such
insurance shall include coverage for war, strikes, theft, pilferage,
non-delivery, charges of general average sacrifice or contribution, salvage
expenses, temporary storage in route, consolidation, repackaging, refused and
returned shipments, contain a replacement by air extension clause, 50/50 clause,
unintentional, difference in conditions for C.I.F. shipments, errors and
omissions clause, import duty clause, non-vitiation clause, an English law and
practices plus adjustment and settlement clause, debris removal, contain no
exclusion for inadequate packing or survey warranties and insure for the
replacement value of the largest single shipment plus freight and insurance,
subject to a minimum limit of $15,000,000 per conveyance. A maximum deductible
or self-insured retention of $100,000 per occurrence shall be allowed.
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CONTRACT SCHEDULE AND ANNEXURES ANNEXURE 5 PRO FORMA CONSENT DEED
THE PRO-FORMA CONSENT DEED IS ATTACHED HERETO AND INCLUDED HEREIN.
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PNG REFINERY PROJECT -
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CONTRACT SCHEDULE AND ANNEXURES ANNEXURE 6 PROJECT AGREEMENT
THE PROJECT AGREEMENT IS ATTACHED HERETO AND INCLUDED HEREIN
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PNG REFINERY PROJECT -
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CONTRACT SCHEDULE AND
ANNEXURES ANNEXURE 7 SCHEDULE OF RATES FOR VARIATIONS
THE SCHEDULE OF RATES FOR VARIATIONS IS ATTACHED HERETO AND INCLUDED HEREIN.
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CONTRACT SCHEDULE AND FORM OF SUBCONTRACTOR'S FINAL
ANNEXURES ANNEXURE 8 RELEASE AND STATUTORY DECLARATION
FINAL FORM OF RELEASE
STATUTORY DECLARATION BY SUBCONTRACTOR
(CLAUSE 46.9 - FINAL PAYMENT)
OATHS ACT 1867
QUEENSLAND
TO WIT
I, of...........................................................................
in the State of. . . . . . . . . . . , do solemnly and sincerely declare that,
in relation to the Contract between INTEROIL LIMITED incorporated in the
Independent State of Papua New Guinea of Level 6 Defens Haus, cnr Champion
Parade & Hunter Street, Port Moresby, Papua New Guinea (the "PRINCIPAL") and
CLOUGH NIUGINI LIMITED incorporated in the Independent State of Papua New Guinea
of c/o PricewaterhouseCoopers, Credit House, Cuthbertson Street, Port Moresby,
Papua New Guinea (the "CONTRACTOR"),
for the engineering, design and construction of the stick built refinery, at
Napa Napa, Port Moresby Harbour, Papua New Guinea (the "CONTRACT")
[Name of Subcontractor].........................................................
("Subcontractor") is a subcontractor to the Contractor for part of the Work
under the Contract namely:
1 I hold the position of ...................................................
I am in a position to know the facts contained herein and to bind the
Subcontractor by the terms of this declaration and I am duly authorised by
the Subcontractor to make this decision on its behalf.
2. All amounts due have been paid in full.
3. All the Subcontractor's workers who at any time have been engaged on work
under the Contract by the Subcontractor have been paid in full all moneys
due and payable
4. All subcontractors of the Subcontractor have been paid all that is due and
payable to them in respect of their part of the work under the contract.
AND I MAKE this solemn declaration conscientiously believing the same to be true
and by virtue of the provisions of the Oaths Act 1867.
TAKEN AND DECLARED before me
(name in full)____________________________ ) Signature _______________________
)
) (Signed by Subcontractor)
)
__________________________________________ )
) Signature ________________________
)
) A Justice of the Peace
)
at______________in the State of __________ )
)
this day of __________________________
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OF CONTRACT SCHEDULE AND LEGISLATIVE RESPONSIBILITIES
ANNEXURES ANNEXURE 9 AND PERMITS
PNG REFINERY PROJECT -
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OF CONTRACT SCHEDULE LEGISLATIVE RESPONSIBILITIES
AND ANNEXURES ANNEXURE 9 AND PERMITS
ISSUING RESPONSIBLE DEADLINE
PERMIT NAME STATUS AGENCY MINISTER PARTY TO COMPLETE COMMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
BUILDING ACT Commenced and on-going National Capital PRINCIPAL AND Mechanical Approval required for erection
District CONTRACTOR Completion (MP) of or alterations to buildings
Building Board
- ------------------------------------------------------------------------------------------------------------------------------------
CENTRAL BANKING (FOREIGN Central Bank authority Central Bank Principal Notice to Authority required for foreign
EXCHANGE & GOLD) for Final Financing Proceed (NTP) currency transactions and
REGULATION Plan received accounts, payments and issue of
securities to non-residents,
dispatch of funds out of PNG
- ------------------------------------------------------------------------------------------------------------------------------------
CUSTOMS ACT Commenced and on-going Commissioner of Principal NTP plus 3 License for any warehouse/bond
Customs in the months store (if needed)
Internal Revenue
Commission Principal MP Licenses for import of any
prescribed goods (as may be
required)
- ------------------------------------------------------------------------------------------------------------------------------------
CUSTOMS TARIFF ACT Granted 06/11/1998 Department of Principal NTP Exemptions from import duty on
Finance the importation of the Refinery
- ------------------------------------------------------------------------------------------------------------------------------------
ENVIRONMENTAL PLANNING Approved 01/12/1997 Department of Principal NTP Environmental Plan Approval
ACT & ENVIRONMENTAL Environmental &
CONTAMINANTS ACT Conservation
- ------------------------------------------------------------------------------------------------------------------------------------
ELECTRICITY COMMISSION Order under Section 31 Electricity Principal NTP Authorisation for production of
ACT granted 05/12/2001 Commission electricity for own consumption
- ------------------------------------------------------------------------------------------------------------------------------------
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OF CONTRACT SCHEDULE AND
ANNEXURES ANNEXURE 9 LEGISLATIVE RESPONSIBILITIES
AND PERMITS
ISSUING AGENCY RESPONSIBLE DEADLINE TO
PERMIT NAME STATUS MINISTER PARTY COMPLETE COMMENTS
- ------------------ ---------------------- ------------------- -------------- ----------- --------------------------------
EMPLOYMENT OF Granted to Principal Department of Labour Contractor and MP Approval of training and
NON-CITIZENS & Employment Principal localisation program
ACT
Submitted by
Contractor?
Granted to Principal Contractor and MP Approval to recruit non-citizen
Principal staff
Submitted by Principal Contractor and MP Work Permits for non-citizen
Principal staff
INDUSTRIAL Not Started Department of Labour Principal MP Registration of the Site as a
SAFETY, HEALTH AND & Employment "Factory", being defined as a
WELFARE ACT place where persons are engaged
in a manufacturing process or
generation of power, or a place
otherwise declared to be a
factory under the Act (if
required).
Registration of pressure vessels
HARBOURS BOARD ACT Approval to construct Harbours Board Principal NTP Permit for construction of jetty
causeway and jetty
granted 12/09/2001
EXPLOSIVES ACT Not Started Chief Inspector in Contractor MP Licence to keep, permit to use,
Department of explosives (if applicable during
Labour & Employment construction phase)
INFLAMMABLE Not Started Chief Inspector in Principal MP Licence to keep/store inflammable
LIQUID ACT Department of liquid
Labour & Employment
Principal MP Registration of any premises
where inflammable liquid is to
be kept.
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OF CONTRACT SCHEDULE AND
ANNEXURES ANNEXURE 9 LEGISLATIVE RESPONSIBILITIES AND PERMITS
ISSUING AGENCY RESPONSIBLE
PERMIT NAME STATUS MINISTER PARTY DEADLINE TO COMPLETE COMMENTS
INSURANCE ACT Commenced Insurance Principal NTP Exemption required for any
Commissioner in insurance (other than
Department of Finance re-insurance) of risks in PNG
with an insurer other than a
licensed PNG insurer
LAND ACT Granted 010/1/1998 Department of Lands Principal NTP Leases for Project Land
& Physical Planning
PHYSICAL Outline Planning National Capital Principal & MP Development Planning required
PLANNING ACT Permission granted District Physical Contractor
25/01/2001 Planning Board for
NCD
WATER Granted 6/09/2001 Water Resources Principal NTP Water Investigation Permit
RESOURCES ACT Board
Principal NTP Water Use Permits for use of
water and discharge of waste
into water
NATIONAL CAPITAL Granted NCD Water and Principal NTP Approval for design,
DISTRICT WATER Sewerage Pty Limited construction, maintenance, and
SUPPLY AND operation of water works and
SEWERAGE ACT sewerage systems
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CONTRACT AND ANNEXURES ANNEXURE 10 CONTRACTOR'S PROJECT MANAGEMENT TEAM
Member Functions / Capacity
1 Lambert Brau Project Manager
2 Andrew Gordon Deputy Project Manager
3 D Bridge Safety Manager
4 T Johnson Procurement Manager
5. S Weetman Engineering Manager
6. S Cunningham Commercial Manager
7. T Antoniou Construction Manager
8. M Potts Commissioning Manager
9. E Bergen Subcontract Manager
10. L Knight Site Administrator
11. A Bryceland Construction Superintendent
12. J Stallard Materials Controller
13. N Ballantyne Jetty Superintendent
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CONTRACT AND ANNEXURES ANNEXURE 11 PROJECT SCHEDULE
THE PROJECT SCHEDULE IS ATTACHED HERETO AND INCLUDED HEREIN.
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CONTRACT SCHEDULE AND ANNEXURES ANNEXURE 12 - FORMAL INSTRUMENT OF AGREEMENT
DEED made the day of 2002
BETWEEN
1. INTEROIL LIMITED of Level 6, Defens Haus, cnr Champion Parade and Hunter
Street, Port Moresby,PNG (with its successors and permitted assigns) (the
"PRINCIPAL") and
2. CLOUGH NIUGINI LIMITED c/o PricewaterhouseCoopers, Credit House, Cuthbertson
Street, Port Moresby, Papua New Guinea, a subsidiary of Clough Limited (ABN
59 008 678 813) (the "CONTRACTOR")
RECITALS
Tenders were invited by the Principal for a contract (the "CONTRACT") for the
design, construction, commissioning and defects liability of a stick built oil
refinery at Napa Napa. Port Moresby Harbour, Papua New Guinea (the "WORKS").
The Contractor made a proposal dated 15 February 2002 (the "CONTRACTOR'S
PROPOSAL") to provide the material and perform the work required for the Works
for the sum of US$[deleted for confidentiality] based on the following Contract
Currency Amounts:
[deleted for confidentiality]
The Contractor in lodging the Contractor's Proposal, represented to the
Principal that it had the skill and judgement necessary to construct the Works
and that it had employed and would employ the necessary personnel in that regard
and acknowledges that in entering into this Agreement the Principal has relied
upon these representations.
OPERATIVE PROVISIONS
1. By executing this Agreement the Contractor warrants that each of the
recitals is true and correct and acknowledges that the Principal has
entered into this Agreement in reliance thereon.
2. The Contract between the Principal and the Contractor is evidenced by this
Agreement and the documents listed in clause 3 below.
3. Should there be any discrepancy or inconsistency between the following
documents, which constitute the Contract, the following order of
precedence shall apply to resolve the same:
(a) this Agreement;
(b) the Terms and Conditions of Contract;
(c) the Schedule to the Terms and Conditions of Contract; and
(d) the Annexures to the Terms and Conditions of Contract.
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CONTRACT SCHEDULE AND
ANNEXURES ANNEXURE 12 - FORMAL INSTRUMENT OF AGREEMENT
4. The Contract Sum (as defined in the Terms and Conditions of Contract ) is
US$[deleted for confidentiality] based on the following Contract Currency
Amounts:
[deleted for confidentiality]
5. In consideration of the promises on the part of the Principal in the
Contract the Contractor shall provide the materials and perform the work
under the Contract required to complete the Works in accordance with the
Contract and will otherwise perform, fulfil, comply with, submit to and
observe all provisions of the Contract which are to be performed,
fulfilled, complied with, submitted to or observed by or on the part of
the Contractor.
6. In consideration of the promises on the part of the Contractor in the
Contract the Principal shall make payments to the Contractor in accordance
with the Contract and will otherwise perform, fulfil, comply with, submit
to and observe all provisions of the Contract which are to be performed,
fulfilled, complied with, submitted to and observed by on the part of the
Principal.
7. The Contract shall take effect according to its tenor notwithstanding any
prior contract in conflict with or at variance with it, and any
correspondence or documents relating to the subject matter of the Contract
which may have passed between the parties to the Contract prior to its
execution.
8. If any party to the Contract consists of one or more persons and one or
more corporations the Contract shall bind such person or persons and such
corporation or corporations (as the case may be) and their respective
executors, administrators, successors and permitted assigns jointly and
severally and the persons and corporations included in the term
"Contractor" or the term "Principal" in the Contract shall jointly be
entitled to the benefit of the Contract and the Contract shall be read and
construed accordingly.
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CONTRACT SCHEDULE AND ANNEXURES ANNEXURE 12 - FORMAL INSTRUMENT OF AGREEMENT
EXECUTED AS A DEED
Signed Sealed and Delivered on behalf of )
INTEROIL LIMITED by its duly authorised )
signatory in the presence of: )
.......................................... ) .................................
Witness ) Authorised Signatory
)
)
.......................................... ) .................................
Name and address of Witness ) Name of Signatory - please print
)
Sign Sealed and Delivered on behalf of )
CLOUGH NIUGINI LIMITED by its duly )
authorised signatories: )
)
.......................................... ) .................................
Director ) Director/Secretary
)
.......................................... ) ................................
Name of Director - please print ) Name of Director/Secretary -
) please print
)
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CONTRACT AND ANNEXURES ANNEXURE 13 FORM OF FINAL RELEASE
FORM OF FINAL RELEASE
STATUTORY DECLARATION BY CONTRACTOR
(CLAUSE Error! Reference source not found. - FINAL PAYMENT)
OATHS ACT 1867
QUEENSLAND
TO WIT
I, of...........................................................................
in the State of....................., do solemnly and sincerely declare that,
in relation to the Contract between INTEROIL LIMITED incorporated in the
Independent State of Papua New Guinea of Level 6 Defens Haus, cnr Champion
Parade & Hunter Street, Port Moresby, Papua New Guinea (the "PRINCIPAL") and
CLOUGH NIUGINI LIMITED incorporated in the Independent State of Papua New Guinea
of c/o PricewaterhouseCoopers, Credit House, Cuthbertson Street, Port Moresby,
Papua New Guinea (the "CONTRACTOR"),
for the engineering, design and construction of the stick built refinery, at
Napa Napa, Port Moresby Harbour, Papua New Guinea (the "CONTRACT")
1. I hold the position of ................................................ I
am in a position to know the facts contained herein and to bind the
Contractor by the terms of this declaration and I am duly authorised by
the Contractor to make this decision on its behalf.
2. All amounts due have been paid in full.
3. All the Contractor's and its Subcontractors and the Subcontractors'
workers who at any time have been engaged on work under the Contract by
the Contractor or its Subcontractors have been paid in full all moneys due
and payable
1. All subcontractors of the Subcontractors have been paid all that is due
and payable to them in respect of their part of the work under the
Contract.
AND I MAKE this solemn declaration conscientiously believing the same to be true
and by virtue of the provisions of the Oaths Act 1867.
)
TAKEN AND DECLARED before me
)
(name in full) ............. ) Signature......................................
)
) (Signed by Subcontractor)
)
............. .............. )
)
) Signature......................................
)
at.......the State of....... ) A Justice of the Peace
this day of...........
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CONTRACT AND ANNEXURES ANNEXURE 14 CONTRACTOR'S PLANT HIRE CHARGES
THE SCHEDULE OF THE CONTRACTOR'S PLANT HIRE CHARGES IS ATTACHED HERETO AND
INCLUDED HEREIN.
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CONDITIONS OF CONTRACT
AND ANNEXURES ANNEXURE 15 DEED OF NOVATION - REFURBISHMENT CONTRACTS
This Deed made the ............. day of ................................ 20001
Between:
1. INTEROIL LIMITED, incorporated in the Independent State of Papua New
Guinea of Level 6 Defens Haus, cnr Champion Parade & Hunter Street, Port
Moresby, Papua New Guinea (with its successors and permitted assigns)
("the PRINCIPAL");
2. CLOUGH NIUGINI LIMITED incorporated in the Independent State of Papua New
Guinea of C/- PricewaterhouseCoopers, Credit House, Cuthbertson Street,
Port Moresby, Papua New Guinea (with its successors and permitted assigns)
("the CONTRACTOR"); and
3. [INSERT NAME OF REFURBISHMENT CONTRACTOR] of ............................
....................................... (with successors and permitted
assigns) (the REFURBISHMENT CONTRACTOR)
Witnesses that
1. Upon receipt by the Refurbishment Contractor of the sum certified by the
Principal's Representative as owing under the prior contract prescribed in
the Schedule hereto:
(e) the prior contract shall be discharged;
(f) the Refurbishment Contractor shall release the Principal from the
further performance of the prior contract and from all claims and
demands in connection with the prior contract;
(g) the Contractor shall punctually perform the obligations of the
Principal under the prior contract as far as they are not performed.
The Contractor acknowledges itself bound by the provisions of the
prior contract as if the Contractor had been named in the prior
contract; and
(h) the Refurbishment Contractor shall punctually perform like
obligations and be bound to the Contractor as if the provisions of
the prior contract were incorporated herein.
2. The Principal and Refurbishment Contractor each warrant to the Contractor
that:
(a) refurbishment contract work carried out to the date hereof is in
accordance with the provisions of the prior contract; and
(b) all claims and demands in connection with the prior contract have
been made to the Principal.
3. The Principal and Refurbishment Contractor each indemnifies the Contractor
from all claims and demands of the Principal and Refurbishment Contractor
up to the date hereof in connection with the prior contract.
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CONTRACT AND ANNEXURES ANNEXURE 15 DEED OF NOVATION - REFURBISHMENT CONTRACTS
4. A dispute or difference between:
(a) the Principal and the Refurbishment Contractor in connection with
the Principal's Representative's certification of the sum owing
under the prior contract; or
(b) the Contractor and the Refurbishment Contractor in connection with
clause 1(c) and 1(d),
shall be resolved pursuant to the provisions of the contract between
the Principal and the Refurbishment Contractor which for the purposes
of this clause 4 are incorporated herein.
5. This Deed shall be governed by the laws in force in the State or
Territory stated in the provisions of the agreement between the
Principal and Contractor and in the event that no State or Territory is
so stated then in accordance with the law for the time being in force
in that State or Territory in which the project is being carried out.
SCHEDULE
PRIOR CONTRACTS
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CONTRACT AND ANNEXURES ANNEXURE 15 DEED OF NOVATION - REFURBISHMENT CONTRACTS
EXECUTED AS A DEED
Signed Sealed and Delivered on )
behalf of INTEROIL LIMITED by )
its duly authorised signatories: )
)
- ----------------------------------- ) -----------------------------------
Director ) Director/Secretary
)
- ----------------------------------- ) -----------------------------------
Name of Director - please print ) Name of Director/Secretary - please
) print
Sign Sealed and Delivered on )
behalf of CLOUGH NIUGINI LIMITED by )
its duly authorised signatories: )
)
- ----------------------------------- ) -----------------------------------
Director ) Director/Secretary
)
- ----------------------------------- ) -----------------------------------
Name of Director - please print ) Name of Director/Secretary - please
) print
Sign Sealed and Delivered by )
[REFURBISHMENT CONTRACTOR] by )
its attorney: )
)
- ----------------------------------- ) -----------------------------------
Name of Attorney - please print ) Signature of Attorney
)
under power of the attorney )
number ........ who certifies that )
at the time of execution of this )
instrument he/she has no notice of )
the revocation of the power of )
attorney in the presence of: )
)
- ----------------------------------- )
Signature of Witness )
)
- ----------------------------------- )
Name of Witness - please print )
)
Of................................. )
.................................... )
................ Address of Witness )
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CONTRACT SCHEDULE AND
ANNEXURES ANNEXURE 16 DEFERRED PAYMENT OPTION
SUMMARY TERM SHEET
Deferred Payment Facility
FACILITY TYPE: To provide a deferred payment option (the "OPTION") to
the Principal, if required, prior to completion of the
Contract. The deferred payment will be of an overdraft
nature provided by the Contractor that will enable the
Principal to defer a portion of the Contract Sum not to
exceed $5 million (the "DEFERRED PAYMENT").
USE OF FACILITY: The Facility may only be used to defer payment to the
Contractor on the last $5 million due under the Contract.
BORROWER: InterOil Limited (the "PRINCIPAL")
AMOUNT: $5 million or such lesser amount as determined by the
Principal.
TERM: From the date of deferral to twelve (12) months after
Practical Completion. The date the Option may be exercised
will be no later than 30 days prior to the time when the
Contract reaches a total cash payment of the sum of the
Contract Currency Amounts less $5 million, the actual date
of exercise to be agreed between the parties in advance.
ESTABLISHMENT 0.5% payable if the Option is exercised by the Principal. If
FEE: less than the maximum amount is deferred the Establishment
Fee will be adjusted on a pro-rata basis.
INTEREST RATE: 7.5% per annum on the daily outstanding balance paid in
arrears semi annually on 30 June and 31 December.
RE-PAYMENT: The Deferred Payment will be re-paid to the Contractor in
two semi-annual instalments with the Principal making
monthly deposits to an account controlled by the Overseas
Private Investment Corporation (OPIC) once Practical
Completion has been certified. The payments will be made to
the Contractor at the same time the semi-annual payment is
made to OPIC provided that Practical Completion has been
reached.
DRAWINGS: The Principal may defer such amounts on such dates as are
payable to the Contractor under the Contract. All payments
to the Contractor prior to the last $5 million will be paid
according to the terms of the Contract.
REDUCTION IN Two (2) equal semi annual payments of $2.5 million plus
OUTSTANDING interest will be made following the issuance of the
AMOUNT: Certificate of Practical Completion.
PRE-PAYMENT The Principal may at its sole option elect to repay the
PROVISION: Deferred Payment at any time during the loan term without
any pre-payment premium.
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CONTRACT SCHEDULE AND
ANNEXURES ANNEXURE 16 DEFERRED PAYMENT OPTION
RANKING: The Deferred Payment will rank as senior subordinate debt
being subordinate to all working capital and the OPIC Loan,
but senior to any other debt of the Principal.
SECURITY: i) The Principal will covenant and warrant in the
subordinate loan agreement through a negative pledge not
to incur any other debt ranking in priority or pari
passu with the Deferred Payment other than the working
capital and OPIC Loan.
ii) Cross default provisions will apply between the
Deferred Payment facility and the OPIC Loan. The OPIC
Loan Agreement Clause 8, Events of Default, shall apply
to the Deferred Payment loan.
iii) The Contractor will be granted a fixed and floating
charge over the assets of the Principal, ranking behind
the working capital provider and OPIC.
iv) If required by OPIC, the Contractor will negotiate
in good faith and enter into a Subordination Agreement
and/or Deed of Priority with OPIC in a form acceptable
to OPIC.
APPROVAL: The Principal is responsible for obtaining OPIC approval for
this Deferred Payment facility.
DUE DILIGENCE The Contractor will review the following documents as part
DOCUMENTATION of their due diligence. The Contractor acknowledges that all
of the documents provided are confidential and unless
available in the public market sector must not disclose any
information contained in the listed documents without the
prior written consent of the Principal and OPIC.
a) OPIC Loan Agreement;
b) Collateral Account Agreement;
c) Security Agreement;
d) InterOil Cash Financial Model;
DEFERRED Upon notification by the Principal that it will require the
PAYMENT LOAN Deferred Payment, the parties agree to prepare standard loan
DOCUMENTS: documents incorporating the above provisions. The cost to
prepare the loan documentation and all other fees, duties
and charges relating to such documents will be the
responsibility of the Principal.
NEGOTIATIONS: The Principal and the Contractor agree to negotiate in good
faith with one another to complete the loan documentation.
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CONTRACT SCHEDULE AND
ANNEXURES ANNEXURE 17 PRE-AWARD MEETING MINUTES
THE PRE-AWARD MEETING MINUTES ARE ATTACHED HERETO AND INCLUDED HEREIN.
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CONSTRUCTION - CONDITIONS OF
CONTRACT SCHEDULE AND
ANNEXURES VOLUME II
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PNG REFINERY PROJECT -
CONSTRUCTION - CONDITIONS OF
CONTRACT SCHEDULE AND
ANNEXURES ANNEXURE 18 PRINCIPAL'S PROJECT REQUIREMENTS
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