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FORM 6-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Report of Foreign Private Issuer Pursuant to Rule 13a-16 or 15d-16 of the
Securities Exchange Act of 1934
For the month of May 2006
Commission File Number: 001-31819
Gold Reserve Inc.
(Exact name of registrant as specified in its charter)
926 W. Sprague Avenue, Suite 200
Spokane, Washington 99201
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual
reports under cover Form 20-F or Form 40-F.
Form 20-F X Form 40-F _____
Indicate by check mark whether the registrant by furnishing the information
contained in this Form is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of
1934.
Yes No X
If "Yes" is marked, indicate below the file number assigned to the registrant
in connection with Rule 12g3-2(b): 82-____________
Filed with this Form 6-K are the following, which are incorporated herein by
reference:
99.1 Engineering and Procurement Agreement
99.2 Construction Management Agreement
99.3 Payment Guarantee
Certain statements included herein, including those that express management's
expectations or estimates of our future performance, constitute "forward
looking statements" within the meaning of the United States Private Securities
Litigation Reform Act of 1995. Forward looking statements are necessarily
based upon a number of estimates and assumptions that, while considered
reasonable by management are inherently subject to significant business,
economic and competitive uncertainties and contingencies. We caution that such
forward-looking statements involve known and unknown risks, uncertainties and
other risk factors that may cause the actual financial results, performance,
or achievements of Gold Reserve to be materially different from our estimated
future results, performance, or achievements expressed or implied by those
forward looking statements. Numerous factors could cause actual results to
differ materially from those in the forward-looking statements, including
without limitation, concentration of operations and assets in foreign
countries, corruption, requests for improper payments, uncertain legal
enforcement, regulatory, political and economic risks associated with
Venezuelan operations, our ability to obtain additional funding for the
development of the Brisas project, in the event any key findings or
assumptions previously determined by our experts in the final feasibility
study (including any updates thereto) significantly differ or change as a
result of actual results in our expected construction and production at the
Brisas project, risk that actual mineral reserves may vary considerably from
estimates presently made, impact of currency, metal prices and metal
production volatility, changes in proposed development plans (including
technology used), our dependence upon the abilities and continued
participation of certain key employees, and risks normally incident to the
operation and development of mining properties. These are discussed in greater
detail in Gold Reserve's filings with the U.S. Securities and Exchange
Commission at www.sec.gov and the Annual Information Form and other reports
filed with Canadian provincial securities commissions at www.sedar.com. Gold
Reserve expressly disclaims any intention or obligation to update or revise
any forward looking statement whether as a result of new information, events
or otherwise.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Gold Reserve Inc.
(Registrant)
Date: May 1, 2006
By: s/ Robert A. McGuinness
Name: Robert A. McGuinness
Title: Vice President - Finance & CFO
EXHIBIT INDEX
99.1 Engineering and Procurement Agreement
CONTRACT FOR
ENGINEERING, PROCUREMENT AND
ASSOCIATED SERVICES IN RESPECT
OF THE BRISAS PROJECT
VENEZUELA
THIS AGREEMENT ("Agreement") for engineering, procurement and associated
services made as of the 12th day of April 2006
BETWEEN:
Gold Reserve Inc.
The Drury Building,
3081 Third Avenue,
Whitehorse, Yukon Y1A 4Z7
CANADA ("Owner")
AND:
SNC-Lavalin Engineers & Constructors Inc.
2200 Lake Shore Blvd. West
Toronto, Ontario
Canada M8V 1A4 ("Contractor")
WHEREAS:
A. The Owner is incorporated under the laws of Yukon Territory, Canada, and
is pursuing the design, engineering, procurement, construction, commissioning
and operation of the proposed new Brisas Gold Project at KM 88 in the mining
region of Bolivar State in Southeast Venezuela (the Project);
B. The Contractor is incorporated under the laws of Canada and is engaged in
providing design, engineering, procurement, and associated services for
projects similar to the Project;
C. The Contractor has agreed to provide to the Owner all of the design,
engineering, procurement, and associated services required to design and
procure for the Owner all things required to produce a complete and
operational Facility in accordance with the terms hereof, and to provide
associated services, all in accordance with the terms and conditions
contained in the Contract.
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the premises
and the mutual promises and agreements of the Parties herein expressed and for
other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the Parties covenant and agree as follows:
1. THE SERVICES
1.1 The Contractor shall, in accordance with and subject to the terms,
conditions and provisions of the Contract:
(a) Perform, or cause to be performed, the whole of the Services;
(b) do and fulfil everything indicated by this Contract; and
(c) commence the performance of the Services on or before the date of the
Contract and, subject to adjustments in Contract Time as provided for
in the Contract, achieve Owner Operation by the Owner Operation
Milestone Date and achieve Final Acceptance by the Final Acceptance
Milestone Date.
2. CONTRACT DOCUMENTS
2.1 The Contract is comprised of and means this executed Agreement and the
following documents, all of which are hereby incorporated by reference
into this Agreement and the Contract to the same extent and for the
same purposes as if repeated verbatim herein:
Appendix No. Description
1 General Conditions
2 Scope of Services
3 Owner's Requirements
4 Owner Supply
5 Performance Guarantees
6 Compensation
7 Special Conditions (including Appendix 7a)
8 Milestone Schedule
9 Project Schedule
10 [Reserved]
11 Insurance
12 [Reserved]
13 [Reserved]
14 Form of Release and General Waiver of Claims
15 Organization Chart
16 Key Personnel
17 Confidentiality Agreement
18 Conflict Mitigation Protocol
19 [Reserved]
2.2 Errors, omissions, ambiguities, discrepancies, inconsistencies and
other conflicts in the provisions of the Contract, or between or within
the documents comprising the Contract, shall be resolved by reference
to the following order of precedence, with the first listed governing
and taking precedence over those listed after them:
(a) the provisions of Change Orders and subsequent amendments in writing to
the Contract signed by the Parties shall govern and take precedence only
over those specific provisions of the Contract that are expressly
referenced therein and expressly changed thereby;
(b) the provisions of this executed Agreement part of the Contract shall
govern over all Appendices to the Contract;
(c) Appendix 5 Performance Guarantees;
(d) Appendix 1 General Conditions;
(e) Appendix 3 Owners Requirements, provided however that in the event of
conflicts between the text of the Owners Requirements and drawings
contained in the Owners Requirements, the text shall govern; and
(f) the remaining Appendices in the order in which they are numbered.
2.3 If within any one document comprising the Contract there is an
ambiguity, discrepancy, inconsistency or other conflict, then where the
conflict is between a provision of general application and a provision
that applies only to a specific part of the Services, the provision that
applies to the specific part of the Services shall govern, otherwise the
provision that is more consistent with the intent of the Contract as a
whole shall govern.
3. PRIOR AGREEMENTS MERGED INTO AND SUPERSEDED BY CONTRACT
3.1 This Contract constitutes the complete and exclusive statement of
its terms and no extrinsic evidence whatsoever may be introduced by
either Party in any judicial, arbitral, administrative, or other legal
proceeding involving this Contract. Without limiting the generality of
the foregoing, any and all work, services and other things provided by
the Contractor to the Owner prior to the date hereof, including
pursuant to any letter of intent from the Owner to the Contractor in
contemplation of this Contract, is merged herein and is governed
entirely by the terms of this Contract, and any payments made prior to
the date hereof to the Contractor shall be reconciled and made
consistent with the compensation provisions of this Contract.
4. CONTRACT PRICE
4.1 The Contract Price is the amount stated as the Contract Price in
Appendix 6 - Schedule of Prices, which amount is all-inclusive
save and except GST,VAT and any Venezuelan withholding tax to
the extent applicable. The Contract Price is subject to adjustment
only in accordance with the terms and conditions of the Contract.
5. PAYMENTS
5.1 The Owner shall, subject to the General Conditions and other
provisions of the Contract, pay the Contract Price to the Contractor on
the terms, dates and in the manner set out in Appendix 6 Schedule of
Prices.
5.2 All amounts of money expressed or referred to in the Contract are
expressed, and shall be paid, in the currency stated in Appendix 6
Compensation. Payments on account of the Contract Price shall be made
to such bank or address as advised by the Contractor by Notice to the
Owner.
5.3 If the Owner fails to make payments to the Contractor as they
become due under the terms of this Contract, interest shall be due and
payable in accordance with the provisions of the General Conditions.
6. CONTRACTORS REPRESENTATIONS
6.1 The Contractor represents to the Owner that the Contractor has
experience with the design, engineering, and procurement of comparable
international projects and, in particular, a comparable mine project in
Venezuela, and through its experience in Venezuela has established a
good knowledge of available in-country suppliers and contractors, and
is familiar with the requirements for the importation into Venezuela of
equipment, materials and construction services, including the
requirements and timing for obtaining custom clearances from
Governmental Authorities.
7. RIGHTS AND REMEDIES
7.1 The duties and obligations imposed by the Contract and the rights
and remedies available under the Contract shall be exclusive. No action
or failure to act by the Owner or Contractor shall constitute a waiver
of any right or remedy afforded by it under the Contract, nor shall any
such action or failure to act constitute an approval of or acquiescence
in any breach of the Contract, except as may be specifically agreed in
writing.
7.2 Each remedy under the Contract is cumulative with the other
remedies under the Contract and the remedies under the Contract are the
exclusive remedies available to a Party, and there are no other
remedies, whether at law or in equity, statutory or otherwise, except
as expressly set out in the Contract.
8. LANGUAGE OF THE CONTRACT
8.1 This Agreement is drawn in English at the request of the Parties
hereto. La presente convention est redigee en anglais a la demande des
Parties.
8.2 Unless the Parties otherwise agree, all communications between
the Parties and all documents prepared by the Contractor for the Owners
use pursuant to the Contract shall be in English.
9. LAW OF THE CONTRACT
9.1 The law of this Contract, and the validity, interpretation,
enforceability and performance of the Contract, shall be governed by
the laws in force in the Province of Ontario, Canada.
9.2 Subject to the right of a Party to require arbitration of a
dispute under the Contract in accordance with the dispute resolution
provisions of the General Conditions, the Parties hereby agree to
submit and attorn to the jurisdiction of the courts of the Province of
Ontario, Canada, and all courts authorized to hear appeals from those
courts, in respect of any disputes arising out of or resulting from the
Contract.
10. AMENDMENTS TO CONTRACT
10.1 No oral or written amendment or modification of the Contract
(including a Change Order signed by the Parties) by any Representative
of the Contractor or the Owner, either before or after execution of the
Contract, shall be of any force or effect unless such amendment or
modification is in writing and is signed by a duly authorized
representative of the Party to be bound thereby. The Owner will by
Notice to the Contractor, and the Contractor by Notice to the Owner,
will designate a representative for such purpose. In addition, in all
cases the Contractors Project Manager shall have such authority on
behalf of the Contractor to execute a Change Order. Each of the
foregoing persons and the Contractors Project Manager may, in writing
by Notice to the others and to the other Party, delegate some or all of
their authority as aforesaid to others, including with such limitations
of authority as they may specify in such Notice.
11. NO WAIVER
11.1 No waiver of any rights under the Contract shall be binding or
effective unless the waiver is in writing and signed by an authorized
representative of the Party giving such waiver.
11.2 Either Party's waiver of any breach or failure to enforce any of
the terms, covenants, conditions, or other provisions of the Contract
at any time shall not in any way affect, limit, modify, or waive that
Party's right thereafter to enforce or compel strict compliance with
every term, covenant, condition, or other provision hereof, any course
of dealing or custom of the trade notwithstanding.
12. AUTHORITY TO EXECUTE CONTRACT
12.1 The Contractor represents and warrants:
(a) it has the requisite power, authority and capacity to execute and
deliver the Contract;
(b) the Contract has been duly and validly executed on its behalf by
its duly authorized representatives; and
(c) the Contract constitutes a legal, valid and binding agreement
enforceable against it in accordance with its terms.
12.2 The Owner represents and warrants:
(a) it has the requisite power, authority and capacity to execute and
deliver the Contract;
(b) the Contract has been duly and validly executed on its behalf by
its duly authorized representatives; and
(c) the Contract constitutes a legal, valid and binding agreement
enforceable against it in accordance with its terms.
13. PROOF OF AUTHORITY
13.1 Each Party reserves the right to require everyone executing the
Contract on behalf of the other Party to provide proof, in a form
acceptable to the first Party, that they have the requisite authority
to execute the Contract on behalf of and to bind the particular Party
on whose behalf they are executing the Contract.
14. EXECUTION IN COUNTERPARTS AND BY FAX/EMAIL
14.1 The Parties agree that this Contract may be executed in one or
more counterparts, each of which shall be deemed to be an original, and
all of which shall constitute one and the same instrument. To expedite
the execution hereof, either or both of the Parties may transmit by fax
or email (provided that such email is of an executed copy of the
Contract in PDF format) to the other Party, the receipt of which by the
other Party shall have the same force and effect as if the original
thereof had in fact been delivered to that other Party at the same
time. Any original, fax copy, copy printed from a PDF file, or
photocopy of this Contract bearing one or more signatures of a Party
shall be admissible against that Party in any legal or arbitral
proceeding as evidence of the due and proper execution of this Contract
by that Party.
IN WITNESS WHEREOF the Parties hereto have executed this Contract by
their duly authorized representatives and effective as of the day and
year first above written.
Executed and delivered by
Gold Reserve Inc.
by its duly authorized representatives:
/s/ A. Douglas Belanger, President
Authorized Signatory
Authorized Signatory
Executed and delivered by
SNC-Lavalin Engineers & Constructors Inc.
by its duly authorized agent:
/s/ Ian Pritchard, V.P. & G.M. Mining & Metals, Toronto
Authorized Signatory
APPENDIX 1
GENERAL CONDITIONS
CONTRACT
GENERAL CONDITIONS IN RESPECT OF THE BRISAS PROJECT
VENEZUELA
TABLE OF CONTENTS Page
1. DEFINITIONS AND INTERPRETATION.......................................1
1.1 General .......................................................... 1
1.2 Definitions ...................................................... 1
1.3 Interpretation................................................... 13
1.4 Ambiguous and Inconsistent Terms................................. 16
1.5 Provisions in the Scope of Services.............................. 16
2. PERSONNEL AND CONTRACT ADMINISTRATION...............................17
2.1 The Owners Representative.........................................17
2.2 Delegation of the Owners Representatives Power................... 18
2.3 Compliance with Directions........................................18
2.4 Delegation of Contractors Representatives Power.................. 18
2.5 Contractors and Owners Acknowledgments........................... 18
2.6 Personnel........................................................ 19
2.7 Comments, Review, Representation or Approval by the Owner or the
Owners Representative............................................ 21
2.8 Project Control Group............................................ 21
2.9 [Intentionally deleted].......................................... 22
2.10 Contractors Request for Information.............................. 22
2.11 Records Open for Inspection and Audit............................ 22
2.12 Privacy.......................................................... 24
3. GENERAL REQUIREMENTS REGARDING SERVICES.............................25
3.1 General.......................................................... 25
3.2 Budgetary Constraints............................................ 26
3.3 Warranties and Standard of Care.................................. 27
3.4 Equipment Importation............................................ 29
3.5 Continuing Warranties............................................ 29
4. REGIONAL SOCIO-ECONOMIC BENEFITS AND INDIGENOUS
PEOPLES.............................................................29
4.1 Indigenous Peoples............................................... 29
4.2 Regional Socio-Economic Benefits................................. 30
5. PROTECTION OF THE ENVIRONMENT.......................................30
5.1 General.......................................................... 30
6. [INTENTIONALLY DELETED].............................................30
7. PROJECT EXECUTION SERVICES..........................................30
7.1 Progression to Project Execution................................. 30
7.2 General Obligations.............................................. 30
7.3 [Intentionally deleted].......................................... 31
7.4 Project Execution Project Planning Obligations................... 31
7.5 Project Execution Cost Planning Obligations...................... 32
7.6 Rights and Obligations Not Affected.............................. 32
8. SITE................................................................32
8.1 Owner Site Information........................................... 32
8.2 Contractors Acknowledgements..................................... 33
9. DESIGN..............................................................34
9.1 Preparation of Contract Material................................. 34
9.2 Review and Acceptance or Approval by Owner....................... 35
9.3 Ownership of, and Intellectual Property Rights in, Contract
Material......................................................... 35
9.4 Keeping Contract Material Safe................................... 37
9.5 Reproduction of Contract Material................................ 37
9.6 Return of Contract Material...................................... 37
10. QUALITY OBLIGATIONS................................................38
10.1 Subcontracting.................................................. 38
10.2 Re-performance of Non-Complying Services........................ 38
11. LABOUR AND INDUSTRIAL RELATIONS....................................39
11.1 General......................................................... 39
11.2 Open Site....................................................... 39
11.3 Trade Contracts................................................. 40
11.4 Additional Requirements for Personnel on Site................... 40
11.5 Report of Contractors Personnel and Equipment................... 40
12. PROCUREMENT........................................................40
12.1 Tenders for Trade Contracts..................................... 40
12.2 Warranties From Trade Contractors............................... 42
12.3 Trade Contract Payment.......................................... 42
12.4 Contract Dispute Resolution..................................... 43
12.5 Owners Procurement Process...................................... 43
12.6 Comprehensive Procurement Strategy.............................. 44
13. TESTING, COMMISSIONING AND PERFORMANCE TESTING.....................44
13.1 Performance Testing and Performance Guarantees................... 44
14. TIME...............................................................44
14.1 Risk of Delay and Disruption and Resultant Increased Costs...... 44
14.2 Extensions of Time.............................................. 44
14.3 Determination of Extension of Time Claims....................... 46
15. CHANGES, CHANGE DIRECTIVES AND CHANGE ORDERS.......................46
16. SUSPENSION.........................................................48
16.1 Notice to Suspend............................................... 48
16.2 Resumption...................................................... 48
16.3 Compensation.................................................... 48
16.4 Termination..................................................... 48
17. EVENTS OF FORCE MAJEURE............................................49
17.1 Events of Force Majeure......................................... 49
17.2 Instances of Force Majeure...................................... 50
17.3 Effect of Event of Force Majeure................................ 51
17.4 Notice of Event of Force Majeure................................ 51
17.5 Period of Suspension for and Mitigation of Event of Force
Majeure......................................................... 51
17.6 Certain Events Not to Comprise Events of Force Majeure.......... 52
17.7 Contractor to Follow Owners Instructions........................ 53
17.8 Contractor Responsible for Negligence........................... 53
17.9 Costs Due to Events of Force Majeure............................ 53
17.10 Contractors Sole and Exclusive Remedy........................... 53
18. COMPENSATION.......................................................53
18.1 Owners Payment Obligations...................................... 53
18.2 Payment Advances by Owner........................................54
18.3 Electronic Funds Transfer....................................... 54
18.4 Time For and Format of Application for Payments................. 55
18.5 Additional Matters.............................................. 55
18.6 Contractor Warranty............................................. 56
18.7 Incomplete Application for Payments............................. 56
18.8 Payment Statement............................................... 57
18.9 Payment......................................................... 58
18.10 Conditions Precedent to Entitlement to Payment.................. 58
18.11 Final Application for Payment................................... 59
18.12 Interest on Overdue Payments.................................... 60
18.13 Set off......................................................... 60
18.14 Owners Payment of Subcontractors................................ 60
18.15 Property and Liens.............................................. 61
18.16 Taxes........................................................... 61
19. MITIGATION.........................................................62
19.1 General Duty to Mitigate........................................ 62
20. ASSIGNMENT.........................................................62
20.1 Assignment by Contractor........................................ 62
20.2 Assignment by Owner to Affiliates and Third Parties............. 63
20.3 Assignment by Owner to Financing Entities and Realization of
Security by Financing Entities.................................. 64
21. COOPERATION WITH FINANCING ENTITIES AND INSURERS...................65
22. SECURITY...........................................................66
22.1 Delivery and Form of Security from Owner........................ 66
23. INSURANCE..........................................................66
23.1 Owner Provided Insurance........................................ 66
23.2 Contractor Provided Insurance................................... 66
24. CONTRACTORS REPORTING AND RELATED OBLIGATIONS......................66
25. REPRESENTATIONS....................................................68
26. DEFAULT AND TERMINATION............................................71
26.1 Default by Owner................................................ 71
26.2 Termination by Contractor Following Default by Owner............ 72
26.3 Rights of Financing Entities on Default by Owner................ 72
26.4 Default by Contractor........................................... 72
26.5 Termination by Owner Following Default by Contractor............ 73
26.6 Termination for Insolvency of a Party........................... 73
26.7 Termination for Events of Force Majeure......................... 74
26.8 Termination by Owner for Convenience............................ 75
26.9 Termination by Owner of Contract................................ 75
26.10 Recovery of Loss................................................ 76
26.11 Preservation of Other Rights.................................... 77
27. INDEMNITIES........................................................77
27.1 Indemnity by EPC Contractor..................................... 77
27.2 Indemnity by Owner.............................................. 78
28. LIMITATION OF LIABILITY............................................79
28.1 Limitation of Contractor Liability.............................. 79
28.2 Limitation of Owner Liability................................... 81
28.3 Application of Limitations of Liability......................... 82
28.4 Exclusion of Consequential Damages.............................. 82
28.5 Exclusion of Warranties of Performance of the Project........... 83
29. DISPUTE RESOLUTION.................................................83
29.1 General......................................................... 83
29.2 Resolution by Owners Representative............................. 83
29.3 Resolution by Negotiations...................................... 84
29.4 Resolution by Mediation......................................... 84
29.5 Resolution by Arbitration....................................... 85
29.6 Consolidation of Arbitrations....................................87
29.7 Dispute Resolution Not to Delay Performance..................... 87
30. MEDIA RELEASES AND CONFIDENTIALITY.................................87
30.1 Media Release................................................... 87
30.2 Confidentiality................................................. 87
31. NOTICES AND COMMUNICATIONS........................................ 88
31.1 Method of Notice................................................ 88
31.2 Effectiveness of Notices........................................ 88
31.3 Change of Address............................................... 89
32. NOTIFICATION OF CLAIMS.............................................89
32.1 Notices of Claims............................................... 89
32.2 Prescribed Notices.............................................. 89
32.3 Continuing Events............................................... 90
32.4 Time Bar........................................................ 90
32.5 Other Provisions Unaffected......................................90
33. GENERAL............................................................90
33.1 Nature of Relationship and Contractor as Agent.................. 90
33.2 Variation and Waivers in Writing................................ 91
33.3 Contractor More than One Person................................. 92
33.4 Entire Agreement................................................ 93
33.5 Language of Contract............................................ 93
33.6 Violation of Law of Another Jurisdiction........................ 94
33.7 Violation of Laws Governing Corrupt Practices................... 94
33.8 Conflicts and Mitigation of Conflicts by Contractor............. 96
33.9 Survivorship.................................................... 96
33.10 Application of this Contract and Retroactive Effect............. 96
33.11 Compliance with Law............................................. 97
33.12 Severability.................................................... 97
GENERAL CONDITIONS
1. DEFINITIONS AND INTERPRETATION
1.1 General
1.1.1 In the Contract, terms defined in GC 1.2 shall have the
meanings ascribed to them in GC 1.2 unless a contrary intention is
indicated.
1.2 Definitions
1.2.1 "Agreement" means the part of the Contract titled Agreement and
which contains the signatures executing the Contract on behalf of the
Parties.
1.2.2 "Applicable Laws", applicable law and similar expressions,
whether capitalized or not, mean, with respect to a Party, all domestic
or foreign, national, federal, provincial, state, territorial, regional,
municipal, or local statutes, laws, by laws, rules, regulations, codes
(including design and building codes), ordinances, judgments, decrees,
writs, administrative interpretations, guidelines, policies,
injunctions, orders or the like, of, or agreements with, any
Governmental Authority (of which the Contractor is aware at the time of
execution of the Contract or which have been or will be entered into by
the Owner with Governmental Authorities before and after the date of
the Contract which are of the type, and contain terms and conditions,
that are reasonably expected to be entered into for such type of
project in Venezuela), and the interpretations thereof, applicable to
the performance of the Services, the performance of the Contract, or
the development, completion and operation of the Project, including any
and all of the foregoing regulating or relating to Permits, Licences and
Approvals, certificates, occupational health and safety, workers
compensation, environment, pollution, traffic, noise, employment
standards, and conditions of work, or relating to or imposing liability
or standards of conduct concerning (a) safety or the prevention of
injury to persons or damage to property on, about or adjacent to the
Site or (b) protection of human health or the environment or emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or industrial, toxic or hazardous substances or wastes into
the environment including ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling
of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes, as now or may at any time hereafter be
in effect.
1.2.3 "Application for Payment" means a payment claim made in
accordance with GC 18.4.
1.2.4 "Authority" means Governmental Authority.
1.2.5 "Authorities Having Jurisdiction" and similar expressions,
whether capitalized or not, mean Governmental Authorities.
1.2.6 "Certificate of Final Acceptance" means the certificate issued
after Industrial Completion by the Owners Representative, in such form
as the Owners Representative may prescribe, certifying that all
requirements under the Contract for Final Acceptance have been met as
of the date specified in such certificate, including that the
Performance Tests have been successfully completed and the Performance
Guarantees have been met.
1.2.7 "Certificate of Provisional Acceptance" means the certificate
issued by the Owners Representative, in such form as the Owners
Representative may prescribe, certifying that all requirements under
the Contract for Industrial Completion have been met as of the date
specified in such certificate.
1.2.8 "Change", when used in relation to this Contract, means an
addition, substitution, deletion, variation, modification, cancellation
or omission of part or all of the Services required to be performed or
supplied under this Contract and, when used in relation to a Trade
Contract, means an addition, substitution, deletion, variation,
modification, cancellation or omission of part or all of the
requirements of the Trade Contract, and in either case includes a
change in Applicable Laws (excluding changes in Applicable Laws which
were publicly announced before the contract but have not yet come into
force, and changes that have no material affect on the time or cost of
performance of the Contract even though they may impose greater
obligations or liabilities on one or the other parties).
1.2.9 "Change Directive", when used in relation to this Contract, means
a written instruction signed by the Owners Representative directing the
Contractor to proceed with a Change prior to and pending the issuance
of a Change Order, and when used in relation to a Trade Contract means
a written instruction signed by the Owners Representative or
Contractors Representative directing the Trade Contractor to proceed
with a Change under the Trade Contract prior to and pending the
issuance of a Change Order.
1.2.10 "Change Order", when used in relation to this Contract, means a
Change to the Contract authorized in writing by the Owner and signed by
the Owners Representative and, when used in relation to a Trade
Contract, means a Change to the Trade Contract authorized by the Owner
and signed by the Owners Representative or the Contractors
Representative.
1.2.11 "Claim" includes any claim for payment of money (including
damages) where such payment has not previously been authorized in
writing by the Owner:
(a) under, arising out of, or in any way in connection with this
Contract, the Services, the Project, any direction of the Owners
Representative, or either Partys conduct before this Contract; or
(b) otherwise at law or in equity, including by statute, in tort
(whether for negligence, negligent misrepresentation or otherwise), or
for restitution.
1.2.12 "Commissioning" means those activities immediately following
Mechanical Completion of the Project and which involve the introduction
of ore and reagents to the processing facility, the filling of process
tanks with slurry and solutions, the gradual increase of throughput to
full capacity, and the attainment of steady-state operation, and
includes the calibration of instruments, modifications and adjustments
to Plant and Goods that may be required to achieve the design
performance levels until only the final Performance Tests for
determining whether the Performance Guarantees have been met remain.
1.2.13 "Confidential Information" means any information which
concerns the business or finances of the Owner and is disclosed to or
acquired by the Contractor and which:
but does not include information which:
(d) is or becomes public knowledge other than by a breach of this
Contract;
(e) is in the possession of the Contractor without restriction in
relation to disclosure on or before the date on which it is disclosed
to or acquired by the Contractor; or
(f) has been independently developed or acquired by the Contractor,
and provided however that the burden of establishing any of the
exceptions referred to in Section 1.2.13(d), 1.2.13(e) and 1.2.13(f)
shall be on the Contractor;
1.2.14 "Contamination" means the presence in, on or under land, air or
water of a substance (whether a solid, liquid, gas, odour, heat, sound,
vibration or radiation) at a concentration above the concentration
allowed by relevant Permits, Licences and Approvals or Applicable Law,
or above the concentration at which the substance is normally present
in, on or under land, air or water in the same locality, that presents
a risk of Environmental Harm, including harm to human health or any
other aspect of the Environment, or could otherwise give rise to a risk
of non-compliance with any Applicable Laws for or relating to the
protection of the Environment.
1.2.15 "Contract" and "Contract Documents" are synonymous and mean the
whole of the Contract between the Parties, and which is comprised of
the Agreement and the documents expressly incorporated by reference
into the Contract by the Agreement.
1.2.16 "Contract Material" means all Documentation which is:
(a) prepared, or required to be prepared, by or on behalf of the
Contractor under this Contract;
(b) delivered, or required to be delivered, by or on behalf of the
Contractor to the Owner under this Contract; or
(c) incorporated into any Documentation described in 1.2.16(a) or
1.2.16(b).
1.2.17 "Contract Personnel" means any and all personnel engaged by or
through the Contractor, including its directors, officers and
employees, and including the directors, officers and employees of its
agents, consultants, invitees, subcontractors and anyone else engaged
by or through the Contractor in performing the Contractors obligations
under this Contract.
1.2.18 "Contractor's Representative" means the person designated as
such in writing by the Contractor to the Owner on or after the Date of
Contract, or any replacement person appointed under GC 2.4.
1.2.19 "Court" means a Canadian court of competent jurisdiction and
includes the Supreme Court of Canada.
1.2.20 "Date for Final Acceptance" means the Milestone Date for Final
Acceptance as specified in Appendix 8 Milestone Schedule, as adjusted
(if applicable) under this Contract.
1.2.21 "Date for Industrial Completion" means the Milestone Date for
Industrial Completion as specified in Appendix 8 Milestone Schedule,
as adjusted (if applicable) under this Contract.
1.2.22 "Date for Provisional Acceptance" means the Date for Industrial
Completion.
1.2.23 "Date of Contract" means the earlier of the date of execution of
the Contract by both the Owner and Contractor and the effective date of
the Contract specified on the first page of the Agreement portion of the
Contract.
1.2.24 "Date of Industrial Completion" means the date on which all
requirements under the Contract for Industrial Completion have been met
and Industrial Completion has occurred.
1.2.25 "Date of Provisional Acceptance" means the Date of Industrial
Completion.
1.2.26 "Deliverables" means the documents and other items required to
be delivered by the Contractor, including those identified as
Deliverables in the Scope of Services.
1.2.27 "Direction" includes any agreement, approval, authorization,
certificate, decision, demand, determination, direction, explanation,
instruction, notice, notification, order, permission, consent,
rejection, request or requirement.
1.2.28 "Documentation" includes software (including source code and
object code versions) manuals, diagrams, graphs, charts, projections,
specifications, estimates, records, concepts, documents, accounts,
plans, formulae, designs, methods, techniques, processes, supplier
lists, price lists, customer lists, market research information,
correspondence, letters and papers of every description including all
copies of and extracts from the same.
1.2.29 "Eligible Disbursements" has the meaning given to it in
Appendix 6 Compensation.
1.2.30 "Environment" includes ecosystems and their constituent parts,
including people and communities, natural and physical resources, the
qualities and characteristics of locations, places and areas, and the
social, economic, aesthetic and cultural aspects of any one or more of
the aforesaid.
1.2.31 "Environmental and Social Impact Assessment" means the document
for the Project titled as such and prepared by the Owner, or by other
consultants of the Owner, in accordance with World Bank Guidelines and
the new Equator Principles, and submitted to the Governmental
Authorities in Venezuela as part of the process required for obtaining
a Permit to Construct and other Permits, Licences and Approvals for the
Project.
1.2.32 "Environmental Control Plan" means the Environmental Management
Plan.
1.2.33 "Environmental Harm" means any actual or threatened adverse
impact on, or damage to, the Environment, including any adverse impact
or damage that is in excess of that allowed by the Permits, Licences
and Approvals and Applicable Law.
1.2.34 "Environmental Management Plan" means the Owners environmental
management and mitigation plan, as prepared by the Owner and its
consultants.
1.2.35 "ESIA" means the Environmental and Social Impact Assessment.
1.2.36 "Event of Force Majeure" and "Events of Force Majeure" has the
meaning given to it in GC 17.1.
1.2.37 "Excluded Taxes" bears the meaning set out in Appendix 6
Compensation.
1.2.38 "Existing Facilities" means the existing facilities located
at the Site as at the Date of Contract, and which are comprised of the
following: an office building on the Site, used for a business office
and which accommodates both the engineering and geology departments of
the Owner; a sample preparation facility, used for logging and
splitting (diamond saw) core and housing sample preparation equipment
(including crushers, splitters and drying ovens) and the storage of the
projects core and pulp rejects; an infirmary; maintenance facility; a
power generating station; an existing lime silo and sediment facility;
and a full service camp capable of housing and feeding approximately 55
people (as at the Date of Contract approximately twenty people are
employed by the Owner at the Site
1.2.39 "Facility" means the completed Project, save and except only
the pit and the mining equipment that operates within the pit, and
includes the Plant, Tailings Dam, Port Concentrate Handling Facilities,
laboratories, truck shop, warehouse, camp accommodation, potable water
supply, process water supply, sewage treatment facilities, roads within
the Site, and all other permanent works, facilities and infrastructure
at the Site.
1.2.40 "Feasibility Study" means the bankable feasibility study
prepared by Aker Kvaerner for, and delivered in 2005 to, the Owner or
its affiliates.
1.2.41 "Final Acceptance" means when everything required to be
performed or done by the Contractor under the Contract has been
completed and done, including the completion of all Performance Tests
and the satisfaction of all Performance Guarantees as required by the
Contract, and at the time the Contractor has met all conditions for
Final Acceptance set out herein , all as verified and confirmed by the
Certificate of Final Acceptance.
1.2.42 "Financing Entities" means any financial institution or other
Person or Persons providing any debt or equity financing for the Owner
in respect of the Project, including by provision of a letter or
letters of credit or other guarantees or insurance in support thereof
and including the holders of, and the agent(s) or trustee(s)
representing the holders of, such instruments.
1.2.43 "Form of Release" means the form of release in Appendix 14
Form of Release and General Waiver of Claims.
1.2.44 "GC" means General Conditions.
1.2.45 "General Conditions" means this document.
1.2.46 "Goods" means any materials, supplies, machinery, equipment,
fuel and other things used by the Contractor in performing the Services
and which are to be incorporated in the Project, or are to be consumed
in performing the Services.
1.2.47 "Governmental Authority" means any and all foreign, domestic,
national, federal, provincial, territorial, state, regional, municipal
or local Governmental Authority, quasi Governmental Authority, Court,
government or self regulatory organization, commission, board,
tribunal, organization, or any regulatory, administrative or other
agency, or any political or other subdivision, department, or branch of
any of the foregoing, having jurisdiction or Governmental Authority in
any way over any aspect of the performance of the Contract or the
operation of the completed Project, including a right to impose a
requirement or whose consent is required with respect to the Project or
the Services.
1.2.48 "GST" and "G.S.T." mean the tax, if any, payable by the Owner to
the extent imposed on payments under this Contract pursuant to Part IX
of the Excise Tax Act, R.S.C. 1985, c. E 15, as amended, and any
successor legislation thereto.
1.2.49 "Hourly Remuneration" has the meaning given to it in Appendix 6
Compensation.
1.2.50 "Human Resources and Industrial Relations Plan" means the
construction labour management plan to be produced by the Contractor in
the Project Definition Phase in accordance with the Scope of Services.
1.2.51 "Indigenous Peoples Plan" means the indigenous peoples plan to
be prepared by the Owner and others.
1.2.52 "Industrial Completion" means when the Plant has entered into
normal commercial operation, when steady state conditions have been
achieved in and through the Plant, when the complete Plant has operated
for twenty-four (24) consecutive hours without interruption and the
Facility has demonstrated it is capable of continuous operation
thereafter, and when all infrastructure and other parts of the Facility
are functional and in ready to enter into normal operations, with only
minor punch list items to be completed that do not adversely affect
continuous operation of the Facility, all as verified and confirmed by
the Certificate of Provisional Acceptance.
1.2.53 "Intellectual Property Rights" includes all copyright and
analogous rights, all rights in relation to inventions (including
patent rights), plant varieties, registered and unregistered trademarks
(including service marks), confidential information (including trade
secrets), know-how, circuit layouts and all other rights throughout the
world resulting from intellectual activity in the industrial, scientific
or artistic fields.
1.2.54 "International Cyanide Management Code" means the International
Cyanide Management Code For the Manufacture, Transport, and Use of
Cyanide In the Production of Gold" developed by a multi-stakeholder
Steering Committee under the guidance of the United Nations
Environmental Program (UNEP) and the then-International Council on
Metals and the Environment (ICME).
1.2.55 "Key Personnel" means each and all of the persons named in
Appendix 16 Key Personnel.
1.2.56 "Liquidated Damages", whether capitalized or not, are not a
penalty but represent the amount(s) agreed to be paid by the Contractor
to the Owner as the result of the happening of a specified event, which
amount(s) have been agreed by the Contractor and the Owner to represent
a genuine and reasonable pre-estimate of the damages that the Owner will
suffer as a result of the happening of the specified event, and which
the Owner and the Contractor have agreed in advance would be difficult
or impossible to quantify upon the happening of the specified event.
1.2.57 "Mechanical Completion" means when the Facility has been brought
to a level and state of completion that allows the Plant and the rest
of the Facility to be used for feeding and processing ore, subject only
to Commissioning of equipment, sub-systems and systems, and when all
requirements and pre-conditions for Mechanical Completion specified in
the Owners Requirements or elsewhere in the Contract have been met.
1.2.58 "Milestone Date" means the date designated as such in the
Milestone Schedule for a Milestone Event, or as such date may be
adjusted in accordance with the Contract.
1.2.59 "Milestone Event" means, in respect of each Milestone Date, an
event designated as such in the Milestone Schedule.
1.2.60 "Milestone Schedule" means Appendix 8 - Milestone Schedule.
1.2.61 "Mining Industry Standards" means the standards and generally
accepted best mining and ore processing practices used in the mining
industry in North America for gold mines of comparable or larger size
to the Project and which as a minimum comply with all Applicable Laws
and requirements of all Governmental Authorities. Where no such
standards or generally accepted practices exist for any particular
item, Mining Industry Standards means Prudent Industry Practice.
1.2.62 "Notice" and "notice" mean a written communication between the
Parties, as required or permitted by the Contract and conforming to the
requirements of GC 31.
1.2.63 "Notice to Proceed With Project Execution Services" means the
Notice from the Owner to the Contractor authorizing and directing the
Contractor to commence the Project Execution Phase and provide the
Project Execution Services, all in accordance with this Contract.
1.2.64 "O&M Manuals" means the Operating and Maintenance Manuals.
1.2.65 "O&M Personnel" means the personnel engaged by or through the
Owner for the operation and maintenance of the Facility.
1.2.66 "Operating and Maintenance Manuals" are those manuals that are
generated by Vendors and other Trade Contractors and reviewed and
approved by the Contractor for the installation, operation and
maintenance of all equipment, sub-systems, systems and other parts of
the Facility, and which include the information required to order spare
parts. Except where the context otherwise clearly indicates, references
to Operating and Maintenance Manuals includes the Plant Operations
Manual.
1.2.67 "Other Contractors" means all contractors, consultants and
other persons engaged to carry out any works or services of whatever
nature at or in the vicinity of the Site (other than the Contractor and
the Trade Contractors).
1.2.68 "Owner Documentation" means any Documentation provided by the
Owner to the Contractor for the purposes of this Contract.
1.2.69 "Owner Standards and Procedures" means the Owners standards,
specifications, policies and procedures included in the Owners
Requirements (all as amended from time to time) or, where no such
standards, specifications, policies and procedures are included means
Mining Industry Standards and Prudent Industry Practice.
1.2.70 "Owners Representative" means the person designated as such
in the Agreement or, if not designated therein, the person designated
as such by Notice from the Owner to the Contractor, or any replacement
person Notice of which has been given by the Owner to the Contractor.
1.2.71 "Party" means the Owner or Contractor, as applicable.
1.2.72 "Parties" means both the Owner and Contractor.
1.2.73 "Performance Guarantees" has the meaning given to it in
Appendix 5 Performance Guarantees.
1.2.74 "Performance Incentives" has the meaning given to it in
Appendix 6 Compensation.
1.2.75 "Performance Tests" means those tests required to be performed
pursuant to Appendix 5 Performance Guarantees to demonstrate that the
Facility will operate in accordance with and fully satisfy the
Performance Guarantees. These tests shall be carried out after the
successful completion of Commissioning.
1.2.76 "Permits, Licences and Approvals" mean all permits, licences,
approvals, authorizations, permissions, certificates and consents in
relation to the performance of the Services, Trade Contracts or
development, completion and operation of the Project required, issued
by or received from Governmental Authorities, including statements,
requirements, representations and commitments made by the Owner or
Contractor that are contained within or are part of any plans,
schedules, applications or submittals provided or submitted by them to
Governmental Authorities in order to obtain permits, licences,
approvals, authorizations, permissions and consents, as applicable,
from the Governmental Authorities.
1.2.77 "Permit to Construct" means the permit from the relevant
Governmental Authorities in accordance with Applicable Laws required by
the Owner before it can commence the Project Execution Phase of the
Project.
1.2.78 "Person" means any individual, corporation, company, voluntary
association, partnership, trust, incorporated organization, or
Governmental Authority.
1.2.79 "Personal Information" means any and all information about a
Person that, by the applicable Privacy Law, a Party is required to keep
confidential.
1.2.80 "Plant" means the completed process plant and equipment,
starting from the primary crusher at the pit through to the point on
Site where, as applicable, the final products for sale (concentrate or
gold dore) are ready for transport from the Site, and extends to the
Tailings Dam, and includes the overland conveyor, process equipment,
process buildings and tailings outfall pipe.
1.2.81 "Plant Operations Manual" means the separate manual that
provides details of all practices and procedures necessary for the
safe and proper operation of all parts of the Facility, highlighting
special precautions that may be necessary and proper start-up and
shutdown sequences and interlocks.
1.2.82 "Port Concentrate Handling Facilities" means the concentrate
storage and ship loading facilities in Puerto Ordaz for storage and
loading of concentrate from the Plant on to ships.
1.2.83 "Practical Completion" means when each and all components,
sub-systems and systems for the Facility are ready to operate as an
integrated whole, when all interlocks are completed in accordance with
the design, the entire control system is operating without by-passes,
ore has gone through the crusher, the overland conveyor is operating, a
stockpile has been created at the process plant location, and the
process plant has been in continuous operation for a minimum period of
three (3) consecutive hours without breakdown or stoppage.
1.2.84 "Pre-Commissioning" and "Pre-commissioning" mean those
activities immediately preceding Mechanical Completion and the
commencement of Commissioning which consist of the testing, adjustment
and initial operation of equipment, sub-systems and systems to
demonstrate they have been properly installed and are functioning prior
to the introduction of ore or reagents into them in preparation for
Mechanical Completion.
1.2.85 "Prime Rate" means the Royal Bank of Canadas prime commercial
lending rate of interest on Canadian funds, as designated from time to
time by the Royal Bank of Canadas head office in Canada.
1.2.86 "Privacy Law" means all Applicable Laws relating to the
privacy, confidentiality or use of any information about individuals.
1.2.87 "Professional Services" means the services of engineers,
surveyors, architects and other professional consultants, experts and
specialists.
1.2.88 "Project" means the Brisas Project in Venezuela, as more
particularly described in Appendix 3 Owners Requirements, but for
purposes of the scope of the Contractors Services under this Contract
does not include the following: mobile mining equipment for mining
operations in the open pit mine, pre-production mining operations in
the open pit mine area of the Site and preparing the ESIA.
1.2.89 "Project Budget" means the Owners budget for the entire Project
to be monitored and administered by the Contractor, which is all-
inclusive and includes all costs for completion of the Project save and
except only the following: cost of mobile mining equipment for mining
operations in the open pit mine; Owners internal costs for its own
personnel, for public relations, for the environmental assessment and
approval process for the Project as a whole, for obtaining the Permit
to Construct; and for pre-production mining operations in the open pit
mine area of the Project.
1.2.90 "Project Cash Flow Strategy" means the Project cash flow
strategy to be produced by the Contractor in the Project Definition
Phase in accordance with the Scope of Services.
1.2.91 "Project Control Group" means the project control group
referred to in GC 2.8.1.
1.2.92 "Project Controls System" means the Project controls system
to be produced by the Contractor in the Project Definition Phase in
accordance with the Scope of Services.
1.2.93 "Project Cost Estimate" means the definitive Project budget
to be produced by the Contractor in the Project Definition Phase in
accordance with the Scope of Services which shall, among other things,
contain an estimate of the Total Project Cost.
1.2.94 "Project Execution" means the stage of the Project during
which the Project Execution Services and the work required to achieve
Final Acceptance are to be performed.
1.2.95 "Project Execution Services" means all of the Services to be
performed, obligations to be fulfilled and all things to be supplied
and provided by the Contractor, whether express or implied, under this
Contract including the preparation of the Detailed Design
Documentation, engineering, procurement, coordination, administration
and Commissioning services associated with the Project.
1.2.96 "Project Execution Phase" has the meaning given to it in
Appendix 2 Scope of Services.
1.2.97 "Project Schedule" means Appendix 9 Project Schedule
until the Owner has reviewed and accepted the Contractors Detailed
Project Completion Schedule, and thereafter means the Detailed Project
Completion Schedule.
1.2.98 "Project Scope Definition Document" means the Project scope
definition document to be produced by the Contractor in the Project
Definition Phase in accordance with the Scope of Services.
1.2.99 "Provisional Acceptance" means Industrial Completion.
1.2.100 "Prudent Industry Practice" means the optimal and best
practices, methods, acts and procedures, and the minimum design,
construction and engineering standards and codes (including without
limitation those practices, methods, acts, procedures, standards and
codes related to reliability, durability, safety, longevity, asset
preservation and protection of the environment) used, generally
accepted and applied at the time of execution of the Contract by
engineering, procurement and construction management contractors
experienced in and having an excellent reputation in the design and
construction of mine plants and infrastructure and by the majority of
major gold mine operators in North America currently operating
comparable or larger sized efficient and effective modern gold mine
operations constructed during the last fifteen (15) years.
1.2.101 "Regional Socio-Economic Benefits Commitments" means the
written commitments made by the Owner to Governmental Authorities to
provide socio-economic benefits to the region in which the Site is
located.
1.2.102 "Request for Proposals" means the request for proposals titled
Request for Proposal Brisas Project issued in respect of the Project by
the Owner.
1.2.103 "Schedule of Key Personnel" means Appendix 16 Key Personnel.
1.2.104 "Schedule of Plan Requirements" means Schedule 1 Schedule of
Plan Requirements to Appendix 3 Owners Requirements.
1.2.105 "Schedule of Rates" means the schedule of rates included in
Appendix 6 Compensation.
1.2.106 "Scope of Services" means Appendix 2 Scope of Services.
1.2.107 "Services" means the services to be provided by the Contractor
as defined and described in Appendix 2 Scope of Services.
1.2.108 "Site" and "site" means the land, water and other places on,
under, in or through which the Project is to be constructed and
installed, and any other lands and places expressly provided by the
Owner for working space or any other purpose as may be specifically
designated in this Contract as forming part of the Site.
1.2.109 "Special Conditions" means the terms and conditions, if any,
contained in Appendix 7 Special Conditions of the Contract.
1.2.110 "Standards" means Mining Industry Standards.
1.2.111 "Supplier" means Vendor.
1.2.112 "Tailings Dam" means the dam and reservoir for storage and
disposal of the tailings, and includes the tailings outfall pipe that
is within the dam and reservoir.
1.2.113 "Tax" means any one or more of the Taxes.
1.2.114 "Taxes" means any and all taxes, levies, imposts, duties,
customs duties, stamp duties, fees, withholdings, assessments,
deductions or charges whatsoever, imposed, assessed, levied or
collected by any Governmental Authority, together with interest
thereon and penalties with respect thereto, including occupational,
excise, unemployment, ownership, sales, GST, value added, gross
receipts, income taxes, municipal taxes, financial transaction taxes,
payroll taxes, employer contributions (both statutory and otherwise)
and workers compensation payments and contributions.
1.2.115 "Total Project Cost" means the aggregate final cost and
expense incurred by the Owner in procuring the completion of the
Project, including the Fee and the Trade Cost.
1.2.116 "Trade Contract" means a contract (including a purchase order)
entered into by the Owner, or by the Contractor as disclosed agent for
the Owner, and a Trade Contractor for the provision of work, services,
construction labour, procurement, materials, products, supplies or
other things for the Project, but excludes contracts for the purchase
or lease of mining equipment or the purchase and transportation of
consumables used in actual mining operations in the open pit part of
the Project.
1.2.117 "Trade Contractor" means someone, other than the Contractor
and regular employees or temporary employees of the Owner, who enters
into a contract with the Owner under a Trade Contract, and includes
all Vendors and Suppliers and those who supply any construction labour.
1.2.118 "Trade Cost" means the sum of all amounts payable to Trade
Contractors for performing the Trade Contracts.
1.2.119 "VAT" means the value added tax, if any, payable by the Owner to
the extent imposed on payments under this Contract by the Applicable
Laws of Venezuela.
1.2.120 "Vendor" means someone who supplies plant, materials, equipment,
products or supplies for the Project.
1.2.121 "Work" means all engineering and design, procurement,
manufacturing, construction, erection, installation, start-up,
Commissioning, calibration, testing and all other work, material,
services and equipment required to produce a fully functioning and
operating Facility and that meets the Performance Guarantees, but does
not include the Services.
1.2.122 "World Bank Guidelines" means each and all of the World Bank
Guidelines in regard to the development and operation of projects, the
IFC Guidelines, the Equator Principles and all Appendices to the
Equator Principles, including the World Bank Pollution Prevention and
Abatement Handbook which went into official use on 1 July 1998, all as
amended from time to time.
1.3 Interpretation
1.3.1 The documents comprising the Contract are complementary and
what is called for by any one of them shall be as binding as if called
for by all.
1.3.2 In this Contract, unless the context otherwise expressly
requires:
(a) reference to parts, clauses, schedules, exhibits and appendices
are a reference to them of, in and to this Contract;
(b) reference to specific General Conditions, Sections, Clauses,
Paragraphs, Sub Paragraphs and Appendices are references to such
General Conditions, Sections, Clauses, Paragraphs, or Sub Paragraphs
of, or Appendices to, the Contract and the terms Section, Clause and
Paragraph are used interchangeably and are synonymous when referring to
a provision of an Appendix;
(c) reference to a General Condition, Section, Clause or Paragraph of
the Contract or any Appendix thereto followed by a number shall be
deemed to be a reference to the whole of the General Condition,
Section, Clause or Paragraph of the Contract or Appendix, as
applicable, bearing that number and includes all subsidiary provisions
containing that same number as a prefix;
(d) reference to this Contract is deemed to include this Contract as
amended, novated,
supplemented, varied or replaced from time to time;
(e) any entitlement of the Owner or the Owners Representative to
exercise any judgment, discretion, or decision-making power, or power
to assess compliance by Contractor with its obligations under this
Contract, and to give Directions, shall be exercised reasonably,
professionally, and in accordance with this Contract;
(f) the Contractors obligations in respect to any requirement herein
to cause Trade Contractors to agree to any specific term or condition
in a Trade Contract shall be limited to:
(i) exercising the standard of care set out in GC 3.3.3;
(ii) using all reasonable efforts to comply with the requirements of
the Contract for the content of all Trade Contracts;
(iii) using all reasonable efforts to comply with the Owners
instructions regarding the inclusion of any specific term or condition
in a Trade Contract that the Owner notifies the Contractor that the
Owner requires in such Trade Contract; and
(iv) promptly notifying the Owner, prior to finalization and award of
any such Trade Contract, of the actual terms available to the extent
that they vary from those required herein or from the instructions of
the Owner as to the terms required, and then obtaining the Owners
instructions as to the course of action required of the Contractor by
the Owner, including in the discretion of the Owner agreement to the
proposed terms that vary from those required by the Contract or the
Owner, instructions to negotiate further with such Trade Contractor, or
instructions to negotiate and award the Trade Contract to a different
Trade Contract; and
(g) the Contractors obligations in respect any requirement herein to
cause Trade Contractors to comply with any term or condition in a Trade
Contract shall be limited to:
(i) exercising the standard of care set out in GC 3.3.3;
(ii) using all reasonable efforts and taking all reasonable steps,
short of commencing arbitration or litigation, to compel compliance by
the Trade Contractor, including to the extent permissible under the
Trade Contract withholding payment, rejecting work and backcharging the
Trade Contractor; and
(iii) obtaining the Owners instructions in respect thereof.
1.3.3 In this Contract:
(a) the terms "includes", "including" and similar expressions, whether
or not used with the words "without limitation" or "but not limited to",
shall not be deemed limited by the specific enumeration of items but
shall in all cases be deemed to be without limitation and construed and
interpreted to mean "includes without limitation" and "including without
limitation";
(b) a reference to a Court is to a Canadian court;
(c) words denoting any gender include all genders, and words in the
singular include the plural and vice-versa;
(d) a reference to any legislation or legislative provision includes
any statutory modification or re-enactment of, or legislative provision
substituted for, and any subordinate legislation issued under that
legislation or legislative provision;
(e) a reference to any Party includes that Party's executors,
administrators, substitutes, successors and permitted assigns;
(f) a reference to a business day is to a day that is not a Saturday,
Sunday or any other day which is a public holiday or a bank holiday in
the place where an act is to be performed or a payment is to be made, and
if an act is required to be done on a specified day which is not a
business day then the act shall be done instead on the next business day;
(g) a reference to a day, month or year is a reference to a calendar
day, calendar month or a calendar year, provided however that a reference
to a month or a year calculated from a specific day means the number of
calendar months or calendar years from that date and to the end of the
same calendar day from which the time was calculated;
(h) a reference to $, USD or dollar is to United States of America
currency;
(i) references containing terms such as "all reasonable efforts", when
used in connection with an obligation of either Party, means taking in
good faith and with due diligence all reasonable steps to achieve the
objective and to fulfil the obligation at the earliest possible time,
including doing all that can reasonably be done in the circumstances and,
in any event, taking no less steps and efforts than those that would be
taken by a reasonable and prudent person in comparable circumstances but
where the whole of the benefit or detriment of the obligation and where
all the results of taking such steps and efforts accrued solely to that
person's own benefit or detriment;
(j) references containing terms such as "by the Contractor" and "by or
through the Contractor" and terms of like import are synonymous and mean
by the Contractor or by anyone employed by or through the Contractor and
for whom the Contractor is responsible, including the Contractor and
its officers, employees, subcontractors, consultants and agents;
(k) unless otherwise expressly specified in the Owners Requirements,
all units of measurement in any documents submitted by the Contractor
to the Owner shall be in accordance with and comply with the SI system
of units; and
(l) terms not defined but used in the Contract which have a
recognized technical meaning commonly understood by the gold mining
industry in North America will be construed as having that meaning
unless the context otherwise requires.
1.3.4 References to a statute or other Applicable Law shall include
all regulations, by laws, ordinances and orders made under or pursuant
to the statute or other Applicable Law.
1.3.5 Headings, whether of portions of the Agreement, General
Conditions, Sections or Clauses and whether contained in the Contract
or any schedule or appendix thereto, are for reference purposes only
and shall not constitute a part of the Contract or affect the meaning
or interpretation of the Contract.
1.3.6 This Contract is a negotiated contract and no rule of
construction or contra proferentum applies to the disadvantage of a
Party on the basis that such Party put forward or drafted the Contract
or any part thereof.
1.4 Ambiguous and Inconsistent Terms
1.4.1 If the Owners Representative reasonably considers, or the
Contractor notifies the Owners Representative in writing, that there is
a conflict, ambiguity, inconsistency or discrepancy in or between or
among any of the terms of this Contract, the Owners Representative will
determine the interpretation which the Parties shall follow and will
notify the Contractor accordingly in writing.
1.4.2 The Owners Representative, in giving a direction in accordance
with GC 1.4.1, is not required to determine whether or not there is an
ambiguity or inconsistency.
1.4.3 Subject to the Contractors right under GC 29 to dispute a
determination of the Owners Representative made under GC 1.4.1, the
Contractor will not be entitled to make any Claim (insofar as is
permitted by Applicable Laws) arising out of or in connection with any
conflict, ambiguity, discrepancy or inconsistency referred to in, or a
direction of the Owners Representative under, this GC 1.4.
1.5 Provisions in the Scope of Services
1.5.1 In the Scope of Services, but subject to GC 3.3.3:
(a) where an obligation is prescribed, the Contractor shall fulfil
that obligation;
(b) where an action is required or contemplated to be taken, the
Contractor shall take
that action unless it is expressly stated that the Owner will take that
action;
(c) where a precondition is prescribed in relation to any right or
benefit that the Contractor might become entitled to enjoy, then the
Contractor will only be entitled to the right or benefit if the
precondition is satisfied; and
(d) where a right or benefit is given to the Owner or the Owners
Representative, the Owner or the Owners Representative, as the case may
be, may enjoy that right or benefit even though the right or benefit is
not expressly prescribed by this Contract.
2. PERSONNEL AND CONTRACT ADMINISTRATION
2.1 The Owners Representative
2.1.1 The Owners Representative will give directions and carry out
all of the other functions of the Owners Representative under the
Contract as the agent of the Owner (and not as an independent
certifier, assessor or valuer).
2.1.2 The Contractor shall comply with any direction by the Owners
Representative given or purported to be given under a provision of this
Contract.
2.1.3 Except where the Contract otherwise provides and except in
relation to either an environmental or safety related issue where the
Owners Representative perceives a risk of potential harm or danger, the
Owners Representative may only give a direction in writing.
2.1.4 The Owner may replace the Owners Representative by Notice to
the Contractor at any time.
2.1.5 The Owner shall cause the Owners Representative to do or
refrain from doing all things which this Contract provides that the
Owners Representative shall do or refrain from doing, as the case may
be.
2.1.6 The Contractor shall not be required to comply with any
direction given by the Owners Representative under GC 2.1.1, GC 2.1.2
or GC 2.1.3 which is not consistent with good professional practice.
Where the Owners Representative gives the Contractor a direction which
is not consistent with good professional practice, but which is not
forbidden by good professional practice, the Contractor shall be
excused from all liability in respect of following such instruction
from the time at which the Contractor gives the Owners Representative
Notice of the inconsistency and sets out in that Notice a
non-exhaustive summary of expected adverse consequences on the Project
of complying with such instruction.
2.2 Delegation of the Owners Representatives Power
2.2.1 The Owners Representative may by Notice to the Contractor
appoint delegates to exercise any of the Owners Representatives
functions under this Contract and, by further Notice to the Contractor,
may terminate such appointments.
2.2.2 The Owner will promptly inform the Contractor in writing of:
(a) any replacement of the Owners Representative; and
(b) any delegation by the Owners Representative of the Owners
Representatives function under this Contract to a nominee, the extent
and the scope of that delegation, and any termination of appointment of
delegates.
2.3 Compliance with Directions
2.3.1 If the Contractor fails or refuses to comply with a direction
by the Owners Representative given in accordance with this Contract,
the Owner may notify the Contractor in writing of the Contractors
failure or refusal to comply with a direction of the Owners
Representative, in which case the provisions of GC 26.4 shall apply.
2.4 Delegation of Contractors Representatives Power
2.4.1 The Contractors Representative may by Notice to the Owner
appoint delegates to exercise any of the Contractors Representatives
functions under this Contract and, by further Notice to the Owner, may
terminate such appointments.
2.4.2 The Contractor shall promptly inform the Owner in writing of:
(a) any replacement of the Contractors Representative; and
(b) any delegation by the Contractors Representative of the
Contractors Representatives functions under this Contract to a nominee,
the extent and the scope of that delegation, and any termination of
appointment of delegates.
2.4.3 The Contractors Representative or the Contractors
Representatives delegate shall be available at all times at the Site
when the Contractor is performing the Services on the Site.
2.5 Contractors and Owners Acknowledgments
2.5.1 The Contractor and the Owner acknowledge and agree that:
(a) any notice, consent, approval or other communication given or
signed by the Contractors Representative or any Contractors
Representatives delegate will bind the Contractor;
(b) matters within the Contractors Representatives knowledge will be
deemed to be within the knowledge of the Contractor;
(c) any direction, consent, approval or other communication given or
signed by the Owners Representative or by a delegate appointed under GC
2.2 on behalf of the Owners Representative to any Key Personnel will be
deemed to have been given to the Contractor; and
(d) matters within the Owners Representatives knowledge will be
deemed to be within the knowledge of the Owner.
2.6 Personnel
2.6.1 The Contractor shall:
(a) provide experienced and skilled Contract Personnel to perform the
Services in accordance with its obligations under this Contract; and
(b) ensure that the Services are performed under the supervision of
appropriately qualified and experienced personnel.
2.6.2 Neither Party shall, without the prior agreement of the other
Party, solicit any employee of the other Party who has been involved in
the Project or this Contract while that person is working for the other
Party on the Project, or during the earlier of the date that is six
(6) monthsfollowing that persons termination of employment by the other
Party and the last date that such person worked on the Project for that
other Party.
2.6.3 The Contractor acknowledges and agrees that the Key Personnel
are critical for the proper management, supervision and performance of
the Services on schedule and budget. The Contractor shall assign to the
performance of the Services the Key Personnel, who the Contractor shall
ensure will give the performance of the Services priority over any and
all other work, tasks and assignments that they may otherwise have
assigned to them by the Contractor in relation to other existing or
future projects. No Key Personnel shall be hired by any affiliate of
the Contractor for any other work or project without the prior written
consent of the Owner, which consent is subject to such terms as the
Owner may require, and if the Contractor wishes to replace any Key
Personnel as aforesaid the Contractor shall:
(a) first, demonstrate to the Owners reasonable satisfaction that the
proposed replacement personnel have comparable or superior
qualifications and experience to those they are proposed to replace; and
(b) absorb the cost of any learning and training required to bring
such replacement personnel up to the same knowledge and level of
productivity of the personnel replaced.
2.6.4 The Owner may, in its absolute discretion, direct the
Contractor to remove from the Site, or from any activity connected with
performance of the Services, any Contract Personnel engaged or employed
in connection with the performance of the Services, provided that if
the Owner does not provide reasonable grounds for requiring such
removal the said direction shall constitute a Change Directive in
accordance with and subject to GC 15.
2.6.5 The Contractor shall comply with a direction made under GC
2.6.4 within the time specified by the Owner.
2.6.6 Notwithstanding any other provision of this Agreement, the
Contractor is solely responsible for, and shall consult with the Owner
and provide the Owner with such information as the Owner may require
with respect to, the accommodation, sustenance and medical care of
Contract Personnel.
2.6.7 In consultation with the Owners Representative, the Contractor
shall assign the Key Personnel to complete various portions of the
Services. The Contractor shall ensure that the Key Personnel are
available to follow through and ensure the completion of such portions
of the Services as are assigned to them.
2.6.8 As the Key Personnel are critical for the proper management,
supervision and performance of the Services on schedule and budget, the
Contractor acknowledges and agrees that:
(a) it will pay to the Owner Liquidated Damages at the relevant rate
and up to the maximum amount of Liquidated Damages as stated in the
Schedule of Key Personnel, for every day for which a member of the Key
Personnel is removed from or not available for the Services, but for
which they are required to be so available, until the earlier of:
(i) the day that the member of the Key Personnel is again made
available;
(ii) the date that the member of the Key Personnel is replaced with a
substitute person approved by the Owners Representative;
(iii) the date that this Contract is terminated; and
(iv) the date of Final Acceptance, unless such removal is due to
resignation, serious illness, injury or death of the Key Personnel or
is otherwise approved by the Owners Representative, or directed by the
Owner under GC 2.6.4;
(b) the specified rates of Liquidated Damages are separate and
cumulative for each member of the Key Personnel;
(c) if the Owners entitlement to, and the Contractors liability for,
Liquidated Damages under GC 2.6.8(a) is or becomes void, voidable or
unenforceable for any reason or there is no amount specified in the
Schedule of Key Personnel, then
the Contractor shall not be entitled to or charge the Owner for any
work or services performed by replacement personnel for that amount of
their time that is equivalent to the Liquidated Damages that, but for
the foregoing, the Contractor would otherwise be required to pay to the
Owner for the Contractors failure to provide the Key Personnel in
accordance with this Contract; and
(d) notwithstanding the foregoing, if a maximum amount of Liquidated
Damages is stated in the Schedule of Key Personnel, then the
Contractors liability under this GC 2.6.8 shall not exceed that maximum
amount.
2.7 Comments, Review, Representation or Approval by the Owner or the
Owners Representative
2.7.1 As the Owners Representative carries out its functions under
the Contract as agent of the Owner, neither the Owners Representative
nor a delegate appointed under GC 2.2 owes any duty to the Contractor
in discharging any of the functions of the Owners Representative under
the Contract.
2.7.2 No comment, review, representation or approval by the Owner or
the Owners Representative in respect of the Contractors obligations
under this Contract (including comments on, or review or approval of,
any Contract Material), or any other direction of the Owners
Representative given in accordance with this Contract, will lessen or
otherwise affect the Contractors obligations under this Contract and,
without limiting the generality of the foregoing, the Contractor shall
be solely responsible for any and all design and engineering for the
Project performed as part of the Services.
2.8 Project Control Group
2.8.1 The Project Control Group is:
(a) the Owners Representative; and
(b) the Contractors Representative.
2.8.2 The Owners Representative or the Contractors Representative may
invite any other person, whom either person reasonably requires, to
attend the Project Control Group meetings.
2.8.3 The Project Control Group shall meet:
(a) on a monthly basis; and
(b) at such other times as the Owners Representative and Contractors
Representative agree or, failing agreement, at such other times as the
Owners Representative may direct.
2.8.4 The Contractor shall:
(a) take minutes of all meetings held by the Project Control Group; and
(b) provide a copy of those minutes to the Owner's Representative.
2.8.5 In respect of minutes provided pursuant to GC 2.8.42.8.4(b), the
Owner's Representative shall:
(a) if the Owner's Representative disagrees with the minutes, discuss
and then amend the minutes to reflect the agreed position or the
results of the meeting; and
(b) give to the Project Control Group members a copy of the amended
minutes at which point the amended minutes will be deemed to be the
official record of the relevant meeting.
2.9 (Intentionally deleted)
2.10 Contractor's Request for Information
2.10.1 The Contractor acknowledges and agrees that, other than as
expressly provided elsewhere in this Contract, it is the Contractors
responsibility to make all enquiries, obtain all information and make
all judgments that are relevant to and necessary for the performance of
the Services.
2.10.2 The Contractor shall not delay the progress of the Services or
any part of it by reason of the Contractor awaiting information from
the Owner or the Owners Representative:
(a) unless this Contract expressly provides otherwise;
(b) unless the Owners Representative otherwise in writing directs the
Contractor; or
(c) except to the extent that the Contractor cannot reasonably
proceed with the Services without the information.
2.11 Records Open for Inspection and Audit
2.11.1 The Contractor shall keep and maintain:
(a) the records identified in the Project Procedures Manual; and
(b) all other Contract Material relating to the Project, at the
Contractors address as set out in the Agreement.
2.11.2 The Contractor shall ensure that all Contract Material relating
to the Project, and the quality system and the records and Contract
Material referred to in GC 2.11.1 are available to the Owner (or
persons nominated by the Owner) at all reasonable times for
examination, audit, inspection, transcription and (in respect of
records only) copying.
2.11.3 The Contractor shall keep and maintain at the Site for use by
the Owner a current set of the documents comprising the Contract, all
Contract Material and all documents, drawings, instructions issued by
the Owner in connection with the Project. In addition, the Contractor
shall keep and maintain on Site one (1) full set of all drawings in
good order, on which the Contractor shall keep a current record of all
changes and as built information.
2.11.4 The Contractor shall at its expense keep and maintain full and
detailed records and accounts in connection with the performance of the
Contract in accordance with both generally accepted accounting
principles and the minimum standards and practices of comparable
national or international engineering firms in North America for
keeping and maintaining such records and accounts.
2.11.5 If and whenever required by the Owner, the Contractor shall
submit records, accounts and other data in a form and with such
breakdown as may be reasonably required by the Owner for the Owner to
maintain segregated accounts of the Work for the Owners own records as
may be required of the Owner by Applicable Laws or to satisfy any
Governmental Authorities, but unless required by Applicable Laws or
Governmental Authorities such breakdowns shall be limited to
reimbursable amounts and not the makeup of negotiated rates. Such
segregation may include separate accounting for taxable and non-taxable
expenditures with respect to among other things buildings, land
improvements, engineering and project management, interconnection,
permit and licence costs, and taxes and fees paid by the Contractor.
2.11.6 The Contractor shall at all times, and for at least three (3)
years after final payment under the Contract, keep full and
comprehensive records of all time spent by each and all Contract
Personnel, expenditures made, and indebtedness incurred with respect to
the Contract or for which it may be entitled to payment or reimbursement
by the Owner. All such records and documents in connection with the
Project or in respect of which the Contractor claims compensation from
the Owner shall be subject and open to inspection and audit by the
Owner at any time upon demand from the Owner, which inspection and
audit shall take place during normal business hours and at the
Contractors normal places of business unless the Owner and Contractor
otherwise agree.
2.11.7 In conducting an audit of the Contractor the Owner shall have
all powers necessarily incidental to conducting an audit, including the
right to have access to and inspect and take copies of all books and
records of the Contractor in connection with the Contract, upon
reasonable notice and at reasonable times. The Contractor shall fully
cooperate with the Owner and its auditors in the conduct of any audits,
including by making available all such records and accounts as they may
require to perform a full and detailed audit, and the Contractor
further agrees to promptly review and settle with the Owner all matters
arising from such audits, including the refunding of monies to the Owner
where applicable. Without limiting the generality of the foregoing, the
Contractor shall make available to all auditors of the Owner all books,
records, data and documentation as they consider necessary to allow them
to perform a full and comprehensive audit. At the
request of the Owners auditors the Contractor shall provide such
records, data and documentation as the Owners auditors may reasonably
require to substantiate all costs, expenditures and allocations
incurred or made by the Contractor in connection with the Project, and
to confirm that they are consistent with the Contractors historical
costs, charges and allocations for similar work for others, or if there
are no historical costs then consistent with generally accepted
accounting principles used by major international engineering firms.
2.11.8 In addition to the financial audit of the Contractors accounts
pursuant to GC 2.11.7, the Owner shall have the right to monitor and
audit the performance of any and all parts of the Services wherever
located, and the Contractor shall cooperate with, and shall require
that its subcontractors cooperate with, and provide access to the
representatives of the Owner monitoring and auditing such parts of the
Services, including providing them with access and copies of all
relevant manufacturing, inspection, QA, QC and other records and
documents pertaining thereto.
2.11.9 If this Contract is terminated, the Contractor shall give the
Owner any records and Contract Material referred to in GC 2.11.1 which
are necessary for the orderly continuance of the Services by another
Person.
2.12 Privacy
2.12.1 The Contractor and the Owner warrant that they will comply with
applicable Privacy Law in relation to the collection, use or disclosure
of Personal Information in relation to this Contract.
2.12.2 The Contractor and the Owner agree to:
(a) observe the Privacy Law for all Personal Information collected or
dealt with by the Contractor or the Owner (as the case may be) under
this Contract;
(b) take reasonable measures to ensure that Personal Information
relevant to this Contract is protected against:
(i) misuse or loss; and
(ii) unauthorised access, modification and disclosure, and that only
authorized personnel have access to Personal Information;
(c) ensure all personnel involved in collecting or dealing with
Personal Information are adequately trained as to the requirements of
the Privacy Law and this Contract;
(d) give the other Party reasonable assistance for it to resolve any
inquiry or complaint relating to Personal Information;
(e) promptly follow any reasonable direction of the other Party
regarding the Personal Information and compliance with the Privacy Law;
(f) promptly inform the other Party of any breach of this GC 2.12.
3. GENERAL REQUIREMENTS REGARDING SERVICES
3.1 General
3.1.1 The Contractor shall provide and perform the Services described
in Appendix 2 Scope of Services as required to complete the Project,
meet the Owners Requirements and Performance Guarantees, and achieve
Final Acceptance, all:
(a) in accordance with the requirements of this Contract; and
(b) unless otherwise stated, at its cost.
3.1.2 The Contractor is solely responsible for the performance of the
Services. This obligation is not affected by any approval given by the
Owner or any Governmental Authority.
3.1.3 The Contractor shall provide leadership as well as engineering,
procurement, construction, scheduling and coordination expertise.
3.1.4 The Contractor shall:
(a) diligently prosecute the performance of the Services for the
purpose of completing the Services and Facility so that:
(i) each of the Milestone Dates in the Milestone Schedule from and
after the Milestone Date for commence construction will be met,
including the Milestone Dates for Industrial Completion and Final
Acceptance; and
(ii) the Project Schedule will be met.
(b) if and when a Notice to Proceed With Project Execution Services
has been issued by the Owners Representative, use all reasonable
efforts to achieve Final Acceptance for the Project within the Approved
Project Budget;
(c) before the related construction work on any portion of the
Project is commenced, ensure that the Detailed Design Documentation and
methods of working proposed or specified in respect thereof by itself or
any Trade Contractor are approved by the Owners Representative;
(d) establish and implement a quality assurance system for the of the
Project in accordance with the Scope of Services and which complies with
ISO 9000: 2000;
(e) recommend and seek the Owners approval to undertake all studies,
reviews, investigations and other processes and value engineering which
in the opinion of
the Contractor are necessary to enable the Contractor to inform the
Owner of all reasonable available advantages or benefits to the
Project, and in particular:
(i) uses of the Site;
(ii) selections of materials;
(iii) building techniques and equipment; and
(iv) alternative designs and materials; and
(f) perform the Services, and use all reasonable efforts to ensure
(but does not guarantee) that all Trade Contractors perform their Trade
Contracts, in a manner which meets all Applicable Laws relating to or
governing occupational health and safety and the Owner Standards and
Procedures.
3.1.5 The Contractor:
(a) shall use all reasonable efforts to inform itself of the Owners
requirements for the Services and the Project and, for that purpose,
regularly consult with the Owners Representative throughout the
performance of the Services (including requesting instructions from the
Owners Representative and seeking comments on, or review or approval, of
any Documentation);
(b) shall at all times provide the Services in accordance with the
Owners requirements referred to in GC 3.1.5(a) and any instructions
given by the Owners Representative; and
(c) is responsible at its own cost and without reimbursement from the
Owner for the re-performance of any Services which are required because
of a failure to provide the Services in accordance with the Contract or
the Owners requirements as such requirements are expressly made known to
the Contractor under and in accordance with the Contract.
3.2 Budgetary Constraints
3.2.1 The Contractor acknowledges that the Owner has budgetary
constraints and limitations for the Project and agrees to cooperate
with the Owner in the Owners efforts to control and monitor its budget
for the Project, including (subject to locking in each element of the
design of the Facility in accordance with the standard of care set out
in GC 3.3.3 or as may be specifically directed by the Owner) by
assisting the Owner to identify any value engineering and cost-saving
exercises which can be reasonably expected to reduce the cost to the
Owner for the Project. Without limiting but in addition to the
foregoing, the Contractor shall use all reasonable efforts to perform
its Services expeditiously and economically and, in doing so, shall:
(a) assign personnel to the Services in consultation with the Owners
Representative and not assign any more personnel to the Services than
the number of personnel reasonably required to perform the Services;
(b) assign to the performance of the Services only personnel who are
qualified by education or experience to perform the work in which they
are engaged and who have such professional qualifications and
credentials as may be required by Applicable Law, Governmental
Authorities or Prudent Industry Practice, unless the Owners
Representative otherwise expressly agrees in writing;
3.2.2 Once the budget for the Services has been established and
approved by the Owners Representative, the Contractor will monitor all
costs of the Services against the approved budget for Services and
provide reports, on a monthly or such other frequency as may be agreed
to by the Owners Representative, forecasting the costs to complete all
of the Services. Such reports shall be in a format agreed to between
the Owner and the Contractor and, among other things, contain the
following:
(a) the actual hours expended and costs incurred by the Contractor on
Services for which the Owner is responsible, both since the last report
and since the commencement of the Services;
(b) identification of and explanation for any variances between the
actual hours expended and the actual costs incurred, and the
projections for those hours and costs in the approved budget for the
Services;
(c) the hours and costs forecasted by the Contractor for the
provision of Services for the next monthly period, and the cumulative
totals of hours and costs for the provision of all Services from the
commencement to the completion of the Services, together with the
identification of and explanation for variances between those
projections and the approved budget for Services;
(d) to the extent not already included in the above, a list of any
outstanding requests for changes to the Scope of Services to date; and
(e) the identification of any further changes to the Scope of
Services that may be required to completion of the Project.
3.2.3 The Owners Representative and the Contractors Representative
shall meet monthly, or at such other times as they may agree, to review
the aforesaid reports provided by the Contractor and to review the
approved budget for the Services to identify areas of potential cost
over-runs and under-runs, the reasons therefor, and forecasts to
complete the Services.
3.3 Warranties and Standard of Care
3.3.1 The Contractor warrants to the Owner that it and its Contract
Personnel shall at all material times have the particular skill,
experience and ability necessary to perform the Services and will
continue to have them during the term of this Contract, and that the
Contractor will comply with the requirements of this GC 3.3.
3.3.2 All parts of the Services required by Applicable Laws to be
performed by licensed or registered professional engineers or
architects shall be performed by licensed or registered professional
engineers and architects. Without limiting the generality of the
foregoing, all design shall, to the extent required by Applicable Laws,
be reviewed by professional engineers registered to practice
professional engineering in the jurisdiction in which the Site is
located.
3.3.3 In the performance of all of the Services, and all parts of the
Services, the Contractor shall exercise no less standard of care and
diligence than the generally accepted standard of care and diligence to
be exercised for professional and other services of a similar nature in
respect of comparable mining projects in North America by recognized
reputable North American engineering firms engaged in the performance
comparable services in respect of such types of projects, and the
Contractor shall perform the Services in a competent and efficient
manner, apply suitable and sufficient qualifications, experience,
expertise and resources to this Project, observe sound management,
technical, engineering and consulting practices, and employ appropriate
sound, proven technology and methods, and use all due diligence,
efficiency and economy, and exert all reasonable efforts, as required
to comply with the said standard of care for the intended purpose of
completing the Facility and meet the Date for Industrial Completion,
all other Milestone Dates, and the Approved Project Budget.
3.3.4 Without limiting but in addition to any other obligation on the
Contractor pursuant to this Contract or under Applicable Law, the
Contractor and its subcontractors, and their respective consultants,
shall for all engineering and design use only design personnel who,
through education, training and experience, have the requisite
knowledge and skills to perform the part of the Services assigned to
them and which is consistent with the general design standards
specified in the Contract, including GC 3.3.3.
3.3.5 The Contractor shall ensure that any subcontractor appointed by
it to provide part of the Services performs that part of the Services
with the professional skill, care and diligence expected of a
professional consultant experienced in projects of a similar nature to
the Project and activities of a similar nature to the part of the
Services subcontracted to that subcontractor.
3.3.6 The Contractor warrants to the Owner that it has examined:
(a) the Scope of Services;
(b) the Milestone Schedule; and
(c) all other information or documents relating to the Project
provided to the Contractor by the Owner,
and is satisfied of their sufficiency for the purpose of complying with
its obligations under this Contract, and that in the opinion of the
Contractor based on its knowledge at the time of execution of the
Contract, the Scope of Services, the Performance Guarantees, the
Milestone Schedule and the Approved Project Budget can all be met or,
in the case of the Scope of Services, performed.
3.4 Equipment Importation
3.4.1 The Contractor shall cause Trade Contractors to make and be
responsible for all arrangements, including the preparation,
translation and processing of all documentation, necessary to import
into Venezuela all permanent equipment to be incorporated into the
Facility and any and all other tools, items and Goods necessary to
complete the Project, and the Contractor shall coordinate with the
applicable Governmental Authorities in achieving clearance of customs
for all such permanent equipment, tools, other items and Goods at the
earliest time and, to the extent available under the Applicable Laws,
achieving such importation duty free and tax free.
3.4.2 Unless the Owner otherwise agrees in writing, all tools, other
items and Goods imported into Venezuela by the Contractor and Trade
Contractors shall be imported in the name of Compania Aurifera Brisas
del Cuyuni, C.A.
3.4.3 Without limiting but in addition to GC 3.4.1, the Contractor
shall arrange and provide for any and all of its Goods imported into
Venezuela, and shall require Trade Contractors to arrange and provide
for any and all of their permanent equipment to be incorporated into
the Facility imported into Venezuela, and any and all of their other
tools, items and goods necessary to complete the Project imported into
Venezuela, such documentation and detailed information, including
Spanish translations of import documents, brochures and detailed
specifications as may be required, for submission to custom duty
officers and other Governmental Authorities before shipping and after
import as may be necessary to obtain exoneration or, where exoneration
is not possible, to minimize import and other duties and Taxes on such
Goods.
3.5 Continuing Warranties
3.5.1 The warranties contained in GC 3.3 will be treated as made and
be binding upon the Contractor continuously during the term of this
Contract.
4. REGIONAL SOCIO-ECONOMIC BENEFITS AND INDIGENOUS PEOPLES
4.1 Indigenous Peoples
4.1.1 The Contractor shall comply with the Indigenous Peoples Plan
and enforce compliance by the Trade Contractors with the Indigenous
Peoples Plan.
4.1.2 If compliance with the Indigenous Peoples Plan affects the
Project Budget or the Milestone Date for Industrial Completion, either
Party may request a Change Order.
4.2 Regional Socio-Economic Benefits
4.2.1 The Contractor shall comply with the Regional Socio-Economic
Benefits Commitments.
4.2.2 If compliance with the Regional Socio-Economic Benefits
Commitments affects the Project Budget or the Milestone Date for
Industrial Completion, either Party may request a Change Order.
5. PROTECTION OF THE ENVIRONMENT
5.1 General
5.1.1 The Contractor shall, in accordance with the requirements of
the Contract, prepare and implement procedures to comply with the
Environmental Management Plan.
5.1.2 Contractor shall ensure that the design and construction of the
Facility and Project is in accordance with the environmental protection
requirements of Applicable Laws and Mining Industry Standards, The
International Cyanide Management Code, and World Bank Guidelines.
6. [INTENTIONALLY DELETED]
7. PROJECT EXECUTION SERVICES
7.1 Progression to Project Execution
7.1.1 Unless otherwise stated in the Notice to Proceed With Project
Execution Services, the issue of a Notice to Proceed With Project
Execution Services by the Owners Representative to the Contractor
authorises the Contractor to commence Project Execution.
7.1.2 If the Notice to Proceed With Project Execution Services
identifies matters which require further development by the Contractor
or further negotiations between the Owner and the Contractor, the
Contractor and the Owner will co-operate in good faith to resolve and
agree upon such matters.
7.2 General Obligations
7.2.1 The Contractor shall provide the Project Execution Services as
required to achieve Final Acceptance for the Project in accordance with
the requirements of this Contract and any other requirements of the
Owner as notified by the Owner to the Contractor.
7.2.2 The Project Execution Services to be carried out by the
Contractor include:
(a) the performance of Detailed Design and the preparation of the
Detailed Design Documentation;
(b) procurement services;
(c) co-ordination and administration services; and
(d) compliance with all Applicable Laws.
7.2.3 The Contractor shall commence the Project Execution Services on
the date specified in the Notice to Proceed With Project Execution
Services or as otherwise directed by the Owners Representative and
ensure that Industrial Completion is achieved by the Date for
Industrial Completion and Final Acceptance is achieved by the Date for
Final Acceptance.
7.3 [Intentionally deleted]
7.4 Project Execution Project Planning Obligations
7.4.1 The Contractor shall, during Project Execution, ensure that the
Project Plan is updated:
(a) periodically as directed by the Owners Representative; or
(b) if no such direction is given, weekly; and
(c) to show progress achieved; and
(d) where appropriate, to show changes to the sequence and duration
of activities required to meet the Date for Industrial Completion
(including the effect (if any) of any extension of time) together with
any corresponding changes to proposed manpower and shifts to be worked
and resources to be utilised, and that a copy of each update is
promptly provided to the Owners Representative for approval.
7.4.2 The Owners Representative may reject an updated Project Plan or
require amendments to be made to it within seven (7) days of receiving a
copy of such updated Project Plan.
7.4.3 Where the Owners Representative rejects a Project Plan, the
Contractor shall submit a corrected and revised Project Plan within
seven (7) days of being notified that the Project Plan is rejected.
7.4.4 The Contractor acknowledges and agrees that review of, comments
on or approval of, or any failure to review or comment on, any updated
Project Plan by the Owners Representative will not:
(a) relieve the Contractor from or alter its liabilities or
obligations under this Contract, including the obligation to ensure
that Industrial Completion occurs by the Date for Industrial Completion
and Final Acceptance by the Date for Final Acceptance;
(b) evidence or constitute a direction by the Owners Representative
to disrupt, prolong or vary the Project; or
(c) affect the time for carrying out the Owner or the Owners
Representatives Contract obligations.
7.5 Project Execution Cost Planning Obligations
7.5.1 The Contractor shall:
(a) regularly review the Approved Project Budget with the Owners
Representative;
(b) inform the Owners Representative if it becomes aware of any
likely or actual cost overruns on the budget estimates for the Trade
Contracts;
(c) identify and advise the Owners Representative of any potential
cost savings in any of the Trade Contracts; and
(d) use all reasonable efforts to identify and advise the Owners
Representative of the appropriate measures for ensuring that the total
budgeted cost of the Project (as stated in the Approved Project Budget)
is not exceeded.
7.6 Rights and Obligations Not Affected
7.6.1 No review or approval by the Owner or the Owners Representative
of any one or more of the following will relieve the Contractor of its
responsibility for preparing and implementing each of the following
plans with such detail and content as may be reasonably required for
the proper execution of the Project and to conform to the standards of
care required by GC 3.3.3:
(a) the environmental procedures for implementing the Environmental
Management Plan;
(b) the Safety and Health Plan;
(c) the Human Resources and Industrial Relations Plan;
(d) the Quality Assurance Plan;
(e) Trade Contract provisions requiring Trade Contractors to comply
with the Indigenous Peoples Plan; and
(f) the Project Procedures Manual;
8. SITE
8.1 Owner Site Information
8.1.1 The Contractor is entitled to rely upon the accuracy of the
following information as provided by the Owner:
(a) Metallurgical test data, but not opinions or conclusions
expressed in metallurgical test reports based on such data;
(b) Bore hole logs and geotechnical logs of test pits, but not
opinions or conclusions expressed in documents containing such logs;
(c) Hydrology reports;
(d) Climatological data;
(e) Topographical surveys, except in those areas of the Site where
facilities are to be located;
(f) Concession boundaries;
(g) Location and characteristics of existing electrical substation;
(h) Feasibility Study, subject to the Contractors obligations during
the Project Definition Phase to review the Feasibility Study and make
recommendations to the Owner regarding the sufficiency and reliability
of information contained therein and any additional work that may be
required, all to develop the detailed Project scope and Approved
Project Budget for the Project Execution Phase.
8.1.2 Subject to GC 8.1.1, where the Owner has made available to the
Contractor, whether before or after the Date of Contract, any
information, data and documents of any kind:
(a) the Owner does not warrant, guarantee or make any representation
about the accuracy or adequacy of any such information, data and
documents made available to the Contractor; and
(b) unless expressly provided otherwise in this Contract, such
information, data and documents do not form part of the Contract and GC
8.2 applies to the information, data and documents.
8.2 Contractors Acknowledgements
8.2.1 Subject to GC 8.1, the Contractor acknowledges and agrees:
(a) that it did not in any way rely upon:
(i) any information, data, representation, statement or document made
by or provided to the Contractor by the Owner or anyone on behalf of the
Owner; or
(ii) the accuracy or adequacy of any such information, data,
representation, statement or document,
for the purposes of entering into the Contract, except to the extent
that any such information, data, representation, statement or document
forms part of the Contract;
(b) that it enters into this Contract based on its own
investigations, interpretations, deductions, information and
determinations.
9. DESIGN
9.1 Preparation of Contract Material
9.1.1 Without limiting the obligations under Appendixes 2 and 7 of
this Contract
(a) the Contractor shall develop and complete to the Owners and all
applicable Mining Industry Standards and Prudent Industry Practice all
Contract Material required for the completion of the Project and the
Services; and
(b) Contract Personnel shall prepare the Contract Material and any
other design drawings and specifications with appropriate professional
qualifications.
9.1.2 The Contractor shall:
(a) give the Owners Representative for review two copies (or such
other number of copies as directed by the Owners Representative) of all
Contract Material (including amended versions) as soon as it is prepared
and in any event no later than the time indicated in the then current
approved Project Plan under GC 7.4 for the submission of the Contract
Material to the Owners Representative;
(b) allow no fewer than fourteen (14) days, before the time indicated
in the then current approved Project Plan under GC 7.4 for the issue of
the Contract Material to subcontractors, suppliers or Trade Contractors,
for the Owners Representative to review the Contract Material;
(c) not take any further steps in relation to any Contract Material
which it has submitted to the Owners Representative, including issue of
the Contract Material to subcontractors or Trade Contractors or
commencing procurement of the construction of the part of the Project
to which the Contract Material applies, unless the Owners
Representative has had no fewer than fourteen (14) days to review the
Contract Material and has not rejected the Contract Material; and
(d) if any Contract Material is rejected, submit amended Contract
Material to the Owners Representative for review, in which case this GC
9.1 will apply.
9.2 Review and Acceptance or Approval by Owner
9.2.1 Neither the Owner nor the Owners Representative undertakes any
responsibility or duty of care to the Contractor to review, or in
reviewing, the Contract Material for errors, omissions or compliance
with this Contract.
9.2.2 No review of, comments upon, rejection of, or failure to review
or comment upon or reject, any Contract Material prepared by the
Contractor or any other direction by the Owners Representative about
the Contract Material (provided the Contractor has not objected in
writing to, and within a reasonable time after, such a direction) will:
(a) relieve the Contractor from, or alter or affect, the Contractors
liabilities or responsibilities whether arising out of or in connection
with the Contract or otherwise according to Applicable Laws; or
(b) prejudice the Owners rights against the Contractor under this
Contract.
9.2.3 Without limiting but in addition to the provisions of GC 9.2.1
and GC 9.2.2, any review, acceptance, monitoring, approval or audit of
any Contract Material or part of the Services by the Owner or Owners
Representative shall not be interpreted or otherwise construed to be,
an acceptance or approval of any Contract Material or part of the
Services that is not in full conformance with all requirements of the
Contract
9.3 Ownership of, and Intellectual Property Rights in, Contract
Material
9.3.1 Subject to GC 9.3.2, the title, property rights and ownership
in and to all of the Contract Material shall immediately upon creation
vest in the Owner without payment in respect therefor (other than
amounts payable in accordance with GC 18 for Services rendered), and
the Contractor hereby assigns to the Owner all Intellectual Property
Rights (including future copyright), and waives all moral rights, in
all Contract Material upon the creation of that Contract Material or,
to the extent that any Intellectual Property Rights are not created at
the time of the creation of the Contract Material, upon the later
creation of the Intellectual Property Rights in that Contract Material.
The Contractors waiver of moral rights include without limitation waiver
of the right to the integrity of the Contract Material, waiver of the
right to be associated with the Contract Material, waiver of the right
to modify the Contract Material in any way, waiver of the right to
prevent use of the Contract Material in association with any product,
service, project or institution, and waiver of the right to restrain
publication of the Contract Material throughout the world. The Owner
shall at all times have the right to control, review and otherwise deal
with all Contract Material, and to deliver it to third parties, without
restriction. The Contractor shall, upon request from the Owner, do all
such things and execute and deliver to the Owner all such documents and
instruments as the Owner shall reasonably require in order to vest
title, property rights and ownership in the Owner in accordance with
the foregoing.
9.3.2 Subject to GC 9.3.3, the vesting of ownership, assignment and
waiver of moral rights in GC 9.3.1 will not extend to components of the
Contract Material:
(a) which have been developed by the Contractor for general use in
the Contractors work or business and which have not been specially
developed for the Project, or which comprise non-confidential and
non-identifying information which is of general application in the
Contractors services or business; or
(b) which consist of computer software developed by the Contractor
for general use in the Contractors work or business which is not
specific to the Project, and for which the cost of development has not
been charged to the Owner.
9.3.3 To the extent the Contract Material contains any Intellectual
Property Rights created prior to the Date of Contract or that were
developed by the Contractor independently of the Project, the
Contractor grants the Owner an irrevocable right and royalty free right
to use the Intellectual Property Rights solely for the purpose of the
Project, including any subsequent repairs to, maintenance or servicing
of (including the supply of replacement parts), or additions or
alterations to, the Project.
9.3.4 Subject to GC 9.3.2 and GC 9.3.3, the Contractor shall, if
required by the Owner, do all further things necessary to assign
Intellectual Property Rights in the Contract Material to the Owner.
9.3.5 The Owner hereby grants to the Contractor a revocable,
non-exclusive licence to use the Contract Material and the Owner
Documentation to the extent required to design the Project, procure the
construction of the Project and perform any other Services. The
Contractor may sub-licence the Contract Material to its subcontractors
where necessary for the performance of the Services.
9.3.6 The Contractor warrants that:
(a) the Contractor is able to assign the Intellectual Property Rights
in Contract Material as described in GC 9.3.1 and GC 9.3.4;
(b) use by the Owner, or by another person at the direction or with
the permission of the Owner, of Contract Material in accordance with
this Contract will not infringe the Intellectual Property Rights of any
third party or breach any Applicable Laws;
(c) neither the Owner, nor any other person acting at the direction
or with the permission of the Owner, is liable to pay any third party
any licence or other fee in respect of the use of Contract Material; and
(d) it will use all reasonable efforts to ensure all subcontracts and
Trade Contracts will include terms which provide for the assignment of
Intellectual Property Rights in the Contract Material to the Owner.
9.3.7 The Contractor shall indemnify the Owner against all costs,
losses, damages or liability incurred or suffered by the Owner, arising
out of or in any way in connection with, any actual or alleged
infringement of any Intellectual Property Rights directly related to
the use of Contract Material in accordance with this Contract.
9.3.8 If the Owner modifies or causes to be modified any Contract
Materials, or uses or alters the Contract Materials for any other
project there shall be no false attribution of such Contract Materials
to the Contractor and the following shall apply:
(a) such Contract Materials as modified or used for other projects
shall not be attributed to the Contractor unless the modifications are
clearly delineated and clearly attributed to others; and
(b) the Contractor shall not be responsible for the use or
application of such modified Contract Materials or use of such Contract
Materials for other projects.
9.4 Keeping Contract Material Safe
9.4.1 The Contractor shall, and shall ensure its subcontractors,
protect, keep safe and secure all documents, notes, reports, memoranda,
materials, software, disks and all other media, articles and things
provided by the Owner to the Contractor (including any Contract
Material held by a subcontractor), including all Contract Material and
the Owner Documentation.
9.5 Reproduction of Contract Material
9.5.1 The Contractor shall ensure that:
(a) the Owner Documentation;
(b) Contract Material; and
(c) anything else recording, containing, setting out, or making
reference to the Project,
is used, copied, supplied or reproduced only to the extent necessary
for the purposes of performing the Services, unless the Contractor has
obtained the prior written approval of the Owner to use it for any
other purpose.
9.6 Return of Contract Material
9.6.1 Subject to GC 9.6.2, the Contractor shall, within seven (7)
days after Final Acceptance (or such other period directed by the
Owners Representative), provide or return (as the context permits) to
the Owner:
(a) all the Owner Documentation;
(b) all Contract Material; and
(c) anything recording, containing, setting out, or making
reference to the Project except as otherwise specified in a direction
of the Owner's Representative.
9.6.2 Subject to the confidentiality provisions and requirements of
Appendix 17 - Confidentiality Agreement, the Contractor may keep one
set of the Contract Material referred to in GC 9.6.1 for its records
as is consistent with good professional practice, but only for legal
and archival purposes.
10. QUALITY OBLIGATIONS
10.1 Subcontracting
10.1.1 Subject to GC 10.1.2, the Contractor may enter into subcontracts
for the vicarious performance of its obligations under this Contract.
10.1.2 The Contractor shall obtain the written approval of the Owners
Representative before appointing a subcontractor (which for purposes of
the Contract shall be deemed to include a subconsultant to the
Contractor) to perform any part of its obligations under this Contract.
10.1.3 The Contractor shall manage the performance of each
subcontractor to ensure the quality and timeliness of its performance
meet the requirements of this Contract.
10.1.4 The Contractors obligations under this Contract are not lessened
or otherwise affected by subcontracting the performance of those
obligations.
10.1.5 The Contractor will ensure that any subcontractor or agent it
engages in connection with this Contract complies with all of the
relevant terms and conditions of this Contract. The Contractor shall be
liable to the Owner for any act or omission of a subcontractor which
would, if done or omitted (as the case may be) by the Contractor,
comprise a breach of this Contract, as and to the same extent as if
such act or omission of the subcontractor was done or omitted by the
Contractor itself.
10.2 Re-performance of Non-Complying Services
10.2.1 If, at any time prior to the date that is two (2) years after
the date that Industrial Completion has been achieved, the Owners
Representative considers any part of the Services not to be in
accordance with the Contract, or that any defect, deficiency or
nonconformance exists in respect of the Services, the Owners
Representative may direct the Contractor to re-perform that part of the
Services or rectify that defect, deficiency or nonconformance and may
specify the time within which this shall occur.
10.2.2 Subject to GC 10.2.1, the Contractor shall correct or re-perform
any Services which do not comply with the requirements of this Contract
or rectify any defect or deficiency in the Services so as to ensure
compliance with the requirements of this Contract.
10.2.3 The Contractor acknowledges and agrees that it is not entitled
to be reimbursed (under this Contract or otherwise) for any costs
incurred by it in performing its obligations under this GC 10.2 to the
extent caused or contributed to by a breach of the standard of care set
out in GC 3.3.3 or by any other failure to comply with a requirement of
the Contract.
10.2.4 The Owner may have the correction or re-performance of the
non-compliant Services, or rectification of any defect, deficiency or
non-conformance in respect of the Services carried out by others at the
Contractors cost if:
(a) the Owner has directed the Contractor to correct, re-perform or
rectify those matters in accordance with GC 10.2.1 within a reasonable
period of time (being not less than seven (7) days) as stated in that
direction; and
(b) the Contractor has failed to correct, re-perform or rectify
those matters within that period, or where it is impossible to do so
within that time despite all due diligence, to promptly commence such
correction, re-performance or rectification as is reasonably possible
within that time, and provide a reasonable schedule for the completion
thereof.
10.2.5 The Owners costs under GC 10.2.4 will be a debt due and payable
by the Contractor to the Owner.
11. LABOUR AND INDUSTRIAL RELATIONS
11.1 General
11.1.1 The Contractor shall take steps consistent with the standard of
care set out in GC 3.3.3 to mitigate and avoid labour disputes and
disruptions at the Site and at any manufacturing facilities or places
of work of the Trade Contractors.
11.2 Open Site
11.2.1 The Contractor acknowledges and agrees that some or all Trade
Contractors and some or all Other Contractors employed by the Owner and
their subcontractors working at the Site or on the Project may be union
or non union and that the Contractors Human Resources and Industrial
Relations Plan for the Project is required to set out all reasonable
steps required to maintain labour peace at all times on the Site and on
all parts of the Project. The Contractor shall carry out the Services in
such a manner that is intended to avoid labour problems, work stoppages
or other labour disputes that might delay or increase the cost of the
Project.
11.2.2 Whenever the Contractor has knowledge that any actual or
probable labour dispute is delaying or may threaten to delay the timely
completion of the Services or the Project, the Contractor shall promptly
give Notice thereof to the Owners Representative, including all relevant
information with respect to such labour dispute or potential dispute.
11.3 Trade Contracts
11.3.1 The Contractor shall include in the Trade Contracts placed by
Contractor appropriate contractual provisions that will minimize and
avoid labour disputes, disruptions, strikes, picketing and legal or
illegal work stoppages in relation to the Project.
11.4 Additional Requirements for Personnel on Site
11.4.1 The Contractor shall, at all times, take all reasonable
precautions to prevent any unlawful, riotous or disorderly conduct by
or among its employees or any workers of any Trade Contractors, and to
protect persons and property in the vicinity of the Site from the same.
11.4.2 The Contractor shall remove, or cause to be removed, anyone
present on Site who is impaired by alcohol or drugs.
11.5 Report of Contractors Personnel and Equipment
11.5.1 The Contractor shall, if and when required by the Owner, deliver
to the Owner a report in detail, in such form and at such intervals as
the Owner may reasonably prescribe, showing both the total number of
Contract Personnel (including supervisory and management personnel)
engaged by or through the Contractor in the performance of the Services.
12. PROCUREMENT
12.1 Tenders for Trade Contracts
12.1.1 The Contractor shall:
(a) make recommendations to the Owner's Representative regarding the
tender list for each Trade Contract and finalise each tender list in
consultation with the Owner's Representative in accordance with the
relevant procedure in the Project Procedures Manual or the Comprehensive
Procurement Strategy or both, so that it only includes tenderers approved
by the Owner's Representative;
(b) prepare the tender documentation (including finalising the
specifications and drawings) for each Trade Contract (using the Project-
developed conditions of tender and contract prepared by the Contractor
and approved by the Owner) and ensure that they comply with the Owner's
requirements (including, in particular, those set out in the Scope of
Services);
(c) submit the tender documentation it prepares to the Owner's
Representative for review in a manner and at a rate which will give the
Owner's Representative a reasonable opportunity (and in any event no fewer
than fourteen (14) days) to review that tender documentation before it is
issued to tenderers;
(d) if any tender documentation is rejected by the Owner's
Representative within the period stated in GC 12.1.1(c) submit amended
tender documentation to the Owner's Representative, in which case
GC 12.1.1(c) will reapply;
(e) not issue any tender documentation to the tenderers for each Trade
Contract unless the tender documentation has been submitted to the Owner's
Representative and the Owner's Representative has had the period stated
in GC 12.1.1(c)) to review the tender documentation and has not rejected
the tender documentation;
(f) prepare sufficient copies of the finalised tender documentation for
each Trade Contract for tendering; and
(g) issue the tender documentation in accordance with this GC 12.1.1 to
all approved tenderers.
12.1.2 Unless the Owners Representative otherwise consents in writing,
the Contractor shall obtain a minimum of three competitive tenders for
each Trade Contract, including from any prospective tenderers nominated
by the Owner.
12.1.3 The Contractor shall:
(a) keep the Owners Representative informed of any pre-tender
meetings;
(b) provide to the Owners Representative copies of all correspondence
from and to tenderers for the Trade Contracts; and
(c) have a representative in attendance at the opening of all tenders
for the Trade Contracts.
12.1.4 The Contractor warrants to the Owner that neither the Contractor
(nor any Affiliated bodies corporate, as defined by the Canada Business
Corporations Act, of the Contractor) will tender for any of the Trade
Contracts unless the Contractor has obtained the prior written approval
of the Owner.
12.1.5 The Contractor shall:
(a) analyse all tenders submitted by tenderers for the Trade
Contracts;
(b) prepare a report recommending to the Owner the most suitable
tenderer for each Trade Contract;
(c) recommend, if necessary, that negotiations be entered into with
any preferred tenderer; and
(d) provide to the Owner for its consideration the actual tender
prices for all Trade Contracts and how they compare with the cost
estimates for the Trade Contracts in the Project Cost Estimate and the
Approved Project Budget.
12.1.6 The Contractor shall review the scope of work, specifications,
drawings, schedule and other provisions of the Trade Contracts before
they are awarded to ensure they are complete, free of errors and
omissions, and are coordinated with the specifications, drawings,
schedule and other provisions of other Trade Contracts, all to minimize
errors, omissions and conflicts within a Trade Contract and between
Trade Contracts. The Contractor shall notify the Owner of any errors,
omissions, defects or conflicts with the documents of a Trade Contract
or between the documents of that Trade Contract and those of other
Trade Contracts promptly upon first becoming aware of such errors,
omissions, defects or conflicts to mitigate against delays to Trade
Contractors and to mitigate against changes and delays under Trade
Contracts for which the Trade Contractors may be entitled to additional
compensation or extensions of time from the Owner.
12.2 Warranties From Trade Contractors
12.2.1 The Contractor and Owner will agree upon the general warranties
and guarantees to be obtained from Trade Contractors. The Contractor
shall use all reasonable efforts to obtain comprehensive warranties
from Trade Contractors that are at least as favourable and preferably
more favourable to the Owner than such general warranties and
guarantees. Warranties and guarantees under Trade Contracts shall be
for not less than twelve (12) months from Industrial Completion unless
the Owner for a specific Trade Contract otherwise agrees in writing to
a shorter warranty period of time. The Contractor shall take or cause
to be taken all action necessary to fully engage and validate any and
all warranties and guarantees by Trade Contractors, and shall require
Trade Contractors, at their sole expense, to fulfill their warranty and
guarantee obligation in their Trade Contracts.
12.3 Trade Contract Payment
12.3.1 The Contractor shall:
(a) upon receipt of each payment claim under a Trade Contract to be
adminiated by Contractor, review the claim, and:
(i) for any claim greater than $20,000, notify in writing the Owners
Representative of the claim immediately upon receipt of the claim; and
(ii) for all claims, advise the Owners Representative of the results
of the Contractors review within seven (7) Business Days of receipt of
such claim;
(b) at intervals of not more than one (1) month, submit to the Owner
a statement of progress claims made under Trade Contracts during the
period of the statement containing full and true particulars of all
such claims; and
(c) subject to receiving from the Owner particulars of payments made
by the Owner, include with each statement particulars as to what sums
of money have been paid and the dates on which such payments were paid
under each Trade Contract.
12.3.2 The Owner shall make timely payment as required under each Trade
Contract.
12.4 Contract Dispute Resolution
12.4.1 In the event that a party to a Trade Contract invokes any
dispute resolution provisions or notifies the Contractor or the Owner
of an intention to commence any dispute resolution proceedings, the
Party notified shall immediately notify the other Party.
12.4.2 In the event of any such notification the Party giving Notice
shall advise the other Party of the facts and circumstances of the
dispute known to the Party giving the Notice and endeavour as far as
reasonably possible to participate in and achieve on behalf of the
other Party a prompt settlement or other resolution of the dispute
subject to the directions of the Party who may ultimately be
responsible for the payment of any monies awarded in the dispute
resolution proceeding.
12.5 Owners Procurement Process
12.5.1 The Contractor shall procure all works and services in
accordance with the Owners internal process for obtaining financial
approval and Governmental Authority to place orders and contracts.
12.5.2 The Contractor shall prepare the following for all Trade
Contracts, including for the placing of orders for supply or
installation of equipment:
(a) full technical and scope specifications including:
(i) extent, presentation and timing of data to be submitted for
review;
(ii) procedures to be incorporated for outages. These shall be shown
as discrete activities on the Trade Contractors construction schedule
and on the Project Schedule;
(iii) inspection and test plans and acceptance requirements;
(iv) documentation to be submitted with each completed order;
(v) recommendations for spare parts;
(vi) assistance and advice with installation and Commissioning;
(vii) quality assurance requirements;
(viii) description of the work defining the extent of the activities
and responsibilities required of the supplier or contractor; and
(ix) technical requirements by way of drawings, specifications, and
data sheets;
(b) the terms and conditions of Trade Contracts;
(c) the purchase order letter; and
(d) any other documentation advised by the Owners Representative.
12.6 Comprehensive Procurement Strategy
12.6.1 The obligations of the Contractor under this GC 12 are in
addition to any other obligation required to be performed by the
Contractor under the Comprehensive Procurement Strategy.
13. TESTING, COMMISSIONING AND PERFORMANCE TESTING
13.1 Performance Testing and Performance Guarantees
13.1.1 From and after Industrial Completion, the Parties will cooperate
with each other to schedule and conduct all Performance Tests within a
reasonable period of time and in accordance with Appendix 5
Performance Guarantees, and to minimize disruption to commercial
operation of the Facility.
14. TIME
14.1 Risk of Delay and Disruption and Resultant Increased Costs
14.1.1 Subject to Appendix 6, and the Contractors entitlement to the
Hourly Remuneration and Eligible Disbursements, the Contractor will
have no entitlement to make any Claim for any costs, losses, damages or
liabilities incurred or suffered by the Contractor arising out of or in
any way in connection with delays or disruptions in the Project
Schedule (including for damages for breach of contract).
14.2 Extensions of Time
14.2.1 The Contractor is entitled to an extension of time to the Date
for Industrial Completion (and a Change Order or Change Directive in
respect thereof) if, and only if:
(a) the Contractor gives Notice to the Owners Representative:
(i) of the fact or likelihood of delay not later than fourteen (14)
days after the Contractor becomes (or, acting in accordance with the
standard of care set
out in GC 3.3.3 ought to have become) aware of the commencement of the
cause of the delay; and
(ii) provides details of the cause of delay and how, in the
reasonable opinion of the Contractor, Industrial Completion is likely
to be delayed;
(b) the Contractor gives the Owners Representative, within twenty-one
(21) days after the cessation of the cause of delay:
(i) a written claim for extension of time specifying the number of
days claimed;
(ii) details (to the extent known) of why the cause of the delay
actually caused the delay, including a statement of the facts and the
provisions of this Contract on which the claim is based;
(iii) detailed evidence in satisfaction of the requirements of GC
14.2.1(c); and
(iv) all other information reasonably required by the Owners
Representative;
(c) the Contractor reasonably satisfies the Owners Representative, in
the Contractors claim under GC 14.2.1(b)), that:
(i) Industrial Completion has actually been delayed, in a manner
which will prevent the Contractor from achieving Industrial Completion
by the Date for Industrial Completion;
(ii) the delay is demonstrable on an assessment of the critical path
on the network of the currently approved revision of the Project Plan
submitted pursuant to GC 7.4 or (where applicable) such Project Plan as
subsequently varied in accordance with a previous extension of time
pursuant to this GC 14.2;
(iii) the delay is caused or contributed to by one of the following,
but only to the extent of such cause or contribution:
(A) breach by the Owner of this Contract or any other act or omission
of the Owner or the Owners Representative, other than an act or omission
authorized by this Contract (other than a variation to the Services
referred to in GC 14.2.1(c)(iii)(B) or a suspension referred to in GC
14.2.1(c)(iii)(D);
(B) a variation to the Services directed under GC 15;
(C) an Event of Force Majeure;
(D) the suspension of the execution of the Services pursuant to a
written direction given under GC 16, unless that direction was
given as a result of a breach by the Contractor of its
obligations under the Contract; or
(E) subject to GC 14.3.2(a), anything else beyond the reasonable
control of the Contractor.
Without limitation, the times within which the Notice and the claim
shall be given under GC 14.2.1(a)(i) and GC 14.2.1(b) are conditions
precedent to any entitlement in the Contractor to an extension of time
which shall be strictly complied with.
14.3 Determination of Extension of Time Claims
14.3.1 The Owners Representative shall, within a reasonable period of
time of receiving a claim under GC 14.2.1(b) that complies with GC
14.2.1(c), give the Contractor:
(a) Notice of the reasonable extension of time which is granted and
the new Date for Industrial Completion or Milestone Dates or both; or
(b) if no extension is given, Notice of that decision.
14.3.2 The Contractor will not be entitled to an extension of time to
the extent that:
(a) the delay has been caused or contributed to by the failure of the
Contractor to take all reasonable measures to preclude the occurrence or
minimise the extent and consequences of the delay, including such
measures as rescheduling, reprogramming, expediting and adjusting the
sequence of activities;
(b) the Contractor is delayed by any cause of delay not referred to
in GC 14.2.1(c)(iii), to the extent that the delay experienced exceeds
the extension to which the Contractor would be entitled under GC
14.2.1(c)(iii) had the other event not occurred; or
(c) subject to GC 14.3.2(b), the delay is caused by, arises out of or
contributed to by:
(i) an act or omission of the Contractor; or
(ii) any other event, fact, matter or circumstance not referred to in
GC 14.2.1(c)(iii).
15. CHANGES, CHANGE DIRECTIVES AND CHANGE ORDERS
15.1.1 The Owner may at any time authorize or direct a Change to the
Project or the Scope of Services (provided that that any Change to the
Scope of Services under this GC 15 shall be limited to engineering,
procurement, construction management, construction supervision,
Commissioning or other professional services which are consistent or
compatible with the warranties in GCs 3.3 and the representations in GC
25.1.1) by Change Order or Change Directive, as applicable. If the
Change requires the omission of any of the Services, the Owner may have
the omitted Services carried out by others.
15.1.2 If the Owner wishes to make a Change to the Facility or the
Scope of Services (or if the Contractor is entitled to a Change Order
pursuant and subject to GC 14), the Owners Representative shall discuss
same with the Contractors Representative in advance. The Contractor will
promptly when called for by the Owner provide the Owner with a draft
budget and scope of services for the proposed Change, details of the
requested extension of time to the Date for Industrial Completion, and
any other obligation of the Contractor under this Contract that is
necessarily affected by the proposed Change, all in such detail as the
Owner may require. If the Parties agree to the Change, they shall
execute a Change Order confirming the Change. If the Parties do not
reach agreement on all matters needed to document the Change by Change
Order, the Owner may direct the Change by issuing a Change Directive to
the Contractor. The Parties will, as soon as reasonably practicable,
thereafter, will attempt to reach agreement on the Change and convert
the Change Directive to a Change Order.
15.1.3 If the Contractor and Owner fail to agree on everything required
to convert the Change Directive to a Change Order, the Contractor shall
nevertheless promptly proceed with implementation and performance of
the Change Directive. If the Contractor is of the opinion that
implementing the Change Directive may impair its ability to meet the
Performance Guarantees, or impair its ability to earn the Performance
Incentives to which pursuant to Appendix 6 Compensation it may be
entitled to receive for meeting the Date for Industrial Completion or
the Approved Project Budget, or cause it to be in breach of any
Applicable Laws, requirements of Governmental Authorities or
requirements of any Permits, Licences and Approvals, or cause either
Party to be in breach of its obligations under GC 33.7 or any other
provision of this Contract, then the Contractor shall within seven (7)
days after receipt of the Change Directive give Notice to the Owner of
same, which shall then constitute a dispute to be resolved pursuant to
GC 29. Failure of the Contractor to provide Notice as aforesaid within
such seven (7) day period shall constitute acceptance by the Contractor
that the Change Directive does not impair its ability to meet the
Performance Guarantees, or cause it to be in breach of any Applicable
Laws, requirements of Governmental Authorities or requirements of any
Permits, Licences and Approvals, or cause either Party to be in breach
of its obligations under GC 33.7.
15.1.4 If the Contractor receives a Change Order or Change Directive,
it shall perform its obligations under this Contract in accordance with
the varied Scope of Services.
15.1.5 The Owner, at its discretion, in respect to any one or more
Change Orders or Change Directives may require the Contractor to record
and invoice all charges against one or more Change Orders or Change
Directives against separate, different project or reference
numbers. If so, the Contractor shall comply with such requirement,
provided that if compliance is not reasonably practicable, the
Contractor shall advise the Owner.
15.1.6 For any additional Services it is required to perform pursuant
to a Change Order or Change Directive, the Contractors only entitlement
for additional compensation is as determined in accordance with and
subject to Appendix 6 Compensation.
16. SUSPENSION
16.1 Notice to Suspend
16.1.1 The Owner may at any time give a written direction to the
Contractor to suspend the performance of all or any part of the
Services.
16.1.2 If the Contractor receives a direction from the Owner under GC
16.1.1, the Contractor shall immediately suspend the performance of
that part of the Services.
16.2 Resumption
16.2.1 The Owner may at any time give a written direction to the
Contractor to resume the performance of that part of the Services which
has been suspended.
16.2.2 If the Contractor receives a direction under GC 16.2.1 the
Contractor shall promptly resume the performance of that part of the
Services which has been suspended.
16.3 Compensation
16.3.1 Subject to GC 16.4.2, the Owner will pay the Contractor
compensation for the suspension of the Services on such basis as the
Parties may agree or, failing agreement, such reasonable cost as the
Owners Representative determines to compensate the Contractor for:
(a) keeping its personnel and subcontractors on standby (to the
extent stated in the Notice referred to in GC 16.1.1); and
(b) the mobilization and demobilisation of the Contractors personnel
and subcontractors, and equipment (if any).
16.4 Termination
16.4.1 Subject to GC 16.4.2, if a suspension of the performance of a
part of the Services which is the subject of a direction under GC
16.1.1 continues for more than six (6) months:
(a) the Contractor may give a Notice to the Owner requiring the Owner
to give a direction to the Contractor under GC 16.2.1 to resume
performance of that part of the Services; and
(b) if the Owner fails to give a direction to the Contractor under GC
16.2.1) within thirty (30) days of receiving the Contractors Notice
under GC 16.4.1(a), the Contractor:
(i) may terminate this Contract by giving seven (7) days Notice to
the Owner;
(ii) will be entitled to be paid in accordance with GC 16.3 for the
part of the Services performed in the relevant period up to the date of
termination or the date the Contractor ceased to perform the Services;
and
(iii) acknowledges and agrees that it is not entitled to make any
other Claim against the Owner except as otherwise provided in this
Contract.
16.4.2 If the Owner gives a direction under GC 16.1.1 as a result of a
breach by the Contractor of its obligations under this Contract, the
Contractor is not entitled to:
(a) terminate this Contract under GC 16.4.1(b)(i); or
(b) make any other Claim.
17. EVENTS OF FORCE MAJEURE
17.1 Events of Force Majeure
17.1.1 Subject to the provisions of GC 17.6, for purposes of this
Contract an Event of Force Majeure shall mean any circumstance
described in GC 17.2 that is not within the reasonable control,
directly or indirectly, of the Party affected, but only if and to the
extent that:
(a) such circumstance, despite the exercise of all reasonable due
diligence, cannot through the exercise of all due diligence be or be
caused to be prevented, avoided or removed by such Party;
(b) such circumstance adversely affects (in cost and/or time) the
ability of the Party affected to perform its obligations under the
Contract, and the Party affected has taken all reasonably practicable
precautions, due care and reasonable alternative measures in order to
avoid the effect of such circumstance on the Partys ability to perform
its obligations under the Contract (such reasonably practicable
precautions, due care and reasonable alternative measures to be no less
than the other Party would take in similar circumstances if they were to
its account);
(c) such circumstance is not the direct or indirect result of the
failure of the Party claiming force majeure to perform any of its
obligations under the Contract or is not the direct or indirect result
of the fault or negligence of such Party; and
(d) such Party has given the other Party Notice in accordance with GC
17.4. Provided, however, that lack of financial capacity, inability of a
Party to pay, and an event that results from a lack of financial
capacity or inability of a Party to pay, shall not constitute an Event
of Force Majeure.
17.2 Instances of Force Majeure
17.2.1 Subject to the provisions of GC 17.1 and GC 17.6, the following
events that occur during the performance of the Services shall
constitute Events of Force Majeure:
(a) acts of war (whether war be declared or not), acts of the
public enemy, or acts of foreign enemies;
(b) public disorders, insurrection, rebellion, revolution,
terrorist acts, sabotage, riots or violent demonstrations or any
other protests against political actions;
(c) explosions, fires or floods not caused by or attributable
to the Contractor;
(d) floods, earthquakes or other natural calamities or acts of
God;
(e) strike or lockout or other industrial labour action or
disruption (including unlawful but excluding lawful strikes or
lockouts or other industrial labour action or disruption by the
Contractor's employees against the Contractor that are limited in
scope to the Contractor and its employees) which have national,
provincial, regional or state-wide application, affect the
performance of the Services, and last for more than seven (7)
consecutive calendar days in the aggregate;
(f) any action or failure to act within a reasonable time without
justifiable cause by any Governmental Authority (including any
action or failure to act within a reasonable time without
justifiable cause by any duly authorized agent of any such
Governmental Authority), including the denial of or delay in without
justifiable cause the granting of any land tenure, licences, other
licences, consents, approvals, or rights, including the Permits,
Licences and Approvals upon due application and diligent effort by
the Party to obtain same, or the failure once granted to remain
without justifiable cause in full force and effect or to be renewed
on substantially similar terms;
(g) protests, environmental protest, and other civil disobedience
or disturbance;
(h) injunctions not caused by any breach of this Contract by the
Contractor; and
(i) any other event beyond the reasonable control of a Party,
provided that such event was not reasonably foreseeable and did not
result from any error, omission, negligence, neglect, or fault of
the Party or of anyone for whom the Party is responsible under the
Contract.
17.3 Effect of Event of Force Majeure
17.3.1 Subject to GC 17.4 and GC 17.6, no failure or omission to carry
out or observe any of the terms, provisions, or conditions of the
Contract shall give rise to any claim by either Party against the other
Party, or be deemed to be a breach or default of the Contract provided
that Notice of the Event of Force Majeure is delivered within the time
limits specified in GC 17.4 by the Party claiming an Event of Force
Majeure.
17.3.2 Provided that a Party provides Notice of an Event of Force
Majeure in accordance with GC 17.4, the time for performing obligations
under the Contract will be extended for Force Majeure Days in accordance
with GC 14.2 and GC 14.3.
17.4 Notice of Event of Force Majeure
17.4.1 If either Partys ability to perform its obligations under the
Contract is affected by an Event of Force Majeure, such Party shall as
soon as reasonably possible (but in any event within seven (7) days)
following the date any Event of Force Majeure has been discovered or
would have by a reasonable person in the same position been discovered,
give Notice to the other Party stating such date and the nature of the
Event of Force Majeure, its expected duration and effect upon the
performance of such Partys obligations, and any action being taken to
avoid or minimize its effect. The burden of proof shall be on the Party
claiming an Event of Force Majeure pursuant to this GC 17.4.
17.5 Period of Suspension for and Mitigation of Event of Force Majeure
17.5.1 The suspension of performance due to an Event of Force Majeure
shall be of no greater scope and no longer duration than the delays
necessarily resulting from the effect of the Event of Force Majeure.
The affected Party:
(a) shall make all reasonable efforts to prevent and reduce to a
minimum and mitigate the effect of any delay occasioned by any Event
of Force Majeure including recourse to alternate acceptable sources of
labour, services, equipment and materials; and
(b) shall use all reasonable efforts to resume normal performance of
its obligations under the Contract after the termination of any Event
of Force Majeure and shall perform its obligations to the maximum
extent practicable.
When the affected Party is able to resume performance of its
obligations under the Contract, that Party shall give the other Party
Notice to that effect.
17.5.2 If there is an Event of Force Majeure involving any Vendor, then
the Contractor shall use reasonable efforts to determine whether it is
advisable to find alternate Vendors acceptable to the Owner without
materially increasing the cost or schedule, and shall provide its
recommendations to the Owner taking into account the overall Project
Schedule and Approved Project Budget.
17.5.3 The Contractor shall include in all Trade Contracts, including
with Vendors, reasonable provisions that mitigate the delay and
additional costs that will be incurred by the Owner if such Vendor or
other Trade Contractor claims an Event of Force Majeure under their
Trade Contract.
17.6 Certain Events Not to Comprise Events of Force Majeure
17.6.1 Notwithstanding anything to the contrary under any provision of
the Contract, and in particular and for clarity notwithstanding any
other provision of this GC 17, the following shall not constitute an
Event of Force Majeure and shall not excuse any obligations of either
Party that arose before the occurrence of an Event of Force Majeure
causing the suspension of performance:
(a) the obligation to pay money in a timely manner for
obligations and liabilities that matured prior to, during or
after the occurrence of an Event of Force Majeure;
(b) late delivery of equipment, materials, supplies, tools,
or other items caused by negligent or wilful acts or omissions
on the part of the Contractor or any of its subcontractors,
except to the extent resulting from damage or destruction of such
equipment, materials, supplies, tools or other items;
(c) late delivery of equipment, materials, supplies, tools, or
other items to the extent caused by the failure of the Contractor
to properly perform the Services in accordance with the
requirements of the Contract;
(d) late performance by the Contractor caused by the
Contractor's failure to engage qualified personnel, subconsultants
and subcontractors, or to hire an adequate number of personnel or
labour;
(e) submission by the Contractor of submittals for review by
the Owner at a time later than that indicated in the schedule for
submittals agreed to by the Contractor and Owner, unless such late
submission is itself caused by an Event of Force Majeure;
(f) delays resulting from adverse weather and other environmental
conditions which, based on all available historical records or on a
reasonable knowledge of the location of the Site, are consistent
with those which ought reasonably to have been anticipated for the
Site;
(g) delays resulting from unsuitable surface, subsurface, ground,
or groundwater conditions which were known or should have been
reasonably anticipated by the Contractor or any other contractor
with previous experience working in or near the location of the
Site; and
(h) equipment failure due to some fault, neglect or negligence
of the Contractor, including failure to adhere to or requiring
Trade Contractors to adhere to the manufacturer's recommendations
in relation to packing, shipping, unpacking, storing, installation,
operation or maintenance.
17.7 Contractor to Follow Owners Instructions
17.7.1 The Owner may, by Change Directive or Change Order, require the
Contractor to undertake those specific actions identified in the Change
Directive or Change Order as the Contractor can reasonably initiate to
remove or relieve either the Event of Force Majeure or its direct or
indirect effects on the Owner.
17.8 Contractor Responsible for Negligence
17.8.1 Damages or injuries to persons or properties resulting from an
Event of Force Majeure during the performance of the obligations
provided for in the Contract shall not relieve the Contractor of the
responsibility to bear the cost of the damage or injuries caused by the
Contractors negligence or misconduct to the extent such costs are not
covered by insurance procured by the Owner pursuant to Appendix 11
Insurance, but only to the extent that the Contractor would otherwise
have been liable for such damages or injuries under the Contract.
17.9 Costs Due to Events of Force Majeure
17.9.1 Each Party will be responsible for its own costs in relation to,
resulting from or arising out of an Event of Force Majeure.
17.9.2 If physical damage occurs due to an earthquake or a flood
(provided the flood or the flood damage is not caused by, attributable
to or increased by the actions or inactions of the Contractor) or any
other Event of Force Majeure, then the Owner will be responsible for
the payment of any deductibles under the insurance required to be
procured by the Owner pursuant to Appendix 11 Insurance.
17.9.3 Except as provided in GC 17.9.2, no additional compensation will
be paid by the Owner to the Contractor for the effect of or delay due to
an Event of Force Majeure.
17.10 Contractors Sole and Exclusive Remedy
17.10.1 The Contractors sole and exclusive remedies for the occurrence
of an Event of Force Majeure shall be those set forth in GC 17.3, GC
17.5 and GC 17.9.
18. COMPENSATION
18.1 Owners Payment Obligations
18.1.1 The Owner will, subject to GC 18.14 and other provisions of the
Contract (including any other right to set off which the Owner may have
under the Contract), pay the Contractor in accordance with and subject
to the provisions of Appendix 6 Compensation and the Contract.
18.1.2 Notwithstanding any other provision of the Contract, in no event
shall the Contractor invoice for or be paid for time expended by its
Contract Personnel in the correction or re-
performance of any part of the Services required due to errors,
omissions, defects or deficiencies in the Services performed by the
Contractor and that appear prior to and during the expiry of the
warranty period(s) under the Contract applicable to the Services.
18.1.3 The Contractor shall ensure that accurate and detailed daily
time sheets are kept and maintained by all Contract Personnel,
indicating clearly the name of the person, the hours spent and a
reasonably descriptive narrative of the work performed, appropriately
coded to allow proper and accurate recording of Project costs and
verification by the Owner that the time was reasonable and expended on
the performance of the Services.
18.1.4 The compensation as specified in Appendix 6 Compensation shall
constitute the Contractors sole and exclusive entitlement to payment
from the Owner in respect of the performance of the Services.
18.2 Payment Advances by Owner
18.2.1 On or before the twenty-first day of each calendar month, or
such other time as may be mutually agreed, the Contractor shall submit
to the Owner in writing an estimate of the Fee, Hourly Remuneration and
Eligible Disbursements reasonably anticipated to be charged during the
succeeding calendar month, supported by such details as the Owner may
reasonably require to substantiate and verify the reasonableness of the
estimate. If the Owner disagrees with the amount of the estimate, the
Contractor and Owner shall promptly discuss the estimate and arrive at
an agreed amount for the estimate (the Payment Advance). On or before
the end of each month, the Owner shall transfer to the Contractors
trust account an amount equal to the agreed Payment Advance for the
next month, and advise the Contractor of the deposit by telephone,
email or facsimile by no later than noon on the last day of the month
(or on the next business day if the last day of the month is not a
business day).
18.2.2 The Payment Advance shall be held by the Contractor in a
separate trust account (the Trust Account) to secure payment of its
Fee, Hourly Remuneration and Eligible Disbursements incurred in the
month for which the Payment Advance is made. The Contractor is not
entitled to and shall not transfer any part of that Payment Advance
from the Trust Account to its own use and account until after such time
as it has received a payment statement from the Owner issued pursuant to
GC 18.8, and then only in the amount approved for payment by the Owner
in such payment statement.
18.2.3 If, at the end of any month, the payment statement for that
month differs from the Payment Advance made for the month, the
difference shall be reconciled and taken into account in determining
the amount of the Payment Advance for the next ensuing month.
18.3 Electronic Funds Transfer
18.3.1 The Owner will make payment to the Contractor by electronic
funds transfer into the Contractors bank account.
18.4 Time For and Format of Application for Payments
18.4.1 Subject to GC 18.10, the Contractor shall give the Owners
Representative an invoice for payment on account of the Fee, Hourly
Remuneration and Eligible Disbursements and any other amounts payable
by the Owner to the Contractor under the Contract (Application for
Payment):
(a) within fifteen (15) calendar days after the end of the month in
which the Services that are the subject of the Application for Payment
were rendered or expended, as applicable, and in the case of the
application for final payment within the period required by GC 18.11;
and
(b) in the format approved in writing by the Owners Representative
which shall as a minimum:
(i) set out the amounts that the Contractor asserts are payable to
the Contractor in accordance with the Contract;
(ii) detail the relevant period of the Services for the Application
for Payment;
(iii) describe in detail the part of the Services performed during
the relevant period for the Application for Payment;
(iv) set out amounts paid previously under the Contract;
(v) provide an individual reference number for the Owner to quote
with remittance of payment; and
(vi) include any other information directed by the Owners
Representative.
18.5 Additional Matters
18.5.1 In addition to the requirements of GC 18.4.1(b), the Contractor
shall, unless directed otherwise by the Owners Representative, include
in each Application for Payment:
(a) the price relating to the Services, broken down to reflect the
basis upon which the Fee is calculated:
(b) the name of the Project;
(c) the name of the Site; and
(d) the name of the Owners Representative.
18.5.2 The Owners Representative may, prior to the time it is required
to issue a payment statement under GC 18.9, request any additional
information from the Contractor in respect of its Application for
Payment.
18.6 Contractor Warranty
18.6.1 By making an Application for Payment, the Contractor represents
and warrants to the Owner that:
(a) the Contractor has performed the Services which are the subject
of the Application for Payment;
(b) the Contractor is not aware of any mistakes or omissions in the
Services that would require the Contractor to re-perform the Services
that are included in the Application for Payment;
(c) any remuneration and other amounts due and payable by the
Contractor to any of its employees by Applicable Laws or under an
industrial instrument in respect of the Services have been paid, except
holdbacks and amounts properly retained in accordance with Applicable
Laws or amounts that are the subject of a bona fide dispute;
(d) its subcontractors have been paid all amounts due and payable to
them for work or services performed or material supplied by them in
respect of the work or services which were the subject of the
Application for Payment and which are included in the Application for
Payment or any previous Application for Payment, except holdbacks and
amounts properly retained in accordance with Applicable Laws or amounts
that are the subject of a bona fide dispute; and
(e) subject to any Claims that may have arisen within the fourteen
(14) day period prior to the Payment claim, the Contractor is not aware
of any Claim against the Owner which is not identified in the
Application for Payment or in an earlier Application for Payment or
Notice of which has not been previously given to the Owner.
18.7 Incomplete Application for Payments
18.7.1 Should any Application for Payment (including any Application
for Payment submitted under GC 18.7.2) not contain the information
required under GC 18.4.1(b) and GC 18.5, the Owners Representative may:
(a) complete the missing details and assess the Application for
Payment in accordance with GC 18.8; or
(b) return the incomplete Application for Payment to the Contractor
and notify the Contractor that GC 18.7.2 applies.
18.7.2 Where the Owners Representative returns an incomplete
Application for Payment to the Contractor, the Contractor shall submit
a Application for Payment that complies with GC 18.4.1(b) and GC 18.5
within the time notified by the Owners Representative or, where no time
is notified, within forty-eight (48) hours.
18.8 Payment Statement
18.8.1 Within ten (10) business days of receipt of:
(a) a Application for Payment under GC 18.4.1(a);
(b) the information described in GC 18.5.1; and
(c) any additional information requested by the Owner's Representative
pursuant to GC 18.5.2;
the Owners Representative will give the Contractor on behalf of the
Owner a payment statement which states:
(d) the value of the work carried out by the Contractor in accordance
with this Contract as at the date of the Application for Payment;
(e) the amount already paid to the Contractor;
(f) the amount the Owner is entitled to retain, deduct, withhold or
set off under the Contract;
(g) the amount (if any) which the Owners Representative believes to
be then payable by the Owner to the Contractor on account of the
Contract and otherwise under this Contract and which the Owner proposes
to pay to the Contractor; and
(h) if the amount in GC 18.8.1(g) is less than the amount claimed in
the Application for Payment:
(i) the reason why the amount in GC 18.8.1(g) is less than the amount
claimed in the Application for Payment; and
(ii) if the reason for the difference is that the Owner has retained,
deducted, withheld or set off payment for any reason, the reason for the
retention, deduction, withholding or setting off.
18.8.2 The Owners Representative may issue a further payment statement
correcting any error discovered in any previous payment statement or
modifying any previous payment statement issued by it, including but
not limited to, as a result of information received from the Contractor
pursuant to GC 18.5.
18.8.3 If the Contractor fails to make an Application for Payment in
accordance with the Contract, the Owners Representative may
nevertheless issue a payment statement under GC 18.9.1.
18.9 Payment
18.9.1 Subject to GC 18.10 and GC 18.13, within thirty (30) days after
the end of the month in which a payment statement is issued pursuant to
GC 18.8, the Owner will pay to the Contractor or the Contractor shall
pay to the Owner, as the case may be, the amount shown in the payment
statement as due to the Contractor or to the Owner as the case may be.
18.9.2 A payment made pursuant to the Contract:
(a) will not prejudice the right of either Party to dispute whether
the paid amount is the amount properly due and payable;
(b) will not be evidence of the value of the Services;
(c) will not be evidence that the Services has been executed
satisfactorily; and
(d) will not be an admission of liability on the part of the Owner.
18.10 Conditions Precedent to Entitlement to Payment
18.10.1 After the Date of Contract, if at the time that the Contractor
submits a Application for Payment under GC 18.4, the Contractor has not:
(a) [Intentionally deleted];
(b) effected the insurance required by GC 23.1 and (if requested)
provided evidence of this to the Owners Representative, or allowed such
insurance to lapse;
(c) paid all subcontractors as required under GC 18.6.1(d);
(d) in the case of a Final Application for Payment, submitted a duly
executed Form of Release as required under GC 18.11.1(b); and
(e) complied with all directions given by the Owners Representative
under a provision of the Contract, then:
(i) the Contractor will not be entitled to payment of;
(ii) the Owners Representative will not be obliged to include in any
payment statement under GC 18.8; and
(iii) the Owner will not be liable to pay, any amount included in the
Application for Payment.
18.11 Final Application for Payment
18.11.1 Within two (2) months after the earlier of the date all
Performance Guarantees have been met or satisfied and the date the
Owner delivers Notice to the Contractor that its Services are no longer
required, and in any event on or before Final Acceptance, the Contractor
shall deliver to the Owners Representative:
(a) a final payment claim under GC 18.8 entitled 'Final Application for
Payment'; and
(b) a duly executed release that conforms to the form specified in
Appendix 14- Form of Release and General Waiver of Claims.
18.11.2 The Contractor shall include in the Final Application for
Payment:
(a) a complete statement of accounts, including any changes to the
Scope of Services;
(b) all money that the Contractor considers to be due from the Owner
arising out of or in connection with the Services, this Contract or any
alleged breach of contract;
(c) confirmation that all Documentation, approvals of all Authorities
and deliverables as required by this Contract have been lodged with the
Owners Representative; and
(d) a certificate stating that all wages (excluding bonuses to
personnel which are not yet payable) and other charges have been paid
and that no monies are due or owing by the Contractor to any Contract
Personnel other than any Contract Personnel disclosed in the
certificate.
18.11.3 The Contractor shall provide with the Form of Release (as
required by GC 18.11.1) details of how the amount claimed (Amount
Claimed) is calculated including:
(a) separate identification of each claim and the amount of each
claim which is part of the Amount Claimed;
(b) which clause, if any, of this Contract the Contractor relies upon
to support an entitlement to each claim;
(c) if based on breach of Contract -what obligation, if any, the
Owner has breached and which the Contractor relies upon to support an
entitlement to each claim; and
(d) a description of the other acts, defaults and omissions that the
Contractor relies upon to support any entitlement to a claim.
18.11.4 After expiration of the two (2) month period in GC 18.11.1, any
Claim which the Contractor could have made against the Owner but which
has not been made in the Final Application for Payment, whether or not
a Final Application for Payment is delivered, is barred.
18.11.5 Notwithstanding any other provision of section 18.11, the
provisions of section 18.11 do not apply to any claim by the Contractor
in respect of Excluded Taxes.
18.12 Interest on Overdue Payments
18.12.1 If any money due to either Party remains unpaid after the date
on which the money should have been paid, then the Party responsible
for the payment shall, following a written request by the other Party
for payment of interest, pay to the other Party simple interest on the
unpaid amount from, but not including the date on which the money was
due at the Prime Rate.
18.12.2 The Contractors entitlement to interest, if any, under GC
18.13.1(a) will be the Contractors sole entitlement to interest
including damages for loss of use of, or the cost of borrowing, money.
18.13 Set off
18.13.1 The Owner may set off or deduct from any payments due to the
Contractor:
(a) any debt or other moneys due from the Contractor to the
Owner under this Contract; and/or
(b) any debt or other moneys due from any parent, subsidiary
or affiliate of the Contractor to any parent, subsidiary or
affiliate of the Owner; and/or
(c) any money or any claim to money that the Owner may have
against the Contractor, whether for Damages (including
Liquidated damages and the Owner's reasonable estimate of its
entitlement to damages for breach of contract) or otherwise,
which are due or which will become due under this Contract,
except in respect of amounts which are the subject of bona fide active
claims against an insurer provided that such claims are being pursued
diligently.
18.14 Owners Payment of Subcontractors
18.14.1 If the Contractor owes any subcontractor of the Contractor money
in connection with the Services, and
(a) that money has been outstanding under the relevant subcontract
for more than fourteen (14) days; and
(b) the Contractor cannot satisfy the Owners Representative that
there is a valid reason for that outstanding money not having been paid,
the Owner may pay the subcontractor the outstanding amount and the
outstanding amount so paid will be a debt due and immediately payable
from the Contractor to the Owner.
18.14.2 No debt by the Owner will be taken to have accrued in favour of
the Contractor in respect of any payment by the Owner of an outstanding
amount in accordance with GC 18.14.1.
18.14.3 The Owner is entitled to withhold from any payment which would
otherwise be due to the Contractor under the Contract any amount owing
to a subcontractor by the Contractor under GC 18.14.1, and if such
amount owing to a subcontractor is not disputed may make payment
directly to the subcontractor (in which case such payment shall be
deemed authorized by a direction to pay from the Contractor to the
Owner).
18.15 Property and Liens
18.15.1 The Contractor shall not (insofar as is permitted by Applicable
Laws) allow or permit any employee or subcontractor to assert any right
to a construction, builders, mechanics, unpaid vendors or other lien for
unpaid work or services over the Site or Project (or part thereof) or
take any steps whatsoever to lodge or register a lien over the Site or
Project (or part thereof) under, or in pursuance of, any Applicable
Laws, and the Contractor shall promptly vacate, discharge or otherwise
cause such lien to be removed and discharged from title which may be
registered by such person.
18.16 Taxes
18.16.1 The Contractor is and remains liable for payment of any Taxes
connected to the Services, save and except Taxes related to the Owners
operations or income. If any Tax is imposed, the Contractor shall pay
the full amount to the relevant Governmental Authority and shall
indemnify the Owner against any failure to do so. If any exemptions,
reductions, allowances, rebates or other privileges in relation to
Taxes (other than Taxes imposed on the Contractors income or
non-Project operations of the Contractor) may be available to the
Contractor or the Owner, the Contractor shall adjust any payments due
to reflect any such savings or refunds (including interest awarded) to
the maximum allowable extent.
18.16.2 Amounts payable determined in accordance with Appendix 6
Compensation include all Taxes prevailing at the Date of Contract, save
and except the Excluded Taxes.
18.16.3 The Owner is responsible for payment of the Excluded Taxes to
the extent that the Owner or Contractor are liable and responsible for
payment of the Excluded Taxes. The Contractor may include in any
Application for Payment (as defined in GC 18.4) the amount of any
Excluded Taxes in respect of the amounts claimed in the Application for
Payment or any previous Application for Payment, and shall include with
such Application for Payment such documentation as the Owner may
reasonably require to demonstrate and verify to the Owners satisfaction
the proper amount of the Excluded Taxes that is due in respect of the
performance of the Services.
18.16.4 Except for Excluded Taxes, if any rate of Tax is increased or
decreased or a new Tax is introduced or an existing Tax is abolished or
any change in interpretation or application of any Tax occurs in the
course of performance of the Contract, an adjustment will be made to
the Amounts payable determined in accordance with Appendix 6
Compensation to reflect any such change regardless of whether this
results in the Amounts payable determined in accordance with Appendix
6 Compensation increasing or decreasing.
18.16.5 The Owner may deduct from the whole or part of payments due to
the Contractor any Taxes which the Owner is required to withhold or
deduct by any Governmental Authority.
19. MITIGATION
19.1 General Duty to Mitigate
19.1.1 Without limiting but in addition to all other duties to mitigate
required by the Contract, in all cases where either Party is entitled to
receive from the other Party any additional compensation, damages or
extensions of time, including for or resulting from Change Orders,
Change Directives if applicable, suspensions of some or all parts of
the Services, or termination of some or all parts of the Services, that
Party shall use both all reasonable efforts and all due diligence to
mitigate and reduce the amount required under the Contract to be paid
by the other Party or the amount of the extension of the Date for
Industrial Completion. Notwithstanding any other provision of the
Contract, that Party shall not receive those parts of any costs
incurred by that Party or those parts of any additional compensation or
extensions of time, including for Change Orders, Change Directives or
otherwise, that such Party could have reasonably mitigated against,
reduced or otherwise avoided by the exercise of both all reasonable
efforts and all due diligence as required in accordance with the
foregoing. In the foregoing, references to all reasonable efforts and
to exercise of all due diligence shall be construed to be no less than
those that would be exerted by any reasonable corporation in comparable
circumstances where it was solely at risk and responsible for all such
costs and delays without any reimbursement from anyone else. Upon
request from the other Party, the Party claiming relief shall promptly
submit a detailed description, supported by all reasonable
documentation, of the measures and steps taken by the entitled Party to
mitigate and meet the aforesaid obligations.
20. ASSIGNMENT
20.1 Assignment by Contractor
20.1.1 Subject to GC 20.1.2, it is expressly understood that the
Contract is personal to the Contractor and that the Contractor shall
have no right, power, or authority to assign or delegate the Contract
or any portion thereof, or any part of the Services, either voluntarily
or involuntarily, or by operation of law, including by way of
subcontracting or other delegation, to an affiliate. The Contractors
attempted assignment or delegation of the Contract or any portion
thereof or any of part of the Services in contravention of this GC
20.1.1 shall be null and void and shall be ineffective to relieve the
Contractor of its responsibility to perform its obligations hereunder.
20.1.2 The Contractor may, with the prior written approval of the Owner
not to be unreasonably withheld, which approval may be subject to the
Contractor first demonstrating to the Owner that all of the Contractors
Key Personnel as identified in the Contract will transfer to the
assignee and, after the assignment, continue to perform the Services in
their same positions and with their same authorities as they had prior
to the assignment, assign all or part of its right, title, and interest
in the Contract to any parent, subsidiary or affiliated company of the
Contractor, provided that:
(a) the Contractor shall then remain jointly and severally liable
with the assignee for all obligations and liabilities of the Contractor
hereunder;
(b) the Owner may at its sole option have recourse against either or
both the assignee and the Contractor for any and all obligations or
liabilities of the Contractor; and
(c) there is no adverse affect on the validity or enforceability of
any Parent Company Guarantee previously delivered by or on behalf of
the Contractor to the Owner under the Contract, and that the Parent
Company Guarantee remain valid and enforceable by the Owner in
accordance with the provisions of the Parent Company Guarantee.
20.2 Assignment by Owner to Affiliates and Third Parties
20.2.1 The Owner may, with the prior written approval of the Contractor
not to be unreasonably withheld, assign all or part of its right, title,
and interest in the Contract to any parent, subsidiary or affiliated
company, partnership or joint venture of the Owner which is the
transferee or assignee of substantially all of the right, title and
interest of the Owner in the Project, and in the same capacity as the
Owner, provided that all outstanding amounts properly due and owing to
the Contractor at that time have been paid and that such parent,
subsidiary or affiliated company, partnership or joint venture of the
Owner reasonably demonstrates that it is able to meet the payment
obligations of the Owner hereunder.
20.2.2 The Owner may assign all or part of its right, title, and
interest in the Contract to any other third party with the prior
written approval of the Contractor, which consent will not be withheld
provided that all outstanding amounts properly due and owing to the
Contractor at that time have been paid and that such third party
reasonably demonstrates that it is able to meet the payment obligations
of the Owner hereunder.
20.3 Assignment by Owner to Financing Entities and Realization of
Security by Financing Entities
20.3.1 Without the prior consent of the Contractor, the Owner may
assign all or part of its right, title, and interest in the Contract to
any Financing Entity. The Contractor shall execute and deliver to the
Owner a consent to and acknowledgement of assignment in a form
reasonably acceptable to the Financing Entities, to be effective only
when all outstanding amounts properly due and owing to the Contractor
at that time have been paid. Any Financing Entity may, in connection
with any default under any financing document related to the Project,
assign any rights assigned to it hereunder to any third party which is
the transferee or assignee of substantially all of the right, title and
interest of the Owner in the Project, and in the same capacity as the
Owner, provided that all outstanding amounts properly due and owing to
the Contractor at that time have been paid and that such third party
reasonably demonstrates that it is able to meet the payment obligations
of the Owner hereunder. The Contractor shall execute and deliver to the
Financing Entities a consent to and acknowledgement of assignment in a
form reasonably acceptable to such transferee or assignee. The
Contractor shall do all things and execute all documents and provide
all further assurances reasonably required by Owner or Financing
Entities to give effect to the foregoing, provided that such Financing
Entities, insurers and any other persons referred to in GC 21.1.2 shall
provide reasonable written assurances that under no circumstances shall
any Financing Entity or transferee or assignee thereof have any greater
or additional rights or remedies against the Contractor than the Owner
has.
20.3.2 The Contractor agrees that, upon receipt of Notice of such
assignment after such a default and pursuant to GC 20.3.1, it shall
deliver all documents, data, notices, and other communications
otherwise required to be delivered to the Owner hereunder to the
Financing Entities or their assignee at such address as they shall
designate to the Contractor in writing.
20.3.3 The Owner acknowledges and agrees that, upon receipt of Notice
of such assignment after such a default pursuant to GC 20.3.1, the
Contractor shall be entitled to comply with such Notice in accordance
with its terms, and shall have no duty to enquire as to the right of
the Financing Entity to provide such Notice, notwithstanding any Notice
or objection given by the Owner, or any other fact, circumstance, or
event.
20.3.4 The Contractor agrees that in the event the Financing Entities
foreclose on the Owners interests hereunder (or if the Contract should
be assigned to the Financing Entities in lieu of foreclosure), the
Financing Entities or any purchaser at such foreclosure proceeding
shall be entitled to succeed to the Owners interests hereunder on the
same conditions as provided hereunder, and provided such Financing
Entities or purchaser continues to perform the Owners obligations under
this Contract and such succession shall not constitute a breach of any
provision of this Contract prohibiting subletting or assignment or of
any other provision of the Contract. If the Financing Entities should
acquire this Contract by foreclosure, an assignment in lieu of
foreclosure or otherwise, the Contractor agrees that the Financing
Entities may (provided that, as a pre-condition, any defaults by
the Owner in its payment and indemnity obligations hereunder are cured)
and on substantially the same terms as set out in GC 20.3.1, assign or
sublet the Contract to an assignee who is financially reliable and who
agrees to perform the Owners obligations hereunder. In the event of any
such assignment by the Financing Entities, the Financing Entities shall
have no further obligations under the Contract and the assignee shall
be entitled to the benefit of all of the provisions of the Contract.
20.3.5 On termination of this Contract prior to the stated expiration
of the term hereof for any reason whatsoever, including default, the
Contractor shall enter into a new agreement with the Financing Entities
with the highest lending priority immediately prior to the termination
of this Contract if the Financing Entities (i) give notice of request
for such a new agreement within thirty (30) days after termination of
this Contract; (ii) pay all costs incurred by the Contractor as a
result of default and/or termination; and (iii) remedy all defaults as
though this Contract had not been terminated. The new agreement shall
be for the remainder of the term hereof, effective at the date of
termination upon the same terms and conditions provided herein.
21. COOPERATION WITH FINANCING ENTITIES AND INSURERS
21.1.1 It is understood that the Owner intends to and will procure from
Financing Entities project financing or other financing arrangements
suitable to the Owner to complete the Project. The Contractor
acknowledges that procurement of project financing from Financing
Entities is essential for the Project to proceed and, accordingly, the
Contractor agrees to and shall cooperate fully with, and act reasonably
in any dealings with, any Financing Entities to the Project and, without
limiting the generality of the foregoing, the Contractor agrees to and
shall:
(a) use its reasonable best efforts to assist the Owner in its
dealings with any Financing Entities to the Project, including
participation in oral and written presentations to prospective
Financing Entities, conditional upon receipt by the Contractor of
reasonable written waivers of extra-contractual liability from
such Financing Entities;
(b) not unreasonably withhold its consent to any amendments to
the Contract that may be required by the Financing Entities as a
condition of their providing financing to the Project which do not
change the substance of the agreement evidenced hereby; and
(c) following procurement of financing from the Financing
Entities, cooperate with the Owner in its dealings with the
Financing Entities.
21.1.2 The Contractor acknowledges and agrees that the Owner may be
required to provide to the Financing Entities and any and all insurers,
and their respective representatives, the right to review, inspect,
audit and monitor the performance of the Services and the Work, the
Site, any item of equipment (including equipment under fabrication),
materials, supplies, tools, other items, design, engineering, service,
or workmanship to be provided hereunder and the Facility, and to observe
all tests, Performance Tests and all other aspects of the Facility as and
to the same extent as the Owner has such rights hereunder. The Contractor
shall allow all of them reasonable access during normal working hours to
its offices, the Site, the Work (including equipment under fabrication)
and the Project, and to the Contractors technical details pertaining
thereto, as reasonably requested by any of the Owner, Financing Entities
and insurers. The Contractor shall incorporate such rights of review,
inspection, audit and monitoring in all equipment purchase orders and
Trade Contracts.
21.1.3 The Contractor will include provisions in all Trade Contracts
that allow representatives of the Financing Entities and insurers to
inspect, review and monitor the progress of the Trade Contracts and
conformance with the requirements of this Contract and the applicable
Trade Contracts.
22. SECURITY
22.1 Delivery and Form of Security from Owner
22.1.1 Within seven (7) days after the Date of Contract, the Owner
shall deliver to the Contractor:
(a) a guarantee of all payment obligations of the Owner hereunder,
conforming to the form of such guarantee in Appendix 19 Payment
Guarantee, executed and delivered by Gold Reserve Inc. in favour of the
Contractor; and
(b) a certificate from an officer of Gold Reserve Inc. verifying and
confirming that the guarantee has been duly authorized, executed and
delivered, conforming to the form of such certificate in Appendix 19
Payment Guarantee.
23. INSURANCE
23.1 Owner Provided Insurance
23.1.1 The Owner shall provide the Insurance as set out in Appendix
11-1 Insurance by Owner.
23.2 Contractor Provided Insurance
23.2.1 The Contractor shall provide the Insurance as set out in
Appendix 11-2 Insurance by Contractor.
24. CONTRACTORS REPORTING AND RELATED OBLIGATIONS
24.1.1 In addition to any other reporting obligations imposed on the
Contractor under this Contract, the Contractor, at a minimum, shall:
(a) within fifteen (15) calendar days after the end of each month
give a written report (in a form approved by the Owners Representative)
to the Owners Representative setting out:
(i) if applicable, details of the progress of tendering for the Trade
Contracts;
(ii) the progress of the Project against the Project Plan and the
effect on the Project Plan of any change to the Project, including a
curve showing cumulative actual and forecasted cashflow (including
costs for any changes to Project) against time;
(iii) details of any activities which are behind the progress
anticipated in the Project Plan;
(iv) any foreseen delays to future activities on the Project Plan;
(v) the likely effect on the Project Plan of any actual or foreseen
delay;
(vi) current claims for changes and extensions of time by Trade
Contractors under the various Trade Contracts, including details of
dates submitted, dates approved and any other details the Owners
Representative requires;
(vii) the status of all activities on which work is being undertaken;
(viii) details of all consultants and other subcontractors currently
employed or proposed to be employed by the Contractor for the purposes
of the Services;
(ix) evidence of compliance with the quality assurance requirements
of this Contract;
(x) industrial relations issues affecting (or which may affect) the
performance of the Project;
(xi) evidence of compliance with the Safety and Health Plan and
safety statistics;
(xii) strategies implemented or proposed to overcome problems,
including corrective action statements for catching up lost time or
avoiding potential delays;
(xiii) the total amount of Trade Costs payable to Trade Contractors
under any Trade Contracts awarded to date; and
(xiv) any other matter reasonably required by the Owners
Representative;
(b) give the Owners Representative, on request and within a reasonable
time:
(i) any information the Contractor has in its possession in
connection with the performance of the Project, provided that the
Contractor shall not be obliged to provide any information which is
privileged or which might reasonably be expected to void any insurance
coverage;
(ii) any report on any specific issue in connection with the
performance of the Project; and
(iii) any other periodic report (including Project cost reports, and
subcontractor reports), which the Owners Representative reasonably
requires;
(c) promptly report all incidents and accidents to the Owners site
safety representative using the Owners standard forms;
(d) advise the Owners Representative (in writing if the Owners
Representative directs) of suitable courses of action in relation to
matters raised in Project Control Group meetings; and
(e) establish and maintain any records which the Owners
Representative reasonably requires.
25. REPRESENTATIONS
25.1.1 The Contractor represents to the Owner:
(a) it is duly incorporated and validly exists under the law of its
place of incorporation;
(b) it has full legal capacity and power:
(i) to own its property and assets and to carry on its business; and
(ii) to enter into this Contract and to perform its obligations under
this Contract;
(c) it has taken all corporate action that is necessary to authorize
its entry into this Contract and to perform its obligations under this
Contract;
(d) this Contract constitutes a legal, valid and binding obligation
of it enforceable in accordance with its terms by appropriate legal
remedy;
(e) neither its execution of this Contract nor the carrying out of
its obligations under this Contract, does or will:
(i) contravene any Applicable Laws to which it or any of
its property is subject or any order of any Governmental
Authority or other person that is binding on it or any of
its property;
(ii) contravene any undertaking or instrument binding on
it or any of its property; or
(iii) contravene its constitution or other constating documents;
(f) no litigation, arbitration, mediation, conciliation or
administrative proceedings are taking place, pending or threatened
against it which if adversely decided could, in the reasonable opinion
of the Contractor's management, have a material adverse effect on the
Contractor's business, assets or financial condition or its ability to
perform its obligations under this Contract;
(g) no receiver or receiver and manager is currently appointed in
relation to any of its property;
(h) it has familiarized itself with local conditions at the Site and
all Applicable Laws;
(i) its Contract Personnel will not enter the Site without having
first familiarized themselves to the extent necessary with local
conditions and Applicable Laws;
(j) it has inspected the Site and its surroundings, but has not
conducted detailed investigations at Site;
(k) subject to its obligations to comply with Applicable Laws, it
will not intentionally or wilfully damage the name or reputation of
the Owner or wrongfully invite adverse public criticism of the Owner;
and
(l) any factual information given or representation made to the
Owner or to the Owner's Representative in connection with the Project
is (to the best of the Contractor's knowledge) accurate and current
at the time given and is not intentionally misleading or deceptive
in any respect, and any expressions of opinion represents the
Contractor's honest, good faith opinion at the time the expression
is made or given.
25.1.2 The representations contained in GC 25.1.1(a) to GC 25.1.1(e)
and in GC 25.1.1(k) and GC 25.1.1(l) will be treated as made and be
binding upon the Contractor continuously during the term of this
Contract.
25.1.3 The Owner represents to the Contractor:
(a) it is duly incorporated and validly exists under the law of its
place of incorporation;
(b) it has full legal capacity and power:
(i) to own its property and assets and to carry on its
business; and
(ii) to enter into this Contract and to perform its
obligations under this Contract;
(c) it has taken all corporate action that is necessary to
authorize its entry into this Contract and to perform its
obligations under this Contract;
(d) this Contract constitutes a legal, valid and binding
obligation of it enforceable in accordance with its terms by
appropriate legal remedy;
(e) neither its execution of this Contract nor the carrying
out of its obligations under this Contract, does or will:
(i) contravene any Applicable Laws to which it or any
of its property is subject or any order of any Governmental
Authority or other person that is binding on it or any of
its property;
(ii) contravene any undertaking or instrument binding on
it or any of its property; or
(iii) contravene its constitution or other constating documents;
(f) no litigation, arbitration, mediation, conciliation or
administrative proceedings are taking place, pending or threatened
against it which if adversely decided could, in the reasonable
opinion of the Owner's management, have a material adverse effect on
the Owner's business, assets or financial condition or its ability to
perform its obligations under this Contract;
(g) no receiver or receiver and manager is currently appointed in
relation to any of its property;
(h) subject to its obligations to comply with Applicable Laws, it
will not intentionally or wilfully damage the name or reputation of
the Contractor or wrongfully invite adverse public criticism of the
Contractor; and
(i) any factual information given or representation made to the
Contractor or to the Contractor's Representative in connection with
the Project is (to the best of the Owner's knowledge) accurate and
current at the time given and is not intentionally misleading or
deceptive in any respect, and any expressions of opinion represents
the Owner's honest, good faith opinion at the time the expression is
made or given.
25.1.4 The representations contained in GC 25.1.3(a) to GC 25.1.3(e)
and in GC 25.1.3(h) and GC 25.1.3(i) will be treated as made and be
binding upon the Owner continuously during the term of this Contract.
26. DEFAULT AND TERMINATION
26.1 Default by Owner
26.1.1 If the Contractor considers that the Owner:
(a) is in breach of or default under this Contract (provided that
any failure to comply with any schedule or deadline requirement shall
not comprise a default except where such schedule or deadline is in
regard to a requirement to make payment hereunder to the Contractor);
or
(b) has breached a representation or warranty which it has given
to the Contractor under this Contract, including a representation made
under GC 25.1.3,
the Owner may give the Contractor a Notice:
(c) specifying the alleged breach of or default under this Contract;
(d) specifying a reasonable time and date by which the Owner shall
rectify the breach or default (or overcome their effects); and
(e) requiring the Owner to show cause in writing why the Contractor
should not exercise its rights under GC 26.2.
26.1.2 If the Contractor gives the Owner a Notice referred to in GC
26.1.1, the Owner shall:
(a) comply with the Notice and give the Contractor a program to
rectify the relevant default or remedy the breach (or overcome their
effects) in accordance with the terms of the Contractors Notice; or
(b) notify the Contractor in writing that the Contractor disputes the
notice, with a concise statement of the grounds for the dispute.
26.1.3 If the Owner fails to rectify a default or remedy a breach (or
overcome their effects) in accordance with the terms of a Notice
referred to in GC 26.1.1:
(a) the Contractor may take any action it considers appropriate to:
(i) rectify that default; or
(ii) remedy that breach; and
(b) the Owner shall pay to the Contractor, as part of the Services,
any incremental costs incurred by the Contractor to rectify or remedy
the default or breach (including reasonable costs paid to third
parties), except to the extent such default or breach arises from the
negligence or wilful default of the Contractor.
26.2 Termination by Contractor Following Default by Owner
26.2.1 Subject to GC 26.3, the Contractor may terminate this Contract,
with immediate effect, by Notice to the Owner after it has previously
given the Owner a Notice under GC 26.1.1 and the Owner has not complied
with that Notice.
26.2.2 If the Contractor terminates this Contract pursuant to GC
26.2.1, then the Contractor shall:
(a) not be obliged to continue to perform any Services after the
effective date of such termination; and
(b) be paid for all parts of the Services completed to the effective
date of such termination.
26.3 Rights of Financing Entities on Default by Owner
26.3.1 If there shall occur and be continuing a default by the Owner of
its obligations under the Contract, or if an event occurs which with the
lapse of time or giving of notice, or both, would be a default of the
Owner under the Contract (a Default) entitling the Contractor to
terminate the Contract, prior to exercising its right to terminate the
Contract the Contractor shall first give the Financing Entities written
notice of such Default or event, by registered or certified mail, return
receipt requested, at the address last notified in writing by the Owner
for such notices. If the Owner fails to cure such Default, the
Contractor shall afford the Financing Entities a reasonable opportunity
to cure any Default by the Owner including any damages due to delay
resulting from the Financing Entities extended opportunity to cure.
26.4 Default by Contractor
26.4.1 If the Owner considers that the Contractor:
(a) is in breach of or default under this Contract (provided that any
failure to comply with any schedule or deadline requirement shall not
comprise a default except to the extent caused or contributed to by a
failure of the Contractor to diligently prosecute the Services or by
the breach of a material provision of the Contract); or
(b) has breached a representation or warranty which it has given to
the Owner under this Contract, including a representation made under GC
25.1.1,
the Owner may give the Contractor a Notice:
(c) specifying the alleged breach of or default under this Contract;
(d) specifying a reasonable time and date by which the Contractor
shall rectify the breach or default (or overcome their effects); and
(e) requiring the Contractor to show cause in writing why the Owner
should not exercise its rights under GC 26.5.
26.4.2 If the Owner gives the Contractor a Notice referred to in GC
26.4.1, the Contractor shall:
(a) comply with the Notice and give the Owner a program to
rectify the relevant default or remedy the breach (or overcome
their effects) in accordance with the terms of the Owner's
Notice; or
(b) notify the Contractor in writing that the Contractor
disputes the notice, with a concise statement of the grounds
for the dispute.
26.4.3 If the Contractor fails to rectify a default or remedy a breach
(or overcome their effects) in accordance with the terms of a Notice
referred to in GC 26.4.1:
(a) the Owner may take any action it considers appropriate, including
carrying out or having a third party carry out the part of the Services
which is the subject of the default, to:
(i) rectify that default; or
(ii) remedy that breach; and
(b) the Contractor shall (subject to the limit of liability set out
in GC 28.1) indemnify the Owner against any incremental costs incurred
by the Owner to rectify or remedy the default or breach (including
reasonable costs paid to third parties), in which case the cost
incurred by the Owner will be a debt due and payable from the
Contractor to the Owner, except to the extent such damage, cost, loss
or liability arises from the negligence or wilful default of the Owner.
26.5 Termination by Owner Following Default by Contractor
26.5.1 The Owner may terminate this Contract, with immediate effect, by
Notice to the Contractor after it has previously given the Contractor a
Notice under GC 26.4 and the Contractor has not complied with that
Notice.
26.6 Termination for Insolvency of a Party
26.6.1 Subject only to Applicable Laws governing bankruptcy and
creditors that by such Applicable Laws postpone a Partys rights to
terminate, either Party may terminate this Contract, with immediate
effect, by Notice to the other Party if:
(a) the other Party becomes (or informs any of the first Party,
creditors of the other Party generally, or any particular creditor of
the other Party that it is) insolvent or unable to pay its debts as and
when they fall due;
(b) a liquidator or provisional liquidator is appointed in respect of
the other Party;
(c) a receiver or receiver and manager or an analogous person is
appointed to the other Party or any of its property;
(d) the other Party has a mortgagee seeking to exercise a right of
possession or control over the whole or a part of its property;
(e) the other Party enters into, or calls a meeting of its members or
creditors with a view to entering into, a composition, compromise or
arrangement with, or an assignment for the benefit of, any of its
members or creditors, or a Court orders that a meeting be convened in
respect of a proposed composition, compromise or arrangement between
the other Party and its creditors or any class of its creditors, other
than for the purpose of restructuring or amalgamation;
(f) the other Party has any execution, writ of execution, mareva
injunction or similar order, attachment or other process made, levied
or issued against it or in relation to any of its assets;
(g) any application is made or other process commenced (not being an
application or process withdrawn, discontinued or dismissed within
seven (7) days of being filed) seeking an order for the appointment of
a provisional liquidator, a liquidator, a receiver or a receiver and
manager to the other Party;
(h) the other Party is declared bankrupt or has filed for some form
of protection from its creditors under Applicable Laws relating to or
governing bankruptcy;
(i) there is a resolution of creditors or members, or an order of a
court, to place in liquidation or bankruptcy and/or wind up the other
Party; or
(j) an event happens analogous to an event specified in this GC
26.6.1(a) to GC 26.6.1(i) to which the law of another jurisdiction
applies and the event has an effect in that jurisdiction similar to the
effect which the event would have had if the law of Canada applied.
26.7 Termination for Events of Force Majeure
26.7.1 Either Party may terminate this Contract by giving Notice to the
other Party if an Event of Force Majeure continues for a period of six
(6) months after a Notice is given under GC 17.4 in respect of that
Event of Force Majeure.
26.7.2 If this Contract is terminated pursuant to GC 26.7.1:
(a) the Owner (without prejudice to any other rights or remedies it
has) will pay the Contractor in accordance with GC 18.1 after receipt
of a written claim for payment:
(i) the portion of the Fee due to the Contractor for the Services
performed in the relevant period up to the date of termination; and
(ii) the relevant portion of the Fee allocated for demobilisation
costs; and
(b) the Contractor is not entitled to any other Claim for any
consequential costs, losses or damages.
26.8 Termination by Owner for Convenience
26.8.1 Despite any other provision of this Contract:
(a) the Owner may at its sole discretion and for any reason,
including convenience of the Owner and without any fault or default on
the part of the Contractor, terminate this Contract effective
immediately upon giving Notice to the Contractor or at a future date
specified in the Notice; and
(b) subject to the Contractor complying with its professional
obligations in the practice of professional engineering and as required
to protect Persons and property from damage, the Contractor shall cease
the performance of the Services immediately upon receiving that Notice
or upon any later date specified in that Notice.
26.8.2 If for any reason a purported termination under GC 26.5, GC 26.6
or GC 26.7 by the Owner is held to be ineffective, the purported
termination is not a breach or repudiation of this Contract and is
deemed to have been effected under GC 26.8.1.
26.8.3 If this Contract is terminated pursuant to GC 26.8.1:
(a) the Owner (without prejudice to any other rights or remedies it
has) will pay the Contractor in accordance with GC 18.1, after receipt
of a written claim for payment, the portion of the Fee due to the
Contractor for the Services performed in the relevant period up to the
date of termination plus demobilisation costs and other costs the
Contractor reasonably incurs (and provides satisfactory evidence for)
in terminating the Services; and
(b) the Contractor is not entitled to make any other Claim for any
consequential costs, losses or damages.
26.9 Termination by Owner of Contract
26.9.1 If the Owner terminates this Contract pursuant to GC 26.5, GC
26.6, GC 26.7 or GC 26.8, then:
(a) the Owner may engage and pay other persons to perform the
Services. Such other persons may enter the Site and use all Goods
necessary to perform the Services, and the Contractor shall provide to
such other persons full and free access to the Site and Goods for that
purpose;
(b) as and when required by the Owner by Notice to the Contractor
(and not before), the Contractor shall remove from the Site any other
property of or in the possession or control of the Contractor within
one (1) month of receiving such Notice. If the Contractor fails to do
so, the Owner may remove and/or dispose of any such other property as
it sees fit. The Owner may credit to the Contractors account, (or to
the Owners account), an amount equal to the proceeds from any sale
(less any disposal costs incurred by the Owner);
(c) the Contractor shall, if so required by the Owner within fourteen
(14) days after the date of termination, use all reasonable efforts to
assign or novate to the Owner without payment the benefit of any
agreements for the maintenance, manufacture and/or supply (including
supply by way of lease, hire purchase, or other right to use
arrangement) of constructional plant used to perform the Services or
Goods and the performance of any part of the Services; and
(d) the Contractor shall deliver to the Owner within fourteen (14)
days after the date of termination:
(i) all the Owner Documentation;
(ii) all Contract Material; and
(iii) anything recording, containing, setting out, or making
reference to the Services or the Project, save that the Contractor may
keep one copy of such documentation and material in accordance with the
confidentiality obligations of this Contract.
26.9.2 If the Owner terminates this Contract pursuant to GC 26.5 or GC
26.6, the Owner may, without limiting any other rights it may have to
pay suppliers and manufacturers:
(a) pay any manufacturer or supplier for any constructional plant
delivered or work performed for the purpose of this Contract (whether
before or after the date of termination) which has not already been
paid for by the Contractor; and
(b) deduct amounts equal to any such payments from any moneys due to
the Contractor from time to time.
26.10 Recovery of Loss
26.10.1If the Owner terminates this Contract pursuant to GC 26.5 or GC
26.6, or if the Contractor repudiates the Contract and the Owner
otherwise terminates the Contract, then the Owner shall:
(a) not be obliged to make any further payments to the Contractor
except for any money that is the subject of a Application for Payment
under GC 18.4 or a payment statement under GC 18.8; and
(b) subject to GC 28.1, be entitled to recover from the Contractor
any costs, losses, damages or liability incurred or suffered or
suffered by it as a result of, or arising out of, or in any way in
connection with, such termination.
26.11 Preservation of Other Rights
26.11.1 If the Contractor:
(a) is in breach of or is in default under this Contract; or
(b) breaches a warranty which it gives the Owner under this Contract,
nothing in this GC 26 shall, subject to 28.1, prejudice the right of the
Owner to exercise any other right it may have under this Contract or at
law or equity.
27. INDEMNITIES
27.1 Indemnity by EPC Contractor
27.1.1 Subject to GC 27.1.2, the Contractor shall indemnify and save
harmless the Owner and its directors, officers, employees, agents,
contractors, subcontractors, representatives and affiliates, and each
of them, and defend any and all of them at their request, from and
against any and all claims, costs, damages, expenses, losses, fines,
taxes, contributions, severance payments, demands and other liabilities
which they may suffer or incur, and also from and against any action,
suit, claim, demand or proceeding of any nature that may be brought
against them (including legal fees and disbursements on a full
indemnity basis incurred by them in defending such action, suit, claim,
demand or proceeding):
(a) in respect of an infringement of any patent or intellectual
property rights of others used or specified by the Contractor; or
(b) in respect of:
(i) loss of, or damage to, any real or personal property;
(ii) the personal injury to, or disease or illness (including mental
illness) affecting, or death of, any person; or
(iii) any environmental impairment or Contamination resulting from
sudden and accidental spills or Contamination,
arising out of or in connection with the following (including, without
limitation, during the correction or re-performance of non-compliant
Services, or the rectification of any defect, deficiency or
non-conformance in respect of the Services, or the fulfilling of any
warranties under the Contract):
(iv) any negligent act or omission of the Contractor or the Contract
Personnel;
(v) any failure by the Contractor to observe or perform its
obligations under this Contract or any breach by the Contractor
of this Contract; or
(vi)the breach of, or failure to comply with, any Applicable
Laws or the requirements of any Permits, Licences and Approvals
by the Contractor or the Contract Personnel.
27.1.2 The Contractors liability under GC 27.1.1 of this Contract will
be reduced proportionately to the extent that the cost, damage,
expense, loss or other liability or claim was caused by a negligent act
or omission of the Owner or those for whom the Owner is responsible
under the Contract.
27.1.3 For the purposes of GC 27.1.1, the Owner will be deemed to be
acting as agent or trustee on behalf of or for the benefit of all
persons who are or might be its directors, officers, employees, agents,
contractors, subcontractors, representatives or affiliates from time to
time, as well as on its own behalf.
27.2 Indemnity by Owner
27.2.1 Subject to GC 27.2.2, the Owner shall indemnify and save
harmless the Contractor and its directors, officers, employees, agents,
contractors, subcontractors, representatives and affiliates, and each of
them, and defend any and all of them at their request, from and against
any and all claims, costs, damages, expenses, losses, fines, taxes,
contributions, severance payments, demands and other liabilities which
they may suffer or incur, and also from and against any action, suit,
claim, demand or proceeding of any nature that may be brought against
them (including legal fees and disbursements on a full indemnity basis
incurred by them in defending such action, suit, claim, demand or
proceeding):
(a) in respect of an infringement of any patent or intellectual
property rights of others specified by the Owner; or
(b) in respect of:
(i) loss of, or damage to, any real or personal property;
(ii) the personal injury to, or disease or illness (including mental
illness) affecting, or death of, any person; or
(iii) any environmental impairment or Contamination (except sudden
and accidental spills or Contamination for which the Contractor is
responsible to indemnify the Owner under GC 27.1),
arising out of or in connection with:
(iv) any negligent act or omission of the Owner;
(v) any failure by the Owner to observe or perform its
obligations under this Contract or any breach by the Owner of
this Contract; or
(vi) the breach of, or failure to comply with, any Applicable
Laws or the requirements of any Permits, Licences and Approvals
by the Owner.
27.2.2 The Owners liability under GC 27.2.1 of this Contract will be
reduced proportionately to the extent that the cost, damage, expense,
loss or other liability or claim was caused by a negligent act or
omission of the Contractor or those for whom the Contractor is
responsible under the Contract.
27.2.3 For the purposes of GC 27.1.1, the Contractor will be deemed to
be acting as agent or trustee on behalf of or for the benefit of all
persons who are or might be its directors, officers, employees, agents,
contractors, subcontractors, representatives or affiliates from time to
time, as well as on its own behalf.
28. LIMITATION OF LIABILITY
28.1 Limitation of Contractor Liability
28.1.1 Subject to GC 28.1.2 and GC 28.1.3, the maximum liability of the
Contractor to the Owner hereunder or in any way connected to the
Services or the Contractors performance of the Services shall not
exceed the following:
(a) For that part of any claim under GC 27.1 (excluding liabilities
to third parties for personal injury, wrongful death, or damage or
destruction to property) for which any insurance is available to
indemnify the Contractor, or for which any insurance would have been
available to indemnify the Contractor if the Contractor had fulfilled
its obligations under this Contract and procured the insurance
specified in Appendix 11 Insurance to be procured by the Contractor,
then the greater of:
(i) applicable limits specified in the Contract for the relevant
insurance required to be procured by the Contractor pursuant to the
Contract; and
(ii) the amount of insurance proceeds actually available to indemnify
the Contractor for such claims under any of the policies of insurance
specified in Appendix 11 Insurance and procured by or on behalf of the
Owner or the Contractor specifically for the purpose of this Project.
Provided, however, that if prior claims are made against the Contractor
during the relevant policy period and if such prior claims actually
reduce the limits otherwise available under the policy of insurance,
then the applicable limits referred to in GC 28.1.1(a)(i) shall be
construed to mean the available limits remaining under the policy.
(b)For all other claims, the maximum amount of liability specified
in Appendix 6 Compensation.
For clarity, it is agreed that the purpose of the foregoing is that the
Owner shall be entitled to receive, directly or indirectly, the benefit
of all insurance procured by or on behalf of the Owner or the
Contractor specifically for the purpose of this Project and available
to indemnify the Contractor for and against claims made by the Owner
against the Contractor.
28.1.2 For purposes of GC 28.1.1, if insurance proceeds are not
available to indemnify the Contractor or the Owner because of the
Contractors failure, by its negligence or by its breach of its
obligations hereunder, to procure the insurance required by this
Contract to be procured by the Contractor, or because the Contractor
breached the terms and conditions of the Owners or Contractors policy
of insurance (provided that in respect of Owners insurance, this shall
be limited to terms and conditions known to the Contractor prior to the
date of the occurrence giving rise to the claim, and generally in
conformance with standard terms and conditions available on reasonable
terms for similar insurance policies, and brought to the attention of
the Contractor prior to the breach complained of), then the provisions
of GC 28.1.1 shall be interpreted and construed as if the policies of
insurance specified by this Contract were in full force and effect, in
which case the amount of the limitations of liability specified in of
GC 28.1.1 shall apply whether or not insurance is available to
indemnify the Contractor.
28.1.3 Notwithstanding GC 28.1.2 or any other provision of the
Contract, any limitations of liability in favour of the Contractor
specified in the Contract shall not apply to or limit the Contractors
responsibility and liability to the Owner for the following:
(a) any damage and expense suffered by the Owner arising or resulting
from the gross negligence, recklessness or wilful or intentional misconduct
on the part of the senior management of the Contractor or the Key
Personnel;
(b) liability of the Owner arising or resulting from the breach by the
Contractor of the intellectual property rights, including in respect of
copyright and patent rights, of third parties;
(c) liability of the Owner to third parties, including Governmental
Authorities, arising or resulting from the Contractor acting as agent for
the Owner to the extent that such liability arises out of the Contractor acting
outside the scope of its authority to act as the Owner's agent hereunder; and
(d) the Contractor's liability (if any) to Governmental Authorities for
breach by the Contractor of any Applicable Laws, including for any liabilities
imposed under Applicable Laws in relation to workers employed by or through the
Contractor for the performance of the Services.
28.1.4 The liabilities of the Contractor hereunder shall be exclusive
of the liability of the Contractors related and affiliated companies,
subconsultants and agents, and their respective officers directors, and
employees in respect of the matters contemplated herein.
28.2 Limitation of Owner Liability
28.2.1 Subject to GC 28.2.2 and GC 28.2.3, the maximum liability of the
Owner to the Contractor hereunder or in any way connected to the
Services or the Contractors performance of the Services (except for
compensation payable under Appendix 6
Compensation for Services rendered) shall not exceed the following:
(a) For that part of any claim under GC 27.2 (excluding liabilities
to third parties for personal injury, wrongful death, or damage or
destruction to property) for which any insurance is available to
indemnify the Owner, or for which any insurance would have been
available to indemnify the Owner if the Owner had fulfilled its
obligations under this Contract and procured the insurance specified in
Appendix 11 Insurance to be procured by the Owner, then the greater of:
(i) applicable limits specified in the Contract for the relevant
insurance required to be procured by the Owner pursuant to the
Contract; and
(ii) the amount of insurance proceeds actually available to indemnify
the Owner for such claims under any of the policies of insurance
specified in Appendix 11 Insurance and procured by or on behalf of the
Owner or the Contractor specifically for the purpose of this Project.
Provided, however, that if prior claims are made against the Owner
during the relevant policy period and if such prior claims actually
reduce the limits otherwise available under the policy of insurance,
then the applicable limits referred to in GC 28.2.1(a)(i) shall be
construed to mean the available limits remaining under the policy.
(b) For all other claims, an amount equal to the amount calculated
pursuant to GC 28.1.1(b).
For clarity, it is agreed that the purpose of the foregoing is that the
Contractor shall be entitled to receive, directly or indirectly, the
benefit of all insurance procured by or on behalf of the Owner or the
Contractor specifically for the purpose of this Project and available
to indemnify the Owner for and against claims made by the Contractor
against the Owner.
28.2.2 For purposes of GC 28.2.1, if insurance proceeds are not
available to indemnify the Owner or the Contractor because of the
Owners failure, by its negligence or by its breach of its obligations
hereunder, to procure the insurance required by this Contract to be
procured by the Owner, or because the Owner breached the terms and
conditions of the Owners or Contractors policy of insurance (provided
that in respect of Owners insurance, this shall be limited to terms and
conditions known to the Contractor prior to the date of the occurrence
giving rise to the claim, and generally in conformance with standard
terms and conditions available on reasonable terms for similar
insurance policies, and brought to the attention of the Contractor
prior to the breach complained of), then the provisions of GC 28.2.1
shall be interpreted and construed as if the policies of insurance
specified by this Contract were in full force and effect, in which case
the amount of the limitations of liability specified in of GC 28.2.1
shall apply whether or not insurance is available to indemnify the
Contractor.
28.2.3 Notwithstanding GC 28.2.2 or any other provision of the
Contract, any limitations of liability in favour of the Owner specified
in the Contract shall not apply to or limit the Owners responsibility
and liability to the Contractor for the following:
(a) any damage and expense suffered by the Contractor arising or resulting
from the gross negligence, recklessness or wilful or intentional misconduct
on the part of the senior management of the Owner or the Key
Personnel;
(b) liability of the Contractor arising or resulting from the breach by the
Owner of the intellectual property rights, including in respect of
copyright and patent rights, of third parties, to the extent that such breach
by the Owner is not caused by or attributable to the Contractor or the
performance of the Services; and
(c) the Owner's liability (if any) to Governmental Authorities for
breach by the Owner of any Applicable Laws, including for any liabilities
imposed under Applicable Laws in relation to workers employed by or through the
Owner for the performance of the Services, to the extent that such breach
by the Owner is not caused by or attributable to the Contractor or the
performance of the Services.
28.2.4 Subject to any and all other express written agreements and
guarantees (including the payment guarantee delivered pursuant to GC
22.1) the liabilities of the Owner hereunder shall be exclusive of the
liability of the Owners related and affiliated companies, contractors,
consultants, and agents, and their respective officers directors, and
employees in respect of the matters contemplated herein.
28.3 Application of Limitations of Liability
28.3.1 All limitations of liability provided for in this Contract
shall: apply solely as between Owner and Contractor; survive any
termination of this Contract for any reason; and shall apply whether a
claim in respect thereof is framed in contract, tort (including
negligence), product liability, by statute, or under any other legal
theory.
28.4 Exclusion of Consequential Damages
28.4.1 Except to the extent forbidden or prohibited by Applicable Laws,
neither Party shall be liable to the other for lost or delayed profits,
income, revenues or production, or for damages for increased costs of
construction, business or operations, or for other indirect or
consequential damages (collectively and individually all of the
foregoing referred to herein as Consequential Damages), whether such
claim for Consequential Damages is founded in contract, tort (including
negligence), by statute, or by any other provision of law, provided
however that the aforesaid exclusion of Consequential Damages shall not
limit, operate or apply to the following:
(a) an express right hereunder of a Party to claim and recover
Liquidated Damages from the other Party; and
(b) Consequential Damages for which the Contractor is, but for the
aforesaid exclusion of Consequential Damages, entitled to be
indemnified by an insurer under an insurance policy required by
Appendix 11 Insurance (other than under the Project E&O Policy, if
any, as defined in Section 2 of Appendix 11-2), such that the intent of
the aforesaid exclusion of Consequential Damages is that it shall only
operate to the extent that the Contractors liability for such
Consequential Damages is an uninsured liability, such that if the
Contractors liability for Consequential Damages is insured by a policy
of insurance other than the EP E&O Policy then the Owner shall obtain
the benefit of the proceeds of any such insurance that may be payable
but for the aforesaid exclusion of Consequential Damages.
28.5 Exclusion of Warranties of Performance of the Project
28.5.1 Save and except express performance guarantees and warranties of
performance of the Project that may be set out in Appendix 5
Performance Guarantees or Appendix 6
Compensation, the Contractor does not guarantee the performance
characteristics or production from the completed Project. The
Contractor shall, however, in consultation with the Owner use all
reasonable efforts to obtain performance guarantees from each of the
Trade Contractors to the extent practicable and economic for the scope
of work of the Trade Contractors.
29. DISPUTE RESOLUTION
29.1 General
29.1.1 All disputes, controversies, or claims arising out of or
relating to any provision of this Contract or the interpretation,
enforceability, performance, breach, termination, or validity hereof,
including, without limitation, this GC 29 (collectively and
individually referred to herein as a Dispute) shall be resolved in
accordance with the provisions of this GC 29.
29.2 Resolution by Owners Representative
29.2.1 Decisions of the Owners Representative under the Contract will
be final and binding on both Parties unless, within fourteen (14) days
after the Owners Representative making a determination in writing under
the Contract, either Party provides Notice to the other, and to the
Owners Representative, disputing such decision. Such Notice shall
identify the determination which is disputed, the reasons for
disagreeing with the determination of the Owners Representative and
summarizing the essential elements of the Partys position in relation
to the determination, including the position which the Party believes
is correct and the relevant facts and provisions of the Contract
supporting its position.
29.2.2 If either Party files Notice of dispute of a determination by
the Owners Representative pursuant to GC 29.2.1, then neither Party
will be bound by the determination and the Dispute shall be resolved
pursuant to GC 29.3.
29.3 Resolution by Negotiations
29.3.1 Any Dispute that cannot be resolved:
(a) by the Owner's representative pursuant to GC 29.2; or
(b) between the Owner's Representative and the Contractor's Project
Manager within fourteen (14) days thereafter
shall be referred, by Notice signed by the Owners Representative and
the Contractors Project Manager, or signed by either one of them, to
the chief executive officer (or his designate) of the Contractor and
the chief executive officer (or his designate) of the Owner for
resolution. The designate of the chief executive officer in all cases
shall be a senior executive of the Party who is, in the management
hierarchy of that Party, in a management position senior to that of the
Project Manager and the Project Sponsor in the case of the Contractor,
and to that of the Owners Representative in the case of the Owner. If
the Parties, negotiating in good faith, fail to reach an agreement
within a reasonable period of time, not exceeding thirty (30) days or,
in the case of Disputes over payment, fourteen (14) days after such
referral, then the Dispute shall be submitted to mediation in
accordance with GC 29.4.
29.4 Resolution by Mediation
29.4.1 Any Dispute that cannot be resolved pursuant to GC 29.2 or GC
29.3 shall, unless the Parties expressly agree to proceed directly to
arbitration in accordance with GC 29.5, be referred to mediation under
the rules of the British Columbia International Commercial Arbitration
Centre (BCICAC). Mediation shall take place between the Owners chief
executive officer, as the representative of the Owner, and the chief
executive officer of the Contractor, as the representative of the
Contractor. They shall each make themselves available at such times and
such places for mediation as the mediator in his or her sole discretion
may decide. Each Party shall bear its own costs of the mediation
together with one-half of both the mediators costs and the charges of
the BCICAC in respect to the mediation.
29.4.2 If mediation does not resolve the dispute between the Parties
within sixty (60) days after the appointment of the mediator, either
Party may commence arbitration proceedings in accordance with GC 29.5,
but only if the Party seeking to commence such proceeding has
first obtained from the mediator written confirmation that it has made
itself reasonably available and has made reasonable good faith efforts
to resolve the dispute through mediation. To the extent allowed at law,
neither the subject matter of the mediation nor any records, notes or
other documents that were specifically produced only for use in, or
created during, the mediation shall be admissible or referred to in any
subsequent arbitration or litigation proceeding.
29.5 Resolution by Arbitration
29.5.1 Any Dispute that cannot be resolved pursuant to GC 29.2, GC 29.3
or GC 29.4 shall be referred to and finally resolved by arbitration
under the rules of the BCICAC for domestic commercial arbitrations and
(a) before a three (3) person arbitration tribunal if the
total of all amounts in dispute exceed $1,000,000; and
(b) before a single arbitrator if the total of all amounts in
dispute is less than $1,000,000.
The award of the arbitrator(s) shall be final and binding upon both
Parties.
29.5.2 Notice of demand for arbitration shall be filed with the other
Party and with the BCICAC. Any demand for arbitration shall be made
within the time beyond which legal or equitable proceedings based on
such Dispute would be barred by any Applicable Laws.
29.5.3 The appointing authority shall be the BCICAC.
29.5.4 The case shall be administered by the BCICAC in accordance with
its Procedures for Cases under the BCICAC Rules.
29.5.5 In case of arbitration before a single arbitrator, the Parties
shall agree on the arbitrator or, failing agreement, the arbitrator
will be appointed in accordance with the rules of the BCICAC.
29.5.6 In case of arbitration before a three-person panel, each Party
shall have the right to designate an arbitrator of its choice, who need
not be from the BCICACs panel of arbitrators but who shall be
independent of and not act as an advocate for either Party. Such
designation shall be made by Notice to the other Party and to the
Association within the time limits specified in the BCICAC rules. The
arbitrators designated by the Parties shall designate a third
arbitrator, who shall have a background and experience in both
arbitrations and legal or judicial matters, within the time period
prescribed in the rules of the BCICAC. If the two (2) arbitrators
cannot or do not select a third independent arbitrator within such
period, either Party may apply to the BCICAC for the purpose of
appointing any person listed with the BCICAC as the third independent
arbitrator whether or not that person has the requisite technical
qualifications and experience.
29.5.7 No one shall be nominated or appointed to act as an arbitrator
who is in any way financially interested in the performance of the
Services or the Project or in the business affairs of either the Owner,
the Contractor, or any consultant, subconsultant or subcontractor of any
of them.
29.5.8 Subject to GC 29.5.6, unless the Parties otherwise agree in
writing, every arbitrator shall be knowledgeable and experienced in the
design and construction of mine process plants comparable to the Project.
29.5.9 The arbitrator(s) shall have the power to amend or vary the
rules of the BCICAC, including rules relating to time limits, by
agreement of the Parties or, failing agreement, as the arbitrator(s)
consider appropriate and necessary in the circumstances.
29.5.10 Unless the Parties otherwise agree in writing, the place of
arbitration shall be Vancouver, British Columbia, Canada. The place of
the arbitration hearings shall be in such location as the Parties and
arbitrator(s) may agree or, failing unanimous agreement, in Vancouver,
British Columbia.
29.5.11 The Parties agree that, notwithstanding the rules of the BCICAC,
the arbitrators in any arbitration shall apply the law of the Province
of Ontario as the governing law applicable to this Contract.
29.5.12 This agreement to arbitrate shall be specifically enforceable.
29.5.13 Any award rendered by the arbitrators shall be final, and
judgment may be entered upon it in accordance with Applicable Law in
any court having jurisdiction thereof.
29.5.14 Unless the Parties otherwise agree, all arbitral proceedings
will be consolidated into a single arbitration to be held after the
Notice of Provisional Acceptance has been issued.
29.5.15 The Parties shall proceed with the arbitration expeditiously and
shall conclude all proceedings thereunder, including any hearing, in
order that a decision may be rendered as soon as practicably possible,
given the nature and magnitude of the dispute.
29.5.16 If it is determined, either by agreement of the Parties or
through arbitration, that:
(a)the Contractor has received payment from the Owner in excess of
that to which the Contractor is entitled under the Contract, the
Contractor shall promptly refund the amount of such excess payment
together with interest thereon at the Prime Rate in effect from time
to time plus two percent (2%) per annum, from the day following the
date of such payment until the date of full refund to the Owner; and
(b)the Contractor has not received payment from the Owner of an amount
that was due when it was due, the Owner shall pay or cause to be paid
to the Contractor within thirty (30) days after the final arbitration
award is made such withheld amount together with interest thereon at
the Prime Rate in effect from time to time plus two percent (2%) per
annum, from the day following the date on which such payment is
determined to have been unduly withheld (as so determined) until the
date of payment in full to the Contractor.
29.5.17 Compliance with the requirements of this GC 29.5 in respect of a
Dispute is a condition precedent to commencement of litigation in
respect of that Dispute.
29.6 Consolidation of Arbitrations
29.6.1 If the Owner (or any corporate affiliate of the Owner) is or
becomes involved in any arbitration proceeding with any corporate
affiliate of the Contractor , all such arbitrations shall be
consolidated or joined with the other arbitration or arbitrations such
that all disputes between the Owner (or any corporate affiliate of the
Owner) and either or both the Contractor and any corporate affiliate of
the Contractor, be resolved by a single arbitral tribunal.
29.7 Dispute Resolution Not to Delay Performance
29.7.1 Unless otherwise agreed in writing, the Contractor shall
diligently continue to perform the Services during the pendency of any
Disputes or arbitration proceedings so long as all amounts payable to
the Contractor hereunder have been paid which are not subject to a
dispute by the Owner in good faith, for reasons stated in writing with
reasonable particularity.
30. MEDIA RELEASES AND CONFIDENTIALITY
30.1 Media Release
30.1.1 The Contractor shall not advertise or issue any information,
publication, document or article (including photographs or film) for
publication or media releases or other publicity relating to the
Project, this Contract or the Owners business and activities without
the prior written approval of the Owner except as may be required by
Applicable Laws.
30.1.2 The Contractor shall refer to the Owner any enquiries from the
media concerning the Project, this Contract or the Owners business and
activities.
30.2 Confidentiality
30.2.1 The Contractor shall not, and shall ensure that the Contract
Personnel do not, without the prior written approval of the Owner:
(a) use Confidential Information other than as necessary for the
performance of the Services; or
(b)disclose Confidential Information, other than to the extent
required by a court of law, government department or regulatory
Governmental Authority having jurisdiction over the Contractor or
pursuant to any Applicable Laws. The Contractor shall promptly
notify in writing the Owner of any requirement to use or disclose
Confidential Information.
30.2.2 The Contractor shall, within seven (7) days of a written
direction by the Owners Representative to do so, return or destroy all
Confidential Information in the Contractors possession, custody or
control, save that the Contractor may keep one copy of the Confidential
Information in accordance with the confidentiality obligations of this
Contract.
31. NOTICES AND COMMUNICATIONS
31.1 Method of Notice
31.1.1 Any Notice pursuant to the terms and conditions of this Contract
shall be in writing and
(a) delivered personally, (b) sent by a recognized express mail or
courier service, with delivery receipt requested, or (c) sent by
confirmed facsimile transmission with telephonic confirmation, to the
addresses of the Owners Representative and the Contractor in the
Agreement.
31.2 Effectiveness of Notices
31.2.1 Any Notice given under the Contract shall be considered as
having been made if mailed by registered prepaid mail, actually
delivered, or sent by fax to the recipient at either the addresses or
fax numbers stated in the Contract or any substitute address of which
the Party sending the Notice has had prior Notice as provided for in
the Contract. Any such Notice shall be deemed to have been given at the
time it is delivered by hand, or if mailed as aforesaid then within four
(4) calendar days after the date of mailing if mailed in Canada and
seven (7) days after the date of mailing if mailed outside of Canada,
or if sent by fax then on the date it is transmitted prior to 4:00 p.m.
at the place of receipt, otherwise on the morning of the following day.
31.2.2 To be effective, Notices and all formal communications under the
Contract shall be in writing and mailed, delivered or transmitted by
facsimile transmission, and shall be signed by an authorized
representative of the Party.
31.2.3 Although the Parties may use E-mails for day to day
communications, E-mails shall not be used for and shall not constitute
Notices under the Contract where the Contract expressly requires that a
Notice be given, including for Claims, Application for Payments, Events
of Force Majeure, and termination.
31.2.4 Verbal communications shall not constitute formal communication
or Notice under the Contract and neither Party has any obligation to
act on any verbal communication or instruction unless and until it is
confirmed in writing. Any action taken by a Party based on verbal
communications, instructions or assurances shall be at that Partys sole
risk and shall be without liability to or recourse against the other
Party.
31.3 Change of Address
31.3.1 A Party may, from time to time, give Notice to the other Party
of any change to its address.
32. NOTIFICATION OF CLAIMS
32.1 Notices of Claims
32.1.1 Except for Claims for:
(a) payment under GC 18 of the original Fee specified in the
Contract; or
(b) a variation to the Scope of Services instructed in accordance
with GC 15,
the Contractor shall give the Owners Representative the Notices
required by GC 32.2 if it wishes to make a Claim against the Owner in
respect of any direction by the Owners Representative (including a
Claim that the direction is a variation to the Scope of Services under
GC 15 notwithstanding that it may not have been expressly described as
such) or any other fact, matter or thing (including a breach of the
Contract by the Owner) under, arising out of, or in any way in
connection with, the Project or the Contract, including anything in
respect of which:
(c) it is otherwise given an express entitlement under the Contract;
or
(d) the Contract expressly provides that:
(i) specified costs are to be added to the Fee; or
(ii) the Fee will be otherwise increased or adjusted, as determined
by the Owners Representative.
32.2 Prescribed Notices
32.2.1 The Notices referred to in GC 32.1 are:
(a) a Notice within fourteen (14) days of the first occurrence of the
direction or other fact, matter or thing upon which the Claim is based,
expressly specifying:
(i) that the Contractor proposes to make a Claim; and
(ii) the direction or other fact, matter or thing upon which the
Claim will be based; and
(b) a written Claim within twenty-one (21) days of giving the Notice
under GC 32.2.1(a), which shall include:
(i) detailed particulars concerning the direction or other fact,
matter or thing upon which the Claim is based;
(ii) the legal basis for the Claim, whether based on a term of the
Contract or otherwise, and if based on a term of the Contract, clearly
identifying the specific term;
(iii) the facts relied upon in support of the Claim in sufficient
detail to permit verification; and
(iv) details of the amount claimed and how it has been calculated.
32.3 Continuing Events
32.3.1 If the direction or fact, matter or thing upon which the Claim
under GC 32.1 is based or the consequences of the direction or fact,
matter or thing are continuing, the Contractor shall continue to give
the information required by GC 32.2.1(b) every twenty-eight (28) days
after the written Claim under GC 32.2.1(b) (as the case may be) was
required to be given to the Owners Representative, until after the
direction or fact, matter or thing upon which the Claim is based, has,
or the consequences thereof have, ceased.
32.4 Time Bar
32.4.1 If the Contractor fails to comply with GC 32.1, GC 32.2 or GC
32.3:
(a) the Owner will not be liable (insofar as it is possible to
exclude such liability) upon any Claim by the Contractor; and
(b) the Contractor will be absolutely barred from making any Claim
against the Owner, arising out of, or in any way in connection with,
the relevant direction or fact, matter or thing (as the case may be) to
which GC 32.1 applies.
32.5 Other Provisions Unaffected
32.5.1 Nothing in GC 32.1 to GC 32.4 will limit the operation or effect
of any other provision of the Contract which requires the Contractor to
give Notice to the Owners Representative in order to preserve an
entitlement to make a Claim against the Owner.
33. GENERAL
33.1 Nature of Relationship and Contractor as Agent
33.1.1 Subject to GC 33.1.3, nothing in this Contract constitutes a
joint venture, partnership or other fiduciary relationship between the
Owner and the Contractor.
33.1.2 The Contractor acknowledges and agrees that it has no authority
to bind the Owner in respect to any commitments, obligations or
liabilities to Governmental Authorities or under Applicable Laws.
33.1.3 The Owner appoints the Contractor as its limited agent to act in
the Owners name in accordance with and subject to the terms of this
Contract, provided however that:
(a) such agency and authority is solely for the purpose of and
limited to entering into the Trade Contracts;
(b) in soliciting bids from and negotiating with prospective Trade
Contractors, and in entering into the Trade Contracts, the Contractor
shall do so in the name of and as disclosed agent for the Owner;
(c) where the Contractor has entered into Trade Contracts as
disclosed agent for the Owner, the Contractor shall not act outside
the scope of the authority conferred on it under this Contract;
(d) the Contractor shall at all times conform to and comply strictly
with, and shall ensure that anything and everything it does as agent for
and in the name of the Owner conforms to and complies strictly with, all
requirements of this Contract, all Applicable Laws, the Permits, Licences
and Approvals, and the requirements of all relevant Government
Authorities; and
(e) promptly remove or instruct the relevant Trade Contractor to remove
from the Site and replace or re-execute defective work that has been
rejected by the Owner or the Contractor as failing to conform to the
requirements of this Contract or the Trade Contracts, whether or not the
defective work has been incorporated into the Project and whether or not
the defect is the result of poor design, poor workmanship, use of
defective products, or damage through carelessness or other act or
omission of the Trade Contractor(s), and the Contractor shall use all
reasonable efforts to backcharge and hold responsible the relevant Trade
Contractor for the replacement or re-execution of such defective work.
33.1.4 In the administration of the Trade Contracts, the Contractor
shall at all times represent and protect the interest of the Owner and
diligently enforce such Trade Contracts for, on behalf of, and in the
best interest of the Owner, and in accordance with the directions in
writing of the Owners Representative from time to time. This GC 33.1.4
shall survive Final Acceptance.
33.1.5 The Contractor shall enforce Trade Contracts strictly in
accordance with their terms, and shall not waive any provisions,
authorize any extras or agree to any changes except in each instance
with the prior written consent of the Owners Representative.
33.2 Variation and Waivers in Writing
33.2.1 This Contract may only be varied, or its provisions waived, in
writing by the Owner and the Contractor.
33.2.2 The non-exercise of, or a delay in exercising, any power or
right of a Party does not operate as a waiver of that power or right,
nor does any single exercise of a power or
right preclude any other or further exercise of it or the exercise of
any other power or right by that Party or Contractor.
33.2.3 A power or right of a Party may only be waived in writing by the
Party.
33.3 Contractor More than One Person
33.3.1 Where the Contractor includes more than one Person, the terms,
conditions and warranties of this Contract will bind all such Persons
jointly and each of them severally and the Persons comprising the
Contractor will be jointly and severally entitled to the benefits and
rights conferred by this Contract.
33.3.2 Where the Contractor comprises more than one Person or the
Contractor is otherwise jointly or severally liable to the Owner with
any other Person (whether in contract, in tort for negligence or
otherwise), each Person comprising the Contractor (Other):
(a) warrants that it will be responsible to the Owner for the acts
and omissions (including breaches of the Contract) of the Other as if
those acts and omissions were its own;
(b) for the purposes of GC 33.3.2(a) warrants that it will:
(i) review all of the activities of the Other under or
in connection with the Contract or the performance of the
Project ("Other's Activities"); and
(ii) identify and rectify all errors or defects in or
omissions from the Other's Activities or any other aspect
of the Other's Activities which are not in accordance with
the Contract;
(c) unconditionally and irrevocably guarantees to the
Owner that the Other will discharge all of its liabilities
to the Owner arising out of or in connection with the
Other's Activities ("Other's Liabilities");
(d) unconditionally undertakes to pay to the Owner on demand
any amount demanded in writing by the Owner on account of the
Other's Liabilities to the extent that they have not been
discharged by the Other; and
(e) as a separate, additional and primary liability,
unconditionally and irrevocably indemnifies the Owner from and
against all costs, expenses, losses and damages incurred or
suffered by the Owner as a result of or in connection with:
(i) the Other's Activities or the Other's Liabilities; or
(ii) a breach of the warranty in GC 33.3.2 or a failure
by the Person to perform any of its obligations under this
GC 33.3.
33.3.3 The liability of a Party under GC 33.3.2(c), GC 33.3.2(d) or GC
33.3.2(e) will not be affected by any act, omission, matter or thing
that would otherwise operate in law or in equity to reduce or release
the Party from that liability.
33.3.4 Without limitation, the liability of a Party referred to in GC
33.3.3 will not be affected by:
(a) the granting by the Owner of time, waiver, indulgence or
concession or the making of any composition or compromise;
(b) the Owner forbearing to enforce or neglecting to exercise any
right against the Other;
(c) any laches, acquiescence or other act, neglect, default, omission
or mistake by the Owner;
(d) any variation of any of the obligations and liabilities under the
Contract, made either with or without the knowledge of the Party;
(e) the release of any of the obligations and liabilities under the
Contract;
(f) any failure by the Owner to disclose to the Party any fact,
circumstance or event relating to the Contract at any time; or
(g) the default, insolvency, external administration or any other
financial difficulty of the Other or a Person becoming a controller of
the Others property (or part), or the Other having communications with
its creditors with a view to entering into any form of compromise,
arrangement or moratorium of any debts whether formal or informal.
33.4 Entire Agreement
33.4.1 Except as may subsequently be agreed between the Parties, this
Contract constitutes the entire agreement between the Parties in
respect of its subject matter and supersedes all prior agreements,
quotation requests, understandings, representations, warranties,
promises, statements, negotiations, letters and documents in respect of
its subject matter (if any) made or given prior to the Date of Contract.
33.5 Language of Contract
33.5.1 Unless the Parties otherwise agree, all communications between
the Parties and all documents prepared by the Contractor for the Owners
use under this Contract shall be in English.
33.6 Violation of Law of Another Jurisdiction
33.6.1 If this Contract is intended to be performed in more than one
jurisdiction, and its performance would be a violation of the
Applicable Laws of a jurisdiction where it is intended to be performed,
this Contract is binding in those jurisdictions in which it is valid and
the Parties will use their reasonable endeavours to re-negotiate and
amend this Contract so that its performance does not involve a
violation of the Applicable Laws of the jurisdiction where its
performance would be a violation.
33.7 Violation of Laws Governing Corrupt Practices
33.7.1 The Contractor shall comply with all Applicable Laws governing
or relating to corrupt business practices, including in addition to the
Applicable Laws of Venezuela all laws, statutes, by-laws, rules,
regulations, codes, ordinances, decrees, administrative
interpretations, guidelines, policies or orders governing or relating
to corrupt business practices in effect in Venezuela and, whether they
would otherwise apply or not, in effect in Canada, in any Canadian
province, in the United States of America, in any state of the United
States of America or either in effect or enforced by the World Bank.
33.7.2 Without limiting but in addition to the requirements of GC
33.7.1, each Party hereby covenants and agrees to comply, and to cause
its affiliates and subcontractors to comply, with all Applicable Laws
applicable to the Parties in respect of the matters contemplated under
this Contract and to take no actions, and to cause its affiliates and
subcontractors and personnel to take no actions, of any nature which
would contravene any of such Applicable Laws or which would contravene
any provision of any Applicable Laws in Venezuela in respect of
corruption, the United States Foreign Corrupt Practices Act, the
Canadian Corruption of Foreign Public Officials Act, or the Criminal
Code of Canada (collectively all of the foregoing the Anti-Corruption
Legislation) including, without limitation, offering or paying or
giving anything of value except as permitted by Applicable Laws, either
directly or indirectly, to an officer or employee of any Governmental
Authority, or any Person acting in an official capacity for or on
behalf of any Governmental Authority, or of any political party or to
any candidate for political office for the purpose of influencing an
act or decision in his or her official capacity, or inducing him or her
to do or omit to do any act in violation of his or her lawful duty or to
use his or her influence with any government, in order to assist a Party
or any of their respective affiliates in obtaining or retaining
business, or an advantage in the course of business, for or with, or
directing business to, any Person.
33.7.3 The Contractor acknowledges and agrees that the Contractor and
each of its affiliates and subcontractors is an independent contractor
and is not a legal representative or agent of the Owner or of any of
its affiliates for any purpose other than for administering the Trade
Contracts strictly in accordance with their terms, and does not have
the right or authority to incur, assume or create, in writing or
otherwise, any warranty, liability or obligation, express or implied,
in the name or on behalf of the Owner or any of its affiliates for any
purpose including, without limitation, in any manner that would or
could result in a violation or contravention of the provisions of any
of the Anti-
Corruption Legislation. The Contractor agrees that if it at any time
receives any request relating to the Owner or any of its affiliates or
the Project that the Contractor reasonably believes may constitute a
violation of any Applicable Law (including any of the Anti-Corruption
Legislation), the Contractor shall promptly notify the Owner and shall
provide it with all relevant particulars respecting that request.
33.7.4 All payments to the Contractor under this Contract will be
solely by check or bank transfer and no payment will be in cash, by
bearer instrument or made to any Person other than the Contractor.
33.7.5 The Contractor represents that it is familiar with the
provisions of the Anti-Corruption Legislation and their purposes, and
without limiting the foregoing is familiar with the provisions that
prohibits the payment or giving of anything of value, either directly
or indirectly, to an official of a foreign government or of any
Governmental Authority for the purpose of influencing an act or
decision in his official capacity, or inducing him to use his influence
with the foreign government, to assist a company in obtaining or
retaining business, or an advantage in the course of business, for or
with, or directing business to, any Person.
33.7.6 The Contractor further represents and covenants that none of the
Contractors partners, owners, principals and staff members are
officials, officers or representatives of any Governmental Authority,
and that no part of the compensation to be provided to the Contractor
under this Contract will be accepted or used by the Contractor for any
purpose, nor will it take any action which would constitute a violation
of any law of the various jurisdictions in which it performs services or
of Venezuela, the United States or Canada, including the Anti-Corruption
Legislation. For its part, the Owner represents and covenants that it
does not desire and will not request any service or action by the
Contractor that would or might constitute any such violation.
33.7.7 The Contractor agrees to provide full disclosure of the
existence and terms of this Contract and any subcontract at any time
and for any reason to whomever the Owner determines has a legitimate
need to know such terms for purposes of complying with this GC 33.7
including the governments of Venezuela, the United States, and Canada.
33.7.8 The Contractor acknowledges, and the Owner represents, that no
agent or employee of the Owner shall have authority to give any express
or implied direction, whether written or oral, authorizing the
Contractor to make any commitment to any third party on behalf of the
Owner in violation of the terms of this Contract.
33.7.9 Violation of this GC 33.7 may be deemed by the Owner to be a
material breach of this Contract and any other contract with the Owner
and subject all contracts with the Contractor and its affiliates to
immediate termination for default, as well as any other remedies at law
or in equity.
33.7.10 In addition to all other indemnities under the Contract, each of
the Owner and Contractor agree to and shall indemnify and hold the other
harmless from any and all damages, costs, expense and liabilities that
they may incur as a result of a breach by the other Party of the
requirements of this GC 33.7, and any limitation of liability in the
Contract shall not apply to the obligations under this indemnity.
33.8 Conflicts and Mitigation of Conflicts by Contractor
33.8.1 The Contractor shall comply strictly with the requirements of
Appendix 18 Conflict Mitigation Protocol.
33.8.2 Breach by the Contractor of the requirements of Appendix 18
shall be deemed to cause the Owner irreparable harm and entitle the
Owner, at the Owners sole discretion, to terminate the Contract for
cause pursuant to GC 26.5 after Notice to the Contractor of such breach
and without providing for a period of time or opportunity for the
Contractor to cure such breach.
33.8.3 The Contractor shall, subject to meeting its professional
obligations and complying with Applicable Laws and the requirements of
Governmental Authorities, act at all times in the best interest of the
Owner, consistent with the standard of care set out in GC 3.3.3. If the
Contractor at any time becomes aware of facts or circumstances that may
require the Contractor to act other than in the best interest of the
Owner, the Contractor shall promptly give Notice of the same to the
Owner, which Notice shall include the facts and circumstances that gave
rise to the conflict of interest, the nature of the conflict and the
steps that the Contractor has taken or is taking to mitigate and
resolve such conflict. To the extent that it is reasonably able to do
so, the Contractor shall take all measures and steps which the Owner
may reasonably require to mitigate and resolve such conflict to the
satisfaction of the Owner.
33.8.4 The Contractor shall give Notice to the Owner and obtain the
Owners written consent before the Contractor, its directors, officers
or employees, provide any advice to, or act for, or are retained by any
one or more of the Trade Contractors or the Other Contractors engaged or
employed by the Owner in respect of the Project.
33.9 Survivorship
33.9.1 The provisions set out in GC 3.3, GC 3.5, GC 10.2, GC 18.16, GC
25, GC 26.10, GC 26.11, GC 27, GC 28 and GC 29, and all limitations of
liability and rights accrued prior to completion, termination, or
expiration of the Contract, will not merge on completion, termination,
or expiration of the Contract, but will continue in full force and
effect after any termination or expiration of this Contract as will any
other provision of this Contract which expressly or by implication from
its nature is intended to survive the termination or expiration of this
Contract.
33.10 Application of this Contract and Retroactive Effect
33.10.1 This Contract applies to the performance of the Parties
obligations under this Contract whether performed before, on or after
the Date of Contract.
33.10.2 Any work or services provided by Contractor to Owner prior to
the Date of Contract which relate to the Project shall be deemed to be
part of the Services under this Contract, and shall be governed by and
subject to this Contract. If there are any conflicts between the
provisions of this Contract and any prior agreements between the
Parties with respect to the Services, this Contract shall govern. Any
payment by the Owner to the Contractor prior to the Date of Contract
for any of the Services performed prior to the Date of Contract shall
be deemed to be payments hereunder and reconciled with the payment
terms of the Contract.
33.11 Compliance with Law
33.11.1 The Contractor shall:
(a) comply with Applicable Laws in performing its obligations
under this Contract;
(b) obtain all approvals from all Authorities required for the
use, design, construction, operation and maintenance of the Project
and give the Owner copies of all relevant documents issued by
Authorities; and
(c) supply the Owner with all information in connection with the
Project that may be necessary to enable the Owner to comply with
any Applicable Laws.
33.11.2 The Contractor is solely responsible for the performance of its
obligations under GC 33.11.1. This obligation is not affected by any
approval given by the Owner, the Owners Representative or any
Governmental Authority.
33.12 Severability
33.12.1 The invalidity or unenforceability of any portion or provision
of this Contract shall in no way affect the validity or enforceability
of any other portion or provision hereof. If any provision, or portion
thereof, of this Contract shall be found to be void, invalid, illegal
or unenforceable in any respect by a court or other lawful authority of
competent jurisdiction, then this Contract shall continue in full force
and effect with respect to the remaining provisions without their being
impaired or invalidated in any way, and any such void, invalid, illegal
or non-enforceable provision shall be deemed stricken and, to the
extent permitted by law, be replaced by a provision which, being valid,
comes closest to the intention underlying the void, invalid, illegal or
unenforceable provision. Notwithstanding the foregoing, if the effect
of any finding by a court or other lawful authority of competent
jurisdiction that this Contract is void, invalid, illegal or
unenforceable, is that either Party is denied substantially the benefit
bargained for, then this Contract shall be deemed to have been
frustrated, unless the Parties agree on a mutually satisfactory
amendment to cure the problem within a time which is reasonable in
all of the circumstances, and in this regard, the Parties undertake to
negotiate in good faith for the same purpose.
APPENDIX 2
SCOPE OF SERVICES-CA
SCOPE OF SERVICES
Page
1. DEFINITIONS AND INTERPRETATION.................................1
1.1 Definitions................................................. 1
2. GENERAL........................................................1
2.1 Project Objective............................................ 1
2.2 General Scope of Services.................................... 1
2.3 Excluded Services............................................ 4
3. PROJECT MANA GEMENT SERVICES....................................4
3.1 General...................................................... 4
3.2 Quality Assurance............................................ 6
3.3 Project Controls............................................. 6
4. DETAILED DESIGN AND ENGINEERING SERVICES........................6
4.1 General...................................................... 6
4.2 Process Engineering Design................................... 8
4.3 General Engineering Disciplines.............................. 9
4.4 Geotechnical Engineering..................................... 9
4.5 Environmental Engineering................................... 11
5. ENGINEERING DESIGN DELIVERABLES................................13
5.2 Process Engineering Deliverables.............................16
5.3 Design Engineering Discipline Deliverables.................. 16
5.4 Geotechnical Engineering Deliverables....................... 17
5.5 Environmental Engineering Deliverables...................... 17
6. PROCUREMENT SERVICES...........................................18
6.1 General..................................................... 18
6.2 Purchasing.................................................. 19
6.3 Contract Formation and Management........................... 20
6.4 Inspection, Expediting and Transportation................... 21
7. PROCUREMENT DELIVERABLES.......................................22
8. PROJECT DEFINITION PHASE.......................................22
8.1 General..................................................... 22
8.2 Development of Project Procedures and Standards............. 23
8.3 Development of Project Definition Document.................. 23
8.4 Design Review............................................... 24
8.5 Discipline Engineering...................................... 27
8.6 Development of a Detailed Project Execution Plan............ 30
8.7 Development of a Detailed Project Completion Schedule....... 31
8.8 Development of a Comprehensive Procurement Strategy......... 31
8.9 Development of Definitive Project Budget.................... 34
8.10 Development of an Environmental Health and Safety (EHS)
Program..................................................... 34
8.11 Development of a Project QA/QC Program...................... 39
8.12 Development of Project Controls System...................... 43
8.13 Development of a Project Cash Flow Strategy................. 50
8.14 Development of a Construction Labour Management Plan........ 50
8.15 Development of a Strategy for Electronic Data Management.... 52
8.16 Development of Strategy for Communications.................. 52
9. PROJECT EXECUTION PHASE........................................52
9.1 Overall Project Management.................................. 52
9.2 Detailed Design and Engineering..............................53
9.3 IT and Telecommunications [Intentionally deleted]........... 64
9.4 Geotechnical Engineering and Water Management Study......... 64
9.5 Environmental Engineering................................... 66
9.6 Procurement and Contract Management......................... 68
9.7 [Intentionally deleted]..................................... 79
9.8 O&M Manuals................................................. 79
9.9 Training.................................................... 79
10. LOCAL CONTENT AND INDIGENOUS PEOPLES PLAN.....................79
10.1 Local Content and Socio-Economic Development............... 79
11. PROTECTION OF THE ENVIRONMENT.................................80
11.1 General.................................................... 80
11.2 [Intentionally deleted].................................... 82
12. QUALITY ASSURANCE.............................................82
12.1 General Requirements....................................... 82
12.2 Quality Assurance Plan..................................... 83
13. HUMAN RESOURCES AND INDUSTRIAL RELATIONS PLAN.................85
13.1 General.................................................... 85
13.2 Human Resources and Industrial Relations Plan Requirements. 86
14. AUDIT OF PLAN COMPLIANCE AND PROJECT CONTROL..................88
14.1 General.................................................... 88
SCOPE OF SERVICES
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
1.1.1 Where used in this Appendix 2, the following terms have the
following meanings unless the context otherwise requires:
(a) Project Definition Phase means the Services to be provided by the
Contractor as described in section 8.
(b) Project Execution Phase means the Services to be provided by the
Contractor after delivery by the Owner to the Contractor of the Notice
to Proceed with Project Execution (or a notice to proceed with any part
thereof), all as described in Section 9.
(c) CM Consultant Contract means the contract between a corporate
affiliate of the Owner and the CM Consultant for the provision of
services other than the Services.
2. GENERAL
2.1 Project Objective
2.1.1 The primary objective of the Project is to develop the Brisas
project into a large scale open pit mine, copper concentrator, a gold
processing plant, and all support facilities required to recover
economic quantities of copper in the form of concentrate, and gold
recovered with the copper concentrate and a gold dore.
2.1.2 The Project is located in the Km 88 mining region of the
Bolivar State in Southeast Venezuela, and comprises a 70,000 metric
tonne per day hard rock ore copper concentrator, with feeder systems
for 6000 tonne per day oxide saprolite and 6000 tonne per day sulfide
saprolite, a cyanide leaching circuit, carbon adsorption and stripping,
electro-winning and melting process to produce a gold dore, a tailings
dam, concentrate storage and load-out facilities, the initial set of
pit dewatering wells, support facilities including mobile equipment
shop, administration building, laboratory, maintenance facilities,
warehouse and employee man camp, all as more particularly described in
Appendix 3.
2.2 General Scope of Services
2.2.1 The Scope of Services hereunder for the Contractor is to
provide for the detail engineering, procurement and other services to
be performed outside of Venezuela (and for greater certainty, and
notwithstanding any other provision of this Appendix 2, none of the
Services shall be performed inside of Venezuela) as required to bring
the Project into production. In addition, the Contractor is to perform
outside of Venezuela the procurement (excluding, for greater certainty,
field procurement) of all equipment, services and supplies necessary to
complete construction, commissioning and start-up of the Project.
Although the Contractor shall not perform any Services within
Venezuela, nothing herein shall prevent the Contractor from attending
meetings within Venezuela and attending site visits.
2.2.2 The Contractor shall be responsible for and provide all of the
Services described in this Appendix 2. The description of various parts
of the Services are from the Contractors proposal, and the Contractor
represents and warrants that any existing Contractors policies,
procedures and programs referenced herein are suitable for the Project
and consistent with best industry practices for comparable North
American projects.
2.2.3 Except for those specific activities that are expressly
designated in this Contract to be performed by Trade Contractors, Other
Contractors, or the CM Consultant, everything described herein shall be
provided, performed and managed by the Contractor.
2.2.4 The Project will be executed in two distinct and sequential
phases, namely:
(a) Project Definition Phase; and
(b) Project Execution Phase.
The Contractor will not, without the Owners prior written authorization
in each case, perform any of the Project Execution Phase services unless
and until the Owner at its discretion has determined to proceed with the
Project through the Project Execution Phase with the Contractor, and has
delivered to the Contractor the Notice to Proceed with the Project
Execution Services.
2.2.5 The Services to be provided by the Contractor in each phase,
and the manner in which they will be carried out, is described under
Sections 8 and 9. Any Services described under any other section herein
that are not specified to be provided during the Project Definition
Phase or Project Execution Phase as described in Sections 8 and 9 shall
be provided in both such phases unless the Owner otherwise directs.
2.2.6 After completion of the Project Definition Phase, the Owner
will review the deliverables and Services of the Contractor and decide
whether to proceed with the Contractor through the Project Execution
Phase. The Contractor will not, without the Owners prior written
authorization in each case, perform any of the Project Execution Phase
services until after the Owner has determined whether to proceed with
the Contractor through the Project Execution Phase and has given the
Contractor written notice to proceed with the Project Execution Phase.
2.2.7 The general scope of the Services to be provided by the
Contractor under this Contract comprises all design, engineering,
procurement, project management, and all other
professional services and related activities to be performed outside of
Venezuela and described in or reasonably inferable from the Owners
Requirements or other provisions of the Contract as necessary to obtain
Industrial Completion, meet the Performance Guarantees and achieve Final
Acceptance (subject only to those specific services that are to be
provided by the CM Consultant under the CM Consultant Contract),
including the following:
(a) Plant Description;
(b) Plant Design and Key Criteria;
(c) Process Flow Sheets;
(d) Plant Control Philosophy;
(e) Piping & Instrumentation Diagrams;
(f) Equipment Lists;
(g) Instrument Lists;
(h) Drawings and Specifications;
(i) Single Line Diagrams;
(j) Infrastructure and Utilities design, descriptions and criteria;
(k) Implementation Plan & Schedule;
(l) Budgeting and cost estimating; and
(m) Tender documents for Trade Contracts, and finalization of Trade
Contracts.
2.2.8 The object of the Contractors scope of Services is to design,
engineer, procure, and provide to the Owner the professional Services
and related activities required to ensure that the Project is suitable
and fit for the purpose intended as such purpose is evident from the
Contract, that conform to the requirements of the Contract, and that
fully satisfy and meet all Performance Guarantees and all other
requirements of the Contract. Anything (other than that part of the
Project that is to be provided by Trade Contractors, Other Contractors,
under the Trade Contracts or the CM Consultant Contract, or to be
provided as Owner supply under Appendix 4 Owner Supply) not
specifically described or specified in the Contract but nevertheless
required to produce a fully functional and operating gold mine
processing plant and related infrastructure and other facilities that
achieve the Performance Guarantees, comply with the requirements of all
Governmental Authorities, and required to meet Mining Industry Standards
or conform to Prudent Industry Practice is included in the scope of the
Project and is included in the scope of the Services.
2.2.9 The Contractor acknowledges and agrees that the Contract,
including the Owners Requirements, establishes only the minimum
criteria, standards and requirements which must be met by the
Contractor in performing the Services and completing the Project and
that the Contractor shall comply with and meet or exceed those
criteria, standards and requirements as necessary to ensure that the
Contractor achieves the Performance Guarantees and that the Project
meets the intent of the Contract as a whole.
2.2.10 With regard to the Open Pit, however, the Contractor will only
be responsible for:
(a) the pit dewatering system;
(b) Services in respect of the timber clearing operations for
pre-stripping the waste dump, including for salvaging and stockpiling
all merchantable timber and for preparing contracts for the clearing
and pre-stripping operations in the waste dump area; and
(c) integration and coordination of the performance of its Services
with the Owner and with the other consultants and contractors of the
Owner responsible for the design, engineering and development of the
Open Pit.
2.3 Excluded Services
2.3.1 The following are excluded from the scope of the Services to be
provided by the Contractor:
(a) design of the Open Pit;
(b) locating pit dewatering wells;
(c) procuring mining equipment for Open Pit operations (i.e. drills,
shovels, trucks, bulldozers); and
(d) any Services in respect of pre-stripping operations.
3. PROJECT MANAGEMENT SERVICES
3.1 General
3.1.1 Contractor will provide overall project management services as
required during the design, engineering, procurement, construction,
commissioning and performance testing of the Project to complete the
Project in accordance with the Contract, including to meet the Project
Budget, Project Schedule and Performance Guarantees, and including the
following:
(a) Development and management of an integrated project organization
composed of suitably qualified and experienced personnel to deliver the
proposed services;
(b) Preparation of:
(i) A Project Definition Document;
(ii) A Project Procedures/Work Instructions Manual;
(iii) A Project Execution Plan;
(iv) A Project Standards Manual;
(v) A Project Execution Schedule; and
(vi) Cash Flow Schedules as required.
(c) Development and implementation of an overall Project
Control system (see also Project Controls below);
(d) Provision of detailed monthly progress reports and related
information, including predicted cost and schedule variance
reports to the Owner;
(e) Maintaining cost and accounting records as required by the
Owner;
(f) Organizing and chairing a formal monthly project review
meeting with the Owner;
(g) Scheduling and conducting progress meetings at which
Contractor, the Owner, third party consultants and Trade
Contractors will discuss such matters as procedures, progress,
safety performance, schedule interfaces and technical and
environmental issues;
(h) Coordination and liaison with CM Consultant to ensure that
overall project objectives are accomplished;
(i) Coordination and liaison with other design consultants,
and the Owner ;
(j) Implementing, monitoring and enforcing a Project safety
plan that provides a safe workplace and meets the safety
requirements set out in the Contract;
(k) Ensuring that quality standards across the Project meet
the Owner's objectives; and
(l) Organizing and reporting on periodic HAZOP and Fatal
Flaw reviews during the life of the Project.
(m) Preparing a contract close-out report.
3.2 Quality Assurance
3.2.1 Contractor will implement a Project specific quality plan for
the Project in accordance with its established, ISO compliant Quality
Management System (QMS) and its associated Quality Policy Manual
QM-3801.
3.2.2 The Contractor confirms its QMS is certified to ISO 9001:2000
standards and covers the full range of services that the Contractor
will deliver to the Owner for the Project, including project
management, engineering, procurement, construction and commissioning
services.
3.3 Project Controls
3.3.1 Contractor will implement a comprehensive and integrated
project controls system for the Project, which will incorporate all
essential control elements to provide a single interactive system for
monitoring, variance reporting and cost/schedule forecasting.
3.3.2 The project controls system will utilize earned value methods
for establishing progress, and will be based on a fully developed
project work breakdown structure (WBS) agreed with the Owner. The
system will be developed using Contractors PM+ integrated project
management information system.
4. DETAILED DESIGN AND ENGINEERING SERVICES
4.1 General
4.1.1 The Contractor will prepare, or cause to be prepared, all
detailed engineering and design for all aspects of the Project and in
all disciplines, including:
(a) Developing and implementing an adequate and suitable quality plan
for design and engineering, including quality assurance program and
quality control program, to ensure all design is executed at a high
quality level resulting in reliability, ease of operability, low
maintenance and low capital cost.
(b) Completing civil specifications and drawings, including roads and
crossings, structural excavation, final grading and other necessary
civil drawings.
(c) Preparing concrete specifications and drawings, including rebar,
inserts, concrete details and other engineering information required
for concrete construction.
(d) Preparing architectural specifications and drawings, including
masonry, roofing, siding door and window schedules, finishes and other
drawings required to detail the architectural requirements of the
Project.
(e) Finalising structural steel designs and preparing specifications
and drawings to allow fabrication and construction of the required
steelwork.
(f) Producing mechanical equipment specifications and drawings in
sufficient detail for the Contractor to prepare full and proper
purchase requisitions and to allow fabrication and construction of
equipment, tanks and plate work by Trade Contractors.
(g) Completing piping specifications and drawings to permit the
fabrication and installation of piping systems by Trade Contractors.
(h) Completing additional sketches/layouts as necessary, showing
relationship between structures, equipment, foundations and piping
and electrical routes to avoid interferences.
(i) Preparing electrical detail drawings, specifications,
installation standards and instructions.
(j) Completing instrument and control system drawings.
(k) Preparing material take-offs and calculations from detailed
engineering drawings as necessary for budget and progress control
purposes.
(l) Reviewing, approving, cataloguing and distributing vendor
supplied drawings and data.
(m) Preparing and assembling the drawings and technical data
needed for construction purposes and subcontract packages by Trade
Contractors.
(n) Monitoring and consolidation and preparation of
'as-built' information.
(o) Liaison with such other advisors, experts, consultants
and specialists as may, from time to time, be employed or
engaged by the Owner.
(p) Developing and documenting requirements for necessary
fuels, lubricants, reagents and spares for Commissioning and
start-up activities. These requirements will be reviewed by
the Owner's fuel and lubricant supplier and other suppliers,
who may, as appropriate, provide recommended equivalents for
these fuels, lubricants, reagents and spares. The Contractor
will, if required, review the recommended equivalents with the
Vendors and other Trade Contractors as applicable and confirm
that the recommended equivalents are acceptable substitutions
or, if not acceptable, will recommend equivalents that are
stocked and available from the Owner's fuel and lubricant
supplier and other suppliers to minimize the use of different
fuels, lubricants, reagents and spares at Site.
4.2 Process Engineering Design
4.2.1 Contractor will provide all process engineering and design.
4.2.2 Process engineering will be responsible for mass balance
calculation confirmation, process equipment selection, providing
process requirements to design, and providing operating dimension to
plant layout and input for operability and maintenance access. It will
review the available metallurgical information and testwork where
required, propose modifications, and where beneficial, incorporate the
relevant data in the design. The cost of obtaining any additional
metallurgical information and performing any additional metallurgical
tests that may be reasonably required by the Contractor and are
authorized by the Owner will be charged directly to the Owner. Process
engineering will also:
(a) Establish final Process Design Criteria during the Project
Definition Phase;
(b) Provide process related equipment performance specifications and
data sheets;
(c) Provide data for the preparation of performance specifications
for major fixed price and/or turn key contract packages;
(d) Prepare the final Process Flowsheet Diagrams (PFDs) including
process criteria, mass/utility balances and the like;
(e) Participate in HAZOP and Fatal Flaws reviews;
(f) Review and provide input to the Plant layout, including to avoid
interference with and to allow flexibility for future expansion of the
Plant (but this does not require inclusion or sizing of equipment for
the Plant to accommodate future expansion);
(g) Provide input to the Plant control philosophy;
(h) Develop process sampling and laboratory control criteria;
(i) Provide technical bid evaluation of competitive bids for process
equipment and make appropriate process recommendations for lump sum
turn key contract packages;
(j) Review process equipment vendor data;
(k) Provide input to, and review, training manuals;
(l) Provide process support to Construction activities;
(m) Provide input to and assist with Pre-Commissioning; and
(n) Provide assistance to Owners Commissioning Team.
4.3 General Engineering Disciplines
4.3.1 Contractor will provide detailed design and engineering
services for the Project through a multi-discipline effort to provide
all of the necessary design, engineering and technical services and
data to enable the solicitation of competitive quotations for
equipment, materials and construction contracts for the process plant
and infrastructure. Engineering services will include:
(a) A review of the feasibility study to identify possible design
improvements;
(b) Input to kick-off and facilitated alignment sessions;
(c) Input to the Project Definition Phase;
(d) Preparation of all engineering designs and design deliverable
documents;
(e) Development of a PDS 3D Model;
(f) Participation in HAZOP and Fatal Flaw reviews;
(g) Technical support for permitting applications;
(h) Preparation of engineering requisitions for inquiry and purchase
of equipment, materials and services;
(i) Review of vendor data;
(j) Inter-departmental and inter-discipline coordination;
(k) Participation in regular progress meetings;
(l) Compliance with quality standards;
(m) Assistance to field construction group during construction phase;
and
(n) Preparation of As-Built drawings.
4.4 Geotechnical Engineering
4.4.1 Contractor through its Geo-Environmental Engineering Group will
provide geotechnical design services for the design of all earthworks,
including the major earthworks structures.
4.4.2 Develop the overall objectives of the geotechnical engineering,
which will focus on the following basic areas:
(a) Review existing tailings storage facility (TSF) Feasibility Study
design and provide improvement and changes for optimization;
(b) Carry-out detailed design of the starter dam and conceptual
design of the subsequent dam raisings for the TSF;
(c) Review hydrology and water management designs and prepare the TSF
and an overall site-wide water balance; and
(d) Review existing information, data and findings from previous
geotechnical investigations and provide design recommendations for all
project areas, including, but not necessarily limited to TSF, plant
site, ore stockpile and quarry development designs, aggregate and
borrow material sources, with the exception of the open pit.
4.4.3 Contractor will:
(a) Review and confirm/verify site topographic survey information for
design purposes.
(b) Identify any data gaps and determine the requirements for
carrying-out further geotechnical field investigations to supplement
the existing database. If required, advise Owner and obtain
authorization to perform such additional geotechnical field
investigations as required for the proper engineering, design and
construction of the Project. The cost of obtaining any additional
geotechnical field investigations as may be reasonably required by the
Contractor and authorized by the Owner will be charged directly to the
Owner.
(c) Provide input to the kick-off and alignment sessions, as well as
to the Project Definition Phase.
(d) Undertake geotechnical and hydrological analyses including
stability, settlement, seepage and water balance calculations;
(e) Provide geotechnical engineering support to other team members
engaged with permitting and regulatory support for the Project;
(f) Prepare detailed calculations for the Plant site foundations
designs;
(g) Prepare design drawings and a geotechnical design report,
suitable for third party review and for regulatory approval of dam
designs;
(h) Prepare quantity estimates;
(i) Prepare geotechnical specifications;
(j) Prepare drawings suitable for construction purposes;
(k) Prepare engineering requisitions, provide technical input into
bid packages to obtain tender quotations for the construction of the
major dams, including construction specifications, and assist in bid
evaluations;
(l) Comply with quality standards and participate in HAZOP meetings,
in particular with respect to the TSF design;
(m) Prepare As-Built drawings and a geotechnical report on TSF dam
construction; and
(n) Prepare operating manual for the TSF and water management system.
4.5 Environmental Engineering
4.5.1 Contractors environmental engineering group will be responsible
for:
(a) Compliance with the Owners commitments as identified in the
Projects Environmental and Social Impact Assessment (developed by the
Owner), as well as other environmental documents;
(b) Reviewing design criteria (process, waste dumps, general
infrastructure, tailings storage facility) to ensure environmental
requirements are incorporated;
(c) Ensuring that the Site water management plan provides for the
collection and management of potentially contaminated run-off
separately from uncontaminated waters;
(d) Reviewing and participating in the development of site water
balance(s) to ensure environmental inputs are fully accounted for, and
that all discharge (quality and quantity) to the environment is
properly controlled;
(e) Ensuring that environmental requirements, including mitigation
measures, are incorporated into the detailed design of facilities,
systems and processes to minimize environmental impacts;
(f) Through Contractors interactive design process, identifying and
addressing additional impacts that may inadvertently arise in one area
during operations and/or closure due to a design refinement to another
area;
(g) Ensuring that the design addresses the requirements of all
Applicable Laws, all Permits, Licences and Approvals, and all
Governmental Authorities;
(h) Considering community input in the design (as applicable);
(i) Ensuring all drawings issued for construction clearly identify
the limits of clearing;
(j) Ensuring design drawings clearly identify environmental
components and requirements; and
(k) Identifying environmental requirements on the basis of the
operational characteristics of the Project.
4.5.2 Contractors environmental review will include the following:
(a) Identification of revisions that will reduce adverse impacts and
result in environmental improvements;
(b) Review for compliance with Venezuelan standards and regulatory
requirements; and
(c) Review for potential long-term environmental liabilities (e.g.
closure considerations).
4.5.3 Contractor through its environmental team will also review and
provide input on the following:
(a) TSF design and operation;
(b) TSF Seepage collection, treatment and discharge;
(c) Waste rock dump design and operation, including runoff management;
(d) Overall ARD management/control, if applicable;
(e) Cyanide handling, storage and destruction;
(f) Site layout, with refining facility siting and the routing of
pipelines, particularly through more sensitive areas (e.g., watercourse
crossings);
(g) Plant layout and design, with the spill collection and
containment system;
(h) Water management design and operation (site water balance, mine
de-watering; surface water facilities, runoff ponds, the open pit
diversion channel dykes, river diversion channel);
(i) Effluent treatment/discharge;
(j) Hazardous materials management (e.g., fuel, oils, solvents);
(k) Solid waste management and an on-site landfill site, if selected,
and incineration; and
(l) Design of facilities such as the aggregate quarry, the access
roads and the power transmission line.
4.5.4 In recommending changes or refinements to the design, the
environmental group will identify where a change or refinement to one
component of the design will result in changes to another component of
design.
4.5.5 The Contractors Environmental Manager will also assume
responsibility for reviewing any additional data acquired by the Owner
during the design process. For example, if the Owner is obtaining data
from the field, or if laboratories are conducting tests on acid rock
drainage samples, the Environmental Manager will review the data
provided by the laboratory and provide any recommendations or
suggestions for design arising from the results. In this capacity, the
Environmental Manager will oversee any monitoring which is conducted
during the design phase and, on the basis of the monitoring results,
identify environmental implications affecting the design or refinements
to future monitoring activities.
4.5.6 Contractor will ensure continuity between the feasibility stage
design and detailed design from an environmental perspective to ensure
that all of the Owners commitments through the regulatory and project
approval project, including those made to obtain Permits, Licences and
Approvals, are reflected in Project design.
5. ENGINEERING DESIGN DELIVERABLES
5.1.1 The engineering design deliverables are described in this
Section 5.
5.1.2 A summary of the approximate quantity of each type of
deliverable to be provided by the Contractor for each engineering
discipline is shown in Table 5.1. Deliverables specific to Tailings
Facilities and Site Water Management are shown in Table 5.2. Items
listed in Table 5.2 are included in Table 5.1.
5.1.3 The deliverables in Table 5.1 and Table 5.2 are not to be
construed as limiting the scope of the Services, but provide the
Contractors estimate of the deliverables as of the Date of Contract.
TABLE 5.1
TABLE 5.1
SUMMARY OF
DELIVERABLES
Instru-
Geotech- Equip- Build- menta-
nical & ment/ ing Arch- tion & Com-
Section/ Hydrol- Mechan- Ser- Struc- itec- Elec- Con- muni-
Discipline Process ogy ical Piping Layout vices tural. Civil tural trical trols cations TOTALS
- -------------------------------------------------------------------------------------------------------------------------
Drawings
Size A0
(Layouts, GAs,
Details etc.) 0 24 171 156 141 72 319 101 72 280 64 32 1432
Size A0
(Flowsheets,
P&IDs) 22 0 0 27 0 2 0 3 0 0 0 0 54
Size A3
(Wiring & Conn.
Diagrams) 0 0 0 10 0 0 0 0 0 540 64 15 629
Size A3
( Loop
Diagrams) 0 0 0 0 0 0 0 0 0 0 691 0 691
Size A3
(Piping
ISOs) 0 0 0 302 0 0 0 0 0 0 0 0 302
Size A3
(Lists &
Schedules) 0 0 0 30 0 0 0 0 0 0 82 30 142
Size A4
(Data Sheets,
Pipe Supports.) 200 0 92 240 0 0 0 0 0 15 30 0 577
- -------------------------------------------------------------------------------------------------------------------------
Total Drawings 222 24 263 765 141 74 319 104 72 835 931 77 3827
- -------------------------------------------------------------------------------------------------------------------------
Documents
Studies,
Reports,
Narratives 2 13 0 0 0 4 2 0 0 5 692 1 719
Design
Criteria 1 2 1 1 1 1 1 1 1 1 1 1 13
Design
Briefs. 0 1 4 2 1 4 0 5 0 1 80 1 99
Lists &
Schedules 0 1 1 2 0 2 0 1 0 2 1 0 10
Equipment
Specifications 45 0 23 4 0 4 0 13 0 17 29 10 145
Installation
Specifications 0 8 2 2 0 8 2 7 23 5 2 1 60
Bills of
Material 0 5 5 2 0 5 2 4 1 8 1 0 33
- -------------------------------------------------------------------------------------------------------------------------
Total Documents 48 30 36 13 2 28 7 31 25 39 806 14 1079
- -------------------------------------------------------------------------------------------------------------------------
TABLE 5.2
SUMMARY OF ENGINEERING DELIVERABLES FOR
TAILINGS FACILITIES AND SITE WATER MANAGEMENT
Section / Discipline Tailings Facilities Site Water Management
- ----------------------------------------------------------------------------
Drawings
Size A0 (Layouts, GAs,
Details etc) 27 10
Size A0 (Flowsheets,
P&IDs) 1 1
Size A3 (Wiring &
Conn. Diagrams) 0 0
Size A3 ( Loop
Diagrams) 0 0
Size A3 (Piping
ISOs) 0 0
Size A3 (Lists &
Schedules) 0 0
Size A4 (Data Sheets,
Pipe Supports.) 0 0
- ------------------------------------------------------------------
Total Drawings 28 11
- ------------------------------------------------------------------
Documents
Studies, Reports,
Narratives 13 2
Design Criteria 1 1
Design Briefs. 1 0
Lists & Schedules 1 0
Equipment
Specifications 1 1
Installation
Specifications 8 0
Bills of Material 6 1
- ------------------------------------------------------------------
Total Documents 31 5
- ------------------------------------------------------------------
Note: Deliverables in Table 5.2 are included in Table 5.1.
5.2 Process Engineering Deliverables
5.2.1 Process deliverables to be provided by the Contractor include the
following:
(a) Final process design criteria;
(b) Mass and water balances;
(c) Calculations for sizing and design of critical process equipment;
(d) Process flowsheets;
(e) Equipment technical specifications for process equipment;
(f) Data sheets (excluding data sheets for tanks);
(g) Technical bid evaluations;
(h) Spare parts lists; and
(i) Input to the operations manuals.
5.3 Design Engineering Discipline Deliverables
5.3.1 Deliverables to be provided by the Contractor for the engineering
disciplines include:
(a) 3D model of the process plant;
(b) Layout and general arrangement drawings;
(c) Detail drawings;
(d) Single-line diagrams;
(e) Wiring and connection diagrams;
(f) Instrument loop diagrams;
(g) Equipment lists;
(h) Cable schedules;
(i) Piping & instrumentation diagrams;
(j) Piping isometrics;
(k) Bills of material;
(l) Design criteria;
(m) Design briefs (calculations);
(n) Reports and narratives;
(o) Equipment and construction specifications;
(p) Equipment and construction contract requisitions for bids and
purchase; and
(q) As-built drawings.
5.4 Geotechnical Engineering Deliverables
5.4.1 Deliverables to be provided by the Contractor related to
geotechnical engineering include:
(a) Geotechnical design criteria;
(b) Technical memoranda geotechnical and water balance;
(c) Engineering requisitions, scope of work and construction
specifications for tender packages;
(d) Calculations for embankment design;
(e) Quantity estimates for earthworks;
(f) Detailed drawings;
(g) As-built report; and
(h) TSF operation manual.
5.5 Environmental Engineering Deliverables
5.5.1 Environmental Engineering deliverables to be provided by the
Contractor include the incorporation of environmental requirements and
enhancements into the design, including environmental input into the
finalization of the water balance, and design of site water management
facilities, the river diversion channel, the TSF (including seepage
control systems), waste rock dumps and other infrastructure, including
roads, transmission lines, plant site, solid waste management
facilities, etc.
6. PROCUREMENT SERVICES
6.1 General
6.1.1 Contractor will provide comprehensive procurement, materials
management and contracting services that embrace a complete program for
the purchasing, expediting, fabrication, inspection, quality assurance
and delivery of equipment and materials, and the contracting for
services for the Project.
6.1.2 All procurement services will be provided by Contractor as
disclosed agent for the Compania Aurifera Brisas del Cuyuni, C.A., and
all goods and equipment to be incorporated in the Project shall be
imported in the name of Compania Aurifera Brisas del Cuyuni, C.A.
6.1.3 Procurement services to be provided include:
(a) The preparation of project procurement procedures covering all
aspects related to procurement, contracting and materials management,
including administration services;
(b) The preparation of equipment procurement and contracting plans
identifying contract and procurement packages;
(c) The preparation, implementation and management of a procurement
strategy to optimize the use of qualified Venezuelan business
enterprises without compromising the objectives of the Project;
(d) The issue of pre-qualification documentation to the supplier
community as necessary;
(e) The preparation and submission of bidders lists for approval by
the Owner;
(f) The preparation and submission, for the Owners approval, of model
Request for Bids documents;
(g) Issue Request for Bids for all bid packages, to a minimum of
three bidders in each instance unless the Owner otherwise agrees in
writing;
(h) The completion of bid evaluations and the preparation of
commitment recommendations for the Owners approval, based on the lowest
overall cost and technically acceptable bidders;
(i) The preparation, issue and execution of purchase orders and
contracts;
(j) The preparation of expediting and inspection plans;
(k) The performance of the expediting and inspection functions;
(l) The preparation and implementation of material control and
traffic plans for delivering Project materials, equipment and supplies
directly to site and/or marshalling yards for transportation to site;
and
(m) The administration of contracts and purchase orders.
6.1.4 The procurement activities will be broken into three
subcategories:
(a) Purchasing (related to the buying of equipment/materials);
(b) Contract Formation and Management; and
(c) Shop Inspection, Expediting and Logistics.
6.2 Purchasing
6.2.1 Purchasing activities to be provided by the Contractor include:
(a) Finalizing and using the commercial model Request for Quotation
(RFQ) documentation which incorporates Owner-approved standard terms
and conditions, special conditions, instructions to tenderers,
schedules and forms;
(b) Monitoring the procurement schedule and updating as required (in
conjunction with overall project schedules);
(c) Preparing package procurement dictionaries, incorporating
qualified suppliers in line with the Project requirements and
submitting them for approval to the Owner;
(d) Preparing and issuing RFQs to approved suppliers;
(e) In collaboration with the Owner, conducting information meetings
for and with suppliers;
(f) Receiving, opening and recording bids;
(g) Preparing commercial evaluation of bids and coordinating with
Contractors Engineering Group for the technical evaluation of bids,
negotiating pricing and commercial/ technical terms and conditions as
appropriate and making final recommendations for award;
(h) Negotiating any adjustments which may be required prior to and
after placement of a purchase order;
(i) Securing warranties and guarantees on behalf of the Owner and
administering same up to completion of the Services;
(j) Preparing and issuing purchase orders with Vendors;
(k) Organizing and maintaining a list of deliverables for each Vendor;
(l) Issuing monthly status reports;
(m) Negotiating any back-charges and claims;
(n) Obtaining final certified drawings, operating and maintenance
manuals and spare parts lists and effectively closing out purchase
orders; and
(o) Establishing and maintaining a spare parts program with placement
and maintenance of orders and attendant expediting and inspection
activities to serve both construction and operating needs, the latter
following the Owners specific requirements. Without limiting the
foregoing, in conjunction with other disciplines and equipment Vendors,
develop and price recommended operational spares schedules for the Owner
to purchase those operational spares required after Industrial
Completion. The Contractor in a timely manner shall assist the Owner in
the purchasing and transportation to Site of the operational spares and
the supply of agreed operational spares shall be handled as a Change
Order.
6.3 Contract Formation and Management
6.3.1 Contract Management activities to be provided by the Contractor
include:
(a) Finalizing and putting to use the Owner-approved General
Conditions of Contract documentation, standard terms and conditions,
special conditions, instructions to tenderers and schedules;
(b) Preparing and issuing tender documents to approved prospective
contractors;
(c) Formulating packages to maximize local business opportunities in
line with the Owners objectives;
(d) Preparing package dictionaries in conjunction with Contractors
Engineering Group for identification of Venezuelan and other bidders;
(e) Conducting information meetings for all prospective contractors;
(f) Receiving, opening and recording bids;
(g) Preparing commercial evaluation of bids and coordinating with
Contractors Engineering Group for the technical evaluation of bids,
negotiating pricing and commercial/ technical terms and conditions as
appropriate and making final recommendations to the Owner for awards;
(h) Preparing, issuing and executing conformed contracts;
(i) Negotiating any claims and/or variations which may be required
prior to and after placement of a contract;
(j) Securing warranties and guarantees as appropriate and
administering same up to completion of Services;
(k) Organizing and maintaining a list of deliverables for each
contractor; and
(l) Monitoring status reports.
6.4 Inspection, Expediting and Transportation
6.4.1 Inspection, expediting and transportation activities to be
provided by the Contractor include:
(a) Preparation of a detailed material control plan;
(b) Organizing and performing inspection at suppliers fabrication and
shops to ensure conformity with specifications and issuing status
reports;
(c) Witnessing and inspecting the final packaging of equipment and
materials to ensure compliance with project standards for protection,
seaworthiness, overland transport, storage and proper marking for
trans-shipment;
(d) Expediting delivery of equipment and materials, reviewing
fabrication progress reports and ensuring compliance with contractual
delivery dates;
(e) Expediting and monitoring vendor delivery data, as required, to
maintain overall project schedule;
(f) Arranging for transportation of equipment and materials to
marshalling yards for furtherance to site in the most cost effective
and timely manner;
(g) Optimizing modes of transportation, including marshalling and
secure storage of goods; and
(h) Preparing all required documentation including Bills of Lading,
Commercial Invoices, etc. and, without limiting the foregoing,
preparing shipping documentation in accordance with mutually agreed
logistics procedures, including preparing documentation in the Spanish
language as may be required to facilitate and expedite obtaining
customs clearance.
7. PROCUREMENT DELIVERABLES
7.1.1 Procurement deliverables to be provided by the Contractor
include:
(a) Critical and Long Lead Delivery Equipment packages;
(b) Equipment Packages;
(i) Process Mechanical;
(ii) Civil;
(iii) Electrical;
(iv) Instrumentation and Controls; and
(v) Bulk Material Packages.
(c) Construction Contracts; and
(d) Service Contracts.
7.1.2 Based on Contractors prior experience in Venezuela, Contractor
estimates that about 170 PO Packages and 30 Contract Packages will be
required.
8. PROJECT DEFINITION PHASE
8.1 General
8.1.1 During the Project Definition Phase, the Contractor, CM
Consultant, the Owner and other consultants of the Owner, will
participate in professionally-facilitated investigation and planning
sessions for the Project. These planning sessions will take place
following a period of preliminary data review and a Site visit for key
project personnel to become familiar with the Project. These sessions
would develop an action plan document that would record the work and
services required during the Project Definition Phase and a schedule to
complete that work and services. Recognizing that any consultants that
are involved would be present during the planning sessions, the
objective is to obtain consensus between all participants on the
resulting work plans and schedules.
8.1.2 The key objective of the Project Definition Phase is to
generate a set of information and criteria that will form the basis of
all subsequent engineering, procurement and construction activities to
be undertaken.
8.1.3 The work and services to be provided by the Contractor during
the Project Definition Phase are described in this Section 8.
8.2 Development of Project Procedures and Standards
8.2.1 During the Project Definition Phase, the Contractor will
prepare:
(a) a Project Procedures Manual custom designed for this Project,
which will rely heavily on Contractors corporate standard procedures as
modified and adapted to suit the Project; and
(b) a Project Standards Manual, which will identify all engineering
and construction design codes, performance standards and criteria
applicable to all equipment, systems and installations.
8.3 Development of Project Definition Document
8.3.1 A comprehensive Project Definition Document will be prepared by
the Contractor and submitted to the Owner for review and approval.
8.3.2 The Project Definition Document will fully and unambiguously
define the scope of the Project, and will include:
(a) Definition of Project battery limits;
(b) Project engineering design criteria;
(c) Process and design criteria;
(d) Process flow diagrams;
(e) Preliminary P&IDs;
(f) Main electrical single line diagram(s);
(g) Permitting requirements, including all Permits, Licences and
Approvals required for the Project, with input obtained from the Owner
and the Owners other consultants;
(h) Major process equipment sizing and selection information;
(i) General design information for service buildings, plant and
infrastructure locations;
(j) Site access road;
(k) Site layout;
(l) Power supply;
(m) Tailings storage facilities;
(n) Site water management facilities;
(o) Temporary construction facilities including camp and lay down
areas;
(p) A listing of contemplated purchase orders with proposed bidders
lists;
(q) A listing of contemplated construction and service contracts with
proposed bidders lists, and clearly identifying long lead items;
(r) A project budget;
(s) A projected cash-flow for execution of the project;
(t) A project execution schedule;
(u) A description of the project controls system that will be
implemented for the project;
(v) Control philosophy definition;
(w) A description of the proposed communications system; and
(x) A description of the proposed data management system.
8.4 Design Review
8.4.1 During the Project Definition Phase, the Contractor will
provide a comprehensive design review of the Project, including as
described in this Section 8.4.
8.4.2 Metallurgical Data Review:
(a) Process Engineering will review relevant sections of the
Feasibility Study to confirm that sufficient process testing has been
done to provide the basis for plant design. Particular attention will
be paid to the first five years when all ore types are being processed.
Design review will be based on available process information. Contractor
will notify the Owner in writing if the available process information is
inadequate and the additional information, if any, that is required. The
cost of performing any additional tests that may be required and
authorized by the Owner will be charged directly to the Owner.
(b) The impact of performing additional tests on process design and
schedule will be assessed and recommendations made to the Owner. In
lieu of conducting some tests, with the Owners approval conservative
design factors will be used when sizing equipment to avoid potential
schedule delays and the cost of conducting
tests, where the cost of schedule delay and conducting tests will be
higher than the cost of over-designing the process using conservative
design criteria.
8.4.3 Environmental Review:
(a) Relevant environmental studies and relevant statutory
regulations, codes, standards and other Applicable Laws and
requirements of Regulatory Authorities will be reviewed. Venezuelan
regulations will be assumed to take precedence over the regulations or
guidelines set by other countries or international codes of practice.
8.4.4 Process Design Criteria:
(a) The Feasibility Study process design criteria will be reviewed
and will be modified as required to provide the basis for process
flowsheets. The process mass and water balances will be integrated with
the design criteria to automatically generate revised mass balances when
design criteria are modified. Mass balances will incorporate
mineralogical balances where appropriate to increase the accuracy of
stream flow and composition estimates. Process design criteria and mass
balances will be based on the International System of Units (SI).
8.4.5 Process Flowsheets:
(a) The Feasibility Study process flow diagrams (flowsheets) will be
the starting point for the design flowsheets. Flowsheet format will
generally be as used for the Feasibility Study, but process stream mass
balance data will be incorporated on the flowsheet to allow the
flowsheets to be used without reference to a separate mass balance
table. In addition, process equipment installed power information will
be shown on the flowsheets.
(b) Flowsheet mass balance data and equipment descriptions on the
flowsheets will be data fields which will obtain data from computer
files linked to spreadsheets or mass balance simulation programs, in
order to simplify the checking function and allow rapid updating of
drawings.
(c) Contractor will retain Orway Mineral Consultants, a specialist in
grinding mill selection, to review the sizing of the grinding mills. The
Contractor will assume that the Owner will enter into an agreement with
others for the supply of a Basic Engineering Package for the Inco
SO2-Air cyanide destruction process. Contractor will design and
construct the cyanide destruction circuit according to the Basic
Engineering package provided by Inco.
8.4.6 Equipment List:
(a) Contractors Engineering Manager will have the official project
equipment list compiled on the PM+ system based on individual equipment
items identified by
the discipline engineers. Process Engineering will identify and provide
descriptions for all process mechanical equipment shown on process
flowsheets.
(b) Contractor will review the process design and equipment selected
for the Feasibility Study to ensure that the process plant uses only
proven technology and standard equipment and will not use equipment
that is obsolete, one of a kind equipment or equipment that has never
been used successfully in the industry. In addition, Contractor Process
Engineering will ensure that the plant is designed for simplicity of
operation and maintenance.
8.4.7 Permit Application Support:
(a) If requested by the Owner, a Plant Description document, based on
the Feasibility Study, will be prepared to support the Owners permit
applications. The Plant Description will be a stand-alone document,
which includes an overview of the process referenced to a single page
process flow diagram, followed by detailed descriptions of each process
operation referenced to the flowsheets for each area. The Plant
Description will include a discussion of reagent facilities and
utilities. A simplified equipment list, corresponding to equipment
shown on the flowsheet, will be included as an Appendix.
8.4.8 Geotechnical Data Review:
(a) Contractors Geotechnical Engineering Group will review
geotechnical data to identify any data gaps that may exist. The need
for a further field geotechnical investigation to advance the project
to final design stage for various site facilities, including the
Tailings Storage Facility (TSF), will be determined.
(b) It is presently contemplated that the processing plant will be
founded on bedrock. Contractor will confirm sound bedrock horizon and
suitability and locations of suitable bedrock for foundations.
8.4.9 Topography Review:
(a) Contractor will review, confirm and validate the existing site
topographic contours for design purposes, by performing actual ground
surveys at key site facility locations via a local survey company, such
as SURCO, under a contract with the Owner. The survey work will be
carried-out under the full time supervision of Contractor personnel.
Base maps will be prepared for various site facilities with more
accurate contour intervals.
(b) Prior to commencing the Project Execution Phase, Contractor will
obtain accurate site topographic survey, and verify that same are
accurate to within tolerances generally acceptable for such facilities
in North America.
8.4.10 Site Water Management Review:
(a) Review Feasibility Study report with respect to hydrology, site
water management plan, TSF design and capital cost estimate. The review
will be conducted by senior staff of Contractor with extensive
experience in similar projects in Venezuela, with input as required
from Contractors Venezuelan Dam Expert Consultant.
8.4.11 Tailings Storage Facility Review:
(a) Provide and rationalize concepts to optimize and improve the TSF
Feasibility Study design as part of a value engineering exercise,
including by examining the feasibility of potential improvements and
cost savings by eliminating the proposed geomembrane liner in the dam
if it is not required for good engineering practice or to meet the
requirements of all Applicable Laws, all Permits, Licences and
Approvals, or all Governmental Authorities.
(b) Review and evaluate the need for the proposed wick drain system
under the dam.
(c) Review and evaluate changing the sloped dam crest design
(resulting in a 16 m high sloped tailings deposit toward the NE corner)
to a levelled dam design, to eliminate the potential of dam overtopping
by tailings and/or water due to tailings flow under a liquefaction
condition caused by a severe earthquake.
(d) Review and evaluate other potential improvements during the
Project Definition Phase, including a modified centreline construction
instead of downstream method, a semi-circular shaped basin to reduce
fill quantities, carrying out conventional excavation for cut-off
trench (at least for the dry portion of the dam alignment) instead of
bentonite slurry trench, and converting the decent structure (not
desired under dam) into pump barge, etc.
8.5 Discipline Engineering
8.5.1 General
(a) The requirements of this Section 8.5 are in addition to those
discipline engineering work and services described elsewhere in Section
8.
(b) During the Project Definition Phase, the Contractor will perform
a value engineering exercise to identify all reasonable cost-saving
measures that may be implemented by the Owner to improve the overall
value to the Owner of the Project over its anticipated life.
8.5.2 Civil Engineering
(a) During the Project Definition Phase, the Contractor will complete
the following civil engineering work and services:
(i) Develop Civil Design Criteria;
(ii) Start design of access roads to the mine and plant sites;
(iii) Start mine and process plant civil overall layouts;
(iv) Identify process and potable water sources; and
(v) Identify climatic conditions.
8.5.3 Structural Engineering
(a) During the Project Definition Phase, the Contractor will complete
the following structural engineering work and services:
(i) Develop Structural and Concrete Design Criteria; and
(ii) Review Feasibility Report structural drawings.
8.5.4 Mechanical Engineering and Piping Design
(a) During the Project Definition Phase, the Contractor will complete
the following mechanical engineering and piping design work and services:
(i) Develop Mechanical Design Criteria;
(ii) Develop Piping Design Criteria;
(iii) Develop Building Services Design Criteria;
(iv) Review mechanical equipment list;
(v) Identify special materials for piping; and
(vi) Prepare preliminary P&IDs (Piping & Instrumentation Drawings) in
cooperation with Instrumentation and Controls.
8.5.5 Architectural Design
(a) During the Project Definition Phase, the Contractor will complete
the following architectural work and services:
(i) Develop Architectural Design Criteria;
(ii) Review Service Building and identify pre-engineered buildings;
and
(iii) Prepare typical Technical Specifications for pre-engineered
buildings.
8.5.6 Electrical Engineering
(a) During the Project Definition Phase, the Contractor will complete
the following electrical engineering work and services:
(i) Develop Electrical Design Criteria;
(ii) Review Electrical Equipment List; and
(iii) Prepare preliminary electrical load requirements.
8.5.7 Instrumentation and Controls
(a) During the Project Definition Phase, the Contractor will complete
the following instrumentation and controls work and services:
(i) Develop Instrumentation and Control Design Criteria; and
(ii) Prepare preliminary P&IDs in cooperation with Piping Design.
8.5.8 Layout
(a) During the Project Definition Phase, the Contractor will complete
the following layout work and services:
(i) Start collecting available drawings;
(ii) Prepare list of drawings by area; and
(iii) Generate Flowsheets in cooperation with Process Engineering.
8.5.9 CADD
(a) During the Project Definition Phase, the Contractor will prepare
a CADD procedure in accordance with the Owners standard or as the Owner
may otherwise direct in writing.
8.5.10 Geotechnical
(a) During the Project Definition Phase, the Contractor will complete
the following geotechnical work and services:
(i) Site visit for reconnaissance of locations of TSF, plant site,
ore stockpile areas, aggregate quarry, borrow material sources,
infrastructure sites, etc.;
(ii) Define geotechnical design basis and criteria for TSF and ore
stockpiles;
(iii) Define site seismic parameters for evaluation of TSF and plant
foundation and other facilities designs;
(iv) Develop a design and construction schedule for TSF;
(v) Provide related inputs to Civil, Structural and Process
Disciplines; and
(vi) Prepare a memo to the Owner with findings and recommendations
for improvement and changes, following the Project Definition Phase.
8.5.11 Environmental:
(a) During the Project Definition Phase, the Contractor will complete
the following environmental work and services:
(i) Review project environmental reports; and
(ii) Identify local regulations, legislation and other Applicable
Laws in Venezuela relating to the environment.
8.5.12 Mining:
(a) During the Project Definition Phase, the Contractor will complete
the following mining engineering work and services:
(i) Review mining components of the Feasibility Report; and
(ii) Establish communications with the Owners mining representatives.
8.6 Development of a Detailed Project Execution Plan
8.6.1 Contractor will develop a detailed project execution plan in
consultation with the Owner. The plan will address all aspects of
project execution, integrating the engineering, procurement, materials
management, contracts management and administration, construction
management, commissioning, start-up and performance testing activities
that are required to be coordinated and managed in order to achieve the
Projects goals and objectives.
8.6.2 The detailed project execution plan will be developed by the
Project Manager, and will utilize Contractors expertise and knowledge
gained in executing other international mining and metallurgical
projects presenting similar challenges to the Project. Particular
attention will be given to the in-country aspects of the Project,
including such issues as permitting support and drawing approvals,
transportation logistics, community and governmental relations, and
customs and import logistics.
8.7 Development of a Detailed Project Completion Schedule
8.7.1 As part of developing the overall project execution plan,
Contractor will prepare a fully detailed project completion schedule
using Primavera P3.
8.7.2 The schedule will be developed in accordance with a formal
project Work Breakdown Structure (WBS) to facilitate its integration
with the project definitive budget such that execution progress can be
properly monitored from both a time and cost perspective.
8.7.3 The project completion schedule will utilize critical path
network methodology (CPM) to generate a homogenous network of logically
related tasks that can be presented in various levels of detail to suit
the intended purpose, from executive management reporting to biweekly,
weekly or daily working schedules used by the engineering, procurement
or construction management team.
8.7.4 The schedule will identify all critical equipment and
materials, as well as non-critical items, in the form of commitment
packages, which form the basic building blocks that together, make up
the project execution process from design through construction,
commissioning and start-up.
8.7.5 Once agreed with the Owner, the project completion schedule
will be frozen or baselined and used as the basis for reporting of
Project status. Changes to the baseline Project completion schedule
will be handled in a formal and consistent manner in accordance with
the Contract and Project Procedures Manual.
8.8 Development of a Comprehensive Procurement Strategy
8.8.1 Contractor will develop an integrated procurement strategy for
the acquisition of goods and services that will maximize the use of
lump sum, turnkey, performance based supply and installation contract
agreements, in order to provide the Owner maximum protection from
change orders, claims for additional compensation and performance
deficiencies in items of equipment, systems, facilities, and for the
Project as a whole.
8.8.2 This strategy will be developed in conjunction with the Owner
during the Project Definition Phase with the objective of minimizing
adverse cost, cash flow and schedule impact, as well as risk exposure
to the Owner.
8.8.3 Contractor will identify the key goods and services that
require early acquisition to progress the work and ensure compliance
with the project execution schedule, and will
develop a strategy and a plan to meet the Project requirements. In
particular, the procurement plan and strategy will focus on the need
for vendor and contractor data to support engineering development
specific to the Owners acquisition of permits, as well as to support
the Project execution schedule.
8.8.4 Contractor will develop a comprehensive materials management
strategy which will establish the manner in which goods will be
acquired, expedited, inspected, shipped, received, stored, and issued
to installation contractors, as well as handling of short and damaged
goods.
8.8.5 Key commercial issues relative to the acquisition of goods and
services such as, but not limited to, duty and excise taxes, value
added tax, Incoterms, insurance, security or bonding, guarantees,
warranties, liquidated damages, payment terms, will be addressed in the
development of the procurement strategy.
8.8.6 Standard project commercial terms and conditions will be
developed for both purchase and service contracts, which will reflect
the procurement strategy and the Owner objectives.
8.8.7 Procurement Strategy - Purchase Orders
(a) Purchase Orders will be awarded based on lump sum fixed price
agreements for equipment and bulk materials when bulk material
quantities are known. Provision of performance guarantees will be
incorporated in all purchase orders. Where early acquisition of goods
is required solely to obtain Vendor data to support engineering
development, manufacturing of the goods will be deferred to comply with
delivery requirements at site.
(b) Fixed unit prices will be used in bulk purchase orders when only
approximate quantities are known to allow for future adjustment in
quantities, but discounts will be included for different levels of
material volume purchases.
(c) Capital construction and commissioning spares will be purchased
as an integral part of the main equipment. Operating spares will be
priced at equipment bidding time, but released for delivery at a later
date. It is important that prices for operating spares be firm for an
extended period of time, as they are not required until after Project
completion and are generally released for delivery in the latter stage
of Project execution.
(d) Contractors standard methodology of purchasing spare parts is to
generate specific bid sheets, which are included in the bid request
documents. Vendors will bid on the different category of spares
recommended by them. The final selection of spare parts to be purchased
will be by joint decision of Contractor and the Owners operations group.
8.8.8 Procurement Strategy - Construction Contracts
(a) In accordance with the agreed procurement strategy, contracts
will be based on lump sum fixed prices for the all-inclusive supply of
materials, equipment, labour, construction, plant, supervision and
performance of the work specified. Provision of contract performance
guarantees will be incorporated in all contracts.
(b) In exceptional instances where conditions make it impractical to
obtain bids on lump sum fixed price basis, contracts will be based on
schedules of fixed unit prices or rates, to be applied to defined and
measured units of work.
(c) Contractor will endeavour, however, to negotiate the awarded unit
price contracts and convert them into lump sum fixed price contracts as
soon as it is judged that the quantity, quality and accuracy of
information related to the work has significantly increased to
facilitate the transformation of contracts from fixed unit price to
lump sum fixed price.
(d) Where execution of the work lends itself to turnkey performance
contracts Contractor will, subject to cost and schedule benefit
analysis, and bidders predetermined interest and capability, award such
contracts on the project. Turnkey contracts will be used whenever
possible for discreet systems or works that can be clearly identified
as islands within definable battery limits.
(e) As a minimum, turnkey contracts will generally include basic
engineering, detail design, supply of related process equipment,
balance of plant equipment, bulk materials, installation of mechanical,
electrical, instrumentation and controls, works to defined battery
limits and terminal points, commissioning, start-up, operator training
and performance guarantees. Total turnkey contracts would, in addition,
include construction of foundations and building structures.
(f) Partial turnkey contracts may exclude foundations, building
structures, bulk materials and/or installation of piping, electrical,
instrumentation and control works.
(g) Contractor will first proceed with the identification of systems
or works that would lend themselves to turnkey contracts as described
above, followed by an invitation for expressions of interest or by a
market survey, of a number of appropriately capable vendors or
contractors. Based on survey results, the prequalification of a
preliminary selection of the firms surveyed and expressing interest
would ensue, and a short list of acceptable firms developed. A bidders
list will then be prepared from the short list, and once approved by
the Owner, invitations to tender would be issued to each bidder.
8.9 Development of Definitive Project Budget
8.9.1 During the Project Definition Phase, a definitive Project
Budget will be provided as the project Work Breakdown Structure (WBS)
and associated coding are fully defined. The Feasibility Study cost
estimate details will be coded in accordance with the Project
Procedures manual and then recast into the budget coding structures,
utilizing Contractors PM+ project management system. The system will
combine detailed cost estimate items into Cost Elements and, where
necessary, the cost estimate details will be further broken down to
distribute scope and costs to multiple Cost Elements. The cost estimate
provides backup to the original Cost Elements.
8.9.2 For effective control purposes, at least two views of the
budget data will be required. One view is on an account basis and the
other is in alignment with the Purchasing and Contracting packaging
strategy. Full Cost Control, Change Control and Cost Accounting will be
accomplished from the original Budget that has been recast from the cost
estimate.
8.10 Development of an Environmental Health and Safety (EHS) Program
8.10.1 As part of the Project Definition Phase, Contractor will develop
a project specific Environmental Health and Safety (EHS) Program for the
Project in accordance with its corporate policies, standards and
procedures and that meets the requirements of good North American
practice, all Applicable Laws, all Permits, Licences and Approvals, and
all Governmental Authorities. The EHS program will address the specific
relevant challenges to be met for the Project.
8.10.2 The EHS program will be based on the following philosophy and
objectives:
(a) All injuries are preventable;
(b) Line Management is accountable for Health and Safety;
(c) Health and Safety is a condition of employment;
(d) Proper attention to Health and Safety is good business; and
(e) Contractor wants all employees to remain healthy and safe.
8.10.3 Contractors safety plan will include:
(a) A health, safety and loss prevention plan specific for the
Project; and
(b) Through the Contractors corporate Environment, Health and Safety
Management System (EHSMS), development of a project-specific EHS
program for the Project and which includes site-specific procedures.
8.10.4 [Intentionally deleted].
8.10.5 [Intentionally deleted].
8.10.6 Contractor will develop a site-specific EHS document control
procedure, including:
(a) a record keeping and file retention procedure that will ensure that
all necessary health and safety documentation is completed and maintained;
and
(b) Auditing of all documentation for quality, and completion by the
Project Health and Safety Superintendent.
8.10.7 Contractor will:
(a) Design a responsibility accountability matrix (RAM) for the
Project and train all internal stakeholders on their roles and
responsibilities, and provide a RAM that will assist the construction
management team to clearly understand their roles and responsibilities.
(b) Design and implement a Project safety policy and review it with
all stakeholders, which policy will:
(i) Clearly lay out the expectations of Contractor, the Owner, Trade
Contractor(s) and field workers;
(ii) Be endorsed by the Contractors Project Manager and the
Construction Manager;
(iii) Ensure all new workers review the health and safety policy at
the Site health and safety orientation; and
(iv) Be prominently posted throughout the Site,
(c) [Intentionally deleted].
(d) Design a Site specific formal health and safety training plan
(the SSHSTP) that includes a half-day training class for Site health
and safety orientation, which will be delivered prior to any worker
beginning work on Site and which health and safety orientation will
provide a review of the following:
(i) Health, safety, and environment policy and goals of the Owner,
Contractor, and the Trade Contractors;
(ii) Project security provisions;
(iii) Emergency Response Plan, including designated evacuation
meeting points, location of telephones/radios for emergency use;
(iv) General Site layout including location of First Aid/medical
facilities and sanitary facilities;
(v) Work area hazard awareness;
(vi) Proper use of personal protective clothing and other safety
equipment;
(vii) Vehicle and equipment safe operation;
(viii) Work permit-requirements;
(ix) Other site-specific rules and regulations including camp;
(x) Outlining Health and Safety work practices and procedures;
(xi) HIV information and a Malaria Control Plan;
(xii) Minimum medical levels of fitness examination prior to
commencement of work;
(xiii) Pre-employment form, vaccinations and competency checks;
(xiv) Sensitive aspects of the Environmental Management System;
(xv) Reporting and investigation of incidents and accidents; and
(xvi) Requiring the Trade Contractors to provide health and safety
orientation, specific to the work areas and trades involved, for their
workers and subcontractors.
(e) Design and implement external communication procedures to advise
external stakeholders of Project specific health and safety impacts.
Contractor will have personnel trained and procedures in place to
ensure clear and concise communication with external parties. These
procedures will be used in preparing communications for issue to the
Owner before issue to external parties.
(f) Design and implement extensive site specific safe work procedures
for all construction activities where such site specific work procedures
are commonly provided in the industry in North America or are reasonably
required for the
contractors and workers at site, and which incorporate any additional
operating procedures that may be required by the Owner.
(g) Design a site-specific Emergency Preparedness and Response (the
EPR) plan that:
(i) Addresses site-specific conditions;
(ii) A listing of emergency numbers and key contact personnel;
(iii) Steps to follow during emergency situations and first aid
measures;
(iv) Outline high risk areas at the Site;
(v) Establish a set of procedures for potential emergencies, for
example retrieving a worker in fall arrest, equipment failure, blasting
and explosives handling etc.; and
(vi) Provide for organizing and training of a fire response team.
(h) Design a formal process for Corrective and Preventative Action
(the CPA Process) that includes:
(i) Various tools to ensure that corrective action is followed up to
completion;
(ii) The Health and Safety Superintendent responsible for developing
and maintaining an audit schedule covering every Trade Contractor in
accordance with the Project health, safety and loss prevention plan;
(iii) The Health and Safety Superintendent will have the right to
stop unsafe work on Site which could jeopardize the well being of
personnel and facilities;
(iv) Procedures to audit and verify that the Trade Contractors and
the Projects health, safety and loss prevention plan are being properly
and effectively implemented, and to identify any shortcomings in the
program and provide recommendations to make improvements;
(v) Monthly audits of varying degrees of detail, initiated by
Contractors Health and Safety Superintendent and carried out in
consultation with a Trade Contractors site safety representative;
(vi) Transmittal of copies of all audit documentation to the Owner,
Contractors Construction Manager and Trade Contractor representatives;
and
(vii) Use of the International Loss Control Institute (ILSC) audit
protocol for annual corporate audits.
(i) Design safety into all parts of the work and at the engineering
(HAZOPs) and constructability stage. During the engineering design
phase, constructability reviews and HAZOP analyses, ensure that codes
and safe construction practices are incorporated.
(j) Design a rule compliance and personnel protective equipment
booklet.
(k) Design and implement an incident investigation and reporting
procedure (the IIRP) that includes:
(i) Reporting of all health, safety, and environment incidents to the
construction management team and the Owner within four hours of
occurrence;
(ii) The project Health and Safety Superintendent will generate a
preliminary incident notification report of the incident;
(iii) The Construction Manager will lead the investigation and
complete the report, with the assistance of the Project Health and
Safety Superintendent.
(iv) A guideline for workers, supervisors and managers to follow in
the reporting, investigating, and documenting of incidents, and
follow-up of incidents that did result in injury/illness, property
damage, environmental release, or business interruption;
(v) A process to identify the root cause of an accident, which
process includes the following:
(A) Determining the significance of the problem;
(B) Identifying the cause (condition or action) immediately preceding
or surrounding the problem, identifying the reason why the cause
existed; and
(C) Retracing the steps to the root cause, which is the stopping
point.
(vi) The Health and Safety Superintendent will also ensure that
corrective actions are in place, communicate corrective action to all
site workers through Daily Pre-Job Toolbox meetings, Safety Alerts, and
monitor and follow up on the corrective actions.
(l) Develop a Project Drug and Alcohol Policy (the PDAP), and which
policy will require Trade Contractors to design, implement and enforce
their own drug and
alcohol policies consistent with the Project Drug and Alcohol Policy,
and all of which include reasonable cause and grounds for drug and
alcohol testing.
(m) Develop a Disciplinary Action Process (the DAP) to enforce
health, safety and loss prevention plans, including how the supervisor
can fairly and nondiscriminatorily issue disciplinary action to workers
who are not complying with the rules established for the Project.
(n) In conjunction with the Owner, develop Security Protocols that
includes and addresses the following:
(i) Security of the site and protection of project assets during the
Project Execution Phase and takes into account the following concerns:
(A) External security threats; and
(B) Internal threats, including labour unrest.
(ii) A comprehensive program to protect materials, tools and
machinery to prevent any losses, theft or unauthorized use, and
measures that will be taken to prevent unauthorized disclosure and loss
of information or confidential material;
(iii) A key role in the implementation of the Emergency Response Plan.
(iv) The security force will see to fire prevention and limiting
damage through inspections of the fire extinguishers and fire alarms.
(v) There will be a fire fighting team, organized and trained by a
qualified security officer.
8.11 Development of a Project QA/QC Program
8.11.1 General
(a) Contractor confirms to the Owner that it has an established
Quality Management System (QMS) in place that is certified to ISO
9001:2000 standards and covers the full range of Services to be
provided under the Contract.
(b) The QMS is described in the Contractors Quality Policy Manual
QM-3801, and in its Quality System Procedures Manual QM-3802.
(c) Contractor will implement and enforce a Quality Assurance and
Quality Control Program for the Project that is consistent with best
practices for major North American mine infrastructure development
projects.
(d) Full compliance by the Contractor with the requirements of
Section 8.11 is essential to assure the Owner and the stakeholders in
the Project compliance with the specified requirements for the Project.
8.11.2 Quality Principles:
(a) The Contractor will develop and implement a Project specific
Quality Management Plan that meets the following four key objectives:
(i) Meeting the Owners contractual requirements;
(ii) Providing all deliverables and services of the quality and type
required for the Project;
(iii) Providing all deliverables and services on or before scheduled
target dates; and
(iv) Providing all deliverables and services on or below budget.
(b) The specific objectives of the QMS for the Project will be to
ensure that activities are organized, controlled, and effectively
discharged such that:
(i) The Owner is assured that the Contractor will perform the work
and meet all the Project targets for safety, quality, budget and
schedule;
(ii) The detailed design complies with Project Specifications, the
Owners Requirements, Applicable Laws, the Permits, Licences and
Approvals, and the requirements of all Governmental Authorities;
(iii) Equipment, materials and services selected are supplied in
accordance with specifications, standards and conditions specified for
the Project;
(iv) The facilities are assembled and installed in accordance with
requirements specified for the Project; and
(v) Any detected performance or product shortfalls are expeditiously
resolved, and corrective action is taken to prevent recurrence.
8.11.3 Project Procedure Manual (PPM):
(a) The Contractor will develop, implement and enforce a Project
Procedures Manual for the Project which will clearly define the scope
of work, list the specific Quality System Procedures (QSP) required to
complete the work, provide a ready reference for all key functions and
activities to be undertaken to ensure that the Contractor meets the
Owners expectations with regard to the quality of deliverables, and
conformance to schedule and cost control objectives.
(b) The PPM will be issued by the Contractor to the Owner within 30
days after the Date of Contract.
8.11.4 Project Quality Plan (PQP):
(a) The Contractor will develop, implement and enforce a Project
Quality Plan which defines the Projects key quality functions and
control points, including any project-specific requirements.
(b) The PQP will be based on the Contractors standard model and
modified to suit specific Project activities and the requirements of
this Contract and include the following attributes:
(i) Primary Activities those elements of the Project that are
subjected to the rigorous application of the plan itself;
(ii) Key Activities The major tasks that will be addressed, relative
to each primary activity;
(iii) Input information and Activities defines the information that
is essential in order to develop the details of the project specific
quality plan;
(iv) Output Documents or Quality Records defines those documents and
deliverables to which the project quality standards are applied;
(v) Responsibility defines which specific individual within the
project or functional organization is responsible for each document or
deliverable;
(vi) Ref QSP specifies the relevant Contractor corporate Quality
System Procedure applicable; and
(vii) Ref ISO specifies the corresponding International Standards
Organization reference applicable.
8.11.5 Project Team Initiation Training:
(a) The Contractor will provide all members of the project team with
initial introductory training related to the content and the use of the
PPM, including their particular role and involvement in the execution of
the PQP. Specific emphasis in this training will focus on the key
activities necessary to the success of the Project, including:
(i) Project Description;
(ii) Scope of Work, Project Mandate and Schedule Milestones;
(iii) Team communication and interaction between groups, offices and
Owner;
(iv) Document Coding Structure
(v) Project Files and E-File directories
(vi) Unit of Measure, Language, Drawing Format and Title Block and
Frame
(vii) Internal Audit Schedule (Planned and Unplanned)
8.11.6 Continual monitoring and reviewing of quality process:
(a) The Contractor will, through designated and qualified personnel,
be responsible to perform, enforce and report on the following key
activities:
(i) Inter-Discipline Coordination (IDC): Engineering technical
documents, such as drawings, specifications, technical specifications
and design criteria, shall be reviewed by all affected disciplines and
comments incorporated/addressed as defined in QSP no. 4035-SLEC
Inter-Discipline Coordination;
(ii) Technical progress reviews: The Engineering Manager shall
coordinate technical progress review meetings. This will include
participation of the responsible discipline leads to promote awareness
of progress status and to prevent/resolve potential conflicts;
(iii) Commitment Package review. The Project Controls Manager shall
coordinate commitment packages schedule status review meetings to
ensure awareness of progress status and to prevent/resolve potential
delays;
(iv) Review of Vendor Documents: The responsible Engineer shall
identify the disciplines required to review and comment on the Vendor
Document package. Discipline reviews and sign-off will be performed as
per IDC process described above. Comments on Vendor Documents shall be
incorporated/addressed by the responsible Engineer as defined in QSP
no. 4033-SLEC Review of Vendor Documents;
(v) Monthly Project Panel Review: Senior representatives of
Contractors management will conduct project reviews, at defined
intervals, to evaluate the functional and operational performance of
the project. The objective of such reviews is to provide support and
resolution of any unfavourable trends or Owner concerns as per QSP no.
3111-SLEC Project Panel Review and QSP no. 3885-SLEC Owner Focus; and
(vi) Design Reviews: An independent technical review of the design
concepts, methods, spot checks of calculations or analysis employed for
solving problems and assessing the results against input requirements is
undertaken by authorization of the project Technical Sponsor as per QSP
no. 4031-SLEC Design Reviews.
8.11.7 Project Quality Audits:
(a) Assurance of quality will be achieved by the Contractor through
independent monitoring and auditing of project activities for compliance with
the project requirements and this Contract.
(b) The Contractor will develop a project specific internal audit checklist.
(c) Audits will be scheduled at 30%, 60% and 90% of engineering completion
and performed by independent and qualified personnel in accordance with
documented procedures.
(d) Project Quality Audits will be scheduled for the following purposes:
(i) Verify the effective implementation of project activities;
(ii) Determine level of conformance;
(iii) Identify opportunities for improvement; and
(iv) Ensure corrective and preventive measures are taken.
8.11.8 Corrective and Preventive Action:
(a) The corrective action process will be designed to address quality
problems experienced in the course of project execution. The cause of
the problem is to be identified, and the necessary action to reduce or
prevent recurrence will be implemented and enforced by the Contractors
project management/team.
(b) The objective of the preventive action process is to identify the
root cause of the problem, and eliminate the opportunity of
re-occurrence.
8.12 Development of Project Controls System
8.12.1 The Contractors established integrated project management
system, PM+, will be used throughout the execution of the Project. The
Contractor represents to the Owner that its PM+ system is consistent
with the best project control practices in North America by major
international project management companies.
8.12.2 The Project Control System will combine modern, interactive
computer technology with proven project management methods to define,
plan, monitor and control engineering, procurement and construction.
8.12.3 The overall project management process that will be implemented
by the Contractor is illustrated by Figure 8.1.
8.12.4 The Contractors PM+ Integrated Project Management System is
shown in Figure 8.2. PM+ has been developed by the Contractor
specifically to support the needs of Project Management from the
definition of scope, through to planning and setting of the project
baseline parameters, and through ultimate execution of the project
itself. Scope, schedule and cost must all be managed throughout this
process. PM+ facilitates the management process and provides the
details and information necessary to effectively manage projects. The
integration of processes and information is fundamental to a good
Project Management System. The PM+ system is organized into modules
that are integrated.
8.12.5 The following provisions of this Section 8.12 contain the
Contractors description of the various modules shown in Figure 8.2 PM+
Integrated Project Management System, and which were relied upon by the
Owner in awarding the Contract to the Contractor.
8.12.6 Project Initialization
(a) The Project Initialization module provides for the identification
of the projects, their high level descriptive and parametric
information, their coding structures and templates, and the development
of the key project frameworks, including the Work Breakdown Structure,
the Organization Structure and the Budget Structure.
Figure 8.1 Project Management Process
Figure 8.2 PM+ Integrated Project Management System
8.12.7 Document Control
(a) The Document Control module supports the planning, definition,
monitoring and tracking of four classes of documents, namely:
(i) Internally-produced engineering designs, drawings and specifications;
(ii) Externally-produced vendor drawings;
(iii) Externally-produced reference data; and
(iv) Internally produced administrative documents or electronic files.
(b) A large portion of the man-hour expenditure for a typical major project
is associated with the production of design drawings and documents which are
probably the most important product emanating from the design office. This
module also provides Internal Drawing Control.
(c) For major projects, the design group may be required to review, revise,
approve, and finally release for construction, tens of thousands of individual
drawings supplied by the various manufacturers or vendors of equipment and
services. This module provides External Drawing Control.
(d) Drawings are cycled back and forth between the vendor and the project
team, requiring careful control of release numbers, approval status, and
ultimately, the released for construction status of each. The project team
must be able to determine the whereabouts of any drawing at any time and to
identify and rectify, if necessary, any delays that may occur. This module
provides the tools necessary to properly manage this difficult logistical task.
(e) The audit trail of the production of a drawing enables the user to trace
the history of one drawing or a set of drawings (i.e. those drawings belonging
to one particular purchase order or contract).
(f) Exception reports list all drawings that are late in being issued or
whose imminent use is by the design department, or those that have not been
received from the Manufacturer/Vendor within the specified turn-around time.
8.12.8 Internal Mandate
(a) The Internal Mandate module addresses the organizational
planning, work planning, budgeting, monitoring, and control of design
work and other project services such as project management, procurement
and construction management. It focuses on the specific needs of
planning and controlling the engineering work, centred around
engineering drawings and specifications, processing vendor
drawings, and defining the tagged equipment and bulk materials
take-offs and their assignment to planned purchase and installation
commitment packages.
(b) Work is separated into tasks that relate to the deliverables and
each task has a defined progress template. Earned Value and Performance
Analysis (EV&PA) methods are applied within PM+.
8.12.9 Planning and Scheduling
(a) PM+ is integrated with a commercial scheduling software package,
(Primavera P3), to provide these capabilities.
(b) Primavera P3 provides functions of work planning, network
analysis, hammocking, summary schedules, resource levelled scheduling
and work progress monitoring.
(c) Commitment Packages in PM+ and the Primavera Critical Path Method
(CPM) network have a unique interface to import dates into PM+. The
interface permits only approved schedule refinements to be reflected in
PM+.
8.12.10 Estimating
(a) The Estimating module supports the estimating process and
facilitates organization of costs for subsequent recasting into cost
control.
8.12.11 Cost Control
(a) The Cost Control module supports both the Project Budget
Structure (PBS) definition and Project Commitment Structure (PCS). The
PCS is the structure, which is based on commitment packages (the
strategic contract and purchase order planning package definitions).
This module includes commitments, incurred costs, accruals, forecasting
and project accounting. All costs for subsequent scope change control
are managed in this module.
(b) Two methods of cost control are available.
(c) PM+ provides a consistent basis for reporting and monitoring
project costs and progress against the original assumptions.
8.12.12 Engineering
(a) The Engineering module provides management of equipment and
materials from definition of the requirements of the engineers
including tagged items and bulk material. Equipment and material can be
uploaded from engineering software. Engineering release requirements to
Procurement (RFI) and release items for purchase (RFP).
8.12.13 Procurement
(a) The Procurement module supports the planning, monitoring and
control requirements of the purchasing, expediting, logistics, materials
control and contract administration functions.
(b) Materials control evolves from initial definition and packaging by
engineering, through purchasing, expediting, fabrication, delivery,
receiving and use.
(c) Commercial administration of Purchase Orders and Contracts
including change orders is also provided.
(d) Site materials management, including multi-warehousing, receipts,
issues, returns, inventory management and inter-warehouse transactions,
is also provided.
8.12.14 Construction
(a) The Construction module provides a consistent way of planning,
monitoring and reporting construction progress. Sets of progress
templates are defined to characterize the stages of progress of
construction deliverables. The work scope for each contract is defined
by a set of physical end items, called construction items. For simple
contracts, a single deliverable at the contract level may suffice. For
more elaborate contracts, any number of construction items may be
defined and linked to the pay items of the contract. Each construction
item is referenced to an appropriate template. An additional link may
be established with the project estimate items, to assist in the
establishment of the baseline hours needed to accomplish the work.
Schedule dates from the construction schedule complete the data needed
to track and evaluate progress.
(b) Each contract is identified and the progress of the construction
activities is closely monitored.
(c) Contract Administration includes progress certificates and change
control integrated with the rest of the system.
(d) Commissioning includes detailed progressing and close out of each
system.
8.12.15 Hardware and Software Environment
(a) Citrix Metaframe technology is used to provide secure worldwide
access to the central database and application.
(b) All PM+ input screens share common functionalities. All input
screens make maximum use of context-sensitive windows to facilitate
entry, modification and viewing of data. This commonality across the
system makes the system easy to learn as well as easy to use. Once a
person has used one input screen, all other
input screens operate similarly; once the user has called out one
report, calling out any report entails similar actions.
(c) Online help for screens and methodology is available and is
context sensitive.
(d) PM+ output reports make use of filters, range selections,
wildcard selections, and even tagging of elements within a scrollable
window to enable extensive exception reporting flexibility. All reports
may be viewed at the screen, sent to disk files in PDF format, or to any
printer on the LAN. Screen viewing permits single line or screen
scrolling, panning for wide reports, and setting up of split windows to
enhance viewing.
(e) User installations may customize any of the standard reports and
hold these in special project libraries. In addition, users may develop
their own reports and graphics for installation into their own libraries.
8.13 Development of a Project Cash Flow Strategy
(a) During the Project Definition Phase, Contractor will develop and
implement an effective strategy for managing the Project cash flow in
an optimum manner. The strategy will include:
(i) Maximizing the Projects net present value (NPV) by managing
capital cost expenditures;
(ii) Ensuring that payments for goods and services are only effected
on an earned basis by eliminating any potential for front-end loading
of vendor invoices;
(iii) Ensuring that payments for goods and services are linked to
clearly measurable schedule milestones or deliverables production in
accordance with all required Permits, Licences and Approvals; and
(iv) Contingency management.
8.14 Development of a Construction Labour Management Plan
8.14.1 Venezuela has a long history of union participation throughout
its workforce. Approximately twenty-five percent of the Venezuelan
workforce is unionized, with the majority belonging to the
Confederation of Workers of Venezuela (CTV). The majority of the
approximately 12,500 legally recognized trade unions in Venezuela are
small. However, many are affiliated with larger national unions such as
the CTV.
8.14.2 The Contractor will, in conjunction with CM Consultants Labour
Relations Manager, develop a labour management plan during the Project
Definition Phase, which will aim to foster harmonious labour-management
relations during construction of the Project.
8.14.3 To develop the Labour Management Strategy, the relevant unions
and craft affiliations pertaining to the Project on a national,
regional and local basis will be identified. It will then be determined
how each Trade Contract will be affected. For example, the electricians
will be concentrated with the Electrical Trade Contractors, but the
Concrete, Structural Steel and Earthworks Trade Contractors will
require construction labourers and may have to contend with more than
one union local to reach an agreement.
8.14.4 To facilitate harmonizing the unions and employer associations
agendas, contacts will be established by the Contractor with
appropriate union business agents, employer associations and government
officers to plan the hiring strategy. The Project will be a large
undertaking and may require a pre-job conference to be held with the
aforementioned groups to establish job conditions of employment, work
rules, or jurisdictional responsibilities. A Special Project Agreement
may be required to solidify negotiations with the unions and employer
associations. The Contractor will assist the Owner in regard to
employment commitments that may be specified in any definitive
agreements between the Owner and the Venezuelan government.
8.14.5 The Contractor will work with CM Consultant to develop a Site
Labour Management Plan which will include:
(a) Human Resources Management Policy;
(b) Worker participation and employee involvement;
(c) Procedures to form required committees;
(d) Resolution Plan for disputes;
(e) Training Regimes and Implementation;
(f) Communication and co-ordination with Contractors;
(g) Translation procedures;
(h) Community, union and employer association commitments; and
(i) Implementation schedule.
8.14.6 The Site Labour Management Plan will provide policies and
procedures that are consistent with local practices, which adhere to
the Venezuelan labour laws and codes.
8.14.7 The Contractor, together with CM Consultants Labour Relations
Manager, will also research existing or upcoming large-scale Venezuelan
construction or industrial projects which may drain the local labour
pool. If a potential problem exists, arrangements will be made to bring
workers from outside local areas.
8.14.8 Development of a strong Labour Relations Management program for
the Construction Phase will provide a good foundation for the
development of the labour management strategy and plan for the
Operations Phase.
8.15 Development of a Strategy for Electronic Data Management
8.15.1 All Trade Contractors will be provided by the Contractor with
internet access through the integrated communication system at Site.
ActiveProject will be used to provide a secure web based integrated
data management system for all Trade Contractors and Consultants at
Site as well as the Owners personnel.
8.15.2 All stakeholders will be provided with instructions on how to
use ActiveProject and the Projects file naming conventions.
8.16 Development of Strategy for Communications
8.16.1 The Contractor will develop and implement a communications
strategy for the Project which incorporates proven, reliable and
state-of-the-art telecommunications systems to provide site personnel
with fully functional connectivity to the outside world.
8.16.2 Communications requirements for both construction and operations
will be optimized during the detailed design stage to ensure that the
systems will support peak communications throughput and allow for
expansion through open and flexible architectures. Equipment
redundancy, where incorporated, for critical components will ensure
maximum reliability with minimal downtime. To provide optimum
flexibility, a variety of communications media will be incorporated in
the overall design.
8.16.3 A full evaluation of all existing telecommunication
infrastructure at the Site will be completed early in the Project
Definition Phase. Potential local contractors will be evaluated during
this phase.
9. PROJECT EXECUTION PHASE
9.1 Overall Project Management
9.1.1 Contractor will provide full, comprehensive Project Management
services during the Project Definition Phase, and the development of
the detailed engineering and related procurement activities, and
thereafter until such time as the focus for the Project shifts to
Venezuela.
9.1.2 [Intentionally deleted].
9.1.3 Monthly progress meetings will be held with the Owner to review
the overall status of the Project, resolve any on-going technical
issues, and discuss the cost and schedule disposition of the Project.
9.1.4 The Project Manager will ensure that the Project Execution
Plan, developed and agreed with the Owner during the Project Definition
Phase, is fully implemented by the Contractors Project Team. Procedures
and work instructions issued during the Project Definition Phase will
be followed by the Project Team in the day-to-day management and
administration of the Project.
9.2 Detailed Design and Engineering
9.2.1 General
(a) The Contractor will provide and perform all detailed design and
engineering services reasonably required for the Project, except where
such detailed design and engineering is, in accordance with the normal
custom of the industry or with the prior agreement of the Owner in each
instance, provided by equipment suppliers and vendors or by design-build
contractors.
(b) The engineering work will be supervised and controlled by the
Project Engineering Manager, who will be directly responsible to the
Project Manager for the timely and accurate production of the
engineering work.
(c) Initially weekly engineering meetings will be held to ensure the
early coordination of the detailed engineering. Later, as the project
develops, the coordination meetings will be held monthly. The
engineering coordination meetings will precede the monthly progress
review meetings with the Owner so that the Engineering Manager can
report up to the minute progress and potential problems.
(d) The following provisions of this Section 9.2 contain the
Contractors description of the detailed design and engineering services
it will provide for the Project, and which were relied upon by the Owner
in awarding the Contract to the Contractor.
9.2.2 Design Codes and Standards
(a) Design codes and standards will be:
(i) Based on North American standards;
(ii) Conform to best North American practices for major North
American mine infrastructure development;
(iii) Defined in the Project Design Standards Manual of each
discipline; and
(iv) Where more stringent requirements are necessary to meet
Venezuelan Applicable Laws, or Venezuelan Permits, Licences and
Approvals, or requirements of Venezuelan Governmental Authorities, they
will be incorporated into the Project Design Standards Manual and
followed.
9.2.3 Use of 3D CADD
(a) The process plant will be laid out using the Intergraph PDS 3D
CADD system. At the completion of the design phase the electronic model
will be installed at Site for reference during construction. All
equipment, piping, cable trays, structures, platforms, stairs, and
partitions will be modeled. The 3D CADD model will provide and include:
(i) A full electronic replica of the plant as it will be constructed;
(ii) Ability to review and quantify design progress as the model is
developed;
(iii) Design reviews that include constructability, HAZOP and
operational criteria;
(iv) Accurate data extraction layout drawings, piping ISOs and BOMs;
(v) Complete interference checking to avoid construction clashes;
(vi) Reduced construction costs and schedule delays due to errors; and
(vii) Training tool for operational staff.
9.2.4 Integrated 3D CADD Software Systems
(a) The proposed 3D CADD tool that will be used by the Contractor is
Intergraphs 3D Plant Design System (PDS), which is an integrated suite
of software pertaining to the integrated design from the various
engineering disciplines. Specific modules of PDS and peripheral
software includes:
(i) Plant Design Equipment modeling
(ii) Frameworks Structural modeling
(iii) Piping Designer Piping modelling
(iv) Isogen Piping isometric generation
(v) Drawing Manager and Orthogen 2D Drawing extraction
(vi) Report Manager Various Reports
(vii) SmartPlant Review 3D walk-through
(viii) Interference Manager Clash check
(ix) Reference Data Manager Input Piping Spec
(x) SmartPlant P&ID P&ID preparation
9.2.5 3D Model Development
(a) Plant equipment will be initially modelled from Vendor sketches
and catalogue information or from a database of previous 3D projects.
As more data is received from Vendors the model will be updated to
reflect the latest detail. The final stage of equipment modeling will
occur when the model is checked against the certified Vendor drawings.
At this stage the equipment shape, position, location of nozzles etc
are accurately reflected in the model.
(b) Structural Steel modeling will start as soon as the general plant
layout is established. Because this has been determined during the
feasibility stage of the Project, structural modeling will commence
concurrent with the equipment modeling. All structural members will be
modelled including: secondary framing, girts, bracing, platforms,
stairs, handrail, etc., to ensure a complete model is included when
interference checks are run.
(c) Foundations will not be modelled since underground piping and
electrical duct banks will be minimal. However, the upper surface of
the lowest floors including integrated foundations, trenches, pads
etc., will be shown for reference.
(d) Piping will be modelled for all diameters 75mm and above and will
include pipe supports. Smaller diameters will be field run. Piping will
follow ANSI specifications. Piping specifications for the various
classes of piping will be input in the 3D model data base to permit the
automatic generation of piping isometrics and bills of material. P&IDs
prepared with SmartPlant P&ID will generate line lists and valve lists.
(e) Electrical cable trays will be included in the model for
interference checking. Cable tray layouts and associated bills of
material will be extracted from the model.
(f) In-line Instrumentation from the P&IDs will be included with the
3D model database. A report generated from the database will provide
the inline instrument list.
9.2.6 Design Reviews
(a) As the model develops, regular design review meetings will be
held with the Owner. This process allows input to the design and layout
at the early stages of design development. Plant safety and operability
are major factors in the review sessions. Design reviews benefit the
construction team as they will determine the order of construction for
adequate working space and clearances. In the field, erection crews
will benefit by being able to view any part of the model from any angle
and be able to print the screen for on-the-job reference.
9.2.7 Interference Checking
(a) Interference checks will be run to determine clashes between the
various elements of the 3D model. Hard clashes occur when, for example,
a cable tray runs through a floor beam. A Soft clash results when, for
example, steel bracing cuts into pipe insulation. Clearance envelopes
are also specified where clear space is required for large door swings,
withdrawal of tubes from a heat exchanger and the like. Where clashes
are identified they can be accepted as in the case of a soft clash or
reworked as necessary.
(b) Clash checking will always be carried out before piping isometric
drawings are generated.
9.2.8 Drawing Extraction
(a) At any time during and after the model development, conventional
2D drawings can be extracted. In addition isometric views can be
produced with photo-like clarity and are particularly useful during
construction.
(b) As a final deliverable the 2D drawings supplement the 3D model
and normally only show basic dimensioning of the equipment and piping.
Structural drawings show all the member sizes and location for
detailing purposes. Cable tray drawings show routing information and
fittings.
9.2.9 Progress Measurement
(a) Progress of the 3D model is determined by weighting two
parameters. One, the ratio of data actually input to the total data
required and two, by the level of accuracy of the data. For example, a
pump modeled to catalogue data would not earn the same progress as a
pump modeled to Vendor drawings. No piece of equipment can be claimed
to be 100% complete until it is checked against the Vendors certified
shop drawings.
9.2.10 Process Engineering
(a) Process Engineering will review the discipline deliverables that
include process information, or show process equipment and piping.
Discipline deliverables to be reviewed include:
(i) Plant Layout Drawings. The plant general arrangement plans and
sections will be reviewed and modified as required to reflect any
flowsheet changes that may occur. Process buildings and equipment
will be arranged to provide an economical plant that is easy to operate
and maintain. Gravity flow will be incorporated wherever possible.
(ii) Piping & Instrumentation Diagrams. Process Engineering will
review process equipment data, mass balance data, pipe routing, pipe
size and flow velocity, materials of construction, insulation
requirements, instrumentation type and location, process control loops,
alarms and equipment interlocks.
(iii) Piping Layout Drawings. Pipe routing will be reviewed to
minimize the risk of potential line blockages. The location of, and
operator access to, manually operated valves and major process
instruments will be reviewed.
(iv) Plant Automation and Control Philosophy. The overall plant
control philosophy will be established by the process engineer. The
instrumentation discipline will implement this philosophy for the various
control systems, instrumentation and data management. Process
Engineering will review control loop narratives and motor logic
narratives produced by the instrumentation discipline for consistency
with the overall philosophy.
(v) Civil Plot Plans. Site plans will be reviewed to confirm good
access for delivery and maintenance vehicles, and adequate containment
of spills.
(vi) Site Water Balance. Process Engineering will work with the civil
discipline to incorporate the process plant water balance into the site
wide water balance.
(vii) Concrete and Structural Drawings. Process Engineering will review
containment sumps and containment curbs to minimize risks of product
contamination and environmental impact, and to provide good access for
operation and maintenance of all process equipment and controls.
(viii) Mechanical Discipline Documents. Process Engineering will
review drawings for fabricated steel items (chutes, launders, tanks) and
equipment supports. Special attention will be paid to wear protection in
chutes, launder slope, and positioning of tank nozzles. Process
Engineering will also review specifications and provide process data for
data sheets for materials handling equipment and utilities.
(ix) Procurement Support. Process Engineering and Mechanical Engineering
will prepare Technical Specifications and Data Sheets for pre-purchased
process equipment.
(b) Process Engineering will assist with preparation of the list of
qualified Vendors for each procurement package. After receipt of Vendor
Bids, Process Engineering will perform a technical evaluation and issue a
Technical Evaluation report to be combined with the Commercial Evaluation
and Purchase Recommendation prepared by the assigned buyer for the
equipment package.
(c) Responsibility for each equipment package will be assigned to either
Process Engineering or Mechanical Engineering based on the type of
equipment. The responsible discipline will prepare the Technical
Specification and Data Sheets, prepare a Request for Proposal, evaluate
Vendor bids, prepare a Request for Purchase for the selected equipment,
review Vendor drawings, and update process engineering documents as
required (flowsheets, equipment list descriptions, design criteria,
mass balance). Process Engineering will also provide any required process
data for equipment package documents prepared by other disciplines, and
review procurement documents for process equipment prepared by other
disciplines to confirm compliance with process conditions.
(d) Construction Support. Process Engineering will provide input to,
and review, Pre-Commissioning Manuals prepared for each process "system".
(e) Process Engineers experienced in each process area will be at the
project site to assist with Pre-Commissioning and Commissioning, in
accordance with the agreed take-over procedures.
(f) Contractor's Pre-Commissioning and Commissioning team will support
the Owner personnel up to the successful completion of the Plant
performance tests for the Performance Guarantees. Equipment or circuit
modifications required during start-up will be implemented by the
construction team only after review and approval by the Owner.
9.2.11 Discipline Engineering
(a) Layout:
(i) The layouts developed for the Feasibility Study will be the basis
for developing the 3D CAD model. After the basic 3D model has been
developed, all further refinements to the layout will be input directly
into the model. The flexibility of the PDS system allows for
two-dimensional views to be extracted from the model at any time and in
any direction.
(b) Civil Engineering:
(i) Existing topographical data, provided by the Owner in electronic
format at the commencement of the work, will be reviewed. If required,
site surveying will be contracted to a local surveyor to obtain
corrected information.
(ii) Key components of the civil design include:
(A) Constructing and/or upgrading the two access roads to the site;
(B) Control of site drainage and run-off from stockpiles;
(C) Potable water and sewage treatment facilities;
(D) Firewater supply, storage and site distribution; and
(E) Tailings discharge and return water lines.
(iii) A borrow source has been identified for concrete aggregates and
structural fill material. A concrete batch plant will be required at the
borrow source.
(c) Structural Engineering:
(i) Contractor will provide foundation design recommendations
following its review of existing geotechnical data.
(ii) Concrete grades and other design parameters will be stated in
the design criteria and will be the basis for concrete quality control.
(iii) Concrete design will follow standard North American practice in
that drawings will show concrete dimensions and rebar requirements.
Detailed placement drawings and bar lists will be prepared by local
engineering companies and/or contractors and will be reviewed by
Contractor prior to construction.
(iv) At the start of design, the source and grades of structural
steel will be confirmed so that the design criteria will reflect the
most economical and readily available material.
(v) Structures will be designed utilizing 3D analysis software such
as STAAD-PRO, which interacts with the 3D PDS model. All structural
steel framing including bracing, platforms, stairs and handrail will be
modeled to ensure that 3D clash checks are comprehensive.
(d) Architectural Design:
(i) Plans and elevations of all the process buildings will be
prepared to show roofing, siding, doors, windows and partitions. Door,
window and room finish schedules will also be prepared. The main
architectural features will be included on the 3D model.
(ii) Full architectural drawings and specifications for the ancillary
buildings will be provided. This will include any upgrades to the
existing administration and warehouse buildings.
(e) Mechanical Engineering:
(i) The mechanical engineering will be closely integrated with the
process design to include all the plant systems and equipment. The
mechanical engineers will be responsible for the design of all material
handling equipment, tanks, chutes, cranes and hoists. All process and
mechanical equipment will be shown on the 3D model.
(f) Piping Design:
(i) Piping will be designed in accordance with ASME/ANSI codes. All
pipe 75mm and above will be included on the 3D model. Smaller piping
will be field run.
(ii) Piping and Instrument Diagrams (P&IDs) will be prepared from the
process flow sheets and material balances. P&IDs will be prepared using
SmartPlant P&ID software for integration into the 3D model.
(iii) Piping general arrangement drawings and full isometrics will be
provided for fabrication and will be generated from the 3D model
database.
(g) Electrical Engineering:
(i) Power to the site will come from an existing substation
approximately 3 km away on the main highway. It is understood that the
power line from the substation to the Site is included as part of the
scope of the Project to be provided by the Contractor. This power line
will connect to the plant substation at the Site.
(ii) Electrical power requirements will be established for the entire
Project with a calculated power demand factor to determine the main
substation capacity. An emergency back-up diesel generator power system
will be designed to maintain critical process operations.
(iii) A power system harmonic analysis will be carried out to ensure
there is no interference derived from variable frequency drives.
(iv) A computerized, power system short circuit analysis will be
prepared including a relay coordination study with recommended
protective settings.
(v) Internal telephone and data links will be provided for connection
to the public utility communication system.
(vi) Electrical drawings will include:
(A) Electrical Equipment List;
(B) Single Line Diagrams;
(C) Main Substation Layouts;
(D) Electrical Room Layouts;
(E) Grounding and Lightening Layouts;
(F) Power and Lighting Layouts;
(G) Cable Tray Layouts;
(H) Communication Raceway and Fire Alarm Layouts;
(I) Schematic Wiring and Connection Diagrams;
(J) Panel Board Schedules; and
(K) Cable Schedules.
(vii) Cable tray routings will be input in the 3D model for clash
check purposes.
(viii) As-built drawings will be prepared for Single Line Diagrams,
Connection Diagrams and underground duct banks.
(h) Instrumentation and Controls:
(i) The overall plant control philosophy will be established by the
process engineer. This philosophy will then be developed into the
detailed design for the various control systems, instrumentation and
data management.
(ii) The engineering work related to instrumentation and controls
will include the following elements:
(A) Design of a control system (DCS or PLC) including an interface
(web server) to link data to any remote the Owner site;
(B) Programming of the control system;
(C) Design of a central and satellite control rooms;
(D) Design of an uninterruptible power supply (UPS) system for
critical instruments and process controls;
(E) Design of plant wide security systems including high security
measures for the gold room;
(F) Design input to the P&IDs; and
(G) Participation in HAZOP and Fail Safe reviews.
(iii) Programming of the control system has been included in order to
provide greater efficiency and control when compared to assigning
programming to several individual vendors. A complete instrument list
will be prepared along with loop narratives, loop diagrams, cable
schedules and detail drawings.
(i) Building Services:
(i) Building services will include ventilation, air conditioning,
plumbing, drainage and fire protection for all process and
infrastructure enclosed buildings. The warm climate at the site
precludes the need for heating.
(ii) Enclosed process buildings, including electrical rooms, will be
evaluated to determine heat gains from equipment to establish the
ventilation and air change rates necessary to maintain design
requirements and to meet North American occupational health and safety
standards.
(iii) The laboratory building will be evaluated in like manner with
the addition of ventilation hoods and fans in areas of fume generation.
(iv) Plumbing systems for kitchens, washrooms, laboratory sinks and
drys will be detailed along with the resulting drainage and sewer
systems.
(v) The fire protection requirements for all the facilities will be
determined according to NFPA standards. Protection systems will include
sprinklers, dry type fire extinguishers and hose reels as appropriate.
Fire alarms and smoke alarms will be included to provide an audible
alarm in each building or zone as well as annunciating in the main
control room.
(j) Mining Engineering:
(i) Mining planning and development services are excluded from the
Contractors Services.
(ii) Contractor will interface with the company (the Mining
Consultant) that will perform mining planning and development services
for the Owner. This interface will be primarily related to ensuring
that facilities being designed by Contractor will be compatible with
the design of the open pit, waste dump and associated haul roads, and
with the mining equipment selected by the Mining Consultant. Contractor
will facilitate this interface by using one of its in-house mining
engineers who will participate in the Project on an as-required basis.
(k) Document Control:
(i) All technical documentation will be distributed, controlled and
filed by Contractors Document Control group. All documents will be
issued, internally and externally, via a transmittal, generated in the
PM+ management system. The transmittals will clearly state the document
title, number and revision; the distribution, purpose of issue, action
required and due date.
(ii) PM+ tracks all issues and transmittal contents, flagging late
reviews/ submittals for the attention of the Project Engineering
Manager who will take appropriate action to prevent any overall
schedule delays.
(iii) Technical documentation includes:
(A) Design Criteria;
(B) Specifications;
(C) Design Briefs;
(D) Drawings and Sketches;
(E) Bills of Material;
(F) Data Sheets;
(G) Engineering Reports; and
(H) Inquiry and Purchase Requisitions.
(iv) A dedicated review room will be established for the review of
all internal and external documents. This provides a central location
allowing flexibility for reviewing and also allows the Project
Engineering Manager to see how reviews are progressing and take action
as necessary. At the completion of the review period the documents are
returned to the originating discipline to reconcile all comments.
(v) The following review processes will be incorporated into the
Project procedures:
(A) Internal Reviews: Document Control will issue a pink copy of
internal documents for inter-discipline review. A review period and
distribution list of reviewers is established for each document and a
transmittal issued. Overdue reviews are flagged for action.
(B) Owner Reviews: Prior to external issue, Document Control will
issue all technical documentation to the Owner for review and comment
in accordance with an agreed review schedule. Overdue reviews are
flagged for action.
(C) Vendor Data Reviews: All vendor data is received by Procurement
and the technical documents are forwarded to Document Control who
assigns a unique control number to the data. The control number, data
description and due date for return are entered into PM+ for tracking.
Green copies of the vendor data are made, issued, reviewed and
controlled in the same manner as the pink internal documents.
(l) HAZOP and Fatal Flaw Analysis
(i) Towards the completion of P&IDs, a preliminary Process Hazards
Review (HAZOP) and Fatal Flaw Analysis will be completed. A second
HAZOP will be undertaken at about 80% completion of engineering.
(ii) Contractor will organize and lead the reviews with the Owner in
Toronto. The purpose of the reviews is to identify early in the design
phase any potential safety hazards and fatal flaw errors, define
mitigating measures for the identified hazards and fatal flaw errors to
ensure that there is sufficient capital in the cost estimate to be able
to include the measures during construction.
9.3 IT and Telecommunications [Intentionally deleted]
9.4 Geotechnical Engineering and Water Management Study
9.4.1 The geotechnical engineering design of the earthworks will be
executed by Contractors Geo-Environmental Group, formerly Geocon, in
the Contractors office in Toronto. Day-to-day engineering activities
will be managed by Dr. Bing Wang, who Contractor represents has
obtained extensive experience on similar projects in Venezuela.
9.4.2 Peer review of the TSF design will be carried out by
Contractors in-house senior geotechnical experts. Input from qualified
Venezuelan geotechnical engineers will be required and obtained as
required for permitting and sign-off purposes and as necessary to meet
the requirements all Applicable Laws, all Permits, Licences and
Approvals, and all Governmental Authorities.
9.4.3 If field geotechnical investigation work is required, local
Venezuelan drilling contractors will be engaged to undertake the field
investigation program. In the early stages of the field investigation
program, special emphasis will be made to thoroughly investigate the
geotechnical properties of the laterite and saprolite soils in the
proposed TSF and bedrock conditions at plant site, and other key
facility areas. Analyses will be made of the physical strength and
settlement properties of the soils and bedrock with respect to their
ability to support the heavy and in some cases dynamic loading of the
operating mill equipment.
9.4.4 All work will be undertaken using the most current, updated and
accurate topographical mapping and ground surveys of the site and close
coordination will be maintained with the General and Civil Layout
Departments in order to maintain a common usage of the same most up to
date layout.
9.4.5 The detailed geotechnical and water management engineering
tasks for the Project Execution Phase include:
(a) Design and construction of TSF and its perimeter access
road/berm, including development and finalization of design criteria,
design drawings with layout, sections and details, stability,
settlement and seepage analyses, design calculations, BOMs for cost
estimate;
(b) Provide input to TSF Tender and Trade Contract package, including
engineering requisition, scope of work, construction drawings,
specifications, pretender site meeting, bid evaluation, negotiation,
and recommendation;
(c) Preparation of TSF design technical memorandum, summarizing
design rationale and issues;
(d) Provide office support to construction, including periodical site
visits by designer and coordination with field staff;
(e) Preparation of TSF as-built report and drawings;
(f) Preparation of an Operation and Maintenance Manual;
(g) Provide input to a Field Soil and Concrete Testing Service
Contract package, including engineering requisition, scope of work,
specifications, bid evaluation, negotiation, and recommendation;
(h) Geotechnical recommendations for foundation designs;
(i) Evaluation of hydrological, water management and water balance;
(j) Analyses of stability of ore stockpiles; and
(k) Development of borrow material and quarry sources.
9.5 Environmental Engineering
9.5.1 In executing the environmental component of the Project, the
Environmental Manager will work closely with the design team in all
aspects of the design to ensure that each of the facilities/systems
comprising the overall design will provide a high level of
environmental protection and that the overall design will function well
from an environmental perspective, integrating the various environmental
requirements. Accordingly, the Environmental Manager will provide input
to the design of all facilities and systems, including providing
environmental design considerations and mitigation measures for:
(a) Refinement of the site layout to minimize environmental concerns;
(b) Pit development and dewatering to reduce impact on local
groundwater regime;
(c) Tailings storage facility (TSF) design, including seepage
collection system (if required) and operational plan, to ensure
long-term stability of the impoundment while minimizing ground/surface
water, dust and terrestrial environment impacts;
(d) Tailings pipe alignment/design, including additional protection
for environmentally sensitive areas (watercourses and low lying areas);
(e) Waste rock dump design, including run-off management and
long-term stability;
(f) Site water management plan, including water balance, collection
of potentially contaminated waters for treatment prior to release to
the environment and diversion of environmental waters from sources of
contamination to a downstream site;
(g) Potable water supply;
(h) Plant make-up water supply, ensuring that the use of
environmental waters is minimized to the extent possible;
(i) Wastewater/sewage treatment, including effluent quality controls;
(j) Management/control of acid rock drainage (ARD), including
ensuring all potentially ARD contaminated run-off is collected for
treatment, as required;
(k) Cyanide handling, storage and destruction, including issues
related to its transportation to the site and, following its use,
management of residual cyanide;
(l) Plant layout and design, including the spill collection and
containment systems that address wet season requirements;
(m) (Hazardous and non-hazardous) Materials management and waste
management to avoid/minimize environmental impacts during the on-site
handling, storage and disposal activities. This would minimize spills
and, in the event that a spill does occur, ensure effective containment
systems are in place;
(n) Design/upgrading of the aggregate quarry, the access roads and
the power transmission line to minimize environmental impacts.
9.5.2 The Environmental Manager will liaise closely with the design
team during the development of the detailed design through attendance
at Project Meetings, discussions with the design team and review of
design criteria, documentation and drawings.
9.5.3 The Environmental Manager will bring to the attention of the
design team, early in the process, environmental risks or requirements
likely having significant design implications and possibly requiring
design refinements or modifications.
9.5.4 In all aspects of design, the Environmental Manager will ensure
closure considerations are taken into account, to facilitate the proper
closure and rehabilitation of the site, in a cost-effective and timely
manner, once mining activities have ceased.
9.5.5 In addition to addressing the individual elements of the
design, the Environmental Manager will monitor changes in design in one
element of the design affecting another area of the design, for example,
with respect to potentially increased adverse environmental impacts. He
will work with the design team in mitigating these newly identified
impacts.
9.5.6 In addressing each aspect and element of the design, the
Environmental Manager will ensure that the design executes the
commitments made in the Owner Environmental Impact Statement (EIS),
Environmental Management Plan (EMP) and Site Closure and Rehabilitation
Plan and that the overall design, including its facilities and systems,
achieve internationally acceptable environmentally acceptable
standards, including achieving the Equator Principles. He will conduct
routine audits for compliance with Venezuelan environmental regulatory
and other requirements.
9.5.7 The Environmental Manager will also assist the Project Manager
and the Owner in the Project permitting process, and will assist with
tracking and implementation of tasks necessary to prepare and submit
permit/approval applications, at the discretion and direction of the
Owner.
9.6 Procurement and Contract Management
9.6.1 General
(a) Contractor represents that it has had recent procurement and
contract management experience in Venezuela, and it is aware of and
will develop a procurement and contract management program that will
address and meet the challenges of developing and construction a
project in Venezuela, including the following challenges:
(i) Local Trade Contractors generally lack funds and have
requirements for relatively large cash advances. High inflation, tax
regulations and currency trading practices restrict Trade Contractors
to minimize their inventories. Cashflow is based on only as ordered,
and this causes Trade Contractors to request advances;
(ii) Inventories of local goods are maintained at minimum
inventories; therefore, suppliers rely on ordering as required. This
affects the opportunities to purchase local goods;
(iii) Duties and VAT exemptions have proven to be difficult because
the timing for approvals is generally six months to one year.
Contractor has established the process and the personnel required to
pursue these applications expeditiously in the name of the Owner.
(iv) Tax regulations and currency trading have forced Trade
Contractors to setup satellite offices for purposes of offshore
banking. However, restrictions for payment in local currency are
enforced, particularly for services;
(v) Conducting thorough surveys and pre-qualifications of potential
fabrication shops and Trade Contractors is essential so that local
factors can be incorporated during the Engineering phase;
(vi) Third party inspection is required prior to import of any goods
or materials into Venezuela and Contractor has established processes
for expediting this.
(b) The procurement and contract management group will be established
in the Contractors Toronto offices. This group will set the Project
procurement policy and procedures, and will provide direction and have
overall responsibility for the procurement activities that will be
undertaken for the Project.
(c) The Contractor shall coordinate all procurement activities
between itself and CM Consultant.
(d) The Project procurement group will be managed by the Procurement
and Materials Manager in Toronto who will be assigned to the Project
reporting to the Project Manager, and will be responsible for all
procurement, operations and activities and the quality of procurement
throughout the Project, whether procured through the Contractor or CM
Consultant.
(e) The Procurement Manager will recommend and approve the
appointments for the senior procurement positions within the Project Team.
(f) The Project procurement group will subdivide its functions into:
(i) Contracts administration;
(ii) Purchasing;
(iii) Material control;
(iv) Expediting;
(v) Inspection;
(vi) Freight forwarding.
(g) The Contractor will establish the Project Procurement Policy and
Procedures to be followed and will undertake the specific procurement
tasks of:
(i) Establishing a "key supplier initiative", wherein suppliers of
equipment which can positively influence the overall project and future
operations will be chosen early in the project;
(ii) Establishing blanket orders for project requirements as practicable;
(iii) Executing major commitments;
(iv) Coordinating expediting and Inspection;
(v) Organizing and operating a Material Control System;
(vi) Providing site requirements support (consumable and non-
engineered supplies);
(vii) Performing freight management (excluding module transportation);
(viii) Providing support to the Project office in Puerto Ordaz; and
(ix) Executing North American inspection and expediting assignments.
9.6.2 Procurement Policy, Procedures and Documents
(a) Contractor will implement and enforce strict compliance with the
following Procurement Policy Guidelines:
(i) A high standard of ethics and fairness will be adhered to in all
dealings with suppliers, manufacturers and contractors;
(ii) Suppliers and contractors will not be requested to submit
quotations if a specific source of supply has already been decided upon;
(iii) All tenders will be evaluated, in strict confidentiality and
with focus on cost; quality; technical performance; delivery; and
continuity of supply and service;
(iv) Primary consideration for supplier or contractor selection and
purchase or contract award will be based on best value comprising
lowest overall cost, best performance, quality, delivery and service;
(v) All purchase orders and contracts will be in writing and will be
fully executed prior to the commencement of work, unless an alternative
method has been approved, such as a commitment confirmed by letter of
award;
(vi) Whenever feasible in order to benefit from economies of scale,
purchase orders and contracts include priced options for the addition
of similar equipment, materials or services;
(vii) Competitive bids will be called for all requirements, except
where the Owner (and Contractor) has pre-selected or sole-sourced a
supplier or contractor; and
(viii) Local content will be optimized to the extent practicable to
meet the Owners objectives to utilize Venezuelan suppliers, contractors
and other resources without compromising the Project objectives.
(b) Contractor will implement and enforce strict compliance with
comprehensive Project Procurement Procedures to cover all phases of the
procurement process.
(c) Contractor will develop and use procurement documents and
incorporate into such documents such changes and additions as the Owner
may reasonably require.
(d) Contractor will develop and enforce the use of a unique
identification and control number for each procurement package, which
will serve all disciplines and third parties such as vendors, contractors
and freight forwarders, to properly identify and control correspondence,
billings, payments and package numbering.
9.6.3 Procurement Management
(a) General
(i) Procurement services will be provided by Contractor as disclosed
agent for the Owner and will be based on the established Project
Procurement Procedures and the Project Procurement Plan developed for
the Project.
(b) Procurement Plan:
(i) The procurement plan will contain the following key elements to
ensure goods will be procured and delivered according to Project
procedure and schedule, and will be subject to approval by the Project
Manager and the Owner:
(A) A list of the procurement packages and package identification
number for each package;
(B) The scope/description of required equipment, materials and
services;
(C) The proposed method of procurement and basis of pricing;
(D) Proposed bidders/supply sources;
(E) The schedule of key dates covering: bidders list approval; bid
preparation, issue, receipt, evaluation, and recommendation; Companys
approval; purchase order issue;
(F) Budgeted cost; and
(G) Special considerations.
(ii) The plan will reflect a procurement strategy which optimizes the
use of Venezuelan vendors without compromising the objectives of the
Project.
(c) International Tenders:
(i) International requests for tenders will be conducted as required
for the equipment specified for the Project.
(ii) Other qualified suppliers will be sourced within regional
proximity to Venezuela in order to develop a list of bidders
representing a cross-section of qualified suppliers able to provide
required goods at competitive prices.
(iii) Through its global procurement capabilities and with corporate
offices in over 30 different countries including in North and South
America, Europe, South Africa and Australia, Contractor will source
local suppliers to better serve the interests of the Project as
required.
(iv) All suppliers invited to bid will have been screened or
pre-qualified by Contractor to demonstrate they have a local presence
in Venezuela, or have the facility to provide effective local on-shore
after sales service to the Owner, including the stocking of essential
spare parts.
(d) Approved Bidders List:
(i) The Contractor will produce a Project Approved Bidders List of
companies which have been pre-qualified to submit proposals for
equipment, materials and services.
(ii) The Project Approved Bidders List and associated documentation
will provide a permanent record and justification for the selection of
a specific list of bidders.
(iii) All Vendors and Trade Contractors entered into the Project
Approved Bidders List will be qualified by Contractor by a combination
of the following criteria:
(A) Vendor or Contractor Qualification Questionnaire;
(B) Documentation of past experience with or recommendation from
within the Contractor organization;
(C) Quality Assurance Assessment; and
(D) Specific request by the Owner.
(e) Proposed Countries for Equipment Sourcing:
(i) It is anticipated that the source countries with a supplier base
capable of meeting the equipment requirements will be the USA, Canada,
UK, Finland, Norway, Sweden, Germany, France, Spain, Brazil, South
Africa, Australia, Taiwan and Japan. However the list is not exclusive
and suppliers from other countries will also be considered.
(f) Procurement Register:
(i) A procurement register will be maintained within Contractors
integrated project management and control system (PM+ System)
throughout the
duration of the Project, in order to track and record the status of all
purchases and purchasing activities.
(ii) A procurement log will be maintained to record the source and
value of goods by country, region, county and locale.
9.6.4 Materials Management
(a) Expediting:
(i) The Contractor will develop and implement a comprehensive
expediting plan.
(ii) The expediting plan will include such activities as
participation in all pre-award activities; obtaining fabrication
schedules in an agreed format prior to award; obtaining the suppliers
document index prior to award, utilization of shop inspectors to report
on progress only, and the utilization of the PM+ System in monitoring,
tracking and reporting for all expediting functions.
(iii) The expediting plan for the Project will include as a minimum
the following key information:
(A) PO information consisting of: PO number, supplier, item
description, and the dates for: inquiry issue, bid closing, PO issue,
and contractual deliveries,
(B) Manufacturing locations (suppliers and fabrication shops);
(C) Project schedule requirements;
(D) Suppliers production schedule and fabrication period;
(E) Level, method and frequency of expediting by commodity/equipment;
(F) Lines of communication;
(G) Identification of shops where a full time resident expediting
effort may be necessary;
(H) Personnel support locations and required shop inspection liaison;
(I) Manhour budget control; and
(J) Status reporting.
(iv) Contractor will implement processes and procedures for the early
detection of problems in fabrication, including use of its own and local
inspectors as the means for progress reporting. To accomplish this,
purchasing, expediting and inspection will work closely together.
(v) Supplier production schedules in Gantt chart format suitable for
monitoring progress in suppliers and sub-supplier shops will become
part of the purchase order commitment.
(vi) Expediting of vendor documents will be required and enforced.
Suppliers will be required to complete a Vendor Document Index form.
The Index will list suppliers document, reference number and submission
dates. This information will then be entered into the PM+ system for
tracking and reporting purposes.
(vii) Contractor will prepare and distribute monthly detailed
expediting reports through PM+ and will include as a minimum the
current status of all equipment, materials and vendor data, as well as
forecast and actual delivery dates, dates of last supplier contact and
future contacts. Exception Reports will also be made available to
determine any potential problem areas.
(b) Inspection:
(i) The Contractor will develop a comprehensive inspection plan.
(ii) The inspection plan will comprise the performance of quality
surveillance on a global basis and will be based on the Project Quality
Program.
(iii) The method of application of the Quality Surveillance Program
will be defined in the Project Procurement Quality Surveillance
Procedures and will include the following:
(A) Responsibilities;
(B) Preparation of the project quality surveillance plan;
(C) Definition of quality surveillance levels;
(D) Preparation of quality surveillance assignment packages;
(E) In-plant quality surveillance;
(F) Quality surveillance reporting; and
(G) Non-conformities.
(c) Shipping Release:
(i) The quality surveillance plan (QSP) will be supplemented by the
Manufacturers Inspection and Test Plans (ITPs) that the Contractor will
require to be provided by the suppliers, detailing all aspects of the
manufacturing and testing process plus the applicable codes, standards
and jurisdictional requirements.
(ii) ITPs will be reviewed to the requirements of the PO and
technical specifications to establish the required witness, hold and
review points during the manufacturing process. The ITP will also be
issued to the Owner for review in case any additional inspection points
are required by the Owner.
(iii) If suppliers ITPs are not available or are deemed to be
inadequate a series of Product Specific Verification Plans (PVPs) will
be prepared by Contractor.
(iv) The QSP details the quality surveillance activities to be
performed for each purchase order or contract. The appropriate quality
surveillance levels are established by the inspection supervisor and
the package responsible engineer based on product complexity,
characteristics, type of service, manufacturing complexity and schedule.
(v) The five designated levels of quality surveillance are as follows:
(A) Level 0 - No source quality surveillance. Review and acceptance
of suppliers product certificates and quality documentation only;
(B) Level 1 - Final verification and inspection. This level of
quality surveillance requires final review of quality and certification
documentation, inspection and test records and verification of packaging
and shipping;
(C) Level 2 - Limited scope quality surveillance. This level of
quality surveillance requires the monitoring of manufacturing,
inspection and testing activities at predetermined verification points
designated as Witness and Hold points on the suppliers ITP;
(D) Level 3 - Full scope quality surveillance. This level of quality
surveillance requires the frequent monitoring of manufacturing,
inspection and testing activities performed during visits to the
supplier on a regular basis while the work is in progress. The
frequency of visits will be in relation to the manufacturing activities
and the quality performance history of the supplier;
(E) Level 4 - Continuous quality surveillance. This level of quality
surveillance is required when the supplier is continuously fabricating
critical equipment. A resident quality surveillance inspector will
continuously monitor manufacturing, inspection and testing operations
and verify the required records.
(vi) The resources used by the Contractor for quality surveillance
functions will be the inspectors assigned to the Project and located
both in the Contractors Toronto office. In addition the resources for
inspections conducted globally (outside of Argentina) will be provided
by the Contractors global resources supplemented by personnel from its
associated companies as necessary.
(d) Site Materials Control:
(i) Contractors project management approach relative to the control
of equipment and materials once such are delivered to the Site,
including the receipt and inspection of goods at Site, the reporting of
goods received, the overages, shortages and damages to goods, the
storage, warehousing and related operations, the custody transfer of
goods free-issued to Trade Contractors, and the status reporting, will
be coordinated and integrated with the activities of CM Consultants
construction management team at Site. Contractors procurement, however,
is responsible for initiating all claims against the insurer or the
supplier as the case may be, resulting from loss or damage, and short
shipments, and for preparing and submitting such claims together with
all supporting documentation.
(ii) The Contractor PM+ system will be used to track, monitor and
control equipment and materials delivered to the Site.
(e) Tracking and Monitoring System:
(i) The Contractor will use the relational database system within its
PM+ system to track and monitor expediting, shop inspections, as well as
freight movement, including freight, handling of short shipments, loss
or damages and other critical tracking activities.
9.6.5 Contract Management
(a) General
(i) Contractor will provide contracting services as disclosed Agent
for the Owner. Contracting services will include the same services as
described herein for procurement services, except that they will be
related to the acquisition of construction services.
(ii) Contracts administration and management will be established in
the Contractors Toronto office and provide direction and have overall
responsibility for the activities related to the contracting of
services for the Project. A contract administration function will also
be established at Site by CM Consultant under the CM Consultant
Contract, which function will be coordinated by and integrated with the
services of the Contractor.
(iii) Functions and activities of contract administration will
comprise confirming the Project contracting strategy in cooperation
with the other Project disciplines, prepare policy and procedures,
prepare model contract including the general, special and commercial
conditions of contract, instructions to tenderers, schedules and
appendices, finalize tender document preparation. All such documents
shall be submitted to the Owner for its review and approval before they
are used, and the Contractor will incorporate such changes and additions
as the Owner may require.
(iv) In collaboration with the Owner, Contractor will conduct onshore
information meetings for prospective contractors and local qualified
business enterprises to promote local participation in tenders.
(v) Other pre-award contracting activities will include the
pre-qualification of tenderers, issue of tenders, holding pre-bid
information meetings at Site receive bids, evaluate bids in conjunction
with engineering for technical evaluations, recommend, negotiate and
award contracts, all subject to the Owners review and approval.
(vi) In the acquisition of contracting services, the same
consideration will be given as in the procurement of goods, to optimize
local content without compromising the project goals and to provide
local qualified business enterprises with opportunities for
participation in the Project execution either directly or as
subcontractors to the prime contractors, in accordance with the Owners
objectives.
(b) Contracting Plan:
(i) The pre-award contracting plan will reflect the contracting
strategy as described above. The plan will contain the following key
elements to ensure that services to be tendered will be provided
according to Project requirements, Applicable Laws, labour relations,
health and safety, work interface between packages, custody transfer of
goods procured by Contractor, budget and schedule. The plan will be
subject to approval by the Project Manager and the Owner, and for each
contract package will include:
(A) The scope/description of required equipment and materials;
(B) The proposed method of contracting/basis of pricing;
(C) Proposed bidders/number of bidders/contracting source for each
package;
(D) The schedule of key dates covering: bidders list approval; bid
preparation, issue, receipt, evaluation, and recommendation; Companys
approval; contract negotiation and award;
(E) Budgeted cost; and
(F) Special considerations.
(ii) The post award contracting plan will include the following
activities immediately following the award: the preparation and
execution of conformed contracts, securing, registering and
administering all contractor securities, insurances, deposits and
guarantees on behalf of the Owner. Shortly thereafter expedite receipt
of contractor deliverables, verify that deliverables comply with
contract requirements, hold a kick-off meeting with the contractors,
review contractors mobilization plans, review 90day schedules, obtain
contractors cash flow forecast, establish standard formats for
contractors progress reporting and invoicing.
(c) Contract Administration:
(i) Once Trade Contract awards are made, the Trade Contracts will be
administered by the Contractors contract administrator in Toronto until
all documents listed above to be provided by the Trade Contractor have
been delivered and the Trade Contractor has mobilized his resources at
Site.
(ii) Once the Trade Contractor is on Site, contract administration
will be transferred in an orderly manner by the Contractor to the field
contract administrator designated by CM Consultants Construction Manager
at Site. Thereafter the administration and progress monitoring of the
Trade Contract and payments through to completion and close-out will be
performed in the manner described hereunder.
9.7 [Intentionally deleted]
9.8 O&M Manuals
9.8.1 The Contractor shall cooperate fully with the Owners other
consultants (O&M Consultants) who are responsible for the preparation
and provision of the O&M Manuals and Plant Operations Manual. In
addition, the Contractor shall:
(a) promptly when requested by the O&M Consultants, provide the O&M
Consultants with such information and documentation as they may require
to prepare and finalize the O&M Manuals and Plant Operations Manual;
(b) review draft O&M Manuals and draft Plant Operations Manual and
provide comments and recommendations regarding any errors, mistakes or
omissions of which the Contractor is or should be aware, and identify
any conflicts with design, specifications or documentation provided by
the Contractor or the Trade Contractors to the Contractor; and
(c) mark-up, and provide to the Owner and O&M Consultant, copies of
the O&M Manuals, Plant Operation Manual, and training plans with the
final result of all adjustments, alterations and other modifications
made to the equipment, components, subsystems and systems during
Commissioning or otherwise prior to Industrial Completion, including to
incorporate all corrections, adjustments, changes, comments and
additional information and data as may be made or obtained during the
Tests on Completion, Tests after Completion or Performance Tests.
9.9 Training
9.9.1 The Contractor shall assist the Owner in the development of
detailed and comprehensive training programs (collectively and
individually Training Program) to be provided by the Trade Contractors
and the O&M Consultant for the O&M Personnel, such that the Training
Program shall be adequate for training O&M Personnel in all aspects of
the operation and maintenance of the Project as a whole, and of all
equipment, subsystems, systems, structures and other parts of the
Project.
10. LOCAL CONTENT AND INDIGENOUS PEOPLES PLAN
10.1 Local Content and Socio-Economic Development
10.1.1 The Contractor acknowledges that the Owner wishes to, and the
Contractor agrees that it shall through the procurement policies it
develops for the Project, promote and maximize the socio-economic
development of the local and Indigenous People in the region in which
the Site is located, including promoting and maximizing regional
content through local hires, purchases, rental of equipment and
utilization of local contractors and suppliers.
10.1.2 The Contractor shall, in the performance of the Services,
include in the tender documents for the Trade Contracts and in the
Trade Contracts, requirements that Trade Contractors in the performance
of their Trade Contracts:
(a) to the extent that it does not increase the cost to or the time
for performance of the Trade Contracts, maximize the use of qualified
labour and suitable construction equipment, other equipment, materials,
products and supplies that are produced, manufactured or sourced firstly
in and from local communities in the region and secondly from Venezuela;
(b) where reasonably and economically practicable, and subject to
compliance with the terms and conditions of any applicable collective
agreements, maximize the use of personnel, services, consultants and
contractors resident firstly in the region and, secondly, in Venezuela,
and in particular the amount of labour hired from Indigenous People
resident in the region in which the Site is located who have the
requisite qualifications and experience; and
(c) give manufacturers, suppliers and contractors available in
Venezuela a fair and reasonable opportunity to tender or quote for
Trade Contracts.
provided that the use of such construction equipment, other equipment,
materials, products, supplies, personnel, service providers,
consultants, manufacturers, suppliers and contractors does not
adversely affect the cost of or schedule for performing the Trade
Contracts or completing the Project and taking into account price,
quality, reliability, reputation and schedule, and provided further
that the giving of such preference to local content is not contrary to
Applicable Laws.
10.1.3 [Intentionally deleted already covered in SA 6.1.5].
10.1.4 The Contractor will monitor, or cause the CM Consultant to
monitor, the Trade Contractors compliance with the requirements of this
GC 10. The Contractor shall cooperate with the Owner and allow the Owner
full access to all records and documentation of the Contractor as
reasonably required by the Owner to verify and establish that the
Contractor is using reasonable efforts to promote local, regional,
Indigenous Peoples and socio-economic development as required by this
GC 10.
11. PROTECTION OF THE ENVIRONMENT
11.1 General
11.1.1 In respect to pollution prevention, pollution abatement and
environmental protection the Contractor shall, in the provision of
engineering, procurement and other Services, cause the Project, and the
manner and method of operating and maintaining the Project, to conform
to best management practices taking into account World Bank Guidelines
and Equator Principles, as well as the "International Cyanide
Management Code For the Manufacture, Transport, and Use of Cyanide In
the Production of Gold" developed by a multi-stakeholder Steering
Committee under the guidance of the United Nations Environmental
Program (UNEP) and the then- International Council on Metals and the
Environment (ICME).
11.1.2 The Contractor, however, is responsible for developing from the
Owners Environmental Management Plan, the comprehensive procedures and
policies that are to be complied with by the Trade Contractors during
the Project Execution Phase of the Project.
11.1.3 The Contractor shall include in all Trade Contracts requirements
that Trade Contractors shall comply with:
(a) all provisions, terms and conditions of all Permits, Licences and
Approvals, and all Applicable Laws, relating to the protection of the
environment;
(b) all environmental guidelines, requirements and directions of
Governmental Authorities;
(c) everything contained in the Environmental Management Plan; and
(d) all environmental guidelines, requirements and directions of the
Owner, acting reasonably, issued pursuant to and in all events consistent
with the Applicable Laws and all Permits, Licences and Approvals.
11.1.4 The Contractor shall perform its Services, and include in the
Trade Contracts provisions requiring Trade Contractors to perform those
Trade Contracts, in such a way as to minimize any disturbance, damage or
impairment of or to the environment and, if some disturbance, damage or
impairment is inevitable, then to within such limits as may be
prescribed by Applicable Laws and the Permits, Licences and Approvals.
Without limiting the generality of the foregoing, the Contractor shall
not alter, damage, destroy, remove or clear trees, timber or shrubs, or
disturb flora, fauna or watercourses, or allow Trade Contractors to do
so, to any extent greater than necessary for the proper performance of
the Services and completion of the Project, including in strict
accordance with the requirements of the Governmental Authorities.
11.1.5 The Contractor shall not, in violation of Applicable Laws or
Permits, Licences or Approvals, through its design, engineering or
procurement, cause the discharge, or knowingly or willingly allow any
Trade Contractors to discharge, any substance into the environment
(excluding only normal combustion exhaust emissions from Trade
Contractors equipment which are within permissible levels in accordance
with best environmental management practices).
11.1.6 [Intentionally deleted].
11.1.7 The Contractor shall, unless otherwise instructed in writing by
the Owner, use all reasonable efforts to include in each Trade Contract
a provision that the Owners Representative and each and all
representatives and employees of the Owner, Contractor and CM
Consultant shall have authority, without cost to the Owner, to order
the Trade Contractor (by notice to the Trade Contractor or any of its
personnel or workers) to immediately cease any or all activities which
are causing or that may cause damage, disturbance or impairment to or
of the environment that is in breach of or in excess of that allowed by
any Applicable Laws, the Environmental Management Plan, the Owners
Requirements or any Permits, Licences and Approvals. The Contractor
shall immediately comply with, and require and cause the Trade
Contractors at their own cost to comply with, such direction and shall
not re commence such activity or activities or allow such activity or
activities to recommence until after the Contractor or Trade
Contractor, as applicable, has demonstrated that the activity directed
to be ceased can be resumed and completed without damage, disturbance
or impairment to or of the environment that is in breach of or in
excess of that allowed by the Permits, Licences and Approvals, by the
Applicable Laws, by the Environmental Management Plan or Owners
Requirements.
11.1.8 The Contractor confirms that it is familiar with or, prior to
finalizing any Trade Contract, will become familiar with, all
Applicable Laws and requirements of all Governmental Authorities which
relate to environmental requirements or restrictions in relation to the
development, construction and operation of the Project. Subject to the
Owners responsibilities for obtaining the ESIA Approval in Venezuela
and the Permit to Construct, the Contractor shall obtain, or through
the CM Consultant or Trade Contractors cause to be obtained, all
Permits, Licences and Approvals required for the performance of the
Services or the performance by Trade Contractors of their Trade
Contracts, and shall then comply strictly with and cause Trade
Contractors to comply strictly with the requirements of all such
Permits, Licences and Approvals.
11.2 [Intentionally deleted]
12. QUALITY ASSURANCE
12.1 General Requirements
12.1.1 The Contractor shall develop and implement a quality assurance
plan (Quality Assurance Plan), including a quality assurance program,
quality control program and quality assurance manual (QA Manual), that
embodies all quality assurance and quality control requirements for all
parts of the Project, including for design, engineering, procurement,
construction and Commissioning, sufficient to ensure that the Facility
will be of high quality, high reliability, low maintenance and meet all
requirements of the Contract.
12.1.2 The Contractor shall ensure the quality assurance and quality
control programs of all Trade Contractors conform to and comply with
the requirements of the Contractors Quality Assurance Plan and QA
Manual. The Contractor shall ensure that all Trade Contractors receive
a copy of the Quality Assurance Plan and QA Manual, and also ensure
enforce strict compliance with the Quality Assurance Plan and QA Manual
by all Trade Contractors and all Contractors Personnel.
12.1.3 The Quality Assurance Plan and QA Manual shall be submitted to
the Owner for review within 30 days after the Date of Contract. The
Contractor shall make such changes and additions to the Quality
Assurance Plan and QA Manual as the Owner may reasonably require. The
Contractor will nominate a quality assurance manager to monitor and
enforce compliance with the Quality Assurance Plan and QA Manual by
both the Contractor and all of its Trade Contractors.
12.1.4 The Contractor has provided the Owner with a sample quality plan
and QA manual from a comparable contract for another project and
represents, warrants and agrees that the Quality Assurance Plan and QA
Manual developed and implemented by the Contractor for this Project
shall be as or more comprehensive, and to the same or better standard
of quality and completeness, as the sample quality plan and QA manual
provided to the Owner. The Contractor acknowledges that the Owner has
relied upon this representation and warranty by the Contractor in
awarding this Contract to the Contractor.
12.2 Quality Assurance Plan
12.2.1 The Quality Assurance Plan shall contain all quality assurance
procedures necessary to perform the Project including the following
requirements:
(a) an organisation chart for the Contractor's on-site and off-site
establishment;
(b) a detailed description of each staff/management position;
(c) a description of responsibilities and accountabilities for each
position;
(d) a description of the responsibilities and authorities of off-site
management/corporate personnel and on-site project management personnel;
(e) the method of preparation, implementation and control of the
Quality Assurance Plan;
(f) provision for review of the Contract in terms of the Contractor's
corporate quality assurance policy and procedures;
(g) a quality assurance review and sign-off internally by the
Contractor in the process of tendering;
(h) provisions for document control with 2 copies of the Quality
Assurance Plan and any subsequent amendments and revisions to be
provided to the Owner;
(i) provision of a drawing register recording drawing numbers, titles,
revision status, date received and issued, drawing status;
(j) provision for updating on a regular basis and recording of updates;
(k) development of a division of responsibility chart to identify the
documents to be controlled, including but not limited to the following:
(i) this Contract and any related contracts;
(ii) the Quality Assurance Plan;
(iii) third party agreements -Trade Contractors, subcontractors,
suppliers, consultants and special contract personnel;
(iv) testing records;
(v) records of statutory reports and record book entries;
(vi) the Owner's site instructions;
(vii) Contractor's site instructions;
(viii) plan audit documentation;
(ix) variation documentation for this Contract and the Project, including
documentation relating to variations to the Scope of Services;
(x) correspondence registers, both incoming and outgoing, with a separate
register for the Owner correspondence; and
(xi) for each of the above document classifications the chart is to define
the person/position responsible for each of the following actions:
(A) preparation;
(B) review;
(C) approval;
(D) issue; and
(E) distribution;
(l) purchasing/procurement procedures:
(i) consultants;
(ii) subcontractors; and
(iii) suppliers;
(m) purchasing/inventory control;
(n) inspection and testing of supplies and services;
(o) handling, storage, packaging and delivery control;
(p) quality records;
(q) contract filing;
(r) quality audits;
(s) training;
(t) servicing and maintenance of plant and equipment;
(u) procedures for review of the Quality Assurance Plan and periodic
reporting;
(v) development of flow charts for all functions in the Project; and
(w) quality interaction with the Owners quality assurance practices
and procedures.
13. HUMAN RESOURCES AND INDUSTRIAL RELATIONS PLAN
13.1 General
13.1.1 The Contractor shall prepare, implement and comply with the
Human Resources and Industrial Relations Plan, which:
(a) shall be submitted to the Owners Representative when the
Contractor has considered that it has achieved Completion of the
Project Definition Phase;
(b) complies with the requirements for the Human Resources and
Industrial Relations Plan set out in the Schedule of Plan Requirements;
and
(c) shall be a Human Resources and Industrial Relations Plan that has
been approved by the Owner.
13.2 Human Resources and Industrial Relations Plan Requirements
13.2.1 The Human Resources and Industrial Relations Plan shall contain
all human resources and industrial relations policies and procedures
necessary to manage Trade Contractors, subcontractors and employees in
the execution of the Project in accordance with this Contract,
including:
(a) Human Resources Strategy;
(b) outline strategy to complete works without industrial relations lost time;
(i) outline strategy to ensure no industrial relations exposure to the Owner
operations;
(ii) type of industrial relations regulation to apply;
(iii) details of rates of pay and all applicable payments plus details of
labour rate escalation;
(iv) employment conditions; and
(v) advise of other awards or registered industrial relations agreements
which are binding on the employing company;
(c) Recruitment
(i) recruitment procedures and compliance with the Owner authorization
process where required;
(ii) reference checking process;
(iii) standard selection criteria; and
(iv) induction;
(d) Employee Relations
(i) person who has the accountability for employee relations;
(ii) process to advise the Owner on potential and labour relations issues;
(iii) employer association representation;
(iv) hours of work;
(v) shift rosters and breaks;
(vi) fly in, fly out arrangements;
(vii) details of employee amenities when not supplied by the Owner;
(viii) details of transport arrangements when not supplied by the
Owner;
(ix) grievance procedures;
(x) disciplinary procedures;
(xi) communications with employees;
(xii) procedure for dealing with union right of entry;
(xiii) procedure for dealing with union meeting requests;
(xiv) employee assistance programmes;
(xv) assessment of fitness for work;
(xvi) equal employment opportunity; and
(xvii) acknowledgment of application of relevant site policies and
procedures;
(e) Personnel
(i) labour force by trade classifications and numbers for the
duration of the Contract;
(ii) next of kin contacts; and
(iii) licence records and management;
(f) Employee Relations Risk Assessment
(i) risk assessment of industrial relations risks to be provided; and
(ii) provide details of strategies to address risks;
(g) Subcontractor Management
(i) contractual clauses requiring employee relations plans for
subcontractors;
(ii) names of all proposed subcontracting organisations; and
(iii) employee relations plans for subcontracting organisations; and
(h) Audit
(i) outline the process for the Owmer to audit compliance with the
Human Resources and Industrial Relations Plan.
14. AUDIT OF PLAN COMPLIANCE AND PROJECT CONTROL
14.1 General
14.1.1 The Contractor shall keep and maintain an adequate internal
control system and records, to monitor the implementation of the
following plans and manuals and their effectiveness, using jointly
agreed measures:
(a) the Environmental Management Plan;
(b) the Safety and Health Plan;
(c) the Human Resources and Industrial Relations Plan;
(d) the Quality Assurance Plan;
(e) the Indigenous Peoples Plan; and
(f) the Project Procedures Manual.
14.1.2 The Contractor shall ensure that the internal control system and
all records referred to in this Section 14 are available to the Owner or
the Owners Representative at all times with reasonable notice on an open
book basis, including for examination, audit, inspection, transcription
and copying.
14.1.3 The Contractor shall ensure that the internal control system
described in this Section 14 includes:
(a) a process to capture any departure from the scope or design of
the Project as early as practicable which identifies the
characteristics and status of any departure, including identifying:
(i) the source of the departure and reasons for proceeding;
(ii) any supporting documentation regarding the departure;
(iii) whether the departure impacts upon the cost, time or quality of
the Project and if so, whether the departure can be quantified or
measured on a time basis;
(iv) whether the departure is likely to result in a variation or change
to the Project Cost Estimate, the Approved Project Budget, the Total Project
Cost or the Project Plan;
(v) what flow-on effects, if any, are likely; and
(vi) the effect of not adopting the departure;
(b) a reporting process whereby the Contractor notifies the Owner in
writing of any departure within a seven days of the departure; and
(c) an information transfer process to advise and document any authorized
departure from the Project Cost Estimate, the Approved Project Budget, the
Total Project Cost, the Project Plan or any other cost budgets, schedules or
design documentation produced in relation to the Project.
APPENDIX 3
OWNERS REQUIREMENTS - CA
TABLE OF CONTENTS
Page
1. GENERAL..............................................1
1.1 Introduction and Overall Objective...................1
1.2 Design to Accommodate Future Expansion of Project....1
1.3 Purpose of the Project ..............................1
2. THE PROJECT............................................2
2.1 General Scope of the Project ........................2
2.2 Open Pit Mine........................................3
2.3 Mine Infrastructure and Crushing Area................3
2.4 Processing Plant.....................................4
2.5 Processing Plant Site Services.......................5
2.6 Tailings Storage Project (TSF) and Water Management..6
2.7 Infrastructure, Buildings and Services...............6
2.8 Camp.................................................7
2.9 Site Access..........................................7
2.10 Port................................................7
3. BATTERY LIMITS AND OWNER SUPPLY........................7
3.1 Camp Accommodation...................................7
3.2 Fuel.................................................8
3.3 [Intentionally deleted]............................. 8
3.4 Electricity..........................................8
4. INDIGENOUS PEOPLES CONSIDERATION.......................9
4.1 General..............................................9
5. TRAINING AND O&M MANUALS...............................9
5.1 O&M Manuals..........................................9
Appendix 3
OWNER'S REQUIREMENTS
1. General
1.1 Introduction and Overall Objective
(a) These Owner's Requirements specify the purpose, the general objectives
and scope of the Project, the design, technical and functional criteria, and
the other requirements for the Project to be achieved, met, provided and
satisfied by the Contractor for the Project.
(b) Section 3 of the Owner's Requirements also defines the extent of the
equipment, work and services to be provided by the Owner. Except where
specific equipment, work or services are clearly and expressly stated to be
provided by the Owner in Section 3 herein, all equipment, work, services and
everything else required to execute and complete the Project and to meet all of
the Performance Guarantees shall be provided or procured by the Contractor or
the CM Consultant.
(c) The Owner is contracting for, and the Contractor is contracting to
provide, the Services (all as more particularly described in the Contract)
required to complete the Project and to achieve the Performance Guarantees
under the Contract, all on, in accordance with and subject to the provisions
of the Contract.
1.2 Design to Accommodate Future Expansion of Project
(a) The layout and design of the Project shall allow the Project to be
expanded in future without any major relocation of permanent facilities or
infrastructure and taking into account Owner's need to minimize adverse effects
on the continuous operation of any part of the Project. The layout and design
shall avoid or minimize interference with and allow flexibility for future
expansion of the Plant (but this does not require inclusion or sizing of
equipment for the Plant to accommodate future expansion).
1.3 Purpose of the Project
(a) The purpose of the Project is to extract gold from ore in an
environmentally sound manner from a complete, safe, functional, fully
operating, reliable and efficient gold mine operation over the entire
projected minimum life of 20 years when operated and maintained in accordance
with Mining Industry Standards, Prudent Industry Practice and the O&M Manuals,
that meets the Performance Guarantees, and that is designed and constructed to
a standard of quality, performance and reliability that conforms to the
requirements of the Contract, Mining Industry Standards and Prudent Industry
Practice. The purpose of the Project is also, through expansion of the
Project, to process ore from additional reserves or concessions that may in
future be acquired by the Owner or its affiliates, such that the Project shall,
with appropriate maintenance and upgrading as and when required for that
purpose, have a useful life well in excess of the projected life of the mine
itself.
2. The Project
2.1 General Scope of the Project
(a) The Project will generally consist of the development of a new large open
pit mining operation, copper and gold process plant facilities, plant site
infrastructure, port site infrastructure, services and utilities. The mineral
deposit and contemplated project are located in Bolivar State, Venezuela. The
nearest port city is Puerto Ordaz, some 390 km north of the Site.
(b) The Project is based on an assumed ore reserve estimated by or on behalf
of the Owner to be 485 Mt at a gold grade of 0.68 g/t and a copper grade of
0.13% with a strip ratio of 1.97 tonnes of waste per tonne of ore.
(c) Oxide saprolite ore, sulphide saprolite ore and sulphide ore are mined
and delivered from the open pit to separate crushing facilities, i.e. an oxide
saprolite roll crusher, sulphide saprolite roll crusher and primary gyratory
crusher for sulphide ore.
(d) The proposed process plant, based on a hard rock ore capacity of 70,000
t/d, will use crushing as noted above; semi-autogenous grinding and ball
milling; gravity recovery for coarse gold; rougher flotation, regrinding and
cleaner flotation; cyanidation of cleaner scavenger tailings and oxide
saprolite, gold and silver recovery by carbon-in-pulp adsorption, stripping,
electro-winning and smelting; copper concentrate filtering; cyanide
destruction.
(e) The Owner does not intend to pioneer new technologies, use equipment that
is obsolete, use one of a kind equipment or equipment that has never been used
successfully in the industry. The Flowsheet design, mineral processing
equipment and support facilities are to use that of proven technologies and
standard equipment. Design, equipment operation and maintenance are required
to be as simple as reasonably possible.
(f) There will be two means of access to the site from the existing Highway
10. The primary access road will run about 14 km to the process site and the
newly proposed camp site will consist of a new segment and upgrade of an
existing road. The secondary access road from Highway 10 connecting to the
primary access road and to the open pit mine site will consist of a new
segment and upgrade of an existing road.
(g) An existing 400 kV power line passes close to the site and a new
substation was constructed in 2001 to serve the area. Power will be delivered
to the Site via approximately 5.5 km of 230 kV line.
(h) The anticipated overall timeframe for the Project is as set out in
Appendix 8.
(i) The Project has a design life of 20 years, including a Plant designed to
produce gold bullion and copper concentrate by the treatment of 70,000
tonnes/yr of hardrock ore, Tailings Dam having an impound capacity of not less
than 485 million tonnes with a deposition rate of 29.2 tonnes/yr and operating
24 hours per day, 7 days per week, return water dam, water storage dam, stores,
camp including administrative and living quarters, and associated
infrastructure, all for a mine production exceeding 109 million tonnes/yr and
reaching 29.2 million tonnes/yr of ore. Infrastructure will consist of water
supply and distribution, buildings (administration offices, change houses,
control room, motor control centres, laboratory, Plant, shops and stores),
roads and walkways within the Site, and the upgrade of access roads to the
Site. The Project will include a Tailings Dam. The Project shall be
designed and built to conform to and meet Prudent Industry Practice and all
Applicable Laws, and will comply with World Bank Guidelines and the Equator
Principles.
2.2 Open Pit Mine
(a) The Project includes the design, engineering and development of the Open
Pit, which will be done by others for the Owner and is excluded from the
Services under this Contract, except for those specific services in relation
to the pit and pit dewatering system that are expressly made part of the
Services to be provided by the Contractor.
(b) The following parts of the Project will be provided by others directly
for the Owner:
(i) Design of the Open Pit;
(ii) Locating the pit dewatering wells;
(iii) Purchasing of mining equipment for Open Pit operations (i.e. drills,
shovels, trucks, bulldozers);
(iv) Pre-stripping operations.
2.3 Mine Infrastructure and Crushing Area
(a) The Mine Infrastructure and Crushing Area parts of the Project will
consist of the following:
(i) Mine Truck Shops, Mine Offices, Warehouse and Maintenance Building c/w
Truck Wash;
(ii) A Mine Dry located within the Mine Truck Shop facility consisting of
appropriate segregated male and female dirty and clean change facilities,
lockers and washrooms;
(iii) Truck Wash Water Tank and supply system;
(iv) Potable Water Tank and distribution system;
(v) Fire Water Tank and distribution system;
(vi) Mine Fire Pumphouse;
(vii) Tank Farm for Glycol, Hydraulic Oil, Waste Oil, Solvent and
Engine Oil;
(viii) Gasoline Tank and Dispensing Project;
(ix) Diesel Oil Tank and Dispensing Project;
(x) Sewage Treatment Plant;
(xi) Explosives Storage Areas (Storage Facilities by Explosives
Supplier);
(xii) Explosives Area Guardhouse;
(xiii) Pit Dewatering Wells;
(xiv) Sediment Control Ponds;
(xv) Primary Crusher c/w Rock Breaker;
(xvi) Primary Crusher Discharge Conveyor;
(xvii) Sulfide Saprolite Stockpile Area and Crushing Station;
(xviii) Crushed Saprolite Belt Conveyor;
(xix) Stockpile Feed Conveyor;
(xx) Powerlines and related facilities; and
(xxi) Access Roads.
2.4 Processing Plant
(a) The Processing Plant part of the Project will consist of the
following:
(i) Oxide Saprolite Stockpile Area, Reclaim Facilities, Feeder and
Crushing Station;
(ii) Oxide Saprolite Coarse Reject Conveyor and Coarse Reject
Stockpile Area;
(iii) Crushed Oxide Saprolite Belt Conveyor;
(iv) Oxide Saprolite Washing Facilities;
(v) Sulfide Ore Stockpile Area, Reclaim Facilities, Feeder and
Crushing Station;
(vi) Two Parallel Grinding Lines c/w SAG Mill, Two Ball Mills and
Cyclone Classification Systems;
(vii) Gravity recovery circuit;
(viii) Flotation circuit c/w Rougher, Scavenger and Cleaner Cells and
Regrind Mills;
(ix) Concentrate Dewatering c/w Concentrate Thickener, Concentrate
Pressure Filter and Filter Cake Conveyor;
(x) Concentrate Storage Bunker;
(xi) Flotation Tailings disposal circuit;
(xii) Cyanidation Leach Tanks;
(xiii) Carbon in Pulp (CIP) circuit;
(xiv) Carbon Stripping and Gold Electro-winning;
(xv) Carbon Regeneration circuit;
(xvi) Gold Refining and associated equipment;
(xvii) CIP Tailings disposal circuit c/w Cyanide Destruction;
(xviii) Tailings pipeline;
(xix) Tailings water reclaim pumping system and Process Water Pond;
(xx) Reagent storage, mixing and delivery system; and
(xxi) Compressed air system.
2.5 Processing Plant Site Services
(a) The Processing Plant Site Services part of the Project will
consist of the following:
(i) Fresh water supply from Mine Dewatering Pumps;
(ii) Fresh water demineralization;
(iii) Fire water storage/distribution;
(iv) Process water storage/distribution;
(v) Pump gland seal water distribution;
(vi) Power supply;
(vii) Sewage Treatment Plant;
(viii) Standby power;
(ix) Communications; and
(x) Computers, including support systems.
2.6 Tailings Storage Project (TSF) and Water Management
(a) The Tailings Storage Project (also referred to as the Tailings Dam) and
Water Management parts of the Project will consist of the following:
(i) TSF starter dam, including conceptual design for subsequent dam raising;
(ii) Reclaim pump barge and decant structure;
(iii) Site water management ponds, sediment control facility, including various
collection pond dams;
(iv) Plant site spill collection and containment;
(v) Plant site drainage collection and pumping; and
(vi) Water diversion around TSF, if required;
2.7 Infrastructure, Buildings and Services
(a) The Infrastructure, Buildings and Services parts of the Project will
consist of the following:
(i) Administration Office Building;
(ii) Plant Maintenance and Warehouse Building c/w Shop, Warehouse, Offices,
Covered Storage, Doctor's Office and Infirmary, Training Room, and Emergency
Response Vehicle Storage;
(iii) A Mill Dry facility consisting of appropriate segregated male and female
dirty and clean change facilities, lockers and washrooms;
(iv) Storage and laydown areas;
(v) Laboratory;
(vi) Reagent Storage Building;
(vii) Gasoline Fuel Storage and Dispensing Project;
(viii)Diesel Fuel Storage and Dispensing Project;
(ix) Guardhouse and security features;
(x) Truck scale;
(xi) Site roads, drainage and grading including Conveyor Maintenance Road and
Haul Road from Mine to Tailings Area;
(xii) Plant site security fencing and access gates; and
(xiii)Power supply from EDELCA's local substation.
2.8 Camp
(a) The Camp for the Project will consist of the following:
(i) 1200 person construction camp;
(ii) 600 person permanent camp for life of mine operations, maintenance and
service supplies;
(iii) Potable Water Tank and distribution system;
(iv) Camp Fire Protection water storage and distribution system;
(v) Sewage Treatment Plant; and
(vi) Power supply.
2.9 Site Access
(a) Site access will consist of two Site access roads from Highway 10.
2.10 Port
(a) The port facilities that are part of the Project will consist of:
(i) Concentrate Receiving Project;
(ii) Concentrate Storage Building; and
(iii) Concentrate Reclaim and Ship Loading Facilities.
3. Battery Limits and Owner Supply
3.1 Camp Accommodation
(a) The Contractor may, during site visits permitted under this Agreement,
use any existing camp facilities of the Owner at Site until the permanent
accommodation facilities are completed by Trade Contractors managed and
supervised by the Contractor. Access and use of such facilities shall be
coordinated with the Owner and are subject to space availability.
(b) When completed, the permanent accommodation facilities will be made
available to the Contractor, for the purpose of accommodating personnel on site
visits permitted under this Agreement, by the Owner. Accommodations must be
reserved for up to 350 of the Owner's mine operations and maintenance employees
when they start up mining activity approximately one year before Mechanical
Completion
(c) All accommodation and catering facilities provided by the Owner as
provided above shall be made available to the Contractor on an "as available
basis" up to a maximum of 20 beds, and the Contractor acknowledges and agrees
that first priority to the accommodation and catering facilities will be given
to the Owner's Personnel.
(d) The Contractor shall arrange for any additional accommodation facilities
that it may require for the Contractor's Personnel during site visits permitted
under this Agreement,.
(e) The Contractor shall coordinate the occupancy and use of the Owner's
temporary and permanent accommodations and catering facilities with the Owner.
The Contractor shall provide a schedule of the expected occupancy to be catered
for based on best monthly estimates and divided into the numbers anticipated in
the categories of senior personnel, junior personnel and artisans. Unless
otherwise agreed, at the beginning of each month the Owner will advise the
Contractor of the Owner's camp accommodation and catering facilities that will
be available to the Contractor in that month for use by the Contractor.
(f) The Contractor confirms and agrees that it has used and is already fully
familiar with the accommodations and catering facilities provided at the
temporary camp, and these accommodations and facilities are satisfactory and
acceptable to the Contractor. The Contractor confirms and agrees that the
permanent accommodation facilities, once completed by the Contractor and once
permanent camp catering has commenced at those facilities, will be satisfactory
and acceptable to the Contractor.
(g) The Contractor will be responsible for damage to camp facilities caused
by the Contractor's Personnel other than ordinary wear and tear.
3.2 Fuel
3.3 [Intentionally deleted]
3.4 Electricity
(a) The Contractor is responsible for the design and procurement of the new
powerline from the existing substation near the Site to the Site, and for the
emergency electrical power generating facility at the Site.
4. Indigenous Peoples Consideration
4.1 General
(a) The Owner desires to promote and maximize the socio-economic development
of the Indigenous People in the region in which the Site is located, including
promoting and maximizing regional content through local hires, purchases,
rental of equipment and utilization of local contractors and suppliers.
5. Training and O&M Manuals
5.1 O&M Manuals
(a) The Owner requires two sets of O&M Manuals for each piece of equipment for
development of the Training Program. In addition, the Owner requires two sets
of the final O&M Manuals ("Final O&M Manuals"), complete and detailed in all
respects and incorporating the final result of all adjustments, alterations and
other modifications made to the equipment, components, subsystems and systems
since the date the draft O&M Manuals were submitted to the Owner, and
incorporating all corrections, adjustments, changes, comments and additional
information and data as may be made or obtained during the Tests on Completion.
APPENDIX 4
OWNER SUPPLY
The Owner is responsible for providing (or causing to be provided) the
following items (Owner Supply) without cost to the Contractor:
1. Existing Feasibility Study design drawings, in electronic format.
2. Existing topographic surveys, in electronic format.
3. Topographic surveying to the extent reasonably required for the
Contractor to perform its Services. If the Contractor advises
additional topographic surveying is required for the Contractor to
properly provide its Services, the topographic surveying will be
contracted by the Owner or an affiliate thereof to a Venezuelan firm
agreed to by the Owner and the Contractor.
4. Environmental and Social Impact Assessment Study for the Project,
as prepared by the Owner or an affiliate thereof and submitted to the
Governmental Authorities to obtain the necessary Permits, Licences and
Approvals for the Project to proceed to the Project Execution Phase.
5. General Environmental Management Plan for the Project, as prepared
by the Owner or an affiliate thereof and submitted to the Governmental
Authorities to obtain the necessary Permits, Licences and Approvals
required for the Project to proceed to the Project Execution Phase.
6. Applying for and obtaining Permits, Licences and Approvals from
relevant Governmental Authorities in Venezuela as required for the
Project in order to initiate general construction.
7. Use of the existing pad for installation of the concentrate
handling and ship loading facilities.
8. Those items expressly specified to be provided by the Owner in the
Owners Requirements.
[Redacted]
COMPENSATION
This Appendix includes the following separate appendices, all of which
are hereby incorporated into and form part of this Appendix 6-
Compensation:
Appendix No. Description
6-1 Contract Price
6-2 Hourly Remuneration
6-3 Eligible Disbursements
6-4 Performance Incentives
Except where otherwise expressly indicated to be in CDN$, all prices
specified in this Appendix 6 are in US$ and are all-inclusive (save and
except Excluded Taxes), including but not limited to all direct,
indirect, overheads, administrative burdens and consequential costs and
expenses.
The application of the prices or amounts contained in this Appendix 6
shall be in accordance with the provisions of the Contract.
APPENDIX 6-1
CONTRACT PRICE
1. CONTRACT PRICE
1.1 As total compensation for its Services, the Contractor will be
paid the aggregate of the following amounts (the Contract Price):
(a) A fee (Fee), comprised of the amount stated in section
(the Base Fee) and, if earned, the
Performance Incentives as defined in Appendix 6-3 Performance
Incentives;
(b) Hourly Remuneration for each of its personnel engaged in the
performance of the Services, at hourly rates for each such personnel as
determined in accordance with Appendix 6-2 Hourly Remuneration; and
(c) Eligible Disbursements.
1.2 The estimated Contract Price as of the Date of Contract is
US$22,768,000 (including the Base Fee but excluding any Performance
Incentives). This estimated Contract Price does not include escalation
beyond March 31, 2005.
2. ANTICIPATED FEE
2.1 Assuming the completion of all Services to be provided under the
Contract, the total Fee to be earned under the Contract (the
Anticipated Fee) is the sum of the Base Fee and the Performance
Incentives.
3. TAXES
3.1 The Contract Price is exclusive of Excluded Taxes, which shall be
paid by the Owner.
(a) Excluded Taxes means GST, VAT, and any Venezuelan withholding
taxes.
APPENDIX 6-2
HOURLY RENUMERATION
[Redacted]
APPENDIX 6-3
ELIGIBLE DISBURSEMENTS
[Redacted]
APPENDIX 6-4
PERFORMANCE INCENTIVES
[Redacted]
APPENDIX 7
SPECIAL CONDITIONS
1.1 General
(a)In the Contract, terms defined in s. 1.2 shall have the meanings ascribed to
them in s. 1.2 unless a contrary intention is indicated.
1.2 Definition (1.2)
(a) "Anticipated Fee" has the meaning given to it in Appendix 6 -
Compensation.
(b) "Approved Project Budget" means the definitive Project Budget established
by the Contractor during the Project Definition Phase as accepted and approved
by the Owner's Representative under this Contract.
(c) "Base Fee" has the meaning given to it in Appendix 6 - Compensation.
(d) "CM Consultant" means the entity that contracts separately with the Owner,
or a corporate affiliate of the Owner, in respect to the provision of certain
construction management, engineering and procurement support, commissioning,
and performance testing services in relation to the Project other than the
Services.
(e) "Completion of the Project Definition Phase" means when all Project
Definition Services have been completed in accordance with the requirements of
the Contract.
(f) "Comprehensive Procurement Strategy" means the comprehensive procurement
strategy to be produced by the Contractor in the Project Definition Stage and
in accordance with the Scope of Services.
(g) "Date for Completion of Project Definition Phase" means the date that is
ninety (90) calendar days after the Date of Contract, as adjusted
(if applicable) under GC 6.1.2.
(h) "Design Review" means the design review produced by the Contractor in the
Project Definition Phase in accordance with the Scope of Services.
(i) "Detailed Design" means the detailed design to be undertaken by the
Contractor in accordance with this Contract and from the Project Definition
Design Documentation to produce all necessary detailed engineering designs and
documentation sufficient for the procurement, installation, construction and
Commissioning of the Project as set out in the Scope of Services.
(j) "Detailed Design Documentation" means the Documentation required to be
prepared by the Contractor from the Project Definition Phase Design
Documentation in order to carry out the Detailed Design, to permit the letting
of Trade Contracts
(k) "Detailed Project Completion Schedule" means the detailed Project
completion schedule, consistent with Appendix 9 - Project Schedule, to be
produced by the Contractor in the Project Definition Phase in accordance with
the Scope of Services, and which is submitted to and accepted by the Owner as
the detailed schedule for the Project.
(l) "Human Resources and Industrial Relations Plan" means the construction
labour management plan to be produced by the EP Consultant in the Project
Definition Phase in accordance with the Scope of Services
(m) "Optional Termination Notice" means any Notice issued by the Owner's
Representative in accordance with s. 1.16(a).
(n) "Project Definition Design" means the Design Review and any other
design to be undertaken by the Contractor in accordance with this Contract to
produce all necessary preliminary designs and documentation sufficient for the
preparation of the Detailed Design for the procurement, installation,
construction and Commissioning of the Project as set out in the Scope of
Services.
(o) "Project Definition Design Documentation" means the Documentation
prepared or required to be prepared by the Contractor in completing the Project
Definition Design.
(p) "Project Definition Phase" has the meaning given to it in Appendix 2 -
Scope of Services.
(q) "Project Definition Services" means the services to be performed by the
Contractor during the Project Definition Phase, including the preparation of
the Project Definition Design Documentation.
(r) "Project Execution Services" as defined in Appendix 1 includes the
performance of Detailed Design and the preparation of the Detailed Design
Documentation (7.1.2(a)) and (for greater certainty) excludes the Project
Definition Services.
(s) "Project Plan" means the detailed Project execution plan to be produced by
the Contractor in the Project Definition Phase in accordance with the Scope of
Services .
(t) "Project Procedures Manual" means the project procedures manual referred
to in s. 1.3 of this Appendix 7a.
(u) "Quality Assurance Plan" means the Project QA/QC system to be produced by
the Contractor in the Project Definition Phase in accordance with the Scope of
Services.
(v) "Resubmission Notice" means any Notice issued by the Owner's
Representative in accordance with s. 1.16(a)(iii).
(w) "Safety and Health Plan" means the environmental health and safety program
to be produced by the Contractor in the Project Definition Phase in accordance
with the Scope of Services.
(x) "Strategy for Communications" means the strategy for communications to be
produced by the Contractor in the Project Definition Phase in accordance with
the Scope of Services.
(y) "Strategy for Electronic Data Management" means the strategy for
electronic data management to be produced by the Contractor in the Project
Definition Phase in accordance with the Scope of Services.
1.3 Representations by Contractor
(a) The Contractor represents to the Owner that it has reasonably examined all
information provided by the Owner relevant to the risks, contingencies and
other circumstances having an effect on the Fee.
1.4 Project Procedures Manual
(a) As part of and prior to the Completion of the Project Definition Phase, the
Contractor shall submit to the Owner's Representative for review and acceptance
a draft Project Procedures Manual which shall clearly set out:
(i) the Contractor's:
(1) administration policies;
(2) organisational structure; and
(3) implementation and control procedures;
(ii) the Contractor's recommendations in respect of planned start-up
procedures for all completion tests and Commissioning of the Project;
(iii) occupational health and safety procedures for the performance of the
Project;
(iv) Site accident notification procedures;
(v) Site safety and security procedures (including fire prevention
procedures and the like);
(vi) procedures for preparing and obtaining approval of all operating and
maintenance manuals (including spare parts lists) and drawings;
(vii) procedures for establishing and using Site amenities;
(viii) procedures for obtaining all Permits, Licences and Approvals
required from Governmental Authorities or by Applicable Laws for the
construction, use, operation and maintenance of the Project;
(ix) such other matters and subjects as may be specified for the Project
Procedures Manual in the Scope of Services; and
(x) any other matters required by the Owner to be included in the Project
Procedures Manual.
(b) The Contractor shall submit the comprehensive draft Project Procedures
Manual in a format and to the level of detail required by the Owner's
Representative.
(c) The Owner's Representative may direct the Contractor to modify the draft
Project Procedures Manual as the Owner's Representative considers appropriate
before giving acceptance of same, in which case the Contractor shall resubmit
a modified draft of the Project Procedures Manual within seven (7) days of the
direction for acceptance by the Owner's Representative.
(d) Once the draft Project Procedures Manual has been accepted by the
Owner's Representative without requiring any further changes, the draft so
accepted shall become the Project Procedures Manual and the Contractor shall
thereafter comply with the Project Procedures Manual when performing the
Services.
1.5 General Requirements Regarding Services
(a) The Contractor acknowledges and agrees that, based on its knowledge of
this Project and its special skill, knowledge and expertise in performing
design, engineering, procurement, and project management services for
projects comparable in nature, size and complexity to the Project, the
Contractor is of the opinion that it knows and understands (and shall be
deemed to know and understand) what is required to complete the Facility and
the Project, and also the Services required of the Contractor under this
Contract, to achieve the objectives of achieving Industrial Completion by the
Date for Industrial Completion and completing the Project within the Approved
Project Budget, and further is of the opinion that it is possible to achieve
the aforesaid objectives. Accordingly, subject to GC 3.3.3 and to the Owner
Supply under Appendix 4 - Owner Supply, the Contractor's task is to design,
engineer, procure, and provide project management for a complete and
operational Facility that is designed in compliance with, and when operated
and maintained in accordance with the O&M Manuals complies with, all
Applicable Laws, Prudent Industry Practice, and that meets and satisfies all
of the requirements of the Contract including the Performance Guarantees
(subject to the limitations of liability contained herein for failing to
achieve the Performance Guarantees) Contractor(3.1.4 - both with
modifications).
1.6 Project Definition Services
(a) Sections 1.7 to 1.16, inclusive shall comprise the Project Definition
Services.
1.7 Commencement and Completion
(a) The Contractor shall provide all of the Project Definition Services and
complete the Project Definition Phase by the Date for Completion of the
Project Definition Phase.
(b) The Owner may in its absolute and sole discretion, at any time and from
time to time, by Notice to the Contractor unilaterally extend the Date for
Completion of Project Definition Phase, but is not required to exercise this
discretion for the benefit of the Contractor.
1.8 Services During Project Definition Phase - General
(a) The Contractor shall, in performing the Project Definition Services:
(i) undertake and complete the Project Definition Design Documentation;
(ii) exercise the standard of care required by GC 3.3.3 to ensure that:
(1) the Project Definition Design Documentation does not contain
errors or defects;
(2) the Project Definition Design Documentation is suitable for
the purposes of preparing the Detailed Design;
(3) the Detailed Design can be completed in a cost effective and
efficient manner and so as to meet the Owner's requirements for the
Project in accordance with the Scope of Services;
(4) the Project Cost Estimate can be determined; and
(5) the Project can be completed in a cost effective and efficient
manner;
(iii) undertake and complete the Project Definition Design Documentation
in accordance with section 1.15 of this Appendix;
(iv) advise the Owner's Representative as to the buildability of the
Project described in, contemplated by, or which can reasonably be inferred
from, the Scope of Services;
(v) provide to the Owner's Representative, as directed by the Owner's
Representative, copies of the Project Definition Design Documentation as
they are being developed including copies of drafts of the Project
Definition Design Documentation (if so directed);
(vi) comply with all Applicable Laws; and
(vii) identify all Permits, Licenses and Approvals required by any
Applicable Laws for the performance of the Services and the completion of
the Project.
1.9 Services During Project Definition Phase - Project Plan
(a) During the Project Definition Phase, the Contractor shall submit to the
Owner's Representative for review and acceptance the Project Plan in both hard
and electronic format, with the latter in MS Project, Primavera or such other
format as directed by the Owner's Representative.
(b) The Contractor shall ensure that the Project Plan, as a minimum, shows and
contains:
(i) the sequence and duration of all activities required for the design,
construction, pre-commissioning, Commissioning and start-up of the Project;
(ii) the calling of tenders and the letting of Trade Contracts;
(iii) on-Site construction and Commissioning activities;
(iv) off-Site fabrication for key materials, Goods and equipment of the
Project (including their delivery times);
(v) each Milestone Date Activity in the Milestone Schedule, as well as
any other key dates for items such as Authorities' approvals and provision
of information;
(vi) completion dates for each of the Trade Contracts and the Project
(including the Date for Industrial Completion and the dates for completion
of the Commissioning tests for the Project);
(vii) sufficient detail of administrative and construction activity to fully
describe the Contractor's planning of the design, construction,
pre-commissioning, Commissioning and start-up of the Project and the method
of achieving the completion dates referred to in GC (b)(vi); and
(viii) an estimated cash flow summary identifying progress claims by
it and all Trade Contractors under the Trade Contracts, including the
following:
(1) dates for each progress claim;
(2) dates proposed for payment for each progress claim; and
(3) dates proposed for release of securities.
(c) The estimated cash flow summary required under GC (b)(viii) shall be
regularly updated by the Contractor to reflect any changes to the Project
Plan and shall be in a suitable form for use by the Owner's Representative
as a means of assessing the rate of progress of the design, engineering,
planning, procurement, construction, pre-commissioning, Commissioning and
start-up of the Project.
(d) The Owner's Representative may reject a Project Plan or require
amendments to be made to it within seven (7) days of receiving a copy of
such Project Plan.
(e) Where a Project Plan is rejected by the Owner's Representative, the
Contractor shall submit a corrected and revised Project Plan within seven
(7) days of being notified that the Project Plan is rejected.
(f) The Contractor acknowledges that review of, comments on or approval of,
or any failure to review or comment on, any Project Plan by the Owner's
Representative will not:
(i) relieve the Contractor from or alter its liabilities or obligations
under this Contract, including the obligation to ensure that the Project
achieves Industrial Completion by the Date for Industrial Completion and
Final Acceptance by the Date for Final Acceptance;
(ii) evidence or constitute a direction by the Owner's Representative to
disrupt, prolong or vary the Project; or
(iii) affect the time for carrying out the Owner or the Owner's
Representative's Contract obligations.
1.10 Project Definition Phase - Project Budget and Project Cost Estimate
(a) During the Project Definition Phase, the Contractor shall submit to the
Owner's Representative for his review and acceptance the draft Project Budget
which shall be in a format approved by and contain the level of detail
reasonably required by the Owner's Representative.
(b) The Contractor shall make such changes to the draft Project Budget as the
Owner's Representative may reasonably require as a condition of its acceptance
by the Owner's Representative. Once accepted, it will become the designated
Approved Project Budget and may not be changed except with the written
agreement of the Owner.
(c) The Contractor shall, unless directed otherwise by the Owner's
Representative, no later than fourteen (14) days before the Date for
Completion of the Project Definition Phase, submit to the Owner's
Representative for his review and acceptance the draft Project Budget which,
among other things, shall:
(i) meet the requirements of the Scope of Services; and
(ii) be in a format approved by the Owner's Representative.
1.11 Quality Assurance
(a) The Contractor shall:
(i) establish (in consultation with the Owner's Representative) the
Quality Assurance Plan by the time the Contractor has considered that it
has achieved Completion of the Project Definition Phase for the performance
of the Services which:
(1) is appropriate to the materials, fabrication, components,
construction and Site maintenance activities;
(2) complies with ISO:9000: 2000 or any amended or substituted
requirements which the Owner's Representative may direct in writing; and
(3) complies with the requirements for the Quality Assurance Plan
set out in the Scope of Services;
(ii) give the Owner's Representative access to the Contractor's and each
subcontractor's quality systems to enable monitoring and quality auditing; and
(iii) comply, and ensure its subcontractors comply, with the Quality Assurance
Plan.
1.12 Site and Public Safety Requirements
(a) The Contractor shall prepare the Safety and Health Plan, including the
site-specific safety program, safety plans and safe work procedures, and a
public safety management plan and the Environmental Management Plan, all as
described in the Contract (including the Owner's Requirements) (Formerly GC
8.4.1 and 7a - SA 1.9).
1.13 Directions and Change Orders during the Project Definition Services
(a) The Owner's Representative may direct a change to the Scope of Services
or the Project Definition Services and GC 2.1, GC 2.3 and GC 15 apply to any
such direction.
(b) If the Contractor considers that any direction issued by the Owner's
Representative may:
(i) adversely affect the ability of the Contractor to perform the
Services or to comply with the requirements of this Contract;
(ii) result in the Date for Completion of Project Definition Phase or the
Date for Industrial Completion or the Project Budget or the latest budget
estimate for the cost of the Services being exceeded; or
(iii) contravene good professional practice or pose a danger to life or
safety, the Contractor shall:
(iv) immediately give Notice to the Owner's Representative;
(v) not commence performance of the direction until receiving
confirmation of the direction by the Owner's Representative;
(vi) advise the Owner's Representative of the manner in which the direction
can be performed or modified to avoid the consequences in GC 1.13, (b)(i)
and (ii).
(c) The Owner's Representative may confirm, vary or revoke the direction.
(d) The rates contained in the Schedule of Rates will apply to any such varied
work or services.
(e) If the Contractor fails to give Notice under 1.13(b)(iv) prior to
following or implementing the direction of the Owner's Representative as
referenced in 1.13(b), the Contractor will be deemed to accept such direction
and agree that such direction does not adversely affect the ability of the
Contractor to perform the Services or to comply with the requirements of this
Contract, does not adversely affect the Date for Completion of Project
Definition Phase, the Date for Industrial Completion, the Project Budget or the
latest budget estimate for the cost of the Services, and does not contravene
good professional practice or pose a danger to life or safety.
1.14 Contractor Shall Keep the Owner Informed
(a) The Contractor shall at all times during the duration of the Project
Definition Phase keep the Owner informed as to whether:
(i) the Project Cost Estimate is likely to exceed the Project Budget;
(ii) Industrial Completion is likely to be later than the Date for Industrial
Completion, or Final Acceptance is likely to be later than the Date for Final
Acceptance; or
(iii) Completion of the Project Definition Phase is likely to be delayed.
(b) If at any time prior to the Date for Completion of the Project Definition
Phase, the Contractor advises the Owner that:
(i) the Project Cost Estimate is likely to exceed the Project Budget; or
(ii) Industrial Completion is likely to be later than the Date for Industrial
Completion, or Final Acceptance is likely to be later than the Date for Final
Acceptance; the Owner shall, within thirty (30) business days from receipt
of that advice: give the Contractor a direction to revise and resubmit within
the period specified in the direction (and if no period is specified, within
fourteen (14) business days of the direction) the Project Cost Estimate so
that it is not likely that the Project Cost Estimate will exceed the Project
Budget; or
(iv) terminate this Contract by giving Notice to the Contractor and
pay to the Contractor, within thirty (30) business days of service of
the Notice, compensation in accordance with Appendix 6 for those
Services that were performed up to the date of termination, including
reasonable costs of demobilization and the pro-rata proportion of the
Fee earned on the Services performed prior to the termination, and the
Owner will not be liable to make any other payment of any nature
whatsoever to the Contractor in respect of compensation for Services
rendered, including without limitation any payment for loss of
anticipated profit.
1.15 Completion of Project Definition Services
(a) On or before Completion of the Project Definition Phase, the
Contractor shall give the Owners Representative all relevant technical,
environmental and commercial documentation required to be produced by
the Contractor to achieve Completion of the Project Definition Phase.
(b) The Contractor shall give the Owners Representative seven (7)
days prior Notice of the date on which the Contractor considers it will
achieve Completion of the Project Definition Phase.
(c) When the Contractor considers that it has achieved Completion of
the Project Definition Phase, the Contractor shall present to the
Owners Representative for the Owners approval (for the purposes of the
Contract collectively called the Deliverables):
(i) the Project Definition Design Documentation;
(ii) the Project Plan;
(iii) the Project Cost Estimate;
(iv) the Project Procedures Manual;
(v) the Human Resources and Industrial Relations Plan;
(vi) the environmental management procedures for implementation of
the Environmental Management Plan (except those portions that the
Owners Representative may direct be deferred until the Project
Execution Phase);
(vii) Trade Contract provisions requiring Trade Contractors to comply
with the Indigenous Peoples Plan (except those portions that the Owners
Representative may direct be deferred until the Project Execution
Phase);
(viii) a Safety and Health Plan;
(ix) a Quality Assurance Plan;
(x) the Project Scope Definition Document;
(xi) the Detailed Project Completion Schedule;
(xii) the Comprehensive Procurement Strategy;
(xiii) the Project Controls System;
(xiv) the Project Cash Flow Strategy;
(xv) the Strategy for Electronic Data Management;
(xvi) the Strategy for Communications; and
(xvii) any other information or documents required to be performed or
provided as part of the Project Definition Services or required by the
Owners Representative and notified to the Contractor prior to
submission of the documents by the Contractor in accordance with this
sub-paragraph.
1.16 Approval of the Project Definition Services
(a) Within thirty (30) business days of the Contractor presenting the
Deliverables, the Owners Representative may, in its absolute and
unfettered discretion:
(i) issue a Notice (an Optional Termination Notice) immediately
terminating this Contract;
(ii) issue a Notice to Proceed With Project Execution Services; or
(iii) issue a Resubmission Notice.
(b) If the Owners Representative issues an Optional Termination
Notice:
(i) the Owner will pay to the Contractor, within thirty (30) days
after the end of the month in which the Optional Termination Notice is
served, compensation in accordance with Appendix 6 for those Services
that were performed up to the date of termination, and the pro-rata
proportion of the Fee earned on the Services performed prior to the
date of service of the Optional Termination Notice;
(ii) the Owner may at its sole discretion elect to proceed with
Project Execution using an alternative contractor in which event the
Contractor will have no right to damages or any other remedy whatsoever;
(iii) the Owner will not be liable to make any other payment of any nature
whatsoever to the Contractor in respect of the Services, including without
limitation any payment for loss of anticipated profit.; and
(ii) subject to the Contractor's entitlement to compensation in accordance
with GC 1.16(b)(i), the Contractor will have no entitlement to make any
Claim against the Owner arising out of or in connection with the termination
of the Contract.
(b) If the Owner's Representative issues a Notice to Proceed With Project
Execution Services, GC 6.10.3 applies.
(c) If the Owner's Representative issues a Resubmission Notice:
(i) it shall contain details of the aspects of the Deliverables:
(1) which are not in accordance with the Contract; or
(2) which the Owner's Representative otherwise requires to be
amended, modified or corrected;
(ii) it shall state whether the work identified in the Resubmission
Notice is required to bring the Deliverables into conformity with the
Contract or to otherwise satisfy the Owner's Representative's
requirements;
(iii) the Contractor shall carry out the work identified in the
Resubmission Notice to bring the Deliverables into conformity with the
Contract or to otherwise satisfy the Owner's Representative's
requirements;
(iv) the process contemplated by this clause shall be repeated until
the Owner's Representative issues an Optional Termination Notice or a
Notice to Proceed With Project Execution Services; and
(v) the Contractor will be entitled to an additional payment for the
Contractor's performance of the work that is the subject of the relevant
Resubmission Notice except where the work performed is work required to
correct a defect, deficiency or non-conformance in the Services or the
Deliverables.
1.17 Preparation of the Detailed Design
(a) The Contractor shall prepare all necessary Detailed Design and Detailed
Design Documentation sufficient for the procurement, installation, construction
and Commissioning of the Project. The Detailed Design shall be prepared in
accordance with GC 9.
(b) The Contractor shall liaise closely with the Owner and CM Consultant to
ensure the Contractor continues to meet the requirements of the Owner as
specified in the Contract and any other requirements as made available to and
directed by the Owner's Representative from time to time, and to comply with
applicable laws at the Project Site in Venezuela, including laws in respect of
review or completion of design drawings and other deliverables by professionals
licensed in Venezuela.
(c) The Owner's Representative may direct the Contractor to vary the Detailed
Design. GC 2.1 and GC 2.3 apply to any such direction.
(d) The Contractor shall obtain all necessary approvals and conduct reviews of
the Detailed Design as required under this Contract and as directed by the
Owner's Representative.
1.18 Project Execution Project Planning Obligations
(a) The Contractor shall, unless directed otherwise by the Owner's
Representative, no later than the Date for Industrial Completion, submit to the
Owner's Representative for his or her approval the Approved Project Budget
which shall:
(i) be based on the Project Cost Estimate;
(ii) meet the requirements of the Scope of Services; and
(iii) be in a format approved by the Owner's Representative.
1.19 Contractor's Design Obligations
(a) The Contractor acknowledges and agrees that it has reviewed:
(i) the Scope of Services; and
(ii) the design of the Project (if any) that has been prepared up to
the Date of Contract and contained in the Scope of Services or this Contract.
(b) The Contractor shall:
(i) develop and complete the Project Definition Design, and, where a
Notice to Proceed With Project Execution Services is issued by the Owner's
Representative, the Detailed Design, in accordance with the requirements of
this Contract, including preparing all necessary documents, information,
drawings and plans sufficient for the procurement, installation, construction,
Commissioning and completion of the Project; and
(ii) ensure that the Contract Material, including the Detailed Design
Documentation:
(1) meets the Owner's requirements for the Project as set out in the
Scope of Services;
(2) is free from defects in design and accurate and complete in all
respects;
(3) will minimize the repair and maintenance costs of the Project and
will maximize the life of the Project;
(4) will comply with the Applicable Laws;
(5) will enable Permits, Licenses and Approvals to be quickly and
easily obtained from any Governmental Authority; and
(6) is otherwise suitable in all respects for the intended purposes
of the Project so that, when constructed in accordance with the Contract
Material, the Project will be fit for its intended purpose as described
in the Contract Documents.
(c) The Contractor acknowledges and agrees:
(i) that subject to GC 8.7.1, the Owner has not given any warranty or
guarantee or made any representation about the adequacy or suitability of the
Scope of Services or the level of completeness of the design of the Project in
the Scope of Services (if any) or any Project definition report or Feasibility
Study provided by the Owner to the Contractor;
(ii) that the Scope of Services is sufficient and suitable for completion of
the Project and achieving Final Acceptance;
(iii) that it will comply with its obligations under this Contract.
1.20 Preparation of Contract Material
(a) Without limiting GC 1.19(c):
(i) the Contractor shall develop and complete to the Owner's satisfaction
and all applicable Mining Industry Standards and Prudent Industry Practice all
Contract Material required for the completion of the Project and the Services;
and
(ii) Contract Personnel shall prepare the Contract Material and any other
design drawings and specifications with appropriate professional qualifications.
(b) The Contractor shall:
(i) give the Owner's Representative for review two copies (or such other
number of copies as directed by the Owner's Representative) of all Contract
Material (including amended versions) as soon as it is prepared and in any
event no later than the time indicated in the then current approved Project
Plan under GC 1.9 or 1.18 for the submission of the Contract Material to the
Owner's Representative;
(ii) allow no fewer than fourteen (14) days, before the time indicated in the
then current approved Project Plan under GC 1.9 or 1.18 for the issue of the
Contract Material to subcontractors, suppliers or Trade Contractors, for the
Owner's Representative to review the Contract Material;
(iii) not take any further steps in relation to any Contract Material which it
has submitted to the Owner's Representative, including issue of the Contract
Material to subcontractors or Trade Contractors or commencing procurement of
the construction of the part of the Project to which the Contract Material
applies, unless the Owner's Representative has had no fewer than fourteen (14)
days to review the Contract Material and has not rejected the Contract
Material; and
(iv) if any Contract Material is rejected, submit amended Contract Material
to the Owner's Representative for review, in which case this GC 1.20 will
apply.
1.21 Review and Acceptance or Approval by Owner
(a) Notwithstanding any other provision of this Contract, GC 8.1.1 of
Appendix 1 is subject to the provisions of this section 1.21.
(b) Neither the Owner nor the Owner's Representative undertakes any
responsibility or duty of care to the Contractor to review, or in reviewing,
the Contract Material for errors, omissions or compliance with this Contract.
(c) No review of, comments upon, rejection of, or failure to review or
comment upon or reject, any Contract Material prepared by the Contractor or
any other direction by the Owner's Representative about the Contract
Material (provided the Contractor has not objected in writing to, and within
a reasonable time after, such a direction) will:
(i) relieve the Contractor from, or alter or affect, the Contractor's
liabilities or responsibilities whether arising out of or in connection with
the Contract or otherwise according to Applicable Laws; or
(ii) prejudice the Owner's rights against the Contractor under this Contract.
(d) Without limiting but in addition to the provisions of GC 1.21(a) and GC
1.21(c), any review, acceptance, monitoring, approval or audit of any Contract
Material or part of the Services by the Owner or Owner's Representative shall
not be interpreted or otherwise construed to be, an acceptance or approval of
any Contract Material or part of the Services that is not in full conformance
with all requirements of the Contract.
1.22 Trade Contracts
(a) The Contractor shall include in the Trade Contracts appropriate
contractual provisions that will minimize and avoid labour disputes,
disruptions, strikes, picketing and legal or illegal work stoppages in
relation to the Project.
1.23 Tenders for Trade Contracts
(a) The Contractor shall:
(i) identify the scope of each Trade Contract and the sequence of all
the Trade Contracts (in consultation with the Owner's Representative), and
the Owner shall have the right to require the scope of any Trade Contract
that is normally included within one trade package be split into two or more
separate Trade Contracts;
(ii) make recommendations to the Owner's Representative regarding the:
(1) pre-purchase of long-lead time items of machinery, materials and
supplies; and
(2) availability of materials and labour;
1.24 Risk of Delay and Disruption and Resultant Increased Costs
(a) Unless a Change Order is issued adjusting the Scope of Services, there
shall be no adjustment or change in the Base Fee for delays in the Project.
1.25 Changes
(a) Notwithstanding section 15.1.6 of Appendix 1, for any additional
Services it is required to perform pursuant to a Change Order or Change
Directive, the Contractor shall be entitled to an adjustment to the Base Fee,
which adjustment will be calculated as the product of the Base Fee Adjustment
Factor specified in Appendix 6 - Compensation and the number of manhours
estimated for such change in the Change Order at the time issued.
1.26 Owner's Payment Obligations
(a) If there are any changes to the Scope of Services authorized in writing
by the Owner, the Contractor will not be entitled to or paid any additional
Fee for such changes except in accordance with GC 15 and Appendix 6 -
Compensation.
1.27 System Commissioning
The Contractor shall within the time required by the Project Plan, prepare a
comprehensive draft plan for Commissioning and submit it for approval to
the Owner's Representative
APPENDIX 8
MILESTONE SCHEDULE
MILESTONE SCHEDULE
The Contractor agrees that the Contractor shall complete the Services
so that all of the following Milestone Events are achieved on or before
the applicable Milestone Date specified in the following table, and as
calculated from the date Notice to Proceed (NTP) is issued by the Owner
to the Contractor.
See Notes to Schedule 8.
Item Milestone Event Milestone Date
1. Project Definition Report Complete 13-Jan-06
2. (Intentionally deleted)
3. Commence Construction 01-May-06
4. Complete Pit Dewatering Well System 29-Sep-06
5. Crushing and Conveying Mechanically
Complete 03-Aug-07
6. Permanent Camp Available for Partial
Occupancy 11-Jun-07
7. Complete Mine Infrastructure 14-Sep-07
8. Tailing Facility Mechanicall Complete 12-Oct-07
9. Permanent High Voltage Power
Distribution Complete 15-Nov-07
10. Cyanidation Mechanically Complete 16-Nov-07
11. Port Facility Mechanically Complete 04-Apr-08
12. Flotation Mechanically Complete 02-May-08
13. Mechanical Completion of
Project as a whole 02-May-08
14. Industrial Completion 27-Jun-08
15. Performance Guarantees demonstrated
to have been achieved 19-Dec-08
16. Final Acceptance 19-Dec-08
APPENDIX 9
PROJECT SCHEDULE
PROJECT SCHEDULE
Attached to and immediately following this page is the Project Schedule
to be achieved and met by the Contractor.
Notes:
1. It is acknowledged that the Notice to Proceed with Project
Execution Services (which authorizes performance of all Project
Execution Services) may be delivered to the Contractor on a date later
than April 14, 2006 (the Assumed Notice to Proceed Date) shown on the
attached schedule.
2. If the Notice to Proceed with Project Execution Services is
delivered on a date later than the Assumed Notice to Proceed Date, then
the commencement and end dates (but not the duration) of each and all
activities that are shown in the attached schedule and Appendix 9 to
occur on or after the Assumed Notice to Proceed Date shall be adjusted
by an amount equal to the number of days between the Assumed Notice to
Proceed Date and the date the Notice to Proceed with Project Execution
is delivered to the Contractor.
3. In the event that the Owner authorizes the Contractor to proceed
with any of the Project Execution Services prior to issuance of the
Notice to Proceed, then the commencement and end dates referred to in
the foregoing note shall be subject to equitable adjustment.
4. The Contractor shall be entitled to a Change Order in the
circumstances described in Note 2 or 3, above.
APPENDIX 10
[RESERVED]
APPENDIX 11
INSURANCE
INSURANCE
This Appendix is comprised of the following separate appendices, all of
which are hereby incorporated by reference herein and each of which may
be referred to either by a general reference to this Appendix or by a
specific reference to the applicable appendix within this Appendix in
which it is located, as listed below:
Appendix No. Description
11-1 Insurance by Owner
11-2 Insurance by Contractor
Unless otherwise specified, all dollar amounts herein are in United
States Dollars.
APPENDIX 11-1
INSURANCE BY OWNER
1. INSURANCE PROCURED BY OWNER
1.1 The Owner will procure and, for the time limits specified herein,
maintain a commercial general liability insurance policy on a wrap-up
basis (Wrap-Up Policy) and an all risks course of construction
insurance policy (Builders Risk Policy) as described in this Appendix
11-1. These policies will cover not only the Services which are the
subject of the Contract but will also provide coverage for work and
services which are the subject of Trade Contracts and of other
contracts between the Owner and other contractors and consultants
related to the Project. With regard to these policies of insurance as
they relate to the Contractor:
(a) aggregate and per occurrence limits contained in the policies may
limit or negate insurance otherwise available to the Contractor under
the policies;
(b) insurance coverage provided to the Contractor and its
subconsultants and subcontractors under the policies will only apply to
the Services performed by them for the Contract; and
(c) insurance coverage provided to the Contractor and its
subconsultants and subcontractors shall be endorsed to be primary and
non-contributory to the other insurance coverages of the Contractor and
its subconsultant and subcontractors.
1.2 Subject to the Contractor in a timely manner providing all
information required by the insurer(s) in respect of the policies, and
unless the Contractor and Owner agree to other dates, the Owner will
procure:
(a) the Wrap-Up Policy on the later of the date the Owner notifies
the Contractor to commence with the Project Execution Phase of the
Project and the date construction operations managed by the Contractor
commence at Site; and
(b) the Builders Risk Policy on the later of the date the Owner
notifies the Contractor to commence with the Project Execution Phase of
the Project, and the date construction operations managed by the
Contractor, other than excavation, commence at the Site.
2. USE AND OCCUPANCY BY OWNER AND CONTRACTOR
2.1 Subject to Section 2.2 of this Appendix 11-1, the Wrap-Up Policy
and the Builders Risk Policy will permit or allow use and occupancy of
the Project by the Contractor and Owner to produce concentrate and
other products after Mechanical Completion and prior to Industrial
Completion.
2.2 The Owner at its sole discretion, at any time from and after the
date production commences by the Project, may procure an operations
policy of insurance (the Operations Policy), which at the Owners sole
option may supplement or replace entirely the Wrap-Up Policy and the
Builders Risk Policy. If the Operations Policy replaces either or both
the Wrap-Up Policy and the Builders Risk Policy prior to the dates that
the Owner is required by this Appendix 11-1 to maintain the Wrap-Up
Policy and Builders Risk Policy in effect, then the Operations Policy
will provide insurance cover to the Contractor comparable to that
previously provided by the Wrap-Up Policy or Builders Risk Policy, as
applicable, but only for the time that this Appendix 11-1 requires the
Owner to maintain the Wrap-Up Policy and Builders Risk Policy in effect.
2.3 If the amount of the deductible for any claim under the
Operations Policy for which cover is provided to the Contractor
pursuant to Section 2.2 is more than the amount of the deductible for
the same claim if made against the Contractor under the Wrap-Up Policy
or Builders Risk Policy, as applicable, then the Owner will be
responsible for the difference between the amount of the deductible in
the Wrap-Up Policy and Builders Risk Policy, as applicable, and the
amount of the deductible in the Operations Policy.
2.4 Unless the Owner otherwise agrees in writing with the Contractor,
the duration of the cover for the Contractor under the Operations Policy
will be limited to and not exceed the duration of cover for the
Contractor under the Wrap-Up Policy and Builders Risk Policy specified
in Sections 3.5 and 4.2 of this Appendix 11-1.
3. WRAP-UP LIABILITY INSURANCE
3.1 The Owner at its expense will procure and maintain a Wrap-Up
Policy which will, subject to the terms thereof, have a combined single
policy limit of US$ 10,000,000 for each occurrence or accident, and an
aggregate policy limit of US$ 10,000,000 for completed operations and
products liability. The Wrap-Up Policy may also be subject to such
aggregate policy limits as the insurer may require. The policy will be
primary.
3.2 The Contractor acknowledges that the Owner may require
information from the Contractor in order for the Owner to procure the
Wrap-Up Policy. The Contractor and its insurance brokers and advisors
shall cooperate fully with the Owner and the Owners insurance brokers,
and provide all information required by the Owner and its insurance
brokers to procure the Wrap-Up Policy on both the terms and conditions
specified in this Section 3 and such additional terms and conditions as
the Owner may require at its discretion to protect and indemnify the
Owner. Until the Wrap-Up Policy has been issued the Contractor shall
not commence any part of the Services on Site without the prior written
agreement of the Owner, which agreement may be subject to such terms and
conditions as the Owner may reasonably require, including evidence from
the Contractor that the Contractor has insurance available and with
limits acceptable to the Owner to protect and indemnify both the
Contractor and the Owner for liability arising out of such parts of the
Services, and that such insurance names the Owner and its employees,
consultants and agents as additional named or unnamed insureds and
contains waivers of subrogation against all insureds.
3.3 Subject to the terms, conditions and exclusions contained in the
Wrap-Up Policy, the Wrap-Up Policy will provide coverage for damages
because of bodily injury (including death resulting therefrom) and
personal injury sustained by any person or persons, or because of
injury to or destruction of property arising out of any operations in
connection with the Contract, and provide coverage for, among other
things, but without limiting the generality of the foregoing, such
general categories as:
(a) broad form property damage,
(b) premises and operations liability,
(c) elevator and hoist liability,
(d) completed operations and products liability,
(e) blanket contractual liability,
(f) contingent employers liability,
(g) sudden and accidental pollution liability; and
(h) non-owned licensed motor vehicles (except those leased for a term
in excess of thirty (30) days) used in connection with the Services.
3.4 The Wrap-Up Policy will include:
(a) as named or unnamed insureds, the Owner, the Contractor, Trade
Contractors, and all consultants, contractors and subcontractors who
are directly engaged by them to perform work or services at the Site,
and their respective officers and employees;
(b) a waiver of subrogation against all named and unnamed insureds;
and
(c) a cross-liability clause, by which (subject to aggregate policy
limits) the liability of any one insured to another insured will be
covered as though separate policies were issued to each.
3.5 Subject to the termination and replacement of the Wrap-Up Policy
by the Owner pursuant to Section 2.2 of this Appendix 11-1, the Wrap-Up
Policy will remain in force for the following periods:
(a) with respect to completed operations coverage, until not less
than twelve (12) months after the date of Industrial Completion, and
(b) with respect to all other coverage, until the date of Industrial
Completion.
3.6 Exclusions under the Wrap-Up Policy will include those exclusions
common to wrap-up general liability policies for comparable
international projects in South America issued at the time the Wrap-Up
Policy is procured. The exact wording of the exclusions will be as
prescribed by the insurer, and all acts of terrorism will be expressly
excluded. The following operations performed on Site, however, will not
be excluded under the Wrap-Up Policy:
(a) blasting or the use of explosives;
(b) pile driving;
(c) excavation;
(d) underpinning, shoring, removal or rebuilding of support;
(e) demolition;
(f) use of industrial machines such as forklifts, cranes, front-end
loaders, graders, earth removers, and road building machines that are
specially licensed (X plate) or operating under permit; and
(g) use of machinery or equipment such as hydraulic cranes,
compressors, lift gates or winches attached to or mounted on a licensed
motor vehicle provided such use is not insured by any form of automobile
liability insurance required to be procured by the Contractor and its
subconsultant and subcontractors.
3.7 The following deductibles will apply:
(a) there will be no deductible for personal injury or bodily injury
under the Wrap-Up Policy;
(b) the deductible for property damage will not exceed US$ 50,000 for
any one occurrence, provided however that the Owner at its discretion
may obtain higher deductibles and in such case the Owner will be
responsible for that part of the deductible that is in excess of US$
50,000; and
(c) there may be deductibles for extensions of coverage other than
for personal injury, bodily injury or property damage.
3.8 Deductibles will be the responsibility of and paid by the party
responsible for the damage. If claims arise out of the fault of more
than one party, each will pay that proportion of the deductible which
represents the proportion of contributory fault of the party.
3.9 The Contractor shall, in addition to and in conjunction with the
giving of notices in accordance with the insurance claims procedures
under the Wrap-Up Policy, notify the Owner immediately where an
incident occurs that may give rise to a claim under the Wrap-Up Policy.
3.10 Where an accident occurs that gives rise to a claim, the
Contractor shall assist the Owner to provide notices, proofs of loss
and such other documentation as the insurer may require to process the
claim under the Wrap-Up Policy.
4. ALL RISKS COURSE OF CONSTRUCTION INSURANCE
4.1 The Owner at its expense shall procure and maintain a Builders
Risk Policy in an amount equal to the estimated replacement cost of the
Project, but subject to and with such sub-limits as the insurer may
impose for damage resulting from natural catastrophes. The Builders
Risk Policy may extend to and cover other property of the Owner or
under construction by other contractors for the Owner related to the
Project, in which case the limits of the Builders Risk Policy will be
increased by the value of that other work.
4.2 Subject to the termination and replacement of the Builders Risk
Policy by the Owner pursuant to Section 2.2 of this Appendix 11-1, and
subject to policy exclusions required by the insurer, the Builders Risk
Policy will as between the Owner and Contractor:
(a) remain in force until the date of Industrial Completion; and
(b) cover all risks of direct physical loss or damage to all property
as defined in the Builders Risk Policy.
4.3 The Builders Risk Policy will include:
(a) as named or unnamed insureds, all of the Owner, the Contractor
and its subconsultant and subcontractors, the Trade Contractors, and
all consultants, contractors and subcontractors who are directly
engaged by the Contractor to perform part of the Services or by the
Owner to perform any other work or services at Site; and
(b) a waiver of subrogation against all named and unnamed insureds,
including the Owner, Contractor, Trade Contractors and against their
respective consultants and subcontractors.
4.4 Exclusions under the Builders Risk Policy will be those
exclusions common to Builders Risk policies designed specifically for
the international construction industry for comparable projects in
South America and issued at the time the policy is procured by the
Owner. The exact wording of the exclusions will be as prescribed by the
insurer; and will include among others:
(a) Contractors equipment;
(b) wear, tear, latent defects;
(c) faulty or defective workmanship, material, construction or
design, but this exclusion shall not apply to resultant physical damage
not otherwise excluded;
(d) acts of terrorism, terrorism risks and war;
(e) nuclear radiation and radioactive contamination;
(f) dishonesty of employees;
(g) material and equipment in the course of ocean marine shipment;
(h) penalties for non-completion of or delay in completion of
Contract or non-compliance with Contract conditions;
(i) property that is covered by warranties;
(j) loss of use or occupancy; and
(k) loss revealed by inventory shortage.
4.5 Deductibles under the Builders Risk Policy will not exceed the
following amounts, provided however that the Owner at its discretion
may obtain higher deductibles and in such case the Owner will be
responsible for that part of the deductible that is in excess of the
following amounts:
(a) US$ 250,000 with respect to each and every loss associated with
testing, commissioning and operation, and for resulting damage from
defect in design, workmanship, materials and maintenance;
(b) Ten (10%) of loss, with a minimum deductible of US$ 250,000, for
Act of God and natural catastrophes; and
(c) US$ 100,000 with respect to all other losses.
All deductibles shall be paid by the party responsible, except for
claims arising out of damage caused by earthquakes or floods (provided
that for floods caused or worsened by the activities of the Contractor
or a Trade Contractor, the Contractor or Trade Contractor shall pay the
deductible). If claims arise out of the fault of more than one party,
each party will pay that proportion of the deductible which represents
their proportion of contributory fault.
5. MARINE CARGO
5.1 All marine cargo insurance for ocean marine cargo used to
transport materials, equipment or property supplied under or used in
the performance of the Services or the Project and intended to be
incorporated into the completed Project (Marine Cargo Insurance) will
be procured by the Owner, except where the Owner and Contractor agree
that, for a particular Vendor or Trade Contractor, marine cargo
insurance should be provided by such Vendor or Trade Contractor.
5.2 Marine Cargo Insurance will be in an amount sufficient to cover
any one conveyance or location, with sub-limits for debris removal of
ten (10%) percent of the value of damaged items.
5.3 In addition, if an entire vessel is chartered for shipping
materials, equipment or property then Charterers Liability insurance
will also be provided, in reasonable amounts to protect and indemnify
the Owner, Contractor and its subconsultant and subcontractors from and
against liability arising out of the chartering of such vessel.
5.4 Deductibles under the Marine Cargo Insurance shall be not greater
than ten (10%) percent of the total value of each shipment, with a
maximum of US$ 100,000 per shipment and, if applicable, with a minimum
deductible as may be agreed by the Owner and insurer.
5.5 At the Owners sole option, materials, equipment and property
supplied under or used in the performance of the Contract that are
required by Section 5.1 to be covered by the Marine Cargo Insurance may
instead be insured for marine cargo under the Builders Risk Policy if
that insurer provides such insurance as part of the Builders Risk
Policy.
5.6 The Contractor shall strictly comply with, and shall ensure that
its subconsultant and subcontractors and all Vendors and Trade
Contractors strictly comply with, all provisions, obligations,
requirements and stipulations of the insured under the Marine Cargo
Insurance. If the Contractor, its subconsultant and subcontractors, or
the Vendors and Trade Contractors, fail to comply strictly with all
such provisions, requirements and stipulations of such policies of
insurance, and if as a consequence such insurance fails to respond to a
loss, then the party who failed to comply with such provisions,
requirements and stipulations shall be solely responsible and liable
for the loss without recourse against the Owner.
5.7 The Marine Cargo Insurance shall be maintained in force until the
earlier of the completion of the last marine cargo shipment and the date
of Industrial Completion.
6. RENEWAL
6.1 If the Wrap-Up Policy or Builders Risk Policy is required to be
renewed before the expiry date specified for such policy in this
Appendix 11-1, the Owner shall, at least thirty (30) days prior to the
expiry date of the policy, furnish evidence of its renewal to the
Contractor by means of a renewal certificate, endorsement, or certified
copy.
7. FAILURE TO MEET INSURANCE REQUIREMENTS
7.1 If the Owner fails to procure or maintain the insurance required
by this Appendix 11-1 to be procured by the Owner, fails to furnish to
the Contractor a certified copy of each policy required to be obtained
by this Appendix 11-1 or if, after furnishing such certified copy, the
policy lapses, is cancelled, or is materially altered, then subject to
any prior right that the Financing Entities may have under financing
documents for the Project to obtain and maintain such insurance, the
Contractor shall have the right, without obligation to do so, to obtain
and maintain such insurance itself in the name of the Owner and
Contractor, and the cost thereof shall be payable by the Owner to the
Contractor on demand.
7.2 If coverage under any insurance policy required to be obtained by
the Owner under this Appendix 11-1 should lapse, be terminated or
cancelled, then the Contractor and its subconsultant and subcontractors
shall immediately cease the performance of any and all Services under
the Contract for which such insurance is relevant until satisfactory
evidence of renewal is produced by the Owner. In such case, the
Contractor will be entitled to the same extension of time for
performance of the Contract and the same additional compensation as the
Contractor is entitled under the provisions of the Contract for a delay
caused by the Owner.
8. CONFORMANCE OF APPENDIX 11-1 TO POLICIES OF INSURANCE PROCURED BY
OWNER
8.1 The Owner will use reasonable commercial efforts to obtain the
Wrap-Up Policy, Builders Risk Policy and Marine Cargo Insurance in
conformance with this Appendix 11-1, but the Owner and Contractor
acknowledge that changes in the insurance market may make it impossible
or commercially impractical to obtain those policies in strict
conformance with all requirements of this Appendix 11-1. Accordingly,
the Owner will, promptly after receipt of each of the Wrap-Up Policy,
Builders Risk Policy and Marine Cargo Insurance from the applicable
insurer, provide copies of relevant extracts of the policies (those
portions of the policies that provide insurance cover to the Contractor
for its own benefit) to the Contractor. Immediately upon receipt of each
such policy the Contractor shall review the terms, conditions, policy
limits and exclusions contained in that policy and satisfy itself that
such policy conforms to the requirements of Appendix 11-1. Within
thirty (30) days after receipt of each policy, the Contractor shall
give Notice to the Owner of any terms, conditions, exclusions or
provisions that, in its opinion, conflict or do not comply with the
requirements of Appendix 11-1. The Owner will, within fourteen (14)
days after receipt of such Notice, make reasonable efforts to obtain
amendments to the policy from the insurer to try to make that policy
comply with the requirements of Appendix 11-1. Provided, however, that
if the insurer does not agree to make any or all such amendments
requested by the Contractor within such fourteen (14) day time period,
or if the Contractor fails to identify and notify the Owner of any
conflicts, or if there are any other conflicts between the provisions
of this Appendix 11-1 and the policies as procured, then in all such
cases the provisions of those policies as procured shall govern and take
precedence, the provisions of this Appendix 11-1 shall be deemed to be
retroactively amended to conform to the provisions of the actual policies
as procured by the Owner, and the Owner shall be deemed to have met and
fulfilled all of its obligations under this Appendix 11-1, and where the
Contractors indemnity obligations under the Contract are limited to
available proceeds of insurance procured by the Owner, such indemnity
obligations shall be determined by reference to the actual policies of
insurance as procured by the Owner.
9. ADJUSTING OF CLAIMS
9.1 The Owner has the right to act as agent on behalf of the
Contractor in the settlement of any claim(s) under the policies
procured by the Owner. Nevertheless, the Contractor shall have the
right to participate in the defence or settlement of any claim(s) under
such policies which are made against the Contractor or its subconsultant
and subcontractors.
INSURANCE
APPENDIX 11-2
INSURANCE BY CONTRACTOR
[Redacted]
APPENDIX 12
(RESERVED)
APPENDIX 13
(RESERVED)
APPENDIX 14
FORM OF RELEASE AND GENERAL WAIVER OF CLAIMS
FORM OF RELEASE AND GENERAL WAIVER OF CLAIMS BY CONTRACTOR AT FINAL
ACCEPTANCE DATE
Attached to and immediately following this page is the form of Release
and General Waiver of Claims by the Contractor to accompany the
Contractors application for final payment upon achieving Final
Acceptance.
RELEASE AND GENERAL WAIVER OF CLAIMS BY CONTRACTOR AT FINAL ACCEPTANCE
(Release and Waiver of Claims)
In the matter of the Contract (the Contract) made as of the *______ day
of *_______________, 20*____ in respect of the Brisas Project in
Venezuela (the Project) between:
*________________________________________ (the Owner)
*________________________________________ and:
*________________________________________ (the Contractor)
*________________________________________
As a condition precedent to obtaining Final Acceptance, as defined in
the Contract, and for and in consideration of the payment of
$____________ (Final Payment) to the Contractor by the Owner, and for
other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged by the Contractor, the Contractor
covenants, represents, warrants and agrees with the Owner as follows:
1. The Contractor has properly and completely performed all of the
Services under the Contract, including the correction of any and all
deficiencies that may have occurred in the Services during their
performance.
2. All of the Contractors subcontractors and Contract Personnel have
been paid in full for all work, services, equipment, materials,
supplies, tools and other items provided and performed in connection
with the performance of the Contract, except holdbacks properly
retained and amounts that are subject to bona fide disputes.
3. All claims and demands of the Contractor for extra work to and
changes in the Contract, or in connection with the Contract in any way,
have been presented in writing to the Owner and resolved to the complete
satisfaction of the Contractor, save and except only those claims, if
any, expressly specified in a schedule attached hereto and for which
the schedule provides full, complete and detailed descriptions,
including for each claim listed in the schedule a concise summary of
the factual basis and amount of the claim, the date Notice of claim was
first provided under the Contract, and the relevant contractual
provisions that support the entitlement and amount claimed (the
Outstanding Claims).
4. Except for the Contractors claims for the Final Payment and the
Outstanding Claims, and subject to receipt of the Final Payment, the
Contractor hereby agrees to remise, release and forever discharge, and
by these presents does for itself, its successors and assigns, remise,
release and forever discharge, the Owner and its officers, directors,
employees, servants, agents, consultants, successors and assigns, and
each of them, of and from any and all liabilities, causes of action,
liens, claims, proceedings, demands, suits, debts, duties, damages,
interest and costs of any nature or kind whatsoever or
wheresoever, whether at law or at equity, and as of the date hereof are
known or which the Contractor as an experienced contractor should have
known, which the Contractor, its successors and assigns have or
hereafter can, shall or may have, relating to or arising out of the
Contract, the Project, the subject matter of the Contract and the
Project, and all facts and circumstances related thereto.
5. This Release and Waiver of Claims has been executed voluntarily by
the Contractor after receiving independent legal advice.
6. All provisions of this Release and Waiver of Claims are
contractual and not merely recitals.
7. This Release and Waiver of Claims is governed by the laws of the
Province of Ontario, and the parties agree to submit and attorn to the
exclusive jurisdiction of any competent Court in Ontario any dispute
which involves or may involve the interpretation of this Release and
Waiver of Claims.
8. All capitalized terms not otherwise defined herein shall have the
meaning given to them in the Contract.
IN WITNESS WHEREOF the Contractor has executed this Release and Waiver
of Claims as of the *______ day of *_______________, 20*____ by its
duly authorized officers.
THE CORPORATE SEAL of __________________________________ )
[CONTRACTOR] ) was hereunto affixed in the presence of: )
)
)
Authorized Signatory )
) C/S
Authorized Signatory )
APPENDIX 15
ORGANIZATION CHART
CONTRACTOR'S ORGANIZATION CHART
The Contractors Organization Chart is attached to and immediately
follows this page.
[Redacted]
APPENDIX 16
KEY PERSONNEL
EP CONTRACTORS KEY PERSONNEL
[Redacted]
APPENDIX 17
[Reserved]
APPENDIX 18
CONFLICT MITIGATION PROTOCOL
CONFLICT MITIGATION PROTOCOL
[Redacted]
APPENDIX 19
[RESERVED]
99.2 Construction Management Agreement
CONTRACT FOR CONSTRUCTION MANAGEMENT
AND ASSOCIATED SERVICES IN RESPECT
OF THE BRISAS PROJECT VENEZUELA
THIS AGREEMENT ("Agreement") construction management and associated
services made as of the 12th day of April, 2006
BETWEEN:
Compania Aurifera Brisas del Cuyuni, CA.
Zona Industrial Unare II,, final Calle Neveri,
Centro Empresarial Catanaima
Primer Piso
Puerto Ordaz, Estado Bolivar,
Venezuela ("Owner")
AND:
SNC-Lavalin International Inc.
VENEZUELAN BRANCH (CARACAS)
Edificio Caracas Teleport
Oficina 704, piso 7
Avenida Paseo Col-n
Urbanizacion Mariperez
Caracas 1050, Venezuela ("Contractor")
WHEREAS:
A. The Owner is incorporated under the laws of Venezuela and is
pursuing the design, engineering, procurement, construction,
commissioning and operation of the proposed new Brisas Gold Project at
KM 88 in the mining region of Bolivar State in Southeast Venezuela (the
Project);
B. The Contractor is the Venezuelan Branch of a company incorporated
under the laws of Canada, and is engaged in providing field
engineering, field procurement, construction management, commissioning
supervision, performance testing assistance and training services for
projects similar to the Project;
C. The Contractor has agreed to provide to the Owner all of the field
engineering, field procurement, construction management, commissioning
and performance testing supervision services required to produce for
the Owner a complete and operational Facility in accordance with the
terms hereof, and to provide training and other associated services as
specified herein of the O&M Personnel engaged by or through the Owner,
all in accordance with the terms and conditions contained in the
Contract.
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the
premises and the mutual promises and agreements of the Parties herein
expressed and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Parties covenant and
agree as follows:
1. THE SERVICES
1.1 The Contractor shall, in accordance with and subject to the
terms, conditions and provisions of the Contract:
(a) Perform, or cause to be performed, the whole of the Services;
(b) do and fulfil everything indicated by this Contract; and
(c) commence the performance of the Services on or before the date of
the Contract and, subject to adjustments in Contract Time as provided
for in the Contract, achieve Owner Operation by the Owner Operation
Milestone Date and achieve Final Acceptance by the Final Acceptance
Milestone Date.
2. CONTRACT DOCUMENTS
2.1 The Contract is comprised of and means this executed Agreement
and the following documents, all of which are hereby incorporated by
reference into this Agreement and the Contract to the same extent and
for the same purposes as if repeated verbatim herein:
Appendix No. Description
1 General Conditions
2 Scope of Services
3 Owners Requirements
4 Owner Supply
5 Performance Guarantees
6 Compensation
7 Special Conditions
8 Milestone Schedule
9 Project Schedule
10 [Reserved]
11 Insurance
12 [Reserved]
13 [Reserved]
14 Form of Release and General Waiver of Claims
15 Organization Chart
16 Key Personnel
17 Confidentiality Agreement
18 Conflict Mitigation Protocol
19 [Reserved]
2.2 Errors, omissions, ambiguities, discrepancies, inconsistencies
and other conflicts in the provisions of the Contract, or between or
within the documents comprising the Contract, shall be resolved by
reference to the following order of precedence, with the first listed
governing and taking precedence over those listed after them:
(a) the provisions of Change Orders and subsequent amendments in
writing to the Contract signed by the Parties shall govern and take
precedence only over those specific provisions of the Contract that are
expressly referenced therein and expressly changed thereby;
(b) the provisions of this executed Agreement part of the Contract
shall govern over all Appendices to the Contract;
(c) Appendix 5 Performance Guarantees;
(d) Appendix 1 General Conditions;
(e) Appendix 3 Owners Requirements, provided however that in the
event of conflicts between the text of the Owners Requirements and
drawings contained in the Owners Requirements, the text shall govern;
and
(f) the remaining Appendices in the order in which they are numbered.
2.3 If within any one document comprising the Contract there is an
ambiguity, discrepancy, inconsistency or other conflict, then where the
conflict is between a provision of general application and a provision
that applies only to a specific part of the Services, the provision
that applies to the specific part of the Services shall govern,
otherwise the provision that is more consistent with the intent of the
Contract as a whole shall govern.
3. PRIOR AGREEMENTS MERGED INTO AND SUPERSEDED BY CONTRACT
3.1 This Contract constitutes the complete and exclusive statement of
its terms and no extrinsic evidence whatsoever may be introduced by
either Party in any judicial, arbitral, administrative, or other legal
proceeding involving this Contract. Without limiting the generality of
the foregoing, any and all work, services and other things provided by
the Contractor to the Owner prior to the date hereof, including
pursuant to any letter of intent from the Owner to the Contractor in
contemplation of this Contract, is merged herein and is governed
entirely by the terms of this Contract, and any payments made prior to
the date hereof to the Contractor shall be reconciled and made
consistent with the compensation provisions of this Contract.
4. CONTRACT PRICE
4.1 The Contract Price is the amount stated as the Contract Price in
Appendix 6 Schedule of Prices, which amount is all-inclusive save and
except only GST, VAT and all other Venezuelan Taxes to the extent
applicable. The Contract Price is subject to adjustment only in
accordance with the terms and conditions of the Contract.
5. PAYMENTS
5.1 The Owner shall, subject to the General Conditions and other
provisions of the Contract, pay the Contract Price to the Contractor on
the terms, dates and in the manner set out in Appendix 6 Schedule of
Prices.
5.2 All amounts of money expressed or referred to in the Contract are
expressed, and shall be paid, in the currency stated in Appendix 6
Compensation. Payments on account of the Contract Price shall be made
to such bank or address as advised by the Contractor by Notice to the
Owner.
5.3 If the Owner fails to make payments to the Contractor as they
become due under the terms of this Contract, interest shall be due and
payable in accordance with the provisions of the General Conditions.
6. CONTRACTORS REPRESENTATIONS
6.1 The Contractor represents to the Owner that the Contractor has
experience with the field engineering, field procurement, construction
management, commissioning assistance and performance testing
supervision of comparable international projects and, in particular, a
comparable mine project in Venezuela, and through its experience in
Venezuela has established a good knowledge of available in-country
suppliers and contractors, and is familiar with the requirements for
the importation into Venezuela of equipment, materials and construction
services, including the requirements and timing for obtaining custom
clearances from Governmental Authorities.
7. RIGHTS AND REMEDIES
7.1 The duties and obligations imposed by the Contract and the rights
and remedies available under the Contract shall be exclusive. No action
or failure to act by the Owner or Contractor shall constitute a waiver
of any right or remedy afforded by it under the Contract, nor shall any
such action or failure to act constitute an approval of or acquiescence
in any breach of the Contract, except as may be specifically agreed in
writing.
7.2 Each remedy under the Contract is cumulative with the other
remedies under the Contract and the remedies under the Contract are the
exclusive remedies available to a Party, and there are no other
remedies, whether at law or in equity, statutory or otherwise, except
as expressly set out in the Contract.
8. LANGUAGE OF THE CONTRACT
8.1 This Agreement is drawn in English at the request of the Parties
hereto. La presente convention est redigee en anglais a la demande des
Parties.
8.2 Unless the Parties otherwise agree, all communications between
the Parties and all documents prepared by the Contractor for the Owners
use pursuant to the Contract shall be in English.
9. LAW OF THE CONTRACT
9.1 The law of this Contract, and the validity, interpretation,
enforceability and performance of the Contract, shall be governed by
the laws in force in the Province of Ontario, Canada.
9.2 Subject to the right of a Party to require arbitration of a
dispute under the Contract in accordance with the dispute resolution
provisions of the General Conditions, the Parties hereby agree to
submit and attorn to the jurisdiction of the courts of the Province of
Ontario, Canada, and all courts authorized to hear appeals from those
courts, in respect of any disputes arising out of or resulting from the
Contract.
10. AMENDMENTS TO CONTRACT
10.1 No oral or written amendment or modification of the Contract
(including a Change Order signed by the Parties) by any Representative
of the Contractor or the Owner, either before or after execution of the
Contract, shall be of any force or effect unless such amendment or
modification is in writing and is signed by a duly authorized
representative of the Party to be bound thereby. The Owner will by
Notice to the Contractor, and the Contractor by Notice to the Owner,
will designate a representative for such purpose. In addition, in all
cases the Contractors Project Manager shall have such authority on
behalf of the Contractor to execute a Change Order. Each of the
foregoing persons and the Contractors Project Manager may, in writing
by Notice to the others and to the other Party, delegate some or all of
their authority as aforesaid to others, including with such limitations
of authority as they may specify in such Notice.
11. NO WAIVER
11.1 No waiver of any rights under the Contract shall be binding or
effective unless the waiver is in writing and signed by an authorized
representative of the Party giving such waiver.
11.2 Either Partys waiver of any breach or failure to enforce any of
the terms, covenants, conditions, or other provisions of the Contract
at any time shall not in any way affect, limit, modify, or waive that
Partys right thereafter to enforce or compel strict compliance with
every term, covenant, condition, or other provision hereof, any course
of dealing or custom of the trade notwithstanding.
12. AUTHORITY TO EXECUTE CONTRACT
12.1 The Contractor represents and warrants:
(a) it has the requisite power, authority and capacity to execute and
deliver the Contract;
(b) the Contract has been duly and validly executed on its behalf by
its duly authorized representatives; and
(c) the Contract constitutes a legal, valid and binding agreement
enforceable against it in accordance with its terms.
12.2 The Owner represents and warrants:
(a) it has the requisite power, authority and capacity to execute and
deliver the Contract;
(b) the Contract has been duly and validly executed on its behalf by
its duly authorized representatives; and
(c) the Contract constitutes a legal, valid and binding agreement
enforceable against it in accordance with its terms.
13. PROOF OF AUTHORITY
13.1 Each Party reserves the right to require everyone executing the
Contract on behalf of the other Party to provide proof, in a form
acceptable to the first Party, that they have the requisite authority
to execute the Contract on behalf of and to bind the particular Party
on whose behalf they are executing the Contract.
14. EXECUTION IN COUNTERPARTS AND BY FAX/EMAIL
14.1 The Parties agree that this Contract may be executed in one or
more counterparts, each of which shall be deemed to be an original, and
all of which shall constitute one and the same instrument. To expedite
the execution hereof, either or both of the Parties may transmit by fax
or email (provided that such email is of an executed copy of the
Contract in PDF format) to the other Party, the receipt of which by the
other Party shall have the same force and effect as if the original
thereof had in fact been delivered to that other Party at the same
time. Any original, fax copy, copy printed from a PDF file, or
photocopy of this Contract bearing one or more signatures of a Party
shall be admissible against that Party in any legal or arbitral
proceeding as evidence of the due and proper execution of this Contract
by that Party.
IN WITNESS WHEREOF the Parties hereto have executed this Contract by
their duly authorized representatives and effective as of the day and
year first above written.
Executed and delivered by
Compania Aurifera Brisas del Cuyuni, CA.
by its duly authorized representatives:
/s/ A. Douglas Belanger
Authorized Signatory
Executed and delivered by
SNC-Lavalin International Inc. Venezuelan Branch (Caracas)
by its duly authorized agent:
/s/ Michael Day
Senior Vice President
CONTRACT GENERAL CONDITIONS IN RESPECT
OF THE BRISAS PROJECT VENEZUELA
FEBRUARY 2006
GENERAL CONDITIONS
TABLE OF CONTENTS Page
1. DEFINITIONS AND INTERPRETATION............................................1
1.1 General ................................................................ 1
1.2 Definitions ............................................................ 1
1.3 Interpretation......................................................... 13
1.4 Ambiguous and Inconsistent Terms ...................................... 16
1.5 Provisions in the Scope of Services ................................... 16
2. PERSONNEL AND CONTRACT ADMINISTRATION ...................................17
2.1 The Owners Representative ...........................................17
2.2 Delegation of the Owners Representatives Power ..................... 18
2.3 Compliance with Directions ..........................................18
2.4 Delegation of Contractors Representatives Power............ .........18
2.5 Contractors and Owners Acknowledgments.............................. 18
2.6 Personnel ......................................................... 19
2.7 Comments, Review, Representation or Approval
by the Owner or the Owners Representative . .................... 21
2.8 Project Control Group .............................................. 21
2.9 [Intentionally deleted]............................................ 22
2.10 Contractors Request for Information .............................. 22
2.11 Records Open for Inspection and Audit.............................. 22
2.12 Privacy........................................................... 24
3. GENERAL REQUIREMENTS REGARDING SERVICES..................................25
3.1 General ........................................................... 25
3.2 Budgetary Constraints ............................................. 26
3.3 Warranties and Standard of Care .................................... 27
3.4 Equipment Importation ............................................. 29
3.5 Continuing Warranties ............................................. 29
4. REGIONAL SOCIO-ECONOMIC BENEFITS AND INDIGENOUS PEOPLES..................29
4.1 Indigenous Peoples ................................................ 29
4.2 Regional Socio-Economic Benefits ................................... 30
5. PROTECTION OF THE ENVIRONMENT............................................30
5.1 General ........................................................... 30
6. [INTENTIONALLY DELETED]..................................................30
7. PROJECT EXECUTION SERVICES...............................................30
7.1 Progression to Project Execution ................................... 30
7.2 General Obligations ................................................... 30
7.3[Intentionally deleted]................................................. 31
7.4Project Execution Project Planning Obligations.......................... 31
7.5 Project Execution Cost Planning Obligations ........................... 32
7.6 Rights and Obligations Not Affected.................................... 32
8. SITE.....................................................................32
8.1 Owner Site Information.................................................32
8.2 Contractors Acknowledgements...........................................33
9. DESIGN...................................................................34
9.1 Preparation of Contract Material ......................................34
9.2 Review and Acceptance or Approval by Owner ............................35
9.3 Ownership of, and Intellectual Property Rights in, Contract Material .35
9.4 Keeping Contract Material Safe ....................................... 37
9.5 Reproduction of Contract Material .....................................37
9.6 Return of Contract Material........................................... 37
10. QUALITY OBLIGATIONS.....................................................38
10.1 Subcontracting .......................................................38
10.2 Re-performance of Non-Complying Services .............................38
11. LABOUR AND INDUSTRIAL RELATIONS.........................................39
11.1 General ..............................................................39
11.2 Open Site ............................................................39
11.3 Trade Contracts.......................................................40
11.4 Additional Requirements for Personnel on Site ........................40
11.5 Report of Contractors Personnel and Equipment ........................40
12. PROCUREMENT.............................................................40
12.1 Tenders for Trade Contracts ..........................................40
12.2 Warranties From Trade Contractors ....................................42
12.3 Trade Contract Payment ...............................................42
12.4 Contract Dispute Resolution...........................................43
12.5 Owners Procurement Process ...........................................43
12.6 Comprehensive Procurement Strategy....................................44
13. TESTING, COMMISSIONING AND PERFORMANCE TESTING..........................44
13.1 Performance Testing and Performance Guarantees .......................44
14. TIME....................................................................44
14.1 Risk of Delay and Disruption and Resultant Increased Costs ...........44
14.2 Extensions of Time ...................................................44
14.3 Determination of Extension of Time Claims.............................46
15. CHANGES, CHANGE DIRECTIVES AND CHANGE ORDERS............................46
16. SUSPENSION..............................................................48
16.1 Notice to Suspend ....................................................48
16.2 Resumption ...........................................................48
16.3 Compensation .........................................................48
16.4 Termination ..........................................................48
17. EVENTS OF FORCE MAJEURE.................................................49
17.1 Events of Force Majeure ..............................................49
17.2 Instances of Force Majeure ...........................................50
17.3 Effect of Event of Force Majeure .....................................51
17.4 Notice of Event of Force Majeure .....................................51
17.5 Period of Suspension for and Mitigation of Event of Force Majeure.....51
17.6 Certain Events Not to Comprise Events of Force Majeure ...............52
17.7 Contractor to Follow Owners Instructions..............................53
17.8 Contractor Responsible for Negligence ................................53
17.9 Costs Due to Events of Force Majeure..................................53
17.10 Contractors Sole and Exclusive Remedy ...............................53
18. COMPENSATION............................................................53
18.1 Owners Payment Obligations............................................53
18.2 Payment Advances by Owner.............................................54
18.3 Electronic Funds Transfer ............................................54
18.4 Time For and Format of Application for Payments.......................55
18.5 Additional Matters ...................................................55
18.6 Contractor Warranty...................................................56
18.7 Incomplete Application for Payments...................................56
18.8 Payment Statement.....................................................57
18.9 Payment ..............................................................58
18.10 Conditions Precedent to Entitlement to Payment ......................58
18.11 Final Application for Payment........................................59
18.12 Interest on Overdue Payments ........................................60
18.13 Set off .............................................................60
18.14 Owners Payment of Subcontractors.....................................60
18.15 Property and Liens ..................................................61
18.16 Taxes ...............................................................61
19. MITIGATION..............................................................62
19.1 General Duty to Mitigate..............................................62
20. ASSIGNMENT..............................................................62
20.1 Assignment by Contractor............................................62
20.2 Assignment by Owner to Affiliates and Third Parties ................63
20.3 Assignment by Owner to Financing Entities and Realization of
Security by Financing Entities......................................64
21. COOPERATION WITH FINANCING ENTITIES AND INSURERS........................65
22. SECURITY................................................................66
22.1 Delivery and Form of Security from Owner ...........................66
23. INSURANCE...............................................................66
23.1 Owner Provided Insurance ..........................................66
23.2 Contractor Provided Insurance ......................................66
24. CONTRACTORS REPORTING AND RELATED OBLIGATIONS...........................66
25. REPRESENTATIONS.........................................................68
26. DEFAULT AND TERMINATION.................................................71
26.1 Default by Owner....................................................71
26.2 Termination by Contractor Following Default by Owner................72
26.3 Rights of Financing Entities on Default by Owner....................72
26.4 Default by Contractor...............................................72
26.5 Termination by Owner Following Default by Contractor................73
26.6 Termination for Insolvency of a Party ..............................73
26.7 Termination for Events of Force Majeure ............................74
26.8 Termination by Owner for Convenience................................75
26.9 Termination by Owner of Contract....................................75
26.10 Recovery of Loss ..................................................76
26.11 Preservation of Other Rights ......................................77
27. INDEMNITIES.............................................................77
27.1 Indemnity by EPC Contractor ........................................77
27.2 Indemnity by Owner .................................................78
28. LIMITATION OF LIABILITY.................................................79
28.1 Limitation of Contractor Liability .................................79
28.2 Limitation of Owner Liability ......................................81
28.3 Application of Limitations of Liability ...........................82
28.4 Exclusion of Consequential Damages..................................82
28.5 Exclusion of Warranties of Performance of the Project...............83
29. DISPUTE RESOLUTION......................................................83
29.1 General ..............................................................83
29.2 Resolution by Owners Representative ..................................83
29.3 Resolution by Negotiations ...........................................84
29.4 Resolution by Mediation ..............................................84
29.5 Resolution by Arbitration.............................................85
29.6 Consolidation of Arbitrations ........................................87
29.7 Dispute Resolution Not to Delay Performance ..........................87
30. MEDIA RELEASES AND CONFIDENTIALITY......................................87
30.1 Media Release.........................................................87
30.2 Confidentiality ......................................................87
31. NOTICES AND COMMUNICATIONS..............................................88
31.1 Method of Notice .....................................................88
31.2 Effectiveness of Notices..............................................88
31.3 Change of Address ....................................................89
32. NOTIFICATION OF CLAIMS..................................................89
32.1 Notices of Claims.....................................................89
32.2 Prescribed Notices....................................................89
32.3 Continuing Events.....................................................90
32.4 Time Bar..............................................................90
32.5 Other Provisions Unaffected ..........................................90
33. GENERAL.................................................................90
33.1 Nature of Relationship and Contractor as Agent .......................90
33.2 Variation and Waivers in Writing......................................91
33.3 Contractor More than One Person ......................................92
33.4 Entire Agreement .....................................................93
33.5 Language of Contract..................................................93
33.6 Violation of Law of Another Jurisdiction .............................94
33.7 Violation of Laws Governing Corrupt Practices ........................94
33.8 Conflicts and Mitigation of Conflicts by Contractor ..................96
33.9 Survivorship..........................................................96
33.10 Application of this Contract and Retroactive Effect..................96
33.11 Compliance with Law .................................................97
33.12 Severability.........................................................97
1. DEFINITIONS AND INTERPRETATION
1.1 General
1.1.1 In the Contract, terms defined in GC 1.2 shall have the
meanings ascribed to them in GC 1.2 unless a contrary intention is
indicated.
1.2 Definitions
1.2.1 Agreement means the part of the Contract titled Agreement and
which contains the signatures executing the Contract on behalf of the
Parties.
1.2.2 Applicable Laws, applicable law and similar expressions,
whether capitalized or not, mean, with respect to a Party, all domestic
or foreign, national, federal, provincial, state, territorial, regional,
municipal, or local statutes, laws, by laws, rules, regulations, codes
(including design and building codes), ordinances, judgments, decrees,
writs, administrative interpretations, guidelines, policies,
injunctions, orders or the like, of, or agreements with, any
Governmental Authority (of which the Contractor is aware at the time of
execution of the Contract or which have been or will be entered into by
the Owner with Governmental Authorities before and after the date of
the Contract which are of the type, and contain terms and conditions,
that are reasonably expected to be entered into for such type of
project in Venezuela), and the interpretations thereof, applicable to
the performance of the Services, the performance of the Contract, or
the development, completion and operation of the Project, including any
and all of the foregoing regulating or relating to Permits, Licences and
Approvals, certificates, occupational health and safety, workers
compensation, environment, pollution, traffic, noise, employment
standards, and conditions of work, or relating to or imposing liability
or standards of conduct concerning (a) safety or the prevention of
injury to persons or damage to property on, about or adjacent to the
Site or (b) protection of human health or the environment or emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or industrial, toxic or hazardous substances or wastes into
the environment including ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling
of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes, as now or may at any time hereafter be
in effect.
1.2.3 Application for Payment means a payment claim made in
accordance with GC 18.4.
1.2.4 Authority means Governmental Authority.
1.2.5 Authorities Having Jurisdiction and similar expressions,
whether capitalized or not, mean Governmental Authorities.
1.2.6 Certificate of Final Acceptance means the certificate issued
after Industrial Completion by the Owners Representative, in such form
as the Owners Representative may prescribe, certifying that all
requirements under the Contract for Final Acceptance have been met as
of the date specified in such certificate, including that the
Performance Tests have been successfully completed and the Performance
Guarantees have been met.
1.2.7 Certificate of Provisional Acceptance means the certificate
issued by the Owners Representative, in such form as the Owners
Representative may prescribe, certifying that all requirements under
the Contract for Industrial Completion have been met as of the date
specified in such certificate.
1.2.8 Change, when used in relation to this Contract, means an
addition, substitution, deletion, variation, modification, cancellation
or omission of part or all of the Services required to be performed or
supplied under this Contract and, when used in relation to a Trade
Contract, means an addition, substitution, deletion, variation,
modification, cancellation or omission of part or all of the
requirements of the Trade Contract, and in either case includes a
change in Applicable Laws (excluding changes in Applicable Laws which
were publicly announced before the contract but have not yet come into
force, and changes that have no material affect on the time or cost of
performance of the Contract even though they may impose greater
obligations or liabilities on one or the other parties).
1.2.9 Change Directive, when used in relation to this Contract, means
a written instruction signed by the Owners Representative directing the
Contractor to proceed with a Change prior to and pending the issuance
of a Change Order, and when used in relation to a Trade Contract means
a written instruction signed by the Owners Representative or
Contractors Representative directing the Trade Contractor to proceed
with a Change under the Trade Contract prior to and pending the
issuance of a Change Order.
1.2.10 Change Order, when used in relation to this Contract, means a
Change to the Contract authorized in writing by the Owner and signed by
the Owners Representative and, when used in relation to a Trade
Contract, means a Change to the Trade Contract authorized by the Owner
and signed by the Owners Representative or the Contractors
Representative.
1.2.11 Claim includes any claim for payment of money (including
damages) where such payment has not previously been authorized in
writing by the Owner:
(a) under, arising out of, or in any way in connection with this
Contract, the Services, the Project, any direction of the Owners
Representative, or either Partys conduct before this Contract; or
(b) otherwise at law or in equity, including by statute, in tort
(whether for negligence, negligent misrepresentation or otherwise), or
for restitution.
1.2.12 Commissioning means those activities immediately following
Mechanical Completion of the Project and which involve the introduction
of ore and reagents to the processing facility, the filling of process
tanks with slurry and solutions, the gradual increase of throughput to
full capacity, and the attainment of steady-state operation, and
includes the calibration of instruments, modifications and adjustments
to Plant and Goods that may be required to achieve the design
performance levels until only the final Performance Tests for
determining whether the Performance Guarantees have been met remain.
1.2.13 Confidential Information means any information which concerns
the business or finances of the Owner and is disclosed to or acquired
by the Contractor and which:
(a) is by its nature confidential;
(b) is designated by the Owner as confidential; or
(c) the Contractor knows or ought to know is confidential,
but does not include information which:
(d) is or becomes public knowledge other than by a breach of this
Contract;
(e) is in the possession of the Contractor without restriction in
relation to disclosure on or before the date on which it is disclosed
to or acquired by the Contractor; or
(f) has been independently developed or acquired by the Contractor,
and provided however that the burden of establishing any of the
exceptions referred to in Section 1.2.13(d), 1.2.13(e) and 1.2.13(f)
shall be on the Contractor;
1.2.14 Contamination means the presence in, on or under land, air or
water of a substance (whether a solid, liquid, gas, odour, heat, sound,
vibration or radiation) at a concentration above the concentration
allowed by relevant Permits, Licences and Approvals or Applicable Law,
or above the concentration at which the substance is normally present
in, on or under land, air or water in the same locality, that presents
a risk of Environmental Harm, including harm to human health or any
other aspect of the Environment, or could otherwise give rise to a risk
of non-compliance with any Applicable Laws for or relating to the
protection of the Environment.
1.2.15 Contract and Contract Documents are synonymous and mean the
whole of the Contract between the Parties, and which is comprised of
the Agreement and the documents expressly incorporated by reference
into the Contract by the Agreement.
1.2.16 Contract Material means all Documentation which is:
(a) prepared, or required to be prepared, by or on behalf of the
Contractor under this Contract;
(b) delivered, or required to be delivered, by or on behalf of the
Contractor to the Owner under this Contract; or
(c) incorporated into any Documentation described in 1.2.16(a) or
1.2.17 Contract Personnel means any and all personnel engaged by or
through the Contractor, including its directors, officers and
employees, and including the directors, officers and employees of its
agents, consultants, invitees, subcontractors and anyone else engaged
by or through the Contractor in performing the Contractors obligations
under this Contract.
1.2.18 Contractors Representative means the person designated as
such in writing by the Contractor to the Owner on or after the Date of
Contract, or any replacement person appointed under GC 2.4.
1.2.19 Court means a Canadian court of competent jurisdiction and
includes the Supreme Court of Canada.
1.2.20 Date for Final Acceptance means the Milestone Date for Final
Acceptance as specified in Appendix 8 Milestone Schedule, as adjusted
(if applicable) under this Contract.
1.2.21 Date for Industrial Completion means the Milestone Date for
Industrial Completion as specified in Appendix 8 Milestone Schedule,
as adjusted (if applicable) under this Contract.
1.2.22 Date for Provisional Acceptance means the Date for Industrial
Completion.
1.2.23 Date of Contract means the earlier of the date of execution of
the Contract by both the Owner and Contractor and the effective date of
the Contract specified on the first page of the Agreement portion of the
Contract.
1.2.24 Date of Industrial Completion means the date on which all
requirements under the Contract for Industrial Completion have been met
and Industrial Completion has occurred.
1.2.25 Date of Provisional Acceptance means the Date of Industrial
Completion.
1.2.26 Deliverables means the documents and other items required to be
delivered by the Contractor, including those identified as Deliverables
in the Scope of Services.
1.2.27 Direction includes any agreement, approval, authorization,
certificate, decision, demand, determination, direction, explanation,
instruction, notice, notification, order, permission, consent,
rejection, request or requirement.
1.2.28 Documentation includes software (including source code and
object code versions) manuals, diagrams, graphs, charts, projections,
specifications, estimates, records, concepts, documents, accounts,
plans, formulae, designs, methods, techniques, processes, supplier
lists, price lists, customer lists, market research information,
correspondence, letters and papers of every description including all
copies of and extracts from the same.
1.2.29 Eligible Disbursements has the meaning given to it in Appendix
6 Compensation.
1.2.30 Environment includes ecosystems and their constituent parts,
including people and communities, natural and physical resources, the
qualities and characteristics of locations, places and areas, and the
social, economic, aesthetic and cultural aspects of any one or more of
the aforesaid.
1.2.31 Environmental and Social Impact Assessment means the document
for the Project titled as such and prepared by the Owner, or by other
consultants of the Owner, in accordance with World Bank Guidelines and
the new Equator Principles, and submitted to the Governmental
Authorities in Venezuela as part of the process required for obtaining
a Permit to Construct and other Permits, Licences and Approvals for the
Project.
1.2.32 Environmental Control Plan means the Environmental Management
Plan.
1.2.33 Environmental Harm means any actual or threatened adverse impact
on, or damage to, the Environment, including any adverse impact or
damage that is in excess of that allowed by the Permits, Licences and
Approvals and Applicable Law.
1.2.34 Environmental Management Plan means the Owners environmental
management and mitigation plan, as prepared by the Owner and its
consultants.
1.2.35 ESIA means the Environmental and Social Impact Assessment.
1.2.36 Event of Force Majeure and Events of Force Majeure has the
meaning given to it in GC 17.1.
1.2.37 Excluded Taxes bears the meaning set out in Appendix 6
Compensation.
1.2.38 Existing Facilities means the existing facilities located at
the Site as at the Date of Contract, and which are comprised of the
following: an office building on the Site, used for a business office
and which accommodates both the engineering and geology departments of
the Owner; a sample preparation facility, used for logging and
splitting (diamond saw) core and housing sample preparation equipment
(including crushers, splitters and drying ovens) and the storage of the
projects core and pulp rejects; an infirmary; maintenance facility; a
power generating station; an existing lime silo and sediment facility;
and a full service camp capable of housing and feeding approximately 55
people (as at the Date of Contract approximately twenty people are
employed by the Owner at the Site
1.2.39 Facility means the completed Project, save and except only the
pit and the mining equipment that operates within the pit, and includes
the Plant, Tailings Dam, Port Concentrate Handling Facilities,
laboratories, truck shop, warehouse, camp accommodation, potable water
supply, process water supply, sewage treatment facilities, roads within
the Site, and all other permanent works, facilities and infrastructure
at the Site.
1.2.40 Feasibility Study means the bankable feasibility study prepared
by Aker Kvaerner for, and delivered in 2005 to, the Owner or its
affiliates.
1.2.41 Final Acceptance means when everything required to be
performed or done by the Contractor under the Contract has been
completed and done, including the completion of all Performance Tests
and the satisfaction of all Performance Guarantees as required by the
Contract, and at the time the Contractor has met all conditions for
Final Acceptance set out herein , all as verified and confirmed by the
Certificate of Final Acceptance.
1.2.42 Financing Entities means any financial institution or other
Person or Persons providing any debt or equity financing for the Owner
in respect of the Project, including by provision of a letter or
letters of credit or other guarantees or insurance in support thereof
and including the holders of, and the agent(s) or trustee(s)
representing the holders of, such instruments.
1.2.43 Form of Release means the form of release in Appendix 14 Form
of Release and General Waiver of Claims.
1.2.44 GC means General Conditions.
1.2.45 General Conditions means this document.
1.2.46 Goods means any materials, supplies, machinery, equipment, fuel
and other things used by the Contractor in performing the Services and
which are to be incorporated in the Project, or are to be consumed in
performing the Services.
1.2.47 Governmental Authority means any and all foreign, domestic,
national, federal, provincial, territorial, state, regional, municipal
or local Governmental Authority, quasi Governmental Authority, Court,
government or self regulatory organization, commission, board,
tribunal, organization, or any regulatory, administrative or other
agency, or any political or other subdivision, department, or branch of
any of the foregoing, having jurisdiction or Governmental Authority in
any way over any aspect of the performance of the Contract or the
operation of the completed Project, including a right to impose a
requirement or whose consent is required with respect to the Project or
the Services.
1.2.48 GST and G.S.T. mean the tax, if any, payable by the Owner to the
extent imposed on payments under this Contract pursuant to Part IX of
the Excise Tax Act, R.S.C. 1985, c. E 15, as amended, and any successor
legislation thereto.
1.2.49 Hourly Remuneration has the meaning given to it in Appendix 6
Compensation.
1.2.50 Human Resources and Industrial Relations Plan means the
construction labour management plan to be produced by the Contractor in
the Project Definition Phase in accordance with the Scope of Services.
1.2.51 Indigenous Peoples Plan means the indigenous peoples plan to be
prepared by the Owner and others.
1.2.52 Industrial Completion means when the Plant has entered into
normal commercial operation, when steady state conditions have been
achieved in and through the Plant, when the complete Plant has operated
for twenty-four (24) consecutive hours without interruption and the
Facility has demonstrated it is capable of continuous operation
thereafter, and when all infrastructure and other parts of the Facility
are functional and in ready to enter into normal operations, with only
minor punch list items to be completed that do not adversely affect
continuous operation of the Facility, all as verified and confirmed by
the Certificate of Provisional Acceptance.
1.2.53 Intellectual Property Rights includes all copyright and
analogous rights, all rights in relation to inventions (including
patent rights), plant varieties, registered and unregistered trademarks
(including service marks), confidential information (including trade
secrets), know-how, circuit layouts and all other rights throughout the
world resulting from intellectual activity in the industrial, scientific
or artistic fields.
1.2.54 "International Cyanide Management Code means the International
Cyanide Management Code For the Manufacture, Transport, and Use of
Cyanide In the Production of Gold" developed by a multi-stakeholder
Steering Committee under the guidance of the United Nations
Environmental Program (UNEP) and the then-International Council on
Metals and the Environment (ICME).
1.2.55 Key Personnel means each and all of the persons named in
Appendix 16 Key Personnel.
1.2.56 Liquidated Damages, whether capitalized or not, are not a
penalty but represent the amount(s) agreed to be paid by the Contractor
to the Owner as the result of the happening of a specified event, which
amount(s) have been agreed by the Contractor and the Owner to represent
a genuine and reasonable pre-estimate of the damages that the Owner will
suffer as a result of the happening of the specified event, and which
the Owner and the Contractor have agreed in advance would be difficult
or impossible to quantify upon the happening of the specified event.
1.2.57 Mechanical Completion means when the Facility has been brought
to a level and state of completion that allows the Plant and the rest
of the Facility to be used for feeding and processing ore, subject only
to Commissioning of equipment, sub-systems and systems, and when all
requirements and pre-conditions for Mechanical Completion specified in
the Owners Requirements or elsewhere in the Contract have been met.
1.2.58 Milestone Date means the date designated as such in the
Milestone Schedule for a Milestone Event, or as such date may be
adjusted in accordance with the Contract.
1.2.59 Milestone Event means, in respect of each Milestone Date, an
event designated as such in the Milestone Schedule.
1.2.60 Milestone Schedule means Appendix 8 Milestone Schedule.
1.2.61 Mining Industry Standards means the standards and generally
accepted best mining and ore processing practices used in the mining
industry in North America for gold mines of comparable or larger size
to the Project and which as a minimum comply with all Applicable Laws
and requirements of all Governmental Authorities. Where no such
standards or generally accepted practices exist for any particular
item, Mining Industry Standards means Prudent Industry Practice.
1.2.62 Notice and notice mean a written communication between the
Parties, as required or permitted by the Contract and conforming to the
requirements of GC 31.
1.2.63 Notice to Proceed With Project Execution Services means the
Notice from the Owner to the Contractor authorizing and directing the
Contractor to commence the Project Execution Phase and provide the
Project Execution Services, all in accordance with this Contract.
1.2.64 O&M Manuals means the Operating and Maintenance Manuals.
1.2.65 O&M Personnel means the personnel engaged by or through the
Owner for the operation and maintenance of the Facility.
1.2.66 Operating and Maintenance Manuals are those manuals that are
generated by Vendors and other Trade Contractors and reviewed and
approved by the Contractor for the installation, operation and
maintenance of all equipment, sub-systems, systems and other parts of
the Facility, and which include the information required to order spare
parts. Except where the context otherwise clearly indicates, references
to Operating and Maintenance Manuals includes the Plant Operations
Manual.
1.2.67 Other Contractors means all contractors, consultants and
other persons engaged to carry out any works or services of whatever
nature at or in the vicinity of the Site (other than the Contractor and
the Trade Contractors).
1.2.68 Owner Documentation means any Documentation provided by the
Owner to the Contractor for the purposes of this Contract.
1.2.69 Owner Standards and Procedures means the Owners standards,
specifications, policies and procedures included in the Owners
Requirements (all as amended from time to time) or, where no such
standards, specifications, policies and procedures are included means
Mining Industry Standards and Prudent Industry Practice.
1.2.70 Owners Representative means the person designated as such in the
Agreement or, if not designated therein, the person designated as such
by Notice from the Owner to the Contractor, or any replacement person
Notice of which has been given by the Owner to the Contractor.
1.2.71 Party means the Owner or Contractor, as applicable.
1.2.72 Parties means both the Owner and Contractor.
1.2.73 Performance Guarantees has the meaning given to it in Appendix
5 Performance Guarantees.
1.2.74 Performance Incentives has the meaning given to it in Appendix
6 Compensation.
1.2.75 Performance Tests means those tests required to be performed
pursuant to Appendix 5 Performance Guarantees to demonstrate that the
Facility will operate in accordance with and fully satisfy the
Performance Guarantees. These tests shall be carried out after the
successful completion of Commissioning.
1.2.76 Permits, Licences and Approvals mean all permits, licences,
approvals, authorizations, permissions, certificates and consents in
relation to the performance of the Services, Trade Contracts or
development, completion and operation of the Project required, issued
by or received from Governmental Authorities, including statements,
requirements, representations and commitments made by the Owner or
Contractor that are contained within or are part of any plans,
schedules, applications or submittals provided or submitted by them to
Governmental Authorities in order to obtain permits, licences,
approvals, authorizations, permissions and consents, as applicable,
from the Governmental Authorities.
1.2.77 Permit to Construct means the permit from the relevant
Governmental Authorities in accordance with Applicable Laws required by
the Owner before it can commence the Project Execution Phase of the
Project.
1.2.78 Person means any individual, corporation, company, voluntary
association, partnership, trust, incorporated organization, or
Governmental Authority.
1.2.79 Personal Information means any and all information about a
Person that, by the applicable Privacy Law, a Party is required to keep
confidential.
1.2.80 Plant means the completed process plant and equipment,
starting from the primary crusher at the pit through to the point on
Site where, as applicable, the final products for sale (concentrate or
gold dore) are ready for transport from the Site, and extends to the
Tailings Dam, and includes the overland conveyor, process equipment,
process buildings and tailings outfall pipe.
1.2.81 Plant Operations Manual means the separate manual that provides
details of all practices and procedures necessary for the safe and
proper operation of all parts of the Facility, highlighting special
precautions that may be necessary and proper start-up and shutdown
sequences and interlocks.
1.2.82 Port Concentrate Handling Facilities means the concentrate
storage and ship loading facilities in Puerto Ordaz for storage and
loading of concentrate from the Plant on to ships.
1.2.83 Practical Completion means when each and all components,
sub-systems and systems for the Facility are ready to operate as an
integrated whole, when all interlocks are completed in accordance with
the design, the entire control system is operating without by-passes,
ore has gone through the crusher, the overland conveyor is operating, a
stockpile has been created at the process plant location, and the
process plant has been in continuous operation for a minimum period of
three (3) consecutive hours without breakdown or stoppage.
1.2.84 Pre-Commissioning and Pre-commissioning mean those activities
immediately preceding Mechanical Completion and the commencement of
Commissioning which consist of the testing, adjustment and initial
operation of equipment, sub-systems and systems to demonstrate they
have been properly installed and are functioning prior to the
introduction of ore or reagents into them in preparation for Mechanical
Completion.
1.2.85 Prime Rate means the Royal Bank of Canadas prime commercial
lending rate of interest on Canadian funds, as designated from time to
time by the Royal Bank of Canadas head office in Canada.
1.2.86 Privacy Law means all Applicable Laws relating to the privacy,
confidentiality or use of any information about individuals.
1.2.87 Professional Services means the services of engineers,
surveyors, architects and other professional consultants, experts and
specialists.
1.2.88 Project means the Brisas Project in Venezuela, as more
particularly described in Appendix 3 Owners Requirements, but for
purposes of the scope of the Contractors Services under this Contract
does not include the following: mobile mining equipment for mining
operations in the open pit mine, pre-production mining operations in
the open pit mine area of the Site and preparing the ESIA.
1.2.89 Project Budget means the Owners budget for the entire Project to
be monitored and administered by the Contractor, which is all-inclusive
and includes all costs for completion of the Project save and except
only the following: cost of mobile mining equipment for mining
operations in the open pit mine; Owners internal costs for its own
personnel, for public relations, for the environmental assessment and
approval process for the Project as a whole, for obtaining the Permit
to Construct; and for pre-production mining operations in the open pit
mine area of the Project.
1.2.90 Project Cash Flow Strategy means the Project cash flow strategy
to be produced by the Contractor in the Project Definition Phase in
accordance with the Scope of Services.
1.2.91 Project Control Group means the project control group referred
to in GC 2.8.1.
1.2.92 Project Controls System means the Project controls system to be
produced by the Contractor in the Project Definition Phase in
accordance with the Scope of Services.
1.2.93 Project Cost Estimate means the definitive Project budget to be
produced by the Contractor in the Project Definition Phase in
accordance with the Scope of Services which shall, among other things,
contain an estimate of the Total Project Cost.
1.2.94 Project Execution means the stage of the Project during which
the Project Execution Services and the work required to achieve Final
Acceptance are to be performed.
1.2.95 Project Execution Services means all of the Services to be
performed, obligations to be fulfilled and all things to be supplied
and provided by the Contractor, whether express or implied, under this
Contract including the preparation of the Detailed Design
Documentation, engineering, procurement, coordination, administration
and Commissioning services associated with the Project.
1.2.96 Project Execution Phase has the meaning given to it in Appendix
2 Scope of Services.
1.2.97 Project Schedule means Appendix 9 Project Schedule until the
Owner has reviewed and accepted the Contractors Detailed Project
Completion Schedule, and thereafter means the Detailed Project
Completion Schedule.
1.2.98 Project Scope Definition Document means the Project scope
definition document to be produced by the Contractor in the Project
Definition Phase in accordance with the Scope of Services.
1.2.99 Provisional Acceptance means Industrial Completion.
1.2.100Prudent Industry Practice means the optimal and best practices,
methods, acts and procedures, and the minimum design, construction and
engineering standards and codes (including without limitation those
practices, methods, acts, procedures, standards and codes related to
reliability, durability, safety, longevity, asset preservation and
protection of the environment) used, generally accepted and applied at
the time of execution of the Contract by engineering, procurement and
construction management contractors experienced in and having an
excellent reputation in the design and construction of mine plants and
infrastructure and by the majority of major gold mine operators in
North America currently operating comparable or larger sized efficient
and effective modern gold mine operations constructed during the last
fifteen (15) years.
1.2.101Regional Socio-Economic Benefits Commitments means the written
commitments made by the Owner to Governmental Authorities to provide
socio-economic benefits to the region in which the Site is located.
1.2.102Request for Proposals means the request for proposals titled
Request for Proposal Brisas Project issued in respect of the Project by
the Owner.
1.2.103 Schedule of Key Personnel means Appendix 16 Key Personnel.
1.2.104Schedule of Plan Requirements means Schedule 1 Schedule of Plan
Requirements to Appendix 3 Owners Requirements.
1.2.105Schedule of Rates means the schedule of rates included in
Appendix 6 Compensation.
1.2.106Scope of Services means Appendix 2 Scope of Services.
1.2.107Services means the services to be provided by the Contractor as
defined and described in Appendix 2 Scope of Services.
1.2.108Site and site means the land, water and other places on, under,
in or through which the Project is to be constructed and installed, and
any other lands and places expressly provided by the Owner for working
space or any other purpose as may be specifically designated in this
Contract as forming part of the Site.
1.2.109Special Conditions means the terms and conditions, if any,
contained in Appendix 7 Special Conditions of the Contract.
1.2.110Standards means Mining Industry Standards.
1.2.111Supplier means Vendor.
1.2.112 Tailings Dam means the dam and reservoir for storage and
disposal of the tailings, and includes the tailings outfall pipe that
is within the dam and reservoir.
1.2.113Tax means any one or more of the Taxes.
1.2.114Taxes means any and all taxes, levies, imposts, duties, customs
duties, stamp duties, fees, withholdings, assessments, deductions or
charges whatsoever, imposed, assessed, levied or collected by any
Governmental Authority, together with interest thereon and penalties
with respect thereto, including occupational, excise, unemployment,
ownership, sales, GST, value added, gross receipts, income taxes,
municipal taxes, financial transaction taxes, payroll taxes, employer
contributions (both statutory and otherwise) and workers compensation
payments and contributions.
1.2.115Total Project Cost means the aggregate final cost and expense
incurred by the Owner in procuring the completion of the Project,
including the Fee and the Trade Cost.
1.2.116Trade Contract means a contract (including a purchase order)
entered into by the Owner, or by the Contractor as disclosed agent for
the Owner, and a Trade Contractor for the provision of work, services,
construction labour, procurement, materials, products, supplies or
other things for the Project, but excludes contracts for the purchase
or lease of mining equipment or the purchase and transportation of
consumables used in actual mining operations in the open pit part of
the Project.
1.2.117Trade Contractor means someone, other than the Contractor and
regular employees or temporary employees of the Owner, who enters into
a contract with the Owner under a Trade Contract, and includes all
Vendors and Suppliers and those who supply any construction labour.
1.2.118Trade Cost means the sum of all amounts payable to Trade
Contractors for performing the Trade Contracts.
1.2.119VAT means the value added tax, if any, payable by the Owner to
the extent imposed on payments under this Contract by the Applicable
Laws of Venezuela.
1.2.120Vendor means someone who supplies plant, materials, equipment,
products or supplies for the Project.
1.2.121Work means all engineering and design, procurement,
manufacturing, construction, erection, installation, start-up,
Commissioning, calibration, testing and all other work, material,
services and equipment required to produce a fully functioning and
operating Facility and that meets the Performance Guarantees, but does
not include the Services.
1.2.122World Bank Guidelines means each and all of the World Bank
Guidelines in regard to the development and operation of projects, the
IFC Guidelines, the Equator Principles and all Appendices to the
Equator Principles, including the World Bank Pollution Prevention and
Abatement Handbook which went into official use on 1 July 1998, all as
amended from time to time.
1.3 Interpretation
1.3.1 The documents comprising the Contract are complementary and
what is called for by any one of them shall be as binding as if called
for by all.
1.3.2 In this Contract, unless the context otherwise expressly
requires:
(a) reference to parts, clauses, schedules, exhibits and appendices
are a reference to them of, in and to this Contract;
(b) reference to specific General Conditions, Sections, Clauses,
Paragraphs, Sub Paragraphs and Appendices are references to such
General Conditions, Sections, Clauses, Paragraphs, or Sub Paragraphs
of, or Appendices to, the Contract and the terms Section, Clause and
Paragraph are used interchangeably and are synonymous when referring to
a provision of an Appendix;
(c) reference to a General Condition, Section, Clause or Paragraph of
the Contract or any Appendix thereto followed by a number shall be
deemed to be a reference to the whole of the General Condition,
Section, Clause or Paragraph of the Contract or Appendix, as
applicable, bearing that number and includes all subsidiary provisions
containing that same number as a prefix;
(d) reference to this Contract is deemed to include this Contract as
amended, novated,
supplemented, varied or replaced from time to time;
(e) any entitlement of the Owner or the Owners Representative to
exercise any judgment, discretion, or decision-making power, or power
to assess compliance by Contractor with its obligations under this
Contract, and to give Directions, shall be exercised reasonably,
professionally, and in accordance with this Contract;
(f) the Contractors obligations in respect to any requirement herein
to cause Trade Contractors to agree to any specific term or condition
in a Trade Contract shall be limited to:
(i) exercising the standard of care set out in GC 3.3.3;
(ii) using all reasonable efforts to comply with the requirements of
the Contract for the content of all Trade Contracts;
(iii) using all reasonable efforts to comply with the Owners
instructions regarding the inclusion of any specific term or condition
in a Trade Contract that the Owner notifies the Contractor that the
Owner requires in such Trade Contract; and
(iv) promptly notifying the Owner, prior to finalization and award of
any such Trade Contract, of the actual terms available to the extent
that they vary from those required herein or from the instructions of
the Owner as to the terms required, and then obtaining the Owners
instructions as to the course of action required of the Contractor by
the Owner, including in the discretion of the Owner agreement to the
proposed terms that vary from those required by the Contract or the
Owner, instructions to negotiate further with such Trade Contractor, or
instructions to negotiate and award the Trade Contract to a different
Trade Contract; and
(g) the Contractors obligations in respect any requirement herein to
cause Trade Contractors to comply with any term or condition in a Trade
Contract shall be limited to:
(i) exercising the standard of care set out in GC 3.3.3;
(ii) using all reasonable efforts and taking all reasonable steps,
short of commencing arbitration or litigation, to compel compliance by
the Trade Contractor, including to the extent permissible under the
Trade Contract withholding payment, rejecting work and backcharging the
Trade Contractor; and
(iii) obtaining the Owners instructions in respect thereof.
1.3.3 In this Contract:
(a) the terms includes, including and similar expressions, whether or
not used with the words without limitation or but not limited to, shall
not be deemed limited by the specific enumeration of items but shall in
all cases be deemed to be without limitation and construed and
interpreted to mean includes without limitation and including without
limitation;
(b) a reference to a Court is to a Canadian court;
(c) words denoting any gender include all genders, and words in the
singular include the plural and vice-versa;
(d) a reference to any legislation or legislative provision includes
any statutory modification or re-enactment of, or legislative provision
substituted for, and any subordinate legislation issued under that
legislation or legislative provision;
(e) a reference to any Party includes that Party's executors,
administrators, substitutes, successors and permitted assigns;
(f) a reference to a business day is to a day that is not a Saturday,
Sunday or any other day which is a public holiday or a bank holiday in
the place where an act is to be performed or a payment is to be made,
and if an act is required to be done on a specified day which is not a
business day then the act shall be done instead on the next business
day;
(g) a reference to a day, month or year is a reference to a calendar
day, calendar month or a calendar year, provided however that a
reference to a month or a year calculated from a specific day means the
number of calendar months or calendar years from that date and to the
end of the same calendar day from which the time was calculated;
(h) a reference to $, USD or dollar is to United States of America
currency;
(i) references containing terms such as all reasonable efforts, when
used in connection with an obligation of either Party, means taking in
good faith and with due diligence all reasonable steps to achieve the
objective and to fulfil the obligation at the earliest possible time,
including doing all that can reasonably be done in the circumstances
and, in any event, taking no less steps and efforts than those that
would be taken by a reasonable and prudent person in comparable
circumstances but where the whole of the benefit or detriment of the
obligation and where all the results of taking such steps and efforts
accrued solely to that person's own benefit or detriment;
(j) references containing terms such as by the Contractor and by or
through the Contractor and terms of like import are synonymous and mean
by the Contractor or by anyone employed by or through the Contractor and
for whom the Contractor is responsible, including the Contractor and its
officers, employees, subcontractors, consultants and agents;
(k) unless otherwise expressly specified in the Owner's Requirements,
all units of measurement in any documents submitted by the Contractor to
the Owner shall be in accordance with and comply with the SI system of
units; and
(l) terms not defined but used in the Contract which have a
recognized technical meaning commonly understood by the gold mining
industry in North America will be construed as having that meaning
unless the context otherwise requires.
1.3.4 References to a statute or other Applicable Law shall include
all regulations, by laws, ordinances and orders made under or pursuant
to the statute or other Applicable Law.
1.3.5 Headings, whether of portions of the Agreement, General
Conditions, Sections or Clauses and whether contained in the Contract
or any schedule or appendix thereto, are for reference purposes only
and shall not constitute a part of the Contract or affect the meaning
or interpretation of the Contract.
1.3.6 This Contract is a negotiated contract and no rule of
construction or contra proferentum applies to the disadvantage of a
Party on the basis that such Party put forward or drafted the Contract
or any part thereof.
1.4 Ambiguous and Inconsistent Terms
1.4.1 If the Owners Representative reasonably considers, or the
Contractor notifies the Owners Representative in writing, that there is
a conflict, ambiguity, inconsistency or discrepancy in or between or
among any of the terms of this Contract, the Owners Representative will
determine the interpretation which the Parties shall follow and will
notify the Contractor accordingly in writing.
1.4.2 The Owners Representative, in giving a direction in accordance
with GC 1.4.1, is not required to determine whether or not there is an
ambiguity or inconsistency.
1.4.3 Subject to the Contractors right under GC 29 to dispute a
determination of the Owners Representative made under GC 1.4.1, the
Contractor will not be entitled to make any Claim (insofar as is
permitted by Applicable Laws) arising out of or in connection with any
conflict, ambiguity, discrepancy or inconsistency referred to in, or a
direction of the Owners Representative under, this GC 1.4.
1.5 Provisions in the Scope of Services
1.5.1 In the Scope of Services, but subject to GC 3.3.3:
(a) where an obligation is prescribed, the Contractor shall fulfil
that obligation;
(b) where an action is required or contemplated to be taken, the
Contractor shall take
that action unless it is expressly stated that the Owner will take that
action;
(c) where a precondition is prescribed in relation to any right or
benefit that the Contractor might become entitled to enjoy, then the
Contractor will only be entitled to the right or benefit if the
precondition is satisfied; and
(d) where a right or benefit is given to the Owner or the Owners
Representative, the Owner or the Owners Representative, as the case may
be, may enjoy that right or benefit even though the right or benefit is
not expressly prescribed by this Contract.
2. PERSONNEL AND CONTRACT ADMINISTRATION
2.1 The Owners Representative
2.1.1 The Owners Representative will give directions and carry out
all of the other functions of the Owners Representative under the
Contract as the agent of the Owner (and not as an independent
certifier, assessor or valuer).
2.1.2 The Contractor shall comply with any direction by the Owners
Representative given or purported to be given under a provision of this
Contract.
2.1.3 Except where the Contract otherwise provides and except in
relation to either an environmental or safety related issue where the
Owners Representative perceives a risk of potential harm or danger, the
Owners Representative may only give a direction in writing.
2.1.4 The Owner may replace the Owners Representative by Notice to
the Contractor at any time.
2.1.5 The Owner shall cause the Owners Representative to do or
refrain from doing all things which this Contract provides that the
Owners Representative shall do or refrain from doing, as the case may
be.
2.1.6 The Contractor shall not be required to comply with any
direction given by the Owners Representative under GC 2.1.1, GC 2.1.2
or GC 2.1.3 which is not consistent with good professional practice.
Where the Owners Representative gives the Contractor a direction which
is not consistent with good professional practice, but which is not
forbidden by good professional practice, the Contractor shall be
excused from all liability in respect of following such instruction
from the time at which the Contractor gives the Owners Representative
Notice of the inconsistency and sets out in that Notice a
non-exhaustive summary of expected adverse consequences on the Project
of complying with such instruction.
2.2 Delegation of the Owners Representatives Power
2.2.1 The Owners Representative may by Notice to the Contractor
appoint delegates to exercise any of the Owners Representatives
functions under this Contract and, by further Notice to the Contractor,
may terminate such appointments.
2.2.2 The Owner will promptly inform the Contractor in writing of:
(a) any replacement of the Owners Representative; and
(b) any delegation by the Owners Representative of the Owners
Representatives function under this Contract to a nominee, the extent
and the scope of that delegation, and any termination of appointment of
delegates.
2.3 Compliance with Directions
2.3.1 If the Contractor fails or refuses to comply with a direction
by the Owners Representative given in accordance with this Contract,
the Owner may notify the Contractor in writing of the Contractors
failure or refusal to comply with a direction of the Owners
Representative, in which case the provisions of GC 26.4 shall apply.
2.4 Delegation of Contractors Representatives Power
2.4.1 The Contractors Representative may by Notice to the Owner
appoint delegates to exercise any of the Contractors Representatives
functions under this Contract and, by further Notice to the Owner, may
terminate such appointments.
2.4.2 The Contractor shall promptly inform the Owner in writing of:
(a) any replacement of the Contractors Representative; and
(b) any delegation by the Contractors Representative of the
Contractors Representatives functions under this Contract to a nominee,
the extent and the scope of that delegation, and any termination of
appointment of delegates.
2.4.3 The Contractors Representative or the Contractors
Representatives delegate shall be available at all times at the Site
when the Contractor is performing the Services on the Site.
2.5 Contractors and Owners Acknowledgments
2.5.1 The Contractor and the Owner acknowledge and agree that:
(a) any notice, consent, approval or other communication given or
signed by the Contractors Representative or any Contractors
Representatives delegate will bind the Contractor;
(b) matters within the Contractors Representatives knowledge will be
deemed to be within the knowledge of the Contractor;
(c) any direction, consent, approval or other communication given or
signed by the Owners Representative or by a delegate appointed under GC
2.2 on behalf of the Owners Representative to any Key Personnel will be
deemed to have been given to the Contractor; and
(d) matters within the Owners Representatives knowledge will be
deemed to be within the knowledge of the Owner.
2.6 Personnel
2.6.1 The Contractor shall:
(a) provide experienced and skilled Contract Personnel to perform the
Services in accordance with its obligations under this Contract; and
(b) ensure that the Services are performed under the supervision of
appropriately qualified and experienced personnel.
2.6.2 Neither Party shall, without the prior agreement of the other
Party, solicit any employee of the other Party who has been involved in
the Project or this Contract while that person is working for the other
Party on the Project, or during the earlier of the date that is six
(6) monthsfollowing that persons termination of employment by the other
Party and the last date that such person worked on the Project for that
other Party.
2.6.3 The Contractor acknowledges and agrees that the Key Personnel
are critical for the proper management, supervision and performance of
the Services on schedule and budget. The Contractor shall assign to the
performance of the Services the Key Personnel, who the Contractor shall
ensure will give the performance of the Services priority over any and
all other work, tasks and assignments that they may otherwise have
assigned to them by the Contractor in relation to other existing or
future projects. No Key Personnel shall be hired by any affiliate of
the Contractor for any other work or project without the prior written
consent of the Owner, which consent is subject to such terms as the
Owner may require, and if the Contractor wishes to replace any Key
Personnel as aforesaid the Contractor shall:
(a) first, demonstrate to the Owners reasonable satisfaction that the
proposed replacement personnel have comparable or superior
qualifications and experience to those they are proposed to replace; and
(b) absorb the cost of any learning and training required to bring
such replacement personnel up to the same knowledge and level of
productivity of the personnel replaced.
2.6.4 The Owner may, in its absolute discretion, direct the
Contractor to remove from the Site, or from any activity connected with
performance of the Services, any Contract Personnel engaged or employed
in connection with the performance of the Services, provided that if
the Owner does not provide reasonable grounds for requiring such
removal the said direction shall constitute a Change Directive in
accordance with and subject to GC 15.
2.6.5 The Contractor shall comply with a direction made under GC
2.6.4 within the time specified by the Owner.
2.6.6 Notwithstanding any other provision of this Agreement, the
Contractor is solely responsible for, and shall consult with the Owner
and provide the Owner with such information as the Owner may require
with respect to, the accommodation, sustenance and medical care of
Contract Personnel.
2.6.7 In consultation with the Owners Representative, the Contractor
shall assign the Key Personnel to complete various portions of the
Services. The Contractor shall ensure that the Key Personnel are
available to follow through and ensure the completion of such portions
of the Services as are assigned to them.
2.6.8 As the Key Personnel are critical for the proper management,
supervision and performance of the Services on schedule and budget, the
Contractor acknowledges and agrees that:
(a) it will pay to the Owner Liquidated Damages at the relevant rate
and up to the maximum amount of Liquidated Damages as stated in the
Schedule of Key Personnel, for every day for which a member of the Key
Personnel is removed from or not available for the Services, but for
which they are required to be so available, until the earlier of:
(i) the day that the member of the Key Personnel is again made
available;
(ii) the date that the member of the Key Personnel is replaced with a
substitute person approved by the Owners Representative;
(iii) the date that this Contract is terminated; and
(iv) the date of Final Acceptance, unless such removal is due to
resignation, serious illness, injury or death of the Key Personnel or
is otherwise approved by the Owners Representative, or directed by the
Owner under GC 2.6.4;
(b) the specified rates of Liquidated Damages are separate and
cumulative for each member of the Key Personnel;
(c) if the Owners entitlement to, and the Contractors liability for,
Liquidated Damages under GC 2.6.8(a) is or becomes void, voidable or
unenforceable for any reason or there is no amount specified in the
Schedule of Key Personnel, then
the Contractor shall not be entitled to or charge the Owner for any
work or services performed by replacement personnel for that amount of
their time that is equivalent to the Liquidated Damages that, but for
the foregoing, the Contractor would otherwise be required to pay to the
Owner for the Contractors failure to provide the Key Personnel in
accordance with this Contract; and
(d) notwithstanding the foregoing, if a maximum amount of Liquidated
Damages is stated in the Schedule of Key Personnel, then the
Contractors liability under this GC 2.6.8 shall not exceed that maximum
amount.
2.7 Comments, Review, Representation or Approval by the Owner or the
Owners Representative
2.7.1 As the Owners Representative carries out its functions under
the Contract as agent of the Owner, neither the Owners Representative
nor a delegate appointed under GC 2.2 owes any duty to the Contractor
in discharging any of the functions of the Owners Representative under
the Contract.
2.7.2 No comment, review, representation or approval by the Owner or
the Owners Representative in respect of the Contractors obligations
under this Contract (including comments on, or review or approval of,
any Contract Material), or any other direction of the Owners
Representative given in accordance with this Contract, will lessen or
otherwise affect the Contractors obligations under this Contract and,
without limiting the generality of the foregoing, the Contractor shall
be solely responsible for any and all design and engineering for the
Project performed as part of the Services.
2.8 Project Control Group
2.8.1 The Project Control Group is:
(a) the Owners Representative; and
(b) the Contractors Representative.
2.8.2 The Owners Representative or the Contractors Representative may
invite any other person, whom either person reasonably requires, to
attend the Project Control Group meetings.
2.8.3 The Project Control Group shall meet:
(a) on a monthly basis; and
(b) at such other times as the Owners Representative and Contractors
Representative agree or, failing agreement, at such other times as the
Owners Representative may direct.
2.8.4 The Contractor shall:
(a) take minutes of all meetings held by the Project Control Group;
and
(b) provide a copy of those minutes to the Owner's Representative.
2.8.5 In respect of minutes provided pursuant to GC 2.8.42.8.4(b),
the Owner's Representative shall:
(a) if the Owner's Representative disagrees with the minutes, discuss
and then amend the minutes to reflect the agreed position or the results
of the meeting; and
(b) give to the Project Control Group members a copy of the amended
minutes at which point the amended minutes will be deemed to be the
official record of the relevant meeting.
2.9 [Intentionally deleted]
2.10 Contractor's Request for Information
2.10.1 The Contractor acknowledges and agrees that, other than as
expressly provided elsewhere in this Contract, it is the Contractors
responsibility to make all enquiries, obtain all information and make
all judgments that are relevant to and necessary for the performance of
the Services.
2.10.2 The Contractor shall not delay the progress of the Services or
any part of it by reason of the Contractor awaiting information from
the Owner or the Owners Representative:
(a) unless this Contract expressly provides otherwise;
(b) unless the Owners Representative otherwise in writing directs the
Contractor; or
(c) except to the extent that the Contractor cannot reasonably
proceed with the Services without the information.
2.11 Records Open for Inspection and Audit
2.11.1 The Contractor shall keep and maintain:
(a) the records identified in the Project Procedures Manual; and
(b) all other Contract Material relating to the Project, at the
Contractors address as set out in the Agreement.
2.11.2 The Contractor shall ensure that all Contract Material relating
to the Project, and the quality system and the records and Contract
Material referred to in GC 2.11.1 are available to the Owner (or
persons nominated by the Owner) at all reasonable times for
examination, audit, inspection, transcription and (in respect of
records only) copying.
2.11.3 The Contractor shall keep and maintain at the Site for use by
the Owner a current set of the documents comprising the Contract, all
Contract Material and all documents, drawings, instructions issued by
the Owner in connection with the Project. In addition, the Contractor
shall keep and maintain on Site one (1) full set of all drawings in
good order, on which the Contractor shall keep a current record of all
changes and as built information.
2.11.4 The Contractor shall at its expense keep and maintain full and
detailed records and accounts in connection with the performance of the
Contract in accordance with both generally accepted accounting
principles and the minimum standards and practices of comparable
national or international engineering firms in North America for
keeping and maintaining such records and accounts.
2.11.5 If and whenever required by the Owner, the Contractor shall
submit records, accounts and other data in a form and with such
breakdown as may be reasonably required by the Owner for the Owner to
maintain segregated accounts of the Work for the Owners own records as
may be required of the Owner by Applicable Laws or to satisfy any
Governmental Authorities, but unless required by Applicable Laws or
Governmental Authorities such breakdowns shall be limited to
reimbursable amounts and not the makeup of negotiated rates. Such
segregation may include separate accounting for taxable and non-taxable
expenditures with respect to among other things buildings, land
improvements, engineering and project management, interconnection,
permit and licence costs, and taxes and fees paid by the Contractor.
2.11.6 The Contractor shall at all times, and for at least three (3)
years after final payment under the Contract, keep full and
comprehensive records of all time spent by each and all Contract
Personnel, expenditures made, and indebtedness incurred with respect to
the Contract or for which it may be entitled to payment or reimbursement
by the Owner. All such records and documents in connection with the
Project or in respect of which the Contractor claims compensation from
the Owner shall be subject and open to inspection and audit by the
Owner at any time upon demand from the Owner, which inspection and
audit shall take place during normal business hours and at the
Contractors normal places of business unless the Owner and Contractor
otherwise agree.
2.11.7 In conducting an audit of the Contractor the Owner shall have
all powers necessarily incidental to conducting an audit, including the
right to have access to and inspect and take copies of all books and
records of the Contractor in connection with the Contract, upon
reasonable notice and at reasonable times. The Contractor shall fully
cooperate with the Owner and its auditors in the conduct of any audits,
including by making available all such records and accounts as they may
require to perform a full and detailed audit, and the Contractor
further agrees to promptly review and settle with the Owner all matters
arising from such audits, including the refunding of monies to the Owner
where applicable. Without limiting the generality of the foregoing, the
Contractor shall make available to all auditors of the Owner all books,
records, data and documentation as they consider necessary to allow them
to perform a full and comprehensive audit. At the
request of the Owners auditors the Contractor shall provide such
records, data and documentation as the Owners auditors may reasonably
require to substantiate all costs, expenditures and allocations
incurred or made by the Contractor in connection with the Project, and
to confirm that they are consistent with the Contractors historical
costs, charges and allocations for similar work for others, or if there
are no historical costs then consistent with generally accepted
accounting principles used by major international engineering firms.
2.11.8 In addition to the financial audit of the Contractors accounts
pursuant to GC 2.11.7, the Owner shall have the right to monitor and
audit the performance of any and all parts of the Services wherever
located, and the Contractor shall cooperate with, and shall require
that its subcontractors cooperate with, and provide access to the
representatives of the Owner monitoring and auditing such parts of the
Services, including providing them with access and copies of all
relevant manufacturing, inspection, QA, QC and other records and
documents pertaining thereto.
2.11.9 If this Contract is terminated, the Contractor shall give the
Owner any records and Contract Material referred to in GC 2.11.1 which
are necessary for the orderly continuance of the Services by another
Person.
2.12 Privacy
2.12.1 The Contractor and the Owner warrant that they will comply with
applicable Privacy Law in relation to the collection, use or disclosure
of Personal Information in relation to this Contract.
2.12.2 The Contractor and the Owner agree to:
(a) observe the Privacy Law for all Personal Information collected or
dealt with by the Contractor or the Owner (as the case may be) under
this Contract;
(b) take reasonable measures to ensure that Personal Information
relevant to this Contract is protected against:
(i) misuse or loss; and
(ii) unauthorised access, modification and disclosure, and that only
authorized personnel have access to Personal Information;
(c) ensure all personnel involved in collecting or dealing with
Personal Information are adequately trained as to the requirements of
the Privacy Law and this Contract;
(d) give the other Party reasonable assistance for it to resolve any
inquiry or complaint relating to Personal Information;
(e) promptly follow any reasonable direction of the other Party
regarding the Personal Information and compliance with the Privacy Law;
(f) promptly inform the other Party of any breach of this GC 2.12.
3. GENERAL REQUIREMENTS REGARDING SERVICES
3.1 General
3.1.1 The Contractor shall provide and perform the Services described
in Appendix 2 Scope of Services as required to complete the Project,
meet the Owners Requirements and Performance Guarantees, and achieve
Final Acceptance, all:
(a) in accordance with the requirements of this Contract; and
(b) unless otherwise stated, at its cost.
3.1.2 The Contractor is solely responsible for the performance of the
Services. This obligation is not affected by any approval given by the
Owner or any Governmental Authority.
3.1.3 The Contractor shall provide leadership as well as engineering,
procurement, construction, scheduling and coordination expertise.
3.1.4 The Contractor shall:
(a) diligently prosecute the performance of the Services for the
purpose of completing the Services and Facility so that:
(i) each of the Milestone Dates in the Milestone Schedule from and
after the Milestone Date for commence construction will be met,
including the Milestone Dates for Industrial Completion and Final
Acceptance; and
(ii) the Project Schedule will be met.
(b) if and when a Notice to Proceed With Project Execution Services
has been issued by the Owners Representative, use all reasonable
efforts to achieve Final Acceptance for the Project within the Approved
Project Budget;
(c) before the related construction work on any portion of the
Project is commenced, ensure that the Detailed Design Documentation and
methods of working proposed or specified in respect thereof by itself or
any Trade Contractor are approved by the Owners Representative;
(d) establish and implement a quality assurance system for the of the
Project in accordance with the Scope of Services and which complies with
ISO 9000: 2000;
(e) recommend and seek the Owners approval to undertake all studies,
reviews, investigations and other processes and value engineering which
in the opinion of the Contractor are necessary to enable the Contractor
to inform the Owner of all reasonable available advantages or benefits
to the Project, and in particular:
(i) uses of the Site;
(ii) selections of materials;
(iii) building techniques and equipment; and
(iv) alternative designs and materials; and
(f) perform the Services, and use all reasonable efforts to ensure
(but does not guarantee) that all Trade Contractors perform their Trade
Contracts, in a manner which meets all Applicable Laws relating to or
governing occupational health and safety and the Owner Standards and
Procedures.
3.1.5 The Contractor:
(a) shall use all reasonable efforts to inform itself of the Owners
requirements for the Services and the Project and, for that purpose,
regularly consult with the Owners Representative throughout the
performance of the Services (including requesting instructions from the
Owners Representative and seeking comments on, or review or approval, of
any Documentation);
(b) shall at all times provide the Services in accordance with the
Owners requirements referred to in GC 3.1.5(a) and any instructions
given by the Owners Representative; and
(c) is responsible at its own cost and without reimbursement from the
Owner for the re-performance of any Services which are required because
of a failure to provide the Services in accordance with the Contract or
the Owners requirements as such requirements are expressly made known to
the Contractor under and in accordance with the Contract.
3.2 Budgetary Constraints
3.2.1 The Contractor acknowledges that the Owner has budgetary
constraints and limitations for the Project and agrees to cooperate
with the Owner in the Owners efforts to control and monitor its budget
for the Project, including (subject to locking in each element of the
design of the Facility in accordance with the standard of care set out
in GC 3.3.3 or as may be specifically directed by the Owner) by
assisting the Owner to identify any value engineering and cost-saving
exercises which can be reasonably expected to reduce the cost to the
Owner for the Project. Without limiting but in addition to the
foregoing, the Contractor shall use all reasonable efforts to perform
its Services expeditiously and economically and, in doing so, shall:
(a) assign personnel to the Services in consultation with the Owners
Representative and not assign any more personnel to the Services than
the number of personnel reasonably required to perform the Services;
(b) assign to the performance of the Services only personnel who are
qualified by education or experience to perform the work in which they
are engaged and who have such professional qualifications and
credentials as may be required by Applicable Law, Governmental
Authorities or Prudent Industry Practice, unless the Owners
Representative otherwise expressly agrees in writing;
3.2.2 Once the budget for the Services has been established and
approved by the Owners Representative, the Contractor will monitor all
costs of the Services against the approved budget for Services and
provide reports, on a monthly or such other frequency as may be agreed
to by the Owners Representative, forecasting the costs to complete all
of the Services. Such reports shall be in a format agreed to between
the Owner and the Contractor and, among other things, contain the
following:
(a) the actual hours expended and costs incurred by the Contractor on
Services for which the Owner is responsible, both since the last report
and since the commencement of the Services;
(b) identification of and explanation for any variances between the
actual hours expended and the actual costs incurred, and the
projections for those hours and costs in the approved budget for the
Services;
(c) the hours and costs forecasted by the Contractor for the
provision of Services for the next monthly period, and the cumulative
totals of hours and costs for the provision of all Services from the
commencement to the completion of the Services, together with the
identification of and explanation for variances between those
projections and the approved budget for Services;
(d) to the extent not already included in the above, a list of any
outstanding requests for changes to the Scope of Services to date; and
(e) the identification of any further changes to the Scope of
Services that may be required to completion of the Project.
3.2.3 The Owners Representative and the Contractors Representative
shall meet monthly, or at such other times as they may agree, to review
the aforesaid reports provided by the Contractor and to review the
approved budget for the Services to identify areas of potential cost
over-runs and under-runs, the reasons therefor, and forecasts to
complete the Services.
3.3 Warranties and Standard of Care
3.3.1 The Contractor warrants to the Owner that it and its Contract
Personnel shall at all material times have the particular skill,
experience and ability necessary to perform the Services and will
continue to have them during the term of this Contract, and that the
Contractor will comply with the requirements of this GC 3.3.
3.3.2 All parts of the Services required by Applicable Laws to be
performed by licensed or registered professional engineers or
architects shall be performed by licensed or registered professional
engineers and architects. Without limiting the generality of the
foregoing, all design shall, to the extent required by Applicable Laws,
be reviewed by professional engineers registered to practice
professional engineering in the jurisdiction in which the Site is
located.
3.3.3 In the performance of all of the Services, and all parts of the
Services, the Contractor shall exercise no less standard of care and
diligence than the generally accepted standard of care and diligence to
be exercised for professional and other services of a similar nature in
respect of comparable mining projects in North America by recognized
reputable North American engineering firms engaged in the performance
comparable services in respect of such types of projects, and the
Contractor shall perform the Services in a competent and efficient
manner, apply suitable and sufficient qualifications, experience,
expertise and resources to this Project, observe sound management,
technical, engineering and consulting practices, and employ appropriate
sound, proven technology and methods, and use all due diligence,
efficiency and economy, and exert all reasonable efforts, as required
to comply with the said standard of care for the intended purpose of
completing the Facility and meet the Date for Industrial Completion,
all other Milestone Dates, and the Approved Project Budget.
3.3.4 Without limiting but in addition to any other obligation on the
Contractor pursuant to this Contract or under Applicable Law, the
Contractor and its subcontractors, and their respective consultants,
shall for all engineering and design use only design personnel who,
through education, training and experience, have the requisite
knowledge and skills to perform the part of the Services assigned to
them and which is consistent with the general design standards
specified in the Contract, including GC 3.3.3.
3.3.5 The Contractor shall ensure that any subcontractor appointed by
it to provide part of the Services performs that part of the Services
with the professional skill, care and diligence expected of a
professional consultant experienced in projects of a similar nature to
the Project and activities of a similar nature to the part of the
Services subcontracted to that subcontractor.
3.3.6 The Contractor warrants to the Owner that it has examined:
(a) the Scope of Services;
(b) the Milestone Schedule; and
(c) all other information or documents relating to the Project
provided to the Contractor by the Owner,
and is satisfied of their sufficiency for the purpose of complying with
its obligations under this Contract, and that in the opinion of the
Contractor based on its knowledge at the time of execution of the
Contract, the Scope of Services, the Performance Guarantees, the
Milestone Schedule and the Approved Project Budget can all be met or,
in the case of the Scope of Services, performed.
3.4 Equipment Importation
3.4.1 The Contractor shall cause Trade Contractors to make and be
responsible for all arrangements, including the preparation,
translation and processing of all documentation, necessary to import
into Venezuela all permanent equipment to be incorporated into the
Facility and any and all other tools, items and Goods necessary to
complete the Project, and the Contractor shall coordinate with the
applicable Governmental Authorities in achieving clearance of customs
for all such permanent equipment, tools, other items and Goods at the
earliest time and, to the extent available under the Applicable Laws,
achieving such importation duty free and tax free.
3.4.2 Unless the Owner otherwise agrees in writing, all tools, other
items and Goods imported into Venezuela by the Contractor and Trade
Contractors shall be imported in the name of Compania Aurifera Brisas
del Cuyuni, C.A.
3.4.3 Without limiting but in addition to GC 3.4.1, the Contractor
shall arrange and provide for any and all of its Goods imported into
Venezuela, and shall require Trade Contractors to arrange and provide
for any and all of their permanent equipment to be incorporated into
the Facility imported into Venezuela, and any and all of their other
tools, items and goods necessary to complete the Project imported into
Venezuela, such documentation and detailed information, including
Spanish translations of import documents, brochures and detailed
specifications as may be required, for submission to custom duty
officers and other Governmental Authorities before shipping and after
import as may be necessary to obtain exoneration or, where exoneration
is not possible, to minimize import and other duties and Taxes on such
Goods.
3.5 Continuing Warranties
3.5.1 The warranties contained in GC 3.3 will be treated as made and
be binding upon the Contractor continuously during the term of this
Contract.
4. REGIONAL SOCIO-ECONOMIC BENEFITS AND INDIGENOUS PEOPLES
4.1 Indigenous Peoples
4.1.1 The Contractor shall comply with the Indigenous Peoples Plan
and enforce compliance by the Trade Contractors with the Indigenous
Peoples Plan.
4.1.2 If compliance with the Indigenous Peoples Plan affects the
Project Budget or the Milestone Date for Industrial Completion, either
Party may request a Change Order.
4.2 Regional Socio-Economic Benefits
4.2.1 The Contractor shall comply with the Regional Socio-Economic
Benefits Commitments.
4.2.2 If compliance with the Regional Socio-Economic Benefits
Commitments affects the Project Budget or the Milestone Date for
Industrial Completion, either Party may request a Change Order.
5. PROTECTION OF THE ENVIRONMENT
5.1 General
5.1.1 The Contractor shall, in accordance with the requirements of
the Contract, prepare and implement procedures to comply with the
Environmental Management Plan.
5.1.2 Contractor shall ensure that the design and construction of the
Facility and Project is in accordance with the environmental protection
requirements of Applicable Laws and Mining Industry Standards, The
International Cyanide Management Code, and World Bank Guidelines.
6. [INTENTIONALLY DELETED]
7. PROJECT EXECUTION SERVICES
7.1 Progression to Project Execution
7.1.1 Unless otherwise stated in the Notice to Proceed With Project
Execution Services, the issue of a Notice to Proceed With Project
Execution Services by the Owners Representative to the Contractor
authorises the Contractor to commence Project Execution.
7.1.2 If the Notice to Proceed With Project Execution Services
identifies matters which require further development by the Contractor
or further negotiations between the Owner and the Contractor, the
Contractor and the Owner will co-operate in good faith to resolve and
agree upon such matters.
7.2 General Obligations
7.2.1 The Contractor shall provide the Project Execution Services as
required to achieve Final Acceptance for the Project in accordance with
the requirements of this Contract and any other requirements of the
Owner as notified by the Owner to the Contractor.
7.2.2 The Project Execution Services to be carried out by the
Contractor include:
(a) the performance of Detailed Design and the preparation of the
Detailed Design Documentation;
(b) procurement services;
(c) co-ordination and administration services; and
(d) compliance with all Applicable Laws.
7.2.3 The Contractor shall commence the Project Execution Services on
the date specified in the Notice to Proceed With Project Execution
Services or as otherwise directed by the Owners Representative and
ensure that Industrial Completion is achieved by the Date for
Industrial Completion and Final Acceptance is achieved by the Date for
Final Acceptance.
7.3 [Intentionally deleted]
7.4 Project Execution Project Planning Obligations
7.4.1 The Contractor shall, during Project Execution, ensure that the
Project Plan is updated:
(a) periodically as directed by the Owners Representative; or
(b) if no such direction is given, weekly; and
(c) to show progress achieved; and
(d) where appropriate, to show changes to the sequence and duration
of activities required to meet the Date for Industrial Completion
(including the effect (if any) of any extension of time) together with
any corresponding changes to proposed manpower and shifts to be worked
and resources to be utilised, and that a copy of each update is
promptly provided to the Owners Representative for approval.
7.4.2 The Owners Representative may reject an updated Project Plan or
require amendments to be made to it within seven (7) days of receiving a
copy of such updated Project Plan.
7.4.3 Where the Owners Representative rejects a Project Plan, the
Contractor shall submit a corrected and revised Project Plan within
seven (7) days of being notified that the Project Plan is rejected.
7.4.4 The Contractor acknowledges and agrees that review of, comments
on or approval of, or any failure to review or comment on, any updated
Project Plan by the Owners Representative will not:
(a) relieve the Contractor from or alter its liabilities or
obligations under this Contract, including the obligation to ensure
that Industrial Completion occurs by the Date for Industrial Completion
and Final Acceptance by the Date for Final Acceptance;
(b) evidence or constitute a direction by the Owners Representative
to disrupt, prolong or vary the Project; or
(c) affect the time for carrying out the Owner or the Owners
Representatives Contract obligations.
7.5 Project Execution Cost Planning Obligations
7.5.1 The Contractor shall:
(a) regularly review the Approved Project Budget with the Owners
Representative;
(b) inform the Owners Representative if it becomes aware of any
likely or actual cost overruns on the budget estimates for the Trade
Contracts;
(c) identify and advise the Owners Representative of any potential
cost savings in any of the Trade Contracts; and
(d) use all reasonable efforts to identify and advise the Owners
Representative of the appropriate measures for ensuring that the total
budgeted cost of the Project (as stated in the Approved Project Budget)
is not exceeded.
7.6 Rights and Obligations Not Affected
7.6.1 No review or approval by the Owner or the Owners Representative
of any one or more of the following will relieve the Contractor of its
responsibility for preparing and implementing each of the following
plans with such detail and content as may be reasonably required for
the proper execution of the Project and to conform to the standards of
care required by GC 3.3.3:
(a) the environmental procedures for implementing the Environmental
Management Plan;
(b) the Safety and Health Plan;
(c) the Human Resources and Industrial Relations Plan;
(d) the Quality Assurance Plan;
(e) Trade Contract provisions requiring Trade Contractors to comply
with the Indigenous Peoples Plan; and
(f) the Project Procedures Manual;
8. SITE
8.1 Owner Site Information
8.1.1 The Contractor is entitled to rely upon the accuracy of the
following information as provided by the Owner:
(a) Metallurgical test data, but not opinions or conclusions
expressed in metallurgical test reports based on such data;
(b) Bore hole logs and geotechnical logs of test pits, but not
opinions or conclusions expressed in documents containing such logs;
(c) Hydrology reports;
(d) Climatological data;
(e) Topographical surveys, except in those areas of the Site where
facilities are to be located;
(f) Concession boundaries;
(g) Location and characteristics of existing electrical substation;
(h) Feasibility Study, subject to the Contractors obligations during
the Project Definition Phase to review the Feasibility Study and make
recommendations to the Owner regarding the sufficiency and reliability
of information contained therein and any additional work that may be
required, all to develop the detailed Project scope and Approved
Project Budget for the Project Execution Phase.
8.1.2 Subject to GC 8.1.1, where the Owner has made available to the
Contractor, whether before or after the Date of Contract, any
information, data and documents of any kind:
(a) the Owner does not warrant, guarantee or make any representation
about the accuracy or adequacy of any such information, data and
documents made available to the Contractor; and
(b) unless expressly provided otherwise in this Contract, such
information, data and documents do not form part of the Contract and GC
8.2 applies to the information, data and documents.
8.2 Contractors Acknowledgements
8.2.1 Subject to GC 8.1, the Contractor acknowledges and agrees:
(a) that it did not in any way rely upon:
(i) any information, data, representation, statement or document made
by or provided to the Contractor by the Owner or anyone on behalf of the
Owner; or
(ii) the accuracy or adequacy of any such information, data,
representation, statement or document,
for the purposes of entering into the Contract, except to the extent
that any such information, data, representation, statement or document
forms part of the Contract;
(b) that it enters into this Contract based on its own
investigations, interpretations, deductions, information and
determinations.
9. DESIGN
9.1 Preparation of Contract Material
9.1.1 Without limiting the obligations under Appendixes 2 and 7 of
this Contract
(a) the Contractor shall develop and complete to the Owners and all
applicable Mining Industry Standards and Prudent Industry Practice all
Contract Material required for the completion of the Project and the
Services; and
(b) Contract Personnel shall prepare the Contract Material and any
other design drawings and specifications with appropriate professional
qualifications.
9.1.2 The Contractor shall:
(a) give the Owners Representative for review two copies (or such
other number of copies as directed by the Owners Representative) of all
Contract Material (including amended versions) as soon as it is prepared
and in any event no later than the time indicated in the then current
approved Project Plan under GC 7.4 for the submission of the Contract
Material to the Owners Representative;
(b) allow no fewer than fourteen (14) days, before the time indicated
in the then current approved Project Plan under GC 7.4 for the issue of
the Contract Material to subcontractors, suppliers or Trade Contractors,
for the Owners Representative to review the Contract Material;
(c) not take any further steps in relation to any Contract Material
which it has submitted to the Owners Representative, including issue of
the Contract Material to subcontractors or Trade Contractors or
commencing procurement of the construction of the part of the Project
to which the Contract Material applies, unless the Owners
Representative has had no fewer than fourteen (14) days to review the
Contract Material and has not rejected the Contract Material; and
(d) if any Contract Material is rejected, submit amended Contract
Material to the Owners Representative for review, in which case this GC
9.1 will apply.
9.2 Review and Acceptance or Approval by Owner
9.2.1 Neither the Owner nor the Owners Representative undertakes any
responsibility or duty of care to the Contractor to review, or in
reviewing, the Contract Material for errors, omissions or compliance
with this Contract.
9.2.2 No review of, comments upon, rejection of, or failure to review
or comment upon or reject, any Contract Material prepared by the
Contractor or any other direction by the Owners Representative about
the Contract Material (provided the Contractor has not objected in
writing to, and within a reasonable time after, such a direction) will:
(a) relieve the Contractor from, or alter or affect, the Contractors
liabilities or responsibilities whether arising out of or in connection
with the Contract or otherwise according to Applicable Laws; or
(b) prejudice the Owners rights against the Contractor under this
Contract.
9.2.3 Without limiting but in addition to the provisions of GC 9.2.1
and GC 9.2.2, any review, acceptance, monitoring, approval or audit of
any Contract Material or part of the Services by the Owner or Owners
Representative shall not be interpreted or otherwise construed to be,
an acceptance or approval of any Contract Material or part of the
Services that is not in full conformance with all requirements of the
Contract
9.3 Ownership of, and Intellectual Property Rights in, Contract
Material
9.3.1 Subject to GC 9.3.2, the title, property rights and ownership
in and to all of the Contract Material shall immediately upon creation
vest in the Owner without payment in respect therefor (other than
amounts payable in accordance with GC 18 for Services rendered), and
the Contractor hereby assigns to the Owner all Intellectual Property
Rights (including future copyright), and waives all moral rights, in
all Contract Material upon the creation of that Contract Material or,
to the extent that any Intellectual Property Rights are not created at
the time of the creation of the Contract Material, upon the later
creation of the Intellectual Property Rights in that Contract Material.
The Contractors waiver of moral rights include without limitation waiver
of the right to the integrity of the Contract Material, waiver of the
right to be associated with the Contract Material, waiver of the right
to modify the Contract Material in any way, waiver of the right to
prevent use of the Contract Material in association with any product,
service, project or institution, and waiver of the right to restrain
publication of the Contract Material throughout the world. The Owner
shall at all times have the right to control, review and otherwise deal
with all Contract Material, and to deliver it to third parties, without
restriction. The Contractor shall, upon request from the Owner, do all
such things and execute and deliver to the Owner all such documents and
instruments as the Owner shall reasonably require in order to vest
title, property rights and ownership in the Owner in accordance with
the foregoing.
9.3.2 Subject to GC 9.3.3, the vesting of ownership, assignment and
waiver of moral rights in GC 9.3.1 will not extend to components of the
Contract Material:
(a) which have been developed by the Contractor for general use in
the Contractors work or business and which have not been specially
developed for the Project, or which comprise non-confidential and
non-identifying information which is of general application in the
Contractors services or business; or
(b) which consist of computer software developed by the Contractor
for general use in the Contractors work or business which is not
specific to the Project, and for which the cost of development has not
been charged to the Owner.
9.3.3 To the extent the Contract Material contains any Intellectual
Property Rights created prior to the Date of Contract or that were
developed by the Contractor independently of the Project, the
Contractor grants the Owner an irrevocable right and royalty free right
to use the Intellectual Property Rights solely for the purpose of the
Project, including any subsequent repairs to, maintenance or servicing
of (including the supply of replacement parts), or additions or
alterations to, the Project.
9.3.4 Subject to GC 9.3.2 and GC 9.3.3, the Contractor shall, if
required by the Owner, do all further things necessary to assign
Intellectual Property Rights in the Contract Material to the Owner.
9.3.5 The Owner hereby grants to the Contractor a revocable,
non-exclusive licence to use the Contract Material and the Owner
Documentation to the extent required to design the Project, procure the
construction of the Project and perform any other Services. The
Contractor may sub-licence the Contract Material to its subcontractors
where necessary for the performance of the Services.
9.3.6 The Contractor warrants that:
(a) the Contractor is able to assign the Intellectual Property Rights
in Contract Material as described in GC 9.3.1 and GC 9.3.4;
(b) use by the Owner, or by another person at the direction or with
the permission of the Owner, of Contract Material in accordance with
this Contract will not infringe the Intellectual Property Rights of any
third party or breach any Applicable Laws;
(c) neither the Owner, nor any other person acting at the direction
or with the permission of the Owner, is liable to pay any third party
any licence or other fee in respect of the use of Contract Material; and
(d) it will use all reasonable efforts to ensure all subcontracts and
Trade Contracts will include terms which provide for the assignment of
Intellectual Property Rights in the Contract Material to the Owner.
9.3.7 The Contractor shall indemnify the Owner against all costs,
losses, damages or liability incurred or suffered by the Owner, arising
out of or in any way in connection with, any actual or alleged
infringement of any Intellectual Property Rights directly related to
the use of Contract Material in accordance with this Contract.
9.3.8 If the Owner modifies or causes to be modified any Contract
Materials, or uses or alters the Contract Materials for any other
project there shall be no false attribution of such Contract Materials
to the Contractor and the following shall apply:
(a) such Contract Materials as modified or used for other projects
shall not be attributed to the Contractor unless the modifications are
clearly delineated and clearly attributed to others; and
(b) the Contractor shall not be responsible for the use or
application of such modified Contract Materials or use of such Contract
Materials for other projects.
9.4 Keeping Contract Material Safe
9.4.1 The Contractor shall, and shall ensure its subcontractors,
protect, keep safe and secure all documents, notes, reports, memoranda,
materials, software, disks and all other media, articles and things
provided by the Owner to the Contractor (including any Contract
Material held by a subcontractor), including all Contract Material and
the Owner Documentation.
9.5 Reproduction of Contract Material
9.5.1 The Contractor shall ensure that:
(a) the Owner Documentation;
(b) Contract Material; and
(c) anything else recording, containing, setting out, or making
reference to the Project,
is used, copied, supplied or reproduced only to the extent necessary
for the purposes of performing the Services, unless the Contractor has
obtained the prior written approval of the Owner to use it for any
other purpose.
9.6 Return of Contract Material
9.6.1 Subject to GC 9.6.2, the Contractor shall, within seven (7)
days after Final Acceptance (or such other period directed by the
Owner's Representative), provide or return (as the context permits) to
the Owner:
(a) all the Owner Documentation;
(b) all Contract Material; and
(c) anything recording, containing, setting out, or making reference
to the Project, except as otherwise specified in a direction of the
Owner's Representative.
9.6.2 Subject to the confidentiality provisions and requirements of
Appendix 17 - Confidentiality Agreement, the Contractor may keep one
set of the Contract Material referred to in GC 9.6.1 for its records as
is consistent with good professional practice, but only for legal and
archival purposes.
10. QUALITY OBLIGATIONS
10.1 Subcontracting
10.1.1 Subject to GC 10.1.2, the Contractor may enter into subcontracts
for the vicarious performance of its obligations under this Contract.
10.1.2 The Contractor shall obtain the written approval of the Owners
Representative before appointing a subcontractor (which for purposes of
the Contract shall be deemed to include a subconsultant to the
Contractor) to perform any part of its obligations under this Contract.
10.1.3 The Contractor shall manage the performance of each
subcontractor to ensure the quality and timeliness of its performance
meet the requirements of this Contract.
10.1.4 The Contractors obligations under this Contract are not lessened
or otherwise affected by subcontracting the performance of those
obligations.
10.1.5 The Contractor will ensure that any subcontractor or agent it
engages in connection with this Contract complies with all of the
relevant terms and conditions of this Contract. The Contractor shall be
liable to the Owner for any act or omission of a subcontractor which
would, if done or omitted (as the case may be) by the Contractor,
comprise a breach of this Contract, as and to the same extent as if
such act or omission of the subcontractor was done or omitted by the
Contractor itself.
10.2 Re-performance of Non-Complying Services
10.2.1 If, at any time prior to the date that is two (2) years after
the date that Industrial Completion has been achieved, the Owners
Representative considers any part of the Services not to be in
accordance with the Contract, or that any defect, deficiency or
nonconformance exists in respect of the Services, the Owners
Representative may direct the Contractor to re-perform that part of the
Services or rectify that defect, deficiency or nonconformance and may
specify the time within which this shall occur.
10.2.2 Subject to GC 10.2.1, the Contractor shall correct or re-perform
any Services which do not comply with the requirements of this Contract
or rectify any defect or deficiency in the Services so as to ensure
compliance with the requirements of this Contract.
10.2.3 The Contractor acknowledges and agrees that it is not entitled
to be reimbursed (under this Contract or otherwise) for any costs
incurred by it in performing its obligations under this GC 10.2 to the
extent caused or contributed to by a breach of the standard of care set
out in GC 3.3.3 or by any other failure to comply with a requirement of
the Contract.
10.2.4 The Owner may have the correction or re-performance of the
non-compliant Services, or rectification of any defect, deficiency or
non-conformance in respect of the Services carried out by others at the
Contractors cost if:
(a) the Owner has directed the Contractor to correct, re-perform or
rectify those matters in accordance with GC 10.2.1 within a reasonable
period of time (being not less than seven (7) days) as stated in that
direction; and
(b) the Contractor has failed to correct, re-perform or rectify those
matters within that period, or where it is impossible to do so within
that time despite all due diligence, to promptly commence such
correction, re-performance or rectification as is reasonably possible
within that time, and provide a reasonable schedule for the completion
thereof.
10.2.5 The Owners costs under GC 10.2.4 will be a debt due and payable
by the Contractor to the Owner.
11. LABOUR AND INDUSTRIAL RELATIONS
11.1 General
11.1.1 The Contractor shall take steps consistent with the standard of
care set out in GC 3.3.3 to mitigate and avoid labour disputes and
disruptions at the Site and at any manufacturing facilities or places
of work of the Trade Contractors.
11.2 Open Site
11.2.1 The Contractor acknowledges and agrees that some or all Trade
Contractors and some or all Other Contractors employed by the Owner and
their subcontractors working at the Site or on the Project may be union
or non union and that the Contractors Human Resources and Industrial
Relations Plan for the Project is required to set out all reasonable
steps required to maintain labour peace at all times on the Site and on
all parts of the Project. The Contractor shall carry out the Services in
such a manner that is intended to avoid labour problems, work stoppages
or other labour disputes that might delay or increase the cost of the
Project.
11.2.2 Whenever the Contractor has knowledge that any actual or
probable labour dispute is delaying or may threaten to delay the timely
completion of the Services or the Project, the Contractor shall promptly
give Notice thereof to the Owners Representative, including all relevant
information with respect to such labour dispute or potential dispute.
11.3 Trade Contracts
11.3.1 The Contractor shall include in the Trade Contracts placed by
Contractor appropriate contractual provisions that will minimize and
avoid labour disputes, disruptions, strikes, picketing and legal or
illegal work stoppages in relation to the Project.
11.4 Additional Requirements for Personnel on Site
11.4.1 The Contractor shall, at all times, take all reasonable
precautions to prevent any unlawful, riotous or disorderly conduct by
or among its employees or any workers of any Trade Contractors, and to
protect persons and property in the vicinity of the Site from the same.
11.4.2 The Contractor shall remove, or cause to be removed, anyone
present on Site who is impaired by alcohol or drugs.
11.5 Report of Contractors Personnel and Equipment
11.5.1 The Contractor shall, if and when required by the Owner, deliver
to the Owner a report in detail, in such form and at such intervals as
the Owner may reasonably prescribe, showing both the total number of
Contract Personnel (including supervisory and management personnel)
engaged by or through the Contractor in the performance of the Services.
12. PROCUREMENT
12.1 Tenders for Trade Contracts
12.1.1 The Contractor shall:
12.1.2 Unless the Owners Representative otherwise consents in writing,
the Contractor shall obtain a minimum of three competitive tenders for
each Trade Contract, including from any prospective tenderers nominated
by the Owner.
12.1.3 The Contractor shall:
(a) keep the Owners Representative informed of any pre-tender
meetings;
(b) provide to the Owners Representative copies of all correspondence
from and to tenderers for the Trade Contracts; and
(c) have a representative in attendance at the opening of all tenders
for the Trade Contracts.
12.1.4 The Contractor warrants to the Owner that neither the Contractor
(nor any Affiliated bodies corporate, as defined by the Canada Business
Corporations Act, of the Contractor) will tender for any of the Trade
Contracts unless the Contractor has obtained the prior written approval
of the Owner.
12.1.5 The Contractor shall:
(a) analyse all tenders submitted by tenderers for the Trade
Contracts;
(b) prepare a report recommending to the Owner the most suitable
tenderer for each Trade Contract;
(c) recommend, if necessary, that negotiations be entered into with
any preferred tenderer; and
(d) provide to the Owner for its consideration the actual tender
prices for all Trade Contracts and how they compare with the cost
estimates for the Trade Contracts in the Project Cost Estimate and the
Approved Project Budget.
12.1.6 The Contractor shall review the scope of work, specifications,
drawings, schedule and other provisions of the Trade Contracts before
they are awarded to ensure they are complete, free of errors and
omissions, and are coordinated with the specifications, drawings,
schedule and other provisions of other Trade Contracts, all to minimize
errors, omissions and conflicts within a Trade Contract and between
Trade Contracts. The Contractor shall notify the Owner of any errors,
omissions, defects or conflicts with the documents of a Trade Contract
or between the documents of that Trade Contract and those of other
Trade Contracts promptly upon first becoming aware of such errors,
omissions, defects or conflicts to mitigate against delays to Trade
Contractors and to mitigate against changes and delays under Trade
Contracts for which the Trade Contractors may be entitled to additional
compensation or extensions of time from the Owner.
12.2 Warranties From Trade Contractors
12.2.1 The Contractor and Owner will agree upon the general warranties
and guarantees to be obtained from Trade Contractors. The Contractor
shall use all reasonable efforts to obtain comprehensive warranties
from Trade Contractors that are at least as favourable and preferably
more favourable to the Owner than such general warranties and
guarantees. Warranties and guarantees under Trade Contracts shall be
for not less than twelve (12) months from Industrial Completion unless
the Owner for a specific Trade Contract otherwise agrees in writing to
a shorter warranty period of time. The Contractor shall take or cause
to be taken all action necessary to fully engage and validate any and
all warranties and guarantees by Trade Contractors, and shall require
Trade Contractors, at their sole expense, to fulfill their warranty and
guarantee obligation in their Trade Contracts.
12.3 Trade Contract Payment
12.3.1 The Contractor shall:
(a) upon receipt of each payment claim under a Trade Contract to be
adminiated by Contractor, review the claim, and:
(i) for any claim greater than $20,000, notify in writing the Owners
Representative of the claim immediately upon receipt of the claim; and
(ii) for all claims, advise the Owners Representative of the results
of the Contractors review within seven (7) Business Days of receipt of
such claim;
(b) at intervals of not more than one (1) month, submit to the Owner
a statement of progress claims made under Trade Contracts during the
period of the statement containing full and true particulars of all
such claims; and
(c) subject to receiving from the Owner particulars of payments made
by the Owner, include with each statement particulars as to what sums
of money have been paid and the dates on which such payments were paid
under each Trade Contract.
12.3.2 The Owner shall make timely payment as required under each Trade
Contract.
12.4 Contract Dispute Resolution
12.4.1 In the event that a party to a Trade Contract invokes any
dispute resolution provisions or notifies the Contractor or the Owner
of an intention to commence any dispute resolution proceedings, the
Party notified shall immediately notify the other Party.
12.4.2 In the event of any such notification the Party giving Notice
shall advise the other Party of the facts and circumstances of the
dispute known to the Party giving the Notice and endeavour as far as
reasonably possible to participate in and achieve on behalf of the
other Party a prompt settlement or other resolution of the dispute
subject to the directions of the Party who may ultimately be
responsible for the payment of any monies awarded in the dispute
resolution proceeding.
12.5 Owners Procurement Process
12.5.1 The Contractor shall procure all works and services in
accordance with the Owners internal process for obtaining financial
approval and Governmental Authority to place orders and contracts.
12.5.2 The Contractor shall prepare the following for all Trade
Contracts, including for the placing of orders for supply or
installation of equipment:
(a) full technical and scope specifications including:
(i) extent, presentation and timing of data to be submitted for
review;
(ii) procedures to be incorporated for outages. These shall be shown
as discrete activities on the Trade Contractors construction schedule
and on the Project Schedule;
(iii) inspection and test plans and acceptance requirements;
(iv) documentation to be submitted with each completed order;
(v) recommendations for spare parts;
(vi) assistance and advice with installation and Commissioning;
(vii) quality assurance requirements;
(viii) description of the work defining the extent of the activities
and responsibilities required of the supplier or contractor; and
(ix) technical requirements by way of drawings, specifications, and
data sheets;
(b) the terms and conditions of Trade Contracts;
(c) the purchase order letter; and
(d) any other documentation advised by the Owners Representative.
12.6 Comprehensive Procurement Strategy
12.6.1 The obligations of the Contractor under this GC 12 are in
addition to any other obligation required to be performed by the
Contractor under the Comprehensive Procurement Strategy.
13. TESTING, COMMISSIONING AND PERFORMANCE TESTING
13.1 Performance Testing and Performance Guarantees
13.1.1 From and after Industrial Completion, the Parties will cooperate
with each other to schedule and conduct all Performance Tests within a
reasonable period of time and in accordance with Appendix 5
Performance Guarantees, and to minimize disruption to commercial
operation of the Facility.
14. TIME
14.1 Risk of Delay and Disruption and Resultant Increased Costs
14.1.1 Subject to Appendix 6, and the Contractors entitlement to the
Hourly Remuneration and Eligible Disbursements, the Contractor will
have no entitlement to make any Claim for any costs, losses, damages or
liabilities incurred or suffered by the Contractor arising out of or in
any way in connection with delays or disruptions in the Project
Schedule (including for damages for breach of contract).
14.2 Extensions of Time
14.2.1 The Contractor is entitled to an extension of time to the Date
for Industrial Completion (and a Change Order or Change Directive in
respect thereof) if, and only if:
(a) the Contractor gives Notice to the Owners Representative:
(i) of the fact or likelihood of delay not later than fourteen (14)
days after the Contractor becomes (or, acting in accordance with the
standard of care set
out in GC 3.3.3 ought to have become) aware of the commencement of the
cause of the delay; and
(ii) provides details of the cause of delay and how, in the
reasonable opinion of the Contractor, Industrial Completion is likely
to be delayed;
(b) the Contractor gives the Owners Representative, within twenty-one
(21) days after the cessation of the cause of delay:
(i) a written claim for extension of time specifying the number of
days claimed;
(ii) details (to the extent known) of why the cause of the delay
actually caused the delay, including a statement of the facts and the
provisions of this Contract on which the claim is based;
(iii) detailed evidence in satisfaction of the requirements of GC
(iv) all other information reasonably required by the Owners
Representative;
(c) the Contractor reasonably satisfies the Owners Representative, in
the Contractors claim under GC 14.2.1(b)), that:
(i) Industrial Completion has actually been delayed, in a manner
which will prevent the Contractor from achieving Industrial Completion
by the Date for Industrial Completion;
(ii) the delay is demonstrable on an assessment of the critical path
on the network of the currently approved revision of the Project Plan
submitted pursuant to GC 7.4 or (where applicable) such Project Plan as
subsequently varied in accordance with a previous extension of time
pursuant to this GC 14.2;
(iii) the delay is caused or contributed to by one of the following,
but only to the extent of such cause or contribution:
(A) breach by the Owner of this Contract or any other act or omission
of the Owner or the Owners Representative, other than an act or omission
authorized by this Contract (other than a variation to the Services
referred to in GC 14.2.1(c)(iii)(B) or a suspension referred to in GC
14.2.1(c)(iii)(D);
(B) a variation to the Services directed under GC 15;
(C) an Event of Force Majeure;
(D) the suspension of the execution of the Services pursuant to a
written direction given under GC 16, unless that direction was given as
a result of a breach by the Contractor of its obligations under the
Contract; or
(E) subject to GC 14.3.2(a), anything else beyond the reasonable
control of the Contractor.
Without limitation, the times within which the Notice and the claim
shall be given under GC 14.2.1(a)(i) and GC 14.2.1(b) are conditions
precedent to any entitlement in the Contractor to an extension of time
which shall be strictly complied with.
14.3 Determination of Extension of Time Claims
14.3.1 The Owners Representative shall, within a reasonable period of
time of receiving a claim under GC 14.2.1(b) that complies with GC
14.2.1(c), give the Contractor:
(a) Notice of the reasonable extension of time which is granted and
the new Date for Industrial Completion or Milestone Dates or both; or
(b) if no extension is given, Notice of that decision.
14.3.2 The Contractor will not be entitled to an extension of time to
the extent that:
(a) the delay has been caused or contributed to by the failure of the
Contractor to take all reasonable measures to preclude the occurrence or
minimise the extent and consequences of the delay, including such
measures as rescheduling, reprogramming, expediting and adjusting the
sequence of activities;
(b) the Contractor is delayed by any cause of delay not referred to
in GC 14.2.1(c)(iii), to the extent that the delay experienced exceeds
the extension to which the Contractor would be entitled under GC
14.2.1(c)(iii) had the other event not occurred; or
(c) subject to GC 14.3.2(b), the delay is caused by, arises out of or
contributed to by:
(i) an act or omission of the Contractor; or
(ii) any other event, fact, matter or circumstance not referred to in
GC 14.2.1(c)(iii).
15. CHANGES, CHANGE DIRECTIVES AND CHANGE ORDERS
15.1.1 The Owner may at any time authorize or direct a Change to the
Project or the Scope of Services (provided that that any Change to the
Scope of Services under this GC 15 shall be limited to engineering,
procurement, construction management, construction supervision,
Commissioning or other professional services which are consistent or
compatible with the warranties in GCs 3.3 and the representations in GC
25.1.1) by Change Order or Change Directive, as applicable. If the
Change requires the omission of any of the Services, the Owner may have
the omitted Services carried out by others.
15.1.2 If the Owner wishes to make a Change to the Facility or the
Scope of Services (or if the Contractor is entitled to a Change Order
pursuant and subject to GC 14), the Owners Representative shall discuss
same with the Contractors Representative in advance. The Contractor will
promptly when called for by the Owner provide the Owner with a draft
budget and scope of services for the proposed Change, details of the
requested extension of time to the Date for Industrial Completion, and
any other obligation of the Contractor under this Contract that is
necessarily affected by the proposed Change, all in such detail as the
Owner may require. If the Parties agree to the Change, they shall
execute a Change Order confirming the Change. If the Parties do not
reach agreement on all matters needed to document the Change by Change
Order, the Owner may direct the Change by issuing a Change Directive to
the Contractor. The Parties will, as soon as reasonably practicable,
thereafter, will attempt to reach agreement on the Change and convert
the Change Directive to a Change Order.
15.1.3 If the Contractor and Owner fail to agree on everything required
to convert the Change Directive to a Change Order, the Contractor shall
nevertheless promptly proceed with implementation and performance of
the Change Directive. If the Contractor is of the opinion that
implementing the Change Directive may impair its ability to meet the
Performance Guarantees, or impair its ability to earn the Performance
Incentives to which pursuant to Appendix 6 Compensation it may be
entitled to receive for meeting the Date for Industrial Completion or
the Approved Project Budget, or cause it to be in breach of any
Applicable Laws, requirements of Governmental Authorities or
requirements of any Permits, Licences and Approvals, or cause either
Party to be in breach of its obligations under GC 33.7 or any other
provision of this Contract, then the Contractor shall within seven (7)
days after receipt of the Change Directive give Notice to the Owner of
same, which shall then constitute a dispute to be resolved pursuant to
GC 29. Failure of the Contractor to provide Notice as aforesaid within
such seven (7) day period shall constitute acceptance by the Contractor
that the Change Directive does not impair its ability to meet the
Performance Guarantees, or cause it to be in breach of any Applicable
Laws, requirements of Governmental Authorities or requirements of any
Permits, Licences and Approvals, or cause either Party to be in breach
of its obligations under GC 33.7.
15.1.4 If the Contractor receives a Change Order or Change Directive,
it shall perform its obligations under this Contract in accordance with
the varied Scope of Services.
15.1.5 The Owner, at its discretion, in respect to any one or more
Change Orders or Change Directives may require the Contractor to record
and invoice all charges against one or more Change Orders or Change
Directives against separate, different project or reference
numbers. If so, the Contractor shall comply with such requirement,
provided that if compliance is not reasonably practicable, the
Contractor shall advise the Owner.
15.1.6 For any additional Services it is required to perform pursuant
to a Change Order or Change Directive, the Contractors only entitlement
for additional compensation is as determined in accordance with and
subject to Appendix 6 Compensation.
16. SUSPENSION
16.1 Notice to Suspend
16.1.1 The Owner may at any time give a written direction to the
Contractor to suspend the performance of all or any part of the
Services.
16.1.2 If the Contractor receives a direction from the Owner under GC
16.1.1, the Contractor shall immediately suspend the performance of
that part of the Services.
16.2 Resumption
16.2.1 The Owner may at any time give a written direction to the
Contractor to resume the performance of that part of the Services which
has been suspended.
16.2.2 If the Contractor receives a direction under GC 16.2.1 the
Contractor shall promptly resume the performance of that part of the
Services which has been suspended.
16.3 Compensation
16.3.1 Subject to GC 16.4.2, the Owner will pay the Contractor
compensation for the suspension of the Services on such basis as the
Parties may agree or, failing agreement, such reasonable cost as the
Owners Representative determines to compensate the Contractor for:
(a) keeping its personnel and subcontractors on standby (to the
extent stated in the Notice referred to in GC 16.1.1); and
(b) the mobilization and demobilisation of the Contractors personnel
and subcontractors, and equipment (if any).
16.4 Termination
16.4.1 Subject to GC 16.4.2, if a suspension of the performance of a
part of the Services which is the subject of a direction under GC
16.1.1 continues for more than six (6) months:
(a) the Contractor may give a Notice to the Owner requiring the Owner
to give a direction to the Contractor under GC 16.2.1 to resume
performance of that part of the Services; and
(b) if the Owner fails to give a direction to the Contractor under GC
16.2.1) within thirty (30) days of receiving the Contractors Notice
under GC 16.4.1(a), the Contractor:
(i) may terminate this Contract by giving seven (7) days Notice to
the Owner;
(ii) will be entitled to be paid in accordance with GC 16.3 for the
part of the Services performed in the relevant period up to the date of
termination or the date the Contractor ceased to perform the Services;
and
(iii) acknowledges and agrees that it is not entitled to make any
other Claim against the Owner except as otherwise provided in this
Contract.
16.4.2 If the Owner gives a direction under GC 16.1.1 as a result of a
breach by the Contractor of its obligations under this Contract, the
Contractor is not entitled to:
(a) terminate this Contract under GC 16.4.1(b)(i); or
(b) make any other Claim.
17. EVENTS OF FORCE MAJEURE
17.1 Events of Force Majeure
17.1.1 Subject to the provisions of GC 17.6, for purposes of this
Contract an Event of Force Majeure shall mean any circumstance
described in GC 17.2 that is not within the reasonable control,
directly or indirectly, of the Party affected, but only if and to the
extent that:
(a) such circumstance, despite the exercise of all reasonable due
diligence, cannot through the exercise of all due diligence be or be
caused to be prevented, avoided or removed by such Party;
(b) such circumstance adversely affects (in cost and/or time) the
ability of the Party affected to perform its obligations under the
Contract, and the Party affected has taken all reasonably practicable
precautions, due care and reasonable alternative measures in order to
avoid the effect of such circumstance on the Partys ability to perform
its obligations under the Contract (such reasonably practicable
precautions, due care and reasonable alternative measures to be no less
than the other Party would take in similar circumstances if they were to
its account);
(c) such circumstance is not the direct or indirect result of the
failure of the Party claiming force majeure to perform any of its
obligations under the Contract or is not the direct or indirect result
of the fault or negligence of such Party; and
(d) such Party has given the other Party Notice in accordance with GC
17.4.
Provided, however, that lack of financial capacity, inability of a
Party to pay, and an event that results from a lack of financial
capacity or inability of a Party to pay, shall not constitute an Event
of Force Majeure.
17.2 Instances of Force Majeure
17.2.1 Subject to the provisions of GC 17.1 and GC 17.6, the
following events that occur during the performance of the Services
shall constitute Events of Force Majeure:
(a) acts of war (whether war be declared or not), acts of the public
enemy, or acts of foreign enemies;
(b) public disorders, insurrection, rebellion, revolution, terrorist
acts, sabotage, riots or violent demonstrations or any other protests
against political actions;
(c) explosions, fires or floods not caused by or attributable to the
Contractor;
(d) floods, earthquakes or other natural calamities or acts of God;
(e) strike or lockout or other industrial labour action or disruption
(including unlawful but excluding lawful strikes or lockouts or other
industrial labour action or disruption by the Contractor's employees
against the Contractor that are limited in scope to the Contractor and
its employees) which have national, provincial, regional or state-wide
application, affect the performance of the Services, and last for more
than seven (7) consecutive calendar days in the aggregate;
(f) any action or failure to act within a reasonable time without
justifiable cause by any Governmental Authority (including any action
or failure to act within a reasonable time without justifiable cause by
any duly authorized agent of any such Governmental Authority), including
the denial of or delay in without justifiable cause the granting of any
land tenure, licences, other licences, consents, approvals, or rights,
including the Permits, Licences and Approvals upon due application and
diligent effort by the Party to obtain same, or the failure once
granted to remain without justifiable cause in full force and effect or
to be renewed on substantially similar terms;
(g) protests, environmental protest, and other civil disobedience or
disturbance;
(h) injunctions not caused by any breach of this Contract by the
Contractor; and
(i) any other event beyond the reasonable control of a Party,
provided that such event was not reasonably foreseeable and did not
result from any error, omission, negligence, neglect, or fault of the
Party or of anyone for whom the Party is responsible under the Contract.
17.3 Effect of Event of Force Majeure
17.3.1 Subject to GC 17.4 and GC 17.6, no failure or omission to carry
out or observe any of the terms, provisions, or conditions of the
Contract shall give rise to any claim by either Party against the other
Party, or be deemed to be a breach or default of the Contract provided
that Notice of the Event of Force Majeure is delivered within the time
limits specified in GC 17.4 by the Party claiming an Event of Force
Majeure.
17.3.2 Provided that a Party provides Notice of an Event of Force
Majeure in accordance with GC 17.4, the time for performing obligations
under the Contract will be extended for Force Majeure Days in accordance
with GC 14.2 and GC 14.3.
17.4 Notice of Event of Force Majeure
17.4.1 If either Partys ability to perform its obligations under the
Contract is affected by an Event of Force Majeure, such Party shall as
soon as reasonably possible (but in any event within seven (7) days)
following the date any Event of Force Majeure has been discovered or
would have by a reasonable person in the same position been discovered,
give Notice to the other Party stating such date and the nature of the
Event of Force Majeure, its expected duration and effect upon the
performance of such Partys obligations, and any action being taken to
avoid or minimize its effect. The burden of proof shall be on the Party
claiming an Event of Force Majeure pursuant to this GC 17.4.
17.5 Period of Suspension for and Mitigation of Event of Force Majeure
17.5.1 The suspension of performance due to an Event of Force Majeure
shall be of no greater scope and no longer duration than the delays
necessarily resulting from the effect of the Event of Force Majeure.
The affected Party:
(a) shall make all reasonable efforts to prevent and reduce to a
minimum and mitigate the effect of any delay occasioned by any Event of
Force Majeure including recourse to alternate acceptable sources of
labour, services, equipment and materials; and
(b) shall use all reasonable efforts to resume normal performance of
its obligations under the Contract after the termination of any Event
of Force Majeure and shall perform its obligations to the maximum
extent practicable.
When the affected Party is able to resume performance of its
obligations under the Contract, that Party shall give the other Party
Notice to that effect.
17.5.2 If there is an Event of Force Majeure involving any Vendor, then
the Contractor shall use reasonable efforts to determine whether it is
advisable to find alternate Vendors acceptable to the Owner without
materially increasing the cost or schedule, and shall provide its
recommendations to the Owner taking into account the overall Project
Schedule and Approved Project Budget.
17.5.3 The Contractor shall include in all Trade Contracts, including
with Vendors, reasonable provisions that mitigate the delay and
additional costs that will be incurred by the Owner if such Vendor or
other Trade Contractor claims an Event of Force Majeure under their
Trade Contract.
17.6 Certain Events Not to Comprise Events of Force Majeure
17.6.1 Notwithstanding anything to the contrary under any provision of
the Contract, and in particular and for clarity notwithstanding any
other provision of this GC 17, the following shall not constitute an
Event of Force Majeure and shall not excuse any obligations of either
Party that arose before the occurrence of an Event of Force Majeure
causing the suspension of performance:
17.6.1 Notwithstanding anything to the contrary under any provision
of the Contract, and in particular and for clarity notwithstanding any
other provision of this GC 17, the following shall not constitute an
Event of Force Majeure and shall not excuse any obligations of either
Party that arose before the occurrence of an Event of Force Majeure
causing the suspension of performance:
(a) the obligation to pay money in a timely manner for obligations
and liabilities that matured prior to, during or after the occurrence
of an Event of Force Majeure;
(b) late delivery of equipment, materials, supplies, tools, or other
items caused by negligent or wilful acts or omissions on the part of
the Contractor or any of its subcontractors, except to the extent
resulting from damage or destruction of such equipment, materials,
supplies, tools or other items;
(c) late delivery of equipment, materials, supplies, tools, or other
items to the extent caused by the failure of the Contractor to properly
perform the Services in accordance with the requirements of the Contract;
(d) late performance by the Contractor caused by the Contractor's
failure to engage qualified personnel, subconsultants and
subcontractors, or to hire an adequate number of personnel or labour;
(e) submission by the Contractor of submittals for review by the
Owner at a time later than that indicated in the schedule for
submittals agreed to by the Contractor and Owner, unless such late
submission is itself caused by an Event of Force Majeure;
(f) delays resulting from adverse weather and other environmental
conditions which, based on all available historical records or on a
reasonable knowledge of the location of the Site, are consistent with
those which ought reasonably to have been anticipated for the Site;
(g) delays resulting from unsuitable surface, subsurface, ground, or
groundwater conditions which were known or should have been reasonably
anticipated by the Contractor or any other contractor with previous
experience working in or near the location of the Site; and
(h) equipment failure due to some fault, neglect or negligence of the
Contractor, including failure to adhere to or requiring Trade
Contractors to adhere to the manufacturer's recommendations in relation
to packing, shipping, unpacking, storing, installation, operation or
maintenance.
17.7 Contractor to Follow Owners Instructions
17.7.1 The Owner may, by Change Directive or Change Order, require the
Contractor to undertake those specific actions identified in the Change
Directive or Change Order as the Contractor can reasonably initiate to
remove or relieve either the Event of Force Majeure or its direct or
indirect effects on the Owner.
17.8 Contractor Responsible for Negligence
17.8.1 Damages or injuries to persons or properties resulting from an
Event of Force Majeure during the performance of the obligations
provided for in the Contract shall not relieve the Contractor of the
responsibility to bear the cost of the damage or injuries caused by the
Contractors negligence or misconduct to the extent such costs are not
covered by insurance procured by the Owner pursuant to Appendix 11
Insurance, but only to the extent that the Contractor would otherwise
have been liable for such damages or injuries under the Contract.
17.9 Costs Due to Events of Force Majeure
17.9.1 Each Party will be responsible for its own costs in relation to,
resulting from or arising out of an Event of Force Majeure.
17.9.2 If physical damage occurs due to an earthquake or a flood
(provided the flood or the flood damage is not caused by, attributable
to or increased by the actions or inactions of the Contractor) or any
other Event of Force Majeure, then the Owner will be responsible for
the payment of any deductibles under the insurance required to be
procured by the Owner pursuant to Appendix 11 Insurance.
17.9.3 Except as provided in GC 17.9.2, no additional compensation will
be paid by the Owner to the Contractor for the effect of or delay due to
an Event of Force Majeure.
17.10 Contractors Sole and Exclusive Remedy
17.10.1The Contractors sole and exclusive remedies for the occurrence
of an Event of Force Majeure shall be those set forth in GC 17.3, GC
17.5 and GC 17.9.
18. COMPENSATION
18.1 Owners Payment Obligations
18.1.1 The Owner will, subject to GC 18.14 and other provisions of the
Contract (including any other right to set off which the Owner may have
under the Contract), pay the Contractor in accordance with and subject
to the provisions of Appendix 6 Compensation and the Contract.
18.1.2 Notwithstanding any other provision of the Contract, in no event
shall the Contractor invoice for or be paid for time expended by its
Contract Personnel in the correction or re-
performance of any part of the Services required due to errors,
omissions, defects or deficiencies in the Services performed by the
Contractor and that appear prior to and during the expiry of the
warranty period(s) under the Contract applicable to the Services.
18.1.3 The Contractor shall ensure that accurate and detailed daily
time sheets are kept and maintained by all Contract Personnel,
indicating clearly the name of the person, the hours spent and a
reasonably descriptive narrative of the work performed, appropriately
coded to allow proper and accurate recording of Project costs and
verification by the Owner that the time was reasonable and expended on
the performance of the Services.
18.1.4 The compensation as specified in Appendix 6 Compensation shall
constitute the Contractors sole and exclusive entitlement to payment
from the Owner in respect of the performance of the Services.
18.2 Payment Advances by Owner
18.2.1 On or before the twenty-first day of each calendar month, or
such other time as may be mutually agreed, the Contractor shall submit
to the Owner in writing an estimate of the Fee, Hourly Remuneration and
Eligible Disbursements reasonably anticipated to be charged during the
succeeding calendar month, supported by such details as the Owner may
reasonably require to substantiate and verify the reasonableness of the
estimate. If the Owner disagrees with the amount of the estimate, the
Contractor and Owner shall promptly discuss the estimate and arrive at
an agreed amount for the estimate (the Payment Advance). On or before
the end of each month, the Owner shall transfer to the Contractors
trust account an amount equal to the agreed Payment Advance for the
next month, and advise the Contractor of the deposit by telephone,
email or facsimile by no later than noon on the last day of the month
(or on the next business day if the last day of the month is not a
business day).
18.2.2 The Payment Advance shall be held by the Contractor in a
separate trust account (the Trust Account) to secure payment of its
Fee, Hourly Remuneration and Eligible Disbursements incurred in the
month for which the Payment Advance is made. The Contractor is not
entitled to and shall not transfer any part of that Payment Advance
from the Trust Account to its own use and account until after such time
as it has received a payment statement from the Owner issued pursuant to
GC 18.8, and then only in the amount approved for payment by the Owner
in such payment statement.
18.2.3 If, at the end of any month, the payment statement for that
month differs from the Payment Advance made for the month, the
difference shall be reconciled and taken into account in determining
the amount of the Payment Advance for the next ensuing month.
18.3 Electronic Funds Transfer
18.3.1 The Owner will make payment to the Contractor by electronic
funds transfer into the Contractors bank account.
18.4 Time For and Format of Application for Payments
18.4.1 Subject to GC 18.10, the Contractor shall give the Owners
Representative an invoice for payment on account of the Fee, Hourly
Remuneration and Eligible Disbursements and any other amounts payable
by the Owner to the Contractor under the Contract (Application for
Payment):
(a) within fifteen (15) calendar days after the end of the month in
which the Services that are the subject of the Application for Payment
were rendered or expended, as applicable, and in the case of the
application for final payment within the period required by GC 18.11;
and
(b) in the format approved in writing by the Owners Representative
which shall as a minimum:
(i) set out the amounts that the Contractor asserts are payable to
the Contractor in accordance with the Contract;
(ii) detail the relevant period of the Services for the Application
for Payment;
(iii) describe in detail the part of the Services performed during
the relevant period for the Application for Payment;
(iv) set out amounts paid previously under the Contract;
(v) provide an individual reference number for the Owner to quote
with remittance of payment; and
(vi) include any other information directed by the Owners
Representative.
18.5 Additional Matters
18.5.1 In addition to the requirements of GC 18.4.1(b), the Contractor
shall, unless directed otherwise by the Owners Representative, include
in each Application for Payment:
(a) the price relating to the Services, broken down to reflect the
basis upon which the Fee is calculated:
(b) the name of the Project;
(c) the name of the Site; and
(d) the name of the Owners Representative.
18.5.2 The Owners Representative may, prior to the time it is required
to issue a payment statement under GC 18.9, request any additional
information from the Contractor in respect of its Application for
Payment.
18.6 Contractor Warranty
18.6.1 By making an Application for Payment, the Contractor represents
and warrants to the Owner that:
(a) the Contractor has performed the Services which are the subject
of the Application for Payment;
(b) the Contractor is not aware of any mistakes or omissions in the
Services that would require the Contractor to re-perform the Services
that are included in the Application for Payment;
(c) any remuneration and other amounts due and payable by the
Contractor to any of its employees by Applicable Laws or under an
industrial instrument in respect of the Services have been paid, except
holdbacks and amounts properly retained in accordance with Applicable
Laws or amounts that are the subject of a bona fide dispute;
(d) its subcontractors have been paid all amounts due and payable to
them for work or services performed or material supplied by them in
respect of the work or services which were the subject of the
Application for Payment and which are included in the Application for
Payment or any previous Application for Payment, except holdbacks and
amounts properly retained in accordance with Applicable Laws or amounts
that are the subject of a bona fide dispute; and
(e) subject to any Claims that may have arisen within the fourteen
(14) day period prior to the Payment claim, the Contractor is not aware
of any Claim against the Owner which is not identified in the
Application for Payment or in an earlier Application for Payment or
Notice of which has not been previously given to the Owner.
18.7 Incomplete Application for Payments
18.7.1 Should any Application for Payment (including any Application
for Payment submitted under GC 18.7.2) not contain the information
required under GC 18.4.1(b) and GC 18.5, the Owners Representative may:
(a) complete the missing details and assess the Application for
Payment in accordance with GC 18.8; or
(b) return the incomplete Application for Payment to the Contractor
and notify the Contractor that GC 18.7.2 applies.
18.7.2 Where the Owners Representative returns an incomplete
Application for Payment to the Contractor, the Contractor shall submit
a Application for Payment that complies with GC 18.4.1(b) and GC 18.5
within the time notified by the Owners Representative or, where no time
is notified, within forty-eight (48) hours.
18.8 Payment Statement
18.8.1 Within ten (10) business days of receipt of:
the Owners Representative will give the Contractor on behalf of the
Owner a payment statement which states:
(a) a Application for Payment under GC 18.4.1(a);
(b) the information described in GC 18.5.1; and
(c) any additional information requested by the Owner's
Representative pursuant to GC 18.5.2;
the Owner's Representative will give the Contractor on behalf of the
Owner a payment statement which states:
(d) the value of the work carried out by the Contractor in accordance
with this Contract as at the date of the Application for Payment;
(e) the amount already paid to the Contractor;
(f) the amount the Owner is entitled to retain, deduct, withhold or
set off under the Contract;
(g) the amount (if any) which the Owners Representative believes to
be then payable by the Owner to the Contractor on account of the
Contract and otherwise under this Contract and which the Owner proposes
to pay to the Contractor; and
(h) if the amount in GC 18.8.1(g) is less than the amount claimed in
the Application for Payment:
(i) the reason why the amount in GC 18.8.1(g) is less than the amount
claimed in the Application for Payment; and
(ii) if the reason for the difference is that the Owner has retained,
deducted, withheld or set off payment for any reason, the reason for the
retention, deduction, withholding or setting off.
18.8.2 The Owners Representative may issue a further payment statement
correcting any error discovered in any previous payment statement or
modifying any previous payment statement issued by it, including but
not limited to, as a result of information received from the Contractor
pursuant to GC 18.5.
18.8.3 If the Contractor fails to make an Application for Payment in
accordance with the Contract, the Owners Representative may
nevertheless issue a payment statement under GC 18.9.1.
18.9 Payment
18.9.1 Subject to GC 18.10 and GC 18.13, within thirty (30) days after
the end of the month in which a payment statement is issued pursuant to
GC 18.8, the Owner will pay to the Contractor or the Contractor shall
pay to the Owner, as the case may be, the amount shown in the payment
statement as due to the Contractor or to the Owner as the case may be.
18.9.2 A payment made pursuant to the Contract:
(a) will not prejudice the right of either Party to dispute whether
the paid amount is the amount properly due and payable;
(b) will not be evidence of the value of the Services;
(c) will not be evidence that the Services has been executed
satisfactorily; and
(d) will not be an admission of liability on the part of the Owner.
18.10 Conditions Precedent to Entitlement to Payment
18.10.1After the Date of Contract, if at the time that the Contractor
submits a Application for Payment under GC 18.4, the Contractor has not:
(a) [Intentionally deleted];
(b) effected the insurance required by GC 23.1 and (if requested)
provided evidence of this to the Owners Representative, or allowed such
insurance to lapse;
(c) paid all subcontractors as required under GC 18.6.1(d);
(d) in the case of a Final Application for Payment, submitted a duly
executed Form of Release as required under GC 18.11.1(b); and
(e) complied with all directions given by the Owners Representative
under a provision of the Contract, then:
(i) the Contractor will not be entitled to payment of;
(ii) the Owners Representative will not be obliged to include in any
payment statement under GC 18.8; and
(iii) the Owner will not be liable to pay, any amount included in the
Application for Payment.
18.11 Final Application for Payment
18.11.1Within two (2) months after the earlier of the date all
Performance Guarantees have been met or satisfied and the date the
Owner delivers Notice to the Contractor that its Services are no longer
required, and in any event on or before Final Acceptance, the Contractor
shall deliver to the Owners Representative:
18.11.2The Contractor shall include in the Final Application for
Payment:
(a) a complete statement of accounts, including any changes to the
Scope of Services;
(b) all money that the Contractor considers to be due from the Owner
arising out of or in connection with the Services, this Contract or any
alleged breach of contract;
(c) confirmation that all Documentation, approvals of all Authorities
and deliverables as required by this Contract have been lodged with the
Owners Representative; and
(d) a certificate stating that all wages (excluding bonuses to
personnel which are not yet payable) and other charges have been paid
and that no monies are due or owing by the Contractor to any Contract
Personnel other than any Contract Personnel disclosed in the
certificate.
18.11.3The Contractor shall provide with the Form of Release (as
required by GC 18.11.1) details of how the amount claimed (Amount
Claimed) is calculated including:
(a) separate identification of each claim and the amount of each
claim which is part of the Amount Claimed;
(b) which clause, if any, of this Contract the Contractor relies upon
to support an entitlement to each claim;
(c) if based on breach of Contract -what obligation, if any, the
Owner has breached and which the Contractor relies upon to support an
entitlement to each claim; and
(d) a description of the other acts, defaults and omissions that the
Contractor relies upon to support any entitlement to a claim.
18.11.4After expiration of the two (2) month period in GC 18.11.1, any
Claim which the Contractor could have made against the Owner but which
has not been made in the Final Application for Payment, whether or not
a Final Application for Payment is delivered, is barred.
18.11.5 Notwithstanding any other provision of section 18.11, the
provisions of section 18.11 do not apply to any claim by the Contractor
in respect of Excluded Taxes.
18.12 Interest on Overdue Payments
18.12.1 If any money due to either Party remains unpaid after the date
on which the money should have been paid, then the Party responsible
for the payment shall, following a written request by the other Party
for payment of interest, pay to the other Party simple interest on the
unpaid amount from, but not including the date on which the money was
due at the Prime Rate.
18.12.2The Contractors entitlement to interest, if any, under GC
18.13.1(a) will be the Contractors sole entitlement to interest
including damages for loss of use of, or the cost of borrowing, money.
18.13 Set off
18.13.1 The Owner may set off or deduct from any payments due to the
Contractor:
(a) any debt or other moneys due from the Contractor to the Owner
under this Contract; and/or
(b) any debt or other moneys due from any parent, subsidiary or
affiliate of the Contractor to any parent, subsidiary or affiliate of
the Owner; and/or
(c) any money or any claim to money that the Owner may have against
the Contractor, whether for Damages (including Liquidated damages and
the Owner's reasonable estimate of its entitlement to damages for
breach of contract) or otherwise, which are due or which will become
due under this Contract,
except in respect of amounts which are the subject of bona fide active
claims against an insurer provided that such claims are being pursued
diligently.
18.14 Owners Payment of Subcontractors
18.14.1If the Contractor owes any subcontractor of the Contractor money
in connection with the Services, and
(a) that money has been outstanding under the relevant subcontract
for more than fourteen (14) days; and
(b) the Contractor cannot satisfy the Owners Representative that
there is a valid reason for that outstanding money not having been paid,
the Owner may pay the subcontractor the outstanding amount and the
outstanding amount so paid will be a debt due and immediately payable
from the Contractor to the Owner.
18.14.2No debt by the Owner will be taken to have accrued in favour of
the Contractor in respect of any payment by the Owner of an outstanding
amount in accordance with GC 18.14.1.
18.14.3The Owner is entitled to withhold from any payment which would
otherwise be due to the Contractor under the Contract any amount owing
to a subcontractor by the Contractor under GC 18.14.1, and if such
amount owing to a subcontractor is not disputed may make payment
directly to the subcontractor (in which case such payment shall be
deemed authorized by a direction to pay from the Contractor to the
Owner).
18.15 Property and Liens
18.15.1The Contractor shall not (insofar as is permitted by Applicable
Laws) allow or permit any employee or subcontractor to assert any right
to a construction, builders, mechanics, unpaid vendors or other lien for
unpaid work or services over the Site or Project (or part thereof) or
take any steps whatsoever to lodge or register a lien over the Site or
Project (or part thereof) under, or in pursuance of, any Applicable
Laws, and the Contractor shall promptly vacate, discharge or otherwise
cause such lien to be removed and discharged from title which may be
registered by such person.
18.16 Taxes
18.16.1The Contractor is and remains liable for payment of any Taxes
connected to the Services, save and except Taxes related to the Owners
operations or income. If any Tax is imposed, the Contractor shall pay
the full amount to the relevant Governmental Authority and shall
indemnify the Owner against any failure to do so. If any exemptions,
reductions, allowances, rebates or other privileges in relation to
Taxes (other than Taxes imposed on the Contractors income or
non-Project operations of the Contractor) may be available to the
Contractor or the Owner, the Contractor shall adjust any payments due
to reflect any such savings or refunds (including interest awarded) to
the maximum allowable extent.
18.16.2Amounts payable determined in accordance with Appendix 6
Compensation include all Taxes prevailing at the Date of Contract, save
and except the Excluded Taxes.
18.16.3The Owner is responsible for payment of the Excluded Taxes to
the extent that the Owner or Contractor are liable and responsible for
payment of the Excluded Taxes. The Contractor may include in any
Application for Payment (as defined in GC 18.4) the amount of any
Excluded Taxes in respect of the amounts claimed in the Application for
Payment or any previous Application for Payment, and shall include with
such Application for Payment such documentation as the Owner may
reasonably require to demonstrate and verify to the Owners satisfaction
the proper amount of the Excluded Taxes that is due in respect of the
performance of the Services.
18.16.4Except for Excluded Taxes, if any rate of Tax is increased or
decreased or a new Tax is introduced or an existing Tax is abolished or
any change in interpretation or application of any Tax occurs in the
course of performance of the Contract, an adjustment will be made to
the Amounts payable determined in accordance with Appendix 6
Compensation to reflect any such change regardless of whether this
results in the Amounts payable determined in accordance with Appendix
6 Compensation increasing or decreasing.
18.16.5The Owner may deduct from the whole or part of payments due to
the Contractor any Taxes which the Owner is required to withhold or
deduct by any Governmental Authority.
19. MITIGATION
19.1 General Duty to Mitigate
19.1.1 Without limiting but in addition to all other duties to mitigate
required by the Contract, in all cases where either Party is entitled to
receive from the other Party any additional compensation, damages or
extensions of time, including for or resulting from Change Orders,
Change Directives if applicable, suspensions of some or all parts of
the Services, or termination of some or all parts of the Services, that
Party shall use both all reasonable efforts and all due diligence to
mitigate and reduce the amount required under the Contract to be paid
by the other Party or the amount of the extension of the Date for
Industrial Completion. Notwithstanding any other provision of the
Contract, that Party shall not receive those parts of any costs
incurred by that Party or those parts of any additional compensation or
extensions of time, including for Change Orders, Change Directives or
otherwise, that such Party could have reasonably mitigated against,
reduced or otherwise avoided by the exercise of both all reasonable
efforts and all due diligence as required in accordance with the
foregoing. In the foregoing, references to all reasonable efforts and
to exercise of all due diligence shall be construed to be no less than
those that would be exerted by any reasonable corporation in comparable
circumstances where it was solely at risk and responsible for all such
costs and delays without any reimbursement from anyone else. Upon
request from the other Party, the Party claiming relief shall promptly
submit a detailed description, supported by all reasonable
documentation, of the measures and steps taken by the entitled Party to
mitigate and meet the aforesaid obligations.
20. ASSIGNMENT
20.1 Assignment by Contractor
20.1.1 Subject to GC 20.1.2, it is expressly understood that the
Contract is personal to the Contractor and that the Contractor shall
have no right, power, or authority to assign or delegate the Contract
or any portion thereof, or any part of the Services, either voluntarily
or involuntarily, or by operation of law, including by way of
subcontracting or other delegation, to an affiliate. The Contractors
attempted assignment or delegation of the Contract or any portion
thereof or any of part of the Services in contravention of this GC
20.1.1 shall be null and void and shall be ineffective to relieve the
Contractor of its responsibility to perform its obligations hereunder.
20.1.2 The Contractor may, with the prior written approval of the Owner
not to be unreasonably withheld, which approval may be subject to the
Contractor first demonstrating to the Owner that all of the Contractors
Key Personnel as identified in the Contract will transfer to the
assignee and, after the assignment, continue to perform the Services in
their same positions and with their same authorities as they had prior
to the assignment, assign all or part of its right, title, and interest
in the Contract to any parent, subsidiary or affiliated company of the
Contractor, provided that:
(a) the Contractor shall then remain jointly and severally liable
with the assignee for all obligations and liabilities of the Contractor
hereunder;
(b) the Owner may at its sole option have recourse against either or
both the assignee and the Contractor for any and all obligations or
liabilities of the Contractor; and
(c) there is no adverse affect on the validity or enforceability of
any Parent Company Guarantee previously delivered by or on behalf of
the Contractor to the Owner under the Contract, and that the Parent
Company Guarantee remain valid and enforceable by the Owner in
accordance with the provisions of the Parent Company Guarantee.
20.2 Assignment by Owner to Affiliates and Third Parties
20.2.1 The Owner may, with the prior written approval of the Contractor
not to be unreasonably withheld, assign all or part of its right, title,
and interest in the Contract to any parent, subsidiary or affiliated
company, partnership or joint venture of the Owner which is the
transferee or assignee of substantially all of the right, title and
interest of the Owner in the Project, and in the same capacity as the
Owner, provided that all outstanding amounts properly due and owing to
the Contractor at that time have been paid and that such parent,
subsidiary or affiliated company, partnership or joint venture of the
Owner reasonably demonstrates that it is able to meet the payment
obligations of the Owner hereunder.
20.2.2 The Owner may assign all or part of its right, title, and
interest in the Contract to any other third party with the prior
written approval of the Contractor, which consent will not be withheld
provided that all outstanding amounts properly due and owing to the
Contractor at that time have been paid and that such third party
reasonably demonstrates that it is able to meet the payment obligations
of the Owner hereunder.
20.3 Assignment by Owner to Financing Entities and Realization of
Security by Financing Entities
20.3.1 Without the prior consent of the Contractor, the Owner may
assign all or part of its right, title, and interest in the Contract to
any Financing Entity. The Contractor shall execute and deliver to the
Owner a consent to and acknowledgement of assignment in a form
reasonably acceptable to the Financing Entities, to be effective only
when all outstanding amounts properly due and owing to the Contractor
at that time have been paid. Any Financing Entity may, in connection
with any default under any financing document related to the Project,
assign any rights assigned to it hereunder to any third party which is
the transferee or assignee of substantially all of the right, title and
interest of the Owner in the Project, and in the same capacity as the
Owner, provided that all outstanding amounts properly due and owing to
the Contractor at that time have been paid and that such third party
reasonably demonstrates that it is able to meet the payment obligations
of the Owner hereunder. The Contractor shall execute and deliver to the
Financing Entities a consent to and acknowledgement of assignment in a
form reasonably acceptable to such transferee or assignee. The
Contractor shall do all things and execute all documents and provide
all further assurances reasonably required by Owner or Financing
Entities to give effect to the foregoing, provided that such Financing
Entities, insurers and any other persons referred to in GC 21.1.2 shall
provide reasonable written assurances that under no circumstances shall
any Financing Entity or transferee or assignee thereof have any greater
or additional rights or remedies against the Contractor than the Owner
has.
20.3.2 The Contractor agrees that, upon receipt of Notice of such
assignment after such a default and pursuant to GC 20.3.1, it shall
deliver all documents, data, notices, and other communications
otherwise required to be delivered to the Owner hereunder to the
Financing Entities or their assignee at such address as they shall
designate to the Contractor in writing.
20.3.3 The Owner acknowledges and agrees that, upon receipt of Notice
of such assignment after such a default pursuant to GC 20.3.1, the
Contractor shall be entitled to comply with such Notice in accordance
with its terms, and shall have no duty to enquire as to the right of
the Financing Entity to provide such Notice, notwithstanding any Notice
or objection given by the Owner, or any other fact, circumstance, or
event.
20.3.4 The Contractor agrees that in the event the Financing Entities
foreclose on the Owners interests hereunder (or if the Contract should
be assigned to the Financing Entities in lieu of foreclosure), the
Financing Entities or any purchaser at such foreclosure proceeding
shall be entitled to succeed to the Owners interests hereunder on the
same conditions as provided hereunder, and provided such Financing
Entities or purchaser continues to perform the Owners obligations under
this Contract and such succession shall not constitute a breach of any
provision of this Contract prohibiting subletting or assignment or of
any other provision of the Contract. If the Financing Entities should
acquire this Contract by foreclosure, an assignment in lieu of
foreclosure or otherwise, the Contractor agrees that the Financing
Entities may (provided that, as a pre-condition, any defaults by
the Owner in its payment and indemnity obligations hereunder are cured)
and on substantially the same terms as set out in GC 20.3.1, assign or
sublet the Contract to an assignee who is financially reliable and who
agrees to perform the Owners obligations hereunder. In the event of any
such assignment by the Financing Entities, the Financing Entities shall
have no further obligations under the Contract and the assignee shall
be entitled to the benefit of all of the provisions of the Contract.
20.3.5 On termination of this Contract prior to the stated expiration
of the term hereof for any reason whatsoever, including default, the
Contractor shall enter into a new agreement with the Financing Entities
with the highest lending priority immediately prior to the termination
of this Contract if the Financing Entities (i) give notice of request
for such a new agreement within thirty (30) days after termination of
this Contract; (ii) pay all costs incurred by the Contractor as a
result of default and/or termination; and (iii) remedy all defaults as
though this Contract had not been terminated. The new agreement shall
be for the remainder of the term hereof, effective at the date of
termination upon the same terms and conditions provided herein.
21. COOPERATION WITH FINANCING ENTITIES AND INSURERS
21.1.1 It is understood that the Owner intends to and will procure from
Financing Entities project financing or other financing arrangements
suitable to the Owner to complete the Project. The Contractor
acknowledges that procurement of project financing from Financing
Entities is essential for the Project to proceed and, accordingly, the
Contractor agrees to and shall cooperate fully with, and act reasonably
in any dealings with, any Financing Entities to the Project and, without
limiting the generality of the foregoing, the Contractor agrees to and
shall:
(a) use its reasonable best efforts to assist the Owner in its
dealings with any Financing Entities to the Project, including
participation in oral and written presentations to prospective
Financing Entities, conditional upon receipt by the Contractor of
reasonable written waivers of extra-contractual liability from such
Financing Entities;
(b) not unreasonably withhold its consent to any amendments to the
Contract that may be required by the Financing Entities as a condition
of their providing financing to the Project which do not change the
substance of the agreement evidenced hereby; and
(c) following procurement of financing from the Financing Entities,
cooperate with the Owner in its dealings with the Financing Entities.
21.1.2 The Contractor acknowledges and agrees that the Owner may be
required to provide to the Financing Entities and any and all insurers,
and their respective representatives, the right to review, inspect,
audit and monitor the performance of the Services and the Work, the
Site, any item of equipment (including equipment under fabrication),
materials, supplies, tools, other items, design, engineering, service,
or workmanship to be provided
hereunder and the Facility, and to observe all tests, Performance Tests
and all other aspects of the Facility as and to the same extent as the
Owner has such rights hereunder. The Contractor shall allow all of them
reasonable access during normal working hours to its offices, the Site,
the Work (including equipment under fabrication) and the Project, and
to the Contractors technical details pertaining thereto, as reasonably
requested by any of the Owner, Financing Entities and insurers. The
Contractor shall incorporate such rights of review, inspection, audit
and monitoring in all equipment purchase orders and Trade Contracts.
21.1.3 The Contractor will include provisions in all Trade Contracts
that allow representatives of the Financing Entities and insurers to
inspect, review and monitor the progress of the Trade Contracts and
conformance with the requirements of this Contract and the applicable
Trade Contracts.
22. SECURITY
22.1 Delivery and Form of Security from Owner
22.1.1 Within seven (7) days after the Date of Contract, the Owner
shall deliver to the Contractor:
(a) a guarantee of all payment obligations of the Owner hereunder,
conforming to the form of such guarantee in Appendix 19 Payment
Guarantee, executed and delivered by Gold Reserve Inc. in favour of the
Contractor; and
(b) a certificate from an officer of Gold Reserve Inc. verifying and
confirming that the guarantee has been duly authorized, executed and
delivered, conforming to the form of such certificate in Appendix 19
Payment Guarantee.
23. INSURANCE
23.1 Owner Provided Insurance
23.1.1 The Owner shall provide the Insurance as set out in Appendix
11-1 Insurance by Owner.
23.2 Contractor Provided Insurance
23.2.1 The Contractor shall provide the Insurance as set out in
Appendix 11-2 Insurance by Contractor.
24. CONTRACTORS REPORTING AND RELATED OBLIGATIONS
24.1.1 In addition to any other reporting obligations imposed on the
Contractor under this Contract, the Contractor, at a minimum, shall:
(a) within fifteen (15) calendar days after the end of each month
give a written report (in a form approved by the Owners Representative)
to the Owners Representative setting out:
(i) if applicable, details of the progress of tendering for the Trade
Contracts;
(ii) the progress of the Project against the Project Plan and the
effect on the Project Plan of any change to the Project, including a
curve showing cumulative actual and forecasted cashflow (including
costs for any changes to Project) against time;
(iii) details of any activities which are behind the progress
anticipated in the Project Plan;
(iv) any foreseen delays to future activities on the Project Plan;
(v) the likely effect on the Project Plan of any actual or foreseen
delay;
(vi) current claims for changes and extensions of time by Trade
Contractors under the various Trade Contracts, including details of
dates submitted, dates approved and any other details the Owners
Representative requires;
(vii) the status of all activities on which work is being undertaken;
(viii) details of all consultants and other subcontractors currently
employed or proposed to be employed by the Contractor for the purposes
of the Services;
(ix) evidence of compliance with the quality assurance requirements
of this Contract;
(x) industrial relations issues affecting (or which may affect) the
performance of the Project;
(xi) evidence of compliance with the Safety and Health Plan and
safety statistics;
(xii) strategies implemented or proposed to overcome problems,
including corrective action statements for catching up lost time or
avoiding potential delays;
(xiii) the total amount of Trade Costs payable to Trade Contractors
under any Trade Contracts awarded to date; and
(xiv) any other matter reasonably required by the Owners
Representative;
(b) give the Owners Representative, on request and within a reasonable
time:
(i) any information the Contractor has in its possession in
connection with the performance of the Project, provided that the
Contractor shall not be obliged to provide any information which is
privileged or which might reasonably be expected to void any insurance
coverage;
(ii) any report on any specific issue in connection with the
performance of the Project; and
(iii) any other periodic report (including Project cost reports, and
subcontractor reports), which the Owners Representative reasonably
requires;
(c) promptly report all incidents and accidents to the Owners site
safety representative using the Owners standard forms;
(d) advise the Owners Representative (in writing if the Owners
Representative directs) of suitable courses of action in relation to
matters raised in Project Control Group meetings; and
(e) establish and maintain any records which the Owners
Representative reasonably requires.
25. REPRESENTATIONS
25.1.1 The Contractor represents to the Owner:
(a) it is duly incorporated and validly exists under the law of its
place of incorporation;
(b) it has full legal capacity and power:
(i) to own its property and assets and to carry on its business; and
(ii) to enter into this Contract and to perform its obligations under
this Contract;
(c) it has taken all corporate action that is necessary to authorize
its entry into this Contract and to perform its obligations under this
Contract;
(d) this Contract constitutes a legal, valid and binding obligation
of it enforceable in accordance with its terms by appropriate legal
remedy;
(e) neither its execution of this Contract nor the carrying out of
its obligations under this Contract, does or will:
(i) contravene any Applicable Laws to which it or any of its property
is subject or any order of any Governmental Authority or other person
that is binding on it or any of its property;
(ii) contravene any undertaking or instrument binding on it or any of
its property; or
(iii) contravene its constitution or other constating documents;
(f) no litigation, arbitration, mediation, conciliation or
administrative proceedings are taking place, pending or threatened
against it which if adversely decided could, in the reasonable opinion
of the Contractor's management, have a material adverse effect on the
Contractor's business, assets or financial condition or its ability to
perform its obligations under this Contract;
(g) no receiver or receiver and manager is currently appointed in
relation to any of its property;
(h) it has familiarized itself with local conditions at the Site and
all Applicable Laws;
(i) its Contract Personnel will not enter the Site without having
first familiarized themselves to the extent necessary with local
conditions and Applicable Laws;
(j) it has inspected the Site and its surroundings, but has not
conducted detailed investigations at Site;
(k) subject to its obligations to comply with Applicable Laws, it
will not intentionally or wilfully damage the name or reputation of the
Owner or wrongfully invite adverse public criticism of the Owner; and
(l) any factual information given or representation made to the Owner
or to the Owner's Representative in connection with the Project is (to
the best of the Contractor's knowledge) accurate and current at the
time given and is not intentionally misleading or deceptive in any
respect, and any expressions of opinion represents the Contractor's
honest, good faith opinion at the time the expression is made or given.
25.1.2 The representations contained in GC 25.1.1(a) to GC 25.1.1(e)
and in GC 25.1.1(k) and GC 25.1.1(l) will be treated as made and be
binding upon the Contractor continuously during the term of this
Contract.
25.1.3 The Owner represents to the Contractor:
(a) it is duly incorporated and validly exists under the law of its
place of incorporation;
(b) it has full legal capacity and power:
(i) to own its property and assets and to carry on its business; and
(ii) to enter into this Contract and to perform its obligations under
this Contract;
(c) it has taken all corporate action that is necessary to authorize
its entry into this Contract and to perform its obligations under this
Contract;
(d) this Contract constitutes a legal, valid and binding obligation
of it enforceable in accordance with its terms by appropriate legal
remedy;
(e) neither its execution of this Contract nor the carrying out of
its obligations under this Contract, does or will:
(i) contravene any Applicable Laws to which it or any of its property
is subject or any order of any Governmental Authority or other person
that is binding on it or any of its property;
(ii) contravene any undertaking or instrument binding on it or any of
its property; or
(iii) contravene its constitution or other constating documents;
(f) no litigation, arbitration, mediation, conciliation or
administrative proceedings are taking place, pending or threatened
against it which if adversely decided could, in the reasonable opinion
of the Owner's management, have a material adverse effect on the
Owner's business, assets or financial condition or its ability to
perform its obligations under this Contract;
(g) no receiver or receiver and manager is currently appointed in
relation to any of its property;
(h) subject to its obligations to comply with Applicable Laws, it
will not intentionally or wilfully damage the name or reputation of the
Contractor or wrongfully invite adverse public criticism of the
Contractor; and
(i) any factual information given or representation made to the
Contractor or to the Contractor's Representative in connection with the
Project is (to the best of the Owner's knowledge) accurate and current
at the time given and is not intentionally misleading or deceptive in
any respect, and any expressions of opinion represents the Owner's
honest, good faith opinion at the time the expression is made or given.
25.1.4 The representations contained in GC 25.1.3(a) to GC 25.1.3(e)
and in GC 25.1.3(h) and GC 25.1.3(i) will be treated as made and be
binding upon the Owner continuously during the term of this Contract.
26. DEFAULT AND TERMINATION
26.1 Default by Owner
26.1.1 If the Contractor considers that the Owner:
(a) is in breach of or default under this Contract (provided that any
failure to comply with any schedule or deadline requirement shall not
comprise a default except where such schedule or deadline is in regard
to a requirement to make payment hereunder to the Contractor); or
(b) has breached a representation or warranty which it has given to
the Contractor under this Contract, including a representation made
under GC 25.1.3,
the Owner may give the Contractor a Notice:
(c) specifying the alleged breach of or default under this Contract;
(d) specifying a reasonable time and date by which the Owner shall
rectify the breach or default (or overcome their effects); and
(e) requiring the Owner to show cause in writing why the Contractor
should not exercise its rights under GC 26.2.
26.1.2 If the Contractor gives the Owner a Notice referred to in GC
26.1.1, the Owner shall:
(a) comply with the Notice and give the Contractor a program to
rectify the relevant default or remedy the breach (or overcome their
effects) in accordance with the terms of the Contractors Notice; or
(b) notify the Contractor in writing that the Contractor disputes the
notice, with a concise statement of the grounds for the dispute.
26.1.3 If the Owner fails to rectify a default or remedy a breach (or
overcome their effects) in accordance with the terms of a Notice
referred to in GC 26.1.1:
(a) the Contractor may take any action it considers appropriate to:
(i) rectify that default; or
(ii) remedy that breach; and
(b) the Owner shall pay to the Contractor, as part of the Services,
any incremental costs incurred by the Contractor to rectify or remedy
the default or breach (including reasonable costs paid to third
parties), except to the extent such default or breach arises from the
negligence or wilful default of the Contractor.
26.2 Termination by Contractor Following Default by Owner
26.2.1 Subject to GC 26.3, the Contractor may terminate this Contract,
with immediate effect, by Notice to the Owner after it has previously
given the Owner a Notice under GC 26.1.1 and the Owner has not complied
with that Notice.
26.2.2 If the Contractor terminates this Contract pursuant to GC
26.2.1, then the Contractor shall:
(a) not be obliged to continue to perform any Services after the
effective date of such termination; and
(b) be paid for all parts of the Services completed to the effective
date of such termination.
26.3 Rights of Financing Entities on Default by Owner
26.3.1 If there shall occur and be continuing a default by the Owner of
its obligations under the Contract, or if an event occurs which with the
lapse of time or giving of notice, or both, would be a default of the
Owner under the Contract (a Default) entitling the Contractor to
terminate the Contract, prior to exercising its right to terminate the
Contract the Contractor shall first give the Financing Entities written
notice of such Default or event, by registered or certified mail, return
receipt requested, at the address last notified in writing by the Owner
for such notices. If the Owner fails to cure such Default, the
Contractor shall afford the Financing Entities a reasonable opportunity
to cure any Default by the Owner including any damages due to delay
resulting from the Financing Entities extended opportunity to cure.
26.4 Default by Contractor
26.4.1 If the Owner considers that the Contractor:
(a) is in breach of or default under this Contract (provided that any
failure to comply with any schedule or deadline requirement shall not
comprise a default except to the extent caused or contributed to by a
failure of the Contractor to diligently prosecute the Services or by
the breach of a material provision of the Contract); or
(b) has breached a representation or warranty which it has given to
the Owner under this Contract, including a representation made under GC
25.1.1,
the Owner may give the Contractor a Notice:
(c) specifying the alleged breach of or default under this Contract;
(d) specifying a reasonable time and date by which the Contractor
shall rectify the breach or default (or overcome their effects); and
(e) requiring the Contractor to show cause in writing why the Owner
should not exercise its rights under GC 26.5.
26.4.2 If the Owner gives the Contractor a Notice referred to in GC
26.4.1, the Contractor shall:
26.4.3 If the Contractor fails to rectify a default or remedy a breach
(or overcome their effects) in accordance with the terms of a Notice
referred to in GC 26.4.1:
(a) the Owner may take any action it considers appropriate, including
carrying out or having a third party carry out the part of the Services
which is the subject of the default, to:
(i) rectify that default; or
(ii) remedy that breach; and
(b) the Contractor shall (subject to the limit of liability set out
in GC 28.1) indemnify the Owner against any incremental costs incurred
by the Owner to rectify or remedy the default or breach (including
reasonable costs paid to third parties), in which case the cost
incurred by the Owner will be a debt due and payable from the
Contractor to the Owner, except to the extent such damage, cost, loss
or liability arises from the negligence or wilful default of the Owner.
26.5 Termination by Owner Following Default by Contractor
26.5.1 The Owner may terminate this Contract, with immediate effect, by
Notice to the Contractor after it has previously given the Contractor a
Notice under GC 26.4 and the Contractor has not complied with that
Notice.
26.6 Termination for Insolvency of a Party
26.6.1 Subject only to Applicable Laws governing bankruptcy and
creditors that by such Applicable Laws postpone a Partys rights to
terminate, either Party may terminate this Contract, with immediate
effect, by Notice to the other Party if:
(a) the other Party becomes (or informs any of the first Party,
creditors of the other Party generally, or any particular creditor of
the other Party that it is) insolvent or unable to pay its debts as and
when they fall due;
(b) a liquidator or provisional liquidator is appointed in respect of
the other Party;
(c) a receiver or receiver and manager or an analogous person is
appointed to the other Party or any of its property;
(d) the other Party has a mortgagee seeking to exercise a right of
possession or control over the whole or a part of its property;
(e) the other Party enters into, or calls a meeting of its members or
creditors with a view to entering into, a composition, compromise or
arrangement with, or an assignment for the benefit of, any of its
members or creditors, or a Court orders that a meeting be convened in
respect of a proposed composition, compromise or arrangement between
the other Party and its creditors or any class of its creditors, other
than for the purpose of restructuring or amalgamation;
(f) the other Party has any execution, writ of execution, mareva
injunction or similar order, attachment or other process made, levied
or issued against it or in relation to any of its assets;
(g) any application is made or other process commenced (not being an
application or process withdrawn, discontinued or dismissed within
seven (7) days of being filed) seeking an order for the appointment of
a provisional liquidator, a liquidator, a receiver or a receiver and
manager to the other Party;
(h) the other Party is declared bankrupt or has filed for some form
of protection from its creditors under Applicable Laws relating to or
governing bankruptcy;
(i) there is a resolution of creditors or members, or an order of a
court, to place in liquidation or bankruptcy and/or wind up the other
Party; or
(j) an event happens analogous to an event specified in this GC
26.6.1(a) to GC 26.6.1(i) to which the law of another jurisdiction
applies and the event has an effect in that jurisdiction similar to the
effect which the event would have had if the law of Canada applied.
26.7 Termination for Events of Force Majeure
26.7.1 Either Party may terminate this Contract by giving Notice to the
other Party if an Event of Force Majeure continues for a period of six
(6) months after a Notice is given under GC 17.4 in respect of that
Event of Force Majeure.
26.7.2 If this Contract is terminated pursuant to GC 26.7.1:
(a) the Owner (without prejudice to any other rights or remedies it
has) will pay the Contractor in accordance with GC 18.1 after receipt
of a written claim for payment:
(i) the portion of the Fee due to the Contractor for the Services
performed in the relevant period up to the date of termination; and
(ii) the relevant portion of the Fee allocated for demobilisation
costs; and
(b) the Contractor is not entitled to any other Claim for any
consequential costs, losses or damages.
26.8 Termination by Owner for Convenience
26.8.1 Despite any other provision of this Contract:
(a) the Owner may at its sole discretion and for any reason,
including convenience of the Owner and without any fault or default on
the part of the Contractor, terminate this Contract effective
immediately upon giving Notice to the Contractor or at a future date
specified in the Notice; and
(b) subject to the Contractor complying with its professional
obligations in the practice of professional engineering and as required
to protect Persons and property from damage, the Contractor shall cease
the performance of the Services immediately upon receiving that Notice
or upon any later date specified in that Notice.
26.8.2 If for any reason a purported termination under GC 26.5, GC 26.6
or GC 26.7 by the Owner is held to be ineffective, the purported
termination is not a breach or repudiation of this Contract and is
deemed to have been effected under GC 26.8.1.
26.8.3 If this Contract is terminated pursuant to GC 26.8.1:
(a) the Owner (without prejudice to any other rights or remedies it
has) will pay the Contractor in accordance with GC 18.1, after receipt
of a written claim for payment, the portion of the Fee due to the
Contractor for the Services performed in the relevant period up to the
date of termination plus demobilisation costs and other costs the
Contractor reasonably incurs (and provides satisfactory evidence for)
in terminating the Services; and
(b) the Contractor is not entitled to make any other Claim for any
consequential costs, losses or damages.
26.9 Termination by Owner of Contract
26.9.1 If the Owner terminates this Contract pursuant to GC 26.5, GC
26.6, GC 26.7 or GC 26.8, then:
(a) the Owner may engage and pay other persons to perform the
Services. Such other persons may enter the Site and use all Goods
necessary to perform the Services, and the Contractor shall provide to
such other persons full and free access to the Site and Goods for that
purpose;
(b) as and when required by the Owner by Notice to the Contractor
(and not before), the Contractor shall remove from the Site any other
property of or in the possession or control of the Contractor within
one (1) month of receiving such Notice. If the Contractor fails to do
so, the Owner may remove and/or dispose of any such other property as
it sees fit. The Owner may credit to the Contractors account, (or to
the Owners account), an amount equal to the proceeds from any sale
(less any disposal costs incurred by the Owner);
(c) the Contractor shall, if so required by the Owner within fourteen
(14) days after the date of termination, use all reasonable efforts to
assign or novate to the Owner without payment the benefit of any
agreements for the maintenance, manufacture and/or supply (including
supply by way of lease, hire purchase, or other right to use
arrangement) of constructional plant used to perform the Services or
Goods and the performance of any part of the Services; and
(d) the Contractor shall deliver to the Owner within fourteen (14)
days after the date of termination:
(i) all the Owner Documentation;
(ii) all Contract Material; and
(iii) anything recording, containing, setting out, or making
reference to the Services or the Project, save that the Contractor may
keep one copy of such documentation and material in accordance with the
confidentiality obligations of this Contract.
26.9.2 If the Owner terminates this Contract pursuant to GC 26.5 or GC
26.6, the Owner may, without limiting any other rights it may have to
pay suppliers and manufacturers:
(a) pay any manufacturer or supplier for any constructional plant
delivered or work performed for the purpose of this Contract (whether
before or after the date of termination) which has not already been
paid for by the Contractor; and
(b) deduct amounts equal to any such payments from any moneys due to
the Contractor from time to time.
26.10 Recovery of Loss
26.10.1If the Owner terminates this Contract pursuant to GC 26.5 or GC
26.6, or if the Contractor repudiates the Contract and the Owner
otherwise terminates the Contract, then the Owner shall:
(a) not be obliged to make any further payments to the Contractor
except for any money that is the subject of a Application for Payment
under GC 18.4 or a payment statement under GC 18.8; and
(b) subject to GC 28.1, be entitled to recover from the Contractor
any costs, losses, damages or liability incurred or suffered or
suffered by it as a result of, or arising out of, or in any way in
connection with, such termination.
26.11 Preservation of Other Rights
26.11.1If the Contractor:
(a) is in breach of or is in default under this Contract; or
(b) breaches a warranty which it gives the Owner under this Contract,
nothing in this GC 26 shall, subject to 28.1, prejudice the right of the
Owner to exercise any other right it may have under this Contract or at
law or equity.
27. INDEMNITIES
27.1 Indemnity by EPC Contractor
27.1.1 Subject to GC 27.1.2, the Contractor shall indemnify and save
harmless the Owner and its directors, officers, employees, agents,
contractors, subcontractors, representatives and affiliates, and each
of them, and defend any and all of them at their request, from and
against any and all claims, costs, damages, expenses, losses, fines,
taxes, contributions, severance payments, demands and other liabilities
which they may suffer or incur, and also from and against any action,
suit, claim, demand or proceeding of any nature that may be brought
against them (including legal fees and disbursements on a full
indemnity basis incurred by them in defending such action, suit, claim,
demand or proceeding):
(a) in respect of an infringement of any patent or intellectual
property rights of others used or specified by the Contractor; or
(b) in respect of:
(i) loss of, or damage to, any real or personal property;
(ii) the personal injury to, or disease or illness (including mental
illness) affecting, or death of, any person; or
(iii) any environmental impairment or Contamination resulting from
sudden and accidental spills or Contamination,
arising out of or in connection with the following (including, without
limitation, during the correction or re-performance of non-compliant
Services, or the rectification of any defect, deficiency or
non-conformance in respect of the Services, or the fulfilling of any
warranties under the Contract):
(iv) any negligent act or omission of the Contractor or the Contract
Personnel;
(v) any failure by the Contractor to observe or perform its
obligations under this Contract or any breach by the Contractor of this
Contract; or
(vi) the breach of, or failure to comply with, any Applicable Laws or
the requirements of any Permits, Licences and Approvals by the
Contractor or the Contract Personnel.
27.1.2 The Contractors liability under GC 27.1.1 of this Contract will
be reduced proportionately to the extent that the cost, damage,
expense, loss or other liability or claim was caused by a negligent act
or omission of the Owner or those for whom the Owner is responsible
under the Contract.
27.1.3 For the purposes of GC 27.1.1, the Owner will be deemed to be
acting as agent or trustee on behalf of or for the benefit of all
persons who are or might be its directors, officers, employees, agents,
contractors, subcontractors, representatives or affiliates from time to
time, as well as on its own behalf.
27.2 Indemnity by Owner
27.2.1 Subject to GC 27.2.2, the Owner shall indemnify and save
harmless the Contractor and its directors, officers, employees, agents,
contractors, subcontractors, representatives and affiliates, and each of
them, and defend any and all of them at their request, from and against
any and all claims, costs, damages, expenses, losses, fines, taxes,
contributions, severance payments, demands and other liabilities which
they may suffer or incur, and also from and against any action, suit,
claim, demand or proceeding of any nature that may be brought against
them (including legal fees and disbursements on a full indemnity basis
incurred by them in defending such action, suit, claim, demand or
proceeding):
(a) in respect of an infringement of any patent or intellectual
property rights of others specified by the Owner; or
(b) in respect of:
(i) loss of, or damage to, any real or personal property;
(ii) the personal injury to, or disease or illness (including mental
illness) affecting, or death of, any person; or
(iii) any environmental impairment or Contamination (except sudden
and accidental spills or Contamination for which the Contractor is
responsible to indemnify the Owner under GC 27.1),
arising out of or in connection with:
(iv) any negligent act or omission of the Owner;
(v) any failure by the Owner to observe or perform its obligations
under this Contract or any breach by the Owner of this Contract; or
(vi) the breach of, or failure to comply with, any Applicable Laws or
the requirements of any Permits, Licences and Approvals by the Owner.
27.2.2 The Owners liability under GC 27.2.1 of this Contract will be
reduced proportionately to the extent that the cost, damage, expense,
loss or other liability or claim was caused by a negligent act or
omission of the Contractor or those for whom the Contractor is
responsible under the Contract.
27.2.3 For the purposes of GC 27.1.1, the Contractor will be deemed to
be acting as agent or trustee on behalf of or for the benefit of all
persons who are or might be its directors, officers, employees, agents,
contractors, subcontractors, representatives or affiliates from time to
time, as well as on its own behalf.
28. LIMITATION OF LIABILITY
28.1 Limitation of Contractor Liability
28.1.1 Subject to GC 28.1.2 and GC 28.1.3, the maximum liability of the
Contractor to the Owner hereunder or in any way connected to the
Services or the Contractors performance of the Services shall not
exceed the following:
(a) For that part of any claim under GC 27.1 (excluding liabilities
to third parties for personal injury, wrongful death, or damage or
destruction to property) for which any insurance is available to
indemnify the Contractor, or for which any insurance would have been
available to indemnify the Contractor if the Contractor had fulfilled
its obligations under this Contract and procured the insurance
specified in Appendix 11 Insurance to be procured by the Contractor,
then the greater of:
(i) applicable limits specified in the Contract for the relevant
insurance required to be procured by the Contractor pursuant to the
Contract; and
(ii) the amount of insurance proceeds actually available to indemnify
the Contractor for such claims under any of the policies of insurance
specified in Appendix 11 Insurance and procured by or on behalf of the
Owner or the Contractor specifically for the purpose of this Project.
Provided, however, that if prior claims are made against the Contractor
during the relevant policy period and if such prior claims actually
reduce the limits otherwise available under the policy of insurance,
then the applicable limits referred to in GC 28.1.1(a)(i) shall be
construed to mean the available limits remaining under the policy.
(b) For all other claims, the maximum amount of liability specified
in Appendix 6 Compensation.
For clarity, it is agreed that the purpose of the foregoing is that the
Owner shall be entitled to receive, directly or indirectly, the benefit
of all insurance procured by or on behalf of the Owner or the
Contractor specifically for the purpose of this Project and available
to indemnify the Contractor for and against claims made by the Owner
against the Contractor.
28.1.2 For purposes of GC 28.1.1, if insurance proceeds are not
available to indemnify the Contractor or the Owner because of the
Contractors failure, by its negligence or by its breach of its
obligations hereunder, to procure the insurance required by this
Contract to be procured by the Contractor, or because the Contractor
breached the terms and conditions of the Owners or Contractors policy
of insurance (provided that in respect of Owners insurance, this shall
be limited to terms and conditions known to the Contractor prior to the
date of the occurrence giving rise to the claim, and generally in
conformance with standard terms and conditions available on reasonable
terms for similar insurance policies, and brought to the attention of
the Contractor prior to the breach complained of), then the provisions
of GC 28.1.1 shall be interpreted and construed as if the policies of
insurance specified by this Contract were in full force and effect, in
which case the amount of the limitations of liability specified in of
GC 28.1.1 shall apply whether or not insurance is available to
indemnify the Contractor.
28.1.3 Notwithstanding GC 28.1.2 or any other provision of the
Contract, any limitations of liability in favour of the Contractor
specified in the Contract shall not apply to or limit the Contractors
responsibility and liability to the Owner for the following:
(a) any damage and expense suffered by the Owner arising or resulting
from the gross negligence, recklessness or wilful or intentional
misconduct on the part of the senior management of the Contractor or
the Key Personnel;
(b) liability of the Owner arising or resulting from the breach by
the Contractor of the intellectual property rights, including in
respect of copyright and patent rights, of third parties;
(c) liability of the Owner to third parties, including Governmental
Authorities, arising or resulting from the Contractor acting as agent
for the Owner to the extent that such liability arises out of the
Contractor acting outside the scope of its authority to act as the
Owner's agent hereunder; and
(d) the Contractor's liability (if any) to Governmental Authorities
for breach by the Contractor of any Applicable Laws, including for any
liabilities imposed under Applicable Laws in relation to workers
employed by or through the Contractor for the performance of the
Services.
28.1.4 The liabilities of the Contractor hereunder shall be exclusive
of the liability of the Contractors related and affiliated companies,
subconsultants and agents, and their respective officers directors, and
employees in respect of the matters contemplated herein.
28.2 Limitation of Owner Liability
28.2.1 Subject to GC 28.2.2 and GC 28.2.3, the maximum liability of the
Owner to the Contractor hereunder or in any way connected to the
Services or the Contractors performance of the Services (except for
compensation payable under Appendix 6
Compensation for Services rendered) shall not exceed the following:
(a) For that part of any claim under GC 27.2 (excluding liabilities
to third parties for personal injury, wrongful death, or damage or
destruction to property) for which any insurance is available to
indemnify the Owner, or for which any insurance would have been
available to indemnify the Owner if the Owner had fulfilled its
obligations under this Contract and procured the insurance specified in
Appendix 11 Insurance to be procured by the Owner, then the greater of:
(i) applicable limits specified in the Contract for the relevant
insurance required to be procured by the Owner pursuant to the
Contract; and
(ii) the amount of insurance proceeds actually available to indemnify
the Owner for such claims under any of the policies of insurance
specified in Appendix 11 Insurance and procured by or on behalf of the
Owner or the Contractor specifically for the purpose of this Project.
Provided, however, that if prior claims are made against the Owner
during the relevant policy period and if such prior claims actually
reduce the limits otherwise available under the policy of insurance,
then the applicable limits referred to in GC 28.2.1(a)(i) shall be
construed to mean the available limits remaining under the policy.
(b) For all other claims, an amount equal to the amount calculated
pursuant to GC 28.1.1(b).
For clarity, it is agreed that the purpose of the foregoing is that the
Contractor shall be entitled to receive, directly or indirectly, the
benefit of all insurance procured by or on behalf of the Owner or the
Contractor specifically for the purpose of this Project and available
to indemnify the Owner for and against claims made by the Contractor
against the Owner.
28.2.2 For purposes of GC 28.2.1, if insurance proceeds are not
available to indemnify the Owner or the Contractor because of the
Owners failure, by its negligence or by its breach of its obligations
hereunder, to procure the insurance required by this Contract to be
procured by the Owner, or because the Owner breached the terms and
conditions of the Owners or Contractors policy of insurance (provided
that in respect of Owners insurance, this shall be limited to terms and
conditions known to the Contractor prior to the date of the occurrence
giving rise to the claim, and generally in conformance with standard
terms and conditions available on reasonable terms for similar
insurance policies, and brought to the attention of the Contractor
prior to the breach complained of), then the provisions of GC 28.2.1
shall be interpreted and construed as if the policies of insurance
specified by this Contract were in full force and effect, in which case
the amount of the limitations of liability specified in of GC 28.2.1
shall apply whether or not insurance is available to indemnify the
Contractor.
28.2.3 Notwithstanding GC 28.2.2 or any other provision of the
Contract, any limitations of liability in favour of the Owner specified
in the Contract shall not apply to or limit the Owners responsibility
and liability to the Contractor for the following:
28.2.4 Subject to any and all other express written agreements and
guarantees (including the payment guarantee delivered pursuant to GC
22.1) the liabilities of the Owner hereunder shall be exclusive of the
liability of the Owners related and affiliated companies, contractors,
consultants, and agents, and their respective officers directors, and
employees in respect of the matters contemplated herein.
28.3 Application of Limitations of Liability
28.3.1 All limitations of liability provided for in this Contract
shall: apply solely as between Owner and Contractor; survive any
termination of this Contract for any reason; and shall apply whether a
claim in respect thereof is framed in contract, tort (including
negligence), product liability, by statute, or under any other legal
theory.
28.4 Exclusion of Consequential Damages
28.4.1 Except to the extent forbidden or prohibited by Applicable Laws,
neither Party shall be liable to the other for lost or delayed profits,
income, revenues or production, or for damages for increased costs of
construction, business or operations, or for other indirect or
consequential damages (collectively and individually all of the
foregoing referred to herein as Consequential Damages), whether such
claim for Consequential Damages is founded in contract, tort (including
negligence), by statute, or by any other provision of law, provided
however that the aforesaid exclusion of Consequential Damages shall not
limit, operate or apply to the following:
(a) an express right hereunder of a Party to claim and recover
Liquidated Damages from the other Party; and
(b) Consequential Damages for which the Contractor is, but for the
aforesaid exclusion of Consequential Damages, entitled to be
indemnified by an insurer under an insurance policy required by
Appendix 11 Insurance (other than under the Project E&O Policy, if
any, as defined in Section 2 of Appendix 11-2), such that the intent of
the aforesaid exclusion of Consequential Damages is that it shall only
operate to the extent that the Contractors liability for such
Consequential Damages is an uninsured liability, such that if the
Contractors liability for Consequential Damages is insured by a policy
of insurance other than the EP E&O Policy then the Owner shall obtain
the benefit of the proceeds of any such insurance that may be payable
but for the aforesaid exclusion of Consequential Damages.
28.5 Exclusion of Warranties of Performance of the Project
28.5.1 Save and except express performance guarantees and warranties of
performance of the Project that may be set out in Appendix 5
Performance Guarantees or Appendix 6
Compensation, the Contractor does not guarantee the performance
characteristics or production from the completed Project. The
Contractor shall, however, in consultation with the Owner use all
reasonable efforts to obtain performance guarantees from each of the
Trade Contractors to the extent practicable and economic for the scope
of work of the Trade Contractors.
29. DISPUTE RESOLUTION
29.1 General
29.1.1 All disputes, controversies, or claims arising out of or
relating to any provision of this Contract or the interpretation,
enforceability, performance, breach, termination, or validity hereof,
including, without limitation, this GC 29 (collectively and
individually referred to herein as a Dispute) shall be resolved in
accordance with the provisions of this GC 29.
29.2 Resolution by Owners Representative
29.2.1 Decisions of the Owners Representative under the Contract will
be final and binding on both Parties unless, within fourteen (14) days
after the Owners Representative making a determination in writing under
the Contract, either Party provides Notice to the other, and to the
Owners Representative, disputing such decision. Such Notice shall
identify the determination which is disputed, the reasons for
disagreeing with the determination of the Owners Representative and
summarizing the essential elements of the Partys position in relation
to the determination, including the position which the Party believes
is correct and the relevant facts and provisions of the Contract
supporting its position.
29.2.2 If either Party files Notice of dispute of a determination by
the Owners Representative pursuant to GC 29.2.1, then neither Party
will be bound by the determination and the Dispute shall be resolved
pursuant to GC 29.3.
29.3 Resolution by Negotiations
29.3.1 Any Dispute that cannot be resolved:
(a) by the Owner's Representative pursuant to GC 29.2; or
(b) between the Owner's Representative and the Contractor's Project
Manager within fourteen (14) days thereafter
shall be referred, by Notice signed by the Owners Representative and
the Contractors Project Manager, or signed by either one of them, to
the chief executive officer (or his designate) of the Contractor and
the chief executive officer (or his designate) of the Owner for
resolution. The designate of the chief executive officer in all cases
shall be a senior executive of the Party who is, in the management
hierarchy of that Party, in a management position senior to that of the
Project Manager and the Project Sponsor in the case of the Contractor,
and to that of the Owners Representative in the case of the Owner. If
the Parties, negotiating in good faith, fail to reach an agreement
within a reasonable period of time, not exceeding thirty (30) days or,
in the case of Disputes over payment, fourteen (14) days after such
referral, then the Dispute shall be submitted to mediation in
accordance with GC 29.4.
29.4 Resolution by Mediation
29.4.1 Any Dispute that cannot be resolved pursuant to GC 29.2 or GC
29.3 shall, unless the Parties expressly agree to proceed directly to
arbitration in accordance with GC 29.5, be referred to mediation under
the rules of the British Columbia International Commercial Arbitration
Centre (BCICAC). Mediation shall take place between the Owners chief
executive officer, as the representative of the Owner, and the chief
executive officer of the Contractor, as the representative of the
Contractor. They shall each make themselves available at such times and
such places for mediation as the mediator in his or her sole discretion
may decide. Each Party shall bear its own costs of the mediation
together with one-half of both the mediators costs and the charges of
the BCICAC in respect to the mediation.
29.4.2 If mediation does not resolve the dispute between the Parties
within sixty (60) days after the appointment of the mediator, either
Party may commence arbitration proceedings in accordance with GC 29.5,
but only if the Party seeking to commence such proceeding has
first obtained from the mediator written confirmation that it has made
itself reasonably available and has made reasonable good faith efforts
to resolve the dispute through mediation. To the extent allowed at law,
neither the subject matter of the mediation nor any records, notes or
other documents that were specifically produced only for use in, or
created during, the mediation shall be admissible or referred to in any
subsequent arbitration or litigation proceeding.
29.5 Resolution by Arbitration
29.5.1 Any Dispute that cannot be resolved pursuant to GC 29.2, GC 29.3
or GC 29.4 shall be referred to and finally resolved by arbitration
under the rules of the BCICAC for domestic commercial arbitrations and
(a) before a three (3) person arbitration tribunal if the total of
all amounts in dispute exceed $1,000,000; and
(b) before a single arbitrator if the total of all amounts in dispute
is less than $1,000,000.
The award of the arbitrator(s) shall be final and binding upon both
Parties.
29.5.2 Notice of demand for arbitration shall be filed with the other
Party and with the BCICAC. Any demand for arbitration shall be made
within the time beyond which legal or equitable proceedings based on
such Dispute would be barred by any Applicable Laws.
29.5.3 The appointing authority shall be the BCICAC.
29.5.4 The case shall be administered by the BCICAC in accordance with
its Procedures for Cases under the BCICAC Rules.
29.5.5 In case of arbitration before a single arbitrator, the Parties
shall agree on the arbitrator or, failing agreement, the arbitrator
will be appointed in accordance with the rules of the BCICAC.
29.5.6 In case of arbitration before a three-person panel, each Party
shall have the right to designate an arbitrator of its choice, who need
not be from the BCICACs panel of arbitrators but who shall be
independent of and not act as an advocate for either Party. Such
designation shall be made by Notice to the other Party and to the
Association within the time limits specified in the BCICAC rules. The
arbitrators designated by the Parties shall designate a third
arbitrator, who shall have a background and experience in both
arbitrations and legal or judicial matters, within the time period
prescribed in the rules of the BCICAC. If the two (2) arbitrators
cannot or do not select a third independent arbitrator within such
period, either Party may apply to the BCICAC for the purpose of
appointing any person listed with the BCICAC as the third independent
arbitrator whether or not that person has the requisite technical
qualifications and experience.
29.5.7 No one shall be nominated or appointed to act as an arbitrator
who is in any way financially interested in the performance of the
Services or the Project or in the business affairs of either the Owner,
the Contractor, or any consultant, subconsultant or subcontractor of any
of them.
29.5.8 Subject to GC 29.5.6, unless the Parties otherwise agree in
writing, every arbitrator shall be knowledgeable and experienced in the
design and construction of mine process plants comparable to the Project.
29.5.9 The arbitrator(s) shall have the power to amend or vary the
rules of the BCICAC, including rules relating to time limits, by
agreement of the Parties or, failing agreement, as the arbitrator(s)
consider appropriate and necessary in the circumstances.
29.5.10Unless the Parties otherwise agree in writing, the place of
arbitration shall be Vancouver, British Columbia, Canada. The place of
the arbitration hearings shall be in such location as the Parties and
arbitrator(s) may agree or, failing unanimous agreement, in Vancouver,
British Columbia.
29.5.11The Parties agree that, notwithstanding the rules of the BCICAC,
the arbitrators in any arbitration shall apply the law of the Province
of Ontario as the governing law applicable to this Contract.
29.5.12This agreement to arbitrate shall be specifically enforceable.
29.5.13Any award rendered by the arbitrators shall be final, and
judgment may be entered upon it in accordance with Applicable Law in
any court having jurisdiction thereof.
29.5.14Unless the Parties otherwise agree, all arbitral proceedings
will be consolidated into a single arbitration to be held after the
Notice of Provisional Acceptance has been issued.
29.5.15The Parties shall proceed with the arbitration expeditiously and
shall conclude all proceedings thereunder, including any hearing, in
order that a decision may be rendered as soon as practicably possible,
given the nature and magnitude of the dispute.
29.5.16If it is determined, either by agreement of the Parties or
through arbitration, that:
(a) the Contractor has received payment from the Owner in excess of
that to which the Contractor is entitled under the Contract, the
Contractor shall promptly refund the amount of such excess payment
together with interest thereon at the Prime Rate in effect from time to
time plus two percent (2%) per annum, from the day following the date of
such payment until the date of full refund to the Owner; and
(b) the Contractor has not received payment from the Owner of an
amount that was due when it was due, the Owner shall pay or cause to be
paid to the Contractor within thirty (30) days after the final
arbitration award is made such withheld amount together with interest
thereon at the Prime Rate in effect from time to time plus two percent
(2%) per annum, from the day following the date on which such payment
is determined to have been unduly withheld (as so determined) until the
date of payment in full to the Contractor.
29.5.17Compliance with the requirements of this GC 29.5 in respect of a
Dispute is a condition precedent to commencement of litigation in
respect of that Dispute.
29.6 Consolidation of Arbitrations
29.6.1 If the Owner (or any corporate affiliate of the Owner) is or
becomes involved in any arbitration proceeding with any corporate
affiliate of the Contractor , all such arbitrations shall be
consolidated or joined with the other arbitration or arbitrations such
that all disputes between the Owner (or any corporate affiliate of the
Owner) and either or both the Contractor and any corporate affiliate of
the Contractor, be resolved by a single arbitral tribunal.
29.7 Dispute Resolution Not to Delay Performance
29.7.1 Unless otherwise agreed in writing, the Contractor shall
diligently continue to perform the Services during the pendency of any
Disputes or arbitration proceedings so long as all amounts payable to
the Contractor hereunder have been paid which are not subject to a
dispute by the Owner in good faith, for reasons stated in writing with
reasonable particularity.
30. MEDIA RELEASES AND CONFIDENTIALITY
30.1 Media Release
30.1.1 The Contractor shall not advertise or issue any information,
publication, document or article (including photographs or film) for
publication or media releases or other publicity relating to the
Project, this Contract or the Owners business and activities without
the prior written approval of the Owner except as may be required by
Applicable Laws.
30.1.2 The Contractor shall refer to the Owner any enquiries from the
media concerning the Project, this Contract or the Owners business and
activities.
30.2 Confidentiality
30.2.1 The Contractor shall not, and shall ensure that the Contract
Personnel do not, without the prior written approval of the Owner:
(a) use Confidential Information other than as necessary for the
performance of the Services; or
(b) disclose Confidential Information, other than to the extent
required by a court of law, government department or regulatory
Governmental Authority having jurisdiction over the Contractor or
pursuant to any Applicable Laws. The Contractor shall promptly notify
in writing the Owner of any requirement to use or disclose Confidential
Information
30.2.2 The Contractor shall, within seven (7) days of a written
direction by the Owners Representative to do so, return or destroy all
Confidential Information in the Contractors possession, custody or
control, save that the Contractor may keep one copy of the Confidential
Information in accordance with the confidentiality obligations of this
Contract.
31. NOTICES AND COMMUNICATIONS
31.1 Method of Notice
31.1.1 Any Notice pursuant to the terms and conditions of this Contract
shall be in writing and
(a) delivered personally, (b) sent by a recognized express mail or
courier service, with delivery receipt requested, or (c) sent by
confirmed facsimile transmission with telephonic confirmation, to the
addresses of the Owners Representative and the Contractor in the
Agreement.
31.2 Effectiveness of Notices
31.2.1 Any Notice given under the Contract shall be considered as
having been made if mailed by registered prepaid mail, actually
delivered, or sent by fax to the recipient at either the addresses or
fax numbers stated in the Contract or any substitute address of which
the Party sending the Notice has had prior Notice as provided for in
the Contract. Any such Notice shall be deemed to have been given at the
time it is delivered by hand, or if mailed as aforesaid then within four
(4) calendar days after the date of mailing if mailed in Canada and
seven (7) days after the date of mailing if mailed outside of Canada,
or if sent by fax then on the date it is transmitted prior to 4:00 p.m.
at the place of receipt, otherwise on the morning of the following day.
31.2.2 To be effective, Notices and all formal communications under the
Contract shall be in writing and mailed, delivered or transmitted by
facsimile transmission, and shall be signed by an authorized
representative of the Party.
31.2.3 Although the Parties may use E-mails for day to day
communications, E-mails shall not be used for and shall not constitute
Notices under the Contract where the Contract expressly requires that a
Notice be given, including for Claims, Application for Payments, Events
of Force Majeure, and termination.
31.2.4 Verbal communications shall not constitute formal communication
or Notice under the Contract and neither Party has any obligation to
act on any verbal communication or instruction unless and until it is
confirmed in writing. Any action taken by a Party based on verbal
communications, instructions or assurances shall be at that Partys sole
risk and shall be without liability to or recourse against the other
Party.
31.3 Change of Address
31.3.1 A Party may, from time to time, give Notice to the other Party
of any change to its address.
32. NOTIFICATION OF CLAIMS
32.1 Notices of Claims
32.1.1 Except for Claims for:
(a) payment under GC 18 of the original Fee specified in the
Contract; or
(b) a variation to the Scope of Services instructed in accordance
with GC 15,
the Contractor shall give the Owners Representative the Notices
required by GC 32.2 if it wishes to make a Claim against the Owner in
respect of any direction by the Owners Representative (including a
Claim that the direction is a variation to the Scope of Services under
GC 15 notwithstanding that it may not have been expressly described as
such) or any other fact, matter or thing (including a breach of the
Contract by the Owner) under, arising out of, or in any way in
connection with, the Project or the Contract, including anything in
respect of which:
(c) it is otherwise given an express entitlement under the Contract;
or
(d) the Contract expressly provides that:
(i) specified costs are to be added to the Fee; or
(ii) the Fee will be otherwise increased or adjusted, as determined
by the Owners Representative.
32.2 Prescribed Notices
32.2.1 The Notices referred to in GC 32.1 are:
(a) a Notice within fourteen (14) days of the first occurrence of the
direction or other fact, matter or thing upon which the Claim is based,
expressly specifying:
(i) that the Contractor proposes to make a Claim; and
(ii) the direction or other fact, matter or thing upon which the
Claim will be based; and
(b) a written Claim within twenty-one (21) days of giving the Notice
under GC 32.2.1(a), which shall include:
(i) detailed particulars concerning the direction or other fact,
matter or thing upon which the Claim is based;
(ii) the legal basis for the Claim, whether based on a term of the
Contract or otherwise, and if based on a term of the Contract, clearly
identifying the specific term;
(iii) the facts relied upon in support of the Claim in sufficient
detail to permit verification; and
(iv) details of the amount claimed and how it has been calculated.
32.3 Continuing Events
32.3.1 If the direction or fact, matter or thing upon which the Claim
under GC 32.1 is based or the consequences of the direction or fact,
matter or thing are continuing, the Contractor shall continue to give
the information required by GC 32.2.1(b) every twenty-eight (28) days
after the written Claim under GC 32.2.1(b) (as the case may be) was
required to be given to the Owners Representative, until after the
direction or fact, matter or thing upon which the Claim is based, has,
or the consequences thereof have, ceased.
32.4 Time Bar
32.4.1 If the Contractor fails to comply with GC 32.1, GC 32.2 or GC
32.3:
(a) the Owner will not be liable (insofar as it is possible to
exclude such liability) upon any Claim by the Contractor; and
(b) the Contractor will be absolutely barred from making any Claim
against the Owner, arising out of, or in any way in connection with,
the relevant direction or fact, matter or thing (as the case may be) to
which GC 32.1 applies.
32.5 Other Provisions Unaffected
32.5.1 Nothing in GC 32.1 to GC 32.4 will limit the operation or effect
of any other provision of the Contract which requires the Contractor to
give Notice to the Owners Representative in order to preserve an
entitlement to make a Claim against the Owner.
33. GENERAL
33.1 Nature of Relationship and Contractor as Agent
33.1.1 Subject to GC 33.1.3, nothing in this Contract constitutes a
joint venture, partnership or other fiduciary relationship between the
Owner and the Contractor.
33.1.2 The Contractor acknowledges and agrees that it has no authority
to bind the Owner in respect to any commitments, obligations or
liabilities to Governmental Authorities or under Applicable Laws.
33.1.3 The Owner appoints the Contractor as its limited agent to act in
the Owners name in accordance with and subject to the terms of this
Contract, provided however that:
(a) such agency and authority is solely for the purpose of and
limited to entering into the Trade Contracts;
(b) in soliciting bids from and negotiating with prospective Trade
Contractors, and in entering into the Trade Contracts, the Contractor
shall do so in the name of and as disclosed agent for the Owner;
(c) where the Contractor has entered into Trade Contracts as
disclosed agent for the Owner, the Contractor shall not act outside the
scope of the authority conferred on it under this Contract;
(d) the Contractor shall at all times conform to and comply strictly
with, and shall ensure that anything and everything it does as agent
for and in the name of the Owner conforms to and complies strictly
with, all requirements of this Contract, all Applicable Laws, the
Permits, Licences and Approvals, and the requirements of all relevant
Government Authorities; and
(e) promptly remove or instruct the relevant Trade Contractor to
remove from the Site and replace or re-execute defective work that has
been rejected by the Owner or the Contractor as failing to conform to
the requirements of this Contract or the Trade Contracts, whether or
not the defective work has been incorporated into the Project and
whether or not the defect is the result of poor design, poor
workmanship, use of defective products, or damage through carelessness
or other act or omission of the Trade Contractor(s), and the Contractor
shall use all reasonable efforts to backcharge and hold responsible the
relevant Trade Contractor for the replacement or re-execution of such
defective work.
33.1.4 In the administration of the Trade Contracts, the Contractor
shall at all times represent and protect the interest of the Owner and
diligently enforce such Trade Contracts for, on behalf of, and in the
best interest of the Owner, and in accordance with the directions in
writing of the Owners Representative from time to time. This GC 33.1.4
shall survive Final Acceptance.
33.1.5 The Contractor shall enforce Trade Contracts strictly in
accordance with their terms, and shall not waive any provisions,
authorize any extras or agree to any changes except in each instance
with the prior written consent of the Owners Representative.
33.2 Variation and Waivers in Writing
33.2.1 This Contract may only be varied, or its provisions waived, in
writing by the Owner and the Contractor.
33.2.2 The non-exercise of, or a delay in exercising, any power or
right of a Party does not operate as a waiver of that power or right,
nor does any single exercise of a power or
right preclude any other or further exercise of it or the exercise of
any other power or right by that Party or Contractor.
33.2.3 A power or right of a Party may only be waived in writing by the
Party.
33.3 Contractor More than One Person
33.3.1 Where the Contractor includes more than one Person, the terms,
conditions and warranties of this Contract will bind all such Persons
jointly and each of them severally and the Persons comprising the
Contractor will be jointly and severally entitled to the benefits and
rights conferred by this Contract.
33.3.2 Where the Contractor comprises more than one Person or the
Contractor is otherwise jointly or severally liable to the Owner with
any other Person (whether in contract, in tort for negligence or
otherwise), each Person comprising the Contractor (Other):
(a) warrants that it will be responsible to the Owner for the acts
and omissions (including breaches of the Contract) of the Other as if
those acts and omissions were its own;
(b) for the purposes of GC 33.3.2(a) warrants that it will:
(i) review all of the activities of the Other under or in connection
with the Contract or the performance of the Project (Other's
Activities); and
(ii) identify and rectify all errors or defects in or omissions from
the Other's Activities or any other aspect of the Other's Activities
which are not in accordance with the Contract;
(c) unconditionally and irrevocably guarantees to the Owner that the
Other will discharge all of its liabilities to the Owner arising out of
or in connection with the Other's Activities (Other's Liabilities);
(d) unconditionally undertakes to pay to the Owner on demand any
amount demanded in writing by the Owner on account of the Other's
Liabilities to the extent that they have not been discharged by the
Other; and
(e) as a separate, additional and primary liability, unconditionally
and irrevocably indemnifies the Owner from and against all costs,
expenses, losses and damages incurred or suffered by the Owner as a
result of or in connection with:
(i) the Other's Activities or the Other's Liabilities; or
(ii) a breach of the warranty in GC 33.3.2 or a failure by the Person
to perform any of its obligations under this GC 33.3.
33.3.3 The liability of a Party under GC 33.3.2(c), GC 33.3.2(d) or GC
33.3.2(e) will not be affected by any act, omission, matter or thing
that would otherwise operate in law or in equity to reduce or release
the Party from that liability.
33.3.4 Without limitation, the liability of a Party referred to in GC
33.3.3 will not be affected by:
(a) the granting by the Owner of time, waiver, indulgence or
concession or the making of any composition or compromise;
(b) the Owner forbearing to enforce or neglecting to exercise any
right against the Other;
(c) any laches, acquiescence or other act, neglect, default, omission
or mistake by the Owner;
(d) any variation of any of the obligations and liabilities under the
Contract, made either with or without the knowledge of the Party;
(e) the release of any of the obligations and liabilities under the
Contract;
(f) any failure by the Owner to disclose to the Party any fact,
circumstance or event relating to the Contract at any time; or
(g) the default, insolvency, external administration or any other
financial difficulty of the Other or a Person becoming a controller of
the Others property (or part), or the Other having communications with
its creditors with a view to entering into any form of compromise,
arrangement or moratorium of any debts whether formal or informal.
33.4 Entire Agreement
33.4.1 Except as may subsequently be agreed between the Parties, this
Contract constitutes the entire agreement between the Parties in
respect of its subject matter and supersedes all prior agreements,
quotation requests, understandings, representations, warranties,
promises, statements, negotiations, letters and documents in respect of
its subject matter (if any) made or given prior to the Date of Contract.
33.5 Language of Contract
33.5.1 Unless the Parties otherwise agree, all communications between
the Parties and all documents prepared by the Contractor for the Owners
use under this Contract shall be in English.
33.6 Violation of Law of Another Jurisdiction
33.6.1 If this Contract is intended to be performed in more than one
jurisdiction, and its performance would be a violation of the
Applicable Laws of a jurisdiction where it is intended to be performed,
this Contract is binding in those jurisdictions in which it is valid and
the Parties will use their reasonable endeavours to re-negotiate and
amend this Contract so that its performance does not involve a
violation of the Applicable Laws of the jurisdiction where its
performance would be a violation.
33.7 Violation of Laws Governing Corrupt Practices
33.7.1 The Contractor shall comply with all Applicable Laws governing
or relating to corrupt business practices, including in addition to the
Applicable Laws of Venezuela all laws, statutes, by-laws, rules,
regulations, codes, ordinances, decrees, administrative
interpretations, guidelines, policies or orders governing or relating
to corrupt business practices in effect in Venezuela and, whether they
would otherwise apply or not, in effect in Canada, in any Canadian
province, in the United States of America, in any state of the United
States of America or either in effect or enforced by the World Bank.
33.7.2 Without limiting but in addition to the requirements of GC
33.7.1, each Party hereby covenants and agrees to comply, and to cause
its affiliates and subcontractors to comply, with all Applicable Laws
applicable to the Parties in respect of the matters contemplated under
this Contract and to take no actions, and to cause its affiliates and
subcontractors and personnel to take no actions, of any nature which
would contravene any of such Applicable Laws or which would contravene
any provision of any Applicable Laws in Venezuela in respect of
corruption, the United States Foreign Corrupt Practices Act, the
Canadian Corruption of Foreign Public Officials Act, or the Criminal
Code of Canada (collectively all of the foregoing the Anti-Corruption
Legislation) including, without limitation, offering or paying or
giving anything of value except as permitted by Applicable Laws, either
directly or indirectly, to an officer or employee of any Governmental
Authority, or any Person acting in an official capacity for or on
behalf of any Governmental Authority, or of any political party or to
any candidate for political office for the purpose of influencing an
act or decision in his or her official capacity, or inducing him or her
to do or omit to do any act in violation of his or her lawful duty or to
use his or her influence with any government, in order to assist a Party
or any of their respective affiliates in obtaining or retaining
business, or an advantage in the course of business, for or with, or
directing business to, any Person.
33.7.3 The Contractor acknowledges and agrees that the Contractor and
each of its affiliates and subcontractors is an independent contractor
and is not a legal representative or agent of the Owner or of any of
its affiliates for any purpose other than for administering the Trade
Contracts strictly in accordance with their terms, and does not have
the right or authority to incur, assume or create, in writing or
otherwise, any warranty, liability or obligation, express or implied,
in the name or on behalf of the Owner or any of its affiliates for any
purpose including, without limitation, in any manner that would or
could result in a violation or contravention of the provisions of any
of the Anti-
Corruption Legislation. The Contractor agrees that if it at any time
receives any request relating to the Owner or any of its affiliates or
the Project that the Contractor reasonably believes may constitute a
violation of any Applicable Law (including any of the Anti-Corruption
Legislation), the Contractor shall promptly notify the Owner and shall
provide it with all relevant particulars respecting that request.
33.7.4 All payments to the Contractor under this Contract will be
solely by check or bank transfer and no payment will be in cash, by
bearer instrument or made to any Person other than the Contractor.
33.7.5 The Contractor represents that it is familiar with the
provisions of the Anti-Corruption Legislation and their purposes, and
without limiting the foregoing is familiar with the provisions that
prohibits the payment or giving of anything of value, either directly
or indirectly, to an official of a foreign government or of any
Governmental Authority for the purpose of influencing an act or
decision in his official capacity, or inducing him to use his influence
with the foreign government, to assist a company in obtaining or
retaining business, or an advantage in the course of business, for or
with, or directing business to, any Person.
33.7.6 The Contractor further represents and covenants that none of the
Contractors partners, owners, principals and staff members are
officials, officers or representatives of any Governmental Authority,
and that no part of the compensation to be provided to the Contractor
under this Contract will be accepted or used by the Contractor for any
purpose, nor will it take any action which would constitute a violation
of any law of the various jurisdictions in which it performs services or
of Venezuela, the United States or Canada, including the Anti-Corruption
Legislation. For its part, the Owner represents and covenants that it
does not desire and will not request any service or action by the
Contractor that would or might constitute any such violation.
33.7.7 The Contractor agrees to provide full disclosure of the
existence and terms of this Contract and any subcontract at any time
and for any reason to whomever the Owner determines has a legitimate
need to know such terms for purposes of complying with this GC 33.7
including the governments of Venezuela, the United States, and Canada.
33.7.8 The Contractor acknowledges, and the Owner represents, that no
agent or employee of the Owner shall have authority to give any express
or implied direction, whether written or oral, authorizing the
Contractor to make any commitment to any third party on behalf of the
Owner in violation of the terms of this Contract.
33.7.9 Violation of this GC 33.7 may be deemed by the Owner to be a
material breach of this Contract and any other contract with the Owner
and subject all contracts with the Contractor and its affiliates to
immediate termination for default, as well as any other remedies at law
or in equity.
33.7.10In addition to all other indemnities under the Contract, each of
the Owner and Contractor agree to and shall indemnify and hold the other
harmless from any and all damages, costs, expense and liabilities that
they may incur as a result of a breach by the other Party of the
requirements of this GC 33.7, and any limitation of liability in the
Contract shall not apply to the obligations under this indemnity.
33.8 Conflicts and Mitigation of Conflicts by Contractor
33.8.1 The Contractor shall comply strictly with the requirements of
Appendix 18 Conflict Mitigation Protocol.
33.8.2 Breach by the Contractor of the requirements of Appendix 18
shall be deemed to cause the Owner irreparable harm and entitle the
Owner, at the Owners sole discretion, to terminate the Contract for
cause pursuant to GC 26.5 after Notice to the Contractor of such breach
and without providing for a period of time or opportunity for the
Contractor to cure such breach.
33.8.3 The Contractor shall, subject to meeting its professional
obligations and complying with Applicable Laws and the requirements of
Governmental Authorities, act at all times in the best interest of the
Owner, consistent with the standard of care set out in GC 3.3.3. If the
Contractor at any time becomes aware of facts or circumstances that may
require the Contractor to act other than in the best interest of the
Owner, the Contractor shall promptly give Notice of the same to the
Owner, which Notice shall include the facts and circumstances that gave
rise to the conflict of interest, the nature of the conflict and the
steps that the Contractor has taken or is taking to mitigate and
resolve such conflict. To the extent that it is reasonably able to do
so, the Contractor shall take all measures and steps which the Owner
may reasonably require to mitigate and resolve such conflict to the
satisfaction of the Owner.
33.8.4 The Contractor shall give Notice to the Owner and obtain the
Owners written consent before the Contractor, its directors, officers
or employees, provide any advice to, or act for, or are retained by any
one or more of the Trade Contractors or the Other Contractors engaged or
employed by the Owner in respect of the Project.
33.9 Survivorship
33.9.1 The provisions set out in GC 3.3, GC 3.5, GC 10.2, GC 18.16, GC
25, GC 26.10, GC 26.11, GC 27, GC 28 and GC 29, and all limitations of
liability and rights accrued prior to completion, termination, or
expiration of the Contract, will not merge on completion, termination,
or expiration of the Contract, but will continue in full force and
effect after any termination or expiration of this Contract as will any
other provision of this Contract which expressly or by implication from
its nature is intended to survive the termination or expiration of this
Contract.
33.10 Application of this Contract and Retroactive Effect
33.10.1This Contract applies to the performance of the Parties
obligations under this Contract whether performed before, on or after
the Date of Contract.
33.10.2Any work or services provided by Contractor to Owner prior to
the Date of Contract which relate to the Project shall be deemed to be
part of the Services under this Contract, and shall be governed by and
subject to this Contract. If there are any conflicts between the
provisions of this Contract and any prior agreements between the
Parties with respect to the Services, this Contract shall govern. Any
payment by the Owner to the Contractor prior to the Date of Contract
for any of the Services performed prior to the Date of Contract shall
be deemed to be payments hereunder and reconciled with the payment
terms of the Contract.
33.11 Compliance with Law
33.11.1The Contractor shall:
(a) comply with Applicable Laws in performing its obligations under
this Contract;
(b) obtain all approvals from all Authorities required for the use,
design, construction, operation and maintenance of the Project and give
the Owner copies of all relevant documents issued by Authorities; and
(c) supply the Owner with all information in connection with the
Project that may be necessary to enable the Owner to comply with any
Applicable Laws.
33.11.2The Contractor is solely responsible for the performance of its
obligations under GC 33.11.1. This obligation is not affected by any
approval given by the Owner, the Owners Representative or any
Governmental Authority.
33.12 Severability
33.12.1The invalidity or unenforceability of any portion or provision
of this Contract shall in no way affect the validity or enforceability
of any other portion or provision hereof. If any provision, or portion
thereof, of this Contract shall be found to be void, invalid, illegal
or unenforceable in any respect by a court or other lawful authority of
competent jurisdiction, then this Contract shall continue in full force
and effect with respect to the remaining provisions without their being
impaired or invalidated in any way, and any such void, invalid, illegal
or non-enforceable provision shall be deemed stricken and, to the
extent permitted by law, be replaced by a provision which, being valid,
comes closest to the intention underlying the void, invalid, illegal or
unenforceable provision. Notwithstanding the foregoing, if the effect
of any finding by a court or other lawful authority of competent
jurisdiction that this Contract is void, invalid, illegal or
unenforceable, is that either Party is denied substantially the benefit
bargained for, then this Contract shall be deemed to have been
frustrated, unless the Parties agree on a mutually satisfactory
amendment to cure the problem within a time which is reasonable in
all of the circumstances, and in this regard, the Parties undertake to
negotiate in good faith for the same purpose.
CONTRACT GENERAL CONDITIONS IN RESPECT OF THE BRISAS PROJECT VENEZUELA
GENERAL CONDITIONS
TABLE OF CONTENTS Page
1. DEFINITIONS AND INTERPRETATION...................................1
1.1 General .................................1
1.2 Definitions ................................................... 1
1.3 Interpretation ........................ 13
1.4 Ambiguous and Inconsistent Terms .......................... 16
1.5 Provisions in the Scope of Services ....................... 16
2. PERSONNEL AND CONTRACT ADMINISTRATION ..........................17
2.1 The Owners Representative ...............................17
2.2 Delegation of the Owners Representatives Power ............ 18
2.3 Compliance with Directions ............................ 18
2.4 Delegation of Contractors Representatives Power............ 18
2.5 Contractors and Owners Acknowledgments..................... 18
2.6 Personnel ................................................. 19
2.7 Comments, Review, Representation or Approval by the Owner
or the Owners Representative ...............................21
2.8 Project Control Group ..................................... 21
2.9 [Intentionally deleted]................................... 22
2.10 Contractors Request for Information . .................... 22
2.11 Records Open for Inspection and Audit . ................... 22
2.12 Privacy .. ............................................. 24
3. GENERAL REQUIREMENTS REGARDING SERVICES ........................25
3.1 General .................................................. 25
3.2 Budgetary Constraints .... ................................ 26
3.3 Warranties and Standard of Care .......................... 27
3.4 Equipment Importation .................................... 29
3.5 Continuing Warranties .................................... 29
4. REGIONAL SOCIO-ECONOMIC BENEFITS AND INDIGENOUS PEOPLES.........29
4.1 Indigenous Peoples ....................................... 29
4.2 Regional Socio-Economic Benefits .......................... 30
5. PROTECTION OF THE ENVIRONMENT...................................30
5.1 General .................................................. 30
6. [INTENTIONALLY DELETED].........................................30
7. PROJECT EXECUTION SERVICES ....................................30
7.1 Progression to Project Execution ........................... 30
7.2 General Obligations ....................................... 30
7.3 [Intentionally deleted] .................................... 31
7.4 Project Execution Project Planning Obligations ............. 31
7.5 Project Execution Cost Planning Obligations ................ 32
7.6 Rights and Obligations Not Affected ........................ 32
8. SITE ...........................................................32
8.1 Owner Site Information .................................... 32
8.2 Contractors Acknowledgements ............................. 33
9. DESIGN..........................................................34
9.1 Preparation of Contract Material ............................ 34
9.2 Review and Acceptance or Approval by Owner ................. 35
9.3 Ownership of, and Intellectual Property Rights in, Contract
Material ................................................... 35
9.4 Keeping Contract Material Safe .............................. 37
9.5 Reproduction of Contract Material ........................... 37
9.6 Return of Contract Material ..................................37
10. QUALITY OBLIGATIONS ...........................................38
10.1 Subcontracting ............................................. 38
10.2 Re-performance of Non-Complying Services ................... 38
11. LABOUR AND INDUSTRIAL RELATIONS ...............................39
11.1 General .................................................... 39
11.2 Open Site .................................................. 39
11.3 Trade Contracts ............................................ 40
11.4 Additional Requirements for Personnel on Site .............. 40
11.5 Report of Contractors Personnel and Equipment .............. 40
12. PROCUREMENT ...................................................40
12.1 Tenders for Trade Contracts ................................ 40
12.2 Warranties From Trade Contractors .......................... 42
12.3 Trade Contract Payment ..................................... 42
12.4 Contract Dispute Resolution ................................ 43
12.5 Owners Procurement Process ................................. 43
12.6 Comprehensive Procurement Strategy ......................... 44
13. TESTING, COMMISSIONING AND PERFORMANCE TESTING ................44
13.1 Performance Testing and Performance Guarantees ............. 44
14. TIME ..........................................................44
14.1 Risk of Delay and Disruption and Resultant Increased Costs . 44
14.2 Extensions of Time ......................................... 44
14.3 Determination of Extension of Time Claims .................. 46
15. CHANGES, CHANGE DIRECTIVES AND CHANGE ORDERS ..................46
16. SUSPENSION ....................................................48
16.1 Notice to Suspend .......................................... 48
16.2 Resumption ................................................. 48
16.3 Compensation ............................................... 48
16.4 Termination ................................................ 48
17. EVENTS OF FORCE MAJEURE........................................49
17.1 Events of Force Majeure .................................... 49
17.2 Instances of Force Majeure ................................. 50
17.3 Effect of Event of Force Majeure ........................... 51
17.4 Notice of Event of Force Majeure ........................... 51
17.5 Period of Suspension for and Mitigation of
Event of Force Majeure ..................................... 51
17.6 Certain Events Not to Comprise Events of Force Majeure ..... 52
17.7 Contractor to Follow Owners Instructions ................... 53
17.8 Contractor Responsible for Negligence ...................... 53
17.9 Costs Due to Events of Force Majeure ....................... 53
17.10 Contractors Sole and Exclusive Remedy ..................... 53
18. COMPENSATION ..................................................53
18.1 Owners Payment Obligations ................................. 53
18.2 Payment Advances by Owner ...................................54
18.3 Electronic Funds Transfer ...................................54
18.4 Time For and Format of Application for Payments ............ 55
18.5 Additional Matters ......................................... 55
18.6 Contractor Warranty ........................................ 56
18.7 Incomplete Application for Payments ........................ 56
18.8 Payment Statement .......................................... 57
18.9 Payment .................................................... 58
18.10 Conditions Precedent to Entitlement to Payment ............ 58
18.11 Final Application for Payment ............................. 59
18.12 Interest on Overdue Payments .............................. 60
18.13 Set off ................................................... 60
18.14 Owners Payment of Subcontractors .......................... 60
18.15 Property and Liens ........................................ 61
18.16 Taxes ..................................................... 61
19. MITIGATION ....................................................62
19.1 General Duty to Mitigate ................................... 62
20. ASSIGNMENT ....................................................62
20.1 Assignment by Contractor .................................. 62
20.2 Assignment by Owner to Affiliates and Third Parties ....... 63
20.3 Assignment by Owner to Financing Entities and Realization
of Security by Financing Entities ......................... 64
21. COOPERATION WITH FINANCING ENTITIES AND INSURERS ..............65
22. SECURITY.......................................................66
22.1 Delivery and Form of Security from Owner ................. 66
23. INSURANCE .....................................................66
23.1 Owner Provided Insurance ................................... 66
23.2 Contractor Provided Insurance ............................ 66
24. CONTRACTORS REPORTING AND RELATED OBLIGATIONS .................66
25. REPRESENTATIONS ...............................................68
26. DEFAULT AND TERMINATION .......................................71
26.1 Default by Owner ......................................... 71
26.2 Termination by Contractor Following Default by Owner ..... 72
26.3 Rights of Financing Entities on Default by Owner ......... 72
26.4 Default by Contractor .................................... 72
26.5 Termination by Owner Following Default by Contractor ..... 73
26.6 Termination for Insolvency of a Party .................... 73
26.7 Termination for Events of Force Majeure .................. 74
26.8 Termination by Owner for Convenience ..................... 75
26.9 Termination by Owner of Contract ......................... 75
26.10 Recovery of Loss ........................................ 76
26.11 Preservation of Other Rights .............................77
27. INDEMNITIES ...................................................77
27.1 Indemnity by EPC Contractor .............................. 77
27.2 Indemnity by Owner ....................................... 78
28. LIMITATION OF LIABILITY........................................79
28.1 Limitation of Contractor Liability ....................... 79
28.2 Limitation of Owner Liability ............................ 81
28.3 Application of Limitations of Liability................... 82
28.4 Exclusion of Consequential Damages ....................... 82
28.5 Exclusion of Warranties of Performance of the Project .... 83
29. DISPUTE RESOLUTION ............................................83
29.1 General .................................................... 83
29.2 Resolution by Owners Representative ........................ 83
29.3 Resolution by Negotiations ................................. 84
29.4 Resolution by Mediation .................................... 84
29.5 Resolution by Arbitration .................................. 85
29.6 Consolidation of Arbitrations ...............................87
29.7 Dispute Resolution Not to Delay Performance ................ 87
30. MEDIA RELEASES AND CONFIDENTIALITY ............................87
30.1 Media Release .............................................. 87
30.2 Confidentiality ............................................ 87
31. NOTICES AND COMMUNICATIONS.....................................88
31.1 Method of Notice ........................................... 88
31.2 Effectiveness of Notices .................................. 88
31.3 Change of Address .......................................... 89
32. NOTIFICATION OF CLAIMS.........................................89
32.1 Notices of Claims .......................................... 89
32.2 Prescribed Notices.......................................... 89
32.3 Continuing Events .......................................... 90
32.4 Time Bar ................................................... 90
32.5 Other Provisions Unaffected .................................90
33. GENERAL........................................................90
33.1 Nature of Relationship and Contractor as Agent ............. 90
33.2 Variation and Waivers in Writing ........................... 91
33.3 Contractor More than One Person ............................ 92
33.4 Entire Agreement ........................................... 93
33.5 Language of Contract ....................................... 93
33.6 Violation of Law of Another Jurisdiction ................... 94
33.7 Violation of Laws Governing Corrupt Practices .............. 94
33.8 Conflicts and Mitigation of Conflicts by Contractor ........ 96
33.9 Survivorship ............................................... 96
33.10 Application of this Contract and Retroactive Effect ....... 96
33.11 Compliance with Law ....................................... 97
33.12 Severability .............................................. 97
GENERAL CONDITIONS
1. DEFINITIONS AND INTERPRETATION
1.1 General
1.1.1 In the Contract, terms defined in GC 1.2 shall have the
meanings ascribed to them in GC 1.2 unless a contrary intention is
indicated.
1.2 Definitions
1.2.1 Agreement means the part of the Contract titled Agreement and
which contains the signatures executing the Contract on behalf of the
Parties.
1.2.2 Applicable Laws, applicable law and similar expressions,
whether capitalized or not, mean, with respect to a Party, all domestic
or foreign, national, federal, provincial, state, territorial, regional,
municipal, or local statutes, laws, by laws, rules, regulations, codes
(including design and building codes), ordinances, judgments, decrees,
writs, administrative interpretations, guidelines, policies,
injunctions, orders or the like, of, or agreements with, any
Governmental Authority (of which the Contractor is aware at the time of
execution of the Contract or which have been or will be entered into by
the Owner with Governmental Authorities before and after the date of
the Contract which are of the type, and contain terms and conditions,
that are reasonably expected to be entered into for such type of
project in Venezuela), and the interpretations thereof, applicable to
the performance of the Services, the performance of the Contract, or
the development, completion and operation of the Project, including any
and all of the foregoing regulating or relating to Permits, Licences and
Approvals, certificates, occupational health and safety, workers
compensation, environment, pollution, traffic, noise, employment
standards, and conditions of work, or relating to or imposing liability
or standards of conduct concerning (a) safety or the prevention of
injury to persons or damage to property on, about or adjacent to the
Site or (b) protection of human health or the environment or emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or industrial, toxic or hazardous substances or wastes into
the environment including ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling
of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes, as now or may at any time hereafter be
in effect.
1.2.3 Application for Payment means a payment claim made in
accordance with GC 18.4.
1.2.4 Authority means Governmental Authority.
1.2.5 Authorities Having Jurisdiction and similar expressions,
whether capitalized or not, mean Governmental Authorities.
1.2.6 Certificate of Final Acceptance means the certificate issued
after Industrial Completion by the Owners Representative, in such form
as the Owners Representative may prescribe, certifying that all
requirements under the Contract for Final Acceptance have been met as
of the date specified in such certificate, including that the
Performance Tests have been successfully completed and the Performance
Guarantees have been met.
1.2.7 Certificate of Provisional Acceptance means the certificate
issued by the Owners Representative, in such form as the Owners
Representative may prescribe, certifying that all requirements under
the Contract for Industrial Completion have been met as of the date
specified in such certificate.
1.2.8 Change, when used in relation to this Contract, means an
addition, substitution, deletion, variation, modification, cancellation
or omission of part or all of the Services required to be performed or
supplied under this Contract and, when used in relation to a Trade
Contract, means an addition, substitution, deletion, variation,
modification, cancellation or omission of part or all of the
requirements of the Trade Contract, and in either case includes a
change in Applicable Laws (excluding changes in Applicable Laws which
were publicly announced before the contract but have not yet come into
force, and changes that have no material affect on the time or cost of
performance of the Contract even though they may impose greater
obligations or liabilities on one or the other parties).
1.2.9 Change Directive, when used in relation to this Contract, means
a written instruction signed by the Owners Representative directing the
Contractor to proceed with a Change prior to and pending the issuance
of a Change Order, and when used in relation to a Trade Contract means
a written instruction signed by the Owners Representative or
Contractors Representative directing the Trade Contractor to proceed
with a Change under the Trade Contract prior to and pending the
issuance of a Change Order.
1.2.10 Change Order, when used in relation to this Contract, means a
Change to the Contract authorized in writing by the Owner and signed by
the Owners Representative and, when used in relation to a Trade
Contract, means a Change to the Trade Contract authorized by the Owner
and signed by the Owners Representative or the Contractors
Representative.
1.2.11 Claim includes any claim for payment of money (including
damages) where such payment has not previously been authorized in
writing by the Owner:
(a) under, arising out of, or in any way in connection with this
Contract, the Services, the Project, any direction of the Owners
Representative, or either Partys conduct before this Contract; or
(b) otherwise at law or in equity, including by statute, in tort
(whether for negligence, negligent misrepresentation or otherwise), or
for restitution.
1.2.12 Commissioning means those activities immediately following
Mechanical Completion of the Project and which involve the introduction
of ore and reagents to the processing facility, the filling of process
tanks with slurry and solutions, the gradual increase of throughput to
full capacity, and the attainment of steady-state operation, and
includes the calibration of instruments, modifications and adjustments
to Plant and Goods that may be required to achieve the design
performance levels until only the final Performance Tests for
determining whether the Performance Guarantees have been met remain.
1.2.13 Confidential Information means any information which concerns
the business or finances of the Owner and is disclosed to or acquired
by the Contractor and which:
(a) is by its nature confidential;
(b) is designated by the Owner as confidential; or
(c) the Contractor knows or ought to know is confidential,
but does not include information which:
(d) is or becomes public knowledge other than by a breach of this
Contract;
(e) is in the possession of the Contractor without restriction in
relation to disclosure on or before the date on which it is disclosed
to or acquired by the Contractor; or
(f) has been independently developed or acquired by the Contractor,
and provided however that the burden of establishing any of the
exceptions referred to in Section 1.2.13(d), 1.2.13(e) and 1.2.13(f)
shall be on the Contractor;
1.2.14 Contamination means the presence in, on or under land, air or
water of a substance (whether a solid, liquid, gas, odour, heat, sound,
vibration or radiation) at a concentration above the concentration
allowed by relevant Permits, Licences and Approvals or Applicable Law,
or above the concentration at which the substance is normally present
in, on or under land, air or water in the same locality, that presents
a risk of Environmental Harm, including harm to human health or any
other aspect of the Environment, or could otherwise give rise to a risk
of non-compliance with any Applicable Laws for or relating to the
protection of the Environment.
1.2.15 Contract and Contract Documents are synonymous and mean the
whole of the Contract between the Parties, and which is comprised of
the Agreement and the documents expressly incorporated by reference
into the Contract by the Agreement.
1.2.16 Contract Material means all Documentation which is:
(a) prepared, or required to be prepared, by or on behalf of the
Contractor under this Contract;
(b) delivered, or required to be delivered, by or on behalf of the
Contractor to the Owner under this Contract; or
(c) incorporated into any Documentation described in 1.2.16(a) or
1.2.16(b).
1.2.17 Contract Personnel means any and all personnel engaged by or
through the Contractor, including its directors, officers and
employees, and including the directors, officers and employees of its
agents, consultants, invitees, subcontractors and anyone else engaged
by or through the Contractor in performing the Contractors obligations
under this Contract.
1.2.18 Contractors Representative means the person designated as
such in writing by the Contractor to the Owner on or after the Date of
Contract, or any replacement person appointed under GC 2.4.
1.2.19 Court means a Canadian court of competent jurisdiction and
includes the Supreme Court of Canada.
1.2.20 Date for Final Acceptance means the Milestone Date for Final
Acceptance as specified in Appendix 8 Milestone Schedule, as adjusted
(if applicable) under this Contract.
1.2.21 Date for Industrial Completion means the Milestone Date for
Industrial Completion as specified in Appendix 8 Milestone Schedule,
as adjusted (if applicable) under this Contract.
1.2.22 Date for Provisional Acceptance means the Date for Industrial
Completion.
1.2.23 Date of Contract means the earlier of the date of execution of
the Contract by both the Owner and Contractor and the effective date of
the Contract specified on the first page of the Agreement portion of the
Contract.
1.2.24 Date of Industrial Completion means the date on which all
requirements under the Contract for Industrial Completion have been met
and Industrial Completion has occurred.
1.2.25 Date of Provisional Acceptance means the Date of Industrial
Completion.
1.2.26 Deliverables means the documents and other items required to be
delivered by the Contractor, including those identified as Deliverables
in the Scope of Services.
1.2.27 Direction includes any agreement, approval, authorization,
certificate, decision, demand, determination, direction, explanation,
instruction, notice, notification, order, permission, consent,
rejection, request or requirement.
1.2.28 Documentation includes software (including source code and
object code versions) manuals, diagrams, graphs, charts, projections,
specifications, estimates, records, concepts, documents, accounts,
plans, formulae, designs, methods, techniques, processes, supplier
lists, price lists, customer lists, market research information,
correspondence, letters and papers of every description including all
copies of and extracts from the same.
1.2.29 Eligible Disbursements has the meaning given to it in Appendix
6 Compensation.
1.2.30 Environment includes ecosystems and their constituent parts,
including people and communities, natural and physical resources, the
qualities and characteristics of locations, places and areas, and the
social, economic, aesthetic and cultural aspects of any one or more of
the aforesaid.
1.2.31 Environmental and Social Impact Assessment means the document
for the Project titled as such and prepared by the Owner, or by other
consultants of the Owner, in accordance with World Bank Guidelines and
the new Equator Principles, and submitted to the Governmental
Authorities in Venezuela as part of the process required for obtaining
a Permit to Construct and other Permits, Licences and Approvals for the
Project.
1.2.32 Environmental Control Plan means the Environmental Management
Plan.
1.2.33 Environmental Harm means any actual or threatened adverse impact
on, or damage to, the Environment, including any adverse impact or
damage that is in excess of that allowed by the Permits, Licences and
Approvals and Applicable Law.
1.2.34 Environmental Management Plan means the Owners environmental
management and mitigation plan, as prepared by the Owner and its
consultants.
1.2.35 ESIA means the Environmental and Social Impact Assessment.
1.2.36 Event of Force Majeure and Events of Force Majeure has the
meaning given to it in GC 17.1.
1.2.37 Excluded Taxes bears the meaning set out in Appendix 6
Compensation.
1.2.38 Existing Facilities means the existing facilities located at
the Site as at the Date of Contract, and which are comprised of the
following: an office building on the Site, used for a business office
and which accommodates both the engineering and geology departments of
the Owner; a sample preparation facility, used for logging and
splitting (diamond saw) core and housing sample preparation equipment
(including crushers, splitters and drying ovens) and the storage of the
projects core and pulp rejects; an infirmary; maintenance facility; a
power generating station; an existing lime silo and sediment facility;
and a full service camp capable of housing and feeding approximately 55
people (as at the Date of Contract approximately twenty people are
employed by the Owner at the Site
1.2.39 Facility means the completed Project, save and except only the
pit and the mining equipment that operates within the pit, and includes
the Plant, Tailings Dam, Port Concentrate Handling Facilities,
laboratories, truck shop, warehouse, camp accommodation, potable water
supply, process water supply, sewage treatment facilities, roads within
the Site, and all other permanent works, facilities and infrastructure
at the Site.
1.2.40 Feasibility Study means the bankable feasibility study prepared
by Aker Kvaerner for, and delivered in 2005 to, the Owner or its
affiliates.
1.2.41 Final Acceptance means when everything required to be
performed or done by the Contractor under the Contract has been
completed and done, including the completion of all Performance Tests
and the satisfaction of all Performance Guarantees as required by the
Contract, and at the time the Contractor has met all conditions for
Final Acceptance set out herein , all as verified and confirmed by the
Certificate of Final Acceptance.
1.2.42 Financing Entities means any financial institution or other
Person or Persons providing any debt or equity financing for the Owner
in respect of the Project, including by provision of a letter or
letters of credit or other guarantees or insurance in support thereof
and including the holders of, and the agent(s) or trustee(s)
representing the holders of, such instruments.
1.2.43 Form of Release means the form of release in Appendix 14 Form
of Release and General Waiver of Claims.
1.2.44 GC means General Conditions.
1.2.45 General Conditions means this document.
1.2.46 Goods means any materials, supplies, machinery, equipment, fuel
and other things used by the Contractor in performing the Services and
which are to be incorporated in the Project, or are to be consumed in
performing the Services.
1.2.47 Governmental Authority means any and all foreign, domestic,
national, federal, provincial, territorial, state, regional, municipal
or local Governmental Authority, quasi Governmental Authority, Court,
government or self regulatory organization, commission, board,
tribunal, organization, or any regulatory, administrative or other
agency, or any political or other subdivision, department, or branch of
any of the foregoing, having jurisdiction or Governmental Authority in
any way over any aspect of the performance of the Contract or the
operation of the completed Project, including a right to impose a
requirement or whose consent is required with respect to the Project or
the Services.
1.2.48 GST and G.S.T. mean the tax, if any, payable by the Owner to the
extent imposed on payments under this Contract pursuant to Part IX of
the Excise Tax Act, R.S.C. 1985, c. E 15, as amended, and any successor
legislation thereto.
1.2.49 Hourly Remuneration has the meaning given to it in Appendix 6
Compensation.
1.2.50 Human Resources and Industrial Relations Plan means the
construction labour management plan to be produced by the Contractor in
the Project Definition Phase in accordance with the Scope of Services.
1.2.51 Indigenous Peoples Plan means the indigenous peoples plan to be
prepared by the Owner and others.
1.2.52 Industrial Completion means when the Plant has entered into
normal commercial operation, when steady state conditions have been
achieved in and through the Plant, when the complete Plant has operated
for twenty-four (24) consecutive hours without interruption and the
Facility has demonstrated it is capable of continuous operation
thereafter, and when all infrastructure and other parts of the Facility
are functional and in ready to enter into normal operations, with only
minor punch list items to be completed that do not adversely affect
continuous operation of the Facility, all as verified and confirmed by
the Certificate of Provisional Acceptance.
1.2.53 Intellectual Property Rights includes all copyright and
analogous rights, all rights in relation to inventions (including
patent rights), plant varieties, registered and unregistered trademarks
(including service marks), confidential information (including trade
secrets), know-how, circuit layouts and all other rights throughout the
world resulting from intellectual activity in the industrial, scientific
or artistic fields.
1.2.54 "International Cyanide Management Code means the International
Cyanide Management Code For the Manufacture, Transport, and Use of
Cyanide In the Production of Gold" developed by a multi-stakeholder
Steering Committee under the guidance of the United Nations
Environmental Program (UNEP) and the then-International Council on
Metals and the Environment (ICME).
1.2.55 Key Personnel means each and all of the persons named in
Appendix 16 Key Personnel.
1.2.56 Liquidated Damages, whether capitalized or not, are not a
penalty but represent the amount(s) agreed to be paid by the Contractor
to the Owner as the result of the happening of a specified event, which
amount(s) have been agreed by the Contractor and the Owner to represent
a genuine and reasonable pre-estimate of the damages that the Owner will
suffer as a result of the happening of the specified event, and which
the Owner and the Contractor have agreed in advance would be difficult
or impossible to quantify upon the happening of the specified event.
1.2.57 Mechanical Completion means when the Facility has been brought
to a level and state of completion that allows the Plant and the rest
of the Facility to be used for feeding and processing ore, subject only
to Commissioning of equipment, sub-systems and systems, and when all
requirements and pre-conditions for Mechanical Completion specified in
the Owners Requirements or elsewhere in the Contract have been met.
1.2.58 Milestone Date means the date designated as such in the
Milestone Schedule for a Milestone Event, or as such date may be
adjusted in accordance with the Contract.
1.2.59 Milestone Event means, in respect of each Milestone Date, an
event designated as such in the Milestone Schedule.
1.2.60 Milestone Schedule means Appendix 8 Milestone Schedule.
1.2.61 Mining Industry Standards means the standards and generally
accepted best mining and ore processing practices used in the mining
industry in North America for gold mines of comparable or larger size
to the Project and which as a minimum comply with all Applicable Laws
and requirements of all Governmental Authorities. Where no such
standards or generally accepted practices exist for any particular
item, Mining Industry Standards means Prudent Industry Practice.
1.2.62 Notice and notice mean a written communication between the
Parties, as required or permitted by the Contract and conforming to the
requirements of GC 31.
1.2.63 Notice to Proceed With Project Execution Services means the
Notice from the Owner to the Contractor authorizing and directing the
Contractor to commence the Project Execution Phase and provide the
Project Execution Services, all in accordance with this Contract.
1.2.64 O&M Manuals means the Operating and Maintenance Manuals.
1.2.65 O&M Personnel means the personnel engaged by or through the
Owner for the operation and maintenance of the Facility.
1.2.66 Operating and Maintenance Manuals are those manuals that are
generated by Vendors and other Trade Contractors and reviewed and
approved by the Contractor for the installation, operation and
maintenance of all equipment, sub-systems, systems and other parts of
the Facility, and which include the information required to order spare
parts. Except where the context otherwise clearly indicates, references
to Operating and Maintenance Manuals includes the Plant Operations
Manual.
1.2.67 Other Contractors means all contractors, consultants and
other persons engaged to carry out any works or services of whatever
nature at or in the vicinity of the Site (other than the Contractor and
the Trade Contractors).
1.2.68 Owner Documentation means any Documentation provided by the
Owner to the Contractor for the purposes of this Contract.
1.2.69 Owner Standards and Procedures means the Owners standards,
specifications, policies and procedures included in the Owners
Requirements (all as amended from time to time) or, where no such
standards, specifications, policies and procedures are included means
Mining Industry Standards and Prudent Industry Practice.
1.2.70 Owners Representative means the person designated as such in the
Agreement or, if not designated therein, the person designated as such
by Notice from the Owner to the Contractor, or any replacement person
Notice of which has been given by the Owner to the Contractor.
1.2.71 Party means the Owner or Contractor, as applicable.
1.2.72 Parties means both the Owner and Contractor.
1.2.73 Performance Guarantees has the meaning given to it in Appendix
5 Performance Guarantees.
1.2.74 Performance Incentives has the meaning given to it in Appendix
6 Compensation.
1.2.75 Performance Tests means those tests required to be performed
pursuant to Appendix 5 Performance Guarantees to demonstrate that the
Facility will operate in accordance with and fully satisfy the
Performance Guarantees. These tests shall be carried out after the
successful completion of Commissioning.
1.2.76 Permits, Licences and Approvals mean all permits, licences,
approvals, authorizations, permissions, certificates and consents in
relation to the performance of the Services, Trade Contracts or
development, completion and operation of the Project required, issued
by or received from Governmental Authorities, including statements,
requirements, representations and commitments made by the Owner or
Contractor that are contained within or are part of any plans,
schedules, applications or submittals provided or submitted by them to
Governmental Authorities in order to obtain permits, licences,
approvals, authorizations, permissions and consents, as applicable,
from the Governmental Authorities.
1.2.77 Permit to Construct means the permit from the relevant
Governmental Authorities in accordance with Applicable Laws required by
the Owner before it can commence the Project Execution Phase of the
Project.
1.2.78 Person means any individual, corporation, company, voluntary
association, partnership, trust, incorporated organization, or
Governmental Authority.
1.2.79 Personal Information means any and all information about a
Person that, by the applicable Privacy Law, a Party is required to keep
confidential.
1.2.80 Plant means the completed process plant and equipment,
starting from the primary crusher at the pit through to the point on
Site where, as applicable, the final products for sale (concentrate or
gold dore) are ready for transport from the Site, and extends to the
Tailings Dam, and includes the overland conveyor, process equipment,
process buildings and tailings outfall pipe.
1.2.81 Plant Operations Manual means the separate manual that provides
details of all practices and procedures necessary for the safe and
proper operation of all parts of the Facility, highlighting special
precautions that may be necessary and proper start-up and shutdown
sequences and interlocks.
1.2.82 Port Concentrate Handling Facilities means the concentrate
storage and ship loading facilities in Puerto Ordaz for storage and
loading of concentrate from the Plant on to ships.
1.2.83 Practical Completion means when each and all components,
sub-systems and systems for the Facility are ready to operate as an
integrated whole, when all interlocks are completed in accordance with
the design, the entire control system is operating without by-passes,
ore has gone through the crusher, the overland conveyor is operating, a
stockpile has been created at the process plant location, and the
process plant has been in continuous operation for a minimum period of
three (3) consecutive hours without breakdown or stoppage.
1.2.84 Pre-Commissioning and Pre-commissioning mean those activities
immediately preceding Mechanical Completion and the commencement of
Commissioning which consist of the testing, adjustment and initial
operation of equipment, sub-systems and systems to demonstrate they
have been properly installed and are functioning prior to the
introduction of ore or reagents into them in preparation for Mechanical
Completion.
1.2.85 Prime Rate means the Royal Bank of Canadas prime commercial
lending rate of interest on Canadian funds, as designated from time to
time by the Royal Bank of Canadas head office in Canada.
1.2.86 Privacy Law means all Applicable Laws relating to the privacy,
confidentiality or use of any information about individuals.
1.2.87 Professional Services means the services of engineers,
surveyors, architects and other professional consultants, experts and
specialists.
1.2.88 Project means the Brisas Project in Venezuela, as more
particularly described in Appendix 3 Owners Requirements, but for
purposes of the scope of the Contractors Services under this Contract
does not include the following: mobile mining equipment for mining
operations in the open pit mine, pre-production mining operations in
the open pit mine area of the Site and preparing the ESIA.
1.2.89 Project Budget means the Owners budget for the entire Project to
be monitored and administered by the Contractor, which is all-inclusive
and includes all costs for completion of the Project save and except
only the following: cost of mobile mining equipment for mining
operations in the open pit mine; Owners internal costs for its own
personnel, for public relations, for the environmental assessment and
approval process for the Project as a whole, for obtaining the Permit
to Construct; and for pre-production mining operations in the open pit
mine area of the Project.
1.2.90 Project Cash Flow Strategy means the Project cash flow strategy
to be produced by the Contractor in the Project Definition Phase in
accordance with the Scope of Services.
1.2.91 Project Control Group means the project control group referred
to in GC 2.8.1.
1.2.92 Project Controls System means the Project controls system to be
produced by the Contractor in the Project Definition Phase in
accordance with the Scope of Services.
1.2.93 Project Cost Estimate means the definitive Project budget to be
produced by the Contractor in the Project Definition Phase in
accordance with the Scope of Services which shall, among other things,
contain an estimate of the Total Project Cost.
1.2.94 Project Execution means the stage of the Project during which
the Project Execution Services and the work required to achieve Final
Acceptance are to be performed.
1.2.95 Project Execution Services means all of the Services to be
performed, obligations to be fulfilled and all things to be supplied
and provided by the Contractor, whether express or implied, under this
Contract including the preparation of the Detailed Design
Documentation, engineering, procurement, coordination, administration
and Commissioning services associated with the Project.
1.2.96 Project Execution Phase has the meaning given to it in Appendix
2 Scope of Services.
1.2.97 Project Schedule means Appendix 9 Project Schedule until the
Owner has reviewed and accepted the Contractors Detailed Project
Completion Schedule, and thereafter means the Detailed Project
Completion Schedule.
1.2.98 Project Scope Definition Document means the Project scope
definition document to be produced by the Contractor in the Project
Definition Phase in accordance with the Scope of Services.
1.2.99 Provisional Acceptance means Industrial Completion.
1.2.100Prudent Industry Practice means the optimal and best practices,
methods, acts and procedures, and the minimum design, construction and
engineering standards and codes (including without limitation those
practices, methods, acts, procedures, standards and codes related to
reliability, durability, safety, longevity, asset preservation and
protection of the environment) used, generally accepted and applied at
the time of execution of the Contract by engineering, procurement and
construction management contractors experienced in and having an
excellent reputation in the design and construction of mine plants and
infrastructure and by the majority of major gold mine operators in
North America currently operating comparable or larger sized efficient
and effective modern gold mine operations constructed during the last
fifteen (15) years.
1.2.101Regional Socio-Economic Benefits Commitments means the written
commitments made by the Owner to Governmental Authorities to provide
socio-economic benefits to the region in which the Site is located.
1.2.102Request for Proposals means the request for proposals titled
Request for Proposal Brisas Project issued in respect of the Project by
the Owner.
1.2.103 Schedule of Key Personnel means Appendix 16 Key Personnel.
1.2.104Schedule of Plan Requirements means Schedule 1 Schedule of Plan
Requirements to Appendix 3 Owners Requirements.
1.2.105Schedule of Rates means the schedule of rates included in
Appendix 6 Compensation.
1.2.106Scope of Services means Appendix 2 Scope of Services.
1.2.107Services means the services to be provided by the Contractor as
defined and described in Appendix 2 Scope of Services.
1.2.108Site and site means the land, water and other places on, under,
in or through which the Project is to be constructed and installed, and
any other lands and places expressly provided by the Owner for working
space or any other purpose as may be specifically designated in this
Contract as forming part of the Site.
1.2.109Special Conditions means the terms and conditions, if any,
contained in Appendix 7 Special Conditions of the Contract.
1.2.110Standards means Mining Industry Standards.
1.2.111Supplier means Vendor.
1.2.112 Tailings Dam means the dam and reservoir for storage and
disposal of the tailings, and includes the tailings outfall pipe that
is within the dam and reservoir.
1.2.113Tax means any one or more of the Taxes.
1.2.114Taxes means any and all taxes, levies, imposts, duties, customs
duties, stamp duties, fees, withholdings, assessments, deductions or
charges whatsoever, imposed, assessed, levied or collected by any
Governmental Authority, together with interest thereon and penalties
with respect thereto, including occupational, excise, unemployment,
ownership, sales, GST, value added, gross receipts, income taxes,
municipal taxes, financial transaction taxes, payroll taxes, employer
contributions (both statutory and otherwise) and workers compensation
payments and contributions.
1.2.115Total Project Cost means the aggregate final cost and expense
incurred by the Owner in procuring the completion of the Project,
including the Fee and the Trade Cost.
1.2.116Trade Contract means a contract (including a purchase order)
entered into by the Owner, or by the Contractor as disclosed agent for
the Owner, and a Trade Contractor for the provision of work, services,
construction labour, procurement, materials, products, supplies or
other things for the Project, but excludes contracts for the purchase
or lease of mining equipment or the purchase and transportation of
consumables used in actual mining operations in the open pit part of
the Project.
1.2.117Trade Contractor means someone, other than the Contractor and
regular employees or temporary employees of the Owner, who enters into
a contract with the Owner under a Trade Contract, and includes all
Vendors and Suppliers and those who supply any construction labour.
1.2.118Trade Cost means the sum of all amounts payable to Trade
Contractors for performing the Trade Contracts.
1.2.119VAT means the value added tax, if any, payable by the Owner to
the extent imposed on payments under this Contract by the Applicable
Laws of Venezuela.
1.2.120Vendor means someone who supplies plant, materials, equipment,
products or supplies for the Project.
1.2.121Work means all engineering and design, procurement,
manufacturing, construction, erection, installation, start-up,
Commissioning, calibration, testing and all other work, material,
services and equipment required to produce a fully functioning and
operating Facility and that meets the Performance Guarantees, but does
not include the Services.
1.2.122World Bank Guidelines means each and all of the World Bank
Guidelines in regard to the development and operation of projects, the
IFC Guidelines, the Equator Principles and all Appendices to the
Equator Principles, including the World Bank Pollution Prevention and
Abatement Handbook which went into official use on 1 July 1998, all as
amended from time to time.
1.3 Interpretation
1.3.1 The documents comprising the Contract are complementary and
what is called for by any one of them shall be as binding as if called
for by all.
1.3.2 In this Contract, unless the context otherwise expressly
requires:
(a) reference to parts, clauses, schedules, exhibits and appendices
are a reference to them of, in and to this Contract;
(b) reference to specific General Conditions, Sections, Clauses,
Paragraphs, Sub Paragraphs and Appendices are references to such
General Conditions, Sections, Clauses, Paragraphs, or Sub Paragraphs
of, or Appendices to, the Contract and the terms Section, Clause and
Paragraph are used interchangeably and are synonymous when referring to
a provision of an Appendix;
(c) reference to a General Condition, Section, Clause or Paragraph of
the Contract or any Appendix thereto followed by a number shall be
deemed to be a reference to the whole of the General Condition,
Section, Clause or Paragraph of the Contract or Appendix, as
applicable, bearing that number and includes all subsidiary provisions
containing that same number as a prefix;
(d) reference to this Contract is deemed to include this Contract as
amended, novated,
supplemented, varied or replaced from time to time;
(e) any entitlement of the Owner or the Owners Representative to
exercise any judgment, discretion, or decision-making power, or power
to assess compliance by Contractor with its obligations under this
Contract, and to give Directions, shall be exercised reasonably,
professionally, and in accordance with this Contract;
(f) the Contractors obligations in respect to any requirement herein
to cause Trade Contractors to agree to any specific term or condition
in a Trade Contract shall be limited to:
(i) exercising the standard of care set out in GC 3.3.3;
(ii) using all reasonable efforts to comply with the requirements of
the Contract for the content of all Trade Contracts;
(iii) using all reasonable efforts to comply with the Owners
instructions regarding the inclusion of any specific term or condition
in a Trade Contract that the Owner notifies the Contractor that the
Owner requires in such Trade Contract; and
(iv) promptly notifying the Owner, prior to finalization and award of
any such Trade Contract, of the actual terms available to the extent
that they vary from those required herein or from the instructions of
the Owner as to the terms required, and then obtaining the Owners
instructions as to the course of action required of the Contractor by
the Owner, including in the discretion of the Owner agreement to the
proposed terms that vary from those required by the Contract or the
Owner, instructions to negotiate further with such Trade Contractor, or
instructions to negotiate and award the Trade Contract to a different
Trade Contract; and
(g) the Contractors obligations in respect any requirement herein to
cause Trade Contractors to comply with any term or condition in a Trade
Contract shall be limited to:
(i) exercising the standard of care set out in GC 3.3.3;
(ii) using all reasonable efforts and taking all reasonable steps,
short of commencing arbitration or litigation, to compel compliance by
the Trade Contractor, including to the extent permissible under the
Trade Contract withholding payment, rejecting work and backcharging the
Trade Contractor; and
(iii) obtaining the Owners instructions in respect thereof.
1.3.3 In this Contract:
(a) the terms includes, including and similar expressions, whether or
not used with the words without limitation or but not limited to, shall
not be deemed limited by the specific enumeration of items but shall in
all cases be deemed to be without limitation and construed and
interpreted to mean includes without limitation and including without
limitation;
(b) a reference to a Court is to a Canadian court;
(c) words denoting any gender include all genders, and words in the
singular include the plural and vice-versa;
(d) a reference to any legislation or legislative provision includes
any statutory modification or re-enactment of, or legislative provision
substituted for, and any subordinate legislation issued under that
legislation or legislative provision;
(e) a reference to any Party includes that Party's executors,
administrators, substitutes, successors and permitted assigns;
(f) a reference to a business day is to a day that is not a Saturday,
Sunday or any other day which is a public holiday or a bank holiday in
the place where an act is to be performed or a payment is to be made,
and if an act is required to be done on a specified day which is not a
business day then the act shall be done instead on the next business
day;
(g) a reference to a day, month or year is a reference to a calendar
day, calendar month or a calendar year, provided however that a
reference to a month or a year calculated from a specific day means the
number of calendar months or calendar years from that date and to the
end of the same calendar day from which the time was calculated;
(h) a reference to $, USD or dollar is to United States of America
currency;
(i) references containing terms such as all reasonable efforts, when
used in connection with an obligation of either Party, means taking in
good faith and with due diligence all reasonable steps to achieve the
objective and to fulfil the obligation at the earliest possible time,
including doing all that can reasonably be done in the circumstances
and, in any event, taking no less steps and efforts than those that
would be taken by a reasonable and prudent person in comparable
circumstances but where the whole of the benefit or detriment of the
obligation and where all the results of taking such steps and efforts
accrued solely to that person's own benefit or detriment;
(j) references containing terms such as by the Contractor and by or
through the Contractor and terms of like import are synonymous and mean
by the Contractor or by anyone employed by or through the Contractor and
for whom the Contractor is responsible, including the Contractor and its
officers, employees, subcontractors, consultants and agents;
(k) unless otherwise expressly specified in the Owner's Requirements,
all units of measurement in any documents submitted by the Contractor to
the Owner shall be in accordance with and comply with the SI system of
units; and
(l) terms not defined but used in the Contract which have a
recognized technical meaning commonly understood by the gold mining
industry in North America will be construed as having that meaning
unless the context otherwise requires.
1.3.4 References to a statute or other Applicable Law shall include
all regulations, by laws, ordinances and orders made under or pursuant
to the statute or other Applicable Law.
1.3.5 Headings, whether of portions of the Agreement, General
Conditions, Sections or Clauses and whether contained in the Contract
or any schedule or appendix thereto, are for reference purposes only
and shall not constitute a part of the Contract or affect the meaning
or interpretation of the Contract.
1.3.6 This Contract is a negotiated contract and no rule of
construction or contra proferentum applies to the disadvantage of a
Party on the basis that such Party put forward or drafted the Contract
or any part thereof.
1.4 Ambiguous and Inconsistent Terms
1.4.1 If the Owners Representative reasonably considers, or the
Contractor notifies the Owners Representative in writing, that there is
a conflict, ambiguity, inconsistency or discrepancy in or between or
among any of the terms of this Contract, the Owners Representative will
determine the interpretation which the Parties shall follow and will
notify the Contractor accordingly in writing.
1.4.2 The Owners Representative, in giving a direction in accordance
with GC 1.4.1, is not required to determine whether or not there is an
ambiguity or inconsistency.
1.4.3 Subject to the Contractors right under GC 29 to dispute a
determination of the Owners Representative made under GC 1.4.1, the
Contractor will not be entitled to make any Claim (insofar as is
permitted by Applicable Laws) arising out of or in connection with any
conflict, ambiguity, discrepancy or inconsistency referred to in, or a
direction of the Owners Representative under, this GC 1.4.
1.5 Provisions in the Scope of Services
1.5.1 In the Scope of Services, but subject to GC 3.3.3:
(a) where an obligation is prescribed, the Contractor shall fulfil
that obligation;
(b) where an action is required or contemplated to be taken, the
Contractor shall take
that action unless it is expressly stated that the Owner will take that
action;
(c) where a precondition is prescribed in relation to any right or
benefit that the Contractor might become entitled to enjoy, then the
Contractor will only be entitled to the right or benefit if the
precondition is satisfied; and
(d) where a right or benefit is given to the Owner or the Owners
Representative, the Owner or the Owners Representative, as the case may
be, may enjoy that right or benefit even though the right or benefit is
not expressly prescribed by this Contract.
2. PERSONNEL AND CONTRACT ADMINISTRATION
2.1 The Owners Representative
2.1.1 The Owners Representative will give directions and carry out
all of the other functions of the Owners Representative under the
Contract as the agent of the Owner (and not as an independent
certifier, assessor or valuer).
2.1.2 The Contractor shall comply with any direction by the Owners
Representative given or purported to be given under a provision of this
Contract.
2.1.3 Except where the Contract otherwise provides and except in
relation to either an environmental or safety related issue where the
Owners Representative perceives a risk of potential harm or danger, the
Owners Representative may only give a direction in writing.
2.1.4 The Owner may replace the Owners Representative by Notice to
the Contractor at any time.
2.1.5 The Owner shall cause the Owners Representative to do or
refrain from doing all things which this Contract provides that the
Owners Representative shall do or refrain from doing, as the case may
be.
2.1.6 The Contractor shall not be required to comply with any
direction given by the Owners Representative under GC 2.1.1, GC 2.1.2
or GC 2.1.3 which is not consistent with good professional practice.
Where the Owners Representative gives the Contractor a direction which
is not consistent with good professional practice, but which is not
forbidden by good professional practice, the Contractor shall be
excused from all liability in respect of following such instruction
from the time at which the Contractor gives the Owners Representative
Notice of the inconsistency and sets out in that Notice a
non-exhaustive summary of expected adverse consequences on the Project
of complying with such instruction.
2.2 Delegation of the Owners Representatives Power
2.2.1 The Owners Representative may by Notice to the Contractor
appoint delegates to exercise any of the Owners Representatives
functions under this Contract and, by further Notice to the Contractor,
may terminate such appointments.
2.2.2 The Owner will promptly inform the Contractor in writing of:
(a) any replacement of the Owners Representative; and
(b) any delegation by the Owners Representative of the Owners
Representatives function under this Contract to a nominee, the extent
and the scope of that delegation, and any termination of appointment of
delegates.
2.3 Compliance with Directions
2.3.1 If the Contractor fails or refuses to comply with a direction
by the Owners Representative given in accordance with this Contract,
the Owner may notify the Contractor in writing of the Contractors
failure or refusal to comply with a direction of the Owners
Representative, in which case the provisions of GC 26.4 shall apply.
2.4 Delegation of Contractors Representatives Power
2.4.1 The Contractors Representative may by Notice to the Owner
appoint delegates to exercise any of the Contractors Representatives
functions under this Contract and, by further Notice to the Owner, may
terminate such appointments.
2.4.2 The Contractor shall promptly inform the Owner in writing of:
(a) any replacement of the Contractors Representative; and
(b) any delegation by the Contractors Representative of the
Contractors Representatives functions under this Contract to a nominee,
the extent and the scope of that delegation, and any termination of
appointment of delegates.
2.4.3 The Contractors Representative or the Contractors
Representatives delegate shall be available at all times at the Site
when the Contractor is performing the Services on the Site.
2.5 Contractors and Owners Acknowledgments
2.5.1 The Contractor and the Owner acknowledge and agree that:
(a) any notice, consent, approval or other communication given or
signed by the Contractors Representative or any Contractors
Representatives delegate will bind the Contractor;
(b) matters within the Contractors Representatives knowledge will be
deemed to be within the knowledge of the Contractor;
(c) any direction, consent, approval or other communication given or
signed by the Owners Representative or by a delegate appointed under GC
2.2 on behalf of the Owners Representative to any Key Personnel will be
deemed to have been given to the Contractor; and
(d) matters within the Owners Representatives knowledge will be
deemed to be within the knowledge of the Owner.
2.6 Personnel
2.6.1 The Contractor shall:
(a) provide experienced and skilled Contract Personnel to perform the
Services in accordance with its obligations under this Contract; and
(b) ensure that the Services are performed under the supervision of
appropriately qualified and experienced personnel.
2.6.2 Neither Party shall, without the prior agreement of the other
Party, solicit any employee of the other Party who has been involved in
the Project or this Contract while that person is working for the other
Party on the Project, or during the earlier of the date that is six
(6) monthsfollowing that persons termination of employment by the other
Party and the last date that such person worked on the Project for that
other Party.
2.6.3 The Contractor acknowledges and agrees that the Key Personnel
are critical for the proper management, supervision and performance of
the Services on schedule and budget. The Contractor shall assign to the
performance of the Services the Key Personnel, who the Contractor shall
ensure will give the performance of the Services priority over any and
all other work, tasks and assignments that they may otherwise have
assigned to them by the Contractor in relation to other existing or
future projects. No Key Personnel shall be hired by any affiliate of
the Contractor for any other work or project without the prior written
consent of the Owner, which consent is subject to such terms as the
Owner may require, and if the Contractor wishes to replace any Key
Personnel as aforesaid the Contractor shall:
(a) first, demonstrate to the Owners reasonable satisfaction that the
proposed replacement personnel have comparable or superior
qualifications and experience to those they are proposed to replace; and
(b) absorb the cost of any learning and training required to bring
such replacement personnel up to the same knowledge and level of
productivity of the personnel replaced.
2.6.4 The Owner may, in its absolute discretion, direct the
Contractor to remove from the Site, or from any activity connected with
performance of the Services, any Contract Personnel engaged or employed
in connection with the performance of the Services, provided that if
the Owner does not provide reasonable grounds for requiring such
removal the said direction shall constitute a Change Directive in
accordance with and subject to GC 15.
2.6.5 The Contractor shall comply with a direction made under GC
2.6.4 within the time specified by the Owner.
2.6.6 Notwithstanding any other provision of this Agreement, the
Contractor is solely responsible for, and shall consult with the Owner
and provide the Owner with such information as the Owner may require
with respect to, the accommodation, sustenance and medical care of
Contract Personnel.
2.6.7 In consultation with the Owners Representative, the Contractor
shall assign the Key Personnel to complete various portions of the
Services. The Contractor shall ensure that the Key Personnel are
available to follow through and ensure the completion of such portions
of the Services as are assigned to them.
2.6.8 As the Key Personnel are critical for the proper management,
supervision and performance of the Services on schedule and budget, the
Contractor acknowledges and agrees that:
(a) it will pay to the Owner Liquidated Damages at the relevant rate
and up to the maximum amount of Liquidated Damages as stated in the
Schedule of Key Personnel, for every day for which a member of the Key
Personnel is removed from or not available for the Services, but for
which they are required to be so available, until the earlier of:
(i) the day that the member of the Key Personnel is again made
available;
(ii) the date that the member of the Key Personnel is replaced with a
substitute person approved by the Owners Representative;
(iii) the date that this Contract is terminated; and
(iv) the date of Final Acceptance, unless such removal is due to
resignation, serious illness, injury or death of the Key Personnel or
is otherwise approved by the Owners Representative, or directed by the
Owner under GC 2.6.4;
(b) the specified rates of Liquidated Damages are separate and
cumulative for each member of the Key Personnel;
(c) if the Owners entitlement to, and the Contractors liability for,
Liquidated Damages under GC 2.6.8(a) is or becomes void, voidable or
unenforceable for any reason or there is no amount specified in the
Schedule of Key Personnel, then
the Contractor shall not be entitled to or charge the Owner for any
work or services performed by replacement personnel for that amount of
their time that is equivalent to the Liquidated Damages that, but for
the foregoing, the Contractor would otherwise be required to pay to the
Owner for the Contractors failure to provide the Key Personnel in
accordance with this Contract; and
(d) notwithstanding the foregoing, if a maximum amount of Liquidated
Damages is stated in the Schedule of Key Personnel, then the
Contractors liability under this GC 2.6.8 shall not exceed that maximum
amount.
2.7 Comments, Review, Representation or Approval by the Owner or the
Owners Representative
2.7.1 As the Owners Representative carries out its functions under
the Contract as agent of the Owner, neither the Owners Representative
nor a delegate appointed under GC 2.2 owes any duty to the Contractor
in discharging any of the functions of the Owners Representative under
the Contract.
2.7.2 No comment, review, representation or approval by the Owner or
the Owners Representative in respect of the Contractors obligations
under this Contract (including comments on, or review or approval of,
any Contract Material), or any other direction of the Owners
Representative given in accordance with this Contract, will lessen or
otherwise affect the Contractors obligations under this Contract and,
without limiting the generality of the foregoing, the Contractor shall
be solely responsible for any and all design and engineering for the
Project performed as part of the Services.
2.8 Project Control Group
2.8.1 The Project Control Group is:
(a) the Owners Representative; and
(b) the Contractors Representative.
2.8.2 The Owners Representative or the Contractors Representative may
invite any other person, whom either person reasonably requires, to
attend the Project Control Group meetings.
2.8.3 The Project Control Group shall meet:
(a) on a monthly basis; and
(b) at such other times as the Owners Representative and Contractors
Representative agree or, failing agreement, at such other times as the
Owners Representative may direct.
2.8.4 The Contractor shall:
(a) take minutes of all meetings held by the Project Control Group;
and
(b) provide a copy of those minutes to the Owner's Representative.
2.8.5 In respect of minutes provided pursuant to GC 2.8.42.8.4(b),
the Owner's Representative shall:
(a) if the Owner's Representative disagrees with the minutes, discuss
and then amend the minutes to reflect the agreed position or the results
of the meeting; and
(b) give to the Project Control Group members a copy of the amended
minutes at which point the amended minutes will be deemed to be the
official record of the relevant meeting.
2.9 [Intentionally deleted]
2.10 Contractor's Request for Information
2.10.1 The Contractor acknowledges and agrees that, other than as
expressly provided elsewhere in this Contract, it is the Contractors
responsibility to make all enquiries, obtain all information and make
all judgments that are relevant to and necessary for the performance of
the Services.
2.10.2 The Contractor shall not delay the progress of the Services or
any part of it by reason of the Contractor awaiting information from
the Owner or the Owners Representative:
(a) unless this Contract expressly provides otherwise;
(b) unless the Owners Representative otherwise in writing directs the
Contractor; or
(c) except to the extent that the Contractor cannot reasonably
proceed with the Services without the information.
2.11 Records Open for Inspection and Audit
2.11.1 The Contractor shall keep and maintain:
(a) the records identified in the Project Procedures Manual; and
(b) all other Contract Material relating to the Project, at the
Contractors address as set out in the Agreement.
2.11.2 The Contractor shall ensure that all Contract Material relating
to the Project, and the quality system and the records and Contract
Material referred to in GC 2.11.1 are available to the Owner (or
persons nominated by the Owner) at all reasonable times for
examination, audit, inspection, transcription and (in respect of
records only) copying.
2.11.3 The Contractor shall keep and maintain at the Site for use by
the Owner a current set of the documents comprising the Contract, all
Contract Material and all documents, drawings, instructions issued by
the Owner in connection with the Project. In addition, the Contractor
shall keep and maintain on Site one (1) full set of all drawings in
good order, on which the Contractor shall keep a current record of all
changes and as built information.
2.11.4 The Contractor shall at its expense keep and maintain full and
detailed records and accounts in connection with the performance of the
Contract in accordance with both generally accepted accounting
principles and the minimum standards and practices of comparable
national or international engineering firms in North America for
keeping and maintaining such records and accounts.
2.11.5 If and whenever required by the Owner, the Contractor shall
submit records, accounts and other data in a form and with such
breakdown as may be reasonably required by the Owner for the Owner to
maintain segregated accounts of the Work for the Owners own records as
may be required of the Owner by Applicable Laws or to satisfy any
Governmental Authorities, but unless required by Applicable Laws or
Governmental Authorities such breakdowns shall be limited to
reimbursable amounts and not the makeup of negotiated rates. Such
segregation may include separate accounting for taxable and non-taxable
expenditures with respect to among other things buildings, land
improvements, engineering and project management, interconnection,
permit and licence costs, and taxes and fees paid by the Contractor.
2.11.6 The Contractor shall at all times, and for at least three (3)
years after final payment under the Contract, keep full and
comprehensive records of all time spent by each and all Contract
Personnel, expenditures made, and indebtedness incurred with respect to
the Contract or for which it may be entitled to payment or reimbursement
by the Owner. All such records and documents in connection with the
Project or in respect of which the Contractor claims compensation from
the Owner shall be subject and open to inspection and audit by the
Owner at any time upon demand from the Owner, which inspection and
audit shall take place during normal business hours and at the
Contractors normal places of business unless the Owner and Contractor
otherwise agree.
2.11.7 In conducting an audit of the Contractor the Owner shall have
all powers necessarily incidental to conducting an audit, including the
right to have access to and inspect and take copies of all books and
records of the Contractor in connection with the Contract, upon
reasonable notice and at reasonable times. The Contractor shall fully
cooperate with the Owner and its auditors in the conduct of any audits,
including by making available all such records and accounts as they may
require to perform a full and detailed audit, and the Contractor
further agrees to promptly review and settle with the Owner all matters
arising from such audits, including the refunding of monies to the Owner
where applicable. Without limiting the generality of the foregoing, the
Contractor shall make available to all auditors of the Owner all books,
records, data and documentation as they consider necessary to allow them
to perform a full and comprehensive audit. At the
request of the Owners auditors the Contractor shall provide such
records, data and documentation as the Owners auditors may reasonably
require to substantiate all costs, expenditures and allocations
incurred or made by the Contractor in connection with the Project, and
to confirm that they are consistent with the Contractors historical
costs, charges and allocations for similar work for others, or if there
are no historical costs then consistent with generally accepted
accounting principles used by major international engineering firms.
2.11.8 In addition to the financial audit of the Contractors accounts
pursuant to GC 2.11.7, the Owner shall have the right to monitor and
audit the performance of any and all parts of the Services wherever
located, and the Contractor shall cooperate with, and shall require
that its subcontractors cooperate with, and provide access to the
representatives of the Owner monitoring and auditing such parts of the
Services, including providing them with access and copies of all
relevant manufacturing, inspection, QA, QC and other records and
documents pertaining thereto.
2.11.9 If this Contract is terminated, the Contractor shall give the
Owner any records and Contract Material referred to in GC 2.11.1 which
are necessary for the orderly continuance of the Services by another
Person.
2.12 Privacy
2.12.1 The Contractor and the Owner warrant that they will comply with
applicable Privacy Law in relation to the collection, use or disclosure
of Personal Information in relation to this Contract.
2.12.2 The Contractor and the Owner agree to:
(a) observe the Privacy Law for all Personal Information collected or
dealt with by the Contractor or the Owner (as the case may be) under
this Contract;
(b) take reasonable measures to ensure that Personal Information
relevant to this Contract is protected against:
(i) misuse or loss; and
(ii) unauthorised access, modification and disclosure, and that only
authorized personnel have access to Personal Information;
(c) ensure all personnel involved in collecting or dealing with
Personal Information are adequately trained as to the requirements of
the Privacy Law and this Contract;
(d) give the other Party reasonable assistance for it to resolve any
inquiry or complaint relating to Personal Information;
(e) promptly follow any reasonable direction of the other Party
regarding the Personal Information and compliance with the Privacy Law;
(f) promptly inform the other Party of any breach of this GC 2.12.
3. GENERAL REQUIREMENTS REGARDING SERVICES
3.1 General
3.1.1 The Contractor shall provide and perform the Services described
in Appendix 2 Scope of Services as required to complete the Project,
meet the Owners Requirements and Performance Guarantees, and achieve
Final Acceptance, all:
(a) in accordance with the requirements of this Contract; and
(b) unless otherwise stated, at its cost.
3.1.2 The Contractor is solely responsible for the performance of the
Services. This obligation is not affected by any approval given by the
Owner or any Governmental Authority.
3.1.3 The Contractor shall provide leadership as well as engineering,
procurement, construction, scheduling and coordination expertise.
3.1.4 The Contractor shall:
(a) diligently prosecute the performance of the Services for the
purpose of completing the Services and Facility so that:
(i) each of the Milestone Dates in the Milestone Schedule from and
after the Milestone Date for commence construction will be met,
including the Milestone Dates for Industrial Completion and Final
Acceptance; and
(ii) the Project Schedule will be met.
(b) if and when a Notice to Proceed With Project Execution Services
has been issued by the Owners Representative, use all reasonable
efforts to achieve Final Acceptance for the Project within the Approved
Project Budget;
(c) before the related construction work on any portion of the
Project is commenced, ensure that the Detailed Design Documentation and
methods of working proposed or specified in respect thereof by itself or
any Trade Contractor are approved by the Owners Representative;
(d) establish and implement a quality assurance system for the of the
Project in accordance with the Scope of Services and which complies with
ISO 9000: 2000;
(e) recommend and seek the Owners approval to undertake all studies,
reviews, investigations and other processes and value engineering which
in the opinion of
the Contractor are necessary to enable the Contractor to inform the
Owner of all reasonable available advantages or benefits to the
Project, and in particular:
(i) uses of the Site;
(ii) selections of materials;
(iii) building techniques and equipment; and
(iv) alternative designs and materials; and
(f) perform the Services, and use all reasonable efforts to ensure
(but does not guarantee) that all Trade Contractors perform their Trade
Contracts, in a manner which meets all Applicable Laws relating to or
governing occupational health and safety and the Owner Standards and
Procedures.
3.1.5 The Contractor:
(a) shall use all reasonable efforts to inform itself of the Owners
requirements for the Services and the Project and, for that purpose,
regularly consult with the Owners Representative throughout the
performance of the Services (including requesting instructions from the
Owners Representative and seeking comments on, or review or approval, of
any Documentation);
(b) shall at all times provide the Services in accordance with the
Owners requirements referred to in GC 3.1.5(a) and any instructions
given by the Owners Representative; and
(c) is responsible at its own cost and without reimbursement from the
Owner for the re-performance of any Services which are required because
of a failure to provide the Services in accordance with the Contract or
the Owners requirements as such requirements are expressly made known to
the Contractor under and in accordance with the Contract.
3.2 Budgetary Constraints
3.2.1 The Contractor acknowledges that the Owner has budgetary
constraints and limitations for the Project and agrees to cooperate
with the Owner in the Owners efforts to control and monitor its budget
for the Project, including (subject to locking in each element of the
design of the Facility in accordance with the standard of care set out
in GC 3.3.3 or as may be specifically directed by the Owner) by
assisting the Owner to identify any value engineering and cost-saving
exercises which can be reasonably expected to reduce the cost to the
Owner for the Project. Without limiting but in addition to the
foregoing, the Contractor shall use all reasonable efforts to perform
its Services expeditiously and economically and, in doing so, shall:
(a) assign personnel to the Services in consultation with the Owners
Representative and not assign any more personnel to the Services than
the number of personnel reasonably required to perform the Services;
(b) assign to the performance of the Services only personnel who are
qualified by education or experience to perform the work in which they
are engaged and who have such professional qualifications and
credentials as may be required by Applicable Law, Governmental
Authorities or Prudent Industry Practice, unless the Owners
Representative otherwise expressly agrees in writing;
3.2.2 Once the budget for the Services has been established and
approved by the Owners Representative, the Contractor will monitor all
costs of the Services against the approved budget for Services and
provide reports, on a monthly or such other frequency as may be agreed
to by the Owners Representative, forecasting the costs to complete all
of the Services. Such reports shall be in a format agreed to between
the Owner and the Contractor and, among other things, contain the
following:
(a) the actual hours expended and costs incurred by the Contractor on
Services for which the Owner is responsible, both since the last report
and since the commencement of the Services;
(b) identification of and explanation for any variances between the
actual hours expended and the actual costs incurred, and the
projections for those hours and costs in the approved budget for the
Services;
(c) the hours and costs forecasted by the Contractor for the
provision of Services for the next monthly period, and the cumulative
totals of hours and costs for the provision of all Services from the
commencement to the completion of the Services, together with the
identification of and explanation for variances between those
projections and the approved budget for Services;
(d) to the extent not already included in the above, a list of any
outstanding requests for changes to the Scope of Services to date; and
(e) the identification of any further changes to the Scope of
Services that may be required to completion of the Project.
3.2.3 The Owners Representative and the Contractors Representative
shall meet monthly, or at such other times as they may agree, to review
the aforesaid reports provided by the Contractor and to review the
approved budget for the Services to identify areas of potential cost
over-runs and under-runs, the reasons therefor, and forecasts to
complete the Services.
3.3 Warranties and Standard of Care
3.3.1 The Contractor warrants to the Owner that it and its Contract
Personnel shall at all material times have the particular skill,
experience and ability necessary to perform the Services and will
continue to have them during the term of this Contract, and that the
Contractor will comply with the requirements of this GC 3.3.
3.3.2 All parts of the Services required by Applicable Laws to be
performed by licensed or registered professional engineers or
architects shall be performed by licensed or registered professional
engineers and architects. Without limiting the generality of the
foregoing, all design shall, to the extent required by Applicable Laws,
be reviewed by professional engineers registered to practice
professional engineering in the jurisdiction in which the Site is
located.
3.3.3 In the performance of all of the Services, and all parts of the
Services, the Contractor shall exercise no less standard of care and
diligence than the generally accepted standard of care and diligence to
be exercised for professional and other services of a similar nature in
respect of comparable mining projects in North America by recognized
reputable North American engineering firms engaged in the performance
comparable services in respect of such types of projects, and the
Contractor shall perform the Services in a competent and efficient
manner, apply suitable and sufficient qualifications, experience,
expertise and resources to this Project, observe sound management,
technical, engineering and consulting practices, and employ appropriate
sound, proven technology and methods, and use all due diligence,
efficiency and economy, and exert all reasonable efforts, as required
to comply with the said standard of care for the intended purpose of
completing the Facility and meet the Date for Industrial Completion,
all other Milestone Dates, and the Approved Project Budget.
3.3.4 Without limiting but in addition to any other obligation on the
Contractor pursuant to this Contract or under Applicable Law, the
Contractor and its subcontractors, and their respective consultants,
shall for all engineering and design use only design personnel who,
through education, training and experience, have the requisite
knowledge and skills to perform the part of the Services assigned to
them and which is consistent with the general design standards
specified in the Contract, including GC 3.3.3.
3.3.5 The Contractor shall ensure that any subcontractor appointed by
it to provide part of the Services performs that part of the Services
with the professional skill, care and diligence expected of a
professional consultant experienced in projects of a similar nature to
the Project and activities of a similar nature to the part of the
Services subcontracted to that subcontractor.
3.3.6 The Contractor warrants to the Owner that it has examined:
(a) the Scope of Services;
(b) the Milestone Schedule; and
(c) all other information or documents relating to the Project
provided to the Contractor by the Owner,
and is satisfied of their sufficiency for the purpose of complying with
its obligations under this Contract, and that in the opinion of the
Contractor based on its knowledge at the time of execution of the
Contract, the Scope of Services, the Performance Guarantees, the
Milestone Schedule and the Approved Project Budget can all be met or,
in the case of the Scope of Services, performed.
3.4 Equipment Importation
3.4.1 The Contractor shall cause Trade Contractors to make and be
responsible for all arrangements, including the preparation,
translation and processing of all documentation, necessary to import
into Venezuela all permanent equipment to be incorporated into the
Facility and any and all other tools, items and Goods necessary to
complete the Project, and the Contractor shall coordinate with the
applicable Governmental Authorities in achieving clearance of customs
for all such permanent equipment, tools, other items and Goods at the
earliest time and, to the extent available under the Applicable Laws,
achieving such importation duty free and tax free.
3.4.2 Unless the Owner otherwise agrees in writing, all tools, other
items and Goods imported into Venezuela by the Contractor and Trade
Contractors shall be imported in the name of Compania Aurifera Brisas
del Cuyuni, C.A.
3.4.3 Without limiting but in addition to GC 3.4.1, the Contractor
shall arrange and provide for any and all of its Goods imported into
Venezuela, and shall require Trade Contractors to arrange and provide
for any and all of their permanent equipment to be incorporated into
the Facility imported into Venezuela, and any and all of their other
tools, items and goods necessary to complete the Project imported into
Venezuela, such documentation and detailed information, including
Spanish translations of import documents, brochures and detailed
specifications as may be required, for submission to custom duty
officers and other Governmental Authorities before shipping and after
import as may be necessary to obtain exoneration or, where exoneration
is not possible, to minimize import and other duties and Taxes on such
Goods.
3.5 Continuing Warranties
3.5.1 The warranties contained in GC 3.3 will be treated as made and
be binding upon the Contractor continuously during the term of this
Contract.
4. REGIONAL SOCIO-ECONOMIC BENEFITS AND INDIGENOUS PEOPLES
4.1 Indigenous Peoples
4.1.1 The Contractor shall comply with the Indigenous Peoples Plan
and enforce compliance by the Trade Contractors with the Indigenous
Peoples Plan.
4.1.2 If compliance with the Indigenous Peoples Plan affects the
Project Budget or the Milestone Date for Industrial Completion, either
Party may request a Change Order.
4.2 Regional Socio-Economic Benefits
4.2.1 The Contractor shall comply with the Regional Socio-Economic
Benefits Commitments.
4.2.2 If compliance with the Regional Socio-Economic Benefits
Commitments affects the Project Budget or the Milestone Date for
Industrial Completion, either Party may request a Change Order.
5. PROTECTION OF THE ENVIRONMENT
5.1 General
5.1.1 The Contractor shall, in accordance with the requirements of
the Contract, prepare and implement procedures to comply with the
Environmental Management Plan.
5.1.2 Contractor shall ensure that the design and construction of the
Facility and Project is in accordance with the environmental protection
requirements of Applicable Laws and Mining Industry Standards, The
International Cyanide Management Code, and World Bank Guidelines.
6. [INTENTIONALLY DELETED]
7. PROJECT EXECUTION SERVICES
7.1 Progression to Project Execution
7.1.1 Unless otherwise stated in the Notice to Proceed With Project
Execution Services, the issue of a Notice to Proceed With Project
Execution Services by the Owners Representative to the Contractor
authorises the Contractor to commence Project Execution.
7.1.2 If the Notice to Proceed With Project Execution Services
identifies matters which require further development by the Contractor
or further negotiations between the Owner and the Contractor, the
Contractor and the Owner will co-operate in good faith to resolve and
agree upon such matters.
7.2 General Obligations
7.2.1 The Contractor shall provide the Project Execution Services as
required to achieve Final Acceptance for the Project in accordance with
the requirements of this Contract and any other requirements of the
Owner as notified by the Owner to the Contractor.
7.2.2 The Project Execution Services to be carried out by the
Contractor include:
(a) the performance of Detailed Design and the preparation of the
Detailed Design Documentation;
(b) procurement services;
(c) co-ordination and administration services; and
(d) compliance with all Applicable Laws.
7.2.3 The Contractor shall commence the Project Execution Services on
the date specified in the Notice to Proceed With Project Execution
Services or as otherwise directed by the Owners Representative and
ensure that Industrial Completion is achieved by the Date for
Industrial Completion and Final Acceptance is achieved by the Date for
Final Acceptance.
7.3 [Intentionally deleted]
7.4 Project Execution Project Planning Obligations
7.4.1 The Contractor shall, during Project Execution, ensure that the
Project Plan is updated:
(a) periodically as directed by the Owners Representative; or
(b) if no such direction is given, weekly; and
(c) to show progress achieved; and
(d) where appropriate, to show changes to the sequence and duration
of activities required to meet the Date for Industrial Completion
(including the effect (if any) of any extension of time) together with
any corresponding changes to proposed manpower and shifts to be worked
and resources to be utilised, and that a copy of each update is
promptly provided to the Owners Representative for approval.
7.4.2 The Owners Representative may reject an updated Project Plan or
require amendments to be made to it within seven (7) days of receiving a
copy of such updated Project Plan.
7.4.3 Where the Owners Representative rejects a Project Plan, the
Contractor shall submit a corrected and revised Project Plan within
seven (7) days of being notified that the Project Plan is rejected.
7.4.4 The Contractor acknowledges and agrees that review of, comments
on or approval of, or any failure to review or comment on, any updated
Project Plan by the Owners Representative will not:
(a) relieve the Contractor from or alter its liabilities or
obligations under this Contract, including the obligation to ensure
that Industrial Completion occurs by the Date for Industrial Completion
and Final Acceptance by the Date for Final Acceptance;
(b) evidence or constitute a direction by the Owners Representative
to disrupt, prolong or vary the Project; or
(c) affect the time for carrying out the Owner or the Owners
Representatives Contract obligations.
7.5 Project Execution Cost Planning Obligations
7.5.1 The Contractor shall:
(a) regularly review the Approved Project Budget with the Owners
Representative;
(b) inform the Owners Representative if it becomes aware of any
likely or actual cost overruns on the budget estimates for the Trade
Contracts;
(c) identify and advise the Owners Representative of any potential
cost savings in any of the Trade Contracts; and
(d) use all reasonable efforts to identify and advise the Owners
Representative of the appropriate measures for ensuring that the total
budgeted cost of the Project (as stated in the Approved Project Budget)
is not exceeded.
7.6 Rights and Obligations Not Affected
7.6.1 No review or approval by the Owner or the Owners Representative
of any one or more of the following will relieve the Contractor of its
responsibility for preparing and implementing each of the following
plans with such detail and content as may be reasonably required for
the proper execution of the Project and to conform to the standards of
care required by GC 3.3.3:
(a) the environmental procedures for implementing the Environmental
Management Plan;
(b) the Safety and Health Plan;
(c) the Human Resources and Industrial Relations Plan;
(d) the Quality Assurance Plan;
(e) Trade Contract provisions requiring Trade Contractors to comply
with the Indigenous Peoples Plan; and
(f) the Project Procedures Manual;
8. SITE
8.1 Owner Site Information
8.1.1 The Contractor is entitled to rely upon the accuracy of the
following information as provided by the Owner:
(a) Metallurgical test data, but not opinions or conclusions
expressed in metallurgical test reports based on such data;
(b) Bore hole logs and geotechnical logs of test pits, but not
opinions or conclusions expressed in documents containing such logs;
(c) Hydrology reports;
(d) Climatological data;
(e) Topographical surveys, except in those areas of the Site where
facilities are to be located;
(f) Concession boundaries;
(g) Location and characteristics of existing electrical substation;
(h) Feasibility Study, subject to the Contractors obligations during
the Project Definition Phase to review the Feasibility Study and make
recommendations to the Owner regarding the sufficiency and reliability
of information contained therein and any additional work that may be
required, all to develop the detailed Project scope and Approved
Project Budget for the Project Execution Phase.
8.1.2 Subject to GC 8.1.1, where the Owner has made available to the
Contractor, whether before or after the Date of Contract, any
information, data and documents of any kind:
(a) the Owner does not warrant, guarantee or make any representation
about the accuracy or adequacy of any such information, data and
documents made available to the Contractor; and
(b) unless expressly provided otherwise in this Contract, such
information, data and documents do not form part of the Contract and GC
8.2 applies to the information, data and documents.
8.2 Contractors Acknowledgements
8.2.1 Subject to GC 8.1, the Contractor acknowledges and agrees:
(a) that it did not in any way rely upon:
(i) any information, data, representation, statement or document made
by or provided to the Contractor by the Owner or anyone on behalf of the
Owner; or
(ii) the accuracy or adequacy of any such information, data,
representation, statement or document,
for the purposes of entering into the Contract, except to the extent
that any such information, data, representation, statement or document
forms part of the Contract;
(b) that it enters into this Contract based on its own
investigations, interpretations, deductions, information and
determinations.
9. DESIGN
9.1 Preparation of Contract Material
9.1.1 Without limiting the obligations under Appendixes 2 and 7 of
this Contract
(a) the Contractor shall develop and complete to the Owners and all
applicable Mining Industry Standards and Prudent Industry Practice all
Contract Material required for the completion of the Project and the
Services; and
(b) Contract Personnel shall prepare the Contract Material and any
other design drawings and specifications with appropriate professional
qualifications.
9.1.2 The Contractor shall:
(a) give the Owners Representative for review two copies (or such
other number of copies as directed by the Owners Representative) of all
Contract Material (including amended versions) as soon as it is prepared
and in any event no later than the time indicated in the then current
approved Project Plan under GC 7.4 for the submission of the Contract
Material to the Owners Representative;
(b) allow no fewer than fourteen (14) days, before the time indicated
in the then current approved Project Plan under GC 7.4 for the issue of
the Contract Material to subcontractors, suppliers or Trade Contractors,
for the Owners Representative to review the Contract Material;
(c) not take any further steps in relation to any Contract Material
which it has submitted to the Owners Representative, including issue of
the Contract Material to subcontractors or Trade Contractors or
commencing procurement of the construction of the part of the Project
to which the Contract Material applies, unless the Owners
Representative has had no fewer than fourteen (14) days to review the
Contract Material and has not rejected the Contract Material; and
(d) if any Contract Material is rejected, submit amended Contract
Material to the Owners Representative for review, in which case this GC
9.1 will apply.
9.2 Review and Acceptance or Approval by Owner
9.2.1 Neither the Owner nor the Owners Representative undertakes any
responsibility or duty of care to the Contractor to review, or in
reviewing, the Contract Material for errors, omissions or compliance
with this Contract.
9.2.2 No review of, comments upon, rejection of, or failure to review
or comment upon or reject, any Contract Material prepared by the
Contractor or any other direction by the Owners Representative about
the Contract Material (provided the Contractor has not objected in
writing to, and within a reasonable time after, such a direction) will:
(a) relieve the Contractor from, or alter or affect, the Contractors
liabilities or responsibilities whether arising out of or in connection
with the Contract or otherwise according to Applicable Laws; or
(b) prejudice the Owners rights against the Contractor under this
Contract.
9.2.3 Without limiting but in addition to the provisions of GC 9.2.1
and GC 9.2.2, any review, acceptance, monitoring, approval or audit of
any Contract Material or part of the Services by the Owner or Owners
Representative shall not be interpreted or otherwise construed to be,
an acceptance or approval of any Contract Material or part of the
Services that is not in full conformance with all requirements of the
Contract
9.3 Ownership of, and Intellectual Property Rights in, Contract
Material
9.3.1 Subject to GC 9.3.2, the title, property rights and ownership
in and to all of the Contract Material shall immediately upon creation
vest in the Owner without payment in respect therefor (other than
amounts payable in accordance with GC 18 for Services rendered), and
the Contractor hereby assigns to the Owner all Intellectual Property
Rights (including future copyright), and waives all moral rights, in
all Contract Material upon the creation of that Contract Material or,
to the extent that any Intellectual Property Rights are not created at
the time of the creation of the Contract Material, upon the later
creation of the Intellectual Property Rights in that Contract Material.
The Contractors waiver of moral rights include without limitation waiver
of the right to the integrity of the Contract Material, waiver of the
right to be associated with the Contract Material, waiver of the right
to modify the Contract Material in any way, waiver of the right to
prevent use of the Contract Material in association with any product,
service, project or institution, and waiver of the right to restrain
publication of the Contract Material throughout the world. The Owner
shall at all times have the right to control, review and otherwise deal
with all Contract Material, and to deliver it to third parties, without
restriction. The Contractor shall, upon request from the Owner, do all
such things and execute and deliver to the Owner all such documents and
instruments as the Owner shall reasonably require in order to vest
title, property rights and ownership in the Owner in accordance with
the foregoing.
9.3.2 Subject to GC 9.3.3, the vesting of ownership, assignment and
waiver of moral rights in GC 9.3.1 will not extend to components of the
Contract Material:
(a) which have been developed by the Contractor for general use in
the Contractors work or business and which have not been specially
developed for the Project, or which comprise non-confidential and
non-identifying information which is of general application in the
Contractors services or business; or
(b) which consist of computer software developed by the Contractor
for general use in the Contractors work or business which is not
specific to the Project, and for which the cost of development has not
been charged to the Owner.
9.3.3 To the extent the Contract Material contains any Intellectual
Property Rights created prior to the Date of Contract or that were
developed by the Contractor independently of the Project, the
Contractor grants the Owner an irrevocable right and royalty free right
to use the Intellectual Property Rights solely for the purpose of the
Project, including any subsequent repairs to, maintenance or servicing
of (including the supply of replacement parts), or additions or
alterations to, the Project.
9.3.4 Subject to GC 9.3.2 and GC 9.3.3, the Contractor shall, if
required by the Owner, do all further things necessary to assign
Intellectual Property Rights in the Contract Material to the Owner.
9.3.5 The Owner hereby grants to the Contractor a revocable,
non-exclusive licence to use the Contract Material and the Owner
Documentation to the extent required to design the Project, procure the
construction of the Project and perform any other Services. The
Contractor may sub-licence the Contract Material to its subcontractors
where necessary for the performance of the Services.
9.3.6 The Contractor warrants that:
(a) the Contractor is able to assign the Intellectual Property Rights
in Contract Material as described in GC 9.3.1 and GC 9.3.4;
(b) use by the Owner, or by another person at the direction or with
the permission of the Owner, of Contract Material in accordance with
this Contract will not infringe the Intellectual Property Rights of any
third party or breach any Applicable Laws;
(c) neither the Owner, nor any other person acting at the direction
or with the permission of the Owner, is liable to pay any third party
any licence or other fee in respect of the use of Contract Material; and
(d) it will use all reasonable efforts to ensure all subcontracts and
Trade Contracts will include terms which provide for the assignment of
Intellectual Property Rights in the Contract Material to the Owner.
9.3.7 The Contractor shall indemnify the Owner against all costs,
losses, damages or liability incurred or suffered by the Owner, arising
out of or in any way in connection with, any actual or alleged
infringement of any Intellectual Property Rights directly related to
the use of Contract Material in accordance with this Contract.
9.3.8 If the Owner modifies or causes to be modified any Contract
Materials, or uses or alters the Contract Materials for any other
project there shall be no false attribution of such Contract Materials
to the Contractor and the following shall apply:
(a) such Contract Materials as modified or used for other projects
shall not be attributed to the Contractor unless the modifications are
clearly delineated and clearly attributed to others; and
(b) the Contractor shall not be responsible for the use or
application of such modified Contract Materials or use of such Contract
Materials for other projects.
9.4 Keeping Contract Material Safe
9.4.1 The Contractor shall, and shall ensure its subcontractors,
protect, keep safe and secure all documents, notes, reports, memoranda,
materials, software, disks and all other media, articles and things
provided by the Owner to the Contractor (including any Contract
Material held by a subcontractor), including all Contract Material and
the Owner Documentation.
9.5 Reproduction of Contract Material
9.5.1 The Contractor shall ensure that:
(a) the Owner Documentation;
(b) Contract Material; and
(c) anything else recording, containing, setting out, or making
reference to the Project,
is used, copied, supplied or reproduced only to the extent necessary
for the purposes of performing the Services, unless the Contractor has
obtained the prior written approval of the Owner to use it for any
other purpose.
9.6 Return of Contract Material
9.6.1 Subject to GC 9.6.2, the Contractor shall, within seven (7)
days after Final Acceptance (or such other period directed by the
Owners Representative), provide or return (as the context permits) to
the Owner:
(a) all the Owner Documentation;
(b) all Contract Material; and
(c) anything recording, containing, setting out, or making reference
to the Project, except as otherwise specified in a direction of the
Owner's Representative.
10.1.1 Subject to GC 10.1.2, the Contractor may enter into subcontracts
for the vicarious performance of its obligations under this Contract.
10.1.2 The Contractor shall obtain the written approval of the Owners
Representative before appointing a subcontractor (which for purposes of
the Contract shall be deemed to include a subconsultant to the
Contractor) to perform any part of its obligations under this Contract.
10.1.3 The Contractor shall manage the performance of each
subcontractor to ensure the quality and timeliness of its performance
meet the requirements of this Contract.
10.1.4 The Contractors obligations under this Contract are not lessened
or otherwise affected by subcontracting the performance of those
obligations.
10.1.5 The Contractor will ensure that any subcontractor or agent it
engages in connection with this Contract complies with all of the
relevant terms and conditions of this Contract. The Contractor shall be
liable to the Owner for any act or omission of a subcontractor which
would, if done or omitted (as the case may be) by the Contractor,
comprise a breach of this Contract, as and to the same extent as if
such act or omission of the subcontractor was done or omitted by the
Contractor itself.
10.2 Re-performance of Non-Complying Services
10.2.1 If, at any time prior to the date that is two (2) years after
the date that Industrial Completion has been achieved, the Owners
Representative considers any part of the Services not to be in
accordance with the Contract, or that any defect, deficiency or
nonconformance exists in respect of the Services, the Owners
Representative may direct the Contractor to re-perform that part of the
Services or rectify that defect, deficiency or nonconformance and may
specify the time within which this shall occur.
10.2.2 Subject to GC 10.2.1, the Contractor shall correct or re-perform
any Services which do not comply with the requirements of this Contract
or rectify any defect or deficiency in the Services so as to ensure
compliance with the requirements of this Contract.
10.2.3 The Contractor acknowledges and agrees that it is not entitled
to be reimbursed (under this Contract or otherwise) for any costs
incurred by it in performing its obligations under this GC 10.2 to the
extent caused or contributed to by a breach of the standard of care set
out in GC 3.3.3 or by any other failure to comply with a requirement of
the Contract.
10.2.4 The Owner may have the correction or re-performance of the
non-compliant Services, or rectification of any defect, deficiency or
non-conformance in respect of the Services carried out by others at the
Contractors cost if:
(a) the Owner has directed the Contractor to correct, re-perform or
rectify those matters in accordance with GC 10.2.1 within a reasonable
period of time (being not less than seven (7) days) as stated in that
direction; and
(b) the Contractor has failed to correct, re-perform or rectify those
matters within that period, or where it is impossible to do so within
that time despite all due diligence, to promptly commence such
correction, re-performance or rectification as is reasonably possible
within that time, and provide a reasonable schedule for the completion
thereof.
10.2.5 The Owners costs under GC 10.2.4 will be a debt due and payable
by the Contractor to the Owner.
11. LABOUR AND INDUSTRIAL RELATIONS
11.1 General
11.1.1 The Contractor shall take steps consistent with the standard of
care set out in GC 3.3.3 to mitigate and avoid labour disputes and
disruptions at the Site and at any manufacturing facilities or places
of work of the Trade Contractors.
11.2 Open Site
11.2.1 The Contractor acknowledges and agrees that some or all Trade
Contractors and some or all Other Contractors employed by the Owner and
their subcontractors working at the Site or on the Project may be union
or non union and that the Contractors Human Resources and Industrial
Relations Plan for the Project is required to set out all reasonable
steps required to maintain labour peace at all times on the Site and on
all parts of the Project. The Contractor shall carry out the Services in
such a manner that is intended to avoid labour problems, work stoppages
or other labour disputes that might delay or increase the cost of the
Project.
11.2.2 Whenever the Contractor has knowledge that any actual or
probable labour dispute is delaying or may threaten to delay the timely
completion of the Services or the Project, the Contractor shall promptly
give Notice thereof to the Owners Representative, including all relevant
information with respect to such labour dispute or potential dispute.
11.3 Trade Contracts
11.3.1 The Contractor shall include in the Trade Contracts placed by
Contractor appropriate contractual provisions that will minimize and
avoid labour disputes, disruptions, strikes, picketing and legal or
illegal work stoppages in relation to the Project.
11.4 Additional Requirements for Personnel on Site
11.4.1 The Contractor shall, at all times, take all reasonable
precautions to prevent any unlawful, riotous or disorderly conduct by
or among its employees or any workers of any Trade Contractors, and to
protect persons and property in the vicinity of the Site from the same.
11.4.2 The Contractor shall remove, or cause to be removed, anyone
present on Site who is impaired by alcohol or drugs.
11.5 Report of Contractors Personnel and Equipment
11.5.1 The Contractor shall, if and when required by the Owner, deliver
to the Owner a report in detail, in such form and at such intervals as
the Owner may reasonably prescribe, showing both the total number of
Contract Personnel (including supervisory and management personnel)
engaged by or through the Contractor in the performance of the Services.
12. PROCUREMENT
12.1 Tenders for Trade Contracts
12.1.1 The Contractor shall:
(a) make recommendations to the Owner's Representative regarding the
tender list for each Trade Contract and finalise each tender list in
consultation with the Owner's Representative in accordance with the
relevant procedure in the Project Procedures Manual or the
Comprehensive Procurement Strategy or both, so that it only includes
tenderers approved by the Owner's Representative;
(b) prepare the tender documentation (including finalising the
specifications and drawings) for each Trade Contract (using the
Project-developed conditions of tender and contract prepared by the
Contractor and approved by the Owner) and ensure that they comply with
the Owner's requirements (including, in particular, those set out in
the Scope of Services);
(c) submit the tender documentation it prepares to the Owner's
Representative for review in a manner and at a rate which will give the
Owner's Representative a reasonable opportunity (and in any event no
fewer than fourteen (14) days) to review that tender documentation
before it is issued to tenderers;
(d) if any tender documentation is rejected by the Owner's
Representative within the period stated in GC 12.1.1(c) submit amended
tender documentation to the Owner's Representative, in which case GC
12.1.1(c) will reapply;
(e) not issue any tender documentation to the tenderers for each
Trade Contract unless the tender documentation has been submitted to
the Owner's Representative and the Owner's Representative has had the
period stated in GC 12.1.1(c)) to review the tender documentation and
has not rejected the tender documentation;
(f) prepare sufficient copies of the finalised tender documentation
for each Trade Contract for tendering; and
(g) issue the tender documentation in accordance with this GC 12.1.1
to all approved tenderers.
12.1.2 Unless the Owners Representative otherwise consents in writing,
the Contractor shall obtain a minimum of three competitive tenders for
each Trade Contract, including from any prospective tenderers nominated
by the Owner.
12.1.3 The Contractor shall:
(a) keep the Owners Representative informed of any pre-tender
meetings;
(b) provide to the Owners Representative copies of all correspondence
from and to tenderers for the Trade Contracts; and
(c) have a representative in attendance at the opening of all tenders
for the Trade Contracts.
12.1.4 The Contractor warrants to the Owner that neither the Contractor
(nor any Affiliated bodies corporate, as defined by the Canada Business
Corporations Act, of the Contractor) will tender for any of the Trade
Contracts unless the Contractor has obtained the prior written approval
of the Owner.
12.1.5 The Contractor shall:
(a) analyse all tenders submitted by tenderers for the Trade
Contracts;
(b) prepare a report recommending to the Owner the most suitable
tenderer for each Trade Contract;
(c) recommend, if necessary, that negotiations be entered into with
any preferred tenderer; and
(d) provide to the Owner for its consideration the actual tender
prices for all Trade Contracts and how they compare with the cost
estimates for the Trade Contracts in the Project Cost Estimate and the
Approved Project Budget.
12.1.6 The Contractor shall review the scope of work, specifications,
drawings, schedule and other provisions of the Trade Contracts before
they are awarded to ensure they are complete, free of errors and
omissions, and are coordinated with the specifications, drawings,
schedule and other provisions of other Trade Contracts, all to minimize
errors, omissions and conflicts within a Trade Contract and between
Trade Contracts. The Contractor shall notify the Owner of any errors,
omissions, defects or conflicts with the documents of a Trade Contract
or between the documents of that Trade Contract and those of other
Trade Contracts promptly upon first becoming aware of such errors,
omissions, defects or conflicts to mitigate against delays to Trade
Contractors and to mitigate against changes and delays under Trade
Contracts for which the Trade Contractors may be entitled to additional
compensation or extensions of time from the Owner.
12.2 Warranties From Trade Contractors
12.2.1 The Contractor and Owner will agree upon the general warranties
and guarantees to be obtained from Trade Contractors. The Contractor
shall use all reasonable efforts to obtain comprehensive warranties
from Trade Contractors that are at least as favourable and preferably
more favourable to the Owner than such general warranties and
guarantees. Warranties and guarantees under Trade Contracts shall be
for not less than twelve (12) months from Industrial Completion unless
the Owner for a specific Trade Contract otherwise agrees in writing to
a shorter warranty period of time. The Contractor shall take or cause
to be taken all action necessary to fully engage and validate any and
all warranties and guarantees by Trade Contractors, and shall require
Trade Contractors, at their sole expense, to fulfill their warranty and
guarantee obligation in their Trade Contracts.
12.3 Trade Contract Payment
12.3.1 The Contractor shall:
(a) upon receipt of each payment claim under a Trade Contract to be
adminiated by Contractor, review the claim, and:
(i) for any claim greater than $20,000, notify in writing the Owners
Representative of the claim immediately upon receipt of the claim; and
(ii) for all claims, advise the Owners Representative of the results
of the Contractors review within seven (7) Business Days of receipt of
such claim;
(b) at intervals of not more than one (1) month, submit to the Owner
a statement of progress claims made under Trade Contracts during the
period of the statement containing full and true particulars of all
such claims; and
(c) subject to receiving from the Owner particulars of payments made
by the Owner, include with each statement particulars as to what sums
of money have been paid and the dates on which such payments were paid
under each Trade Contract.
12.3.2 The Owner shall make timely payment as required under each Trade
Contract.
12.4 Contract Dispute Resolution
12.4.1 In the event that a party to a Trade Contract invokes any
dispute resolution provisions or notifies the Contractor or the Owner
of an intention to commence any dispute resolution proceedings, the
Party notified shall immediately notify the other Party.
12.4.2 In the event of any such notification the Party giving Notice
shall advise the other Party of the facts and circumstances of the
dispute known to the Party giving the Notice and endeavour as far as
reasonably possible to participate in and achieve on behalf of the
other Party a prompt settlement or other resolution of the dispute
subject to the directions of the Party who may ultimately be
responsible for the payment of any monies awarded in the dispute
resolution proceeding.
12.5 Owners Procurement Process
12.5.1 The Contractor shall procure all works and services in
accordance with the Owners internal process for obtaining financial
approval and Governmental Authority to place orders and contracts.
12.5.2 The Contractor shall prepare the following for all Trade
Contracts, including for the placing of orders for supply or
installation of equipment:
(a) full technical and scope specifications including:
(i) extent, presentation and timing of data to be submitted for
review;
(ii) procedures to be incorporated for outages. These shall be shown
as discrete activities on the Trade Contractors construction schedule
and on the Project Schedule;
(iii) inspection and test plans and acceptance requirements;
(iv) documentation to be submitted with each completed order;
(v) recommendations for spare parts;
(vi) assistance and advice with installation and Commissioning;
(vii) quality assurance requirements;
(viii) description of the work defining the extent of the activities
and responsibilities required of the supplier or contractor; and
(ix) technical requirements by way of drawings, specifications, and
data sheets;
(b) the terms and conditions of Trade Contracts;
(c) the purchase order letter; and
(d) any other documentation advised by the Owners Representative.
12.6 Comprehensive Procurement Strategy
12.6.1 The obligations of the Contractor under this GC 12 are in
addition to any other obligation required to be performed by the
Contractor under the Comprehensive Procurement Strategy.
13. TESTING, COMMISSIONING AND PERFORMANCE TESTING
13.1 Performance Testing and Performance Guarantees
13.1.1 From and after Industrial Completion, the Parties will cooperate
with each other to schedule and conduct all Performance Tests within a
reasonable period of time and in accordance with Appendix 5
Performance Guarantees, and to minimize disruption to commercial
operation of the Facility.
14. TIME
14.1 Risk of Delay and Disruption and Resultant Increased Costs
14.1.1 Subject to Appendix 6, and the Contractors entitlement to the
Hourly Remuneration and Eligible Disbursements, the Contractor will
have no entitlement to make any Claim for any costs, losses, damages or
liabilities incurred or suffered by the Contractor arising out of or in
any way in connection with delays or disruptions in the Project
Schedule (including for damages for breach of contract).
14.2 Extensions of Time
14.2.1 The Contractor is entitled to an extension of time to the Date
for Industrial Completion (and a Change Order or Change Directive in
respect thereof) if, and only if:
(a) the Contractor gives Notice to the Owners Representative:
(i) of the fact or likelihood of delay not later than fourteen (14)
days after the Contractor becomes (or, acting in accordance with the
standard of care set
out in GC 3.3.3 ought to have become) aware of the commencement of the
cause of the delay; and
(ii) provides details of the cause of delay and how, in the
reasonable opinion of the Contractor, Industrial Completion is likely
to be delayed;
(b) the Contractor gives the Owners Representative, within twenty-one
(21) days after the cessation of the cause of delay:
(i) a written claim for extension of time specifying the number of
days claimed;
(ii) details (to the extent known) of why the cause of the delay
actually caused the delay, including a statement of the facts and the
provisions of this Contract on which the claim is based;
(iii) detailed evidence in satisfaction of the requirements of GC
14.2.1(c); and
(iv) all other information reasonably required by the Owners
Representative;
(c) the Contractor reasonably satisfies the Owners Representative, in
the Contractors claim under GC 14.2.1(b)), that:
(i) Industrial Completion has actually been delayed, in a manner
which will prevent the Contractor from achieving Industrial Completion
by the Date for Industrial Completion;
(ii) the delay is demonstrable on an assessment of the critical path
on the network of the currently approved revision of the Project Plan
submitted pursuant to GC 7.4 or (where applicable) such Project Plan as
subsequently varied in accordance with a previous extension of time
pursuant to this GC 14.2;
(iii) the delay is caused or contributed to by one of the following,
but only to the extent of such cause or contribution:
(A) breach by the Owner of this Contract or any other act or omission
of the Owner or the Owners Representative, other than an act or omission
authorized by this Contract (other than a variation to the Services
referred to in GC 14.2.1(c)(iii)(B) or a suspension referred to in GC
14.2.1(c)(iii)(D);
(B) a variation to the Services directed under GC 15;
(C) an Event of Force Majeure;
(D) the suspension of the execution of the Services pursuant to a
written direction given under GC 16, unless that direction was given as
a result of a breach by the Contractor of its obligations under the
Contract; or
(E) subject to GC 14.3.2(a), anything else beyond the reasonable
control of the Contractor.
Without limitation, the times within which the Notice and the claim
shall be given under GC 14.2.1(a)(i) and GC 14.2.1(b) are conditions
precedent to any entitlement in the Contractor to an extension of time
which shall be strictly complied with.
14.3 Determination of Extension of Time Claims
14.3.1The Owners Representative shall, within a reasonable period of
time of receiving a claim under GC 14.2.1(b) that complies with GC
14.2.1(c), give the Contractor:
(a) Notice of the reasonable extension of time which is granted and
the new Date for Industrial Completion or Milestone Dates or both; or
(b) if no extension is given, Notice of that decision.
14.3.2 The Contractor will not be entitled to an extension of time to
the extent that:
(a) the delay has been caused or contributed to by the failure of the
Contractor to take all reasonable measures to preclude the occurrence or
minimise the extent and consequences of the delay, including such
measures as rescheduling, reprogramming, expediting and adjusting the
sequence of activities;
(b) the Contractor is delayed by any cause of delay not referred to
in GC 14.2.1(c)(iii), to the extent that the delay experienced exceeds
the extension to which the Contractor would be entitled under GC
14.2.1(c)(iii) had the other event not occurred; or
(c) subject to GC 14.3.2(b), the delay is caused by, arises out of or
contributed to by:
(i) an act or omission of the Contractor; or
(ii) any other event, fact, matter or circumstance not referred to in
GC 14.2.1(c)(iii).
15. CHANGES, CHANGE DIRECTIVES AND CHANGE ORDERS
15.1.1 The Owner may at any time authorize or direct a Change to the
Project or the Scope of Services (provided that that any Change to the
Scope of Services under this GC 15 shall be limited to engineering,
procurement, construction management, construction supervision,
Commissioning or other professional services which are consistent or
compatible with the warranties in GCs 3.3 and the representations in GC
25.1.1) by Change Order or Change Directive, as applicable. If the
Change requires the omission of any of the Services, the Owner may have
the omitted Services carried out by others.
15.1.2 If the Owner wishes to make a Change to the Facility or the
Scope of Services (or if the Contractor is entitled to a Change Order
pursuant and subject to GC 14), the Owners Representative shall discuss
same with the Contractors Representative in advance. The Contractor will
promptly when called for by the Owner provide the Owner with a draft
budget and scope of services for the proposed Change, details of the
requested extension of time to the Date for Industrial Completion, and
any other obligation of the Contractor under this Contract that is
necessarily affected by the proposed Change, all in such detail as the
Owner may require. If the Parties agree to the Change, they shall
execute a Change Order confirming the Change. If the Parties do not
reach agreement on all matters needed to document the Change by Change
Order, the Owner may direct the Change by issuing a Change Directive to
the Contractor. The Parties will, as soon as reasonably practicable,
thereafter, will attempt to reach agreement on the Change and convert
the Change Directive to a Change Order.
15.1.3 If the Contractor and Owner fail to agree on everything required
to convert the Change Directive to a Change Order, the Contractor shall
nevertheless promptly proceed with implementation and performance of
the Change Directive. If the Contractor is of the opinion that
implementing the Change Directive may impair its ability to meet the
Performance Guarantees, or impair its ability to earn the Performance
Incentives to which pursuant to Appendix 6 Compensation it may be
entitled to receive for meeting the Date for Industrial Completion or
the Approved Project Budget, or cause it to be in breach of any
Applicable Laws, requirements of Governmental Authorities or
requirements of any Permits, Licences and Approvals, or cause either
Party to be in breach of its obligations under GC 33.7 or any other
provision of this Contract, then the Contractor shall within seven (7)
days after receipt of the Change Directive give Notice to the Owner of
same, which shall then constitute a dispute to be resolved pursuant to
GC 29. Failure of the Contractor to provide Notice as aforesaid within
such seven (7) day period shall constitute acceptance by the Contractor
that the Change Directive does not impair its ability to meet the
Performance Guarantees, or cause it to be in breach of any Applicable
Laws, requirements of Governmental Authorities or requirements of any
Permits, Licences and Approvals, or cause either Party to be in breach
of its obligations under GC 33.7.
15.1.4 If the Contractor receives a Change Order or Change Directive,
it shall perform its obligations under this Contract in accordance with
the varied Scope of Services.
15.1.5 The Owner, at its discretion, in respect to any one or more
Change Orders or Change Directives may require the Contractor to record
and invoice all charges against one or more Change Orders or Change
Directives against separate, different project or reference
numbers. If so, the Contractor shall comply with such requirement,
provided that if compliance is not reasonably practicable, the
Contractor shall advise the Owner.
15.1.6 For any additional Services it is required to perform pursuant
to a Change Order or Change Directive, the Contractors only entitlement
for additional compensation is as determined in accordance with and
subject to Appendix 6 Compensation.
16. SUSPENSION
16.1 Notice to Suspend
16.1.1 The Owner may at any time give a written direction to the
Contractor to suspend the performance of all or any part of the
Services.
16.1.2 If the Contractor receives a direction from the Owner under GC
16.1.1, the Contractor shall immediately suspend the performance of
that part of the Services.
16.2 Resumption
16.2.1 The Owner may at any time give a written direction to the
Contractor to resume the performance of that part of the Services which
has been suspended.
16.2.2 If the Contractor receives a direction under GC 16.2.1 the
Contractor shall promptly resume the performance of that part of the
Services which has been suspended.
16.3 Compensation
16.3.1 Subject to GC 16.4.2, the Owner will pay the Contractor
compensation for the suspension of the Services on such basis as the
Parties may agree or, failing agreement, such reasonable cost as the
Owners Representative determines to compensate the Contractor for:
(a) keeping its personnel and subcontractors on standby (to the
extent stated in the Notice referred to in GC 16.1.1); and
(b) the mobilization and demobilisation of the Contractors personnel
and subcontractors, and equipment (if any).
16.4 Termination
16.4.1 Subject to GC 16.4.2, if a suspension of the performance of a
part of the Services which is the subject of a direction under GC
16.1.1 continues for more than six (6) months:
(a) the Contractor may give a Notice to the Owner requiring the Owner
to give a direction to the Contractor under GC 16.2.1 to resume
performance of that part of the Services; and
(b) if the Owner fails to give a direction to the Contractor under GC
16.2.1) within thirty (30) days of receiving the Contractors Notice
under GC 16.4.1(a), the Contractor:
(i) may terminate this Contract by giving seven (7) days Notice to
the Owner;
(ii) will be entitled to be paid in accordance with GC 16.3 for the
part of the Services performed in the relevant period up to the date of
termination or the date the Contractor ceased to perform the Services;
and
(iii) acknowledges and agrees that it is not entitled to make any
other Claim against the Owner except as otherwise provided in this
Contract.
16.4.2 If the Owner gives a direction under GC 16.1.1 as a result of a
breach by the Contractor of its obligations under this Contract, the
Contractor is not entitled to:
(a) terminate this Contract under GC 16.4.1(b)(i); or
(b) make any other Claim.
17. EVENTS OF FORCE MAJEURE
17.1 Events of Force Majeure
17.1.1 Subject to the provisions of GC 17.6, for purposes of this
Contract an Event of Force Majeure shall mean any circumstance
described in GC 17.2 that is not within the reasonable control,
directly or indirectly, of the Party affected, but only if and to the
extent that:
(a) such circumstance, despite the exercise of all reasonable due
diligence, cannot through the exercise of all due diligence be or be
caused to be prevented, avoided or removed by such Party;
(b) such circumstance adversely affects (in cost and/or time) the
ability of the Party affected to perform its obligations under the
Contract, and the Party affected has taken all reasonably practicable
precautions, due care and reasonable alternative measures in order to
avoid the effect of such circumstance on the Partys ability to perform
its obligations under the Contract (such reasonably practicable
precautions, due care and reasonable alternative measures to be no less
than the other Party would take in similar circumstances if they were to
its account);
(c) such circumstance is not the direct or indirect result of the
failure of the Party claiming force majeure to perform any of its
obligations under the Contract or is not the direct or indirect result
of the fault or negligence of such Party; and
(d) such Party has given the other Party Notice in accordance with GC
17.4.
Provided, however, that lack of financial capacity, inability of a
Party to pay, and an event that results from a lack of financial
capacity or inability of a Party to pay, shall not constitute an Event
of Force Majeure.
17.2 Instances of Force Majeure
17.2.1 Subject to the provisions of GC 17.1 and GC 17.6, the following
events that occur during the performance of the Services shall
constitute Events of Force Majeure:
(a) acts of war (whether war be declared or not), acts of the public
enemy, or acts of foreign enemies;
(b) public disorders, insurrection, rebellion, revolution, terrorist
acts, sabotage, riots or violent demonstrations or any other protests
against political actions;
(c) explosions, fires or floods not caused by or attributable to the
Contractor;
(d) floods, earthquakes or other natural calamities or acts of God;
(e) strike or lockout or other industrial labour action or disruption
(including unlawful but excluding lawful strikes or lockouts or other
industrial labour action or disruption by the Contractor's employees
against the Contractor that are limited in scope to the Contractor and
its employees) which have national, provincial, regional or state-wide
application, affect the performance of the Services, and last for more
than seven (7) consecutive calendar days in the aggregate;
(f) any action or failure to act within a reasonable time without
justifiable cause by any Governmental Authority (including any action
or failure to act within a reasonable time without justifiable cause by
any duly authorized agent of any such Governmental Authority), including
the denial of or delay in without justifiable cause the granting of any
land tenure, licences, other licences, consents, approvals, or rights,
including the Permits, Licences and Approvals upon due application and
diligent effort by the Party to obtain same, or the failure once
granted to remain without justifiable cause in full force and effect or
to be renewed on substantially similar terms;
(g) protests, environmental protest, and other civil disobedience or
disturbance;
(h) injunctions not caused by any breach of this Contract by the
Contractor; and
(i) any other event beyond the reasonable control of a Party,
provided that such event was not reasonably foreseeable and did not
result from any error, omission, negligence, neglect, or fault of the
Party or of anyone for whom the Party is responsible under the Contract.
17.3 Effect of Event of Force Majeure
17.3.1 Subject to GC 17.4 and GC 17.6, no failure or omission to carry
out or observe any of the terms, provisions, or conditions of the
Contract shall give rise to any claim by either Party against the other
Party, or be deemed to be a breach or default of the Contract provided
that Notice of the Event of Force Majeure is delivered within the time
limits specified in GC 17.4 by the Party claiming an Event of Force
Majeure.
17.3.2 Provided that a Party provides Notice of an Event of Force
Majeure in accordance with GC 17.4, the time for performing obligations
under the Contract will be extended for Force Majeure Days in accordance
with GC 14.2 and GC 14.3.
17.4 Notice of Event of Force Majeure
17.4.1 If either Partys ability to perform its obligations under the
Contract is affected by an Event of Force Majeure, such Party shall as
soon as reasonably possible (but in any event within seven (7) days)
following the date any Event of Force Majeure has been discovered or
would have by a reasonable person in the same position been discovered,
give Notice to the other Party stating such date and the nature of the
Event of Force Majeure, its expected duration and effect upon the
performance of such Partys obligations, and any action being taken to
avoid or minimize its effect. The burden of proof shall be on the Party
claiming an Event of Force Majeure pursuant to this GC 17.4.
17.5 Period of Suspension for and Mitigation of Event of Force Majeure
17.5.1 The suspension of performance due to an Event of Force Majeure
shall be of no greater scope and no longer duration than the delays
necessarily resulting from the effect of the Event of Force Majeure.
The affected Party:
When the affected Party is able to resume performance of its
obligations under the Contract, that Party shall give the other Party
Notice to that effect.
17.5.2 If there is an Event of Force Majeure involving any Vendor, then
the Contractor shall use reasonable efforts to determine whether it is
advisable to find alternate Vendors acceptable to the Owner without
materially increasing the cost or schedule, and shall provide its
recommendations to the Owner taking into account the overall Project
Schedule and Approved Project Budget.
17.5.3 The Contractor shall include in all Trade Contracts, including
with Vendors, reasonable provisions that mitigate the delay and
additional costs that will be incurred by the Owner if such Vendor or
other Trade Contractor claims an Event of Force Majeure under their
Trade Contract.
17.6 Certain Events Not to Comprise Events of Force Majeure
17.6.1 Notwithstanding anything to the contrary under any provision of
the Contract, and in particular and for clarity notwithstanding any
other provision of this GC 17, the following shall not constitute an
Event of Force Majeure and shall not excuse any obligations of either
Party that arose before the occurrence of an Event of Force Majeure
causing the suspension of performance:
(a) the obligation to pay money in a timely manner for obligations
and liabilities that matured prior to, during or after the occurrence
of an Event of Force Majeure;
(b) late delivery of equipment, materials, supplies, tools, or other
items caused by negligent or wilful acts or omissions on the part of
the Contractor or any of its subcontractors, except to the extent
resulting from damage or destruction of such equipment, materials,
supplies, tools or other items;
(c) late delivery of equipment, materials, supplies, tools, or other
items to the extent caused by the failure of the Contractor to properly
perform the Services in accordance with the requirements of the Contract;
(d) late performance by the Contractor caused by the Contractor's
failure to engage qualified personnel, subconsultants and
subcontractors, or to hire an adequate number of personnel or labour;
(e) submission by the Contractor of submittals for review by the
Owner at a time later than that indicated in the schedule for
submittals agreed to by the Contractor and Owner, unless such late
submission is itself caused by an Event of Force Majeure;
(f) delays resulting from adverse weather and other environmental
conditions which, based on all available historical records or on a
reasonable knowledge of the location of the Site, are consistent with
those which ought reasonably to have been anticipated for the Site;
(g) delays resulting from unsuitable surface, subsurface, ground, or
groundwater conditions which were known or should have been reasonably
anticipated by the Contractor or any other contractor with previous
experience working in or near the location of the Site; and
(h) equipment failure due to some fault, neglect or negligence of the
Contractor, including failure to adhere to or requiring Trade
Contractors to adhere to the manufacturer's recommendations in relation
to packing, shipping, unpacking, storing, installation, operation or
maintenance.
17.7 Contractor to Follow Owners Instructions
17.7.1 The Owner may, by Change Directive or Change Order, require the
Contractor to undertake those specific actions identified in the Change
Directive or Change Order as the Contractor can reasonably initiate to
remove or relieve either the Event of Force Majeure or its direct or
indirect effects on the Owner.
17.8 Contractor Responsible for Negligence
17.8.1 Damages or injuries to persons or properties resulting from an
Event of Force Majeure during the performance of the obligations
provided for in the Contract shall not relieve the Contractor of the
responsibility to bear the cost of the damage or injuries caused by the
Contractors negligence or misconduct to the extent such costs are not
covered by insurance procured by the Owner pursuant to Appendix 11
Insurance, but only to the extent that the Contractor would otherwise
have been liable for such damages or injuries under the Contract.
17.9 Costs Due to Events of Force Majeure
17.9.1 Each Party will be responsible for its own costs in relation to,
resulting from or arising out of an Event of Force Majeure.
17.9.2 If physical damage occurs due to an earthquake or a flood
(provided the flood or the flood damage is not caused by, attributable
to or increased by the actions or inactions of the Contractor) or any
other Event of Force Majeure, then the Owner will be responsible for
the payment of any deductibles under the insurance required to be
procured by the Owner pursuant to Appendix 11 Insurance.
17.9.3 Except as provided in GC 17.9.2, no additional compensation will
be paid by the Owner to the Contractor for the effect of or delay due to
an Event of Force Majeure.
17.10 Contractors Sole and Exclusive Remedy
17.10.1The Contractors sole and exclusive remedies for the occurrence
of an Event of Force Majeure shall be those set forth in GC 17.3, GC
17.5 and GC 17.9.
18. COMPENSATION
18.1 Owners Payment Obligations
18.1.1 The Owner will, subject to GC 18.14 and other provisions of the
Contract (including any other right to set off which the Owner may have
under the Contract), pay the Contractor in accordance with and subject
to the provisions of Appendix 6 Compensation and the Contract.
18.1.2 Notwithstanding any other provision of the Contract, in no event
shall the Contractor invoice for or be paid for time expended by its
Contract Personnel in the correction or re-
performance of any part of the Services required due to errors,
omissions, defects or deficiencies in the Services performed by the
Contractor and that appear prior to and during the expiry of the
warranty period(s) under the Contract applicable to the Services.
18.1.3 The Contractor shall ensure that accurate and detailed daily
time sheets are kept and maintained by all Contract Personnel,
indicating clearly the name of the person, the hours spent and a
reasonably descriptive narrative of the work performed, appropriately
coded to allow proper and accurate recording of Project costs and
verification by the Owner that the time was reasonable and expended on
the performance of the Services.
18.1.4 The compensation as specified in Appendix 6 Compensation shall
constitute the Contractors sole and exclusive entitlement to payment
from the Owner in respect of the performance of the Services.
18.2 Payment Advances by Owner
18.2.1 On or before the twenty-first day of each calendar month, or
such other time as may be mutually agreed, the Contractor shall submit
to the Owner in writing an estimate of the Fee, Hourly Remuneration and
Eligible Disbursements reasonably anticipated to be charged during the
succeeding calendar month, supported by such details as the Owner may
reasonably require to substantiate and verify the reasonableness of the
estimate. If the Owner disagrees with the amount of the estimate, the
Contractor and Owner shall promptly discuss the estimate and arrive at
an agreed amount for the estimate (the Payment Advance). On or before
the end of each month, the Owner shall transfer to the Contractors
trust account an amount equal to the agreed Payment Advance for the
next month, and advise the Contractor of the deposit by telephone,
email or facsimile by no later than noon on the last day of the month
(or on the next business day if the last day of the month is not a
business day).
18.2.2 The Payment Advance shall be held by the Contractor in a
separate trust account (the Trust Account) to secure payment of its
Fee, Hourly Remuneration and Eligible Disbursements incurred in the
month for which the Payment Advance is made. The Contractor is not
entitled to and shall not transfer any part of that Payment Advance
from the Trust Account to its own use and account until after such time
as it has received a payment statement from the Owner issued pursuant to
GC 18.8, and then only in the amount approved for payment by the Owner
in such payment statement.
18.2.3 If, at the end of any month, the payment statement for that
month differs from the Payment Advance made for the month, the
difference shall be reconciled and taken into account in determining
the amount of the Payment Advance for the next ensuing month.
18.3 Electronic Funds Transfer
18.3.1 The Owner will make payment to the Contractor by electronic
funds transfer into the Contractors bank account.
18.4 Time For and Format of Application for Payments
18.4.1 Subject to GC 18.10, the Contractor shall give the Owners
Representative an invoice for payment on account of the Fee, Hourly
Remuneration and Eligible Disbursements and any other amounts payable
by the Owner to the Contractor under the Contract (Application for
Payment):
(a) within fifteen (15) calendar days after the end of the month in
which the Services that are the subject of the Application for Payment
were rendered or expended, as applicable, and in the case of the
application for final payment within the period required by GC 18.11;
and
(b) in the format approved in writing by the Owners Representative
which shall as a minimum:
(i) set out the amounts that the Contractor asserts are payable to
the Contractor in accordance with the Contract;
(ii) detail the relevant period of the Services for the Application
for Payment;
(iii) describe in detail the part of the Services performed during
the relevant period for the Application for Payment;
(iv) set out amounts paid previously under the Contract;
(v) provide an individual reference number for the Owner to quote
with remittance of payment; and
(vi) include any other information directed by the Owners
Representative.
18.5 Additional Matters
18.5.1 In addition to the requirements of GC 18.4.1(b), the Contractor
shall, unless directed otherwise by the Owners Representative, include
in each Application for Payment:
(a) the price relating to the Services, broken down to reflect the
basis upon which the Fee is calculated:
(b) the name of the Project;
(c) the name of the Site; and
(d) the name of the Owners Representative.
18.5.2 The Owners Representative may, prior to the time it is required
to issue a payment statement under GC 18.9, request any additional
information from the Contractor in respect of its Application for
Payment.
18.6 Contractor Warranty
18.6.1 By making an Application for Payment, the Contractor represents
and warrants to the Owner that:
(a) the Contractor has performed the Services which are the subject
of the Application for Payment;
(b) the Contractor is not aware of any mistakes or omissions in the
Services that would require the Contractor to re-perform the Services
that are included in the Application for Payment;
(c) any remuneration and other amounts due and payable by the
Contractor to any of its employees by Applicable Laws or under an
industrial instrument in respect of the Services have been paid, except
holdbacks and amounts properly retained in accordance with Applicable
Laws or amounts that are the subject of a bona fide dispute;
(d) its subcontractors have been paid all amounts due and payable to
them for work or services performed or material supplied by them in
respect of the work or services which were the subject of the
Application for Payment and which are included in the Application for
Payment or any previous Application for Payment, except holdbacks and
amounts properly retained in accordance with Applicable Laws or amounts
that are the subject of a bona fide dispute; and
(e) subject to any Claims that may have arisen within the fourteen
(14) day period prior to the Payment claim, the Contractor is not aware
of any Claim against the Owner which is not identified in the
Application for Payment or in an earlier Application for Payment or
Notice of which has not been previously given to the Owner.
18.7 Incomplete Application for Payments
18.7.1 Should any Application for Payment (including any Application
for Payment submitted under GC 18.7.2) not contain the information
required under GC 18.4.1(b) and GC 18.5, the Owners Representative may:
(a) complete the missing details and assess the Application for
Payment in accordance with GC 18.8; or
(b) return the incomplete Application for Payment to the Contractor
and notify the Contractor that GC 18.7.2 applies.
18.7.2 Where the Owners Representative returns an incomplete
Application for Payment to the Contractor, the Contractor shall submit
a Application for Payment that complies with GC 18.4.1(b) and GC 18.5
within the time notified by the Owners Representative or, where no time
is notified, within forty-eight (48) hours.
18.8 Payment Statement
18.8.1 Within ten (10) business days of receipt of:
(a) a Application for Payment under GC 18.4.1(a);
(b) the information described in GC 18.5.1; and
(c) any additional information requested by the Owner's
Representative pursuant to GC 18.5.2;
the Owners Representative will give the Contractor on behalf of the
Owner a payment statement which states:
(d) the value of the work carried out by the Contractor in accordance
with this Contract as at the date of the Application for Payment;
(e) the amount already paid to the Contractor;
(f) the amount the Owner is entitled to retain, deduct, withhold or
set off under the Contract;
(g) the amount (if any) which the Owners Representative believes to
be then payable by the Owner to the Contractor on account of the
Contract and otherwise under this Contract and which the Owner proposes
to pay to the Contractor; and
(h) if the amount in GC 18.8.1(g) is less than the amount claimed in
the Application for Payment:
(i) the reason why the amount in GC 18.8.1(g) is less than the amount
claimed in the Application for Payment; and
(ii) if the reason for the difference is that the Owner has retained,
deducted, withheld or set off payment for any reason, the reason for the
retention, deduction, withholding or setting off.
18.8.2 The Owners Representative may issue a further payment statement
correcting any error discovered in any previous payment statement or
modifying any previous payment statement issued by it, including but
not limited to, as a result of information received from the Contractor
pursuant to GC 18.5.
18.8.3 If the Contractor fails to make an Application for Payment in
accordance with the Contract, the Owners Representative may
nevertheless issue a payment statement under GC 18.9.1.
18.9 Payment
18.9.1 Subject to GC 18.10 and GC 18.13, within thirty (30) days after
the end of the month in which a payment statement is issued pursuant to
GC 18.8, the Owner will pay to the Contractor or the Contractor shall
pay to the Owner, as the case may be, the amount shown in the payment
statement as due to the Contractor or to the Owner as the case may be.
18.9.2 A payment made pursuant to the Contract:
(a) will not prejudice the right of either Party to dispute whether
the paid amount is the amount properly due and payable;
(b) will not be evidence of the value of the Services;
(c) will not be evidence that the Services has been executed
satisfactorily; and
(d) will not be an admission of liability on the part of the Owner.
18.10 Conditions Precedent to Entitlement to Payment
18.10.1After the Date of Contract, if at the time that the Contractor
submits a Application for Payment under GC 18.4, the Contractor has not:
(a) [Intentionally deleted];
(b) effected the insurance required by GC 23.1 and (if requested)
provided evidence of this to the Owners Representative, or allowed such
insurance to lapse;
(c) paid all subcontractors as required under GC 18.6.1(d);
(d) in the case of a Final Application for Payment, submitted a duly
executed Form of Release as required under GC 18.11.1(b); and
(e) complied with all directions given by the Owners Representative
under a provision of the Contract, then:
(i) the Contractor will not be entitled to payment of;
(ii) the Owners Representative will not be obliged to include in any
payment statement under GC 18.8; and
(iii) the Owner will not be liable to pay, any amount included in the
Application for Payment.
18.11 Final Application for Payment
18.11.1Within two (2) months after the earlier of the date all
Performance Guarantees have been met or satisfied and the date the
Owner delivers Notice to the Contractor that its Services are no longer
required, and in any event on or before Final Acceptance, the Contractor
shall deliver to the Owners Representative:
(a) a final payment claim under GC 18.8 entitled 'Final Application
for Payment'; and
(b) a duly executed release that conforms to the form specified in
Appendix 14 - Form of Release and General Waiver of Claims.
18.11.2The Contractor shall include in the Final Application for
Payment:
(a) a complete statement of accounts, including any changes to the
Scope of Services;
(b) all money that the Contractor considers to be due from the Owner
arising out of or in connection with the Services, this Contract or any
alleged breach of contract;
(c) confirmation that all Documentation, approvals of all Authorities
and deliverables as required by this Contract have been lodged with the
Owners Representative; and
(d) a certificate stating that all wages (excluding bonuses to
personnel which are not yet payable) and other charges have been paid
and that no monies are due or owing by the Contractor to any Contract
Personnel other than any Contract Personnel disclosed in the
certificate.
18.11.3The Contractor shall provide with the Form of Release (as
required by GC 18.11.1) details of how the amount claimed (Amount
Claimed) is calculated including:
(a) separate identification of each claim and the amount of each
claim which is part of the Amount Claimed;
(b) which clause, if any, of this Contract the Contractor relies upon
to support an entitlement to each claim;
(c) if based on breach of Contract -what obligation, if any, the
Owner has breached and which the Contractor relies upon to support an
entitlement to each claim; and
(d) a description of the other acts, defaults and omissions that the
Contractor relies upon to support any entitlement to a claim.
18.11.4After expiration of the two (2) month period in GC 18.11.1, any
Claim which the Contractor could have made against the Owner but which
has not been made in the Final Application for Payment, whether or not
a Final Application for Payment is delivered, is barred.
18.11.5Notwithstanding any other provision of section 18.11, the
provisions of section 18.11 do not apply to any claim by the Contractor
in respect of Excluded Taxes.
18.12 Interest on Overdue Payments
18.12.1If any money due to either Party remains unpaid after the date
on which the money should have been paid, then the Party responsible
for the payment shall, following a written request by the other Party
for payment of interest, pay to the other Party simple interest on the
unpaid amount from, but not including the date on which the money was
due at the Prime Rate.
18.12.2The Contractors entitlement to interest, if any, under GC
18.13.1(a) will be the Contractors sole entitlement to interest
including damages for loss of use of, or the cost of borrowing, money.
18.13 Set off
18.13.1The Owner may set off or deduct from any payments due to the
Contractor:
(a) any debt or other moneys due from the Contractor to the Owner
under this Contract; and/or
(b) any debt or other moneys due from any parent, subsidiary or
affiliate of the Contractor to any parent, subsidiary or affiliate of
the Owner; and/or
(c) any money or any claim to money that the Owner may have against
the Contractor, whether for Damages (including Liquidated damages and
the Owner's reasonable estimate of its entitlement to damages for
breach of contract) or otherwise, which are due or which will become
due under this Contract,
except in respect of amounts which are the subject of bona fide active
claims against an insurer provided that such claims are being pursued
diligently.
18.14 Owners Payment of Subcontractors
18.14.1If the Contractor owes any subcontractor of the Contractor money
in connection with the Services, and
(a) that money has been outstanding under the relevant subcontract
for more than fourteen (14) days; and
(b) the Contractor cannot satisfy the Owners Representative that
there is a valid reason for that outstanding money not having been paid,
the Owner may pay the subcontractor the outstanding amount and the
outstanding amount so paid will be a debt due and immediately payable
from the Contractor to the Owner.
18.14.2No debt by the Owner will be taken to have accrued in favour of
the Contractor in respect of any payment by the Owner of an outstanding
amount in accordance with GC 18.14.1.
18.14.3The Owner is entitled to withhold from any payment which would
otherwise be due to the Contractor under the Contract any amount owing
to a subcontractor by the Contractor under GC 18.14.1, and if such
amount owing to a subcontractor is not disputed may make payment
directly to the subcontractor (in which case such payment shall be
deemed authorized by a direction to pay from the Contractor to the
Owner).
18.15 Property and Liens
18.15.1The Contractor shall not (insofar as is permitted by Applicable
Laws) allow or permit any employee or subcontractor to assert any right
to a construction, builders, mechanics, unpaid vendors or other lien for
unpaid work or services over the Site or Project (or part thereof) or
take any steps whatsoever to lodge or register a lien over the Site or
Project (or part thereof) under, or in pursuance of, any Applicable
Laws, and the Contractor shall promptly vacate, discharge or otherwise
cause such lien to be removed and discharged from title which may be
registered by such person.
18.16 Taxes
18.16.1The Contractor is and remains liable for payment of any Taxes
connected to the Services, save and except Taxes related to the Owners
operations or income. If any Tax is imposed, the Contractor shall pay
the full amount to the relevant Governmental Authority and shall
indemnify the Owner against any failure to do so. If any exemptions,
reductions, allowances, rebates or other privileges in relation to
Taxes (other than Taxes imposed on the Contractors income or
non-Project operations of the Contractor) may be available to the
Contractor or the Owner, the Contractor shall adjust any payments due
to reflect any such savings or refunds (including interest awarded) to
the maximum allowable extent.
18.16.2Amounts payable determined in accordance with Appendix 6
Compensation include all Taxes prevailing at the Date of Contract, save
and except the Excluded Taxes.
18.16.3The Owner is responsible for payment of the Excluded Taxes to
the extent that the Owner or Contractor are liable and responsible for
payment of the Excluded Taxes. The Contractor may include in any
Application for Payment (as defined in GC 18.4) the amount of any
Excluded Taxes in respect of the amounts claimed in the Application for
Payment or any previous Application for Payment, and shall include with
such Application for Payment such documentation as the Owner may
reasonably require to demonstrate and verify to the Owners satisfaction
the proper amount of the Excluded Taxes that is due in respect of the
performance of the Services.
18.16.4Except for Excluded Taxes, if any rate of Tax is increased or
decreased or a new Tax is introduced or an existing Tax is abolished or
any change in interpretation or application of any Tax occurs in the
course of performance of the Contract, an adjustment will be made to
the Amounts payable determined in accordance with Appendix 6
Compensation to reflect any such change regardless of whether this
results in the Amounts payable determined in accordance with Appendix
6 Compensation increasing or decreasing.
18.16.5The Owner may deduct from the whole or part of payments due to
the Contractor any Taxes which the Owner is required to withhold or
deduct by any Governmental Authority.
19. MITIGATION
19.1 General Duty to Mitigate
19.1.1 Without limiting but in addition to all other duties to mitigate
required by the Contract, in all cases where either Party is entitled to
receive from the other Party any additional compensation, damages or
extensions of time, including for or resulting from Change Orders,
Change Directives if applicable, suspensions of some or all parts of
the Services, or termination of some or all parts of the Services, that
Party shall use both all reasonable efforts and all due diligence to
mitigate and reduce the amount required under the Contract to be paid
by the other Party or the amount of the extension of the Date for
Industrial Completion. Notwithstanding any other provision of the
Contract, that Party shall not receive those parts of any costs
incurred by that Party or those parts of any additional compensation or
extensions of time, including for Change Orders, Change Directives or
otherwise, that such Party could have reasonably mitigated against,
reduced or otherwise avoided by the exercise of both all reasonable
efforts and all due diligence as required in accordance with the
foregoing. In the foregoing, references to all reasonable efforts and
to exercise of all due diligence shall be construed to be no less than
those that would be exerted by any reasonable corporation in comparable
circumstances where it was solely at risk and responsible for all such
costs and delays without any reimbursement from anyone else. Upon
request from the other Party, the Party claiming relief shall promptly
submit a detailed description, supported by all reasonable
documentation, of the measures and steps taken by the entitled Party to
mitigate and meet the aforesaid obligations.
20. ASSIGNMENT
20.1 Assignment by Contractor
20.1.1 Subject to GC 20.1.2, it is expressly understood that the
Contract is personal to the Contractor and that the Contractor shall
have no right, power, or authority to assign or delegate the Contract
or any portion thereof, or any part of the Services, either voluntarily
or involuntarily, or by operation of law, including by way of
subcontracting or other delegation, to an affiliate. The Contractors
attempted assignment or delegation of the Contract or any portion
thereof or any of part of the Services in contravention of this GC
20.1.1 shall be null and void and shall be ineffective to relieve the
Contractor of its responsibility to perform its obligations hereunder.
20.1.2 The Contractor may, with the prior written approval of the Owner
not to be unreasonably withheld, which approval may be subject to the
Contractor first demonstrating to the Owner that all of the Contractors
Key Personnel as identified in the Contract will transfer to the
assignee and, after the assignment, continue to perform the Services in
their same positions and with their same authorities as they had prior
to the assignment, assign all or part of its right, title, and interest
in the Contract to any parent, subsidiary or affiliated company of the
Contractor, provided that:
(a) the Contractor shall then remain jointly and severally liable
with the assignee for all obligations and liabilities of the Contractor
hereunder;
(b) the Owner may at its sole option have recourse against either or
both the assignee and the Contractor for any and all obligations or
liabilities of the Contractor; and
(c) there is no adverse affect on the validity or enforceability of
any Parent Company Guarantee previously delivered by or on behalf of
the Contractor to the Owner under the Contract, and that the Parent
Company Guarantee remain valid and enforceable by the Owner in
accordance with the provisions of the Parent Company Guarantee.
20.2 Assignment by Owner to Affiliates and Third Parties
20.2.1 The Owner may, with the prior written approval of the Contractor
not to be unreasonably withheld, assign all or part of its right, title,
and interest in the Contract to any parent, subsidiary or affiliated
company, partnership or joint venture of the Owner which is the
transferee or assignee of substantially all of the right, title and
interest of the Owner in the Project, and in the same capacity as the
Owner, provided that all outstanding amounts properly due and owing to
the Contractor at that time have been paid and that such parent,
subsidiary or affiliated company, partnership or joint venture of the
Owner reasonably demonstrates that it is able to meet the payment
obligations of the Owner hereunder.
20.2.2 The Owner may assign all or part of its right, title, and
interest in the Contract to any other third party with the prior
written approval of the Contractor, which consent will not be withheld
provided that all outstanding amounts properly due and owing to the
Contractor at that time have been paid and that such third party
reasonably demonstrates that it is able to meet the payment obligations
of the Owner hereunder.
20.3 Assignment by Owner to Financing Entities and Realization of
Security by Financing Entities
20.3.1 Without the prior consent of the Contractor, the Owner may
assign all or part of its right, title, and interest in the Contract to
any Financing Entity. The Contractor shall execute and deliver to the
Owner a consent to and acknowledgement of assignment in a form
reasonably acceptable to the Financing Entities, to be effective only
when all outstanding amounts properly due and owing to the Contractor
at that time have been paid. Any Financing Entity may, in connection
with any default under any financing document related to the Project,
assign any rights assigned to it hereunder to any third party which is
the transferee or assignee of substantially all of the right, title and
interest of the Owner in the Project, and in the same capacity as the
Owner, provided that all outstanding amounts properly due and owing to
the Contractor at that time have been paid and that such third party
reasonably demonstrates that it is able to meet the payment obligations
of the Owner hereunder. The Contractor shall execute and deliver to the
Financing Entities a consent to and acknowledgement of assignment in a
form reasonably acceptable to such transferee or assignee. The
Contractor shall do all things and execute all documents and provide
all further assurances reasonably required by Owner or Financing
Entities to give effect to the foregoing, provided that such Financing
Entities, insurers and any other persons referred to in GC 21.1.2 shall
provide reasonable written assurances that under no circumstances shall
any Financing Entity or transferee or assignee thereof have any greater
or additional rights or remedies against the Contractor than the Owner
has.
20.3.2 The Contractor agrees that, upon receipt of Notice of such
assignment after such a default and pursuant to GC 20.3.1, it shall
deliver all documents, data, notices, and other communications
otherwise required to be delivered to the Owner hereunder to the
Financing Entities or their assignee at such address as they shall
designate to the Contractor in writing.
20.3.3 The Owner acknowledges and agrees that, upon receipt of Notice
of such assignment after such a default pursuant to GC 20.3.1, the
Contractor shall be entitled to comply with such Notice in accordance
with its terms, and shall have no duty to enquire as to the right of
the Financing Entity to provide such Notice, notwithstanding any Notice
or objection given by the Owner, or any other fact, circumstance, or
event.
20.3.4 The Contractor agrees that in the event the Financing Entities
foreclose on the Owners interests hereunder (or if the Contract should
be assigned to the Financing Entities in lieu of foreclosure), the
Financing Entities or any purchaser at such foreclosure proceeding
shall be entitled to succeed to the Owners interests hereunder on the
same conditions as provided hereunder, and provided such Financing
Entities or purchaser continues to perform the Owners obligations under
this Contract and such succession shall not constitute a breach of any
provision of this Contract prohibiting subletting or assignment or of
any other provision of the Contract. If the Financing Entities should
acquire this Contract by foreclosure, an assignment in lieu of
foreclosure or otherwise, the Contractor agrees that the Financing
Entities may (provided that, as a pre-condition, any defaults by
the Owner in its payment and indemnity obligations hereunder are cured)
and on substantially the same terms as set out in GC 20.3.1, assign or
sublet the Contract to an assignee who is financially reliable and who
agrees to perform the Owners obligations hereunder. In the event of any
such assignment by the Financing Entities, the Financing Entities shall
have no further obligations under the Contract and the assignee shall
be entitled to the benefit of all of the provisions of the Contract.
20.3.5 On termination of this Contract prior to the stated expiration
of the term hereof for any reason whatsoever, including default, the
Contractor shall enter into a new agreement with the Financing Entities
with the highest lending priority immediately prior to the termination
of this Contract if the Financing Entities (i) give notice of request
for such a new agreement within thirty (30) days after termination of
this Contract; (ii) pay all costs incurred by the Contractor as a
result of default and/or termination; and (iii) remedy all defaults as
though this Contract had not been terminated. The new agreement shall
be for the remainder of the term hereof, effective at the date of
termination upon the same terms and conditions provided herein.
21. COOPERATION WITH FINANCING ENTITIES AND INSURERS
21.1.1 It is understood that the Owner intends to and will procure from
Financing Entities project financing or other financing arrangements
suitable to the Owner to complete the Project. The Contractor
acknowledges that procurement of project financing from Financing
Entities is essential for the Project to proceed and, accordingly, the
Contractor agrees to and shall cooperate fully with, and act reasonably
in any dealings with, any Financing Entities to the Project and, without
limiting the generality of the foregoing, the Contractor agrees to and
shall:
(a) use its reasonable best efforts to assist the Owner in its
dealings with any Financing Entities to the Project, including
participation in oral and written presentations to prospective
Financing Entities, conditional upon receipt by the Contractor of
reasonable written waivers of extra-contractual liability from such
Financing Entities;
(b) not unreasonably withhold its consent to any amendments to the
Contract that may be required by the Financing Entities as a condition
of their providing financing to the Project which do not change the
substance of the agreement evidenced hereby; and
(c) following procurement of financing from the Financing Entities,
cooperate with the Owner in its dealings with the Financing Entities.
21.1.2 The Contractor acknowledges and agrees that the Owner may be
required to provide to the Financing Entities and any and all insurers,
and their respective representatives, the right to review, inspect,
audit and monitor the performance of the Services and the Work, the
Site, any item of equipment (including equipment under fabrication),
materials, supplies, tools, other items, design, engineering, service,
or workmanship to be provided
hereunder and the Facility, and to observe all tests, Performance Tests
and all other aspects of the Facility as and to the same extent as the
Owner has such rights hereunder. The Contractor shall allow all of them
reasonable access during normal working hours to its offices, the Site,
the Work (including equipment under fabrication) and the Project, and
to the Contractors technical details pertaining thereto, as reasonably
requested by any of the Owner, Financing Entities and insurers. The
Contractor shall incorporate such rights of review, inspection, audit
and monitoring in all equipment purchase orders and Trade Contracts.
21.1.3 The Contractor will include provisions in all Trade Contracts
that allow representatives of the Financing Entities and insurers to
inspect, review and monitor the progress of the Trade Contracts and
conformance with the requirements of this Contract and the applicable
Trade Contracts.
22. SECURITY
22.1 Delivery and Form of Security from Owner
22.1.1 Within seven (7) days after the Date of Contract, the Owner
shall deliver to the Contractor:
(a) a guarantee of all payment obligations of the Owner hereunder,
conforming to the form of such guarantee in Appendix 19 Payment
Guarantee, executed and delivered by Gold Reserve Inc. in favour of the
Contractor; and
(b) a certificate from an officer of Gold Reserve Inc. verifying and
confirming that the guarantee has been duly authorized, executed and
delivered, conforming to the form of such certificate in Appendix 19
Payment Guarantee.
23. INSURANCE
23.1 Owner Provided Insurance
23.1.1 The Owner shall provide the Insurance as set out in Appendix
11-1 Insurance by Owner.
23.2 Contractor Provided Insurance
23.2.1 The Contractor shall provide the Insurance as set out in
Appendix 11-2 Insurance by Contractor.
24. CONTRACTORS REPORTING AND RELATED OBLIGATIONS
24.1.1 In addition to any other reporting obligations imposed on the
Contractor under this Contract, the Contractor, at a minimum, shall:
(a) within fifteen (15) calendar days after the end of each month
give a written report (in a form approved by the Owners Representative)
to the Owners Representative setting out:
(i) if applicable, details of the progress of tendering for the Trade
Contracts;
(ii) the progress of the Project against the Project Plan and the
effect on the Project Plan of any change to the Project, including a
curve showing cumulative actual and forecasted cashflow (including
costs for any changes to Project) against time;
(iii) details of any activities which are behind the progress
anticipated in the Project Plan;
(iv) any foreseen delays to future activities on the Project Plan;
(v) the likely effect on the Project Plan of any actual or foreseen
delay;
(vi) current claims for changes and extensions of time by Trade
Contractors under the various Trade Contracts, including details of
dates submitted, dates approved and any other details the Owners
Representative requires;
(vii) the status of all activities on which work is being undertaken;
(viii) details of all consultants and other subcontractors currently
employed or proposed to be employed by the Contractor for the purposes
of the Services;
(ix) evidence of compliance with the quality assurance requirements
of this Contract;
(x) industrial relations issues affecting (or which may affect) the
performance of the Project;
(xi) evidence of compliance with the Safety and Health Plan and
safety statistics;
(xii) strategies implemented or proposed to overcome problems,
including corrective action statements for catching up lost time or
avoiding potential delays;
(xiii) the total amount of Trade Costs payable to Trade Contractors
under any Trade Contracts awarded to date; and
(xiv) any other matter reasonably required by the Owners
Representative;
(b) give the Owners Representative, on request and within a reasonable
time:
(i) any information the Contractor has in its possession in
connection with the performance of the Project, provided that the
Contractor shall not be obliged to provide any information which is
privileged or which might reasonably be expected to void any insurance
coverage;
(ii) any report on any specific issue in connection with the
performance of the Project; and
(iii) any other periodic report (including Project cost reports, and
subcontractor reports), which the Owners Representative reasonably
requires;
(c) promptly report all incidents and accidents to the Owners site
safety representative using the Owners standard forms;
(d) advise the Owners Representative (in writing if the Owners
Representative directs) of suitable courses of action in relation to
matters raised in Project Control Group meetings; and
(e) establish and maintain any records which the Owners
Representative reasonably requires.
25. REPRESENTATIONS
25.1.1 The Contractor represents to the Owner:
(a) it is duly incorporated and validly exists under the law of its
place of incorporation;
(b) it has full legal capacity and power:
(i) to own its property and assets and to carry on its business; and
(ii) to enter into this Contract and to perform its obligations under
this Contract;
(c) it has taken all corporate action that is necessary to authorize
its entry into this Contract and to perform its obligations under this
Contract;
(d) this Contract constitutes a legal, valid and binding obligation
of it enforceable in accordance with its terms by appropriate legal
remedy;
(e) neither its execution of this Contract nor the carrying out of
its obligations under this Contract, does or will:
(i) contravene any Applicable Laws to which it or any of its property
is subject or any order of any Governmental Authority or other person
that is binding on it or any of its property;
(ii) contravene any undertaking or instrument binding on it or any of
its property; or
(iii) contravene its constitution or other constating documents;
(f) no litigation, arbitration, mediation, conciliation or
administrative proceedings are taking place, pending or threatened
against it which if adversely decided could, in the reasonable opinion
of the Contractor's management, have a material adverse effect on the
Contractor's business, assets or financial condition or its ability to
perform its obligations under this Contract;
(g) no receiver or receiver and manager is currently appointed in
relation to any of its property;
(h) it has familiarized itself with local conditions at the Site and
all Applicable Laws;
(i) its Contract Personnel will not enter the Site without having
first familiarized themselves to the extent necessary with local
conditions and Applicable Laws;
(j) it has inspected the Site and its surroundings, but has not
conducted detailed investigations at Site;
(k) subject to its obligations to comply with Applicable Laws, it
will not intentionally or wilfully damage the name or reputation of the
Owner or wrongfully invite adverse public criticism of the Owner; and
(l) any factual information given or representation made to the Owner
or to the Owner's Representative in connection with the Project is (to
the best of the Contractor's knowledge) accurate and current at the
time given and is not intentionally misleading or deceptive in any
respect, and any expressions of opinion represents the Contractor's
honest, good faith opinion at the time the expression is made or given.
25.1.2 The representations contained in GC 25.1.1(a) to GC 25.1.1(e)
and in GC 25.1.1(k) and GC 25.1.1(l) will be treated as made and be
binding upon the Contractor continuously during the term of this
Contract.
25.1.3 The Owner represents to the Contractor:
(a) it is duly incorporated and validly exists under the law of its
place of incorporation;
(b) it has full legal capacity and power:
(i) to own its property and assets and to carry on its business; and
(ii) to enter into this Contract and to perform its obligations under
this Contract;
(c) it has taken all corporate action that is necessary to authorize
its entry into this Contract and to perform its obligations under this
Contract;
(d) this Contract constitutes a legal, valid and binding obligation
of it enforceable in accordance with its terms by appropriate legal
remedy;
(e) neither its execution of this Contract nor the carrying out of
its obligations under this Contract, does or will:
(i) contravene any Applicable Laws to which it or any of its property
is subject or any order of any Governmental Authority or other person
that is binding on it or any of its property;
(ii) contravene any undertaking or instrument binding on it or any of
its property; or
(iii) contravene its constitution or other constating documents;
(f) no litigation, arbitration, mediation, conciliation or
administrative proceedings are taking place, pending or threatened
against it which if adversely decided could, in the reasonable opinion
of the Owner's management, have a material adverse effect on the
Owner's business, assets or financial condition or its ability to
perform its obligations under this Contract;
(g) no receiver or receiver and manager is currently appointed in
relation to any of its property;
(h) subject to its obligations to comply with Applicable Laws, it
will not intentionally or wilfully damage the name or reputation of the
Contractor or wrongfully invite adverse public criticism of the
Contractor; and
(i) any factual information given or representation made to the
Contractor or to the Contractor's Representative in connection with the
Project is (to the best of the Owner's knowledge) accurate and current
at the time given and is not intentionally misleading or deceptive in
any respect, and any expressions of opinion represents the Owner's
honest, good faith opinion at the time the expression is made or given.
25.1.4 The representations contained in GC 25.1.3(a) to GC 25.1.3(e)
and in GC 25.1.3(h) and GC 25.1.3(i) will be treated as made and be
binding upon the Owner continuously during the term of this Contract.
26. DEFAULT AND TERMINATION
26.1 Default by Owner
26.1.1 If the Contractor considers that the Owner:
(a) is in breach of or default under this Contract (provided that any
failure to comply with any schedule or deadline requirement shall not
comprise a default except where such schedule or deadline is in regard
to a requirement to make payment hereunder to the Contractor); or
(b) has breached a representation or warranty which it has given to
the Contractor under this Contract, including a representation made
under GC 25.1.3,
the Owner may give the Contractor a Notice:
(c) specifying the alleged breach of or default under this Contract;
(d) specifying a reasonable time and date by which the Owner shall
rectify the breach or default (or overcome their effects); and
(e) requiring the Owner to show cause in writing why the Contractor
should not exercise its rights under GC 26.2.
26.1.2 If the Contractor gives the Owner a Notice referred to in GC
26.1.1, the Owner shall:
(a) comply with the Notice and give the Contractor a program to
rectify the relevant default or remedy the breach (or overcome their
effects) in accordance with the terms of the Contractors Notice; or
(b) notify the Contractor in writing that the Contractor disputes the
notice, with a concise statement of the grounds for the dispute.
26.1.3 If the Owner fails to rectify a default or remedy a breach (or
overcome their effects) in accordance with the terms of a Notice
referred to in GC 26.1.1:
(a) the Contractor may take any action it considers appropriate to:
(i) rectify that default; or
(ii) remedy that breach; and
(b) the Owner shall pay to the Contractor, as part of the Services,
any incremental costs incurred by the Contractor to rectify or remedy
the default or breach (including reasonable costs paid to third
parties), except to the extent such default or breach arises from the
negligence or wilful default of the Contractor.
26.2 Termination by Contractor Following Default by Owner
26.2.1 Subject to GC 26.3, the Contractor may terminate this Contract,
with immediate effect, by Notice to the Owner after it has previously
given the Owner a Notice under GC 26.1.1 and the Owner has not complied
with that Notice.
26.2.2 If the Contractor terminates this Contract pursuant to GC
26.2.1, then the Contractor shall:
(a) not be obliged to continue to perform any Services after the
effective date of such termination; and
(b) be paid for all parts of the Services completed to the effective
date of such termination.
26.3 Rights of Financing Entities on Default by Owner
26.3.1 If there shall occur and be continuing a default by the Owner of
its obligations under the Contract, or if an event occurs which with the
lapse of time or giving of notice, or both, would be a default of the
Owner under the Contract (a Default) entitling the Contractor to
terminate the Contract, prior to exercising its right to terminate the
Contract the Contractor shall first give the Financing Entities written
notice of such Default or event, by registered or certified mail, return
receipt requested, at the address last notified in writing by the Owner
for such notices. If the Owner fails to cure such Default, the
Contractor shall afford the Financing Entities a reasonable opportunity
to cure any Default by the Owner including any damages due to delay
resulting from the Financing Entities extended opportunity to cure.
26.4 Default by Contractor
26.4.1 If the Owner considers that the Contractor:
(a) is in breach of or default under this Contract (provided that any
failure to comply with any schedule or deadline requirement shall not
comprise a default except to the extent caused or contributed to by a
failure of the Contractor to diligently prosecute the Services or by
the breach of a material provision of the Contract); or
(b) has breached a representation or warranty which it has given to
the Owner under this Contract, including a representation made under GC
25.1.1,
the Owner may give the Contractor a Notice:
(c) specifying the alleged breach of or default under this Contract;
(d) specifying a reasonable time and date by which the Contractor
shall rectify the breach or default (or overcome their effects); and
(e) requiring the Contractor to show cause in writing why the Owner
should not exercise its rights under GC 26.5.
26.4.2 If the Owner gives the Contractor a Notice referred to in GC
26.4.1, the Contractor shall:
26.4.3 If the Contractor fails to rectify a default or remedy a breach
(or overcome their effects) in accordance with the terms of a Notice
referred to in GC 26.4.1:
(a) the Owner may take any action it considers appropriate, including
carrying out or having a third party carry out the part of the Services
which is the subject of the default, to:
(i) rectify that default; or
(ii) remedy that breach; and
(b) the Contractor shall (subject to the limit of liability set out
in GC 28.1) indemnify the Owner against any incremental costs incurred
by the Owner to rectify or remedy the default or breach (including
reasonable costs paid to third parties), in which case the cost
incurred by the Owner will be a debt due and payable from the
Contractor to the Owner, except to the extent such damage, cost, loss
or liability arises from the negligence or wilful default of the Owner.
26.5 Termination by Owner Following Default by Contractor
26.5.1 The Owner may terminate this Contract, with immediate effect, by
Notice to the Contractor after it has previously given the Contractor a
Notice under GC 26.4 and the Contractor has not complied with that
Notice.
26.6 Termination for Insolvency of a Party
26.6.1 Subject only to Applicable Laws governing bankruptcy and
creditors that by such Applicable Laws postpone a Partys rights to
terminate, either Party may terminate this Contract, with immediate
effect, by Notice to the other Party if:
(a) the other Party becomes (or informs any of the first Party,
creditors of the other Party generally, or any particular creditor of
the other Party that it is) insolvent or unable to pay its debts as and
when they fall due;
(b) a liquidator or provisional liquidator is appointed in respect of
the other Party;
(c) a receiver or receiver and manager or an analogous person is
appointed to the other Party or any of its property;
(d) the other Party has a mortgagee seeking to exercise a right of
possession or control over the whole or a part of its property;
(e) the other Party enters into, or calls a meeting of its members or
creditors with a view to entering into, a composition, compromise or
arrangement with, or an assignment for the benefit of, any of its
members or creditors, or a Court orders that a meeting be convened in
respect of a proposed composition, compromise or arrangement between
the other Party and its creditors or any class of its creditors, other
than for the purpose of restructuring or amalgamation;
(f) the other Party has any execution, writ of execution, mareva
injunction or similar order, attachment or other process made, levied
or issued against it or in relation to any of its assets;
(g) any application is made or other process commenced (not being an
application or process withdrawn, discontinued or dismissed within
seven (7) days of being filed) seeking an order for the appointment of
a provisional liquidator, a liquidator, a receiver or a receiver and
manager to the other Party;
(h) the other Party is declared bankrupt or has filed for some form
of protection from its creditors under Applicable Laws relating to or
governing bankruptcy;
(i) there is a resolution of creditors or members, or an order of a
court, to place in liquidation or bankruptcy and/or wind up the other
Party; or
(j) an event happens analogous to an event specified in this GC
26.6.1(a) to GC 26.6.1(i) to which the law of another jurisdiction
applies and the event has an effect in that jurisdiction similar to the
effect which the event would have had if the law of Canada applied.
26.7 Termination for Events of Force Majeure
26.7.1 Either Party may terminate this Contract by giving Notice to the
other Party if an Event of Force Majeure continues for a period of six
(6) months after a Notice is given under GC 17.4 in respect of that
Event of Force Majeure.
26.7.2 If this Contract is terminated pursuant to GC 26.7.1:
(a) the Owner (without prejudice to any other rights or remedies it
has) will pay the Contractor in accordance with GC 18.1 after receipt
of a written claim for payment:
(i) the portion of the Fee due to the Contractor for the Services
performed in the relevant period up to the date of termination; and
(ii) the relevant portion of the Fee allocated for demobilisation
costs; and
(b) the Contractor is not entitled to any other Claim for any
consequential costs, losses or damages.
26.8 Termination by Owner for Convenience
26.8.1 Despite any other provision of this Contract:
(a) the Owner may at its sole discretion and for any reason,
including convenience of the Owner and without any fault or default on
the part of the Contractor, terminate this Contract effective
immediately upon giving Notice to the Contractor or at a future date
specified in the Notice; and
(b) subject to the Contractor complying with its professional
obligations in the practice of professional engineering and as required
to protect Persons and property from damage, the Contractor shall cease
the performance of the Services immediately upon receiving that Notice
or upon any later date specified in that Notice.
26.8.2 If for any reason a purported termination under GC 26.5, GC 26.6
or GC 26.7 by the Owner is held to be ineffective, the purported
termination is not a breach or repudiation of this Contract and is
deemed to have been effected under GC 26.8.1.
26.8.3 If this Contract is terminated pursuant to GC 26.8.1:
(a) the Owner (without prejudice to any other rights or remedies it
has) will pay the Contractor in accordance with GC 18.1, after receipt
of a written claim for payment, the portion of the Fee due to the
Contractor for the Services performed in the relevant period up to the
date of termination plus demobilisation costs and other costs the
Contractor reasonably incurs (and provides satisfactory evidence for)
in terminating the Services; and
(b) the Contractor is not entitled to make any other Claim for any
consequential costs, losses or damages.
26.9 Termination by Owner of Contract
26.9.1 If the Owner terminates this Contract pursuant to GC 26.5, GC
26.6, GC 26.7 or GC 26.8, then:
(a) the Owner may engage and pay other persons to perform the
Services. Such other persons may enter the Site and use all Goods
necessary to perform the Services, and the Contractor shall provide to
such other persons full and free access to the Site and Goods for that
purpose;
(b) as and when required by the Owner by Notice to the Contractor
(and not before), the Contractor shall remove from the Site any other
property of or in the possession or control of the Contractor within
one (1) month of receiving such Notice. If the Contractor fails to do
so, the Owner may remove and/or dispose of any such other property as
it sees fit. The Owner may credit to the Contractors account, (or to
the Owners account), an amount equal to the proceeds from any sale
(less any disposal costs incurred by the Owner);
(c) the Contractor shall, if so required by the Owner within fourteen
(14) days after the date of termination, use all reasonable efforts to
assign or novate to the Owner without payment the benefit of any
agreements for the maintenance, manufacture and/or supply (including
supply by way of lease, hire purchase, or other right to use
arrangement) of constructional plant used to perform the Services or
Goods and the performance of any part of the Services; and
(d) the Contractor shall deliver to the Owner within fourteen (14)
days after the date of termination:
(i) all the Owner Documentation;
(ii) all Contract Material; and
(iii) anything recording, containing, setting out, or making
reference to the Services or the Project, save that the Contractor may
keep one copy of such documentation and material in accordance with the
confidentiality obligations of this Contract.
26.9.2 If the Owner terminates this Contract pursuant to GC 26.5 or GC
26.6, the Owner may, without limiting any other rights it may have to
pay suppliers and manufacturers:
(a) pay any manufacturer or supplier for any constructional plant
delivered or work performed for the purpose of this Contract (whether
before or after the date of termination) which has not already been
paid for by the Contractor; and
(b) deduct amounts equal to any such payments from any moneys due to
the Contractor from time to time.
26.10 Recovery of Loss
26.10.1If the Owner terminates this Contract pursuant to GC 26.5 or GC
26.6, or if the Contractor repudiates the Contract and the Owner
otherwise terminates the Contract, then the Owner shall:
(a) not be obliged to make any further payments to the Contractor
except for any money that is the subject of a Application for Payment
under GC 18.4 or a payment statement under GC 18.8; and
(b) subject to GC 28.1, be entitled to recover from the Contractor
any costs, losses, damages or liability incurred or suffered or
suffered by it as a result of, or arising out of, or in any way in
connection with, such termination.
26.11 Preservation of Other Rights
26.11.1If the Contractor:
(a) is in breach of or is in default under this Contract; or
(b) breaches a warranty which it gives the Owner under this Contract,
nothing in this GC 26 shall, subject to 28.1, prejudice the right of the
Owner to exercise any other right it may have under this Contract or at
law or equity.
27. INDEMNITIES
27.1 Indemnity by EPC Contractor
27.1.1 Subject to GC 27.1.2, the Contractor shall indemnify and save
harmless the Owner and its directors, officers, employees, agents,
contractors, subcontractors, representatives and affiliates, and each
of them, and defend any and all of them at their request, from and
against any and all claims, costs, damages, expenses, losses, fines,
taxes, contributions, severance payments, demands and other liabilities
which they may suffer or incur, and also from and against any action,
suit, claim, demand or proceeding of any nature that may be brought
against them (including legal fees and disbursements on a full
indemnity basis incurred by them in defending such action, suit, claim,
demand or proceeding):
(a) in respect of an infringement of any patent or intellectual
property rights of others used or specified by the Contractor; or
(b) in respect of:
(i) loss of, or damage to, any real or personal property;
(ii) the personal injury to, or disease or illness (including mental
illness) affecting, or death of, any person; or
(iii) any environmental impairment or Contamination resulting from
sudden and accidental spills or Contamination,
arising out of or in connection with the following (including, without
limitation, during the correction or re-performance of non-compliant
Services, or the rectification of any defect, deficiency or
non-conformance in respect of the Services, or the fulfilling of any
warranties under the Contract):
(iv) any negligent act or omission of the Contractor or the Contract
Personnel;
(v) any failure by the Contractor to observe or perform its
obligations under this Contract or any breach by the Contractor of this
Contract; or
(vi) the breach of, or failure to comply with, any Applicable Laws or
the requirements of any Permits, Licences and Approvals by the
Contractor or the Contract Personnel.
27.1.2 The Contractors liability under GC 27.1.1 of this Contract will
be reduced proportionately to the extent that the cost, damage,
expense, loss or other liability or claim was caused by a negligent act
or omission of the Owner or those for whom the Owner is responsible
under the Contract.
27.1.3 For the purposes of GC 27.1.1, the Owner will be deemed to be
acting as agent or trustee on behalf of or for the benefit of all
persons who are or might be its directors, officers, employees, agents,
contractors, subcontractors, representatives or affiliates from time to
time, as well as on its own behalf.
27.2 Indemnity by Owner
27.2.1 Subject to GC 27.2.2, the Owner shall indemnify and save
harmless the Contractor and its directors, officers, employees, agents,
contractors, subcontractors, representatives and affiliates, and each of
them, and defend any and all of them at their request, from and against
any and all claims, costs, damages, expenses, losses, fines, taxes,
contributions, severance payments, demands and other liabilities which
they may suffer or incur, and also from and against any action, suit,
claim, demand or proceeding of any nature that may be brought against
them (including legal fees and disbursements on a full indemnity basis
incurred by them in defending such action, suit, claim, demand or
proceeding):
(a) in respect of an infringement of any patent or intellectual
property rights of others specified by the Owner; or
(b) in respect of:
(i) loss of, or damage to, any real or personal property;
(ii) the personal injury to, or disease or illness (including mental
illness) affecting, or death of, any person; or
(iii) any environmental impairment or Contamination (except sudden
and accidental spills or Contamination for which the Contractor is
responsible to indemnify the Owner under GC 27.1),
arising out of or in connection with:
(iv) any negligent act or omission of the Owner;
(v) any failure by the Owner to observe or perform its obligations
under this Contract or any breach by the Owner of this Contract; or
(vi) the breach of, or failure to comply with, any Applicable Laws or
the requirements of any Permits, Licences and Approvals by the Owner.
27.2.2 The Owners liability under GC 27.2.1 of this Contract will be
reduced proportionately to the extent that the cost, damage, expense,
loss or other liability or claim was caused by a negligent act or
omission of the Contractor or those for whom the Contractor is
responsible under the Contract.
27.2.3 For the purposes of GC 27.1.1, the Contractor will be deemed to
be acting as agent or trustee on behalf of or for the benefit of all
persons who are or might be its directors, officers, employees, agents,
contractors, subcontractors, representatives or affiliates from time to
time, as well as on its own behalf.
28. LIMITATION OF LIABILITY
28.1 Limitation of Contractor Liability
28.1.1 Subject to GC 28.1.2 and GC 28.1.3, the maximum liability of the
Contractor to the Owner hereunder or in any way connected to the
Services or the Contractors performance of the Services shall not
exceed the following:
(a) For that part of any claim under GC 27.1 (excluding liabilities
to third parties for personal injury, wrongful death, or damage or
destruction to property) for which any insurance is available to
indemnify the Contractor, or for which any insurance would have been
available to indemnify the Contractor if the Contractor had fulfilled
its obligations under this Contract and procured the insurance
specified in Appendix 11 Insurance to be procured by the Contractor,
then the greater of:
(i) applicable limits specified in the Contract for the relevant
insurance required to be procured by the Contractor pursuant to the
Contract; and
(ii) the amount of insurance proceeds actually available to indemnify
the Contractor for such claims under any of the policies of insurance
specified in Appendix 11 Insurance and procured by or on behalf of the
Owner or the Contractor specifically for the purpose of this Project.
Provided, however, that if prior claims are made against the Contractor
during the relevant policy period and if such prior claims actually
reduce the limits otherwise available under the policy of insurance,
then the applicable limits referred to in GC 28.1.1(a)(i) shall be
construed to mean the available limits remaining under the policy.
(b) For all other claims, the maximum amount of liability specified
in Appendix 6 Compensation.
For clarity, it is agreed that the purpose of the foregoing is that the
Owner shall be entitled to receive, directly or indirectly, the benefit
of all insurance procured by or on behalf of the Owner or the
Contractor specifically for the purpose of this Project and available
to indemnify the Contractor for and against claims made by the Owner
against the Contractor.
28.1.2 For purposes of GC 28.1.1, if insurance proceeds are not
available to indemnify the Contractor or the Owner because of the
Contractors failure, by its negligence or by its breach of its
obligations hereunder, to procure the insurance required by this
Contract to be procured by the Contractor, or because the Contractor
breached the terms and conditions of the Owners or Contractors policy
of insurance (provided that in respect of Owners insurance, this shall
be limited to terms and conditions known to the Contractor prior to the
date of the occurrence giving rise to the claim, and generally in
conformance with standard terms and conditions available on reasonable
terms for similar insurance policies, and brought to the attention of
the Contractor prior to the breach complained of), then the provisions
of GC 28.1.1 shall be interpreted and construed as if the policies of
insurance specified by this Contract were in full force and effect, in
which case the amount of the limitations of liability specified in of
GC 28.1.1 shall apply whether or not insurance is available to
indemnify the Contractor.
28.1.3 Notwithstanding GC 28.1.2 or any other provision of the
Contract, any limitations of liability in favour of the Contractor
specified in the Contract shall not apply to or limit the Contractors
responsibility and liability to the Owner for the following:
(a) any damage and expense suffered by the Owner arising or resulting
from the gross negligence, recklessness or wilful or intentional
misconduct on the part of the senior management of the Contractor or
the Key Personnel;
(b) liability of the Owner arising or resulting from the breach by
the Contractor of the intellectual property rights, including in
respect of copyright and patent rights, of third parties;
(c) liability of the Owner to third parties, including Governmental
Authorities, arising or resulting from the Contractor acting as agent
for the Owner to the extent that such liability arises out of the
Contractor acting outside the scope of its authority to act as the
Owner's agent hereunder; and
(d) the Contractor's liability (if any) to Governmental Authorities
for breach by the Contractor of any Applicable Laws, including for any
liabilities imposed under Applicable Laws in relation to workers
employed by or through the Contractor for the performance of the
Services.
28.1.4 The liabilities of the Contractor hereunder shall be exclusive
of the liability of the Contractors related and affiliated companies,
subconsultants and agents, and their respective officers directors, and
employees in respect of the matters contemplated herein.
28.2 Limitation of Owner Liability
28.2.1 Subject to GC 28.2.2 and GC 28.2.3, the maximum liability of the
Owner to the Contractor hereunder or in any way connected to the
Services or the Contractors performance of the Services (except for
compensation payable under Appendix 6
Compensation for Services rendered) shall not exceed the following:
(a) For that part of any claim under GC 27.2 (excluding liabilities
to third parties for personal injury, wrongful death, or damage or
destruction to property) for which any insurance is available to
indemnify the Owner, or for which any insurance would have been
available to indemnify the Owner if the Owner had fulfilled its
obligations under this Contract and procured the insurance specified in
Appendix 11 Insurance to be procured by the Owner, then the greater of:
(i) applicable limits specified in the Contract for the relevant
insurance required to be procured by the Owner pursuant to the
Contract; and
(ii) the amount of insurance proceeds actually available to indemnify
the Owner for such claims under any of the policies of insurance
specified in Appendix 11 Insurance and procured by or on behalf of the
Owner or the Contractor specifically for the purpose of this Project.
Provided, however, that if prior claims are made against the Owner
during the relevant policy period and if such prior claims actually
reduce the limits otherwise available under the policy of insurance,
then the applicable limits referred to in GC 28.2.1(a)(i) shall be
construed to mean the available limits remaining under the policy.
(b) For all other claims, an amount equal to the amount calculated
pursuant to GC 28.1.1(b).
For clarity, it is agreed that the purpose of the foregoing is that the
Contractor shall be entitled to receive, directly or indirectly, the
benefit of all insurance procured by or on behalf of the Owner or the
Contractor specifically for the purpose of this Project and available
to indemnify the Owner for and against claims made by the Contractor
against the Owner.
28.2.2 For purposes of GC 28.2.1, if insurance proceeds are not
available to indemnify the Owner or the Contractor because of the
Owners failure, by its negligence or by its breach of its obligations
hereunder, to procure the insurance required by this Contract to be
procured by the Owner, or because the Owner breached the terms and
conditions of the Owners or Contractors policy of insurance (provided
that in respect of Owners insurance, this shall be limited to terms and
conditions known to the Contractor prior to the date of the occurrence
giving rise to the claim, and generally in conformance with standard
terms and conditions available on reasonable terms for similar
insurance policies, and brought to the attention of the Contractor
prior to the breach complained of), then the provisions of GC 28.2.1
shall be interpreted and construed as if the policies of insurance
specified by this Contract were in full force and effect, in which case
the amount of the limitations of liability specified in of GC 28.2.1
shall apply whether or not insurance is available to indemnify the
Contractor.
28.2.3 Notwithstanding GC 28.2.2 or any other provision of the
Contract, any limitations of liability in favour of the Owner specified
in the Contract shall not apply to or limit the Owners responsibility
and liability to the Contractor for the following:
(a) any damage and expense suffered by the Contractor arising or
resulting from the gross negligence, recklessness or wilful or
intentional misconduct on the part of the senior management of the
Owner or its senior management personnel;
(b) liability of the Contractor arising or resulting from the breach
by the Owner of the intellectual property rights, including in respect
of copyright and patent rights, of third parties, to the extent that
such breach by the Owner is not caused by or attributable to the
Contractor or the performance of the Services; and
(c) the Owner's liability (if any) to Governmental Authorities for
breach by the Owner of any Applicable Laws, including for any
liabilities imposed under Applicable Laws in relation to workers
employed by or through the Owner for the performance of the Services,
to the extent that such breach by the Owner is not caused by or
attributable to the Contractor or the performance of the Services.
28.2.4 Subject to any and all other express written agreements and
guarantees (including the payment guarantee delivered pursuant to GC
22.1) the liabilities of the Owner hereunder shall be exclusive of the
liability of the Owners related and affiliated companies, contractors,
consultants, and agents, and their respective officers directors, and
employees in respect of the matters contemplated herein.
28.3 Application of Limitations of Liability
28.3.1 All limitations of liability provided for in this Contract
shall: apply solely as between Owner and Contractor; survive any
termination of this Contract for any reason; and shall apply whether a
claim in respect thereof is framed in contract, tort (including
negligence), product liability, by statute, or under any other legal
theory.
28.4 Exclusion of Consequential Damages
28.4.1 Except to the extent forbidden or prohibited by Applicable Laws,
neither Party shall be liable to the other for lost or delayed profits,
income, revenues or production, or for damages for increased costs of
construction, business or operations, or for other indirect or
consequential damages (collectively and individually all of the
foregoing referred to herein as Consequential Damages), whether such
claim for Consequential Damages is founded in contract, tort (including
negligence), by statute, or by any other provision of law, provided
however that the aforesaid exclusion of Consequential Damages shall not
limit, operate or apply to the following:
(a) an express right hereunder of a Party to claim and recover
Liquidated Damages from the other Party; and
(b) Consequential Damages for which the Contractor is, but for the
aforesaid exclusion of Consequential Damages, entitled to be
indemnified by an insurer under an insurance policy required by
Appendix 11 Insurance (other than under the Project E&O Policy, if
any, as defined in Section 2 of Appendix 11-2), such that the intent of
the aforesaid exclusion of Consequential Damages is that it shall only
operate to the extent that the Contractors liability for such
Consequential Damages is an uninsured liability, such that if the
Contractors liability for Consequential Damages is insured by a policy
of insurance other than the EP E&O Policy then the Owner shall obtain
the benefit of the proceeds of any such insurance that may be payable
but for the aforesaid exclusion of Consequential Damages.
28.5 Exclusion of Warranties of Performance of the Project
28.5.1 Save and except express performance guarantees and warranties of
performance of the Project that may be set out in Appendix 5
Performance Guarantees or Appendix 6
Compensation, the Contractor does not guarantee the performance
characteristics or production from the completed Project. The
Contractor shall, however, in consultation with the Owner use all
reasonable efforts to obtain performance guarantees from each of the
Trade Contractors to the extent practicable and economic for the scope
of work of the Trade Contractors.
29. DISPUTE RESOLUTION
29.1 General
29.1.1 All disputes, controversies, or claims arising out of or
relating to any provision of this Contract or the interpretation,
enforceability, performance, breach, termination, or validity hereof,
including, without limitation, this GC 29 (collectively and
individually referred to herein as a Dispute) shall be resolved in
accordance with the provisions of this GC 29.
29.2 Resolution by Owners Representative
29.2.1 Decisions of the Owners Representative under the Contract will
be final and binding on both Parties unless, within fourteen (14) days
after the Owners Representative making a determination in writing under
the Contract, either Party provides Notice to the other, and to the
Owners Representative, disputing such decision. Such Notice shall
identify the determination which is disputed, the reasons for
disagreeing with the determination of the Owners Representative and
summarizing the essential elements of the Partys position in relation
to the determination, including the position which the Party believes
is correct and the relevant facts and provisions of the Contract
supporting its position.
29.2.2 If either Party files Notice of dispute of a determination by
the Owners Representative pursuant to GC 29.2.1, then neither Party
will be bound by the determination and the Dispute shall be resolved
pursuant to GC 29.3.
29.3 Resolution by Negotiations
29.3.1 Any Dispute that cannot be resolved:
(a) by the Owner's Representative pursuant to GC 29.2; or
(b) between the Owner's Representative and the Contractor's Project
Manager within fourteen (14) days thereafter
shall be referred, by Notice signed by the Owners Representative and
the Contractors Project Manager, or signed by either one of them, to
the chief executive officer (or his designate) of the Contractor and
the chief executive officer (or his designate) of the Owner for
resolution. The designate of the chief executive officer in all cases
shall be a senior executive of the Party who is, in the management
hierarchy of that Party, in a management position senior to that of the
Project Manager and the Project Sponsor in the case of the Contractor,
and to that of the Owners Representative in the case of the Owner. If
the Parties, negotiating in good faith, fail to reach an agreement
within a reasonable period of time, not exceeding thirty (30) days or,
in the case of Disputes over payment, fourteen (14) days after such
referral, then the Dispute shall be submitted to mediation in
accordance with GC 29.4.
29.4 Resolution by Mediation
29.4.1 Any Dispute that cannot be resolved pursuant to GC 29.2 or GC
29.3 shall, unless the Parties expressly agree to proceed directly to
arbitration in accordance with GC 29.5, be referred to mediation under
the rules of the British Columbia International Commercial Arbitration
Centre (BCICAC). Mediation shall take place between the Owners chief
executive officer, as the representative of the Owner, and the chief
executive officer of the Contractor, as the representative of the
Contractor. They shall each make themselves available at such times and
such places for mediation as the mediator in his or her sole discretion
may decide. Each Party shall bear its own costs of the mediation
together with one-half of both the mediators costs and the charges of
the BCICAC in respect to the mediation.
29.4.2 If mediation does not resolve the dispute between the Parties
within sixty (60) days after the appointment of the mediator, either
Party may commence arbitration proceedings in accordance with GC 29.5,
but only if the Party seeking to commence such proceeding has
first obtained from the mediator written confirmation that it has made
itself reasonably available and has made reasonable good faith efforts
to resolve the dispute through mediation. To the extent allowed at law,
neither the subject matter of the mediation nor any records, notes or
other documents that were specifically produced only for use in, or
created during, the mediation shall be admissible or referred to in any
subsequent arbitration or litigation proceeding.
29.5 Resolution by Arbitration
29.5.1 Any Dispute that cannot be resolved pursuant to GC 29.2, GC 29.3
or GC 29.4 shall be referred to and finally resolved by arbitration
under the rules of the BCICAC for domestic commercial arbitrations and
(a) before a three (3) person arbitration tribunal if the total of
all amounts in dispute exceed $1,000,000; and
(b) before a single arbitrator if the total of all amounts in dispute
is less than $1,000,000.
The award of the arbitrator(s) shall be final and binding upon both
Parties.
29.5.2 Notice of demand for arbitration shall be filed with the other
Party and with the BCICAC. Any demand for arbitration shall be made
within the time beyond which legal or equitable proceedings based on
such Dispute would be barred by any Applicable Laws.
29.5.3 The appointing authority shall be the BCICAC.
29.5.4 The case shall be administered by the BCICAC in accordance with
its Procedures for Cases under the BCICAC Rules.
29.5.5 In case of arbitration before a single arbitrator, the Parties
shall agree on the arbitrator or, failing agreement, the arbitrator
will be appointed in accordance with the rules of the BCICAC.
29.5.6 In case of arbitration before a three-person panel, each Party
shall have the right to designate an arbitrator of its choice, who need
not be from the BCICACs panel of arbitrators but who shall be
independent of and not act as an advocate for either Party. Such
designation shall be made by Notice to the other Party and to the
Association within the time limits specified in the BCICAC rules. The
arbitrators designated by the Parties shall designate a third
arbitrator, who shall have a background and experience in both
arbitrations and legal or judicial matters, within the time period
prescribed in the rules of the BCICAC. If the two (2) arbitrators
cannot or do not select a third independent arbitrator within such
period, either Party may apply to the BCICAC for the purpose of
appointing any person listed with the BCICAC as the third independent
arbitrator whether or not that person has the requisite technical
qualifications and experience.
29.5.7 No one shall be nominated or appointed to act as an arbitrator
who is in any way financially interested in the performance of the
Services or the Project or in the business affairs of either the Owner,
the Contractor, or any consultant, subconsultant or subcontractor of any
of them.
29.5.8 Subject to GC 29.5.6, unless the Parties otherwise agree in
writing, every arbitrator shall be knowledgeable and experienced in the
design and construction of mine process plants comparable to the Project.
29.5.9 The arbitrator(s) shall have the power to amend or vary the
rules of the BCICAC, including rules relating to time limits, by
agreement of the Parties or, failing agreement, as the arbitrator(s)
consider appropriate and necessary in the circumstances.
29.5.10Unless the Parties otherwise agree in writing, the place of
arbitration shall be Vancouver, British Columbia, Canada. The place of
the arbitration hearings shall be in such location as the Parties and
arbitrator(s) may agree or, failing unanimous agreement, in Vancouver,
British Columbia.
29.5.11The Parties agree that, notwithstanding the rules of the BCICAC,
the arbitrators in any arbitration shall apply the law of the Province
of Ontario as the governing law applicable to this Contract.
29.5.12This agreement to arbitrate shall be specifically enforceable.
29.5.13Any award rendered by the arbitrators shall be final, and
judgment may be entered upon it in accordance with Applicable Law in
any court having jurisdiction thereof.
29.5.14Unless the Parties otherwise agree, all arbitral proceedings
will be consolidated into a single arbitration to be held after the
Notice of Provisional Acceptance has been issued.
29.5.15The Parties shall proceed with the arbitration expeditiously and
shall conclude all proceedings thereunder, including any hearing, in
order that a decision may be rendered as soon as practicably possible,
given the nature and magnitude of the dispute.
29.5.16If it is determined, either by agreement of the Parties or
through arbitration, that:
(a) the Contractor has received payment from the Owner in excess of
that to which the Contractor is entitled under the Contract, the
Contractor shall promptly refund the amount of such excess payment
together with interest thereon at the Prime Rate in effect from time to
time plus two percent (2%) per annum, from the day following the date of
such payment until the date of full refund to the Owner; and
(b) the Contractor has not received payment from the Owner of an
amount that was due when it was due, the Owner shall pay or cause to be
paid to the Contractor within thirty (30) days after the final
arbitration award is made such withheld amount together with interest
thereon at the Prime Rate in effect from time to time plus two percent
(2%) per annum, from the day following the date on which such payment
is determined to have been unduly withheld (as so determined) until the
date of payment in full to the Contractor.
29.5.17Compliance with the requirements of this GC 29.5 in respect of a
Dispute is a condition precedent to commencement of litigation in
respect of that Dispute.
29.6 Consolidation of Arbitrations
29.6.1 If the Owner (or any corporate affiliate of the Owner) is or
becomes involved in any arbitration proceeding with any corporate
affiliate of the Contractor , all such arbitrations shall be
consolidated or joined with the other arbitration or arbitrations such
that all disputes between the Owner (or any corporate affiliate of the
Owner) and either or both the Contractor and any corporate affiliate of
the Contractor, be resolved by a single arbitral tribunal.
29.7 Dispute Resolution Not to Delay Performance
29.7.1 Unless otherwise agreed in writing, the Contractor shall
diligently continue to perform the Services during the pendency of any
Disputes or arbitration proceedings so long as all amounts payable to
the Contractor hereunder have been paid which are not subject to a
dispute by the Owner in good faith, for reasons stated in writing with
reasonable particularity.
30. MEDIA RELEASES AND CONFIDENTIALITY
30.1 Media Release
30.1.1 The Contractor shall not advertise or issue any information,
publication, document or article (including photographs or film) for
publication or media releases or other publicity relating to the
Project, this Contract or the Owners business and activities without
the prior written approval of the Owner except as may be required by
Applicable Laws.
30.1.2 The Contractor shall refer to the Owner any enquiries from the
media concerning the Project, this Contract or the Owners business and
activities.
30.2 Confidentiality
30.2.1 The Contractor shall not, and shall ensure that the Contract
Personnel do not, without the prior written approval of the Owner:
(a) use Confidential Information other than as necessary for the
performance of the Services; or
(b) disclose Confidential Information, other than to the extent
required by a court of law, government department or regulatory
Governmental Authority having jurisdiction over the Contractor or
pursuant to any Applicable Laws. The Contractor shall promptly notify
in writing the Owner of any requirement to use or disclose Confidential
Information.
30.2.2 The Contractor shall, within seven (7) days of a written
direction by the Owners Representative to do so, return or destroy all
Confidential Information in the Contractors possession, custody or
control, save that the Contractor may keep one copy of the Confidential
Information in accordance with the confidentiality obligations of this
Contract.
31. NOTICES AND COMMUNICATIONS
31.1 Method of Notice
31.1.1 Any Notice pursuant to the terms and conditions of this Contract
shall be in writing and
(a) delivered personally, (b) sent by a recognized express mail or
courier service, with delivery receipt requested, or (c) sent by
confirmed facsimile transmission with telephonic confirmation, to the
addresses of the Owners Representative and the Contractor in the
Agreement.
31.2 Effectiveness of Notices
31.2.1 Any Notice given under the Contract shall be considered as
having been made if mailed by registered prepaid mail, actually
delivered, or sent by fax to the recipient at either the addresses or
fax numbers stated in the Contract or any substitute address of which
the Party sending the Notice has had prior Notice as provided for in
the Contract. Any such Notice shall be deemed to have been given at the
time it is delivered by hand, or if mailed as aforesaid then within four
(4) calendar days after the date of mailing if mailed in Canada and
seven (7) days after the date of mailing if mailed outside of Canada,
or if sent by fax then on the date it is transmitted prior to 4:00 p.m.
at the place of receipt, otherwise on the morning of the following day.
31.2.2 To be effective, Notices and all formal communications under the
Contract shall be in writing and mailed, delivered or transmitted by
facsimile transmission, and shall be signed by an authorized
representative of the Party.
31.2.3 Although the Parties may use E-mails for day to day
communications, E-mails shall not be used for and shall not constitute
Notices under the Contract where the Contract expressly requires that a
Notice be given, including for Claims, Application for Payments, Events
of Force Majeure, and termination.
31.2.4 Verbal communications shall not constitute formal communication
or Notice under the Contract and neither Party has any obligation to
act on any verbal communication or instruction unless and until it is
confirmed in writing. Any action taken by a Party based on verbal
communications, instructions or assurances shall be at that Partys sole
risk and shall be without liability to or recourse against the other
Party.
31.3 Change of Address
31.3.1 A Party may, from time to time, give Notice to the other Party
of any change to its address.
32. NOTIFICATION OF CLAIMS
32.1 Notices of Claims
32.1.1 Except for Claims for:
(a) payment under GC 18 of the original Fee specified in the
Contract; or
(b) a variation to the Scope of Services instructed in accordance
with GC 15,
the Contractor shall give the Owners Representative the Notices
required by GC 32.2 if it wishes to make a Claim against the Owner in
respect of any direction by the Owners Representative (including a
Claim that the direction is a variation to the Scope of Services under
GC 15 notwithstanding that it may not have been expressly described as
such) or any other fact, matter or thing (including a breach of the
Contract by the Owner) under, arising out of, or in any way in
connection with, the Project or the Contract, including anything in
respect of which:
(c) it is otherwise given an express entitlement under the Contract;
or
(d) the Contract expressly provides that:
(i) specified costs are to be added to the Fee; or
(ii) the Fee will be otherwise increased or adjusted, as determined
by the Owners Representative.
32.2 Prescribed Notices
32.2.1 The Notices referred to in GC 32.1 are:
(a) a Notice within fourteen (14) days of the first occurrence of the
direction or other fact, matter or thing upon which the Claim is based,
expressly specifying:
(i) that the Contractor proposes to make a Claim; and
(ii) the direction or other fact, matter or thing upon which the
Claim will be based; and
(b) a written Claim within twenty-one (21) days of giving the Notice
under GC 32.2.1(a), which shall include:
(i) detailed particulars concerning the direction or other fact,
matter or thing upon which the Claim is based;
(ii) the legal basis for the Claim, whether based on a term of the
Contract or otherwise, and if based on a term of the Contract, clearly
identifying the specific term;
(iii) the facts relied upon in support of the Claim in sufficient
detail to permit verification; and
(iv) details of the amount claimed and how it has been calculated.
32.3 Continuing Events
32.3.1 If the direction or fact, matter or thing upon which the Claim
under GC 32.1 is based or the consequences of the direction or fact,
matter or thing are continuing, the Contractor shall continue to give
the information required by GC 32.2.1(b) every twenty-eight (28) days
after the written Claim under GC 32.2.1(b) (as the case may be) was
required to be given to the Owners Representative, until after the
direction or fact, matter or thing upon which the Claim is based, has,
or the consequences thereof have, ceased.
32.4 Time Bar
32.4.1 If the Contractor fails to comply with GC 32.1, GC 32.2 or GC
32.3:
(a) the Owner will not be liable (insofar as it is possible to
exclude such liability) upon any Claim by the Contractor; and
(b) the Contractor will be absolutely barred from making any Claim
against the Owner, arising out of, or in any way in connection with,
the relevant direction or fact, matter or thing (as the case may be) to
which GC 32.1 applies.
32.5 Other Provisions Unaffected
32.5.1 Nothing in GC 32.1 to GC 32.4 will limit the operation or effect
of any other provision of the Contract which requires the Contractor to
give Notice to the Owners Representative in order to preserve an
entitlement to make a Claim against the Owner.
33. GENERAL
33.1 Nature of Relationship and Contractor as Agent
33.1.1 Subject to GC 33.1.3, nothing in this Contract constitutes a
joint venture, partnership or other fiduciary relationship between the
Owner and the Contractor.
33.1.2 The Contractor acknowledges and agrees that it has no authority
to bind the Owner in respect to any commitments, obligations or
liabilities to Governmental Authorities or under Applicable Laws.
33.1.3 The Owner appoints the Contractor as its limited agent to act in
the Owners name in accordance with and subject to the terms of this
Contract, provided however that:
(a) such agency and authority is solely for the purpose of and
limited to entering into the Trade Contracts;
(b) in soliciting bids from and negotiating with prospective Trade
Contractors, and in entering into the Trade Contracts, the Contractor
shall do so in the name of and as disclosed agent for the Owner;
(c) where the Contractor has entered into Trade Contracts as
disclosed agent for the Owner, the Contractor shall not act outside the
scope of the authority conferred on it under this Contract;
(d) the Contractor shall at all times conform to and comply strictly
with, and shall ensure that anything and everything it does as agent
for and in the name of the Owner conforms to and complies strictly
with, all requirements of this Contract, all Applicable Laws, the
Permits, Licences and Approvals, and the requirements of all relevant
Government Authorities; and
(e) promptly remove or instruct the relevant Trade Contractor to
remove from the Site and replace or re-execute defective work that has
been rejected by the Owner or the Contractor as failing to conform to
the requirements of this Contract or the Trade Contracts, whether or
not the defective work has been incorporated into the Project and
whether or not the defect is the result of poor design, poor
workmanship, use of defective products, or damage through carelessness
or other act or omission of the Trade Contractor(s), and the Contractor
shall use all reasonable efforts to backcharge and hold responsible the
relevant Trade Contractor for the replacement or re-execution of such
defective work.
33.1.4 In the administration of the Trade Contracts, the Contractor
shall at all times represent and protect the interest of the Owner and
diligently enforce such Trade Contracts for, on behalf of, and in the
best interest of the Owner, and in accordance with the directions in
writing of the Owners Representative from time to time. This GC 33.1.4
shall survive Final Acceptance.
33.1.5 The Contractor shall enforce Trade Contracts strictly in
accordance with their terms, and shall not waive any provisions,
authorize any extras or agree to any changes except in each instance
with the prior written consent of the Owners Representative.
33.2 Variation and Waivers in Writing
33.2.1 This Contract may only be varied, or its provisions waived, in
writing by the Owner and the Contractor.
33.2.2 The non-exercise of, or a delay in exercising, any power or
right of a Party does not operate as a waiver of that power or right,
nor does any single exercise of a power or
right preclude any other or further exercise of it or the exercise of
any other power or right by that Party or Contractor.
33.2.3 A power or right of a Party may only be waived in writing by the
Party.
33.3 Contractor More than One Person
33.3.1 Where the Contractor includes more than one Person, the terms,
conditions and warranties of this Contract will bind all such Persons
jointly and each of them severally and the Persons comprising the
Contractor will be jointly and severally entitled to the benefits and
rights conferred by this Contract.
33.3.2 Where the Contractor comprises more than one Person or the
Contractor is otherwise jointly or severally liable to the Owner with
any other Person (whether in contract, in tort for negligence or
otherwise), each Person comprising the Contractor (Other):
(a) warrants that it will be responsible to the Owner for the acts
and omissions (including breaches of the Contract) of the Other as if
those acts and omissions were its own;
(b) for the purposes of GC 33.3.2(a) warrants that it will:
(i) review all of the activities of the Other under or in connection
with the Contract or the performance of the Project (Other's
Activities); and
(ii) identify and rectify all errors or defects in or omissions from
the Other's Activities or any other aspect of the Other's Activities
which are not in accordance with the Contract;
(c) unconditionally and irrevocably guarantees to the Owner that the
Other will discharge all of its liabilities to the Owner arising out of
or in connection with the Other's Activities (Other's Liabilities);
(d) unconditionally undertakes to pay to the Owner on demand any
amount demanded in writing by the Owner on account of the Other's
Liabilities to the extent that they have not been discharged by the
Other; and
(e) as a separate, additional and primary liability, unconditionally
and irrevocably indemnifies the Owner from and against all costs,
expenses, losses and damages incurred or suffered by the Owner as a
result of or in connection with:
(i) the Other's Activities or the Other's Liabilities; or
(ii) a breach of the warranty in GC 33.3.2 or a failure by the Person
to perform any of its obligations under this GC 33.3.
33.3.3 The liability of a Party under GC 33.3.2(c), GC 33.3.2(d) or GC
33.3.2(e) will not be affected by any act, omission, matter or thing
that would otherwise operate in law or in equity to reduce or release
the Party from that liability.
33.3.4 Without limitation, the liability of a Party referred to in GC
33.3.3 will not be affected by:
(a) the granting by the Owner of time, waiver, indulgence or
concession or the making of any composition or compromise;
(b) the Owner forbearing to enforce or neglecting to exercise any
right against the Other;
(c) any laches, acquiescence or other act, neglect, default, omission
or mistake by the Owner;
(d) any variation of any of the obligations and liabilities under the
Contract, made either with or without the knowledge of the Party;
(e) the release of any of the obligations and liabilities under the
Contract;
(f) any failure by the Owner to disclose to the Party any fact,
circumstance or event relating to the Contract at any time; or
(g) the default, insolvency, external administration or any other
financial difficulty of the Other or a Person becoming a controller of
the Others property (or part), or the Other having communications with
its creditors with a view to entering into any form of compromise,
arrangement or moratorium of any debts whether formal or informal.
33.4 Entire Agreement
33.4.1 Except as may subsequently be agreed between the Parties, this
Contract constitutes the entire agreement between the Parties in
respect of its subject matter and supersedes all prior agreements,
quotation requests, understandings, representations, warranties,
promises, statements, negotiations, letters and documents in respect of
its subject matter (if any) made or given prior to the Date of Contract.
33.5 Language of Contract
33.5.1 Unless the Parties otherwise agree, all communications between
the Parties and all documents prepared by the Contractor for the Owners
use under this Contract shall be in English.
33.6 Violation of Law of Another Jurisdiction
33.6.1 If this Contract is intended to be performed in more than one
jurisdiction, and its performance would be a violation of the
Applicable Laws of a jurisdiction where it is intended to be performed,
this Contract is binding in those jurisdictions in which it is valid and
the Parties will use their reasonable endeavours to re-negotiate and
amend this Contract so that its performance does not involve a
violation of the Applicable Laws of the jurisdiction where its
performance would be a violation.
33.7 Violation of Laws Governing Corrupt Practices
33.7.1 The Contractor shall comply with all Applicable Laws governing
or relating to corrupt business practices, including in addition to the
Applicable Laws of Venezuela all laws, statutes, by-laws, rules,
regulations, codes, ordinances, decrees, administrative
interpretations, guidelines, policies or orders governing or relating
to corrupt business practices in effect in Venezuela and, whether they
would otherwise apply or not, in effect in Canada, in any Canadian
province, in the United States of America, in any state of the United
States of America or either in effect or enforced by the World Bank.
33.7.2 Without limiting but in addition to the requirements of GC
33.7.1, each Party hereby covenants and agrees to comply, and to cause
its affiliates and subcontractors to comply, with all Applicable Laws
applicable to the Parties in respect of the matters contemplated under
this Contract and to take no actions, and to cause its affiliates and
subcontractors and personnel to take no actions, of any nature which
would contravene any of such Applicable Laws or which would contravene
any provision of any Applicable Laws in Venezuela in respect of
corruption, the United States Foreign Corrupt Practices Act, the
Canadian Corruption of Foreign Public Officials Act, or the Criminal
Code of Canada (collectively all of the foregoing the Anti-Corruption
Legislation) including, without limitation, offering or paying or
giving anything of value except as permitted by Applicable Laws, either
directly or indirectly, to an officer or employee of any Governmental
Authority, or any Person acting in an official capacity for or on
behalf of any Governmental Authority, or of any political party or to
any candidate for political office for the purpose of influencing an
act or decision in his or her official capacity, or inducing him or her
to do or omit to do any act in violation of his or her lawful duty or to
use his or her influence with any government, in order to assist a Party
or any of their respective affiliates in obtaining or retaining
business, or an advantage in the course of business, for or with, or
directing business to, any Person.
33.7.3 The Contractor acknowledges and agrees that the Contractor and
each of its affiliates and subcontractors is an independent contractor
and is not a legal representative or agent of the Owner or of any of
its affiliates for any purpose other than for administering the Trade
Contracts strictly in accordance with their terms, and does not have
the right or authority to incur, assume or create, in writing or
otherwise, any warranty, liability or obligation, express or implied,
in the name or on behalf of the Owner or any of its affiliates for any
purpose including, without limitation, in any manner that would or
could result in a violation or contravention of the provisions of any
of the Anti-
Corruption Legislation. The Contractor agrees that if it at any time
receives any request relating to the Owner or any of its affiliates or
the Project that the Contractor reasonably believes may constitute a
violation of any Applicable Law (including any of the Anti-Corruption
Legislation), the Contractor shall promptly notify the Owner and shall
provide it with all relevant particulars respecting that request.
33.7.4 All payments to the Contractor under this Contract will be
solely by check or bank transfer and no payment will be in cash, by
bearer instrument or made to any Person other than the Contractor.
33.7.5 The Contractor represents that it is familiar with the
provisions of the Anti-Corruption Legislation and their purposes, and
without limiting the foregoing is familiar with the provisions that
prohibits the payment or giving of anything of value, either directly
or indirectly, to an official of a foreign government or of any
Governmental Authority for the purpose of influencing an act or
decision in his official capacity, or inducing him to use his influence
with the foreign government, to assist a company in obtaining or
retaining business, or an advantage in the course of business, for or
with, or directing business to, any Person.
33.7.6 The Contractor further represents and covenants that none of the
Contractors partners, owners, principals and staff members are
officials, officers or representatives of any Governmental Authority,
and that no part of the compensation to be provided to the Contractor
under this Contract will be accepted or used by the Contractor for any
purpose, nor will it take any action which would constitute a violation
of any law of the various jurisdictions in which it performs services or
of Venezuela, the United States or Canada, including the Anti-Corruption
Legislation. For its part, the Owner represents and covenants that it
does not desire and will not request any service or action by the
Contractor that would or might constitute any such violation.
33.7.7 The Contractor agrees to provide full disclosure of the
existence and terms of this Contract and any subcontract at any time
and for any reason to whomever the Owner determines has a legitimate
need to know such terms for purposes of complying with this GC 33.7
including the governments of Venezuela, the United States, and Canada.
33.7.8 The Contractor acknowledges, and the Owner represents, that no
agent or employee of the Owner shall have authority to give any express
or implied direction, whether written or oral, authorizing the
Contractor to make any commitment to any third party on behalf of the
Owner in violation of the terms of this Contract.
33.7.9 Violation of this GC 33.7 may be deemed by the Owner to be a
material breach of this Contract and any other contract with the Owner
and subject all contracts with the Contractor and its affiliates to
immediate termination for default, as well as any other remedies at law
or in equity.
33.7.10In addition to all other indemnities under the Contract, each of
the Owner and Contractor agree to and shall indemnify and hold the other
harmless from any and all damages, costs, expense and liabilities that
they may incur as a result of a breach by the other Party of the
requirements of this GC 33.7, and any limitation of liability in the
Contract shall not apply to the obligations under this indemnity.
33.8 Conflicts and Mitigation of Conflicts by Contractor
33.8.1 The Contractor shall comply strictly with the requirements of
Appendix 18 Conflict Mitigation Protocol.
33.8.2 Breach by the Contractor of the requirements of Appendix 18
shall be deemed to cause the Owner irreparable harm and entitle the
Owner, at the Owners sole discretion, to terminate the Contract for
cause pursuant to GC 26.5 after Notice to the Contractor of such breach
and without providing for a period of time or opportunity for the
Contractor to cure such breach.
33.8.3 The Contractor shall, subject to meeting its professional
obligations and complying with Applicable Laws and the requirements of
Governmental Authorities, act at all times in the best interest of the
Owner, consistent with the standard of care set out in GC 3.3.3. If the
Contractor at any time becomes aware of facts or circumstances that may
require the Contractor to act other than in the best interest of the
Owner, the Contractor shall promptly give Notice of the same to the
Owner, which Notice shall include the facts and circumstances that gave
rise to the conflict of interest, the nature of the conflict and the
steps that the Contractor has taken or is taking to mitigate and
resolve such conflict. To the extent that it is reasonably able to do
so, the Contractor shall take all measures and steps which the Owner
may reasonably require to mitigate and resolve such conflict to the
satisfaction of the Owner.
33.8.4 The Contractor shall give Notice to the Owner and obtain the
Owners written consent before the Contractor, its directors, officers
or employees, provide any advice to, or act for, or are retained by any
one or more of the Trade Contractors or the Other Contractors engaged or
employed by the Owner in respect of the Project.
33.9 Survivorship
33.9.1 The provisions set out in GC 3.3, GC 3.5, GC 10.2, GC 18.16, GC
25, GC 26.10, GC 26.11, GC 27, GC 28 and GC 29, and all limitations of
liability and rights accrued prior to completion, termination, or
expiration of the Contract, will not merge on completion, termination,
or expiration of the Contract, but will continue in full force and
effect after any termination or expiration of this Contract as will any
other provision of this Contract which expressly or by implication from
its nature is intended to survive the termination or expiration of this
Contract.
33.10 Application of this Contract and Retroactive Effect
33.10.1This Contract applies to the performance of the Parties
obligations under this Contract whether performed before, on or after
the Date of Contract.
33.10.2Any work or services provided by Contractor to Owner prior to
the Date of Contract which relate to the Project shall be deemed to be
part of the Services under this Contract, and shall be governed by and
subject to this Contract. If there are any conflicts between the
provisions of this Contract and any prior agreements between the
Parties with respect to the Services, this Contract shall govern. Any
payment by the Owner to the Contractor prior to the Date of Contract
for any of the Services performed prior to the Date of Contract shall
be deemed to be payments hereunder and reconciled with the payment
terms of the Contract.
33.11 Compliance with Law
33.11.1The Contractor shall:
33.11.2The Contractor is solely responsible for the performance of its
obligations under GC 33.11.1. This obligation is not affected by any
approval given by the Owner, the Owners Representative or any
Governmental Authority.
33.12 Severability
33.12.1The invalidity or unenforceability of any portion or provision
of this Contract shall in no way affect the validity or enforceability
of any other portion or provision hereof. If any provision, or portion
thereof, of this Contract shall be found to be void, invalid, illegal
or unenforceable in any respect by a court or other lawful authority of
competent jurisdiction, then this Contract shall continue in full force
and effect with respect to the remaining provisions without their being
impaired or invalidated in any way, and any such void, invalid, illegal
or non-enforceable provision shall be deemed stricken and, to the
extent permitted by law, be replaced by a provision which, being valid,
comes closest to the intention underlying the void, invalid, illegal or
unenforceable provision. Notwithstanding the foregoing, if the effect
of any finding by a court or other lawful authority of competent
jurisdiction that this Contract is void, invalid, illegal or
unenforceable, is that either Party is denied substantially the benefit
bargained for, then this Contract shall be deemed to have been
frustrated, unless the Parties agree on a mutually satisfactory
amendment to cure the problem within a time which is reasonable in
all of the circumstances, and in this regard, the Parties undertake to
negotiate in good faith for the same purpose.
OWNERS REQUIREMENTS - SA
TABLE OF CONTENTS
Page
1. GENERAL........................................................1
1.1 Introduction and Overall Objective ......................... 1
1.2 Design to Accommodate Future Expansion of Project .......... 1
1.3 Purpose of the Project ..................................... 1
2. THE PROJECT....................................................2
2.1 General Scope of the Project ............................... 2
2.2 Open Pit Mine .............................................. 3
2.3 Mine Infrastructure and Crushing Area ...................... 3
2.4 Processing Plant ........................................... 4
2.5 Processing Plant Site Services ............................. 5
2.6 Tailings Storage Project (TSF) and Water Management ........ 6
2.7 Infrastructure, Buildings and Services ..................... 6
2.8 Camp ....................................................... 7
2.9 Site Access ................................................ 7
2.10 Port ...................................................... 7
3. BATTERY LIMITS AND OWNER SUPPLY ...............................7
3.1 Camp Accommodation ......................................... 7
3.2 Fuel ....................................................... 8
3.3 Water ...................................................... 9
3.4 Electricity ................................................ 9
4. INDIGENOUS PEOPLES CONSIDERATION ..............................9
4.1 General .................................................... 9
5. TRAINING AND O&M MANUALS .....................................10
5.1 Skills Assessment and Training - Local People ............. 10
5.2 Training of O&M Personnel ................................. 10
5.3 O&M Manuals ............................................... 10
OWNER'S REQUIREMENTS
1. GENERAL
1.1 Introduction and Overall Objective
(a) These Owner's Requirements specify the purpose, the general
objectives and scope of the Project, the design, technical and
functional criteria, and the other requirements for the Project to be
achieved, met, provided and satisfied by the Contractor for the Project.
(b) Section 3 of the Owner's Requirements also defines the extent of
the equipment, work and services to be provided by the Owner. Except
where specific equipment, work or services are clearly and expressly
stated to be provided by the Owner in Section 3 herein, all equipment,
work, services and everything else required to execute and complete the
Project and to meet all of the Performance Guarantees shall be provided
by or through the Contractor.
(c) The Owner is contracting for, and the Contractor is contracting
to provide the Services (all as more particularly described in the
Contract) required to complete the Project and to achieve the
Performance Guarantees under the Contract, all on, in accordance with
and subject to the provisions of the Contract.
1.2 Design to Accommodate Future Expansion of Project
(a) [Intentionally deleted].
1.3 Purpose of the Project
(a) The purpose of the Project is to extract gold from ore in an
environmentally sound manner from a complete, safe, functional, fully
operating, reliable and efficient gold mine operation over the entire
projected minimum life of 20 years when operated and maintained in
accordance with Mining Industry Standards, Prudent Industry Practice
and the O&M Manuals, that meets the Performance Guarantees, and that is
designed and constructed to a standard of quality, performance and
reliability that conforms to the requirements of the Contract, Mining
Industry Standards and Prudent Industry Practice. The purpose of the
Project is also, through expansion of the Project, to process ore from
additional reserves or concessions that may in future be acquired by
the Owner or its affiliates, such that the Project shall, with
appropriate maintenance and upgrading as and when required for that
purpose, have a useful life well in excess of the projected life of the
mine itself.
2. THE PROJECT
2.1 General Scope of the Project
(a) The Project will generally consist of the development of a new
large open pit mining operation, copper and gold process plant
facilities, plant site infrastructure, port site infrastructure,
services and utilities. The mineral deposit and contemplated project
are located in Bolivar State, Venezuela. The nearest port city is
Puerto Ordaz, some 390 km north of the Site.
(b) The Project is based on an assumed ore reserve estimated by or on
behalf of the Owner to be 485 Mt at a gold grade of 0.68 g/t and a
copper grade of 0.13% with a strip ratio of 1.97 tonnes of waste per
tonne of ore.
(c) Oxide saprolite ore, sulphide saprolite ore and sulphide ore are
mined and delivered from the open pit to separate crushing facilities,
i.e. an oxide saprolite roll crusher, sulphide saprolite roll crusher
and primary gyratory crusher for sulphide ore.
(d) The proposed process plant, based on a hard rock ore capacity of
70,000 t/d, will use crushing as noted above; semi-autogenous grinding
and ball milling; gravity recovery for coarse gold; rougher flotation,
regrinding and cleaner flotation; cyanidation of cleaner scavenger
tailings and oxide saprolite, gold and silver recovery by
carbon-in-pulp adsorption, stripping, electro-winning and smelting;
copper concentrate filtering; cyanide destruction.
(e) The Owner does not intend to pioneer new technologies, use
equipment that is obsolete, use one of a kind equipment or equipment
that has never been used successfully in the industry. The Flowsheet
design, mineral processing equipment and support facilities are to use
that of proven technologies and standard equipment. Design, equipment
operation and maintenance are required to be as simple as reasonably
possible.
(f) There will be two means of access to the site from the existing
Highway 10. The primary access road will run about 14 km to the process
site and the newly proposed camp site will consist of a new segment and
upgrade of an existing road. The secondary access road from Highway 10
connecting to the primary access road and to the open pit mine site
will consist of a new segment and upgrade of an existing road.
(g) An existing 400 kV power line passes close to the site and a new
substation was constructed in 2001 to serve the area. Power will be
delivered to the Site via approximately 5.5 km of 230 kV line.
(h) The anticipated overall timeframe for the Project is as set out
in Appendix 8.
(i) The Project has a design life of 20 years, including a Plant
designed to produce gold bullion and copper concentrate by the
treatment of 70,000 tonnes/yr of hardrock ore, Tailings Dam having an
impound capacity of not less than 485 million tonnes with a deposition
rate of 29.2 tonnes/yr and operating 24 hours per day, 7 days per week,
return water dam, water storage dam, stores, camp including
administrative and living quarters, and associated infrastructure, all
for a mine production exceeding 109 million tonnes/yr and reaching 29.2
million tonnes/yr of ore. Infrastructure will consist of water supply
and distribution, buildings (administration offices, change houses,
control room, motor control centres, laboratory, Plant, shops and
stores), roads and walkways within the Site, and the upgrade of access
roads to the Site. The Project will include a Tailings Dam. The
Project shall be designed and built to conform to and meet Prudent
Industry Practice and all Applicable Laws, and will comply with World
Bank Guidelines and the Equator Principles.
2.2 Open Pit Mine
(a) The Project includes the design, engineering and development of
the Open Pit, which will be done by others for the Owner and is
excluded from the Services under this Contract, except for those
specific services in relation to the pit and pit dewatering system that
are expressly made part of the Services to be provided by the Contractor.
(b) The following parts of the Project will be provided by others
directly for the Owner:
(i) Design of the Open Pit;
(ii) Locating the pit dewatering wells;
(iii) Purchasing of mining equipment for Open Pit operations (i.e.
drills, shovels, trucks, bulldozers);
(iv) Pre-stripping operations.
2.3 Mine Infrastructure and Crushing Area
(a) The Mine Infrastructure and Crushing Area parts of the Project
will consist of the following:
(i) Mine Truck Shops, Mine Offices, Warehouse and Maintenance
Building c/w Truck Wash;
(ii) A Mine Dry located within the Mine Truck Shop facility
consisting of appropriate segregated male and female dirty and clean
change facilities, lockers and washrooms;
(iii) Truck Wash Water Tank and supply system;
(iv) Potable Water Tank and distribution system;
(v) Fire Water Tank and distribution system;
(vi) Mine Fire Pumphouse;
(vii) Tank Farm for Glycol, Hydraulic Oil, Waste Oil, Solvent and
Engine Oil;
(viii) Gasoline Tank and Dispensing Project;
(ix) Diesel Oil Tank and Dispensing Project;
(x) Sewage Treatment Plant;
(xi) Explosives Storage Areas (Storage Facilities by Explosives
Supplier);
(xii) Explosives Area Guardhouse;
(xiii) Pit Dewatering Wells;
(xiv) Sediment Control Ponds;
(xv) Primary Crusher c/w Rock Breaker;
(xvi) Primary Crusher Discharge Conveyor;
(xvii) Sulfide Saprolite Stockpile Area and Crushing Station;
(xviii) Crushed Saprolite Belt Conveyor;
(xix) Stockpile Feed Conveyor;
(xx) Powerlines and related facilities; and
(xxi) Access Roads.
2.4 Processing Plant
(a) The Processing Plant part of the Project will consist of the
following:
(i) Oxide Saprolite Stockpile Area, Reclaim Facilities, Feeder and
Crushing Station;
(ii) Oxide Saprolite Coarse Reject Conveyor and Coarse Reject
Stockpile Area;
(iii) Crushed Oxide Saprolite Belt Conveyor;
(iv) Oxide Saprolite Washing Facilities;
(v) Sulfide Ore Stockpile Area, Reclaim Facilities, Feeder and
Crushing Station;
(vi) Two Parallel Grinding Lines c/w SAG Mill, Two Ball Mills and
Cyclone Classification Systems;
(vii) Gravity recovery circuit;
(viii) Flotation circuit c/w Rougher, Scavenger and Cleaner Cells and
Regrind Mills;
(ix) Concentrate Dewatering c/w Concentrate Thickener, Concentrate
Pressure Filter and Filter Cake Conveyor;
(x) Concentrate Storage Bunker;
(xi) Flotation Tailings disposal circuit;
(xii) Cyanidation Leach Tanks;
(xiii) Carbon in Pulp (CIP) circuit;
(xiv) Carbon Stripping and Gold Electro-winning;
(xv) Carbon Regeneration circuit;
(xvi) Gold Refining and associated equipment;
(xvii) CIP Tailings disposal circuit c/w Cyanide Destruction;
(xviii) Tailings pipeline;
(xix) Tailings water reclaim pumping system and Process Water Pond;
(xx) Reagent storage, mixing and delivery system; and
(xxi) Compressed air system.
2.5 Processing Plant Site Services
(a) The Processing Plant Site Services part of the Project will
consist of the following:
(i) Fresh water supply from Mine Dewatering Pumps;
(ii) Fresh water demineralization;
(iii) Fire water storage/distribution;
(iv) Process water storage/distribution;
(v) Pump gland seal water distribution;
(vi) Power supply;
(vii) Sewage Treatment Plant;
(viii) Standby power;
(ix) Communications; and
(x) Computers, including support systems.
2.6 Tailings Storage Project (TSF) and Water Management
(a) The Tailings Storage Project (also referred to as the Tailings
Dam) and Water Management parts of the Project will consist of the
following:
(i) TSF starter dam, including conceptual design for subsequent dam
raising;
(ii) Reclaim pump barge and decant structure;
(iii) Site water management ponds, sediment control facility,
including various collection pond dams;
(iv) Plant site spill collection and containment;
(v) Plant site drainage collection and pumping; and
(vi) Water diversion around TSF, if required;
2.7 Infrastructure, Buildings and Services
(a) The Infrastructure, Buildings and Services parts of the Project
will consist of the following:
(i) Administration Office Building;
(ii) Plant Maintenance and Warehouse Building c/w Shop, Warehouse,
Offices, Covered Storage, Doctor's Office and Infirmary, Training Room,
and Emergency Response Vehicle Storage;
(iii) A Mill Dry facility consisting of appropriate segregated male
and female dirty and clean change facilities, lockers and washrooms;
(iv) Storage and laydown areas;
(v) Laboratory;
(vi) Reagent Storage Building;
(vii) Gasoline Fuel Storage and Dispensing Project;
(viii) Diesel Fuel Storage and Dispensing Project;
(ix) Guardhouse and security features;
(x) Truck scale;
(xi) Site roads, drainage and grading including Conveyor Maintenance
Road and Haul Road from Mine to Tailings Area;
(xii) Plant site security fencing and access gates; and
(xiii) Power supply from EDELCA's local substation.
2.8 Camp
(a) The Camp for the Project will consist of the following:
(i) 1200 person construction camp;
(ii) 600 person permanent camp for life of mine operations,
maintenance and service supplies;
(iii) Potable Water Tank and distribution system;
(iv) Camp Fire Protection water storage and distribution system;
(v) Sewage Treatment Plant; and
(vi) Power supply.
2.9 Site Access
(a) Site access will consist of two Site access roads from Highway 10.
2.10 Port
(a) The port facilities that are part of the Project will consist of:
(i) Concentrate Receiving Project;
(ii) Concentrate Storage Building; and
(iii) Concentrate Reclaim and Ship Loading Facilities.
3. BATTERY LIMITS AND OWNER SUPPLY
3.1 Camp Accommodation
(a) The Contractor may use any existing camp facilities of the Owner
at Site until the permanent accommodation facilities are completed by
Trade Contractors managed and supervised by the Contractor. Access and
use of such facilities shall be coordinated with the Owner and are
subject to space availability.
(b) When completed by the Contractor, the permanent accommodation
facilities will be made available to the Contractor by the Owner.
Accommodations must be reserved for up to 350 of the Owner's mine
operations and maintenance employees when they start up mining activity
approximately one year before Mechanical Completion
(c) All accommodation and catering facilities provided by the Owner
shall be made available to the Contractor on an as available basis up
to a maximum of 20 beds, and the Contractor acknowledges and agrees
that first priority to the accommodation and catering facilities will
be given to the Owner's Personnel.
(d) The Contractor shall arrange for any additional accommodation
facilities that it may require for the Contractor's Personnel.
(e) The Contractor shall coordinate the occupancy and use of the
Owner's temporary and permanent accommodations and catering facilities
with the Owner. The Contractor shall provide a schedule of the expected
occupancy to be catered for based on best monthly estimates and divided
into the numbers anticipated in the categories of senior personnel,
junior personnel and artisans. Unless otherwise agreed, at the
beginning of each month the Owner will advise the Contractor of the
Owner's camp accommodation and catering facilities that will be
available to the Contractor in that month for use by the Contractor and
representatives of Vendors and other Trade Contractors.
(f) The Contractor confirms and agrees that it has used and is
already fully familiar with the accommodations and catering facilities
provided at the temporary camp, and these accommodations and facilities
are satisfactory and acceptable to the Contractor. The Contractor
confirms and agrees that the permanent accommodation facilities, once
completed by the Contractor and once permanent camp catering has
commenced at those facilities, will be satisfactory and acceptable to
the Contractor.
(g) The Contractor will be responsible for damage to camp facilities
caused by the Contractor's Personnel other than ordinary wear and tear.
3.2 Fuel
(a) Until the planned permanent fuel facilities are made available by
the Owner for use by Trade Contractors, the Contractor will be
responsible for arranging the supply, storage and distribution of any
fuels and lubricants required for its own use or for construction
purposes. Fuel will be provided by the Owner to the Contractor for its
own use free of charge.
(b) Once the permanent fuel facilities are completed and operational,
the Contractor will manage them and Trade Contractors may obtain fuels
and lubricants from those facilities. If Trade Contractors are engaged
on a fixed contract price basis, the Trade Contractors will be charged
and will pay the price paid by the Owner for all fuels and lubricants
obtained from the permanent fuel facilities or that may be otherwise
obtained from or through the Owner.
3.3 Water
(a) The water required for hydrostatic testing of CIL tanks, etc.
will be obtained from a mutually agreed point on the water distribution
system provided as part of the Project.
(b) All other water required for construction purposes will be
provided or obtained from other sources. The Contractor shall be
responsible for arranging the provision of all potable and non-potable
water required by the Contractor and by the Trade Contractors to
perform their Trade Contracts, including potable water for their
personnel at the Site. All temporary pumping, distribution piping,
storage tanks and valves etc., required by Trade Contractors shall be
at the Trade Contractor's cost.
3.4 Electricity
(a) The Contractor is responsible for supervising the installation of
the new powerline from the existing substation near the Site to the
Site, and for the emergency electrical power generating facility at the
Site.
(b) The Contractor is responsible for arranging all electrical
distribution from the permanent electrical power substation, including
poles, cable, earthing protection, lightning protection, transformers
and distribution panels.
(c) Once the permanent electrical power is complete and operational
at Site, Trade Contractors may obtain electrical power, for
construction purposes only, from the permanent power facility and its
distribution network. There will be no charge for this power but any
use of the permanent power shall be coordinated by the Contractor with
the Owner and shall be subject to such reasonable terms and conditions
as the Contractor may impose on Trade Contractors to safeguard and
protect the permanent power facility and its associated equipment.
4. INDIGENOUS PEOPLES CONSIDERATION
4.1 General
(a) The Owner desires to promote and maximize the socio-economic
development of the Indigenous People in the region in which the Site is
located, including promoting and maximizing regional content through
local hires, purchases, rental of equipment and utilization of local
contractors and suppliers.
5. TRAINING AND O&M MANUALS
5.1 Skills Assessment and Training - Local People
(a) The Owner desires to maximize the employment of qualified local
people. The Owner requires development of a Skills Assessment and
Training program to assess the skills of the local people (within 20 km
of the Project). The product of the program will be a database of
registered potential workers for Trade Contractors to hire for work on
the Project and meet the Owner's objective of maximizing employment of
qualified local people. Training and safety orientation will be
provided as part of the program.
5.2 Training of O&M Personnel
(a) The Owner requires development of a Training Program with
sufficient and adequate training and instruction for the Owner's O&M
Personnel to operate and maintain the Project without further
assistance by the Contractor from and after the date of Industrial
Completion.
5.3 O&M Manuals
(a) The Owner requires two sets of O&M Manuals for each piece of
equipment for development of the Training Program. In addition, the
Owner requires two sets of the final O&M Manuals (Final O&M Manuals),
complete and detailed in all respects and incorporating the final
result of all adjustments, alterations and other modifications made to
the equipment, components, subsystems and systems since the date the
draft O&M Manuals were submitted to the Owner, and incorporating all
corrections, adjustments, changes, comments and additional information
and data as may be made or obtained during the Tests on Completion.
OWNER SUPPLY
The Owner is responsible for providing (or causing to be provided) the
following items (Owner Supply) without cost to the Contractor:
1. Existing Feasibility Study design drawings, in electronic format.
2. Existing topographic surveys, in electronic format.
3. Topographic surveying to the extent reasonably required for the
Contractor to perform its Services. If the Contractor advises
additional topographic surveying is required for the Contractor to
properly provide its Services, the topographic surveying will be
contracted by the Owner or an affiliate thereof to a Venezuelan firm
agreed to by the Owner and the Contractor.
4. Environmental and Social Impact Assessment Study for the Project,
as prepared by the Owner or an affiliate thereof and submitted to the
Governmental Authorities to obtain the necessary Permits, Licences and
Approvals for the Project to proceed to the Project Execution Phase.
5. General Environmental Management Plan for the Project, as prepared
by the Owner or an affiliate thereof and submitted to the Governmental
Authorities to obtain the necessary Permits, Licences and Approvals
required for the Project to proceed to the Project Execution Phase.
6. Applying for and obtaining Permits, Licences and Approvals from
relevant Governmental Authorities in Venezuela as required for the
Project in order to initiate general construction.
7. Use of the existing pad for installation of the concentrate
handling and ship loading facilities.
8. Those items expressly specified to be provided by the Owner in the
Performance Guarantees.
[Redacted]
COMPENSATION
This Appendix includes the following separate appendices, all of which
are hereby incorporated into and form part of this Appendix 6 -
Compensation:
Appendix No. Description
6 1 Contract Price
6 2 Hourly Remuneration
6-3 Eligible Disbursements
Except where otherwise expressly indicated to be in CDN$, all prices
specified in this Appendix 6 are in US$ and are all-inclusive (save and
except Excluded Taxes), including but not limited to all direct,
indirect, overheads, administrative burdens and consequential costs and
expenses.
All reimbursable costs incurred by the Contractor in Venezuela shall be
billed and paid in Venezuela by means of Venezuelan Bolivares (Bs). All
reimbursable costs incurred by the Contractor outside Venezuela shall
be paid in Canada by means of U.S. Dollars unless otherwise required or
permitted by law and agreed by the Parties. So long as it is permitted
by law, the Contractor shall be paid by means of electronic transfer of
funds to the bank account designated by the Contractor.
The application of the prices or amounts contained in this Appendix 6
shall be in accordance with the provisions of the Contract.
APPENDIX 6-1 CONTRACT PRICE
1. CONTRACT PRICE
1.1 As total compensation for its Services, the Contractor will be
paid the aggregate of the following amounts (the Contract Price):
(a) Hourly Remuneration for each of its personnel engaged in the
performance of the Services, at hourly rates for each such personnel as
determined in accordance with Appendix 6-2 Hourly Remuneration; and
(b) Eligible Disbursements.
1.2 The estimated Contract Price as of the Date of Contract is
US$16,296,000. This estimated Contract Price does not include
escalation beyond March 31, 2005.
2. TAXES
2.1 The Contract Price is exclusive of Excluded Taxes, which shall be
paid by the Owner. If any Venezuelan Taxes apply to any part of the
Contract Price, the difference between such Venezuelan Taxes and the
Taxes to which the Contractor and the Contractors personnel are subject
in Canada shall be reimbursed by the Owner to the Contractor as an
eligible disbursement. To the extent applicable, the Owner is
responsible for payment of VAT.
2.2 Excluded Taxes means the VAT, for payments to which the VAT
applies by Applicable Laws in Venezuela, and means all other Taxes
imposed by Applicable Laws in Venezuela for which the Contractor and
the Contractors Personnel are responsible under the laws of Venezuela
(but only to the extent that such Taxes imposed by Applicable Laws in
Venezuela differ in kind or amounts from those which the Contractor and
the Contractors Personnel would be responsible for if the Project was in
Ontario, Canada and all Services were provided by the Contractor in
Ontario, Canada).
APPENDIX 6-2 HOURLY REMUNERATION
[Redacted]
APPENDIX 6-3 ELIGIBLE DISBURSEMENTS
[Redacted]
SPECIAL CONDITIONS
1.1 General
(a) In the Contract, terms defined in s. 1.2 of this Appendix 7 shall
have the meanings ascribed to them in s. 1.2 of this Appendix 7 unless
a contrary intention is indicated.
1.2 Definition (1.2)
(a) Approved Project Budget means the definitive Project Budget
established to be by the EP Consultant during the Project Definition
Phase as accepted and approved by the Owner's Representative under this
Contract.
(b) Detailed Design means the detailed design to be undertaken by the
EP Consultant (or, as provided in section 1.4, by the Contractor) and
from the Project Definition Design Documentation to produce all
necessary detailed engineering designs and documentation sufficient for
the procurement, installation, construction and Commissioning of the
Project as set out in the Scope of Services.
(c) Detailed Design Documentation means the Documentation to be
prepared by the EP Consultant from the Project Definition Design
Documentation in order to enable the EP Consultant to carry out the
Detailed Design, to permit the letting of Trade Contracts.
(d) Detailed Project Completion Schedule means the detailed Project
completion schedule, consistent with Appendix 9 - Project Schedule, to
be produced by the EP Consultant in the Project Definition Phase in
accordance with the Scope of Services, and which is submitted to and
accepted by the Owner as the detailed schedule for the Project.
(e) EP Consultant means the entity that contracts separately with the
Owner, or a corporate affiliate of the Owner, in respect to the
provision of certain construction management, engineering and
procurement support, commissioning, and performance testing services
in relation to the Project other than the Services.
(f) Fee has the meaning given to it in Appendix 6 - Compensation.
(g) Human Resources and Industrial Relations Plan means the
construction labour management plan to be produced by the Contractor in
the Project Definition Phase in accordance with the Scope of Services.
1.3 General Requirements Regarding Services
(a) The Contractor acknowledges and agrees that, based on its
knowledge of this Project and its special skill, knowledge and
expertise in performing field engineering, field procurement,
construction management services for projects comparable in nature,
size and complexity to the Project, the Contractor is of the opinion
that it knows and understands (and shall be deemed
to know and understand) what is required to complete the Facility and
the Project, and also the Services required of the Contractor under
this Contract, to achieve the objectives of achieving Industrial
Completion by the Date for Industrial Completion and completing the
Project within the Approved Project Budget, and further is of the
opinion that it is possible to achieve the aforesaid objectives.
Accordingly, subject to GC 3.3.3 and to the Owner Supply under Appendix
4 Owner Supply, the Contractors task is to provide field engineering
and field procurement, provide project management, and commission a
complete and operational Facility (designed, engineered, and with
materials and equipment procured by others) that is constructed in
compliance with, and when operated and maintained in accordance with
the O&M Manuals complies with, all Applicable Laws, Prudent Industry
Practice, and that meets and satisfies all of the requirements of the
Contract including the Performance Guarantees (subject to the
limitations of liability contained herein for failing to achieve the
Performance Guarantees) and, further, the Contractor agrees to and
shall provide training of the O&M Personnel to be engaged by or through
the Owner, in each instance all on, in accordance with and subject to
the provisions of the Contract.
1.4 Preparation of the Detailed Design
(a) The Contractor shall prepare all necessary Detailed Design and
Detailed Design Documentation sufficient for the procurement,
installation, construction and Commissioning of the Project as are
required under Venezuelan law to be prepared by professionals licensed
in Venezuela. Such Detailed Design shall be prepared in accordance with
GC 9.
(b) The Contractor shall liaise closely with the Owner and EP
Consultant to ensure the Contractor continues to meet the requirements
of the Owner as specified in the Contract and any other requirements as
made available to and directed by the Owners Representative from time to
time, and to comply with applicable laws at the Project Site in
Venezuela, including laws in respect of review or completion of design
drawings and other deliverables by professionals licensed in Venezuela.
(c) The Owners Representative may direct the Contractor to vary the
Detailed Design. GC 2.1 and GC 2.3 apply to any such direction.
(d) The Contractor shall obtain all necessary approvals and conduct
reviews of the Detailed Design as required under this Contract and as
directed by the Owners Representative.
1.5 Quality Assurance
(i) 1.3.1 The Contractor shall comply, and ensure its subcontractors
comply, with the Quality Assurance Plan prepared by the EP Consultant.
1.6 Industrial Completion
(a) The Contractor shall give the Owner's Representative fourteen
(14) days' Notice of the date on which the Contractor estimates that
Industrial Completion will be achieved.
(b) No earlier than the date nominated by the Contractor in its
Notice given under GC (a) or (e), the Owner's Representative and the
Contractor's Representative shall jointly inspect the Project at a
mutually convenient time.
(c) If the joint inspection reveals that Industrial Completion has
been achieved, the Owner's Representative shall give the Contractor
written certification of that fact in the form of the Certificate of
Provisional Acceptance, within fourteen (14) days of the completion of
the joint inspection.
(d) If the joint inspection reveals that all conditions for
Industrial Completion have not been met, the Owner's Representative
shall within fourteen (14) days of the completion of the joint
inspection:
(i) prepare and give to the Contractor a list of items which require
attention by the Contractor in order for Industrial Completion to be
achieved;
(ii) advise the Contractor that the state of completion of the
Services is so far from Industrial Completion that it is inappropriate
to provide a list as described in GC 1.6(d)(i); or
(iii) prepare and give to the Contractor a conditional Certificate of
Provisional Acceptance which states that Industrial Completion has been
achieved subject to the matters set out in a list included in or
attached to the certificate being attended to in accordance with this
Contract.
(e) The Contractor shall advise the Owner's Representative in writing
when it considers that the items in the Owner's Representative's list
described in GC 1.6(d)(i) or GC 1.6(d)(iii) have been completed.
(f) The Contractor shall attend to and complete the items in the
Owner's Representative's list described in GC 1.6(d)(i) or GC
1.6(d)(iii) as soon as practicable and in any event by the time
nominated by the Owner's Representative (in the list or subsequent to
the issue of the list).
(g) GC 1.6(c) to GC 1.6(f) will continue to apply until the Owner's
Representative issues a Certificate of Provisional Acceptance or a
conditional Certificate of Provisional Acceptance.
(h) If at any time a Notice required to be given by the Contractor
under GC 1.6(a) or 1.6(f) is not given by the Contractor, yet the
Owner's Representative is of the opinion that Industrial Completion has
been achieved, the Owner's Representative may issue a Certificate of
Provisional Acceptance under GC 1.6(c).
1.7 Final Acceptance
(a) The Contractor shall give the Owner's Representative fourteen
(14) days' Notice of the date on which the Contractor estimates that
Final Acceptance will be achieved.
(b) No earlier than the date nominated by the Contractor in its
Notice given under GC (a) or GC (e), the Owner's Representative and the
Contractor's Representative shall jointly inspect the Project at a
mutually convenient time.
(c) If the joint inspection reveals that Final Acceptance has been
achieved, the Owner's Representative shall give the Contractor written
certification of that fact in the form of the Certificate of Final
Acceptance, within fourteen (14) days of the completion of the joint
inspection.
(d) If the joint inspection reveals that all conditions for Final
Acceptance have not been met, the Owner's Representative shall within
fourteen (14) days of the completion of the joint inspection:
(i) prepare and give to the Contractor a list of items which require
attention by the Contractor in order for Final Acceptance to be
achieved;
(ii) advise the Contractor that the state of completion of the
Services is so far from Final Acceptance that it is inappropriate to
provide a list as described in GC (d)(i); or
(iii) prepare and give to the Contractor a conditional Certificate of
Final Acceptance which states that Final Acceptance has been achieved
subject to the matters set out in a list included in or attached to the
certificate being attended to in accordance with this Contract.
(e) The Contractor shall advise the Owner's Representative in writing
when it considers that the items in the Owner's Representative's list
described in GC (d)(d)(i) or GC (d)(d)(iii) have been completed.
(f) The Contractor shall attend to and complete the items in the
Owner's Representative's list described in GC (d)(d)(i) or GC
(d)(d)(iii) as soon as practicable and in any event by the time
nominated by the Owner's Representative (in the list or subsequent to
the issue of the list).
(g) GC (c) to GC (f) will continue to apply until the Owner's
Representative issues a Certificate of Final Acceptance or a
conditional Certificate of Final Acceptance.
(h) If at any time a Notice required to be given by the Contractor
under GC (a) or (f) is not given by the Contractor, yet the Owner's
Representative is of the opinion that Final Acceptance has been
achieved, the Owner's Representative may issue a Certificate of Final
Acceptance under GC (c).
1.8 Access (8.1)
(a) Subject to GC (b) and GC 1.9, the Owner will, on or before the
expiry of the fourteen (14) days Notice given by the Contractor in
accordance with GC 1.9(a)(i), give the Contractor non-exclusive access
to the Site sufficient to enable it to carry out its obligations under
this Contract.
(b) The Contractor's right to access the Site and the Owner's
obligation to provide access to the Site are subject to the
restrictions set out in the Contract.
1.9 Site Obligations
(a) The Contractor shall:
(i) give not less than fourteen (14) days Notice to the Owner that it
requires access to the Site;
(ii) prior to the time such access is required, provide to the Owner
evidence that all insurances which the Contractor is required to
procure and maintain pursuant to GC 23.2 is in place and in force;
(iii) submit and receive approval from the Owner's Representative to
the security required under GC 22.1; and
(iv) where access is required during Project Execution, and if not
already obtained, submit and receive approval from the Owner's
Representative to the following before accessing the Site:
(1) the Safety and Health Plan;
(2) the Human Resources and Industrial Relations Plan;
(3) the Quality Assurance Plan; and
(4) the Project Plan.
(b) The Owner shall provide to the Contractor by the time access to
the Site is required for the Project Execution Services evidence that
all insurances which the Owner is required to procure and maintain
pursuant to GC 23.1 is in place and in force. The Contractor shall not
be required to mobilize to the Site or commence activities at the Site
until such evidence has been provided.
1.10 Induction Training
(a) The Contractor shall ensure that all Contract Personnel undergo
induction training required for the Site in accordance with the Site
safety requirements and the requirements set out in the Safety and
Health Plan before they are given access to the Site.
1.11 Site and Public Safety Requirements
(a) In addition to the Contractor's responsibilities for
implementation of the Safety and Health Plan, including the
site-specific safety program, safety plans and safe work procedures,
and for implementation of a public safety management plan and the
Environmental Management Plan, all as described in the Contract
(including the Owner's Requirements), the Contractor until Industrial
Completion shall (as between the Owner and the Contractor) have sole
responsibility for managing safety at Site, including without
limitation enforcement of the Safety and Health Plan provided by EP
Consultant, and shall take all reasonable measures and provide all
reasonable protection to prevent any injury to persons or damage to
property on, about or adjacent to the Site.
(b) Without limiting but in addition to all other requirements in the
Contract, the Contractor shall be responsible for initiating,
maintaining and supervising all safety precautions and programs in
connection with the Project until Industrial Completion. Until
Industrial Completion has been obtained, the Contractor shall implement
and enforce all reasonable procedures and precautions to be followed by
everyone on Site for the safety of, and to prevent damage, injury or
loss to:
(i) all of its Contract Personnel, all employees and workers of Trade
Contractors and all Persons entitled to be upon the Site, including by
keeping the Site (so far as the same is under its control) and the
Facility (so far as the same is not completed or occupied and used by
the Owner in the manner as contemplated for the completed Project) in
an orderly state appropriate to the avoidance of unreasonable danger to
such Persons; and
(ii) the Facility, all equipment, materials, supplies, tools, or
other items provided in connection with the Project, and all Trade
Contractor's equipment, whether in storage on or off the Site,
including for the protection thereof from robbery, theft and pilferage.
The Contractor shall provide the Owner with copies of all notices to
and other written communications with Governmental Authorities and
insurance companies with respect to accidents that occur at the Site,
and thereafter provide such written reports relating thereto as may be
requested by the Owner, to the extent that any such notices, written
communications and other written reports are not protected by solicitor
client or other generally accepted privilege or confidentiality
obligation.
(c) The Contractor shall cause to be erected and maintained, as
required by existing conditions and progress of the completion of the
Project, all reasonable safeguards for safety and protection, including
barriers, lights, fences, ladders, stairways, railings and walkways. The
Contractor shall cause to be posted danger signs and other warnings
against hazards, and shall promulgate safety regulations and notify
owners and users of adjacent utilities of any dangerous or hazardous
conditions, or dangerous or hazardous conditions caused by or arising
from the Project.
safety and protection, including barriers, lights, fences, ladders,
stairways, railings and walkways. The Contractor shall cause to be
posted danger signs and other warnings against hazards, and shall
promulgate safety regulations and notify owners and users of adjacent
utilities of any dangerous or hazardous conditions, or dangerous or
hazardous conditions caused by or arising from the Project.
(d) The Contractor shall take all reasonable measures to ensure the
utmost reasonable care is exercised in the use and handling of
explosives or other hazardous substances or hazardous equipment by
Trade Contractors and that only competent, trained, experienced and,
where required by Applicable Laws, duly licensed workers of Trade
Contractors shall be permitted to handle such explosives or other
hazardous substances or hazardous equipment.
(e) The Contractor shall provide the Owner with copies of all notices
to and other written communications with Governmental Authorities and
insurance companies with respect to accidents that occur at the Site,
and thereafter provide such written reports relating thereto as may be
requested by the Owner, to the extent that any such notices, written
communications and other written reports are not protected by solicitor
client or other generally accepted privilege or confidentiality
obligation.
(f) The Contractor shall afford and provide to Governmental
Authorities, and to their representatives, employees, consultants and
agents, reasonable access as required by Applicable Laws at all times
to the Site and to all parts of the Work wherever performed.
(g) The Contractor shall:
(i) use all reasonable efforts to ensure that Contract Personnel
while upon the Site, comply with all obligations of the Contractor
under, and all other requirements of the Applicable Laws;
(ii) comply with, and use all reasonable efforts to ensure that
Contract Personnel and all Trade Contractors where the Contractor is
the Owners Representative or the disclosed agent under the relevant
Trade Contract comply with:
(1) the requirements of the Owner Standards and Procedures;
(2) any Site safety regulations issued from time to time to the
Contractor by the Owners Representative; and
(3) the requirements of the approved Safety and Health Plan;
(iii) implement and comply with all necessary safety, security and
environmental requirements of the Owner for the Site;
(iv) use all reasonable efforts to ensure that the Project is
performed in a safe manner, including:
(1) causing the erecting and maintenance, as required by existing
conditions and the progress of the performance of the Project, of all
safeguards necessary for safety and protection (including barriers,
fences and railings); and
(2) causing the posting of danger signs and other warnings against
hazards (including all such signs and other warnings required by
Applicable Laws) and notifying the Owner and other users of any
dangerous or hazardous conditions arising out of the performance of the
Project;
(v) have appropriate first aid facilities available on the Site at
all times and a member of its staff, fully qualified and experienced in
occupational health and safety and familiar with Applicable Laws
relating to or governing occupational health and safety, present during
the performance of the Services or Trade Contracts on the Site; and
(vi) not leave any work or partly completed work in an unsafe
condition or in a condition which might cause damage to other work,
plant, machinery or equipment, and continue such work until it is in a
safe condition;
(h) Despite GC 26.4, if the Owner determines that it is necessary for
it or any third party to take urgent action to remedy any safety or
operational risk at the Site or any part of the Site that is under the
control of the Contractor, then:
(i) the Owner may take any action it considers appropriate to remedy
the safety or operational risk; and
(ii) the Contractor shall indemnify the Owner against any cost the
Owner incurs for the purpose of taking such action if, and only to the
extent, the urgent safety and operational risk was caused or
contributed by a breach by the Contractor of its obligations arising
out of or in relation to this Contract.
1.12 Protection of People and Property
(a) The Contractor shall use all reasonable efforts to ensure that
all measures necessary to protect people and property on the Site are
taken, and to protect people and property adjacent to the Site from
injury or damage caused by or resulting from activities on the Site.
(b) Without limiting GC 23 if any Contract Personnel damage property,
the Contractor shall promptly make good the damage and pay any
compensation which the Applicable Laws requires the Contractor to pay.
(c) If the Contractor fails to comply with an obligation under GC
1.11 or GC 1.12, the Owner, when in the opinion of the Owner urgent
action is required, may perform or have performed the obligation on the
Contractor's behalf to remedy any health, safety or operational risk and
the cost incurred will be a debt due and payable from the Contractor to
the Owner.
1.13 Access for the Owner, the Owner's Representative and others and
Site Condition
(a) The Contractor shall ensure that:
(i) the Owner, the Owner's Representative and any other person
authorized by the Owner or the Owner's Representative (including Other
Contractors); and
(ii) any person authorized by Applicable Laws to have access to the
Site for the purpose of exercising a function or discharging a
responsibility which that person has under Applicable Laws, have safe
access to any part of the Site and at such times as such person
requires during the execution of the Project at the Site.
(b) The Contractor shall provide (and cause Trade Contractors to
provide) the Owner and the Owner's Representative, at all reasonable
times, with access to all workshops and places whether at the Site or
not, where work is being prepared or from where materials, manufactured
articles or machinery are being obtained for the Project.
(c) The Contractor shall:
(i) arrange for or procure proper security for any part of the Site
that reasonably requires such security or protection; and
(ii) cause or require Trade Contractors to keep all parts of the Site
occupied or used by Trade Contractors in a clean and tidy condition.
1.14 Other Contractors (8.9)
(a) The Contractor acknowledges and agrees that Other Contractors may
be present on the Site during the performance of the Services by the
Contractor.
(b) The Contractor shall, and shall use all reasonable efforts to
ensure that all Trade Contractors:
(i) co-operate with all Other Contractors;
(ii) co-ordinate their work with the Other Contractors' work to
minimise any delays;
(iii) not obstruct, delay or interfere with or damage Other
Contractors' work;
(iv) comply with all directions from the Owner's Representative
regarding Other Contractors and their work; and
(v) allow any Other Contractors engaged by the Owner to use the
amenities, facilities and services which are available for use on the
Site.
(c) The Owner shall use all reasonable efforts to ensure that all
Other Contractors:
(i) co-operate with all Trade Contractors;
(ii) through the Contractor, co-ordinate their work with all Trade
Contractors' work to minimise any delays;
(iii) not obstruct, delay or interfere with or damage the Trade
Contractors' work;
(iv) comply with all directions from the Owner's Representative
regarding all Trade Contractors and their work; and
(v) through the Contractor, coordinate with and allow all Trade
Contractors to use the amenities, facilities and services which are
available for the use of Trade Contractors on the Site.
(d) Where Services are being performed on the Site or any part of the
Site for which the Contractor has been given or assumed exclusive
control, the Contractor acknowledges and agrees that:
(i) it is not entitled to make any Claim as a consequence of:
(1) reasonable delays or disruption caused by Other Contractors; or
(2) any direction given by the Owner's Representative pursuant to the
Contract, including GC (b);
(ii) any delay or disruption caused by Other Contractors will not
affect or limit the Contractor's obligations or liabilities under this
Contract; and
(iii) any action of the Contractor under GC (b) does not lessen or
otherwise affect the Contractor's other obligations under this Contract.
1.15 Owner's provided Amenities, Facilities and Services
(a) Subject to GC (b), the Owner will provide the amenities,
facilities and services described in Appendix 4 - Owner Supply for use
by the Contractor in performing the Services.
(b) Where Appendix 4 - Owner Supply states that the Contractor shall
pay for the use of specific amenities, facilities and services, the
Contractor shall do so.
(c) The Contractor shall comply with the Owner's Representative's
directions when using the amenities, facilities and services referred
to in GC (a).
1.16 Things of Value or Interest
(a) Anything of value or interest (including fossils, artefacts and
objects of antiquity or of archaeological or anthropological interest)
found on the Site:
(i) shall be brought immediately to the attention of the Owner's
Representative; and
(ii) will, as between the Parties, be the property of the Owner.
(b) The Contractor shall, and shall ensure its subcontractors, carry
out the Owner's Representative's directions in relation to any object
referred to in GC (a).
(c) The Contractor acknowledges and agrees that it has no right or
interest in any object referred to in section 1.16(a).
1.17 Administration of the Trade Contracts
(a) The Contractor shall:
(i) provide all superintendence, co-ordination and construction
management with the objective of facilitating each Trade Contract being:
(1) completed by the completion date for it in the Milestone
Schedule; and
(2) within its planned cost (as stated in the Approved Project
Budget);
(ii) provide contract administration of the Trade Contracts
(including administering and making recommendations to the Owner in
relation to all progress claims, changes, extensions of time and all
other matters other than certification of final acceptance or
completion under the Trade Contracts);
(iii) monitor the performance of the Trade Contractors under the
Trade Contracts with the aim of rectifying all faults, omissions or
other defects by the earlier of Final Acceptance and the defect
liability periods (as the case may be) in the respective Trade
Contracts;
(iv) if requested by the Owner, act as the Owner's Representative in
relation to the Trade Contracts;
(v) provide advice and all assistance to the Owner in negotiating and
resolving any issues or disputes which may arise under the Trade
Contracts; and
(vi) provide all relevant information to the Owner's Representative
as and when required, and in any event, in sufficient time to enable
the Owner to carry out its contract administration functions (if any)
under the various Trade Contracts.
(vii) The Services include the review of Trade Contractor shop
drawings and the coordination of those shop drawings with the work of
other Trade Contractors with the objective to minimize to the greatest
extent reasonably possible any missing details in or conflicts among
shop drawings and work of various Trade Contractors to minimize
potential delays to Trade Contractors and requests for changes by Trade
Contractors.
1.18 Trade Contract Payment
(a) The Contractor shall:
(i) upon receipt of each payment claim under a Trade Contract, review
the claim, and:
(1) for any claim greater than $20,000, notify in writing the Owner's
Representative of the claim immediately upon receipt of the claim; and
(2) for all claims, advise the Owner's Representative of the results
of the Contractor's review within seven (7) Business Days of receipt of
such claim;
(ii) at intervals of not more than one (1) month, submit to the Owner
a statement of progress claims made under Trade Contracts during the
period of the statement containing full and true particulars of all
such claims; and
(iii) subject to receiving from the Owner particulars of payments
made by the Owner, include with each statement particulars as to what
sums of money have been paid and the dates on which such payments were
paid under each Trade Contract.
1.19 Labour Disputes
(a) The Contractor shall promptly take or cause to be taken any and
all reasonable steps in connection with the resolution of violations of
collective bargaining agreements and labour jurisdictional disputes
between or among its Contract Personnel or the personnel of Trade
Contractors, including the filing of appropriate processes with the
applicable unions and Governmental Authorities to settle, enjoin, or
award damages resulting from violations of collective bargaining
agreements or labour jurisdictional disputes.
(b) If a strike or other labour dispute occurs the Contractor shall
take all reasonable actions to minimize any resulting disruption to the
performance of the Services and achieving Industrial Completion by the
Date for Industrial Completion and Final Acceptance by the Date for
Final Acceptance.
1.20 General (Testing, Commissioning and Performance Testing)
(a) The Owner, Financing Entities and insurers shall each have the
right to have representatives attend all inspections, tests,
Commissioning and Performance Tests.
(b) In addition to the specific records of measurements that may be
required by the Contract to be submitted by the Contractor to the
Owner, the Contractor shall submit such additional records of
measurements and other documentation that may be requested by the
Owner. Further, copies of all test certificates, performance curves,
and data sheets shall be submitted in reproducible form. Sufficient
information shall be submitted on all test certificates, performance
curves and data sheets to enable the material or equipment to which
they refer to be identified.
1.21 Pre-Operational Testing Prior to Mechanical Completion
(a) The Contractor shall, in accordance with the Contract and the
Contractor's QA/QC Plan, submit test procedures for testing prior to
Mechanical Completion to demonstrate the completion of construction and
the readiness for service of all sub- systems, systems, sub-components,
components and other parts of the Facility, and further that the
applicable sub-systems, systems, sub-components, components and other
parts of the Facility can be safely started up. Testing shall be
carried out in accordance with the Contract and the plans prepared by
the Contractor and approved by the Owner's Representative for such
tests.
1.22 Pre-Operational Verification and Testing Prior to Practical
Completion
(a) The Contractor shall, in accordance with the Contract and the
Contractor's QA/QC Plan, submit test procedures for all tests required
after Mechanical Completion, other than the Performance Tests, to
demonstrate that all systems, sub-systems, components, sub-components
and equipment for the Project are ready for service and will perform as
a complete, integrated whole and in accordance with the requirements of
the Contract. Testing shall be carried out in accordance with the plans
prepared by the Contractor and approved by the Owner's Representative.
1.23 System Commissioning
(a) The Contractor shall:
(i) within the time required by the Project Plan, prepare a
comprehensive draft plan for Commissioning and submit it for approval
to the Owner's Representative;
(ii) make such amendments to the draft plan for Commissioning as may
be required by the Owner's Representative and resubmit it for approval,
within the time required by the Owner's Representative;
(iii) provide all supervisory, management and specialized personnel
as required to perform Commissioning and demonstrate whether Industrial
Completion has been achieved; and
(iv) without limiting its obligation under GC 1.7(a) ensure that the
Commissioning of the Project is carried out in accordance with the
approved plan for Commissioning.
1.24 Facility Turnover to Owner for Normal Operations on Industrial
Completion
From and after the date the Contract requirements for Industrial
Completion have been met as certified by the Certificate of Industrial
Completion, the Facility will commence normal commercial operations and
the Owner shall take direct control over all aspects of operation and
maintenance of the Facility. The Contractor shall thereafter coordinate
any remaining Services with the Owner and perform such Services in the
manner and at the times required by the Owner to allow the Owner to
maximize continuous commercial operation of the Facility at its full
throughput.
1.25 Labour Special Conditions
(a) If any of Contractors current or former workers and/or
independent consultants, contractors or subcontractors, and/or any
administrative or judicial entity, makes, issues or files, threatens to
make, issues or files, or causes to make, (whether before or out of any
administrative or judicial entity), directly and indirectly, totally or
partially, any type of assessments and/or claims against the Owner for
payment of any labour rights and/or social contributions or payroll
taxes, pensions, penalties, fines, indemnifications, indemnities,
rights, benefits or items, whether in cash or in kind, statutory or
contractual, arising from any source of labour and/or social rights
regardless of its nature, such sources of labour and/or social rights
including, without limitation, the Organic Labour Law, any applicable
collective bargaining agreements (convenciones colectivas de trabajo),
any applicable union management agreements (actas convenio), any
component of the social security legislation of Venezuela (including,
without limitation, the Law of the Social Security System of 2002, the
Law of the Housing and Habitat Payment System of May, 2005, the Organic
Law on Prevention, Conditions and Working Environment of July, 2005 and
the Law of the Employment Payment System of September, 2005), the Law
of the National Institute of Cooperative Education (INCE), their
corresponding Regulations, any other labour provision or Regulation
(e.g.: Childcare Regulations), and such assessments and/or claims
including, without limitation, assessments and/or claims seeking
payment of salaries, wages, bonuses, seniority payment, seniority
indemnity, severance pay, termination notice, transfer compensation,
indemnities for unjustified dismissal, profit sharing, vacation bonus,
vacations, indemnities, payments or benefits for occupational accidents
or work-related illnesses, night work bonus or surcharge, overtime
surcharge, payments and surcharges for work performed during rest days
and/or holidays, the provision of food in any form, payment or
provision of transportation, payment or provision of housing, payment
of rest days and holidays, medical, pharmaceutical and surgical
services or assistance, medical expenses, medicines, professional fees,
hospitalization and surgery costs resulting from accidents or illnesses,
whether or not work related, pensions, social contributions or payroll
taxes, travel expenses and per diem expenses, arising from, or relating
to, directly or indirectly, the services performed by said workers
and/or independent consultants, contractors or subcontractors to the
Contractor or any other company related to the Contractor, then the
Contractor shall be solely and exclusively responsible for any of such
assessments and/or claims, and shall indemnify and hold the Owner
harmless from any of such claims,
(i) by:
(A) paying all lawyers fees incurred by the Owner in the exercise of
its defence against the administrative entity, and/or the workers or
independent consultants or contractors, whether before or out of the
administrative or judicial entity; and
(B) paying the corresponding labour right(s) and/or social
contribution(s) or payroll tax(es), pension(s), penalty(ies), fine(s),
benefit(s), right(s), indemnity(ies), item(s) or payment(s) imposed
upon the Owner and/or awarded to the worker(s) or independent
consultant(s), contractor(s) or subcontractor(s) against the Owner,
either jointly with other person(s), entity(ies) or company(ies) or
severally, by the administrative or judicial entity prosecuting or
hearing the case, and/or resulting from a settlement of the claim
reached by and between the individual(s) claimant(s), and/or the
corresponding administrative entity prosecuting the case, as party of
the first part, and the Owner and/or the Contractor, as party of the
second part.
(ii) It being understood that:
(A) The Owner shall promptly advise the Contractor of any claim which
is the subject of this Appendix 7, and give the Contractor the
opportunity to defend and/or settle the claim itself;
(B) If the Contractor does not defend or settle the claim, the Owners
may defend the claim, and such defence shall be exercised in accordance
with the Owners own judgment and decisions with respect thereto,
and the Owner may negotiate and enter into a reasonable settlement of any
of such assessment(s) and/or claim(s), without the Contractors
authorization, which settlement shall definitely bind the Contractor to
comply with its obligation to pay the settlement amount reached by and
between the parties thereto.
MILESTONE SCHEDULE
The Contractor agrees that the Contractor shall complete the Services
so that all of the following Milestone Events are achieved on or before
the applicable Milestone Date specified in the following table, and as
calculated from the date Notice to Proceed (NTP) is issued by the Owner
to the Contractor.
See Notes to Schedule 8.
Item Milestone Event Milestone Date
1. Project Definition Report Complete 13-Jan-06
2. [Intentionally deleted]
3. Commence Construction 01-May-06
4. Complete Pit Dewatering Well System 29-Sep-06
5. Crushing and Conveying Mechanically Complete 03-Aug-07
6. Permanent Camp Available for Partial Occupancy 11-Jun-07
7. Complete Mine Infrastructure 14-Sep-07
8. Tailing Facility Mechanically Complete 12-Oct-07
9. Permanent High Voltage Power Distribution Complete 15-Nov-07
10. Cyanidation Mechanically Complete 16-Nov-07
11. Port Facility Mechanically Complete 04-Apr-08
12. Flotation Mechanically Complete 02-May-08
13. Mechanical Completion of Project as a whole 02-May-08
14. Industrial Completion 27-Jun-08
15. Performance Guarantees demonstrated to have been achieved
19-Dec-08
16. Final Acceptance 19-Dec-08
PROJECT SCHEDULE
Attached to and immediately following this page is the Project Schedule
to be achieved and met by the Contractor.
Notes:
1. It is acknowledged that the Notice to Proceed with Project
Execution Services (which authorizes performance of all Project
Execution Services) may be delivered to the Contractor on a date later
than April 14, 2006 (the Assumed Notice to Proceed Date) shown on the
attached schedule.
2. If the Notice to Proceed with Project Execution Services is
delivered on a date later than the Assumed Notice to Proceed Date, then
the commencement and end dates (but not the duration) of each and all
activities that are shown in the attached schedule and Appendix 9 to
occur on or after the Assumed Notice to Proceed Date shall be adjusted
by an amount equal to the number of days between the Assumed Notice to
Proceed Date and the date the Notice to Proceed with Project Execution
is delivered to the Contractor.
3. In the event that the Owner authorizes the Contractor to proceed
with any of the Project Execution Services prior to issuance of the
Notice to Proceed, then the commencement and end dates referred to in
the foregoing note shall be subject to equitable adjustment.
4. The Contractor shall be entitled to a Change Order in the
circumstances described in Note 2 or 3, above.
[RESERVED]
INSURANCE
This Appendix is comprised of the following separate appendices, all of
which are hereby incorporated by reference herein and each of which may
be referred to either by a general reference to this Appendix or by a
specific reference to the applicable appendix within this Appendix in
which it is located, as listed below:
Appendix No. Description
11-1 Insurance by Owner
11-2 Insurance by Contractor
Unless otherwise specified, all dollar amounts herein are in United
States Dollars.
APPENDIX 11-1 INSURANCE BY OWNER
1. INSURANCE PROCURED BY OWNER
1.1 The Owner will procure and, for the time limits specified herein,
maintain a commercial general liability insurance policy on a wrap-up
basis (Wrap-Up Policy) and an all risks course of construction
insurance policy (Builders Risk Policy) as described in this Appendix
11-1. These policies will cover not only the Services which are the
subject of the Contract but will also provide coverage for work and
services which are the subject of Trade Contracts and of other
contracts between the Owner and other contractors and consultants
related to the Project. With regard to these policies of insurance as
they relate to the Contractor:
(a) aggregate and per occurrence limits contained in the policies may
limit or negate insurance otherwise available to the Contractor under
the policies;
(b) insurance coverage provided to the Contractor and its
subconsultants and subcontractors under the policies will only apply to
the Services performed by them for the Contract; and
(c) insurance coverage provided to the Contractor and its
subconsultants and subcontractors shall be endorsed to be primary and
non-contributory to the other insurance coverages of the Contractor and
its subconsultant and subcontractors.
1.2 Subject to the Contractor in a timely manner providing all
information required by the insurer(s) in respect of the policies, and
unless the Contractor and Owner agree to other dates, the Owner will
procure:
(a) the Wrap-Up Policy on the later of the date the Owner notifies
the Contractor to commence with the Project Execution Phase of the
Project and the date construction operations managed by the Contractor
commence at Site; and
(b) the Builders Risk Policy on the later of the date the Owner
notifies the Contractor to commence with the Project Execution Phase of
the Project, and the date construction operations managed by the
Contractor, other than excavation, commence at the Site.
2. USE AND OCCUPANCY BY OWNER AND CONTRACTOR
2.1 Subject to Section 2.2 of this Appendix 11-1, the Wrap-Up Policy
and the Builders Risk Policy will permit or allow use and occupancy of
the Project by the Contractor and Owner to produce concentrate and
other products after Mechanical Completion and prior to Industrial
Completion.
2.2 The Owner at its sole discretion, at any time from and after the
date production commences by the Project, may procure an operations
policy of insurance (the Operations Policy), which at the Owners sole
option may supplement or replace entirely the Wrap-Up Policy and the
Builders Risk Policy. If the Operations Policy replaces either or both
the Wrap-Up Policy and the Builders Risk Policy prior to the dates that
the Owner is required by this Appendix 11-1 to maintain the Wrap-Up
Policy and Builders Risk Policy in effect, then the Operations Policy
will provide insurance cover to the Contractor comparable to that
previously provided by the Wrap-Up Policy or Builders Risk Policy, as
applicable, but only for the time that this Appendix 11-1 requires the
Owner to maintain the Wrap-Up Policy and Builders Risk Policy in effect.
2.3 If the amount of the deductible for any claim under the
Operations Policy for which cover is provided to the Contractor
pursuant to Section 2.2 is more than the amount of the deductible for
the same claim if made against the Contractor under the Wrap-Up Policy
or Builders Risk Policy, as applicable, then the Owner will be
responsible for the difference between the amount of the deductible in
the Wrap-Up Policy and Builders Risk Policy, as applicable, and the
amount of the deductible in the Operations Policy.
2.4 Unless the Owner otherwise agrees in writing with the Contractor,
the duration of the cover for the Contractor under the Operations Policy
will be limited to and not exceed the duration of cover for the
Contractor under the Wrap-Up Policy and Builders Risk Policy specified
in Sections 3.5 and 4.2 of this Appendix 11-1.
3. WRAP-UP LIABILITY INSURANCE
3.1 The Owner at its expense will procure and maintain a Wrap-Up
Policy which will, subject to the terms thereof, have a combined single
policy limit of US$ 10,000,000 for each occurrence or accident, and an
aggregate policy limit of US$ 10,000,000 for completed operations and
products liability. The Wrap-Up Policy may also be subject to such
aggregate policy limits as the insurer may require. The policy will be
primary.
3.2 The Contractor acknowledges that the Owner may require
information from the Contractor in order for the Owner to procure the
Wrap-Up Policy. The Contractor and its insurance brokers and advisors
shall cooperate fully with the Owner and the Owners insurance brokers,
and provide all information required by the Owner and its insurance
brokers to procure the Wrap-Up Policy on both the terms and conditions
specified in this Section 3 and such additional terms and conditions as
the Owner may require at its discretion to protect and indemnify the
Owner. Until the Wrap-Up Policy has been issued the Contractor shall
not commence any part of the Services on Site without the prior written
agreement of the Owner, which agreement may be subject to such terms and
conditions as the Owner may reasonably require, including evidence from
the Contractor that the Contractor has insurance available and with
limits acceptable to the Owner to protect and indemnify both the
Contractor and the Owner for liability arising out of such parts of the
Services, and that such insurance names the Owner and its employees,
consultants and agents as additional named or unnamed insureds and
contains waivers of subrogation against all insureds.
3.3 Subject to the terms, conditions and exclusions contained in the
Wrap-Up Policy, the Wrap-Up Policy will provide coverage for damages
because of bodily injury (including death resulting therefrom) and
personal injury sustained by any person or persons, or because of
injury to or destruction of property arising out of any operations in
connection with the Contract, and provide coverage for, among other
things, but without limiting the generality of the foregoing, such
general categories as:
(a) broad form property damage,
(b) premises and operations liability,
(c) elevator and hoist liability,
(d) completed operations and products liability,
(e) blanket contractual liability,
(f) contingent employers liability,
(g) sudden and accidental pollution liability; and
(h) non-owned licensed motor vehicles (except those leased for a term
in excess of thirty (30) days) used in connection with the Services.
3.4 The Wrap-Up Policy will include:
(a) as named or unnamed insureds, the Owner, the Contractor, Trade
Contractors, and all consultants, contractors and subcontractors who
are directly engaged by them to perform work or services at the Site,
and their respective officers and employees;
(b) a waiver of subrogation against all named and unnamed insureds;
and
(c) a cross-liability clause, by which (subject to aggregate policy
limits) the liability of any one insured to another insured will be
covered as though separate policies were issued to each.
3.5 Subject to the termination and replacement of the Wrap-Up Policy
by the Owner pursuant to Section 2.2 of this Appendix 11-1, the Wrap-Up
Policy will remain in force for the following periods:
(a) with respect to completed operations coverage, until not less
than twelve (12) months after the date of Industrial Completion, and
(b) with respect to all other coverage, until the date of Industrial
Completion.
3.6 Exclusions under the Wrap-Up Policy will include those exclusions
common to wrap-up general liability policies for comparable
international projects in South America issued at the time the Wrap-Up
Policy is procured. The exact wording of the exclusions will be as
prescribed by the insurer, and all acts of terrorism will be expressly
excluded. The following operations performed on Site, however, will not
be excluded under the Wrap-Up Policy:
(a) blasting or the use of explosives;
(b) pile driving;
(c) excavation;
(d) underpinning, shoring, removal or rebuilding of support;
(e) demolition;
(f) use of industrial machines such as forklifts, cranes, front-end
loaders, graders, earth removers, and road building machines that are
specially licensed (X plate) or operating under permit; and
(g) use of machinery or equipment such as hydraulic cranes,
compressors, lift gates or winches attached to or mounted on a licensed
motor vehicle provided such use is not insured by any form of automobile
liability insurance required to be procured by the Contractor and its
subconsultant and subcontractors.
3.7 The following deductibles will apply:
(a) there will be no deductible for personal injury or bodily injury
under the Wrap-Up Policy;
(b) the deductible for property damage will not exceed US$ 50,000 for
any one occurrence, provided however that the Owner at its discretion
may obtain higher deductibles and in such case the Owner will be
responsible for that part of the deductible that is in excess of US$
50,000; and
(c) there may be deductibles for extensions of coverage other than
for personal injury, bodily injury or property damage.
3.8 Deductibles will be the responsibility of and paid by the party
responsible for the damage. If claims arise out of the fault of more
than one party, each will pay that proportion of the deductible which
represents the proportion of contributory fault of the party.
3.9 The Contractor shall, in addition to and in conjunction with the
giving of notices in accordance with the insurance claims procedures
under the Wrap-Up Policy, notify the Owner immediately where an
incident occurs that may give rise to a claim under the Wrap-Up Policy.
3.10 Where an accident occurs that gives rise to a claim, the
Contractor shall assist the Owner to provide notices, proofs of loss
and such other documentation as the insurer may require to process the
claim under the Wrap-Up Policy.
4. ALL RISKS COURSE OF CONSTRUCTION INSURANCE
4.1 The Owner at its expense shall procure and maintain a Builders
Risk Policy in an amount equal to the estimated replacement cost of the
Project, but subject to and with such sub-limits as the insurer may
impose for damage resulting from natural catastrophes. The Builders
Risk Policy may extend to and cover other property of the Owner or
under construction by other contractors for the Owner related to the
Project, in which case the limits of the Builders Risk Policy will be
increased by the value of that other work.
4.2 Subject to the termination and replacement of the Builders Risk
Policy by the Owner pursuant to Section 2.2 of this Appendix 11-1, and
subject to policy exclusions required by the insurer, the Builders Risk
Policy will as between the Owner and Contractor:
(a) remain in force until the date of Industrial Completion; and
(b) cover all risks of direct physical loss or damage to all property
as defined in the Builders Risk Policy.
4.3 The Builders Risk Policy will include:
(a) as named or unnamed insureds, all of the Owner, the Contractor
and its subconsultant and subcontractors, the Trade Contractors, and
all consultants, contractors and subcontractors who are directly
engaged by the Contractor to perform part of the Services or by the
Owner to perform any other work or services at Site; and
(b) a waiver of subrogation against all named and unnamed insureds,
including the Owner, Contractor, Trade Contractors and against their
respective consultants and subcontractors.
4.4 Exclusions under the Builders Risk Policy will be those
exclusions common to Builders Risk policies designed specifically for
the international construction industry for comparable projects in
South America and issued at the time the policy is procured by the
Owner. The exact wording of the exclusions will be as prescribed by the
insurer; and will include among others:
(a) Contractors equipment;
(b) wear, tear, latent defects;
(c) faulty or defective workmanship, material, construction or
design, but this exclusion shall not apply to resultant physical damage
not otherwise excluded;
(d) acts of terrorism, terrorism risks and war;
(e) nuclear radiation and radioactive contamination;
(f) dishonesty of employees;
(g) material and equipment in the course of ocean marine shipment;
(h) penalties for non-completion of or delay in completion of
Contract or non-compliance with Contract conditions;
(i) property that is covered by warranties;
(j) loss of use or occupancy; and
(k) loss revealed by inventory shortage.
4.5 Deductibles under the Builders Risk Policy will not exceed the
following amounts, provided however that the Owner at its discretion
may obtain higher deductibles and in such case the Owner will be
responsible for that part of the deductible that is in excess of the
following amounts:
(a) US$ 250,000 with respect to each and every loss associated with
testing, commissioning and operation, and for resulting damage from
defect in design, workmanship, materials and maintenance;
(b) Ten (10%) of loss, with a minimum deductible of US$ 250,000, for
Act of God and natural catastrophes; and
(c) US$ 100,000 with respect to all other losses.
All deductibles shall be paid by the party responsible, except for
claims arising out of damage caused by earthquakes or floods (provided
that for floods caused or worsened by the activities of the Contractor
or a Trade Contractor, the Contractor or Trade Contractor shall pay the
deductible). If claims arise out of the fault of more than one party,
each party will pay that proportion of the deductible which represents
their proportion of contributory fault.
5. MARINE CARGO
5.1 All marine cargo insurance for ocean marine cargo used to
transport materials, equipment or property supplied under or used in
the performance of the Services or the Project and
intended to be incorporated into the completed Project (Marine Cargo
Insurance) will be procured by the Owner, except where the Owner and
Contractor agree that, for a particular Vendor or Trade Contractor,
marine cargo insurance should be provided by such Vendor or Trade
Contractor.
5.2 Marine Cargo Insurance will be in an amount sufficient to cover
any one conveyance or location, with sub-limits for debris removal of
ten (10%) percent of the value of damaged items.
5.3 In addition, if an entire vessel is chartered for shipping
materials, equipment or property then Charterers Liability insurance
will also be provided, in reasonable amounts to protect and indemnify
the Owner, Contractor and its subconsultant and subcontractors from and
against liability arising out of the chartering of such vessel.
5.4 Deductibles under the Marine Cargo Insurance shall be not greater
than ten (10%) percent of the total value of each shipment, with a
maximum of US$ 100,000 per shipment and, if applicable, with a minimum
deductible as may be agreed by the Owner and insurer.
5.5 At the Owners sole option, materials, equipment and property
supplied under or used in the performance of the Contract that are
required by Section 5.1 to be covered by the Marine Cargo Insurance may
instead be insured for marine cargo under the Builders Risk Policy if
that insurer provides such insurance as part of the Builders Risk
Policy.
5.6 The Contractor shall strictly comply with, and shall ensure that
its subconsultant and subcontractors and all Vendors and Trade
Contractors strictly comply with, all provisions, obligations,
requirements and stipulations of the insured under the Marine Cargo
Insurance. If the Contractor, its subconsultant and subcontractors, or
the Vendors and Trade Contractors, fail to comply strictly with all
such provisions, requirements and stipulations of such policies of
insurance, and if as a consequence such insurance fails to respond to a
loss, then the party who failed to comply with such provisions,
requirements and stipulations shall be solely responsible and liable
for the loss without recourse against the Owner.
5.7 The Marine Cargo Insurance shall be maintained in force until the
earlier of the completion of the last marine cargo shipment and the date
of Industrial Completion.
6. RENEWAL
6.1 If the Wrap-Up Policy or Builders Risk Policy is required to be
renewed before the expiry date specified for such policy in this
Appendix 11-1, the Owner shall, at least thirty (30) days prior to the
expiry date of the policy, furnish evidence of its renewal to the
Contractor by means of a renewal certificate, endorsement, or certified
copy.
7. FAILURE TO MEET INSURANCE REQUIREMENTS
7.1 If the Owner fails to procure or maintain the insurance required
by this Appendix 11-1 to be procured by the Owner, fails to furnish to
the Contractor a certified copy of each policy required to be obtained
by this Appendix 11-1 or if, after furnishing such certified copy, the
policy lapses, is cancelled, or is materially altered, then subject to
any prior right that the Financing Entities may have under financing
documents for the Project to obtain and maintain such insurance, the
Contractor shall have the right, without obligation to do so, to obtain
and maintain such insurance itself in the name of the Owner and
Contractor, and the cost thereof shall be payable by the Owner to the
Contractor on demand.
7.2 If coverage under any insurance policy required to be obtained by
the Owner under this Appendix 11-1 should lapse, be terminated or
cancelled, then the Contractor and its subconsultant and subcontractors
shall immediately cease the performance of any and all Services under
the Contract for which such insurance is relevant until satisfactory
evidence of renewal is produced by the Owner. In such case, the
Contractor will be entitled to the same extension of time for
performance of the Contract and the same additional compensation as the
Contractor is entitled under the provisions of the Contract for a delay
caused by the Owner.
8. CONFORMANCE OF APPENDIX 11-1 TO POLICIES OF INSURANCE PROCURED BY
OWNER
8.1 The Owner will use reasonable commercial efforts to obtain the
Wrap-Up Policy, Builders Risk Policy and Marine Cargo Insurance in
conformance with this Appendix 11-1, but the Owner and Contractor
acknowledge that changes in the insurance market may make it impossible
or commercially impractical to obtain those policies in strict
conformance with all requirements of this Appendix 11-1. Accordingly,
the Owner will, promptly after receipt of each of the Wrap-Up Policy,
Builders Risk Policy and Marine Cargo Insurance from the applicable
insurer, provide copies of relevant extracts of the policies (those
portions of the policies that provide insurance cover to the Contractor
for its own benefit) to the Contractor. Immediately upon receipt of each
such policy the Contractor shall review the terms, conditions, policy
limits and exclusions contained in that policy and satisfy itself that
such policy conforms to the requirements of Appendix 11-1. Within
thirty (30) days after receipt of each policy, the Contractor shall
give Notice to the Owner of any terms, conditions, exclusions or
provisions that, in its opinion, conflict or do not comply with the
requirements of Appendix 11-1. The Owner will, within fourteen (14)
days after receipt of such Notice, make reasonable efforts to obtain
amendments to the policy from the insurer to try to make that policy
comply with the requirements of Appendix 11-1. Provided, however, that
if the insurer does not agree to make any or all such amendments
requested by the Contractor within such fourteen
(14) day time period, or if the Contractor fails to identify and notify
the Owner of any conflicts, or if there are any other conflicts between
the provisions of this Appendix 11-1 and the policies as procured, then
in all such cases the provisions of those policies as procured shall
govern and take precedence, the provisions of this Appendix 11-1 shall
be deemed to be retroactively amended to conform to the provisions of
the actual policies as procured by the Owner, and the Owner shall be
deemed to have met and fulfilled all of its obligations under this
Appendix 11-1, and where the Contractors indemnity obligations under
the Contract are limited to available proceeds of insurance procured by
the Owner, such indemnity obligations shall be determined by reference
to the actual policies of insurance as procured by the Owner.
9. ADJUSTING OF CLAIMS
9.1 The Owner has the right to act as agent on behalf of the
Contractor in the settlement of any claim(s) under the policies
procured by the Owner. Nevertheless, the Contractor shall have the
right to participate in the defence or settlement of any claim(s) under
such policies which are made against the Contractor or its subconsultant
and subcontractors.
INSURANCE BY CONTRACTOR
[Redacted]
[RESERVED]
[RESERVED]
APPENDIX 14
FORM OF RELEASE AND GENERAL WAIVER OF CLAIMS BY CONTRACTOR AT FINAL
ACCEPTANCE DATE
Attached to and immediately following this page is the form of Release
and General Waiver of Claims by the Contractor to accompany the
Contractors application for final payment upon achieving Final
Acceptance.
RELEASE AND GENERAL WAIVER OF CLAIMS BY CONTRACTOR AT FINAL ACCEPTANCE
(Release and Waiver of Claims)
In the matter of the Contract (the Contract) made as of the *______ day
of *_______________, 20*____ in respect of the Brisas Project in
Venezuela (the Project) between:
*________________________________________ (the Owner)
*________________________________________ and:
*________________________________________ (the Contractor)
*________________________________________
As a condition precedent to obtaining Final Acceptance, as defined in
the Contract, and for and in consideration of the payment of
$____________ (Final Payment) to the Contractor by the Owner, and for
other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged by the Contractor, the Contractor
covenants, represents, warrants and agrees with the Owner as follows:
1. The Contractor has properly and completely performed all of the
Services under the Contract, including the correction of any and all
deficiencies that may have occurred in the Services during their
performance.
2. All of the Contractors subcontractors and Contract Personnel have
been paid in full for all work, services, equipment, materials,
supplies, tools and other items provided and performed in connection
with the performance of the Contract, except holdbacks properly
retained and amounts that are subject to bona fide disputes.
3. All claims and demands of the Contractor for extra work to and
changes in the Contract, or in connection with the Contract in any way,
have been presented in writing to the Owner and resolved to the complete
satisfaction of the Contractor, save and except only those claims, if
any, expressly specified in a schedule attached hereto and for which
the schedule provides full, complete and detailed descriptions,
including for each claim listed in the schedule a concise summary of
the factual basis and amount of the claim, the date Notice of claim was
first provided under the Contract, and the relevant contractual
provisions that support the entitlement and amount claimed (the
Outstanding Claims).
4. Except for the Contractors claims for the Final Payment and the
Outstanding Claims, and subject to receipt of the Final Payment, the
Contractor hereby agrees to remise, release and forever discharge, and
by these presents does for itself, its successors and assigns, remise,
release and forever discharge, the Owner and its officers, directors,
employees, servants, agents, consultants, successors and assigns, and
each of them, of and from any and all liabilities, causes of action,
liens, claims, proceedings, demands, suits, debts, duties, damages,
interest and costs of any nature or kind whatsoever or
wheresoever, whether at law or at equity, and as of the date hereof are
known or which the Contractor as an experienced contractor should have
known, which the Contractor, its successors and assigns have or
hereafter can, shall or may have, relating to or arising out of the
Contract, the Project, the subject matter of the Contract and the
Project, and all facts and circumstances related thereto.
5. This Release and Waiver of Claims has been executed voluntarily by
the Contractor after receiving independent legal advice.
6. All provisions of this Release and Waiver of Claims are
contractual and not merely recitals.
7. This Release and Waiver of Claims is governed by the laws of the
Province of Ontario, and the parties agree to submit and attorn to the
exclusive jurisdiction of any competent Court in Ontario any dispute
which involves or may involve the interpretation of this Release and
Waiver of Claims.
8. All capitalized terms not otherwise defined herein shall have the
meaning given to them in the Contract.
IN WITNESS WHEREOF the Contractor has executed this Release and Waiver
of Claims as of the *______ day of *_______________, 20*____ by its
duly authorized officers.
THE CORPORATE SEAL of
__________________________________
[CONTRACTOR]
was hereunto affixed in the presence of:
Authorized Signatory
Authorized Signatory
CONTRACTORS ORGANIZATION CHART
[Redacted]
CONTRACTORS KEY PERSONNEL
[Redacted]
[Reserved]
CONFLICT MITIGATION PROTOCOL
[Redacted]
[RESERVED]
99.3 Payment Guarantee
Appendix C-2
Payment Guarantee
PAYMENT GUARANTEE
THIS IRREVOCABLE GUARANTEE ("Guarantee") is made as of the
12th day of April, 2006
IN FAVOUR OF:
SNC-LAVALIN ENGINEERS & CONSTRUCTORS INC., a corporation
having a place business at 2200 Lake Shore Blvd. West, Toronto,
Ontario, Canada M8V 1A4
(the "EP Consultant")
AND
SNC-LAVALIN INTERNATIONAL INC. VENEZUELAN BRANCH (CARACAS), a
corporation having a place business at Zona Industrial Unare
II,, final Calle Neveri, Centro Empresarial, Catanaima, Primer
Piso, Puerto Ordaz, Estado Bolivar, Venezuela
(the "CM Consultant")
BY:
GOLD RESERVE INC., a corporation incorporated under the laws of
Canada and having its principal place of business at The Drury
Building, 3081 Third Avenue, Whitehorse, Yukon, Canada Y1A 4Z7
(the "Guarantor")
WHEREAS:
A. Compania Aurifera Brisas del Cuyuni, CA. (the "Onshore Owner")
entered into an agreement with the Contractor made as of the 12th
day of April, 2006 (the "SA Contract"), pursuant to which, among
other things, the Owner agreed to make certain payments, from time
to time, to the Contractor arising from the performance by the
Contractor of certain Services (as defined in the SA Contract) for
or in relation to a new gold mine project in Brisas, Venezuela in
accordance with the terms of the SA Contract;
B. Gold Reserve Inc. ( the "Offshore Owner") entered into an
agreement with the Contractor made as of the 12th day of April,
2006 (the "CA Contract"), pursuant to which, among other things,
the Owner agreed to make certain payments, from time to time, to
the Contractor arising from the performance by the Contractor of
certain Services (as defined in the CA Contract) for or in relation
to a new gold mine project in Brisas, Venezuela in accordance with
the terms of the CA Contract;
C. Each of the Onshore Owner and the Offshore Owner is a
subsidiary or an affiliate of, or is otherwise related directly or
indirectly to, the Guarantor, and the Guarantor has an interest in
the performance by the Owner of its payment obligations under the
Contract; and
D. It is a condition precedent of the Contract that the Guarantor
provide to the Contractor the guarantees contained herein.
NOW THEREFORE in consideration of the entering into the Contract
by the Contractor and the payment of the sum of CDN$10.00 by the
Contractor to the Guarantor, and other good and valuable
consideration (the receipt and sufficiency of which is fully
acknowledged by the Guarantor), the Guarantor hereby warrants to
and covenants and agrees with the EP Consultant and the CM
Consultant (each referred to herein as the 'Contractor') as
follows in respect of the obligation of the Offshore Owner and
the Onshore Owner (each referred to herein as the 'Owner')
under the CA Contract and the SA Contract, respectively (each
referred to herein as the 'Contract'):
1. GUARANTEE
1.1 The Guarantor, in accordance with the terms and
conditions herein, hereby guarantees to the Contractor that
the Owner will pay the Contractor all amounts due to the
Contractor by the Owner under the Contract when such
amounts are properly due thereunder and in accordance with
the provisions of the Contract (collectively and
individually all of the foregoing referred to herein as the
"Guaranteed Obligations"), including without limitation the
fulfilment by the Owner of all obligations under the
Contract to:
(a) pay the Contractor for the Services as rendered;
(b) indemnify the Contractor and pay the Contractor damages; and
(c) pay the Contractor the Base Fee and Performance Incentives
earned.
1.2 The Guarantor acknowledges receipt of a copy of the Contract
and represents and confirms that the Guarantor is fully familiar
with all terms and conditions of the Contract.
2. REMEDIES AVAILABLE TO CONTRACTOR
2.1 Without prejudice and in addition to any and all other
remedies that may be available to the Contractor against the
Owner, if the Owner at any time, or from time to time,
defaults in the fulfilment of any one or more of the
Guaranteed Obligations (individually and collectively each
such default the "Owner Default"), then so often as any such
Owner Default occurs and has not been remedied by the Owner
within the time permitted, if any, under the Contract, the
Guarantor shall, on written demand of the Contractor
specifying the Owner Default, make good, cause to be made
good or otherwise remedy the Owner Default, and in such case
the Contractor shall not be bound to exercise or exhaust any
recourse against the Owner or its property or any other
guarantor or its property before being entitled to the
fulfilment by the Guarantor of the Guaranteed Obligations.
3. RECOURSE
3.1 The Contractor shall not be bound to exercise or exhaust
any recourse against the Owner, the Owner's property, any
surety of the Owner, or anyone else before being entitled
to pursue the Guarantor for the fulfilment by the
Guarantor of any and all of the Guaranteed Obligations.
The Guarantor hereby irrevocably waives the right to
require the Contractor to proceed against or exhaust its
recourse against the Owner, the Owner's surety under any
performance bond delivered under the Contract, or any
other person liable on or in respect of the Guaranteed
Obligations, to proceed against or exhaust any security
held from the Owner or any other person in respect of the
Guaranteed Obligations or to pursue any other remedy in
the Contractor's power whatsoever. The Contractor may, at
its election, exercise or decline to exercise any right or
remedy it may have against the Owner or any security held
by the Contractor in respect of the Guaranteed Obligations
without affecting or impairing in any way the liability of
the Guarantor hereunder, and the Guarantor hereby
irrevocably waives any defence arising out of the absence,
impairment or loss of any such security or right of
reimbursement, contribution or subrogation or any other
security, whether resulting from such election by the
Contractor or otherwise.
3.2 If the Contractor obtains an arbitration award or judgment
against the Owner and in favour of the Contractor in
connection with the Contract, and if the Owner fails
within fourteen (14) days to comply with or pay any such
arbitration award or judgment, the Guarantor:
(a) within seven (7) days of receipt of demand from the
Contractor, or on or before the date specified in said arbitration
award or judgment (whichever comes first), will pay all amounts
awarded to the Contractor in the arbitration award or judgment; and
(b) subject to defences that the Owner has, agrees to and hereby
waives any and all defences that the Guarantor may otherwise have
to dispute or contest the validity of the arbitration or judicial
proceeding the arbitral award or judgment, the amounts (if any)
awarded to the Contractor in the arbitral award or judgment, and to
the enforcement of this Guarantee against the Guarantor, provided
that if the Owner commences legal proceedings in a court of
competent jurisdiction in Ontario to appeal the validity of the
arbitration award or the judgment, or the amounts (if any) awarded
to the Contractor in the arbitral award or judgment, the obligation
of the Guarantor to pay the amount of any such arbitration award or
judgment shall be suspended until that court has rendered its
decision on such appeal of the arbitral award or judgment.
4. CONTRACTOR MAY AT ITS OPTION PROCEED AGAINST GUARANTOR
4.1 If an Owner Default occurs and if the Guarantor fails
forthwith on demand to remedy, make good or cause to be
made good such Owner Default, including but not limited to
paying the Contractor such amounts as may be due to the
Contractor by the Owner under the Contract, then so often
as any such Owner Default and failure shall happen the
Contractor shall have the right, in its discretion, to
proceed in its name directly against the Guarantor for any
and all remedies provided by law, equity or in the
Contract, whether by legal proceedings or otherwise, to
have the Guarantor at the Contractor's option fulfil any
and all of the Guaranteed Obligations of the Owner, and all
of the remedies hereunder in favour of the Contractor shall
be cumulative.
4.2 Without limiting but in addition to the provisions of Secti
on 4.1, the Guarantor hereby irrevocably renounces all
benefits of division and binds itself jointly and severally
with the Owner to fulfil and perform, or cause to be
fulfilled and performed, the Guaranteed Obligations in the
manner and upon the terms and conditions set forth herein
and in the Contract. The Guarantor agrees that a separate
legal proceeding or arbitration (each an "Action"), or
separate Actions, may be brought by the Contractor against
the Guarantor whether or not an Action is brought against
the Owner or any other person liable in respect of the
Guaranteed Obligations, and whether or not the Owner or
such other person is or can be joined in any such Action or
Actions, provided, however, that any final judgment or
award in any such Action against the Contractor in respect
of the obligations of the Owner shall bind the Contractor
in any subsequent or ongoing Action against the Owner or
Guarantor or any other person.
5. NON-RELEASE OF LIABILITY
5.1 The obligations of the Guarantor hereunder are irrevocable,
except as expressly provided herein, and the Guarantor
hereby expressly agrees that until all of the Guaranteed
Obligations have been fully and completely performed, or
otherwise released or discharged by law or express
agreement of the Parties, it shall not be released or
discharged from its obligations hereunder by any matter or
thing whatsoever that would otherwise release or discharge
a guarantor. Without limiting the generality of the
foregoing, the Guarantor expressly agrees that none of the
following, whether taken by the Owner, the Contractor, the
Guarantor or any other person or entity, shall in any way
release, affect or impair the obligations and liabilities
of the Guarantor hereunder:
(a) the voluntary or involuntary liquidation, dissolution,
consolidation or merger (or the sale or other
disposition of all or part of the assets) of the Owner
or the Guarantor;
(b) the bankruptcy, receivership, insolvency, assignment for the
benefit of creditors, reorganization, arrangement,
composition or readjustment of debt, or other similar
proceeding affecting the Owner or the Guarantor or any of
their assets;
(c) the validity or unenforceability of any security, performance
bond, third party guarantees, or other assurances intended to be
granted or provided by the Owner or any other party to the
Contractor under the Contract or otherwise;
(d) the failure of the Contractor or any other party to take,
protect or preserve any security instrument, performance bond or
similar instrument from the Owner or any other party in relation to
the Contract, or the loss, diminution or unenforceability or
impossibility to realize or abstention from realization of any such
security instrument, performance bond or similar instrument,
whether or not caused or resulting from any act or omission of the
Contractor or any person acting for the Contractor or for whom the
Contractor may be responsible.
(e) if, with or without the Guarantor's knowledge or consent,
there are any one or more of the following (prior notice of which
to and consent of the Guarantor is hereby expressly waived by the
Guarantor), except to the extent that they themselves release,
discharge, or waive the obligations of the Owner:
(i) any modifications of the Contract, including material changes
to the Contract, made by agreement of the Contractor and Owner;
(ii) any alterations, modifications, supplements or changes,
including material changes, of time, extensions of time, scope of
Services, price, schedule of payments and payment terms (including
the amount and timing of payments), to the Contract;
(iii) any waivers by the Contractor or Owner of any terms,
provisions, conditions or obligations under the Contract;
(iv) any assignment or the making of any assignment of the Contract
as may be allowed under the Contract;
(v) any waivers of any provisions of the Contract by the
Contractor or Owner;
(vi) any granting of indulgences or extensions of time by the
Contractor to the Owner, including the making of any payment by the
Contractor to the Owner in advance of or in excess of the amounts
to which the Owner is otherwise entitled under the Contract;
(vii) any failure by the Contractor to enforce any provision of
the Contract against the Owner; and
(viii) any other granting of extensions of time, renewals,
indulgences, waivers, releases or discharges, or the making of any
compromises or transactions or arrangements, by the Contractor in
favour of the Owner (including in relation to any one or more
provisions of the Contract, the performance
bond, any financial or other security, any third
party guarantees or any other assurances held by
the Contractor).
6. NO MODIFICATION OR IMPAIRMENT
6.1 Neither the Guarantor's obligations under this Guarantee
nor any right or remedy for the enforcement thereof shall
be impaired, stayed, modified, changed or released in any
manner whatsoever by any impairment, stay, modification,
change, release or limitation of the Owner or any other
person or its estate in bankruptcy resulting from the
operation or effect of any provision of the Bankruptcy and
Insolvency Act (Canada), the Companies' Creditors
Arrangement Act (Canada), the Winding-Up Act (Canada) or
other statute, code or laws of any jurisdiction relating to
debtor relief, or from the decision of any court or
authority interpreting any of the same, and the Guarantor
shall be obligated under this Guarantee as if no such
impairment, stay, modification, change, release or
limitation had occurred.
7. REIMBURSEMENT FOR EXPENSES
7.1 The Guarantor covenants and agrees that it will promptly
pay or reimburse the Contractor upon the Contractor's request
for all reasonable expenses, disbursements and costs
(including legal costs and disbursement at actual cost to the
Contractor), made or incurred by the Contractor in enforcing
its rights hereunder, if the Contractor prevails in such
litigation.
8. LIMIT OF LIABILITY
8.1 The Guarantor shall not under any circumstances be liable
under this Guarantee for sums greater than any applicable
limits of liability provided for in the Contract in favour of
the Owner.
8.2 Guarantor shall have the right to avail itself of all
defences, indemnities and waivers, releases, limitations
and exclusions of liability available to the Owner under
the Contract. The foregoing, however, shall not give the
Guarantor the right to assert any defences, indemnities
and waivers, releases, limitations and exclusions of
liability of the Owner against the Contractor that are no
longer available to the Owner, including for the Owner's
failure to comply with the requirements of the Contract
for giving notices, and for providing documentation,
within the time limits specified in the Contract. For
greater clarity, and other than the right of the
Contractor to claim under and enforce this Guarantee in
accordance with its terms in any court of competent
jurisdiction or arbitral tribunal having jurisdiction, the
Contractor acknowledges that it shall not be entitled to
more rights and remedies against the Guarantor than it
would have had against the Owner under the Contract but
for the circumstances described in Section 6.1.
9. REPRESENTATIONS AND WARRANTIES OF GUARANTOR
9.1 The Guarantor hereby represents and warrants
to the Contractor that:
(a) the Guarantor is a corporation duly
incorporated, organized and subsisting under
the applicable laws of Yukon Territory,
Canada;
(b) the Guarantor has good and sufficient power,
authority and right to enter into and
deliver this Guarantee and to perform its
obligations hereunder; and
(c) this Guarantee constitutes a valid and
legally binding obligation of the Guarantor,
and is enforceable against the Guarantor in
accordance with its terms.
10. NOTICES
10.1 Any demand hereunder shall be signed by an
authorized representative of the Contractor, and the
demand shall be accompanied by a statement from the
Contractor's Project Manager describing the general
nature of the Owner Default. Any demand, notice or other
communication will be given in writing and will be given
by personal delivery, by registered mail or by electronic
means of communication (including facsimile) addressed to
the recipient as follows:
To the Guarantor:
Gold Reserve Inc.
The Drury Building,
3081 Third Avenue,
Whitehorse, Yukon, Canada Y1A 4Z7
Facsimile: (867) 668-3710
Attention:Gregory Fekete
To the Contractor: SNC-LAVALIN
ENGINEERS & CONSTRUCTORS INC.
2200 Lake Shore Boulevard West
Toronto, Ontario, Canada M8V 1A4
Facsimile: (416) 231-5356
Attention: Senior Vice-President, Mining &
Metallurgy
AND
SNC-LAVALIN GROUP INC.
SNC-Lavin Group Inc.
455 Rene Levesque Boulevard West,
Montreal, Quebec H2Z 1Z3
Facsimile: 1-415-866-5057
Attention: Vice President Legal
or to such other address, individual or electronic
communication number as may be designated by notice given
by either party to the other.
10.2 Any demand, notice or other communication given by
personal delivery will be conclusively deemed to have been
given on the day of actual delivery thereof and, if given by
registered mail, on the fifth business day following the
deposit thereof in the mail and, if given by electronic
communication, on the day of transmittal thereof if given
during the normal business hours of the recipient and on the
business day during which such normal business hours next
occur if not given during such hours on any day. If the
party giving any demand, notice or other communication knows
or ought reasonably to know of any strike or lockout
affecting the postal system that might affect the delivery
of mail, any such demand, notice or other communication will
be given by personal delivery or by electronic
communication.
11. GOVERNING LAW AND ATTORNMENT TO JURISDICTION OF THE COURTS OF
ONTARIO
11.1 This Guarantee shall be construed in accordance with
and governed by the laws of the Province of Ontario and the
laws of Canada applicable therein.
11.2 The Guarantor agrees that any legal suit, action or
proceeding arising out of or relating to this Guarantee may
be instituted in the courts of the Province of Ontario, and
the Guarantor hereby irrevocably and unconditionally accepts,
attorns and submits to the jurisdiction of the courts of the
Province of Ontario in relation to this Guarantee, including
but not limited to any actions to enforce this Guarantee.
12. ENTIRE AGREEMENT
12.1 This Guarantee constitutes the entire agreement of the
Guarantor with the Contractor relating to the subject
matter hereof and supersedes all prior contracts or
agreements, whether oral or written. There are no
representations, agreements, arrangements or undertakings,
oral or written, between the Guarantor and the Contractor
relating to the subject matter of this Guarantee which are
not fully expressed herein.
13. AMENDMENT AND WAIVERS
13.1 No amendment to this Guarantee will be valid or
binding unless set forth in writing and duly executed by
each of the Contractor and the Guarantor. No waiver of any
breach by the Guarantor of any provision of this Guarantee
will be effective or binding unless made in writing and
signed by the Contractor and, unless otherwise provided,
will be limited to the specific breach waived
14. ADDITIONAL SECURITY
14.1 This Guarantee is in addition to and not in
substitution for any other undertakings, securities and
guarantees held or which may be held by or for the
benefit of the Contractor, including without limitation
any performance bonds, letters of credit, financial
holdbacks under the Contract, and guarantees from any
other parties.
15. TIME
15.1 The Guarantor shall promptly and with all due
diligence perform its obligations under this Guarantee.
16. SUCCESSORS AND ASSIGNS
16.1 This Guarantee shall extend to and enure to the benefit
of the Contractor and its successors and assigns. The
Contractor may assign its interest herein to any permitted
assign of the Contract and this Guarantee will enure to the
benefit of such permitted assign. The Contractor shall give
notice promptly to the Guarantor of any assignment in
accordance with the foregoing. The Guarantor may not assign
its obligations set forth herein.
17. SEVERABILITY
17.1 The invalidity or unenforceability of any portion or
provision of this Guarantee shall in no way affect the validity or
enforceability of any other portion or provision hereof. Any
invalid or unenforceable portion or provision shall be deemed
severed from this Guarantee and the balance of the Guarantee shall
be construed and enforced as if the Guarantee did not contain such
invalid or unenforceable portion or provision. If any such
provision of this Guarantee is so declared invalid or
unenforceable, the Guarantee shall automatically be deemed to be
amended retroactively to include in substitution therefor a
provision that is valid and enforceable that is consistent with
the general intent of this Guarantee.
18. LEGAL ADVICE
18.1 The Guarantor hereby represents and confirms that it
has obtained independent legal advice in respect of this
Guarantee prior to the execution and delivery of this
Guarantee to the Contractor.
19. LANGUAGE OF GUARANTEE
19.1 This Guarantee is drawn in English at the request of
the parties hereto. La presente convention est redigee en
anglais a la demande des parties.
20. EXECUTION BY AUTHORIZED REPRESENTATIVES
20.1 The Guarantor represents and warrants that this
Guarantee is valid, binding on the Guarantor, and
enforceable against the Guarantor in accordance with its
terms.
IN WITNESS WHEREOF, the Guarantor has executed this Guarantee
under seal by its duly authorized representatives, and the
Contractor has executed this Guarantee by its authorized
representatives, effective as of the year and date first above
written.
THE CORPORATE SEAL of
GOLD RESERVE INC.
was hereunto affixed in the presence of:
C/S
s/A. Douglas Belanger
Authorized Signatory
FORM OF OFFICER'S CERTIFICATE
TO ACCOMPANY PARENT COMPANY GUARANTEE
I, the undersigned, hereby certify that I am the Vice-President and
Chief Legal Officer of Gold Reserve Inc., a company organized and
existing under the laws of Yukon Territory, Canada (the "Company").
I further certify that as of the date hereof:
1. The Company has been incorporated and is existing as a
Corporation under the law of the Yukon Territory, Canada.
2. The execution and delivery of the Parent Company Guarantee
dated April 12th, 2006 by the Company does not violate the laws of
the Yukon Territory, Canada or the Company's deed of incorporation,
memorandum, articles, by-laws or other constating documents.
3. The Company has taken all necessary corporate action to
authorize its execution, delivery and performance of the Parent
Company Guarantee.
4. The Parent Company Guarantee has been validly executed by the
Company.
5. I know of no reason why the Parent Company Guarantee is not
enforceable against the Company in accordance with its terms.
IN WITNESS WHEREOF, I hereby subscribe my name on behalf of the
Company on this 12th day of April 2006.
Gold Reserve Inc.
By: s/John N. Galbavy
Name: John N. Galbavy
Title: Vice-President & Chief Legal
Officer