第5章 合同专用条款-英文

Volume ISection 5. Part II ---- Special Conditions of ContractSTANDARD SPECIAL CONDITIONS OF CONTRACTThe following Standard Special Conditions of Contract shall supplement the General Conditions of Contract. Whenever there is a conflict, provisions herein shall prevail over those in the General Conditions of Contract.Definitions and InterpretationReplace 1.1 (a) (i) in its entirety with:Definitions 1.1 (a) The “Bank”includes the International Bank forReconstruction and Development (IBRD) and theInternational Development Association (IDA).(i) The Employer is the party stipulated in the Appendix toBid. The Employer may nominate a Procurement Agent toact on its behalf under the Contract. If so, the name of suchprocurement Agent and the extent of the authorization, suchas handling Arbitration and commercial affairs, offered bythe Employer will be listed in the Appendix to Bid.(iv) The Engineer is the Party stipulated in the Appendix toBid.Amend subpara. (a) (iv) also by adding the following wordsafter the word “Conditions”:“or any other competent person appointed by the Employer,and notified to the Contractor, to act in replacement of theEngineer.”Add the following new definition to (a):(vi) “Contractor‟s Authorized Representative”means theperson designated by the Contractor to act for theContractor in all actions under this Contract.(vii) “Skilled Labor”means persons having knowledge tolay out and supervise work of a complete character andincludes equipment operators.(viii) “Unskilled Labor” means persons performing manualwork with common hand tools.Amend subpara. (b) (v) of Sub-Clause 1.1 by adding thefollowing words at the end:(b) (v) “The word …tender‟is synonymous with …bid‟andthe words …Appendix to Tender‟with …Appendix to Bid‟,and the words …tender documents‟with …biddingdocuments‟.”(vii) Delete the words “(if any)”.Add new definitions at the end of Sub-Clause 1.1 asfollows:(h) (i) “RMBY”or “Yuan”is the denomination ofRenminbi Yuan, the currency of PRC.(ii) CHINA is the People‟s Republic of China (abbreviated as PRC or PR China).Engineer and Engineer‟s RepresentativeEngineer‟s Duties andAuthorities 2.1 With reference to Sub-Clause 2.1 (b), the followingprovision shall also apply:The Engineer shall obtain the specific approval of theEmployer before taking any of the following actionsspecified in Part I:(a)consenting to the subletting of any part of the Worksunder Clause 4;(b)certifying additional cost under Clause 12;(c)determining an extension of time under Clause 44;(d)issuing a variation order under Clause 51, except:(i)in cases of emergency which, in the Engineer‟sopinion, involve safety to life, limb, or theWorks, or of adjoining property or otherwiserequires immediate action to protect theEmployer‟s interests, the Engineer is authorizedto issue such orders as deemed necessary forthe period of the emergency and the Contractorshall execute all such work or to do all suchthings as may, in the opinion of the Engineer,be necessary to abate or reduce the risk. TheContractor shall forthwith comply, despite theabsence of the approval of the Employer, withany such instruction of the Engineer. TheEngineer shall determine an addition to theContract Price, in respect of such instruction, inaccordance with Clause 52 and shall notify theContractor accordingly, with a copy to theEmployer.(ii)if such variation would increase the ContractPrice by less than the amount stated in theAppendix to Bid; or(e)fixing rates or prices under Clause 52; or(f)authorizing significant design changes, those whichwould affect the basic function or capacity of the designfeature.Assignment and Subcontracting Add one new Sub-Clause 4.3 as follows:Domestic Preference 4.3 If the Contractor consists of a joint venture of domestic andforeign firms which is awarded the contract through theapplication of the 71/2-percent domestic preference, theContractor shall not, without express approval of theEmployer, modify the profit and loss distribution andwork-sharing characteristics of the joint venture with whichit satisfied the criteria of eligibility for being awarded theContract with the application of the domestic preference.Contract DocumentsReplace Sub-Clause 5.1 in its entirety with:Language/s and Law 5.1 The Contract shall be drawn up in English. If the saiddocuments are translated in more than one language,English is the language according to which the Contractshall be construed and interpreted and is therein designatedthe “Ruling Language”. However, contracts entered intowith local bidders (excluding joint ventures between localand foreign firms) may, at the Employer‟s option, be inChinese, which shall be the governing language for suchcontracts.The law governing the Contract shall be the current law ofthe People‟s Republic of China and the Contract shall beaccording construed.Priority of Contract Documents 5.2 Delete the documents listed 1-6 and substitute:(1)the Contract Agreement (if completed);(2)the Letter of Acceptance;(3)the Bid and the Appendix to Bid;(4)the Conditions of Contract, Part II B (if any);(5)the Conditions of Contract, Part II A;(6)the Conditions of Contract, Part I;(7)the Specifications;(8)the Drawings;(9)the priced Bill of Quantities; and(10)o ther documents, as listed in the Appendix to Bid.Permanent Works Designed by Contractor 7.2 Add one new paragraph (c):(c) The Engineer shall reply within 35 days from the dateof submission of the Contractor‟s design giving approvaland/or comments of such submission. The Contractor shallamend his design and drawing in accordance with theEngineer‟s comments and approvals before re-submission,if necessary. Without the Engineer‟s approval the Contractor shall not make any changes in the Contract. General ObligationsReplace Sub-Clause 10.1 in its entirety with:Performance Security 10.1 Within 28 days after the receipt of the Letter of Acceptance,the Contractor shall provide security for its properperformance of the Contract to the Employer with a copy tothe Engineer. The Performance Security shall be in theform of a bank guarantee, specified in Section9. Appendixto Bid states the percentages of the Contract Price to beused in determining the amount of a bank guarantee whichshall be issued;(i)by a bank registered and operating in thePeople‟s Republic of China,(ii)by a foreign bank acceptable to the Employerthrough a Chinese Bank.The Performance Security shall be denominated in thetypes and proportions of currencies in which the ContractPrice is payable. The cost of complying with therequirements of this Clause shall be borne by theContractor.Without limitation to the provisions of the precedingparagraph, whenever the Engineer determines an additionto the Contract Price as a result of a change in cost and/orlegislation or as a result of a variation amounting to morethan 25 percent of the portion of the Contract Price payablein a specific currency, the Contractor, at the Engineer‟swritten request, shall promptly increase the value of thePerformance Security in that currency by an equalpercentage. The Performance Security o a joint ventureshall be in the name of the joint venture.Replace Sub-Clause 10.2 in its entirety with:Period of Validity of the Performance Security 10.2 The Performance Security shall be valid until a date 28days from the date of issue of the Taking-Over Certificate.The security shall be returned to the Contractor within 14days of expiration.Claims underPerformanceSecurity10.3 Delete this Sub-Clause.Delete the original Sub-Clause 10.3 and substitute with:Cost of Performance Security 10.4 The cost of complying with the requirements of this clauseshall be borne by the Contractor.Add one new Sub-Clause 11.2 as follows:Access to Data 11.2 Data made available by the Employer in accordance withSub-Clause 11.1 shall be deemed to include data, if any, listedelsewhere in the Contract as open for inspection at theaddress stipulated in the Appendix to Bid.Program to be Submitted 14.1 Replace “in Part II of these Conditions after the date ofLetter of Acceptance”in the first sentence with “inAppendix to Bid after the date of signing the ContractAgreement”.Replace Sub-Clause 14.2 in its entirety with:Revising the Program of Works 14.2 The Contractor shall revise the Program of Works at notmore than three (3) month intervals including:(a)Charted monthly forecast of principal work quantitiesto be executed for the balance of the Works remainingto be done and(b)Projected schedule of payments to be made to theContractor by the Employer.If at any time it should appear to the Engineer that theactual progress of the Works does not conform to the latestProgram of Works to which consent has been given, theEngineer may request to revised program from theContractor showing the modifications to such programnecessary to ensure completion of the Works within theTime for Completion.Cash Flow Estimate to be Submitted 14.3 Delete “within the time stated in Part II of these Conditionsafter the date of the Letter of Acceptance,”in the firstsentence and add as the final sentence: “the initial cashflow estimated shall be submitted with the programpursuant to Sub-Clause 14.1 within the number of daysspecified in the Appendix to Bid.”Add the following Sub-Clauses 15.2 and 15.3:Language Ability of Contractor’s Representative 15.2 If the Contractor‟s authorized representative is not, in theopinion of the Engineer, fluent both in English andChinese, the Contractor shall have available on Site at alltimes at least one competent interpreter to ensure the propertransmission of instructions and information.Language Ability of Superintending Staff 15.3 A reasonable proportion of the Contractor‟s superintendingstaff shall have a working knowledge of Chinese or theContractor shall have available on Site at all times asufficient number of competent interpreters to ensure theproper transmission of instructions and information.Amend Sub-Clause 20.4 to read as follows:Employer’s Risks 20.4 The Employer‟s risks are:(a) insofar as they directly affect the execution of the Worksin The Peopl e‟s Republic of China where the PermanentWorks are to be executed:(i) war, hostilities (whether war be declared or not),invasion, act of foreign enemies;(ii) rebellion, insurrection, or military or usurped power,or civil war;(iii) ionizing radiations, or contamination byradioactivity from any nuclear fuel, or from any nuclearwaste from the combustion of nuclear fuel, radioactivetoxic explosive, or other hazardous properties of anyexplosive nuclear assembly or nuclear component thereof;(iv) pressure waves caused by aircraft or other aerialdevices traveling at sonic or supersonic speeds;(v) riot, commotion or disorder, unless solely restrictedto employees of the Contractor or of his Subcontractors andarising from the conduct of the Works.(b) loss or damage due to use or occupation by theEmployer of any Section or part of the Permanent Works,except as may be provided for in the Contract;(c) loss or damage to the extent that it is due to the designof the Works, other than any part of the design provided bythe Contractor or for which the Contractor is responsibleand;(d) any operation of the forces of nature (insofar as itoccurs on the Site or other locations in China directlyaffecting the performance of the Contract) which anexperienced Contractor:(i) could not have reasonably foreseen, or(ii) could have reasonably foreseen, but could neither;(1)have reasonably taken measures against preventingloss or damage to physical property fromoccurring, nor(2)have reasonably insured against such loss ordamage.Insurance of Works and Contractor’s Equipment 21.1 Add the following words at the end of subparas. (a) andimmediately before the last word of subpara. (b) ofSub-Clause 21.1:“it being understood that such insurance shall provide forcompensation to be payable in the types and proportions ofcurrencies required to rectify the loss or damage incurred,”Scope of Cover 21.2 Amend subpara. (a) of Sub-Clause 21.2 by deleting thewords “from the start of work at the Site”and bysubstituting therefor the words “from the first working dayafter the Commencement Date.”Add the following as Sub-Clause (c) under this Sub-Clause21.2:(c) It shall be the responsibility of the Contractor to notifythe insurance company of any change in the nature andextent of the Works and to ensure the adequacy of theinsurance coverage at all times during the period of theContract.Amend Sub-Clause 21.4 to read as follows:Exclusions 21.4 There shall be no obligation for the insurance inSub-Clause 21.1 to include loss or damage caused by therisks listed under Sub-Clause 20.4 sub-paragraphs (a) (i) to(iv) of Part II A ---- Standard Special Conditions ofContract.Replace Sub-Clause 25.1 in its entirety with:Evidence and Terms of Insurances 25.1 The Contractor shall provide evidence to the Employers assoon as practicable after the respective insurances havebeen taken out, that the insurances required under theContract have been effected and shall, within the earlier of :(a)7 days prior to the Contractor‟s start of activities forwhich the insurance is required, or(b)84 days of the Commencement Date,Provide the insurance policies to the Employer. Such insurance policies shall be consistent with the general termsagreed prior to the issue of the Letter of Acceptance. TheContractor shall effect all insurance for which he isresponsible with any insurance company operating inChina, or with any eligible source insurance company,approved in advance by the Employer, and in termsapproved by the Employer.Add the following Sub-Clause 25.5:Source of Insurance 25.5 The Contractor shall be entitled to place all insurancerelating to the Contract (including, but, not limited to, theinsurance referred to in Clause 21,23, and 24) with insurersfrom any eligible source country as defined in theGuidelines: Procurement under IBRD Loans and IDACredits, which have been determined to be acceptable tothe Employer.Inspections and Audit by the Bank 26.2 The Contractor shall permit the Bank to inspect theContractor‟s accounts and records relating to theperformance of the Contract and to have them audited byauditors appointed by the Bank, if so required by the Bank. Add the following new Sub-Clauses to Clause 30:Construction Traffic 30.5 The Contractor shall arrange and bear all costs of anyspecial permits required for extraordinary constructiontraffic on public roads.Local Transportation Services 30.6 The Contractor is encouraged to use local freight handlingand transportation services to the greatest extent possiblewhen transporting Construction Plant and materials to theSite. The Contractor shall enter into agreements with onlythose transportation organizations that are legallyestablished in China for that purpose.LaborAdd the following to the end of Sub-Clause 34.1:Engagement of Staff andLabor 34.1 The Contractor is expected to employ Unskilled Labor andto the extent practicable and reasonable, Skilled Labor fromwithin the People‟s Republic of China.The Contractor shall not, however, recruit its staff and laborfrom any persons in the service of the Employer or theEngineer. The Contractor shall be responsible for the returnto the place of recruitment or to their domicile of all suchpersons as the Contractor recruited and employed for thepurposes of or in connection with the Contract and shallmaintain such person as are to be so returned in a suitablemanner until they shall have left the Site or, in the case ofpersons who are not nationals of China and have beenrecruited outside China, shall have left China.Add the following new Sub-Clauses to Clause 34:Contractor’s Expatriate Labor andStaff 34.2 As further specified in paragraphs (a) through (d) below theContractor shall, unless available and provided pursuant toSub-Clause 34.1 and Sub-Clause 34.3, be responsible forthe recruitment, transportation, accommodation andcatering of any expatriate labor or expatriate staff(hereinafter “Expatriate Personnel”) required for theexecution of the Works and for all payments in connectiontherewith:(a)The issuing of entry visas, exit visas, transit permits andresidency permits for the Contractor‟s foreign personneland their families shall be subject to the relevantregulations of China. The Contractor shall beresponsible for obtaining all necessary permits or visasfrom the appropriate authorities for ExpatriatePersonnel to enter into China.(b)The Contractor shall obtain the prior approval of theEmployer to employ such members of foreign professional and supervisory staff as the Contractor considers desirable for the execution of the Works.When the approval of the Employer has been given in writing, the Contractor will be permitted to bring its agent and other skilled Expatriate Personnel into China under temporary visas for the duration of the Contract, and other visiting experts for shorter periods as agreed.(c)The written consent of the Employer is required prior tofamilies of Contactor‟s Expatriate Personnel entering into China.(d)The Contractor and its Sub-Contractors shall, in alldealings with their Expatriate Personnel, for the time being Employed on or in connection with the Works, pay due regard to all recognized festivals, official holidays and religious or other customs.Obtaining Local Labor 34.3 The Contractor shall only enter into agreements orsubcontracts for the supply of local labor (Sub-Clause 16.1and 34.1) with labor suppliers licensed for these purposeswithin China and a copy of the signed agreement orsubcontract and any attachments thereto shall be providedby the Contractor to the Engineer.Wages for Local Labor 34.4 The Contractor shall increase or decrease wages andsalaries for its local Employees in accordance with anychanges in the laws and regulations of China and theprovincial government having jurisdiction over the areawhere the Site is located which might occur during thevalidity of the Contract.Site Regulations 34.5 The Employer and the Contractor shall establish SiteRegulations setting out the rules to be observed in theexecution of the Works at the Site and shall complytherewith.Such Site Regulations shall include, but not be limited to,rules in respect of:(a)Security,(b)Safety of Works,(c)Gate Control,(d)Sanitation,(e)Fire prevention,(f)Additional rules for the protection of the immediate andadjacent environment.Prevention of Unlawful 34.6 At all times the Contractor shall take all reasonableprecautions to prevent any unlawful, riotous or disorderlyConduct conduct by or amongst its staff and labor and for thepreservation of peace and protection of persons andproperty in the neighborhood of the Works against thesame.Alcoholic Liquor orDrugs 34.7 The Contractor shall not, otherwise than is in accordancewith the Statutes, Ordinances and Government Regulationsor Orders currently in force, import, sell, give, barter orotherwise dispose of any alcoholic liquor or drugs, orpermit or suffer any such importation, sale, gift, barter ordisposal by its subcontractors, agents, staff or labor.Arms and Ammunition 34.8 The Contractor shall not give, barter or otherwise disposeof to any person or persons, any arms or ammunition of anykind or permit or suffer the same as aforesaid.Burial 34.9 The Contractor shall make all necessary arrangements forthe transport and burial of any of its expatriate employeesor members of their families who may die in China. TheContractor shall also be responsible, to the extent requiredby the local regulations, for making burial arrangements forany of its local employees who may die while engagedupon the Works.Add the following new Sub-Clauses to Clause 35:Safety Officer 35.2 The Contractor‟s on-site staff shall include a qualifiedSafety Officer dealing only with safety and accidentprevention for all staff and labor. This officer shall have theauthority to issue instructions and take protective measuresto prevent accidents.Records of Safety and Health 35.3 The Contractor shall maintain records concerning safety,health and welfare of persons and damage to property andmake such reports as the Engineer may from time to timeprescribe.Health and Safety 35.4 Due precautions shall be taken by the Contractor, and at itsown cost, to ensure the safety of its staff and labor and, incollaboration with and to the requirements of the localhealth authorities, to ensure that medical staff, first aidequipment and stores, sick bay and suitable ambulanceservice are available at the camps, housing and on the Siteat all times throughout the period of the Contract and thatsuitable arrangements are made for the prevention ofepidemics and for all necessary welfare and hygienerequirements.Disease 35.5 The Contractor shall take all necessary precautions toprotect its staff and labor employed on the Site from insectnuisance, rats and other pests and reduce the dangers tohealth and the general nuisance occasioned by theirpresence. The Contractor shall provide its staff and laborwith suitable prophylactics for the prevention of malariaand take steps to prevent pounding of water and shall drainstagnant pools of water. The Contractor shall comply withthe regulations of the local health authorities in theserespects. Approved insecticide(s) shall be used to spraythoroughly all buildings erected on the Site at least once ayear or as additionally instructed by the Engineer. TheContractor shall warn its staff and labor of the dangers ofbilharzias and wild animals.Epidemics 35.6 In the event of any outbreak of illness of an epidemicnature, the Contractor shall comply with and carry out suchregulations, orders and requirements as may be made by theGovernment, or the local medical or sanitary authorities,for the purpose of dealing with and overcoming the same.Reporting of Accidents 35.7 The Contractor shall report details of any accident to theEngineer as soon as possible after its occurrence. In thecase of a fatality or serious accident, the Contractor shall, inaddition, notify the Engineer immediately by the quickestavailable means.Materials, Plant and WorkmanshipInsert the following to the front of the Sub-Clause:Quality of Materials, Plant and Workmanship 36.1 Unless otherwise provided under the Contract, theContractor shall procure and transport to the Site allDomestic and Foreign Materials in an expeditious andorderly manner.The Contractor is encouraged, to the extent practicable andreasonable, to use materials, Contractor‟s Equipment, Plant,and supplies from sources within the People‟s Republic ofChina.Commencement and DelaysAdd one new item as follows:Possession of Site and Access Thereto 42.1 (e) Unless otherwise approved, the Contractor shall not usethe Site for any purpose other than for the execution of theContract.Add the following new Sub-Clause 42.4:Land for Temporary Works 42.4 Should the Contractor require areas of land for TemporaryWorks he shall state any such requirements in Schedule ofLand Requirements for Temporary Works specified in theAppendix to Bid, for the approval of the Employer. Therequirement for the occupation of land may include areasneeded for work activities, for offices, accommodation and messing facilities, areas for temporary access roads, for the execution to the right-of-way and for other similar Temporary Works. Those areas of land as included above shall be provided by the Employer at no cost to the Contractor. The Contractor shall arrange for and bear all costs of any other additional land which have not been approved by the Employer.Bonus for Early Completion 47.3 Add the following new Sub-Clause 47.3:If the Contractor achieves completion of the Works or, ifapplicable, any Section thereof prior to the relevant timeprescribed by Clause 43, the Employer shall pay to theContractor the relevant sum stated in the Appendix to Bidas bonus for early completion, subject to the limit stated inthe Appendix to Bid, for every calendar day which shallelapse between the date stated in a Taking-Over Certificateof the whole of the Works or the applicable Section, and therelevant time prescribed in Clause 43.Add the following new Sub-Clause 48.5:Prevention From Testing 48.5 If the Contractor is prevented from carrying out the Testson Completion by a cause for which the Employer or theEngineer or other Contractors employed by the Employerare responsible, the Employer shall be deemed to havetaken over the Works on the date when the Tests onCompletion would have been completed but for suchprevention. The Engineer shall issue a Taking-OverCertificate accordingly. Provided always that the Worksshall not be deemed to have been taken over if they are notsubstantially in accordance with the Contract.If the Works are taken over under this Sub-Clause, theContractor shall nevertheless carry out the Tests onCompletion during the Defects Liability Period. TheEngineer shall require the Tests to be carried out by giving14 days notice to the Contractor.Any additional costs to which the Contractor may be put, inmaking the Tests on Completion during the DefectsLiability Period, shall be added to Contract Price.Defects LiabilityAdd the following new Sub-Clause 49.5:Extension of Defects Liability 49.5 The provisions of this Clause shall apply to allreplacements or renewals of Plant carried out by theContractor to remedy defects and damages as if thereplacements and renewals had been taken over on the datethey were completed. The Defects Liability Period for theWorks shall be extended by a period equal to the periodduring which the Works cannot be used by reason of adefect or damage. If only a part of the Works is affected,the Defects Liability Period shall be extended only for thatpart. In neither case shall the Defects Liability Periodextend beyond the number of years stated in Appendix toBid to this paragraph from the date of taking over. Alterations, Additions and OmissionsAdd final sentences as follows:Valuation of Variations 52.1 Where the Contract provides for the payment of theContract Price in more than one currency, and varied workis valued at, or on the basis of, the rates and prices set outin the Contract, payment for such varied work shall bemade in the proportions of various currencies specified inthe Appendix to Bid for the payment of the Contract Price.Where the Contract provides for payment of the ContractPrice in more than one currency, and new rates or prices areagreed, fixed or determined as stated above, the amount orproportion payable in each of the applicable currenciesshall be specified when the rates or prices are agreed, fixed,or determined, it being understood that in specifying theseamounts or proportions the Contractor and the Engineer (or,failing agreement, the Engineer) shall take into account theactual or expected currencies of cost (and the proportionsthereof) of the inputs of the varied work without regard tothe proportions of various currencies specified in theAppendix to Bid for the payment of the Contract Price.Add a final sentence to the first paragraph, as follows:Power of Engineer to Fix Rates 52.2 Where the Contract provides for payment of the ContractPrice in more than one currency, the amount or proportionpayable in each of the applicable currencies shall bespecified when the rates or prices are agreed, fixed ordetermined as stated above, it being understood that inspecifying these amounts or proportions the Contractor andthe Engineer (or, failing agreement, the Engineer) shall takeinto account the actual or expected currencies of cost (andthe proportions thereof) of the inputs of the varied workwithout regard to the proportions of various currenciesspecified in the Appendix to Bid for payment of theContract Price.Add as a third paragraph:Provided also that no change in the unit rates or prices。