Dated
2022
MANCHESTER AIRPORT PLC 1
[CONTRACTOR]
FORM OF CONTRACT AGREEMENT
incorporating the NEC4 Engineering
and Construction Contract
MAIN OPTION [ ] concerning [ ]
works at Manchester Airport
(Package[ ] )
(Works Contract)
(Reference:[
])
AGREEMENT
This Agreement is made on
1
Check Client entity
2022
Between
(1)
Manchester Airport PLC (No. 01960988) whose registered office is FAO Sylvia Welsh Manchester,
Professional Services Limited, PO Box 532, Town Hall, Manchester M60 2LA (Client); and
(2)
⧫ (No. ⧫) whose registered office is at ⧫ (Contractor).
Background
The Client wishes for the Contractor to carry out works and provide services, regarding [
Manchester Airport
] (Package[ ) at
It is agreed
1
The contract between the Client and the Contractor comprises:
(a)
this agreement;
(b)
the conditions of contract identified in the Contract Data, as amended / supplemented by the
Special Conditions in schedule Error! Reference source not found.;
(c)
the Contract Data (Parts Error! Reference source not found. and Error! Reference source not
found.), in schedule [ ];
(d)
the following documents:
(i)
the Scope in schedule [ ] (Scope);
(ii)
the Site Information in schedule [ ] (Site Information);
(iii)
[the Activity Schedule in schedule [ ] (Activity Schedule); ] [the Bill of Quantities (Bill of
Quantities)]2
(iv)
the Other Documents Schedule in schedule [ ] (Other Documents Schedule).
2
The Contractor will Provide the Works in accordance with (and shall perform his other duties and
obligations under and in accordance with) the contract.
3
The Client will pay the Contractor the amount due under (and in accordance with) the contract.
2
Choose depending on option used
10-28762665-1
2
Executed as a deed and delivered by
Manchester Airport PLC acting by a director
in the presence of:
)
)
)
)
)
…………………………………………………
Director
…………………………………………………..
Name
.............................................................................
Witness
……………………………………………………….
Name
Executed as a deed and delivered
[Contractor] acting by a director
in the presence of:
by
)
)
)
)
)
.............................................................................
Witness
……………………………………………………….
Name
10-28762665-1
3
…………………………………………………
Director
…………………………………………………..
Name
SCHEDULES
10-28762665-1
4
Contract Data Part 1 – Data provided by the Client
PART ONE – DATA PROVIDED BY THE CLIENT
1 General
The conditions of contract are the core clauses and the clauses for the following main Option,
the Option for resolving and avoiding disputes and secondary Options of the NEC4 Engineering
and Construction Contract June 2017 (with amendments January 2019 and October 2020).
Main Option
Secondary
Options
A
Option for resolving and
avoiding disputes
W2
[X2; X4; X5; X7; X10;X11; [X13]; X15; X16; X183 [X20]; X22;Y(UK)2]4
The works are
as more particularly described in the Scope. 5
The Client is
Name
Manchester Airport PLC 6
Address
Manchester Airport, Olympic House, Manchester M90 1QX7
Address for electronic communications
CEMAR8
The Project Manager is
Name
Mace Group9
Address
Olympic House, Manchester M90 1QX
4
select applicable seconday options
10-28762665-1
5
The Supervisor is
Name
Mace Group
Address
Address for electronic communications
CEMAR10
The Principal Designer is [the Contractor] [ or [
]
The Scope comprises
a) .
The Site Information is in
The boundaries of the site are identified on the drawing(s) / document(s) referenced ⧫
contained in the Site Information.
[Terminal 2, Manchester Airport11]
The premises are
The premises will12 remain operational during the carrying out of the works
The language
contract is
of
the
English
The law of the contract is
the law of
England and Wales
The period for reply is
[14 days]
except that
• The period for reply for
[Accepting samples or test results]
is
[four
weeks]
• The period for reply for
[Accepting particulars of design ]
is
[four
weeks]
The following matters will be included in the Early Warning Register
-
[Long lead plant items.
Other items TBC.]
Early warning meetings are to be held at intervals no longer than
10
T&T comment – Is this sufficient detail?
11
Reference to a plan or a more specific reference in the Scope should be sited
12
Delete as applicable.
10-28762665-1
6
[Two weeks]
The Client's Other Contractors are
[⧫][identified in the Scope]
2 The Contractor's main responsibilities
If the Client
has identified
work which is
set to meet a
stated
condition by a
key date
The key dates and conditions to be met are
condition to be met
key date
(1)
(2)
(3)
If Option C, D,
or E is used
The Contractor prepares forecasts of the total Defined Cost for the whole
of the works at intervals no longer than13
[A month]
3 Time
The starting date is
[The Contract
Date]
The access dates are
part of the Site
date
(1)
(2)
(3)
The Contractor submits revised programmes at intervals no longer than
If the Client
has decided
the
completion
date for the
whole of the
works
The completion date for the whole of the works is
Taking over the
works before
the Completion
Date
The Client [is][is not]14 willing to take over the works before the
Completion Date
If no
programme is
identified in
The period after the Contract Date within which the Contractor is to
submit a first programme for acceptance is
14
Delete as applicable.
10-28762665-1
7
[4 weeks]
part two of the
Contract Data
4 Quality management
The period after the Contract Date within which the Contractor is to
submit a quality policy statement and quality plan is
The period between Completion and the defects date is
[52 weeks]
Access is to be arranged through the Project Manager. When afforded access the Contractor
will minimise any disruption to the Client or others occupying the works.
For any given Defect, the defect correction period is determined by reference to the
classification of that Defect, in accordance with the following defects matrix and (where
applicable) clauses 42.2 to 44.2B (inclusive).
The defects matrix is:
Priority
Priority
Classification
1
Urgent
15
Defect
correction
period
24
hours
to
provide
permanent
or
temporary
remedial works
(if
the
Supervisor
accepts that a
permanent fix is
not possible in
the time).
Description
Urgent Defect includes (without limitation):
(a) Defects that could affect life critical systems e.g. mains
supply failure; mains supply fault or gas leak; leak to foul
drainage system; failure of fitting or lock to door or window;
total failure in functioning of heating system or hot water
supply; loss of lighting to common parts; or defective fire
alarm;
(b) Defects that could cause serious health and safety issues or
extensive deterioration of property;
(c) Defects that could cause essential services to be out of
action, including (for example, and without limitations):
(i) rutting / spalling in the runway creating Foreign Object
Debris (FOD) and causing runway closure or severely
restricted operations;
(ii) shattered / cracked / rocking or pumping slab requiring
immediate block area closure or rectification due to
FOD risk;
(iii) Aeronautical Ground Lighting (AGL) and visual /
instrumentation failure resulting in non-compliance with
the airports licence or with EASA CSR-DSN and
requiring further promulgation via NoTAM or restricting
operations; and
(iv) any defect causing reduced operational capability or
affecting the serviceability of the stands; and
(d) any Defect which in the Supervisor's sole opinion (acting
reasonably) could cause a material impairment to the
operational performance of, and/or the safety of passengers
15
Taken from previous MEP Contract. MAG to confirm if any amendments required
10-28762665-1
8
and/or any other persons using and/or working at any given
MAG Site.
2
Priority
2
weeks
to
provide
permanent
or
temporary
remedial works
(if
the
Supervisor
accepts that a
permanent fix is
not possible in
the time).
Priority Defects include Defects that do not fall within Priority 1
(Urgent), that cause or could (in the Supervisor's reasonable
opinion) cause inconvenience to the Client or airport operator(s)
e.g. internal environment, finishes to public areas, impacts
operations.
3
Other Defects
4
weeks
to
provide
permanent
or
temporary
remedial works
(if
the
Supervisor
accepts that a
permanent fix is
not possible in
the time).16
All other Defects (i.e. other than those falling within Priority 1 or 2
above) e.g. shrinkages and other faults identified and classed as
a Defect.
5 Payment
The currency
contract is
If Option C, D,
or E is used
of
the
Pounds Sterling
The assessment interval is
[4 weeks]
The interest rate is
[2% per annum above the official rate of the Bank of
England.17]
The exchange rates are those published in
on
If Option C, D,
or E is used
(date)
Disallowed Cost includes [the following: ⧫] [the cost(s) stated in section ⧫ of the Scope.]18
6 Compensation Events
The place where weather is to be recorded is
The weather measurements to be recorded for each calendar month are
•
the cumulative rainfall (mm)
16
Categories and timescales taken from Framework Document
17
refer 2% - generally accepted
18
T&T comment - Have we specified any Disallowed Costs in the Scope?
10-28762665-1
9
•
the number of days with rainfall more than 5 mm
•
the number of days with minimum air temperate less than 0 degrees Celsius
•
the number of days with snow lying at
•
[the number of days with a mean wind speed of greater than 25mph over a given 24
hour period]
[1500]
hours GMT
and these measurements
•
The number of days with a mean wind speed of greater than 25mph over a given 24hr
period.
The weather measurements are supplied by
The Met Office
The weather data are the records of past weather measurements for each calendar month
which were recorded at
and which are available from19
The Met Office
Where
no
recorded data
are available
Assumed values for the ten year weather return weather data for each weather measurement
for each calendar month are
If Option A or B
is used
The value engineering percentage is 50%, unless another
percentage is stated here, in which case it is
%
8 Liabilities and insurance
Additional
Client's
liabilities
[There are no additional Client's liabilities.] [These are additional Client's liabilities:]20
(1)
(2)
(3)
The minimum limits of indemnity for insurance in respect of loss of or damage to property
19
This will normally be the same location as that specified for current weather measurements.
20
Delete / complete as appropriate.
10-28762665-1
10
(except the works, Plant and Materials and Equipment) and liability for bodily injury to or death
of a person (not an employee of the Contractor) caused by activity in connection with this
contract are:
•
[Airside: £50,000,000 (fifty million pounds); and
•
Landside: £10,000,000 (ten million pounds),]
in each case for any one event, provided that such limits of indemnity may be in the annual
aggregate for claims concerning pollution or contamination.21
The minimum limit of indemnity for insurance in respect of death of or bodily injury to
employees of the Contractor arising out of and in the course of their employment in connection
with this contract for any one event is the greater of: [(a) the limit required by law;] and (b) [ .]22
If the Client is to
provide any of the
insurances stated
in the Insurance
Table23
The Client provides these insurances from the Insurance Table: 24
(1) Insurance against
Minimum amount of cover is
The deductibles are
(2) Insurance against
Minimum amount of cover is
The deductibles are
If additional
insurances are to
be provided
The Client provides these insurances
(1) Insurance against
Minimum amount of cover is
21
Where (and only where) this insurance is provided by the Client, is it envisaged that the limits of indemnity shall also be in the annual
aggregate for product liability claims.
23
Check status of Client’s OCIP policy.
24
The Client may elect to provide any of the insurances in the insurance table. Where it does so, the Client's insurance policies may be
subject to terms, limitations, exclusions and/or deductibles. Equally, the Client may elect to effect or maintain Terrorism Cover (via the Pool
Re scheme itself, or otherwise).
10-28762665-1
11
The deductibles are
(2) Insurance against
Minimum amount of cover is
The deductibles are
The Contractor provides these insurances
(1) Insurance against
Professional Indemnity insurance
Minimum amount of cover is
The deductibles are
(2) Insurance against
Minimum amount of cover is
The deductibles are
Resolving and avoiding disputes
The tribunal is
The Courts of England and Wales
The Adjudicator nominating body is
The Client's Senior Representative is
Name
Address
10-28762665-1
12
The Institution of Civil Engineers
X5: Sectional Completion
If Option
used25
X5
is
The completion date for each section of the works is26
section
(1)
description
completion date
(2)
X7: Delay damages27
If Option X7 is
used
without
Option X5
Delay damages for Completion of the whole of the works are £⧫ per day
If Option X7 is
used with Option
X5
Delay damages for each section of the works are
section
description
amount per day
(1)
(2)
The delay damages for the remainder of the works are
X7.4: limitation of
liability28
The Contractor's total aggregate liability to the Client under cl.X7 shall at no time exceed a
sum equalling a Total of the Prices 29.
X16: Retention
If Option X16 is
used
The retention free amount is
£nil
The retention percentage is
[3%]
X18: Limitation of liability
If Option X18 is
used
The Contractor's total liability to the Client for all matters arising under or
in connection with the contract, other than excluded matters, is limited to
a sum [
]
25
Only complete if X5 is being used. Otherwise, delete.
27
Only complete if X7 is being used (either with or without X5).
10-28762665-1
13
X20: Key Performance Indicators
The KPI schedule is in Appendix [ ] OR [The Key Performance Indicators set out in the
following table shall apply:]30
If Option X20 is
used
Ref
[KPI⧫]
Key Performance Indicator
(KPI)
Measurement
[Other KPIs]
[Note: the Client may in respect of
any given Call-off Contract include
additional KPIs within this table, or
amend existing KPIs.]
Reporting
Interval
⧫
Target (per
reporting
interval)
⧫
Minimum
performance
level (per
reporting
interval)
⧫
A report of performance against each Key Performance Indicator is provided at the relevant
intervals stated in the KPI schedule.]
Y(UK)3: The Contracts (Rights of Third Parties) Act 1999
Clause 82.1 is for the additional benefit of any Group Company (any permitted assignee of
the rights of such person(s)). Otherwise, there are no persons or organisations entitled to
enforce the terms of this contract under the Contracts (Rights of Third Parties) Act 1999.
Z: Additional conditions of contract
If Option Z is used
The additional conditions of contract are the Special Conditions contained in appendix [ ]
Cl.28: ASIAD
Clause 28 (ASIAD) [does not apply] [applies. For these purposes, the Client's ASIAD
Documents are in ⧫. ]31
A5: Performance bond
•
A performance bond is32 required.
•
[For the purposes of clause A5 of the Special Conditions, the amount of the performance
bond is ⧫.]33
A8: Intellectual Property Rights
•
Licenced IPR means any Intellectual Property Rights to the extent they relate to the
following elements of the works: [£10,000,000.00]34
30
Delete this entry, and the table if no additional or amended KPIs are required.
Select and complete as appropriate.
32
Delete as applicable.
33
Where a performance bond is required, and Options A, B, C or D apply, insert an actual figure representing a sum equalling 10% of
the tendered total of the Prices. Where Option E applies, insert an actual figure representing a sum equalling 10% of the forecast of
the total Defined Cost for the whole of the works plus the associated Fee as approved or provided by the Project Manager.
31
10-28762665-1
14
A15: BIM
•
Cl.A15.3 to A15.6 (BIM) [do not apply] [apply]
Specified Subcontractors / Nominated Suppliers35
•
•
For the purposes of cl.A4, the Specified Subcontractors include:
o
[⧫, ⧫ and ⧫;
o
any Subcontractor appointed to provide any supply / design / carrying out of the
following parts of the works: ⧫; and
o
any Subcontractor appointed to provide supplies / design / works / services with
a forecast value exceeding £⧫.]36
[The Contractor appoints the following Nominated Suppliers for the following items /
works / services:
Nominated Supplier
items / works / services
⧫
⧫
⧫
Client’s Other Contractors
•
34
35
36
For the purposes of cl.11.2(1G), the Client’s Other Contractors are:
o
⧫, and;
o
⧫
To be considered on an individual order basis. This might include (for example) IPR in proprietary plant / materials. Delete if not
used.
In this section, delete any parts which are not relevant / are not used.
The Buyer would confirm any additional requirements as to Specified Subcontractors on an individual call-off basis.
10-28762665-1
15
Annex 2
Contract Data Part 2 – Data provided by the Contractor
PART TWO – DATA PROVIDED BY THE CONTRACTOR
1 General
The Contractor is
Name
Address
The fee percentage is
%
The working areas are
The key persons are37
Name (1)
Job
Responsibilities
ad
Qualifications
Experience
Name (2)
Job
Responsibilities
Qualifications
Experience
The following matters will be included in the Early Warning Register
37
Key persons must be selected in accordance with all relevant requirements contained in the Generic Scope (including any
minimum requirements as to qualifications / experience).
10-28762665-1
16
For the purposes of clause A3 of the Special Conditions, the consultants to
be appointed are:
• Architects:
⧫
• Civil and structural engineers:
⧫
• Mechanical and electrical engineers ⧫
• [Others]
⧫
2 The Contractor's main responsibilities
If the Contractor
is to
provide Scope
for its
design
The Scope provided by the Contractor for its design is in Annex 4.
3 Time
If a programme
is to
be identified in
the
Contract Data
The programme identified in the Contract Data is in [Annex 7].
If the Contractor
is to
decide the
completion date
for
the whole of the
works
The completion date for the whole of the works is [⧫]
5 Payment
38
[If Option A or C
is used
The activity schedule is in Annex 6.
If Option B or D
is used
The bill of quantities is in Annex 6.
If Option A, B, C
or D is used
The tendered total of the Prices is £⧫]38
If X22 is adopted
on a Stage 1
lump sum price.
The total of the Prices for Stage 1 is £[
Delete as applicable, to reflect the payment option being used.
10-28762665-1
17
]
Resolving and avoiding disputes
The Contractor's Senior Representative is
A5: Intellectual Property Rights
•
In addition to any Licenced IPR identified in Contract Data Part One,
Licenced IPR includes any Intellectual Property Rights to the extent they
relate to the following elements of the works: ⧫39
Data for the Schedule of Cost Components (only used with Options C, D or E)
The listed items of Equipment purchased for work on the contract, with an
on cost charge, are
Equipment
time-related
charge
on
cost
per time period
The rates for special Equipment are
Equipment
rate
The rates for Defined Cost of manufacture and fabrication outside the Working
Areas by the Contractor are
category of person
39
rate
To be considered on an individual order basis. This might include (for example) IPR in proprietary plant / materials.
10-28762665-1
18
The rates for Defined Cost of design outside the Working Areas are
category of person
rate
The categories of design people whose travelling expenses to and from the
Working Areas are included as a cost of design of the works and
Equipment done outside the Working Areas are
Data for the Short Schedule of Cost Components (only used with Options A or B)
The people rates are
category of person
unit
rate
The published list of Equipment is the edition current at the Contact Date of
the list published by [⧫]
The percentage for adjustment for Equipment in the
published list is
% (state
plus or
minus)
The rates for other Equipment are
Equipment
rate
The rates for Defined Cost of manufacture and fabrication outside the
Working Areas by the Contractor are
category of person
10-28762665-1
rate
19
The rates for Defined Cost of design outside the Working Areas are
category of person
rate
The categories of design people whose travelling expenses to and from
the Working Areas are included in Defined Cost are
10-28762665-1
20
MAG AIRPORT PLC
NEC4 ENGINEERING AND CONSTRUCTION CONTRACT, JUNE 2017 EDITION (WITH
AMENDMENTS JANUARY 2019 AND OCTOBER 2020) MAIN OPTION [ ]
SPECIAL CONDITIONS
RELATING TO [ ]
(REFERENCE: [ ])
PART 1: AMENDMENTS TO CORE CLAUSES
Clause
Conditions precedent
10A.1
Add as cl.10A.1:
This contract is conditional upon the Contractor's providing:
10A.2
•
the parent company guarantee required by cl.X4.2 (save where the Client
notifies that the Contractor that no parent company guarantee is required,
under cl.X4.1) with any accompanying documents required under cl.X4.2 and
cl.X4.3; and
•
(where the Contract Data specifies that a performance bond is required) the
performance bond required by cl.A5.2.
Add as cl.10A.2:
The Client is entitled to waive one or more of these conditions (but without prejudice to
the underlying obligations to provide documents themselves).
10A.3
Add as cl.10A.3:
The Client notifies the Contractor when satisfied that each of these conditions are
satisfied or waived.
Advanced Works
11.2(1AA)
Add as clause 11.2(1AA):
Advance Works Contract includes any contract entered into, or instruction given
under or by reference to X221
Agreement
11.2(1A)
Add as cl.11.2(1A):
Agreement means the form of agreement forming part of this contract executed and
entered into by the Parties. [DN: These conditions to be accompanied by standard form
of agreement]
1
5843397-6
Terms of Advanced Orders to be agreed with Client as appropriate.
1
ASIAD
11.2(1B)
Add as cl.11.2(1B):
ASIAD means the UK DfT Aviation Security Regulation, including Aviation Security in
Airport Development (ASIAD) 2017 (Landside Security), and all revisions to ensure the
airport meets the architectural and infrastructure-related requirements necessary for
optimum implementation of international civil aviation security measures, which are to
be integrated into the design and construction of new facilities and ensure all Aviation
Security regulation during construction, phasing and completion
ASIAD Documents
11.2(1C)
Add as cl.11.2(1C):
ASIAD Documents means the following document(s), namely:
•
the Client’s ASIAD Documents (such document(s) forming part of the Client's
Scope); plus
•
such document(s) (if any) as have been / are produced by or on behalf of the
Contractor with a view to satisfying / demonstrating compliance with ASIAD (such
documents comprising Contractor's Scope),
each if and as revised / replaced / supplemented from time to time by means of Project
Manager's instructions.
Background IPR
11.2(1D)
Add as cl.11.2(1D):
Background IPR means all Intellectual Property Rights (including in relation to
computer software) which exist and belong, or are licensed, to the Contractor at the
Contract Date (but excluding Foreground IPR) and which are used by the Contractor
in performing its obligations under this contract (including, without limitation, to Provide
the Works), including Intellectual Property Rights in all concepts, analyses, know-how,
utilities, tools, frameworks, models, methods, systems, calculations and industry
perspectives used by the Contractor in connection with the works.
Beneficiary
11.2(1E)
Add as cl.11.2(1E):
Beneficiary means any person (other than the Client and the Contractor) who has a
commercial interest and/or investment in the Development, or who provides services
and / or works to the Client in connection with the Development. This includes (without
limitation) any person providing funding for, or having or acquiring a freehold or
leasehold interest (of any tier) in the Development.
5843397-6
2
Best Practice
11.2(1F)
Add as cl.11.2(1F):
Best Practice means in relation to the carrying out or provision of any works, design,
equipment and/or materials, and/or the performance of any duty or obligation on the
part of the Contractor, using standards, practices, methods and procedures, and
exercising the skill, care, diligence, prudence and foresight which would reasonably
and ordinarily be expected from a suitably qualified, skilled, experienced and
competent contractor or professional consultant (being an architect, engineer or other
appropriate professional) as the context requires, fully skilled and experienced in
carrying out, or procuring equivalent works, materials and/or equipment and/or
providing equivalent services (including design) of similar type, scope, purpose,
complexity, size, technical sophistication and value, and in relation to projects of a
similar scale and character to the Development.
Client's Other Contractors
11.2(1G)
Add as cl.11.2(1G):
Client's Other Contractors means any contractors and/or suppliers appointed or to
be appointed by the Client, as identified in the Contract Data or notified to the
Contractor after the date of this Agreement.
Completion
11.2(2)
In line 2, after the word "work", add "and done all such other things".
Contract Date
11.2(4)
Delete cl.11.2(4) and substitute:
The Contract Date is the date of the Agreement.
Contractor Default Termination
11.2(4A)
Add as cl.11.2(4A):
Contractor Default Termination occurs when the Project Manager issues a
termination certificate on the Client's application for any of reasons [R1-R15, R18 or
R22].
Corrupt Act
11.2(5)
Delete and substitute:
A Corrupt Act is a breach of cl.A14 of the Additional Conditions.
Defects
11.2(6)
Delete and substitute:
A Defect is a part of the works which is not in accordance with the Contractor's
obligations to Provide the Works, including without limitation any part of the works:
5843397-6
3
•
which is not in accordance with the Scope or any other requirement of this contract
to be complied with by the Contractor; or
•
which is not in accordance with any Statutory Requirement/law to be complied with
by the Contractor; or
•
which is not in accordance with the requirements of any competent authority; or
•
designed other than in accordance with any requirement of this contract.
Defects Certificate Due Date
11.2(7A)
Add as cl.11.2(7A):
Defects Certificate Due Date is defined in cl.44.3.
Defined Cost
11.2(7B)
Add as cl.11.2(7B):
Defined Cost includes, in addition to the cost of the components in the Schedule (or
Short Schedule) of Cost Components, the other amounts in cl.52.1, except the Fee.
Development
11.2(7C)
Add as cl.11.2(6A):
Development means the Site and/or the works (including any completed works) and
includes any part of either.
Document Management System
11.2(7D)
Add as cl.11.2(7D):
Document Management System means such system(s) (if any) for exchanging
information electronically, as the Client may designate from time to time.
Foreground IPR
11.2(10A)
Add as cl.11.2(10A):
Foreground IPR means all Intellectual Property Rights (including in relation to
computer software) produced and provided by or on behalf of the Contractor in the
performance of the works and other obligations under this contract, to the extent that
such rights have been developed for or in consequence of this contract, but excluding
any Licenced IPR.
Group Company
11.2(10C)
Add as cl.11.2(10C):
Group Company means any subsidiary company or holding company of the Client, or
another subsidiary or holding company of such company, as subsidiary and holding
company are understood within section 1159, Companies Act 2006, but on the basis
5843397-6
4
that the holding of not less than one quarter of voting rights shall be deemed to satisfy
the condition in section 1159(1)(a).
Intellectual Property Rights
11.2(10D)
Add as cl.11.2(8D):
Intellectual Property Rights means patents, designs, trade-marks and trade names
(whether registered or unregistered), copyright and related rights, database rights,
know-how and confidential information and all similar or equivalent rights anywhere in
the world which currently exist or are recognised in the future and all applications,
extensions and renewals in relation to any such rights.
Licensed IPR
11.2(11A)
Add as cl.11.2(11A):
Licensed IPR means any Intellectual Property Rights (including in relation to computer
software) identified as such in the Contract Data, or which the Client has otherwise
agreed in writing to their being designated Licensed IPR (the Client acting reasonably).
11.2(11B)
Add as cl.11.2(11B):
Nominated Suppliers means suppliers with whom the Client has either entered into
an agreement under which the relevant supplier agrees (if called upon to do so) to
supply items or services or work falling within the scope of this contract or which the
Client has stipulated that the Contractor uses in the provision of certain works, services
or goods.
Prevention Event
11.2(14A)
Add as cl.11.2(14A):
Prevention Event means an event which neither Party is able to prevent, caused by
the forces of nature or by other circumstances not confined in their causes or effects
wholly or mainly to the Parties, to any Subcontractor or supplier (or sub-subcontractor
or sub-supplier of any tier), to any Plant or Materials, to the Site or to the works, which
event is not weather conditions, a weather measurement or other event against which
either Party is required to insure, the happening of which
•
stops the Contractor from completing the whole of the works or
•
stops the Contractor from completing the whole of the works by the Completion
Date,
and which an experienced contractor would have judged at the Contract Date to have
had such a small chance of happening that it would have been unreasonable to have
allowed for it.
5843397-6
5
Priority Defect
11.2(14B)
Add as cl.11.2(14B):
Priority Defect means a Defect falling within the "priority" classification under the
defects matrix.2
To Provide the Works
11.2(15)
Delete and substitute:
To Provide the Works means to do the work and to provide the services necessary to
complete the works in accordance with this contract and all applicable Statutory
Requirements/law and to use Best Practice to ensure that the works are adequate and
appropriate in their design, and to perform all incidental work, services and actions
which this contract requires. References to work and services shall also include any
works and services carried out in relation to the Development prior to the Contract Date,
including without limitation any work and/or services provided by the Contractor under
any Advance Works Contract relating to the Development.
Purchasing System
11.2(15A)
Add as cl.11.2(15A):
Purchasing System has the meaning given to it under cl.51A.
Special Conditions
11.2(18A)
Add as cl.11.2(18A):
Special Conditions means the special conditions annexed, consisting of Part 1:
Amendments to core clauses, Part 2: Amendments to option clauses and Part 3:
Additional Conditions.
Statutory Requirements
11.2(18B)
Add as cl.11.2(18B):
Statutory Requirements includes the requirements of any relevant Act of Parliament,
statutory instrument, rule, order or regulation; and of any relevant regulations or byelaws.
11.2(19)
Subcontractor
delete the words "according to the time they work" at the end of the clause.
Urgent Defect
11.2(19A)
Add as cl.11.2(18A):
Urgent Defect means a Defect falling within the "urgent" classification under the
defects matrix.
2
Note Scope need to reflect this requirement.
5843397-6
6
11.2(20A)
Working Day
Add as cl.11.2(20A):
Working Day means any day other than Christmas Day, Good Friday or a day which
under the Banking and Financial Dealings Act 1971 is a Bank Holiday in England and
Wales.
Interpretation and the law
References to legislation
12.4A
Add as cl.12.4A:
Any reference in the contract to any legislation means such legislation as amended,
supplemented or re-enacted for the time being and from time to time, and where
relevant, includes any subordinate legislation or code of practice made or approved
under such legislation.
Meaning of 'defects date'
12.4B
Add as cl.12.4B:
References to the defects date mean the date which is the 1st day after the end of the
relevant period specified at item 4 of the Contract Data Part 1 (Quality management),
which period commences the day following Completion of the section concerned.
12.4C
Add as cl.12.4C:
In this contract, including, such as and similar expressions shall be read without
limitation.
12.4D
Add as cl.12.4D:
References to Scope or designs provided by the Contractor, include any designs,
details or information provided by the Contractor but included in the Client's Scope.
12.4E
Add as cl.12.4E:
Clauses X4.7, A2.3, A3.8, A4.5, A5.3, A5.6, A8.12, A11, A14.7, A19.5, A20 and A21
are without prejudice to any other rights or remedies available to the Client in respect
of any breach.
Communications
13.1A
Add as cl.13.1A:
Subject to cl.13.1B, and save to the extent the Client directs otherwise, all such
communications (falling within cl.13.1) are to be via the Client's Document
Management System(s), according to such protocols or other directions as the Client
may issue from time to time.
5843397-6
7
13.1B
Add as cl.13.1B:
Save to the extent the Client directs otherwise, the Client's Document Management
System(s) is / are not to be used for any communications under or for the purposes of:
13.1C
•
cl.28 (ASIAD);
•
cl.83 to 86 (insurance);
•
cl.90 (termination) or any termination under cl.A21, or following any termination;
•
cl.W2 (disputes) (or otherwise concerning formal proceedings);
•
cl.X4 (parent company guarantee);
•
cl.Y2.5 (suspension);
•
cl.A1.2 (professional indemnity insurance);
•
cl.A2 – A4 (collateral warranties);
•
cl.A5 (performance bond);
•
cl.A7 (assignment);
•
cl.A8.7 or A8.12 (intellectual property);
•
cl.A11 (Utilities procurement);
•
cl.A14 (Corrupt Acts);
•
cl.A15 (BIM);
•
cl.A18 (Product guarantees)
•
cl.A19 (Modern Slavery Act);
•
cl.A20 (Audit); or
•
formally notifying any breach of contract, for example for the purposes of cl.91.2,
91.3, 91.7, X4.7, A2.3, A3.8, A4.5, A5, A8.12, A11, A14.7, A19.5, A20 or A21.
Add as cl.13.1C:
Communications falling within cl.13.1B are to be in writing and must be served by hand
or by recorded delivery, and are to be served at the recipient's registered office for the
time being. Communications intended for the Client are to be contemporaneously
copied to the Project Manager.
13.2
Delete cl.13.2 and substitute:
Any communication via the Client's Document Management System takes effect as
being given at the time it is uploaded. Any communication falling within cl.13.1B takes
effect as being given and served on the earlier of:
5843397-6
8
(a)
(b)
if delivered by hand:
(i)
by 4.00 p.m. on a Working Day, on the day of delivery; but otherwise
(ii)
on the first Working Day after it is delivered; or
if sent by post, on the first Working Day after it is sent.
Early warning
15.1
Change the full stop at the end of the 4th bullet point to 'or' and add as a final bullet
point:
•
prevent a Party from complying with any of its obligations under this contract.
Contractor's proposals
16.3
After line 2, add:
•
not at the Client's disposal
Ambiguities and inconsistencies
17.1
Delete the second sentence of cl.17.1.
17.1A-17.1D
Add as cl.17.1A-17.1D:
17.1A In the case of any ambiguity or inconsistency between two or more documents
forming this contract (contract documents), each prevails over or is
subordinate to the other(s) in descending order as follows:
•
the numbered clauses in the Agreement
•
the Special Conditions
•
the conditions of contract other than the Special Conditions
•
the Contract Data Part 1
•
the Scope provided by the Client (including, to the extent it is relevant
to the works, the Generic Scope)
•
the Contract Data Part 2
•
the Scope provided by the Contractor
•
any other contract documents.
17.1B The resolution of an ambiguity or inconsistency in accordance with cl.17.1A is
not a compensation event.
17.1C In the case of any ambiguity or inconsistency within either the Scope provided
by the Contractor or the Scope provided by the Client, the Contractor shall
submit to the Project Manager its proposals for resolving the ambiguity or
inconsistency, and with the Project Manager's consent (which shall not be
5843397-6
9
unreasonably withheld or delayed) the ambiguity or inconsistency shall be dealt
with in accordance with such proposals at the Contractor's cost and shall not
constitute a compensation event.
17.1D The Project Manager may issue an instruction to resolve any such ambiguity
or inconsistency other than in accordance with cl.17.1A, and such instruction
is a compensation event only if the ambiguity or inconsistency is in a contract
document provided by the Client or is between contract documents provided
by the Client.
Corrupt Acts
18
Delete.
Prevention
19.1
Delete and substitute:
If the happening of any Prevention Event comes to the notice of the Contractor or the
Project Manager that Party notifies the other and the Project Manager may give
instructions to the Contractor as to how the Contractor is to respond. The Project
Manager may first instruct the Contractor to submit proposals as to how the Contractor
should respond and may postpone any instructions until the Contractor's proposals are
received.
Providing the Works
20.1
Delete and substitute:
The Contractor Provides the Works in accordance with the Scope and Best Practice,
regularly and diligently and in accordance with and subject to other applicable
provisions of the contract.
Plant and Materials
20.1A
Add as cl.20.1A:
All Plant and Materials specified or selected by the Contractor shall be of good quality,
shall be reasonably suitable for their purposes and (unless the Scope provides
otherwise) shall be new.
Workmanship
20.1B
Add as cl.20.1B:
All workmanship used in the works shall be of a good quality and suitable for its
purposes.
Prohibited Materials
20.1C
Add as cl.20.1C:
Save as required by the Scope the Contractor exercises Best Practice in ensuring there
are not used or allowed to be used in the works any materials:
5843397-6
10
(a)
which by their nature or application contravene any British Standard or EU
equivalent;
(b)
which contravene the recommendations of the British Council for Offices'
publication Good Practice in the Selection of Construction Materials 2011; or
(c)
which are considered to be deleterious within the building or engineering
design professions.
Co-ordination and Co-operation
20.1D.1
Add as cl.20.1D.1:
The Contractor:
20.1D.2
(a)
is responsible for programming and co-ordinating the works with any other
works being carried out by the Client's Other Contractors;
(b)
fully co-operates and co-ordinates the works and the Contractor's programme
for the carrying out and completion of the works with the Client's Other
Contractors; and
(c)
exercises Best Practice in carrying out the works to prevent loss or damage to
the works being carried out by the Client's Other Contractors.
Add as cl.20.1D.2:
Subject to cl.20.1D.3, the Contractor complies with the requirements of clauses
20.1D.1(a) and 20.1D.1(b) at its own cost, and without any entitlement under clauses
60 to 65 (inclusive) (compensation events).
20.1D.3
Add as cl.20.1D.3:
Notwithstanding cl.20.1D.2, a compensation event arises where the following two
conditions are satisfied, namely:
(a)
a Client's Other Contractor carries out work on the Site that is not stated in the
Scope (as contemplated in the third bullet of cl.60.1(5)); and
(b)
the Contractor did not and could not reasonably have known of or anticipated
such work, having made all reasonable enquiries, and assuming the
knowledge reasonably to be expected of a contractor undertaking works akin
to the works at the Site (including as to airport operations).
Client/Third Party Supplied materials, goods and equipment
20.1E
Add as cl.20.1E:
To the extent identified in the Scope the Client may provide materials, goods and/or
equipment for use in the works; with regard to such materials, goods and/or equipment
the Contractor shall:
(a)
5843397-6
exercise Best Practice in carrying out the works to prevent loss or damage to
such materials, goods and/or equipment;
11
(b)
be responsible for any loss and/or damage to such materials, goods and/or
equipment from the point the Contractor either collects the materials, goods
and/or equipment from the Client or from the point of delivery of the such
materials, goods and/or equipment to the Site. To the extent required by the
Scope the Contractor is responsible for the safe off-loading, handling and
storage of such materials, goods and/or equipment in accordance with the
Scope.
Prior Works
20.1F
20.1G
Add as cl.20.1F:
20.1F.1
The works include the works, services, activities, plant and/or
materials required by any Advance Works Contract(s) entered into in
respect of the Development.
20.1F.2
Everything done or provided by (or on behalf) of the Contractor under
(or in connection with) such Advance Works Contract(s), is deemed to
have been done or provided pursuant to this contract.
20.1F.3
Any payments made under any such Advance Works Contract(s) are
treated as payments on account under this contract, and the Client's
obligation to make payment for the works, services, activities, plant
and/or materials required by the Advance Works Contract(s) shall be
governed by this contract.
20.1F.4
There shall be no change to the Prices (under this contract)
attributable to the services and work required under or in connection
with such Advance Works Contracts.
Nominated Suppliers3
Add as cl.20.1G:
5843397-6
20.1G.1
Subject to clause 20.1G.4, where the Client so requires or stipulates
in the Scope, the Contractor shall (or shall procure that the relevant
Subcontractor shall) procure such items or work or service from the
relevant Nominated Supplier.
20.1G.2
In doing so, the Contractor shall (or shall ensure that the relevant
Subcontractor shall):
(a)
comply with the procedures provided for, use the terms and
conditions contained within, and use rates and prices not
exceeding those provided for within the relevant Nominated
Supplier Agreement;
(b)
appoint the relevant Nominated Supplier by deed; and
(c)
where applicable comply with clause X4 in the appointments
of the Nominated Suppliers.
12
20.1G.3
If and as required by the Client concerned, the Contractor shall
promptly procure a collateral warranty or third party rights, in respect
of any given order which he (or a Subcontractor) places. Such
warranty or rights shall be in favour of the relevant Client (and, if the
Client requires, any other member(s) of the MAG Group and any
Beneficiary (under and as defined in the Special Conditions)) and are
to be in such form (if any) as is provided for in the relevant Nominated
Supplier Agreement (and are otherwise to be in such form as the Client
may reasonably require).
20.1G.4
In exceptional circumstances, the Contractor may seek the relevant
Client's approval to his (or to a Subcontractor's) not using a given
Nominated Supplier in respect of any given works or services (where
he would otherwise be required to do so) (the Client having an
absolute discretion). Such exceptional circumstances may include the
Contractor being able to demonstrate that an alternative supplier
would offer a more innovative solution, providing significant technical,
commercial, operational, maintenance or time benefits.
20.1G.4
Should the Client approve the use of an alternative supplier, clauses
20.1G.1 to 20.1G.4 shall apply (in respect of the alternative proposed).
The Contractor's design
21.1
Delete and substitute:
21.1.1 Save to the extent (if any) otherwise stated in the Scope provided by the Client,
the Contractor designs the whole of the works. [DN: Note that this is a design
and build contract by default unless and to the extend the Scope stipulates
otherwise]
21.1.2 The Contractor checks any design in the Scope provided by the Client, or by
the Project Manager, and warrants that all design (including any design
provided by or behalf of the Contractor prior to the date of this contract, under
any Advance Works Contract or otherwise, in relation to the Development) has
been and is carried out in accordance with Best Practice.
21.2
In line 3, delete "either" and after "law", add:
or other applicable provisions of the contract, or has not been prepared using Best
Practice
21.2
Add the following paragraph after line 5:
If any design in the Scope provided by the Client prevents the Contractor from
Providing the Works in conformity with the contract, the Contractor requests the Project
Manager to change such design and offers its proposals for such change. The Project
Manager gives an instruction changing the Scope.
Using the Contractor's design
22.1
5843397-6
Delete.
13
Surveys and reports etc.
22.1
Add as clause 22.1:
The Client gives no warranty or representation as to the condition of the Site, any
existing structures, plant or assets, any adjoining property or any services in or under
the Site. Nor as to the accuracy or sufficiency of any soils or survey data or other data
contained in the Scope or the Site Information or otherwise made available to the
Contractor, or as to any recommendations or conclusions made or reached in any such
document. [DN: Site conditions and existing structures is contractors risk]
22.2
Add as clause 22.2:
The Contractor assesses, advises on, and confirms (to the Client) the efficacy of any
existing plant, services or assets which are being retained or re-used (at the
Contractor's instigation / with the Contractor's approval). In doing so, the Contractor
has regard to the suitability, durability and functionality of all such existing assets or
systems, and the efficacy of their being retained or re-used as part of or in conjunction
with the works. The Contractor's obligations under this clause 22.2 form part of his
obligation to Provide the Works and are performed accordingly. [ DN: Contractor takes
risk on existing plant machinery and equipment]
Design of Equipment
23.1
Add as a second bullet point:
•
any other applicable provision of the contract,
People
24.1
In line 2, after "or" add "by reason of unavoidable necessity (only)".
24.2
At the end of cl.24.2 (immediately before the full stop), add:
except that if an employee is removed for security reasons then he is removed
immediately
Working with the Client and Others
25.3
Delete the last sentence. After 'met', add:
or by such later date as it is practicable for the Project Manager to complete the
assessment
25.3A
Add as cl.25.3A:
The Project Manager assesses and the Contractor pays any other cost or loss incurred
or to be incurred by the Client because of any failure of the work to meet the Condition
stated for a Key Date by that date. [DN: Key dates and the conditions for satisfaction
should be clearly set out in the Scope]
5843397-6
14
Subcontracting
26.1
At the end, add:
The Contractor is as responsible for the acts and omissions of Subcontractors as if they
were the acts and omissions of the Contractor.
26.2
Delete and substitute:
The Contractor submits the name of each proposed Subcontractor to the Project
Manager for acceptance, together with such other information as the Project Manager
may reasonably require to demonstrate the proposed Subcontractor's capability,
experience, reputation and financial standing. A reason for not accepting the proposed
Subcontractor is that its appointment will not allow the Contractor to Provide the Works
or that the proposed Subcontractor's capability, experience, reputation and/or financial
standing are not (in the Project Manager's reasonable opinion) adequate for the
relevant subcontract works, or that the Subcontractor has not been selected in
accordance with the tendering procedures (if any) in the Scope. The Contractor does
not appoint a proposed Subcontractor until the Project Manager has accepted it.
26.3
Delete and substitute:
The Contractor submits the proposed conditions of contract for each subcontract to the
Project Manager for acceptance unless the Project Manager has agreed that no
submission is required. The proposed conditions of contract shall, unless otherwise
agreed by the Project Manager, be consistent with the terms of this contract and shall
include terms that Subcontractors shall be paid no later than 30 days after the
Contractor's receipt of an undisputed invoice (or, where part of an invoice is disputed,
the undisputed amount shall be paid within such time). The Contractor does not appoint
a Subcontractor on the proposed subcontract conditions submitted until the Project
Manager has accepted them. The Project Manager may refuse to accept the proposed
subcontract conditions for any reasonable reason.
26.4
[DN: Where Option A or B is used, the following clause is added as a new cl.26.4.
Where Option C, D or E is used, cl.26.4 is deleted and replaced with the following:]
The Contractor submits the proposed contract data for each subcontract to the Project
Manager for acceptance if an NEC contract is proposed, or any equivalent information
(including any pricing information) if a different form of contract is proposed, unless the
Project Manager has agreed that no submission is required. The Contractor does not
appoint a Subcontractor on the proposed contract data (or equivalent) submitted until
the Project Manager has accepted it. The Project Manager may refuse to accept the
proposed contract data (or equivalent) for any reasonable reason.
26.5
Add as cl.26.5:
The Contractor shall employ:
5843397-6
•
such Nominated Suppliers as may be required by the Client pursuant to clause
20.1G; and
•
such Subcontractors in connection with such part or parts of the works, as
may be identified in the Scope.
15
The Contractor shall be fully responsible for any such Nominated Suppliers and
Subcontractors.
26.6
Add as cl.26.6:
A reasonable reason includes, without limitation, any reason reflecting a provision of
the Scope.
26.7
Add as cl.26.7:
Without prejudice to the generality of the foregoing, the Contractor does not
subcontract any one or more parts of the works with a total (cumulative) value equalling
or exceeding [50%]i of the tendered total the Prices (Threshold), without the Client's
prior written approval (as to which, the Client has an absolute discretion). Where the
Contractor is in breach of this cl.26.7, the Client may deduct from the Prices (or
otherwise recover from the Contractor, as a debt) an amount calculated by multiplying
the fee percentage and the difference between the Threshold and the total value of
subcontracted work.
Regulatory requirements
27.4A
Add as cl.27.4A:
Subject to cl.27.4A.2, the Contractor obtains all approvals, licences and consents
required from any public or statutory body, utility undertaker or adjoining owner or
occupier and complies with their lawful requirements, for or in connection with Providing
the Works where the Scope stipulates that a consent is to be obtained by the Client the
Contractor shall provide all reasonable assistance to the Client in a timely manner to
allow the Client to obtain the same within the appropriate time.
27.4A.2
Add as cl.27.4A.2:
The Client shall be responsible for obtaining any and all approvals, licences or
consents:
(a)
required of the Civil Aviation Authority (or any successor); or
(b)
which are listed in the Scope as being for the Client to obtain.
Where the Client is so responsible, the Contractor shall provide the Client with all
information, drawings or other documents as and when reasonably requested by the
Client which are necessary for the Client to obtain the requisite approvals, licences and
consents. [DN: If other consents are required by the Client then MAG may wish to use
a responsibility matrix, this will require additional drafting however]
27.4A.3
Add as cl.27.4A.3:
The Contractor is not entitled to a compensation event as a result of its compliance
with the requirements of this cl.27.4A.
5843397-6
16
Assignment
28
Delete the whole clause (including the heading), and substitute:
28
ASIAD
28.1
This cl.28 applies only where it is specified to apply in the Contract Data.
28.2
The Contractor complies with ASIAD and with provisions of the ASIAD
Documents.
28.3
The Contractor may only access the ASIAD Documents as follows:
28.4
•
access is subject to any and all restrictions / requirements set out or
referred to in the ASIAD Documents;
•
access is subject to the provisions of ASIAD, the Statutory Requirements,
and any requirements of any competent authority;
•
access is limited to named individuals, pre-approved by the Client's Airport
Compliance Team;
•
access is only available at premises designated by the Client;
•
access is only available at reasonable times and on reasonable prior
notice;
•
no person may access the ASIAD Documents who shall have been
disqualified following (or who would be disqualified under) a mandatory
background check under the National Aviation Security Programme or any
equivalent procedure;
•
the Contractor may not make, seek or retain any copies of the ASIAD
Documents or any part(s);
•
the Contractor is to comply with any arrangements designated by the
Client, whereby the Contractor is given access to the ASIAD Documents
via a third party.
Any change to ASIAD, is effected by means of a (Project Manager's)
instruction. Such instructions are treated as falling within cl.60.1(1).
Starting, Completion and Key Dates
30.1A
Add as clause 30.1A:
Where the access dates in the programme are specified by reference to the earliest
and latest dates by which the Contractor may be required to commence the works or a
section on site, this clause 30.1A applies. Such earliest and latest dates may be varied
in accordance with any revised programme. The Contractor shall begin the
construction of the works or a section (as the case may be) on the date for doing so
5843397-6
17
specified in an instruction of the Project Manager (Date for commencement) and shall
complete the works or section on or before the applicable Completion Date.
A Date for commencement may not be less than [14 days nor more than 8 weeks] after
the date of the relevant instruction.
Access to and use of the Site
33.1
Add at the end:
Further details regarding the access being provided (as agreed at the Contract Date)
are in the Scope.
Quality management system
40.2
After "Works", add:
or does not comply with a requirement stated in the Scope
Notifying Defects
43.2
Add at the end:
The Supervisor promptly notifies the Contractor where it reasonably considers any
Defect to be an Urgent Defect or a Priority Defect.
Correcting Defects
44.1
Add at the end:
The Contractor corrects Defects at its own cost.
44.2
After "defect correction period" add:
or, where applicable, no later than necessary so as not to delay Completion
44.2A
If (and only if) the Supervisor requires or otherwise permits, the Contractor carries out
such temporary remedial works to (temporarily) correct any Defect to such extent as
the Supervisor reasonably considers to be necessary to:
(a)
(in the case of an Urgent Defect or a Priority Defect) remedy or bring to an end
any matter, circumstance or thing which is causing (in the Supervisor's
reasonable opinion) such Defect to be an Urgent Defect or a Priority Defect;
and/or
(b)
prevent such Defect from causing and/or to mitigate any immediate and
material impairment to the operational performance of, and/or the safety of
passengers and/or any other persons using and/or working at, any given MAG
Site.
The Contractor carries out such works to the Supervisor's reasonable satisfaction,
before the end of the defect correction period.
5843397-6
18
44.2B
Where the Contractor temporarily corrects any Defect in accordance with cl.44.2A, then
clauses 44.1 and 44.2 continue to apply in respect of such Defect, save that:
(a)
(b)
in the case of an Urgent Defect or a Priority Defect:
(i)
the priority classification of such (temporarily corrected) Defect shall
be reduced to the relevant priority classification stated in the defects
matrix; and
(ii)
the defect correction period for such (temporarily corrected) Defect is
revised accordingly, and is deemed to begin on the date upon which
the temporary remedial works were completed in accordance with
cl.44.2A; or
in the case of any other Defect, the defect correction period is extended by a
period equivalent to the original defect correction period for such Defect.
44.2C
For the avoidance of doubt, the Contractor corrects a Defect in accordance with
clauses 44.1 and 44.2, unless and to the extent the Supervisor requires or permits such
Defect to be temporarily corrected pursuant to cl.44.2A.
44.3
Delete and substitute:
The Supervisor issues the Defects Certificate on the date (Defects Certificate Due
Date) which is the later of:
•
the defects date and
•
the end of the last defects correction period.
The Defects Certificate is not evidence that the Contractor has complied with Core
Clause 2 (the Contractor's main responsibilities) or Core Clause 4 (Quality
management), or any other (relevant) provision of this contract.
Uncorrected Defects
46.1
Delete everything after "people" in line 3 to the end of the sentence and substitute:
(if the Client decides to do so) and the Contractor pays this amount. The Contractor
pays the Client the amount of any other reasonably incurred cost, and any other loss,
liability or damage incurred by the Client by reason of the Defect.
Defects posing an immediate risk
47
Add as a new cl.47:
Where in the Client's sole opinion a Defect poses an immediate risk to airport
operations and / or the safety of passengers and / or others using and / or working at
the relevant MAG Site, or a breach to the fix times listed in the Contract Data, the Client
shall be at liberty to take any and all necessary actions to correct or mitigate the Defect,
and to recover the costs of doing so from the Contractor. Clauses 44 to 46 (inclusive)
are to be read and applied accordingly.
5843397-6
19
Assessing the amount due
Applications for payment
50.1
Delete and substitute:
The Project Manager assesses the amount due at each assessment date.
Assessment dates occur on the date payment notice date stipulated in the Payment
Schedule agreed between the parties and contained within the Pricing Information,
[DN: Note requirement for separate payment schedule here] until:
•
the Defects Certificate Due Date; or
•
the Project Manager issues a termination certificate.
50.2
In the last line, amend "before" to "on or not more than 5 days before".
50.3
After "payment" in line 1, add:
on or not more than 5 days
50.3A
Add as cl.50.3A:
Amounts to be paid by or retained from the Contractor under cl.50.3 include, without
limitation, the reinstatement cost of loss of or damage to the works, Plant and Materials,
unless caused by any of the Client's liabilities in cl.80.1.
50.4
After "payment" in line 1 and after "application" in line 4, add:
on or not more than 5 days
50.5A
Add as cl 50.5A:
If at any time the Contractor does not submit a revised programme when required to
do so in accordance with this contract a sum equal to 10% of the Price for Work Done
to Date may be retained in the assessments of the amount due until the Contractor has
submitted to the Project Manager the revised programme showing the information
which this contract requires.
Payment for off-Site Plant and Materials
50.5B
Add as cl.50.5B:
The amount due does not include the value of any unfixed or off-Site Plant and
Materials (if otherwise intended to include such value under any other provision of this
contract):
5843397-6
•
unless the Plant and Materials in question are within mainland Britain (having
passed through British customs);
•
unless the Project Manager otherwise consents (in its absolute discretion) to
its inclusion within the Price for Work Done to Date;
20
•
if such Plant and Materials are procured by the Contractor or any
Subcontractor prematurely (until such time as it would have been reasonable
to procure them, having regard to the Accepted Programme);
•
if the Contractor has not demonstrated to the Project Manager that the
Contractor is competent to pass title to the Plant and Materials to the Client as
intended by clauses 70 to 75;
•
(in the case of off-Site Plant and Materials) if the Contractor has not satisfied
the Project Manager that they are in such condition as to be fit and ready for
installation in the works without further treatment or preparation, are
adequately protected, and are set apart and clearly marked so as to identify
their destination and the interest of the Client;
•
(again, in the case of off-site Plant and Materials) unless the Contractor has
procured a (binding and enforceable, as per its terms) vesting agreement in
respect of the Plant and Materials concerned, in the form contained in appendix
5 with such amendments as the Client may reasonably require as to reflect the
insurance arrangements applicable under this contract, and executed and
delivered as a deed by the Contractor and by the relevant supplier;
•
(unless the Client is the Party obliged to insure the Plant and Materials against
loss and damage) if the Contractor has not satisfied the Project Manager that
they are adequately insured under a policy of insurance which recognises the
interest of the Client as a co-insured; and
•
(where a bond is required by the Client) if the Contractor has not provided a
bond in favour of the Client, in a form and from a bank or insurance company
acceptable to the Client, covering the replacement cost of such Plant and
Materials.
Assessing the amount due
50.5C
Add as cl.50.5C:
The Client's obligations to make payment under this contract are subject to the
provisions of the Construction Industry Scheme under the Finance Act 2004, as
applicable to the Parties.
Payment
51A
Add as cl.51A:
The Contractor acknowledges that the Client operates an electronic purchasing system
(Purchasing System). The Contractor shall subscribe to the Purchasing System and
shall pay the cost of subscription and any network transaction service fees which may
become due under such subscription together with all other costs charged to the
Contractor by the provider in administering the subscription or managing invoices.
Such costs are deemed to be included within the Prices.
51.0
Add as cl.51.0:
The due date for payment of each amount to be assessed under cl.50 is the last day
of the month in which a Contractor's invoice was received by the Client.
5843397-6
21
The final date for payment of each such amount is the first working day on or following
thirty (30) days after the due date
51.1
Delete the first line and replace with:
The Project Manager certifies a payment on the assessment date.
51.2
Delete the 1st sentence and substitute:
Each certified payment (notified sum) is paid on or before the final date for payment.
VAT reverse charge
51.5A
Add as cl.51.5A:
If and when the Value Added Tax (Section 55A) (Specified Services and Excepted
Supplies) Order 2019 (Order) takes effect, the Client's stance is that it is an end user
for the purposes of the Order. The Client notifies the Contractor as soon as reasonably
practicable in the event of any change to its status / such stance, following which the
Parties shall work together (each acting reasonably) to settle / agree any changes to
the payment / invoicing / tax arrangements under this contract which the Client
considers necessary or desirable (again, acting reasonably) in light of such changed
status / stance.
Defined Cost
52.1
In line 4, after "recovered", add:
, and contra-charges
Final assessment and payment
53.1
Delete and substitute:
Unless there has been a termination under cl.9 (Termination):
•
the assessment date for the amount of the final payment is 14 working days
after the Defects Certificate Due Date.
•
The due date for the amount of the final payment shall be the last day in the
month following receipt by the Client of the Contractor's invoice;
•
the final date for payment of that amount is the first working day on or following
30 days after the due date; and
•
the Contractor submits an application for the final payment to the Project
Manager within the 7 day period after the Defects Certificate Due Date, which
shows the basis on which the final payment has been calculated.
The Project Manager makes an assessment of the final amount due on the assessment
date. If there has been a Termination the relevant provisions of cl.9 apply.
53.2
5843397-6
Delete:
22
53.3
Delete and substitute:
The assessment of the final amount due (as above or under the procedures on
termination) issued within the time stated in the contract (final assessment) is
conclusive evidence of:
•
the finally adjusted amount due to the Contractor under and in connection with
the contract, net of amounts to be paid by the Contractor in accordance with
cl.50.3; and
•
(if stated in the assessment) the total of previous payments made to or by the
Contractor which are required to be taken into account to ascertain the amount
of the final payment,
except that the final assessment has no such evidential effect:
•
if the Parties otherwise agree; or
•
in proceedings commenced within 6 months after the issue of the final
assessment, as to any matter in respect of which in such proceedings are
commenced; or
•
in subsequent proceedings in the tribunal, so far as they are for the redetermination of that matter as decided by an adjudicator,
where proceedings means an adjudication or proceedings in the tribunal.
53.4
Delete.
Compensation events
60.1(1)
After line 3, add:
- under cl.17.2 (illegal or impossible requirement) or
60.1(6)
Add at the end, immediately before the full stop:
and subsequently fails to respond within 7 days to any reminder served upon it by the
Contractor after the period for reply has expired, referring to this cl.60.1(6)
60.1(9)
At the end of cl.60.1(9) (immediately before the full stop), add:
save where the reason for non-acceptance is due to security or health and safety
concerns, or to protect the Clients operations and in such circumstances the
withholding of such approval was not an unreasonable act of the Client.
60.1(10)
Delete "only" in line 2 and add at the end (immediately before the full-stop):
because a known Defect, or defective work carried out by (or on behalf of) the
Contractor at one or more other MAG Sites, suggests the likely presence of a similar
or related Defect in the works
5843397-6
23
60.1(19)
Delete and substitute:
The happening of a Prevention Event which is not a compensation event under any
other provision of the contract, provided that there shall be no change to the Prices on
account of such occurrence unless (and if so, only to the extent that) the Project
Manager gives instructions under cl.19 changing the Scope.
Notifying Compensation Events
61.2
At the end of the first bullet point, add:
or of a subcontractor or supplier of the Contractor
61.4
At the end of the third bullet point, add:
or of a subcontractor or supplier of the Contractor
Assessing compensation events
63.2
Delete "and the Contractor may agree", and substitute "may elect to use".
Implementing compensation events
66.1
Delete the word "or" after the second bullet point. Delete the full stop from the end of
the clause, and substitute "or". Add a fourth bullet point:
"it is so determined by an adjudicator appointed under Option W2 or as the Parties may
agree."
Title
75
Add as cl.75:
Notwithstanding any other provision, unless it passes before, title in unfixed Plant and
Materials (whether on or off-site) passes to the Client, if and when:
•
an amount in respect of their value is included in a payment certificate (under
cl.51); and
•
the payment certificate is discharged by the Client (either by payment or by
set-off).
Upon the discharge of any such payment certificate, the Contractor marks the items
concerned so as to show that they are the property of the Client. Thereafter, they are
stored separately, and in the event of any omission, neglect or default on the part of
the Contractor or any of its agents or Subcontractors, or in the event of the Insolvency
of any such person, the Client may take or recover such items (and the Contractor shall
ensure that the Client is able to enter any premises where they are being stored for the
purposes of doing so).
Client's liabilities
80.1
In the 3rd bullet point, add before the full stop:
(unless under the contract the Contractor takes responsibility for such design)
5843397-6
24
80.1
Delete the 4th bullet point and substitute:
Loss of or damage to Plant and Materials supplied to the Contractor by the Client, or
by Others on the Client's behalf, until they reach the Working Areas and the Contractor
has had an opportunity to inspect them.
Recovery of costs
82.1
Delete and substitute:
Any costs, damages, expenses (including without limitation legal costs and expenses),
losses, actions, claims, proceedings and compensation which are or will be paid /
suffered / incurred / sustained by the Client or any Group Company as a result of any
event for which the Contractor is liable are paid by the Contractor.
82.3
In the first sentence, insert immediately after each reference to "costs":
(or, in the case of the Client or any Group Company, damages, expenses, losses,
actions, claims, proceedings and compensation)
Insurance
83.3
Delete and substitute:
The insurances in the insurance table (except for death/injury to Contractor's
employees) are composite or joint, insuring the Parties for their respective interests,
and provide cover from the starting date:
•
in the case of the works, Plant, Materials and Equipment, for all the risks that
are normally insurable under a construction 'all-risks' insurance policy, until the
Defects Certificate in respect of any given section;
•
in the case of death/injury to the Contractor's employees, as required by
applicable law until the last of the Defects Certificates; and
•
in the case of other property and death/injury to any other person, for all the
risks normally insurable under a contractor's public liability policy until the last
of the Defects Certificates,
or in each case until a termination certificate is issued.
83.3
In the first column of the insurance table, delete the words "(except the works, Plant
and Materials and Equipment)" within the description of the third insurance stated, and
substitute:
(including property of the Client and property of any Group Company, but excluding the
works, Plant and Materials and Equipment)
83.4
Add as cl.83.4:
The Party providing any insurance under this section 8 provides the other Party with a
copy of a broker's certificate of the insurance held (including evidence of cover and
confirmation that the terms and conditions are normal for the class of insurance and
addressing specific coverage points) no later than the date of inception of cover and
no later than the date on which any change in the terms and conditions takes effect.
5843397-6
25
84.3
Delete and substitute:
Each Party complies with the terms and conditions of the insurance policies under this
section 8 to be complied with on its part, and neither Party by any act or neglect causes
any such insurance policy to be void or voidable or entitles the insurer to refuse any
claim (in whole or in part) in respect of any risk or amount for which such policy is
expressed to provide indemnity.
84.4
Add as cl.84.4:
The first insurance in the insurance table includes Terrorism Cover (either within the
main policy itself, or by means of an extension or separate policy).
For these purposes, Terrorism Cover means such cover against loss or damage
caused by or resulting from terrorism, as is from time to time generally available from
insurers who are members of the Pool Reinsurance Company Limited scheme (or any
similar successor scheme). If (at any time) the insuring Party's insurers or brokers
advise that Terrorism Cover is not or will no longer be available or will only be available
with a reduction in cover or scope, the insuring Party shall notify the other Party in
writing and the Parties shall discuss how best to deal with such uninsured risk. After
such discussion or otherwise at the Client's sole discretion the Client may elect (i) for
the Contractor to carry on with the works; or (ii) to terminate the Contractor's obligation
to Provide the Works. If the Client elects for the Contractor to carry on, and there is
subsequently any loss or damage to the works, Plant and Materials caused by or
resulting from terrorism then, to the extent the cost of the reinstatement or replacement
or repair is no longer recoverable under such insurance, the occurrence of such loss
or damage comprises a compensation event. There is to be no retention under cl.X16
against any amount payable on account of such (uninsured) reinstatement,
replacement or repair, and no reduction in the adjustment to the Prices on account of
such compensation event by reason of any act or neglect of the Contractor or any
sub-contractor or supplier (of any tier). Conversely, if the Client elects to terminate,
any such termination is treated as having been effected in accordance with cl.91.7 (for
reason R21), clauses 90 to 93 (inclusive) being read and applied accordingly.
Termination
90.2
90.3
In the termination table:
•
delete references to P2 and P4;
•
in the case of termination by the Client for reason R17 or R20 amend the
procedure to refer to P1 only; and
•
add A2A as required by cl.93.2 below.
Delete "If" at the start of the 2nd paragraph and add:
Subject to Option Y(UK)2, where it applies, if
Reasons for termination
91.2
5843397-6
Delete the first bullet point and substitute:
26
•
91.4
Substantially failed or is substantially failing to comply with its obligations
(R11).
Delete and substitute:
The Contractor may terminate if the Client fails to comply with the decision of an
adjudicator appointed under the contract requiring the Client to pay any amount to the
Contractor (except to the extent that the tribunal has granted relief from enforcement
of the adjudicator's decision, as long as the Client complies with any conditions
attaching to such relief) (R16).
91.7
Delete and substitute:
The Client may terminate if the Project Manager certifies that a Prevention Event that
is preventing the Contractor from or is delaying the Contractor in Providing the Works
has caused or will cause Completion to be delayed by not less than 13 weeks (R21).
91.8
Delete and substitute:
The Client may terminate if the Contractor does a Corrupt Act (R22).
91.9
Add as cl.91.9:
The Client may terminate:
•
in the event of there being any significant damage to any existing structures or
facilities, resulting from any act, omission, neglect or default on the part of the
Contractor (or of any person for whom he is responsible).
Any such termination shall be treated as being a termination for reason R11, and
clauses 90 to 93 (and the remaining provisions of this contract) shall be read and
applied accordingly.
Procedures on termination
92.1
Delete cl.92.1 and substitute:
On termination (P1):
5843397-6
•
the Client may complete the works and may use any Plant and Materials to
which it has title or to which it obtains title;
•
the Contractor removes any other Plant and Materials in the Working Areas
which have not been incorporated in the works;
•
unless the Client is entitled to invoke, and does invoke P3, the Contractor
removes the Equipment;
•
the Contractor leaves the Working Areas; and
•
unless the terminating Party is the Contractor and the reason for termination is
any of Reasons R1 to R10, the Project Manager may instruct the Contractor to
assign the benefit of any subcontract or relevant supply contract to the Client.
27
92.2
Delete P2 and P4.
Amount due on termination
93.1 & 93.2
Move the 3rd bullet point from cl.93.1 to become A2A in cl.93.2.
Add A2A to the termination table where the Contractor terminates for any of reasons
R1-R10, R16 and R19.
93.2
Delete A3 and substitute:
A3
a deduction by or payment to the Client of the additional cost to the Client of
Providing the Works other than by the contract and/or the amount of any other
cost, loss or liability incurred or to be incurred by the Client resulting from the
termination, and/or from the reason for termination and/or from any other
breach by the Contractor of the contract.
Payment on termination
93A
Add as cl.93A:
Unless there has been a Contractor Default Termination (in which case cl.94 applies):
(a)
the due date for the final payment is 12 weeks after the date of issue of the
termination certificate or the receipt of the Contractor's invoice whichever is
later (Termination Date);
(b)
the final date for payment is 21 days after the due date;
(c)
the Contractor submits an application to the Project Manager for the final
payment within 6 weeks after the Termination Date, containing details of how
the amount applied for has been calculated;
(d)
the Project Manager makes an assessment of the final payment due and
issues a certificate for payment of that amount no later than 5 days after the
due date, containing details of how it has been calculated; and
(e)
the certified final payment (notified sum) is paid on or before the final date for
payment.
Payment on Contractor Default Termination
94
Add as cl.94:
94.1
5843397-6
In the case of Contractor Default Termination the Project Manager makes an
assessment of the final amount due and certifies a final payment on or before
the date (CDT Assessment Date) which is 13 weeks after the date when the
Client:
•
completes the works pursuant to cl.92.1; or
•
decides not to complete the works.
28
94.2
The certificate specifies the sum the Project Manager considers to be due on
the payment due date (notified sum) and the basis on which that sum is
calculated.
94.3
The due date for the notified sum is the CDT Assessment Date and the final
date for payment of the notified sum is 28 days after the due date.
94.4
The relevant Party pays the notified sum to the other Party on or before the
final date for payment.
Interim CDT assessments
95
5843397-6
Add as cl.95:
95.1
On the date which is 3 months after the date of termination and every 3 months
thereafter (each an Interim CDT Assessment Date) until the CDT
Assessment Date, if the Project Manager is able to quantify an amount below
which the final amount due on termination cannot fall, taking account of
previous payments and deductions, the Project Manager may issue an interim
certificate for payment of that amount to or from the Contractor.
95.2
The due date for payment of the certified amount is the relevant Interim CDT
Assessment Date and the final date for payment is 28 days after the due date.
95.3
The interim certificate specifies the sum the Project Manager considers to be
due on the Interim CDT Assessment Date (notified sum) and the basis on
which that sum is calculated.
95.4
The relevant Party pays the notified sum to the other Party on or before the
final date for payment.
29
PART 2: AMENDMENTS TO OPTION CLAUSES
SECTION 1: MAIN OPTION CLAUSES
The option clauses / schedules of cost components are amended as follows:
Options A and B
Defined Cost
11.2(23)
Add at the end (immediately before the full-stop):
provided that there shall be no double counting in respect of any component of cost
incurred under or in connection with any other Call-off Contract entered into pursuant
to the Framework Contract
11.2(23A)
Add as cl.11.2(23A):
Defined Cost excludes cost which:
•
results from a breach of contract by the Contractor or any Subcontractor,
•
is a Contractor's liability under cl.81,
•
is incurred in (or in preparing for) the conduct of any disputes resolution
procedure,
•
is not justified by the Contractor's accounts and records,
•
should not have been paid to a Subcontractor or supplier in accordance with
its contract, or
•
was incurred only because the Contractor did not follow an acceptance or
procurement procedure stated in the Scope,
and excludes the cost of correcting a Defect.
Options C, D and E
Defined Cost
11.2(24)
Add at the end (immediately before the full stop):
provided that there shall be no double counting in respect of any component of cost
incurred under or in connection with any other Call-off Contract entered into pursuant
to the Framework Contract
Disallowed Cost
11.2(26)
Add as the 1st 4 bullet points:
•
5843397-6
results from a breach of contract by the Contractor or any Subcontractor or a
breach or other default of the Contractor resulting in amounts due from the
Contractor to Subcontractors,
30
•
is a Contractor's liability under cl.81,
•
is incurred in (or in preparing for) the conduct of any disputes resolution
procedure,
•
results from the failure to exercise reasonable skill and care to Provide the
Works with reasonable economy,
11.2(26)
Amend "correcting Defects after Completion" to "correcting Defects".
11.2(26)
Delete the full-stop at the end of the final bullet point. Add the following new paragraph
at the end of the definition of Disallowed Cost:
and any other cost which is identified within the Contract Data or the Scope as being a
cost which the Contractor is not entitled to claim (as part of a payment of Defined Cost
or otherwise) or identified as a Disallowed Cost or a cost which shall be treated as
having been included elsewhere.
Currencies
50.7
In cl.50.7:
•
delete 'same currency' and substitute 'currency of the contract'; and
•
insert 'the amount due and' immediately after 'calculate'.
Contractor's share
54
Delete cl.54 and substitute:
54.1
In this cl.54:
•
5843397-6
Target Price means:
•
(where Option C applies) the final total of all the Prices; or
•
(where Option D applies) the Total of the Prices;
•
Difference means a difference between the final Price for Work Done
to Date and the Target Price, according to the final assessment made
after the Defects Certificate Due Date; and
•
the Contractor's share is amount calculated by banding the
Difference according to columns 1 and 2 of the relevant table below
and applying the Contractor's share band percentage in column 3 for
each band to the amount of the Difference in that band. The
Contractor's share is the total of the resulting amounts in column 3.
31
Tables
Where the final Price for Work Done to Date is less than the Target Price
Band
Difference
Contractor's share band
percentage
Band 1
Up to [ to be agreed or as
Contract Data Part 1 ]%
of the Target Price
[to be agreed or as Contract
Data Part 1] per cent
Band 2
Any sum in excess of
Band 1
[to be agreed or as Contract
Data Part 1 ] per cent
Where the final Price for Work Done to Date is more than the Target Price
5843397-6
Band
Difference
Contractor's share band
percentage
Band 1
Up to [to be agreed or as
Contract Data Part 1] per
cent of the Target Price
[ to be agreed or as Contract
Data Part 1 ] per cent
Band 2
Any sum in excess of
Band 1
[ to be agreed or as Contract
Data Part 1 ] per cent
54.2
Where the Difference results from an excess of the Target Price over the final
Price for Work Done to Date, the Contractor's share is included in the finally
adjusted amount due to the Contractor.
54.3
Where the Difference results from an excess of the final Price for Work Done
to Date over the Target Price, the finally adjusted amount due to the Contractor
is reduced by the Contractor's share.
53.5
The Project Manager makes a preliminary assessment of the Contractor's
share at Completion of the whole of the works (and the definition of Difference
in cl.53.1 for such purpose shall be based on the Project Manager's forecast
of the final Price for Work Done to Date and the Target Price) and the assessed
Contractor's share is included in assessments by way of addition or deduction
as required.
53.6
If at any assessment date prior to the Completion of the whole of the works, it
is evident that there is likely to be a Contractor's share to be paid or allowed
by the Contractor, the Project Manager estimates (acting reasonably) the final
amount of the Contractor's share and a proportionate part of the estimated
Contractor's share is included in assessments as a deduction.
32
SECTION 2: RESOLVING AND AVOIDING DISPUTES
Option W2
W2.1
Delete the 2nd and 3rd sentences, and substitute:
The Client may change its Senior Representative after notifying the Contractor of the
name of the replacement.
W2.2
Delete W2.2 and substitute:
Adjudication
A Party may refer a dispute to adjudication at any time whether or not the dispute has
been referred to the Senior Representatives.
The adjudication provisions in Part 1 of the Scheme for Construction Contracts
(England and Wales) Regulations 1998, SI 1998 No. 649 are incorporated in the
contract, subject to the following:
W2.3
(a)
the adjudicator may determine more than one dispute under or in respect of
the contract at the same time and (if requested to do so by the respondent to
any reference) determines any matter in the nature of set-off, abatement or
counterclaim when determining any other dispute referred;
(b)
if the Contractor, the Subcontractor and the adjudicator agree, the adjudicator
may determine any dispute between the Contractor and any Subcontractor that
raises substantially the same issues as the dispute referred under the contract,
at the same time as determining that latter dispute;
(c)
when giving the decision determining the matter(s) referred, the adjudicator
gives written reasons;
(d)
neither Party invokes the jurisdiction of the tribunal to finally determine a
dispute that is referred to adjudication after the date which is 90 days after the
date of issue of the adjudicator's decision;
(e)
if neither Party does so before that 90 day period has ended, the adjudicator's
decision is conclusive between the Parties;
(f)
for the purposes of the adjudication and of any such tribunal proceedings
begun after the date of referral of the dispute to adjudication, the referral to
adjudication stops the running of time under the Limitation Act 1980 (or its
equivalent under applicable law) in respect of the dispute;
(g)
the burden of proof in the tribunal is unaltered by an adjudicator's decision; and
(h)
the time limit in (d) does not run from the date of issue of an adjudicator's
decision that is declared by the tribunal or agreed by the Parties to be invalid;
upon such declaration or agreement, the running of time under the Limitation
Act 1980 (or equivalent law) resumes.
Delete W2.3.
Final tribunal
5843397-6
33
W2.4
Delete and substitute
Subject to cl.53.3 and the above provisions for adjudication, and save for the purposes
of enforcing a judgment of the English courts in another jurisdiction, the English courts
shall have exclusive jurisdiction in respect of all matters arising under or in connection
with the contract.
5843397-6
34
SECTION 3: SECONDARY OPTION CLAUSES [DN: OPTIONS TO APPLY WILL BE STATED IN
CONTRACT DATA PART 1]
Option X2: Changes in the law
X2.1
Add at the end of the first sentence (immediately before the full stop):
, provided it:
(a)
was not or (exercising Best Practice) could not reasonably have been foreseen
by the Contractor as at the Contract Date; and
(b)
is not one of the other compensation events in the contract.
Option X4: Parent company guarantee
X4
5843397-6
Delete and substitute:
X4.1
Clauses X4.2 to X4.7 (inclusive) apply unless the Client notifies the Contractor
that no parent company guarantee is required.
X4.2
Forthwith upon the execution of this contract the Contractor shall furnish to the
Client a parent company guarantee in terms of the draft contained in
Appendix 6 Part 1 (or such other terms as the Client shall have approved)
executed as a deed and delivered by the parent company as the Client may
approve (Parent Company).
X4.3
With the said parent company guarantee the Contractor shall supply a certified
copy of a resolution of the board of the Parent Company in terms of the draft
contained in Appendix 6 Part 2.
X4.4
Where the Parent Company is incorporated or based outside of England &
Wales, the Contractor shall also provide (with the said parent company
guarantee) a legal opinion addressed to the Client in a form and from a
lawyer(s) satisfactory to the Client, as to the enforceability and efficacy of the
guarantee and to the extent that any registrations, procedures or formalities
are required in any jurisdiction to ensure the validity and enforceability of the
parent company guarantee and, if applicable this contract, the Contractor shall
take or procure that all such steps are taken and provide certified copies of any
relevant documentation to the Client, all at the Contractor's own cost.
X4.5
If there is a material deterioration in the financial position of the Parent
Company within the duration of the Contractor's liability under this contract, or
the parent company guarantee ceases to be valid, enforceable or in full force
and effect, the Client may require that the Contractor procures a replacement
guarantee or other security to the reasonable satisfaction of the Client, and
having a value at least equal to the original parent company guarantee before
the deterioration in its financial position, within 21 days of the Client's request.
X4.6
Clauses X4.3 to X4.5 (inclusive) shall apply to any replacement guarantee
required under cl.X4.5.
X4.7
No payment shall become due to the Contractor under this contract while the
Contractor remains in default of this cl.X4.
35
Option X5: Sectional Completion
X5.2
Add as cl.X5.2 – 5.4:
Cl.43, 44.3, 46.2, 61.7 and X16, and the first two sub-bullet points of the sixth main
bullet point within cl.80.1, apply separately in respect of each section. Accordingly, the
following references in cl.X16.1 are read and applied as though:
(a)
"Completion of the whole of the works", were to "Completion";
(b)
"the whole of the works" were to "the section"; and
(c)
"Price for Work Done to Date" were followed by the words "attributable to the
section concerned"
and as though the two bullet points in cl.X16.2 had been replaced with the words:
in the next assessment after Completion (or after the Client has taken over the section
if this is before Completion).
X5.3
X5.4
The final sub-bullet point of the sixth main bullet point within cl.80.1, and (where Option
C or D is used) cl.54.1, apply in respect of the works as a whole, as though references
to:
(a)
the "Defects Certificate" were to the "last of the Defects Certificates"; and
(b)
the "Defects Certificate Due Date" were followed by the words "for the last of
the Defects Certificates".
Cl.50.1 and 53.1 are read and applied as though the words "Defects Certificate and"
had been replaced with the words "the last of the Defects Certificates,".
Option X7: Delay damages
X7.1
At the end of the second bullet point add "and" and add as the third bullet point:
•
X7.4
the date on which the Project Manager issues a termination certificate.
Add as cl.X7.4:
The Contractor's total aggregate liability to the Client under this cl.X7 shall at no time
exceed the amount stated in the Contract Data.
Option X8: Undertakings to the Client or Others
Delete Option X8.
Option X9: Transfer of rights
Delete Option X9.
Option X11: Termination by the Client
Option X11 applies.
X11.2
5843397-6
Delete and substitute:
36
On termination under Option X11 the termination procedure is P1 and the amounts due
on termination are A1 and A2.
Option X13: Performance bond
Delete Option X13.
Option X15: Limit to design liability
X15.1 – X15.4 Delete cl. X15.1 to X15.4 (inclusive) and substitute:
Nothing in this contract is to be read as
•
comprising any guarantee or warranty on the part of the Contractor; or
•
imposing any absolute obligation on the Contractor to ensure that
the Contractor’s designs for the works are (or will be) fit for purpose.
X15.6
In line 1, after "insurance" add:
referred to in cl. A1.1
Delete all references to "Contract Data" and replace with "cl. A1.1
Option X16: Retention
X16.4
Add as cl.X16.4:
The Client is under no fiduciary obligation in respect of the amount retained and is
under no obligation to place an amount equivalent to the amount retained in any bank
account.
Option X18: Limitation of liability
X18
Delete and substitute:
X18
The Contractor's total liability to the Client for all matters arising under or in connection
with this contract, other than the excluded matters, is limited to the amount stated in
the Contract Data and applies in contract, tort or delict and otherwise to the extent
allowed under the law of the contract.
The excluded matters are amounts payable by the Contractor for:
5843397-6
•
loss of or damage to the Client's property,
•
delay damages if Option X7 applies,
•
Contractor's share if Option C or D applies,
•
personal injury or death,
•
interest on any debt or damages,
•
costs in any proceedings,
37
•
any liability under or in connection with any of clauses A7 (Assignment),
A8 Intellectual Property), A11 (Utilities Procurement), A13 (Confidentiality),
A14 (Bribery Act 2010 / Corrupt Acts), A19 (Modern Slavery Act 2015) or
A20 Audit),
•
any liability which cannot be excluded by reason of law, and
•
any liability for loss or damage in respect of which either Party is required to
maintain (or is maintaining) insurance (other than professional indemnity
insurance).
The Contractor is not liable to the Client for a matter under this contract unless it is
notified to the Contractor by or on behalf of the Client (or its successors or assigns) on
or before the date 12 years after the Completion of the whole of the works.
Option X20: Key Performance Indicators
X20.1 – X20.3 In clauses X20.1 to X20.3, delete each reference to:
•
"Incentive Schedule", and substitute "KPI Schedule 4"; and
•
"incentive schedule", and substitute "KPI schedule".
X20.4
Delete.
X20.5
Delete and substitute:
The Client may add a Key Performance Indicator to the KPI Schedule, or revise any
existing Key Performance Indicator.
Option X22: Early Contractor Involvement
X22.1
Amend definitions as follows:
Delete X22.1(1) Budget and insert not used
Amend X22.1(2) Project Cost as follows: delete definition and substitute with, "the total
of the Prices for Stage 1 and Stage 2"
Add definitions as follows:
(6) Key Date means a key date pertaining to Stages 1 and/or Stage 2, which is agreed
in this contract or by the Client separately in writing and stated in the Programme
(subject to any adjustment under clause X22.8)
(7) Success Criteria means the criteria to be met by any given Key Date, as stated in
the Scope or as agreed in each case with the Client.
(8) Table of Rates means the table of unquantified unit rates, prices and lump sum
charges etc contained in the Pricing Information in respect of the Contractor's Site
establishment, Site facilities, Site staff and management resources, overheads, fees
4
5843397-6
38
and profit and other items, to be applied by the Contractor in compiling its proposal for
Stage 2 and in any pricing exercise for Advance Works to the extent applicable.
(9) The Price for Work done to Date during Stage 1 is total of the Prices for
•
each group of completed activities; and
•
each completed activity which is not in a group
(10) The Prices for Stage 1 are the lump sum prices for each of the Stage 1 activities
on the Activity Schedule unless later changed in accordance with the contract.
X22.3
Delete the bullet points in clause X22.3(3) and replace with the following bullet points:
X22.3(7)
•
it does not comply with the Scope or any Third Party Agreement(s),
•
it will cause the Client to incur unnecessary costs to Others,
•
the Project Manager is not satisfied that the Prices for Stage Two or any
changes to the Prices for Stage Two have been properly assessed, or
•
Others are unlikely to accept the design proposal.
Insert at the end of X22.3(7) the following wording:
The Project Manager shall notify any adjustment to the Prices to reflect any increase
or decrease in the Scope or change in quality or complexity of items within the Scope.
X22.3 (8A)
Insert new clause X22.3(8A) as below:
Any additional Site Information provided by the Contractor in Stage One becomes Site
Information for Stage Two.
X22.3(9)
Delete and replace existing clause X22.3(9) as below:
The Contractor submits the total of the Prices for Stage Two to the Project Manager in
the form of revisions to the Activity Schedule. The Activity Schedule includes the Price
for Work Done to Date in Stage One.
X22.3(10)
Insert new clause X22.3(10) as follows:
If there is an instruction to omit works from the Scope during Stage One, there shall be
a proportionate and fair reduction in the total of the Prices (for Stage One and/or Stage
Two) as appropriate. The Client shall not be liable for any loss of profit, loss of contracts
or other losses consequent on such omission.
X22.3(11)
Pricing
Insert new clause X22.3(11) as follows:
The Contractor's proposals for Stage 2 shall be priced:
(a)
5843397-6
in respect of any works package to be sub-contracted, in accordance with the
successful tender (if any) previously received for that works package);
39
(b)
in respect of anything of a description in the Table of Rates, in accordance with that
table;
(c)
in respect of any of the works performed under an Advance Works Contract, at the
amount of the consideration under that contract;
(d)
in accordance with the provisions of the Scope; and
(e)
in any other respect, at a reasonable price.
X22.5(1)
Delete the second bullet point and state "not used"
X22.5(3)
Delete the existing clause X22.5(3) and replace it as follows:
If the Project Manager does not issue a notice to proceed to Stage Two because:
•
the Project Manager and the Contractor have not agreed the total of the Prices
for Stage Two, or
•
the Contractor has failed to achieve the deliverables and/or any performance
requirements stated in the Scope, or
•
Others do not provide an approval and/or consent to the Client within a
longstop date of 12 months commencing from the Completion of Stage One
Work,
the Client may appoint another contractor to complete the Stage Two Work.
X22.5(4)
Delete and Insert a new clause X22.5(4) as follows:
The Contractor agrees that:
•
the programme, Early Warning Register, Activity Schedule, design information,
Scope, Site Information and any other information provided by the Contractor
in Stage One which are the basis of the Project Manager’s decision to issue a
notice to proceed to Stage Two, are used to assess any adjustment to the
Prices for Stage Two and the Completion Date(s) for any section of the works
and the whole of the works arising from and in connection with compensation
events which occur in Stage Two,
•
such programme becomes the Accepted Programme at the date of Project
Manager’s issue of notice to proceed to Stage Two which may be changed in
accordance with the contract, and
•
if the Project Manager issues a notice to proceed to Stage Two later than the
planned date set out in the Accepted Programme, then this will not be a
compensation event to Stage Two Work.
X22.6
Delete and state "not used"
X22.7
Delete and state "not used"
X22.8
Success Criteria and Key Dates
Insert new clause X22.8
5843397-6
40
X22.10
.1
The Contractor carries out the services required for Stage 1 [and Stage 2] in
such a manner so as to satisfy the Success Criteria for each Key Date by the
Key Date.
.2
The Contractor shall be entitled to a fair and reasonable adjustment to any
given Key Date insofar as the Contractor is delayed in satisfying Success
Criteria for that Key Date by reason of any Compensation Event.
Option A
.1
The Client may (directly or via the Project Manager) require the Contractor to
prepare the Prices for Stage 2 as though the reference to Option C in the
Contract Data were to Option A.
.2
In the event the Client (or the Project Manager) serves notice under clause
X22.10.1:
•
the parties shall work together (in a spirit of good faith) in developing the
proposals for Stage 2 accordingly, and in facilitating the Contractor's
preparation and submission of such a proposal;
•
the Client shall make such changes to the Contract Data and the Scope as it
believes to be appropriate, and as the Contractor approves;
•
the Contractor's pricing (for the Option A contract) shall be reasonable and
proportionate, having regard to the Table of Rates and to the other underlying
principles of clause X22.3 and
•
the provisions of clause X22.3, and of the remainder of this contract, are to be
read and applied accordingly.
Option Y(UK)2: HGCRA 1996
Definitions
Y2.1
Delete and substitute:
In this Option:
•
Time periods in clauses 50.1 – 53.2 and 93A - 95 and in this Option include
Working Days only; and
•
Insolvent means insolvent within the definition in s.113 of the Housing Grants,
Construction and Regeneration Act 1996.
Dates for payment
Y2.2
5843397-6
Delete.
41
Notice of intention to pay less
Y2.3
Delete and substitute:
If a Party (Paying Party) intends to pay less than any notified sum, it gives the other
Party notice of such intention (Pay Less Notice) no later than 3 days before the final
date for payment, stating:
(a)
the sum that it considers to be due on the date such notice is given; and
(b)
the basis on which that sum is calculated,
it being immaterial that the sum the Paying Party intends to pay is zero.
In that event the amount the Paying Party pays in respect of the relevant certificate, on
or before the final date for payment, is the amount specified as due in the Pay Less
Notice, but this does not affect the right of the other Party to contest any statement in
the Pay Less Notice.
Y2.3A
Add as cl.Y2.3A:
If a Pay Less Notice is served in accordance with cl.Y2.3 in relation to the final amount
under cl.53, the final assessment has effect under cl.53.3 as qualified by the Pay Less
Notice.
Y2.4
In the bullet points, change "the contract" to "cl.Y2.3" and in the 2nd bullet point, change
"for one of reasons R1 to R10" to
for the reason that the Contractor is Insolvent.
5843397-6
42
PART 3 - ADDITIONAL CONDITIONS
A1
Professional indemnity insurance
A1.1
The Contractor warrants to the Client that there is in force a policy of professional
indemnity insurance covering its liabilities under the contract for negligent design and
specification, with a limit of indemnity of not less than [£10 000,000.00] [DN: Amount to
be determined on a project basis and stipulated in Contract Data Part 1] for any claim
or claims arising out of each originating cause. The Contractor maintains such
insurance at all times until 12 years after Completion of the whole of the works (or if
sooner until 12 years after the termination of its employment under the contract),
provided such insurance is available on commercially reasonable terms having regard
(inter alia) to premiums required and policy terms obtainable.
A1.2
If for any period such insurance is not available on commercially reasonable terms, the
Contractor forthwith informs the Client and obtains in respect of such period such
reduced level of professional indemnity insurance as is available and as would be fair
and reasonable in the circumstances for the Contractor to obtain.
A1.3
Whenever reasonably required to do so by the Client the Contractor provides
documentary evidence that the insurance required under this cl.A1 is being maintained.
A2
Contractor's warranty
A2.1
Subject to cl.A2.2, the Contractor shall whenever required to do so by the Client
promptly execute and deliver a deed or deeds of warranty in favour of any Beneficiary
or Beneficiaries in the terms of the draft Contractor's warranty contained in appendix 1.
A2.2
The Contractor shall not be required to provide more than 25 such warranties (under
this call-off contract) (in total) or fewer as maybe agreed by the Client. The first 10
such warranties are provided free of charge. Further warranties (under cl.A2.1) are
provided at a cost (to the Client of £1,000.00 per warranty.
A2.3
If the Contractor breaches any provision of this cl.A2, the Client shall be entitled to give
the Contractor written notice specifying the breach. If such breach is not rectified by
the Contractor within 28 days after service of such notice, then no further payment shall
be due to the Contractor hereunder while such breach remains to be rectified.
A3
Consultants
A3.1
Within 28 days after the date of this contract the Contractor shall appoint the
Consultants identified in the Contract Data (or such other consultants as the Client shall
approve) for the purposes of the works.
A3.2
The consultants shall be appointed by deed on terms approved by the Project Manager
(such approval shall not be unreasonably withheld or delayed) pursuant to cl.26.
A3.3
Within 28 days after the appointment of each consultant the Contractor shall supply to
the Client a certified copy of the consultant's deed of appointment.
A3.4
The Contractor shall ensure that each consultant forthwith upon its appointment
executes and delivers a deed of warranty in favour of the Client in the form of the draft
deed contained in appendix 2, mutatis mutandis, with such modifications (if any) as the
Contractor or consultant shall propose and the Client shall approve (acting in
accordance with cl.A16.2).
5843397-6
43
A3.5
Whenever the Client from time to time requires, the Contractor shall ensure that each
consultant executes and delivers a deed or deeds of warranty in favour of any
Beneficiary or Beneficiaries in the form of the draft contained in appendix 2, mutatis
mutandis, with such modifications (if any) as the Contractor or consultant shall propose
and the Client shall approve (acting in accordance with cl.A16.2).
A3.6
The Contractor shall not dismiss any of the consultants or vary the terms of its
appointment without the written approval of the Client.
A3.7
If the employment of any consultant is terminated before the completion of the services
allocated to it, the Contractor shall as soon as is practicable but on 21 days' notice to
the Client appoint another consultant to complete those services (save any consultant
to whom the Client shall make reasonable objection in writing). The foregoing
provisions of this cl.A3 shall apply to such replacement consultant, mutatis mutandis.
A3.8
If the Contractor breaches any provision of this cl.A3, the Client shall be entitled to give
the Contractor written notice specifying the breach. If such breach is not rectified by
the Contractor within 14 days after service of such notice, then no further payment shall
be due to the Contractor hereunder while such breach remains to be rectified.
A4
Specified Subcontractors
A4.1
In this cl.A4, Specified Sub-Contractors means any sub-contractor or supplier of the
Contractor:
•
who undertakes any material element of design; and/or
•
where the value of the works for which they are responsible is valued as equal to
or exceeding [£50,000.00],
and any other sub-contractor or supplier stated as such in the Contract Data.
A4.2
Each of the Specified Sub-Contractors shall be appointed by deed, and within 7 days
after the appointment of a Specified Sub-Contractor the Contractor shall supply a
complete certified copy of the sub-contract to the Client.
A4.3
The Contractor shall ensure that each Specified Sub-Contractor forthwith upon its
appointment executes and delivers a deed of warranty in favour of the Client in the
form of the draft contained in appendix 3, mutatis mutandis, with such modifications (if
any) as the Contractor or sub-contractor shall propose and the Client shall approve
(acting in accordance with cl.A16.2).
A4.4
Whenever the Client from time to time requires, and within 28 days of such request,
the Contractor shall ensure that each Specified Sub-Contractor executes and delivers
a deed or deeds of warranty in favour of any Beneficiary or Beneficiaries in the form of
the draft contained in appendix 3, mutatis mutandis, with such modifications (if any) as
the Contractor or sub-contractor shall propose and the Client shall approve (acting in
accordance with cl.A16.2).
A4.5
If the Contractor breaches cl.A4.2 or cl.A4.3 or cl.A4.4 the Client shall be entitled to
give the Contractor written notice specifying the breach. If such breach is not rectified
by the Contractor within 14 days after service of such notice then the Client shall not
be liable to pay any amount in respect of the elements of the works to which the default
relates while such breach remains to be rectified.
5843397-6
44
A5
Performance bond
A5.1
This cl.A5 only applies where it is stated within the Contract Data that a performance
bond is required.
A5.2
Forthwith upon the execution of this contract the Contractor shall furnish to the Client
a performance bond in the amount specified in the Contract Data and in terms of the
draft contained in appendix 4 (or such other terms as the Client shall have approved,
acting in accordance with cl.A15.2) executed as a deed and delivered by a bank or
insurance company previously approved by the Client, and having a Standard & Poor's
rating of A or better.
A5.3
Unless a performance bond is provided in terms of cl.A5.2 the Client shall be entitled
to retain out of amounts becoming due to the Contractor a sum equal to the required
amount of the performance bond. Any amount so retained shall become due for
release to the Contractor only when such performance bond is provided, or, if none is
provided, on the date on which a performance bond in terms of the draft contained in
appendix 4 would have lapsed.
A5.4
In the event that the rating of the provider of the performance bond falls below that
provided for in cl.A5.2, or the performance bond otherwise ceases to be in full force
and effect, the Contractor shall within 14 days of being required to do so by the Client,
provide the Client with a replacement performance bond from a bank or insurance
company carrying the requisite rating. Clauses A5.2 and A5.3 shall apply mutatis
mutandis in respect of any replacement bond under this cl.A5.
A5.5
If the performance bond will expire prior to the issue of the last Defects Certificate to
be issued in respect of the works by reason of a fixed expiry date (including an expiry
date fixed by reference to the date of issue of the performance bond) provided for in
the performance bond, the Contractor shall not later than the date which is two (2)
months prior to such fixed expiry date procure at its own cost either an extension of the
performance bond or a replacement performance bond with an alternative financial
institution approved by the Client whose credit rating complies with cl.A5.2 (the Client
acting in accordance with cl.A15.2), provided that the expiry date in the performance
bond as extended shall be no earlier than the then anticipated date of issue of the last
Defects Certificate to be issued in respect of the works and such anticipated date shall
be agreed by the Parties (acting reasonably).
A5.6
If no such replacement performance bond is provided or the performance bond is not
extended in each case if and as required by cl.A5.5, the Client shall be entitled to make
a demand under the performance bond in accordance with its terms for a sum or sums
equal to the amount then secured under the performance bond and/or to retain such
amount(s) out of any payment due to the Contractor. Any amount so retained or
received by the Client shall become due for release to the Contractor only when such
replacement performance bond is provided, or, if none is provided, on the date on
which a performance bond in terms of the draft contained in appendix 4 would have
lapsed.
A5.7
The (total) maximum amount which the Client may hold and / or retain at any given
time on account of cl.A5.6, is the required amount of the initial performance bond.
A5.8
Clauses A5.5 to A5.7 (inclusive) shall apply mutatis mutandis in respect of any
replacement bond under this cl.A5.
5843397-6
45
A6
CDM Regulations
A6.1
In this cl.A6 CDM Regulations means the Construction (Design and Management)
Regulations 2015.
A6.2
The Client appoints the Contractor to be the principal contractor and (if so specified
within the Contract Data) Principal Designer for the purposes of the works.
A6.3
Each Party undertakes to the other that it has complied and will comply with its statutory
duties under the CDM Regulations in relation to the works.
A6.4
For the avoidance of doubt, if any other contractors or lawful visitor of the Client has,
after giving reasonable notice to the Contractor, access to parts of the Site at the same
time as the Contractor is undertaking the works, the Contractor shall, in accordance
with this clause be the Principal Contractor of those parts of the Site and shall ensure
that any other contractors or lawful visitor of the Client complies with its health and
safety requirements and any other directions of the Contractor or of the Client at all
times.
A6.5
Before the date of Completion of each section the Contractor is to provide:
(a)
(where the Contractor is appointed as the Principal Designer) to the Client two
paper copies and two electronic copies of the health and safety file (updated
for each section of the works) conforming to the requirements of the CDM
Regulations; or
(b)
(where the Contractor is not appointed as the Principal Designer) to the
Principal Designer such information as the Principal Designer reasonably
requires the Contractor to provide for inclusion in the health and safety file.
A6.6
The Contractor shall be responsible for ensuring that comprehensive arrangements are
in place to liaise with Others to ensure that the works are progressed and completed
as required by the Client in a safe and efficient manner.
A7
Assignment
A7.1
The Client's entire rights and benefits under the contract:
(a)
may be assigned by absolute assignment to any Group Company;
(b)
may be charged and/or assigned by way of security and by way of
reassignment on release from or upon the redemption of the security; and
(c)
may be assigned by absolute assignment on two other occasions only,
and references to the Client include its permitted assignees (but not so as to permit
more than two assignments under cl.A7.1(c).
A7.2
The Contractor may not assign or charge the benefit of the contract or any right arising
under it without the Client's consent, save that the Contractor may assign the right to
receive any payment becoming due to it under the contract by way of debt factoring.
A8
Intellectual property rights
5843397-6
46
A8.1
The Client hereby grants to the Contractor until the defects date a non-exclusive, royalty
free, non-transferable licence to use Intellectual Property Rights that are owned by the
Client and are necessary for the sole purpose of Providing the Works.
A8.2
The Contractor hereby assigns to the Client with full title guarantee (including by way
of assignment of future Intellectual Property Rights) the Foreground IPR.
A8.3
The Client grants to the Contractor a non-exclusive, royalty free, non-transferable
licence to use the Foreground IPR for the sole purpose of continuing to Provide the
Works under this contract.
A8.4
The Contractor shall grant to the Client and/or shall procure the grant to the Client of a
non-exclusive, royalty free, perpetual, irrevocable licence for the Client to:
•
use and reproduce the Background IPR and any Licensed IPR for any purpose
in connection with the whole or any part of the Development or the completed
Development; and
•
sub-license to third parties (including the Client's other consultants and
contractors engaged in connection with the works and/or the Site and any
replacement contractor of the Contractor) the right to use and reproduce the
Background IPR and any Licensed IPR.
The Contractor acknowledges and agrees that such licence shall continue
notwithstanding any termination of this contract or termination (in whole or in part) of
the Contractor's obligation to Provide the Works.
A8.5
The Contractor will disclose to the Client all inventions which the Contractor may make
in performing its obligations under this contract which are directly related to Foreground
IPR, or wholly or substantially based on the Client’s own existing Intellectual Property
Rights.
A8.6
All Intellectual Property Rights in and to the inventions referred to in cl.A8.5, shall vest
in and be owned absolutely by the Client or, to the extent that they do not, are hereby
assigned with full title guarantee to the Client and the Contractor will act consistently
with the Client’s ownership of them.
A8.7
If the Contractor discloses a patentable invention to the Client, the Client may require
the Contractor to assist the Client with the preparation of documentation to file a patent
application in respect of such invention. If an employee of the Contractor has developed
such invention, he shall be named on any patent application filed by the Client under
this clause in respect of such invention and compensation due to him under s.40 of the
Patents Act 1977 or otherwise shall be payable to the Contractor.
A8.8
The Contractor will execute all documents and perform such acts as may be reasonably
necessary to enable the Client to obtain and/or maintain the rights granted to the Client
under this cl.A8.
A8.9
The rights granted to the Client under this cl.A8 are deemed to include rights in respect
of services and/or works provided by the Contractor's Subcontractors and the
Contractor will include provisions in the Contractor's contracts with its Subcontractors
to give effect to the Client's rights under this clause.
5843397-6
47
A8.10
The Contractor agrees and will procure that its Subcontractors agree to waive the
exercise against the Client of all moral rights under the Copyright, Designs and Patents
Act 1988.
A8.11
The Contractor warrants that the use of any Background IPR, Foreground IPR,
Licenced IPR or inventions falling within cl.A8.5 for the purposes of the Development
will not infringe the rights of any third person.
A8.12
Without prejudice to the provisions of this cl.A8 (above), if any claim is made against
the Client in respect of the infringement of third party Intellectual Property Rights, the
Client will promptly notify the Contractor and the Contractor will modify or replace the
thing causing or allegedly causing the infringement (without detracting from the quality
of the works in question), or procure for the Client the right to use it.
A8.13
Where and to the extent the Client is required to enter into licence agreements and/or
support and maintenance agreements with any third party software and/or hardware
provider, for any purpose in connection with or to receive the benefit of the whole or
any part of the Development or the completed Development:
(a)
the terms contained in such third party agreement (including, without limitation,
the term, licence scope, authorised users, pricing, termination and liability
limits) shall not have the effect of causing the Contractor to be unable in any
way to Provide the Works and perform its other duties and obligations under
this contract; and
(b)
no limitations or exclusions of scope, use or liability contained in any such third
party agreement shall limit or exclude the scope of the Contractor's liability to
the Client under this contract.
A9
Operations on Site
A9.1
The Contractor shall provide the Project Manager if and as the Project Manager
requests in writing, details of the Contractor's proposals for the means of access to the
Site during the construction period, vehicle parking facilities on Site, loading and
unloading areas for materials, site compounds, temporary warning and direction signs
on adjacent highways and any other similar information as to the Contractor's working
arrangements. If necessary the Contractor shall amend such details to obtain the
approval of the local planning authority or other relevant public authority having
jurisdiction with respect to the works.
A9.2
The Contractor shall attend project meetings convened by the Project Manager upon
reasonable notice and at reasonable intervals and representatives of the Client and of
the Client's other consultants (and any other persons authorised by the Client and
notified to the Contractor in writing for the purpose) shall be permitted to attend such
meetings.
A9.3
In and about the execution of the works the Contractor shall maintain and not cause
any interference to any support enjoyed by any adjoining land or any structures, other
than any structures which are to be demolished as part of the works.
A9.4
The Contractor shall:
(a)
5843397-6
keep all enclosures around the Site clear of graffiti, posters and other
unauthorised attachments, so far as is practicable;
48
(b)
implement measures for the regulation of traffic to and from the Site including
wheel-washing procedures and street cleaning and comply with any
requirements of the police or highway authorities with regard to local traffic
arriving at and departing from the Site;
(c)
carry out the works in such a manner as not to cause any trespass or
actionable nuisance and as to cause as little noise, interference, inconvenience
or disturbance to the public or to the owners and occupiers of adjoining
property as is reasonably practicable;
(d)
obtain for itself any licences required to oversail any land outside the Site
boundaries; and
(e)
make good or meet the cost of making good of all damage caused to roads,
footpaths and property adjoining the Site and to any services, arising from the
carrying out of the works.
A10
As-built drawings and service manuals
A10.1
At or before (and as a condition of) Completion of the works or any section, the
Contractor shall without charge provide to the Project Manager such draft as-built or
final issue drawings, specifications and other details (in 3 copies), draft service manuals
(in 3 copies) and other documents as are specified in the Scope, containing sufficient
information to enable the works or such section to be properly maintained and
operated.
A10.2
Without prejudice to cl.A10.1, at or before (and as a condition) Completion of the whole
of the works, the Contractor shall without charge provide to the Project Manager 3
copies of all such as-built or final issue drawings, specifications and other details,
service manuals and other documents as are specified in the Scope.
A11
Utilities procurement
A11.1
The Client may terminate the Contractor's obligation to Provide the Works if any of the
termination circumstances in Regulation 89 of the Utilities Contracts Regulations 2016)
applies (whether such termination circumstance(s) apply in respect of this contract.
A11.2
If the Client terminates under any such provision as a result of information not disclosed
by the Contractor at the Contract Date or for circumstances otherwise attributable to
the Contractor, the procedures and amounts due on termination are the same as if the
Contractor has substantially failed to comply with its obligations.
A11.3
If the Client otherwise terminates under any such provision, the procedures and
amounts due on termination are the same as if the Parties had been released under
the law from further performance of the whole of this contract.
A11.4
The Contractor does not appoint a Subcontractor or supplier to which the mandatory
grounds for exclusion apply, such grounds being any listed under regulation 26 of the
Utilities Contracts Regulations 2006 and those mandatory grounds listed under
Regulation 57(1) to (3) of the Public Contracts Regulations 2015 as referred to by
Regulation 80 of the Utilities Contracts Regulations 2016, assuming in the case (and
solely for the purposes) of the latter that the Client is a "contracting authority".
A12
Security
5843397-6
49
A12.1
The Contractor acts at all times in accordance with all security requirements and
regulations of the Client, including (but not limited to) any within the Scope.
A12.2
The Contractor submits to the Project Manager details of people who are to be
employed by it and its Subcontractors in connection with the works. The details include
a list of names and addresses, the capacities in which they are employed, and other
information required by the Project Manager.
A12.3
The Project Manager may instruct the Contractor to take measures to prevent
unauthorised persons being admitted on to the Site. The instruction is a compensation
event if the measures are additional to those required by the Scope.
A12.4
Employees of the Contractor and its Subcontractors are to carry a Client's pass whilst
they are on the parts of the Site stated in the Scope.
A12.5
The Contractor submits to the Project Manager for acceptance a list of the names of
the people / their vehicles for whom / which passes are required. The Project Manager
issues the passes to the Contractor. Each pass is returned to the Project Manager
when the employee / vehicle no longer requires access to that part of the Site or after
the Project Manager has given notice that the employee / vehicle is not to be admitted
to the Site.
A12.6
It is the responsibility of the Contractor to obtain at its own cost and in good time from
the Client all security passes and other documents required for the Contractor and the
Subcontractors and its or their vehicles. A charge will be made for the replacement of
any pass. All security passes and documentation shall be returned to the Project
Manager immediately upon termination of the Contractor's obligation to Provide the
Works (or upon any employee and/or agent of Contractor or the Subcontractors
ceasing to work in connection with this contract) failing which the Contractor shall pay
to the Client the amount prevailing at the time for each security pass not returned and
may be liable to prosecution under the provisions of the Aviation and Maritime Security
Act 1990. The theft or loss of any security pass or other documentation referred to
herein shall in the first instance be reported by the Contractor to the police and the
Client.
A12.7
The Contractor does not take photographs of the Site or the works or any part of them
or otherwise of MAG Sites (other than for recording the progress of the works) unless
he has obtained the acceptance of the Project Manager.
A12.8
The Contractor takes the measures needed to prevent its and its Subcontractors'
people taking, publishing or otherwise circulating such photographs.
A12.9
The Project Manager may by notice to the Contractor delegate its functions referred to
in clauses A12.2, A12.5 and A12.6 to another person (including the Client's security
team).
A13
Confidentiality
A13.1
Save with the Client's prior approval or as is necessary to enable the Contractor to
Provide the Works, the Contractor treats all information relating to the contract and the
works as confidential.
A13.2
The Contractor does not without the prior written approval of the Client use or authorise
the use of any photograph or drawing or other depiction of the works or any part of the
5843397-6
50
works for publicity purposes or in any annual report or accounts or otherwise for any
purpose other than to Provide the Works.
A13.3
The Contractor ensures that all its subcontracts contain the provisions in cl.A13.1 and
A13.2 (mutatis mutandis) and takes all steps necessary to ensure that such provisions
are enforced.
A14
Corrupt Acts
A14.1
The Contractor warrants that no offence under the Bribery Act 2010 (Act) has been or
will be committed by:
(a)
the Contractor; or
(b)
any associated person of the Contractor,
in connection with the procurement or performance of the contract or any associated
transaction.
A14.2
Without prejudice to cl.A14.1, the Contractor further warrants that it, and any
associated person of the Contractor, has complied and shall continue to comply will all
applicable laws, statutes and regulations relating to anti-bribery or anti-corruption
(including, without limitation, the Act).
A14.3
For the purposes of cl.A14.1(b) and cl.A14.2, the definition of associated person in
s.8 of the Act applies (and includes any Subcontractor and any supplier to the
Contractor of any Plant or Materials or Equipment).
A14.4
If at any time the Contractor has knowledge of or has reasonable grounds to suspect
the occurrence of a breach of the warranty in cl.A14.1 or in cl.A14.2, the Contractor
promptly notifies the Client in writing of such matters within its knowledge, or of such
grounds for suspicion, and co-operates with the Client in the investigation of such
breach or suspected breach of warranty.
A14.5
The Contractor establishes and (throughout the duration of this contract) maintains and
enforces adequate policies and procedures relating to anti-corruption and anti-bribery
(including, without limitation, adequate procedures within the meaning of the Act), so
as to ensure compliance with this cl.A14. The Contractor shall make such policies
available for inspection upon the Client's request. Whether or not the Contractor has
adequate procedures shall be determined by reference to section 7(2) of the Act, and
any relevant guidance issued under section 9 of the Act.
A14.6
The Contractor includes equivalent provisions to clauses A14.1 – A14.5 in each of its
contracts with associated persons and takes all steps necessary to ensure that they
are enforced.
A14.7
Breach of this cl.A14 is a Corrupt Act, for the purposes of reason for termination R22.
A14.8
This cl.A14 survives the termination (for any reason) of the contract.
A15
Building information modelling
A15.1
The Contractor complies with the Client's reasonable requirements (from time to time)
as to building information modelling.
5843397-6
51
A15.2
Clauses A15.3 to A15.6 apply only where they are specified to apply in the Contract
Data.
A15.3
Where clauses A15.3 to A15.6 apply, they provide for the use of maturity Level 2
building information modelling in the design and execution of the Project, and for the
development of a project information model and an asset information model.
A15.4
In cl.A15.3, terms used in PAS 1192-2:2013: Specification for information management
for the capital/delivery phase of construction projects using building information
modelling take their meaning from the PAS.
A15.5
The Construction Industry Council BIM Protocol Second Edition (CIC/BIM Pro Second
Edition 2018) contained in the Contract Data (Protocol) and the attachments referred
to in its appendices have effect, subject to the following:
(a)
references in the Protocol to "the Project Team Member" mean the Contractor;
(b)
the 2nd sentence of cl.1.4 of the Protocol shall be deemed to be deleted and
the following wording inserted in its place:
"In the event of any conflict or inconsistency between:
1.4.1
cl.3, cl.4, Appendix 1 and Appendix 2; and
1.4.2
the rights and/or obligations in the Agreement or any other documents
contained in and/or forming part of the Agreement,
the part of this Protocol referred to in cl.1.4.1 shall prevail. In the event of any
other conflict or inconsistency between the Protocol and any provision of the
Agreement or any other document contained in and/or forming part of the
Agreement, the provision of the Agreement and/or such document (as the case
may be) shall prevail.";
(c)
the matters mentioned in cl.3.1.3(a) of the Protocol are responsibilities of the
Contractor;
(d)
the following wording shall be deemed to be included at the end of cl.6.1.1(a):
"(and the expressions 'Intellectual Property Rights', 'Background IPR' and
'Foreground IPR' in cl.A8 of the Agreement shall as the context requires
include the Material and (to the extent that the Project Team Member enjoys
any rights in them), any other data in the Common Data Environment)";
(e)
cl.7.1 of the Protocol does not apply;
(f)
cl.7.3 of the Protocol shall be deemed to be deleted and the following wording
inserted in its place:
The Client shall have no liability to the Project Team Member for or in relation
to any Proprietary Material nor for any material in or derived from any
Proprietary Material, nor for the corruption or alteration of any Proprietary
Material or of any such material or software whatsoever";
(g)
5843397-6
in cl.9 of the Protocol, the reference to cl.3 does not apply;
52
A15.6
(h)
with respect to clauses 10.15 and 10.16 of the Protocol, a person appointed
by the Client whose appointment is transferred to the Contractor, whether by
assignment, novation or otherwise, is not an Other Project Team Member, and
material produced (at any time) by such a person is Material and is outside the
exclusion in cl.10.15 and outside the licences or sub-licences in clauses 6.5
and 6.6 of the Protocol;
(i)
with respect to cl.10.20 of the Protocol, the Permitted Purpose includes the
reinstatement, reconstruction and repair of the Project, and 'Project' includes
the works; and
(j)
add at the end of cl.3.1.1 of the Protocol, the words: “or otherwise direct any
Other Project Team Member appointed by the Client to work to substantially
the same/equivalent arrangements to this Protocol”.
Without prejudice to cl.A15.5 (or the provisions of the Protocol), the Contractor is bound
by, complies with, and ensures compliance by its consultants, sub-contractors and
suppliers (of every tier) with the Security Requirements (as defined in the Protocol and
as revised from time to time). In the event of any conflict between this provision, and
the provisions of the Protocol, this provision prevails.]
[Note: MAG is confirming its requirements as to BIM, including in light of the withdrawal
and replacement of PAS 1192-2.
Changes may be required to the above, depending on the outcome of MAG's review.
A16
Approvals
A16.1
No inspection, testing, approval or review by or on behalf of the Client or any
Beneficiary and no omission to inspect, test, approve or review diminishes any duty or
liability of the Contractor under the contract.
A16.2
Whenever in these Special Conditions there is a reference to any approval by the
Client, such approval is not withheld or delayed without reasonable cause.
A17
Site access and conditions
A17.1
The Contractor's access to the Site shall be strictly in accordance with the Scope. The
Contractor shall be granted access to the areas identified in the Scope for the periods
identified. Following expiry of the periods of access identified in the Scope, the
Contractor shall vacate the Site and ensure that the Site is clear and free of goods,
materials and debris used in connection with the works.
A17.2
The Client gives no warranty or representation as to the condition of the Site, any
existing structures, plant or assets or any adjoining property or any services in or under
the Site or as to the accuracy or sufficiency of any soils or survey data or other data
contained in the Scope or otherwise made available to the Contractor by the Client, or
as to any recommendations or conclusions made or reached in any such document.
A17.3
Subject to cl.A17.4, the Contractor assumes responsibility for any and all surveys,
reports and historic information provided / carried out by (or on behalf of) the Client or
any Group Company (other than by the Contractor), and included in the Site
Information. Save for payment purposes, they are to be treated as having been
5843397-6
53
provided by the Contractor as part of its obligation to Provide the Works (cl.20.1
applying accordingly).
A17.4
The Client shall not rely upon cl.A17.3 as a means of defeating any claim by the
Contractor for a compensation event, and clauses 60 to 65 (inclusive) shall be
construed accordingly.
A17.5
The Contractor assesses, advises on, and confirms (to the Client) the efficacy of any
existing plant, services or assets which are being retained or re-used (at the
Contractor's instigation / with the Contractor's approval). In doing so, the Contractor
has regard to the suitability, durability and functionality of all such existing assets or
systems, and the efficacy of their being retained or re-used as part of or in conjunction
with the works. The Contractor's obligations under this cl.A17.5 form part of its
obligation to Provide the Works and are performed accordingly.
A18
Product guarantees
Without prejudice to clauses A2 – A4 (inclusive) or any right or remedy of the Client,
the Contractor procures in favour of the Client, or takes such steps (including executing
any documents) as are reasonably necessary to assign or otherwise transfer to the
Client the benefit of, any product, goods, materials, plant, equipment and/or supplier
warranties or guarantees which are available from any subcontractors or suppliers.
The Contractor uses reasonable endeavours to procure that such documents conform
to the relevant requirements of the Scope.
A19
Modern Slavery Act 2015
A19.1
The Contractor warrants that:
(a)
no offence under the Modern Slavery Act 2015 (MS Act) has been or will be
committed by the Contractor or any Supply Chain Member; and
(b)
it has no knowledge of any allegation, or of any circumstances that might give
rise to an allegation, of any such offence having been committed or of any noncompliance with the MS Act.
A19.2
The Contractor shall (and shall ensure that each Supply Chain Member shall) comply
with their respective duties and obligations (if any) under the MS Act.
A19.3
For the purposes of this cl.A.19, Supply Chain Member means any person (of any
tier) engaged by the Contractor in connection with this contract or any Advance Works
Contract relating to the Development (including without limitation any Subcontractor).
A19.4
If at any time the Contractor has knowledge of (or has reasonable grounds to suspect
the occurrence of) a breach of any warranty, obligation or undertaking under this
cl.A19, the Contractor shall promptly notify the Client of such matters within its
knowledge, or of such grounds for suspicion, and shall co-operate with the Client in the
investigation of such breach or suspected breach of warranty or undertaking.
A19.5
Breach of this cl.A19 is a substantial failure of the Contractor to comply with its
obligations, for the purposes of reason for termination R11.
A19.6
This cl.A19 survives the termination of this contract (for any reason).
A20
Audit, meetings, reporting and cost transparency
5843397-6
54
A20.1
The Contractor shall promptly provide the Client with such information and reports, and
appropriate representatives of the Contractor shall attend such meetings:
(a)
(b)
as may be reasonably required:
(i)
regarding any works or services, or any events affecting any works or services,
under this contract or Advance Works Contract;
(ii)
for the purposes of monitoring or demonstrating the Contractor's compliance
with its duties and obligations under or in connection with this contract or the
Advance Works Contract; or
as may otherwise be reasonably required by the Client.
A20.2 The Contractor shall maintain such records, and do all such things regarding any audit required
by the Client:
(a)
as may be required by the Scope, or any other provision of this contract or Advance
Works Contract; and
(b)
as may otherwise be reasonably required by the Client (in the context of this contract
or the Advance Works Contract).
A20.3 The Contractor shall:
(a)
provide any reports or information required under clauses A20.1 or A20.2, in such form
and in such manner as is required by this contract or the relevant Advance Works
Contract (as the case may be), or as the Client may reasonably require; and
(b)
maintain such records and documents in respect of this contract, and each Advance
Works Contract, and the performance of its duties and obligations under the same, as
may be required or envisaged by this contract and any Advance Works Contract, or
otherwise would reasonably be expected of a diligent and prudent contractor exercising
Best Practice (Records),
and all such Records, reports and information shall be accurate, reliable and complete.
A20.4 The Records required to be maintained under clause A20.3(b) shall include (without limitation)
records as to those matters identified in the Scope.
A20.5 The Contractor shall permit all of its Records to be inspected and copied by the Client (and/or
any person authorised by the Client) (whether during or after the currency of this contract), and
shall promptly provide (or procure) such facilities and access to the Client (and/or any person
authorised by the Client) as the Client may reasonably require, to allow the Client (and/or any
person authorised by it) to visit any place or access any system or media where Records are
held. Such Records shall be retained until at least 12 years after the earlier of Completion of
the whole of the works and the termination of the Contractor's obligation to Provide the Works
under this contract.
A20.6 Without prejudice to clause A20.5, the Client may at any time (and from time to time) carry out
(or authorise the carrying out) of any audit or audits, and the Contractor shall do all such things
as may reasonably be required to facilitate the same. This shall include, but shall not be limited
to, allowing the Client (and/or any person authorised by the Client) (upon reasonable notice,
during ordinary working hours) to gain access to, take copies of and inspect any or all Records.
5843397-6
55
A20.7 The Contractor shall ensure that its Subcontractors maintain equivalent records and documents
as are required of the Contractor (for the relevant period provided for in clause A20.5), and that
they allow the Client (and/or any person authorised by the Client) the same rights in respect of
such records and documents (including rights of access, copying and inspection) as are
afforded to the Client by the Contractor itself. Similarly, the Contractor shall ensure that its
Subcontractors do all such things as may reasonably be required to facilitate any audit by or
on behalf of (or authorised by) the Client.
A20.8 Clauses A20.9 and A20.10 (inclusive) shall apply in the event that any audit or inspection
reveals that:
(a)
the Contractor has claimed any significant sum to which it is not entitled (or has failed
to account for any sum for which it ought to have accounted);
(b)
the Client has made any significant payment, which it need not have paid;
(c)
there is a significant irregularity in (or omission from) the Contractor's records or
accounts, or that there has been a wrongdoing or fraud; or
(d)
the Contractor has failed to comply with any given requirement of this clause A20, or
of any other provision of this agreement or any Advance Works Contract concerning
reporting, meetings, records or auditing.
A20.9 Where this clause A20.9 applies, the Contractor shall:
(a)
take such steps as may be necessary to resolve the situation (which, for example, may
include repaying any overpaid amounts); and
(b)
indemnify the Client in respect of any and all loss, damage, cost and expense that the
Client may have suffered or incurred, in carrying out (or in arranging for others to carry
out) the inspection (and/or copying) and/or audit concerned, and/or in working with the
Contractor in taking (or in ensuring that the Contractor takes) any steps required under
clause A20.9(a).
A20.10 Without prejudice to any other right or remedy available to the Client, where this clause A20.10
applies, in the event that the Contractor shall have failed to resolve the situation within three (3)
months of his becoming aware of it (to the Client's reasonable satisfaction), then:
(a)
the Client shall be entitled (at any time thereafter) to terminate this contract with
immediate effect, by giving the Contractor a notice referring to this clause A20.10(a);
and
(b)
such failure(s) shall constitute a substantial failure by the Contractor to comply with its
obligations under any Advance Works Contract (for the purposes of reason for
termination R11).
A20.11 This clause A20 is without prejudice to any other requirements of this contract Advance Works
Contract.
A20.12 This cl.A20 survives the termination of this contract (for any reason).
5843397-6
56
Appendix 1
Contractor's warranty
Dated
20
[CONTRACTOR]
[BENEFICIARY]
[CLIENT]
CONTRACTOR'S DEED OF
WARRANTY
relating to [INSERT DETAILS]
5843397-6
57
Contents
Page
Project Data
1
Clause
1
2
3
4
5
6
7
8
9
10
11
12
13
1
2
3
4
5
6
7
8
9
10
11
12
1
2
3
4
5
6
7
8
9
10
11
12
13
1
2
3
4
5
6
7
Construction obligations ............................................................................................................. 2
Professional indemnity insurance .............................................................................................. 2
[Substitution provisions .............................................................................................................. 2
[Deeds of warranty ..................................................................................................................... 4
Assignment ................................................................................................................................ 4
Copyright .................................................................................................................................... 4
Extraneous rights ....................................................................................................................... 5
Defences and exclusions ........................................................................................................... 5
Liability for delay ........................................................................................................................ 5
Contracts (Rights of Third Parties) Act 1999 ............................................................................. 5
Expiry of warranty ...................................................................................................................... 5
Service of notice ......................................................................................................................... 6
Governing law and interpretation ............................................................................................... 6
Duty of care ................................................................................................................................ 2
Professional indemnity insurance .............................................................................................. 2
[Substitution provisions .............................................................................................................. 3
[Deeds of warranty ..................................................................................................................... 4
Assignment ................................................................................................................................ 4
Copyright .................................................................................................................................... 4
Extraneous rights ....................................................................................................................... 5
Defences and exclusions ........................................................................................................... 5
Contracts (Rights of Third Parties) Act 1999 ............................................................................. 6
Expiry of warranty ...................................................................................................................... 6
Service of notice ......................................................................................................................... 6
Governing law and interpretation ............................................................................................... 6
Primary obligations ..................................................................................................................... 3
Copyright .................................................................................................................................... 4
Insurance ................................................................................................................................... 4
[Substitution provisions .............................................................................................................. 4
[Deeds of warranty ..................................................................................................................... 5
Assignment ................................................................................................................................ 5
Defences and exclusions ........................................................................................................... 5
Liability for delay ........................................................................................................................ 6
Extraneous rights ....................................................................................................................... 6
Contracts (Rights of Third Parties) Act 1999 ............................................................................. 6
Expiry of warranty ...................................................................................................................... 6
Service of notice ......................................................................................................................... 6
Governing law and interpretation ............................................................................................... 6
Warranties .................................................................................................................................. 2
Right to inspect .......................................................................................................................... 3
Payment and transfer of title ...................................................................................................... 3
Protection of the Materials ......................................................................................................... 3
Risk in the Materials ................................................................................................................... 3
Survival....................................................................................................................................... 3
Governing law and interpretation ............................................................................................... 4
10-28782653-14\364912-1
The Schedule
Materials ..................................................................................................................................... 6
The Appendix
10-28782653-14\364912-1
Project Data
Date of this Deed

Client
 (No. ), registered office .
Contractor
 (No. ), registered office .
Beneficiary
 (No. ), registered office .
Development
[XXX]
Site
[XXX]
Date of Construction Contract

Form of Construction Contract
Contract incorporating the NEC4 engineering and
construction contract (with bespoke amendments),
concerning the reconfiguration of Terminal 2 MEP installations
& systems and associated works at [
] entered into between
[Manchester Airport PLC] and the Contractor.
Beneficiary's interest

Clause 2: (Professional indemnity
insurance)
(a)
Limit of indemnity: not less than £10,000,000.00 for
any claim or claims arising out of each originating
cause.
(b)
Excess: not exceeding £50,000.00.
Parties
(1)
The Contractor
(2)
The Beneficiary
(3)
[The Client]
Whereas the Client and the Contractor have entered into a construction contract (Construction
Contract), under which the Contractor has agreed to carry out and complete the works (Works)
required for the purposes of the Development (which expression includes the Site and the Works or
either of them as the case requires).
It is agreed in consideration of the sum of £1.00 paid by the Beneficiary, receipt of which the Contractor
acknowledges, as follows:
1
Construction obligations
1.1
The Contractor warrants to the Beneficiary that the Contractor has carried out and completed
or will carry out and complete the Works with all due diligence, in accordance with and subject
to the terms of the Construction Contract, and has observed and performed and will observe
and perform all of its duties and obligations expressed in or arising out of the Construction
Contract and (without qualification to or derogation from the foregoing) has exercised and will
exercise all reasonable skill and care and diligence in and about the construction of the Works.
1.2
Without derogation from clause 1.1, to the extent that under the Construction Contract the
Contractor takes responsibility for the design of the Works or for the selection of goods,
materials, plant or equipment for incorporation in the Works the Contractor warrants that the
same have been or will be designed or selected in accordance with the relevant requirements
of the Construction Contract, including (without limitation) clause 21 of the Construction
Contract.
2
Professional indemnity insurance
2.1
The Contractor warrants to the Beneficiary that there is in force a policy of professional
indemnity insurance covering the liabilities of the Contractor under the Construction Contract
and under this Deed for negligent design and specification, conforming to the relevant
requirements specified in the Project Data. The Contractor agrees to maintain such insurance
at all times until 12 years after the completion of the whole of the Works under the Construction
Contract (or if sooner until 12 years after the termination of the employment of the Contractor
under the Construction Contract), provided such insurance is available on commercially
reasonable terms having regard (inter alia) to premiums required and policy terms obtainable.
2.2
If for any period such insurance is not available on commercially reasonable terms, the
Contractor shall forthwith inform the Beneficiary, and shall obtain in respect of such period such
reduced level of professional indemnity insurance as is available and as would be fair and
reasonable in the circumstances for the Contractor to obtain.
2.3
Whenever reasonably required to do so by the Beneficiary, the Contractor shall provide to the
Beneficiary documentary evidence that the insurance required under this Deed is being
maintained.
3
[Substitution provisions
3.1
The Contractor shall not:
(a)
terminate its employment;
(b)
treat its employment as having been terminated; or
(c)
suspend the carrying out of the Works,
under the Construction Contract (Discontinue) without giving the Beneficiary not less than 21
days' notice of the Contractor's intention to Discontinue, specifying the grounds for the
discontinuance.
3.2
If the Beneficiary gives the Contractor notice requiring it to accept the instructions of the
Beneficiary or its appointee under the Construction Contract, to the exclusion of the Client
(Step-in Notice), the Contractor:
(a)
shall not Discontinue; and
(b)
shall comply with the Step-in Notice.
3.3
A Step-in Notice may be served, whether or not the Contractor has previously served notice
under clause 3.1, but not after the notice period under clause 3.1 has expired.
3.4
As against the Client and the Beneficiary, the Contractor shall be entitled and obliged to rely
upon and to comply with any Step-in Notice, and shall not make any enquiry into the entitlement
of the Beneficiary as against the Client to serve the Step-in Notice.
3.5
As from the date of service of a Step-in Notice (Step-in Date), the Beneficiary or its appointee
shall assume all the rights and perform all the obligations of the Client under the Construction
Contract, provided that this shall not affect or derogate from any right of action the Client may
have against the Contractor in respect of any breach of duty of the Contractor under or in
connection with the Construction Contract happening before the Step-in Date.
3.6
Within 21 days after the Step-in Date, the Beneficiary shall pay to the Contractor an amount
equal to the sum (if any) due and payable to the Contractor under the Construction Contract.
3.7
Service of a Step-in Notice does not affect the right of the Contractor to Discontinue on account
of any breach of duty of the Beneficiary or its appointee after the Step-in Date.
3.8
If the employment of the Contractor under the Construction Contract is terminated before
service of any Step-in Notice, then if required to do so by notice served by the Beneficiary not
later than 12 weeks after the date of such termination, the Contractor shall enter into a new
construction contract with the Beneficiary or its appointee on the same terms as the
Construction Contract but with such revisions as the Beneficiary shall reasonably require to
reflect altered circumstances. Upon the execution of such new agreement, the Beneficiary
shall pay to the Contractor an amount equal to the sum (if any) due and payable (excluding
cancellation fees) to the Contractor under the Construction Contract.
3.9
The Beneficiary guarantees to the Contractor the performance of the obligations of any
appointee of the Beneficiary nominated under clause 3.2 or 3.8.
3.10
If, before the service of any Step-in Notice under this Deed, any other person exercises any
similar right to step into the Construction Contract to the exclusion of the Client, in accordance
with any other agreement entered into pursuant to any term of the Construction Contract, this
clause 3 shall cease to have effect.
3.11
The Client agrees to the provisions of this clause 3.]
[Clause 3 shall be included in warranties in favour of the Beneficiary if the Client shall
require].
4
[Deeds of warranty
4.1
The Contractor shall, as the Beneficiary may at any time or times require, promptly execute and
deliver a deed or deeds of warranty in favour of any person that the Contractor is obliged to
provide a warranty to under the Construction Contract in the terms of this Deed, mutatis
mutandis, but excluding the terms of clause 3 (Substitution provisions) and of this clause 4.
4.2
The Contractor shall not be required to provide more than 25 such warranties in relation to the
Construction Contract (in total). The first 10 such warranties are provided free of charge.
Further warranties (under clause 4.1) are provided at a cost (to the Beneficiary) of £1,000.00
per warranty.]
[Clause 4 shall be included in warranties in favour of the Beneficiary if the Client shall
require]
5
Assignment
5.1
The Beneficiary may assign all of its rights under this Deed:
(a)
to any person providing finance to the Beneficiary in connection with the Development
and by way of re-assignment on redemption; and
(b)
by absolute assignment to any Group Company of the Beneficiary; and
(c)
by absolute assignment on two other occasions only.
5.2
If the interest of the Beneficiary in the Development is as trustee, it may also assign its rights
under this Deed to another trustee of the same trust.
5.3
In this Deed references to the Beneficiary include where the context admits its permitted
assignees, (but not so as to permit more than two assignments under clause 5.1(c)).
6
Copyright
6.1
The Contractor grants to the Beneficiary, subject to clause 6.5, an irrevocable, non-exclusive
royalty-free licence to use and reproduce any drawings, calculations, specifications and/or
other documents produced by or on behalf of the Contractor for the purposes of the Works and
any designs contained in them (Documents) for any purpose connected with the Development
(other than by the reproduction of any such designs in any extension to the Development) and
to grant sub-licences in the terms of this licence but copyright in the Documents shall remain
vested in the Contractor.
6.2
The Contractor will not be liable for any use of the Documents for any purposes other than
those for which the same are or were produced.
6.3
The Beneficiary shall on written request and upon paying a reasonable copying charge, be
entitled to be supplied by the Contractor with full and proper copies of the Documents.
6.4
The Contractor warrants to the Beneficiary that the use of the Documents for the purposes of
the Development will not infringe the rights of any third person.
6.5
The grant of the licence under clause 6.1 shall not apply to the extent the Contractor is unable
to grant such licence as a consequence of the requisite rights having previously been
transferred by the Contractor to the Client.
7
Extraneous rights
7.1
This Deed shall not negate or diminish any duty or liability otherwise owed by the Contractor to
the Beneficiary.
7.2
No approval or inspection of the Works or of any designs or specifications and no testing of any
work or materials by or on behalf of the Beneficiary and no omission to inspect or test shall
negate or diminish any duty or liability of the Contractor arising under this Deed.
8
Defences and exclusions
8.1
In any claim under this Deed for breach of clause 1 (Construction obligations) the Contractor
shall have no greater obligation or liability to the Beneficiary than if the Beneficiary had been
named as the Client under the Construction Contract and there shall be available to the
Contractor any defence that:
(a)
arises from or in connection with the Construction Contract; and
(b)
would have been available if the Beneficiary had been named as the Contractor's Client
under the Construction Contract,
excluding any set-off or counterclaim available against the Client.
8.2
The Contractor shall not be entitled to rely under this Deed upon any set-off or counterclaim
available against the Client, that does not arise from or in connection with the Construction
Contract.
8.3
[The exclusion of set-off or counterclaim effected by clause 7.1 shall not apply if the Beneficiary
has served a Step-in Notice under clause 3 ([Substitution provisions).]
[Clause 8.3 applies only if the substitution provisions are included]
9
Liability for delay
The Contractor shall have no liability under this Deed for any delay in carrying out or completing
the Works.
10
Contracts (Rights of Third Parties) Act 1999
This Deed is not intended to confer any rights on any third party pursuant to the Contracts
(Rights of Third Parties) Act 1999.
11
Expiry of warranty
No proceedings shall be commenced against the Contractor under this Deed more than
12 years after the completion of the Works under the Construction Contract (or, if earlier, more
than 12 years after the employment of the Contractor under the Construction Contract is
terminated).
12
Service of notice
Any notice to be served under this Deed must be in writing and must be served by hand or by
recorded delivery, and in the case of a corporation must be served at its registered office for
the time being. In any other case notice may be served at any address for the time being of
the person to be served. Service shall take effect, if given by hand, on the date of delivery. If
given by post, it shall take effect 2 days after posting, excluding Saturdays, Sundays and
statutory holidays.
13
Governing law and interpretation
13.1
The law of this Deed is English law and the English courts shall have exclusive jurisdiction with
regard to all matters arising under it.
13.2
The Project Data are part of this Deed and the definitions given in the Project Data and in the
Recitals apply to this Deed.
13.3
In this Deed:
13.4
(a)
Development includes part of the Development;
(b)
Group Company means any subsidiary company or holding company of the
Beneficiary, or another subsidiary or holding company of such company, as subsidiary
and holding company are understood within section 1159, Companies Act 2006, but
on the basis that the holding of not less than one quarter of voting rights shall be
deemed to satisfy the condition in section 1159(1)(a);
(c)
person includes a firm and any entity having legal capacity;
(d)
any term importing gender shall include any gender;
(e)
any term importing the singular includes the plural and vice versa;
(f)
any reference to any clause or schedule is a reference to such clause or schedule of
or to this Deed.
Clause headings do not form part of nor affect the interpretation of this Deed.
Executed and delivered as a deed:
Executed as a deed and delivered by
[the Contractor] acting by a director
in the presence of:
............................................................................
Witness
……………………………………………………….
Name
)
)
)
)
)
……………………………………………………
Director
…………………………………………………...
Name
Executed as a deed and delivered by
[the Beneficiary] acting by a director
in the presence of:
)
)
)
)
)
……………………………………………………
Director
)
)
)
)
)
……………………………………………………
Director
…………………………………………………...
Name
............................................................................
Witness
……………………………………………………….
Name
Executed as a deed and delivered by
--------------------- AIRPORT PLC acting by a
director
in the presence of:
............................................................................
Witness
……………………………………………………….
Name
…………………………………………………...
Name
Appendix 2
Consultants' warranties
Dated
20
[CONSULTANT]
[BENEFICIARY]
[CONTRACTOR]
[CLIENT]
CONSULTANT'S DEED OF WARRANTY
in favour of [the Client] [] relating
to relating to [INSERT DETAILS]
Contents
Page
Project Data
1
Clause
1
2
3
4
5
6
7
8
9
10
11
12
Duty of care ................................................................................................................................ 2
Professional indemnity insurance .............................................................................................. 2
[Substitution provisions .............................................................................................................. 3
Deeds of warranty ...................................................................................................................... 4
Assignment ................................................................................................................................ 4
Copyright .................................................................................................................................... 4
Extraneous rights ....................................................................................................................... 5
Defences and exclusions ........................................................................................................... 5
Contracts (Rights of Third Parties) Act 1999 ............................................................................. 6
Expiry of warranty ...................................................................................................................... 6
Service of notice ......................................................................................................................... 6
Governing law and interpretation ............................................................................................... 6
10-28782653-14\364912-1
Project Data
Date of this Deed

Client
 [(No. ), registered office] [of] .
Consultant
 [(No. ), registered office] [of] .
Contractor
 (No. ), registered office .
Beneficiary
 (No. ), registered office .
Consultant's profession
[architects] [civil & structural engineers] [mechanical &
electrical services engineers] []
Development
.
Site

Date of Appointment

Date of Construction Contract

Beneficiary's interest
[The Client under the Construction Contract]
Clause 2: (Professional indemnity
insurance)
5
(a)
(b)
[Partners of the Consultant]
5
6
Limit of indemnity: not less than £[10],000,000.006 for
any claim or claims arising out of each originating
cause, provided that such limit of indemnity may be in
the aggregate for each year of insurance in respect of
claims for pollution, contamination and asbestos.
Excess: not exceeding £,000.00.

See provisions in the Appointment for additional classes of Beneficiary.
Limit of indemnity to be approved by the Client.
10-28782653-14\364912-1
Parties
(1)
The Consultant
(2)
The Beneficiary
(3)
[The Contractor]
(4)
[The Client]
Whereas
(A)
The Contractor and the Consultant have entered into an appointment (Appointment) under
which the Consultant has agreed to perform certain services (Services) and to perform certain
other obligations in connection with the Development (which expression includes the Site and
the works (Works) constructed or to be constructed on or adjacent to the Site or either of them
as the case requires).
(B)
The [Beneficiary] [Client] and the Contractor have entered into a construction contract
(Construction Contract) under which the Contractor has agreed to design or complete the
design of and to construct the Works.
It is agreed in consideration of the sum of £1.00 paid by the Beneficiary, receipt of which the Consultant
acknowledges, as follows:
1
Duty of care
The Consultant warrants to the Beneficiary that it has performed and/or subject to the terms of
the Appointment shall perform the Services and its other obligations under the Appointment,
and that in doing so it has used and/or shall use all the professional skill and care and diligence
reasonably to be expected of suitably qualified and experienced consultants undertaking duties
similar to the Services in relation to projects similar to the Development.
2
Professional indemnity insurance
2.1
The Consultant warrants to the Beneficiary that there is in force a policy of professional
indemnity insurance covering the liabilities of the Consultant for negligence under the
Appointment and this Deed, conforming to the relevant requirements specified in the Project
Data. The Consultant agrees to maintain such insurance at all times until 12 years after the
completion of the Development under the Construction Contract (or if sooner until 12 years
after the termination of the employment of the Consultant under the Appointment), provided
such insurance is available on commercially reasonable terms having regard (inter alia) to
premiums required and policy terms obtainable.
2.2
If for any period such insurance is not available on commercially reasonable terms, the
Consultant shall forthwith inform the Beneficiary, and shall obtain in respect of such period such
reduced level of professional indemnity insurance as is available and as would be fair and
reasonable in the circumstances for the Consultant to obtain.
2.3
Whenever reasonably required to do so by the Beneficiary, the Consultant shall provide to the
Beneficiary documentary evidence that the insurance required under this Deed is being
maintained.
10-28782653-14\364912-1
3
[Substitution provisions
3.1
The Consultant shall not:
(a)
terminate its employment;
(b)
treat its employment as having been terminated; or
(c)
suspend the performance of the Services,
under the Appointment (Discontinue) without giving the Beneficiary not less than 28 days'
notice of the Consultant's intention to Discontinue, specifying the grounds for the
discontinuance.
3.2
If the Beneficiary gives the Consultant notice requiring it to accept the instructions of the
Beneficiary or its appointee under the Appointment, to the exclusion of the Contractor (Step-in
Notice), the Consultant:
(a)
shall not Discontinue; and
(b)
shall comply with the Step-in Notice.
3.3
A Step-in Notice may be served, whether or not the Consultant has previously served notice
under clause 3.1, but not after the notice period under clause 3.1 has expired.
3.4
As against the Contractor and the Beneficiary, the Consultant shall be entitled and obliged to
rely upon and to comply with any Step-in Notice, and shall not make any enquiry into the
entitlement of the Beneficiary as against the Contractor to serve the Step-in Notice.
3.5
As from the date of service of a Step-in Notice (Step-in Date), the Beneficiary or its appointee
shall assume all the rights and perform all the obligations of the Contractor under the
Appointment, provided that this shall not affect or derogate from any right of action the
Contractor may have against the Consultant in respect of any breach of duty of the Consultant
under or in connection with the Appointment happening before the Step-in Date.
3.6
Within 21 days after the Step-in Date, the Beneficiary shall pay to the Consultant an amount
equal to the fees and disbursements then owing to the Consultant under the Appointment.
3.7
Service of a Step-in Notice does not affect the right of the Consultant to Discontinue on account
of any breach of duty of the Beneficiary or its appointee after the Step-in Date.
3.8
If the employment of the Consultant under the Appointment is terminated before service of any
Step-in Notice, then if required to do so by notice served by the Beneficiary not later than 12
weeks after the date of such termination, the Consultant shall enter into a new agreement with
the Beneficiary or its appointee on the same terms as the Appointment but with such revisions
as the Beneficiary shall reasonably require to reflect altered circumstances. Forthwith upon the
execution of such new agreement, the Beneficiary shall pay to the Consultant an amount equal
to the fees and disbursements (excluding cancellation fees) then owing to the Consultant under
the Appointment.
3.9
The Beneficiary guarantees to the Consultant the performance of the obligations of any
appointee of the Beneficiary nominated under clause 3.2 or 3.8.
3.10
If, before the service of any Step-in Notice under this Deed, any other person exercises any
similar right to step into the Appointment to the exclusion of the Contractor, in accordance with
10-28782653-14\364912-1
any other agreement entered into pursuant to any term of the Appointment, this clause 3 shall
cease to have effect.
3.11
The Contractor [and the Client] agree[s] to the provisions of this clause 3.]
[Note: Clause 3 shall be included in the warranty in favour of the Client, and such other
Beneficiaries as the Client may require.]
4
[Deeds of warranty
4.1
The Consultant (and the Contractor, if required) shall, as the Beneficiary may at any time or
times require, each promptly execute and deliver a deed or deeds of warranty in terms of this
Deed, mutatis mutandis, in favour of each or any other person for whom such a deed could be
called in accordance with the Construction Contract (for such purposes, disregarding any
termination of the Construction Contract or the Appointment)[, but excluding clause 3
([Substitution provisions) and this clause 4.]7
[Note: Clause 4 shall be included in warranties in favour of the Client, and such other
Beneficiaries as the Client may require.]
4.2
If the Consultant and/or the Contractor fails to execute and deliver any deed pursuant to clause
4.1 within 7 days of the Beneficiary’s request, the Beneficiary may execute such deed on behalf
of the party in default and the Consultant and the Contractor each hereby appoints the
Beneficiary as its attorney for the purpose of executing any such deed. The Consultant and
the Contractor each agrees to ratify and confirm any act done by the Beneficiary pursuant to
this power of attorney and agrees that this power is irrevocable pursuant to section 4 of the
Powers of Attorney Act 1971.]
5
Assignment
5.1
The Beneficiary may assign all of its rights under this Deed:
(a)
to any person providing finance to the Beneficiary in connection with the Development
and by way of re-assignment on redemption; and
(b)
by absolute assignment to any Group Company of the Beneficiary; and
(c)
by absolute assignment on two other occasions only.
5.2
If the interest of the Beneficiary in the Development is as trustee, it may also assign its rights
under this Deed to another trustee of the same trust.
5.3
In this Deed references to the Beneficiary include where the context admits its permitted
assignees, but not so as to permit more than two assignments under clause 5.1(c).
6
Copyright
6.1
The Consultant grants to the Beneficiary, subject to clause 6.6, an irrevocable, non-exclusive
royalty-free licence to use and reproduce any drawings, calculations, specifications and/or
other documents produced by the Consultant under the Appointment and any designs
contained in them (Documents) for any purpose connected with the Development (other than
by the reproduction of any such designs in any extension to the Development) and to grant
7
Text in brackets to be included if the Beneficiary is not the Client.
10-28782653-14\364912-1
sub-licences in the terms of this licence, but copyright in the Documents shall remain vested in
the Consultant.
6.2
The Consultant will not be liable for any use of the Documents for any purposes other than
those for which they are or were produced.
6.3
The Beneficiary shall on written request and upon paying a reasonable copying charge, be
entitled to be supplied by the Consultant with full and proper copies of the Documents.
6.4
The Consultant warrants to the Beneficiary that the use of the Documents for the purposes of
the Development will not infringe the rights of any third person.
6.5
The Consultant agrees to waive any right to be identified as author of the Documents in
accordance with section 77, Copyright Designs and Patents Act 1988 and any right not to have
the Documents subjected to derogatory treatment in accordance with section 80 of that Act as
against the Beneficiary or any licensee or assignee of the Beneficiary.
6.6
The grant of the licence under clause 6.1 shall not apply to the extent the Consultant is unable
to grant such licence as a consequence of the requisite rights having previously been
transferred by the Consultant and to the [Client][Beneficiary]8.
7
Extraneous rights
7.1
This Deed shall not negate or diminish any duty or liability otherwise owed by the Consultant to
the Beneficiary.
7.2
No approval or inspection of the Development or of any designs or specifications and no testing
of any work or materials by or on behalf of the Beneficiary and no omission to inspect or test
shall negate or diminish any duty or liability of the Consultant arising under this Deed.
8
Defences and exclusions
8.1
In any claim under this Deed for breach of clause 1 (Duty of care) there shall be available to
the Consultant any defence that:
(a)
arises from or in connection with the Appointment; and
(b)
would have been available if the claim had been brought by the Contractor under the
Appointment,
excluding any set-off or counterclaim available against the Contractor.
8.2
The Consultant shall not be entitled to rely under this Deed upon any set-off or counterclaim
available against the Contractor, that does not arise from or in connection with the Appointment.
8.3
[The exclusion of set-off or counterclaim effected by clause 7.1 shall not apply if the Beneficiary
has served a Step-in Notice under clause 3 ([Substitution provisions).] [Clause 8.3 applies
only if the substitution provisions are included]
8
This reference to Beneficiary only applies in a Client warranty.
10-28782653-14\364912-1
9
Contracts (Rights of Third Parties) Act 1999
This Deed is not intended to confer any rights on any third party pursuant to the Contracts
(Rights of Third Parties) Act 1999.
10
Expiry of warranty
No proceedings shall be commenced against the Consultant under this Deed more than
12 years after the completion of the Development under the Construction Contract (or, if earlier,
more than 12 years after the employment of the Consultant under the Appointment is
terminated).
11
Service of notice
Any notice to be served under this Deed must be in writing and must be served by hand or by
recorded delivery, and in the case of a corporation must be served at its registered office for
the time being. In any other case notice may be served at any address for the time being of
the person to be served. Service shall take effect, if given by hand, on the date of delivery. If
given by post, it shall take effect 2 days after posting, excluding Saturdays, Sundays and
statutory holidays.
12
Governing law and interpretation
12.1
The law of this Deed is English law and the English courts shall have exclusive jurisdiction with
regard to all matters arising under it.
12.2
The Project Data are part of this Deed and the definitions given in the Project Data and in the
Recitals apply to this Deed.
12.3
In this Deed:
(a)
Development includes part of the Development;
(b)
Group Company means any subsidiary company or holding company of the
Beneficiary, or another subsidiary or holding company of such company, as subsidiary
and holding company are understood within section 1159, Companies Act 2006, but
on the basis that the holding of not less than one quarter of voting rights shall be
deemed to satisfy the condition in section 1159(1)(a);
(c)
person includes a firm and any entity having legal capacity;
(d)
any term importing gender shall include any gender;
(e)
any term importing the singular includes the plural and vice versa; and
(f)
any reference to any clause or schedule or appendix is a reference to such clause or
schedule or appendix of or to this Deed.
12.4
For the purposes of clause 1 (Duty of care), references to the Appointment include any previous
appointment of the Consultant by the Contractor (whether or not in writing) to provide services
of the kind mentioned in the Appointment in connection with the Development.
12.5
Clause headings do not affect the interpretation of this Deed.
Executed and delivered as a deed:
10-28782653-14\364912-1
Executed as a deed and delivered by
[Full name of Partner]
in the presence of:
)
)
)
)
)
…………………………………………………
…
Partner
…………………………………………………...
Name
............................................................................
Witness
............................................................................
Name
(In the case of a partnership all partners to execute in the above form)
[OR in the case of a company]
Executed as a deed and delivered by
[the Consultant] acting by a director
in the presence of:
)
)
)
)
)
…………………………………………………
…
Director
…………………………………………………...
Name
............................................................................
Witness
……………………………………………………….
Name
[OR in the case of an LLP]
Executed as a deed and delivered by
[the Consultant] acting by a member
in the presence of:
............................................................................
Witness
……………………………………………………….
Name
10-28782653-14\364912-1
)
)
)
)
)
…………………………………………………
…
Member
…………………………………………………...
Name
[Executed as a deed and delivered by
[the Beneficiary] acting by a director
in the presence of:
)
)
)
)
)
…………………………………………………
…
Director
…………………………………………………...
Name
............................................................................
Witness
……………………………………………………….
Name]
[Executed as a deed and delivered by
[the Contractor] acting by a director
in the presence of:
)
)
)
)
)
…………………………………………………
…
Director
…………………………………………………...
Name
............................................................................
Witness
……………………………………………………….
Name]
[Executed as a deed and delivered by
[---------------------- AIRPORT PLC acting by a
director
in the presence of:
............................................................................
Witness
……………………………………………………….
Name]
10-28782653-14\364912-1
)
)
)
)
)
…………………………………………………
…
Director
…………………………………………………...
Name
Appendix 3
Subcontractors' warranties
Dated
20
[SUB-CONTRACTOR]
[BENEFICIARY]
SUB-CONTRACTOR'S DEED OF
WARRANTY
relating to [INSERT DETAILS]
10-28782653-14\364912-1
Contents
Page
Project Data
1
Clause
1
2
3
4
5
6
7
8
9
10
11
12
13
Primary obligations ..................................................................................................................... 3
Copyright .................................................................................................................................... 4
Insurance ................................................................................................................................... 4
[Substitution provisions .............................................................................................................. 4
[Deeds of warranty ..................................................................................................................... 5
Assignment ................................................................................................................................ 5
Defences and exclusions ........................................................................................................... 5
Liability for delay ........................................................................................................................ 6
Extraneous rights ....................................................................................................................... 6
Contracts (Rights of Third Parties) Act 1999 ............................................................................. 6
Expiry of warranty ...................................................................................................................... 6
Service of notice ......................................................................................................................... 6
Governing law and interpretation ............................................................................................... 6
10-28782653-14\364912-1
Project Data
Date of this Deed

[Client] [Beneficiary]

Main Contractor
 (No. ), registered office .
Sub-Contractor
 (No. ), registered office .
[Beneficiary
 (No. ), registered office .]
Development and Site
[XXX].
Date of Main Contract

Date of Sub-Contract

Sub-Contract Works

Beneficiary's interest
[The Client under the Main Contract]
9
Clause 3: Insurance
Prohibited Materials
9
10
[Professional indemnity insurance] [Public and product liability
insurance]:
(a)
Limit of indemnity: not less than £[5],000,000.0010 for
any claim or claims arising out of each originating
cause, provided that such limit of indemnity may be in
the aggregate for each year of insurance in respect of
claims for pollution, contamination and asbestos.
(b)
To be maintained until 12 years after the completion
of the whole of the Works.
Any materials:
(a)
which by their nature or application contravene any
British Standard or EU equivalent;
(b)
which contravene the recommendations of the British
Council for Offices' publication Good Practice in the
Selection of Construction Materials (2011); or
(c)
which are considered to be deleterious within the
building or engineering design professions.
See provisions in the Construction Contract for additional classes of Beneficiary.
Limit of indemnity / type of insurance to be approved by the Client.
10-28782653-14\364912-1
Parties
(1)
The Sub-Contractor
(2)
The Beneficiary
Whereas
(A)
The [Client][Beneficiary] and the Main Contractor have entered into a construction contract
(Main Contract), under which the Main Contractor has agreed to carry out and complete the
works (Works) required for the purposes of the Development (which expression means the Site
and the Works or either of them as the case requires).
(B)
The Main Contractor and the Sub-Contractor have entered into a sub-contract (Sub-Contract),
under which the Sub-Contractor has agreed to design or complete the design of and to supply
and erect or install the Sub-Contact Works as part of the Works.
It is agreed in consideration of the sum of £1.00 paid by the Beneficiary, receipt of which the SubContractor acknowledges:
1
Primary obligations
Performance of the Sub-Contract
1.1
The Sub-Contractor warrants that it:
(a)
has carried out or will carry out and complete the Sub-Contract Works in accordance
with and subject to the terms of the Sub-Contract; and
(b)
has observed and performed and will observe and perform all of its duties and
obligations expressed in or arising out of the Sub-Contract.
Design warranty
1.2
The Sub-Contractor warrants that all reasonable skill and care have been and will be exercised
in the following, to the extent of the Sub-Contractor's responsibility for the same:
(a)
the design of the Sub-Contract Works;
(b)
the selection of goods, materials, equipment or plant for the Sub-Contract Works; and
(c)
the satisfaction of any performance requirement or specification of or for the SubContract Works,
and for this purpose, the Sub-Contractor is responsible for any design or the selection of any
goods, materials, equipment or plant, whether such design or selection is produced or made by
the Sub-Contractor or by another person on the Sub-Contractor's behalf.
Prohibited materials
1.3
The Sub-Contractor warrants that it has used and will use all reasonable skill and care not to
specify for use or use in the Development any Prohibited Materials.
10-28782653-14\364912-1
2
Copyright
2.1
The Sub-Contractor grants to the Beneficiary, subject to clause 6.5, an irrevocable, nonexclusive royalty-free licence to use and reproduce any drawings, calculations, specifications
and/or other documents produced by the Sub-Contractor under the Sub-Contract and any
designs contained in them (Documents) for any purpose connected with the Development
(other than by the reproduction of any such designs in any extension to the Development) and
to grant sub-licences in the terms of this licence, but copyright in the Documents shall remain
vested in the Sub-Contractor.
2.2
The Sub-Contractor will not be liable for any use of the Documents for any purposes other than
those for which the same are or were produced.
2.3
The Sub-Contractor warrants that the use of the Documents for the purposes of the
Development will not infringe the rights of any third person.
2.4
The Beneficiary shall on written request and upon paying a reasonable copying charge, be
entitled to be supplied by the Sub-Contractor with full and proper copies of the Documents.
2.5
The grant of the licence under clause 2.1 shall not apply to the extent the Sub-contractor is
unable to grant such licence as a consequence of the requisite rights having previously been
transferred by the Sub-contractor and to the [Client][Beneficiary]11.
3
Insurance
3.1
The Sub-Contractor warrants that there is in force a policy of insurance covering the liabilities
of the Sub-Contractor under the Sub-Contract and under this Deed in respect of the risks usually
covered by such insurance, conforming to the relevant requirements specified in the Project
Data.
3.2
The Sub-Contractor agrees to maintain such insurance continuously in place for the relevant
period specified in the Project Data, provided such insurance is available on commercially
reasonable terms having regard (inter alia) to premiums required and policy terms available.
3.3
Whenever required to do so, the Sub-Contractor shall provide to the Beneficiary documentary
evidence that such insurance is being maintained.
4
[Substitution provisions
4.1
If the employment of the Main Contractor under the Main Contract is terminated, the Beneficiary
may within 28 days after the date of termination give notice requiring the Sub-Contractor to enter
into a new contract (New Contract) with the Beneficiary or its appointee on the same terms as
the Sub-Contract, executed as a deed, but with such revisions as the Beneficiary may
reasonably require to reflect altered circumstances, for the continuation and completion of the
Sub-Contract Works; and the Sub-Contractor shall comply with such notice.
4.2
Upon the execution of the New Contract the Beneficiary shall pay to the Sub-Contractor a sum
equal to the amount due to the Sub-Contractor under the Sub-Contract (less any retention,
which shall be payable under the New Contract as if the work or materials to which such
retention relates had been supplied under the New Contract).
11
This reference to Beneficiary only applies in an Client warranty.
10-28782653-14\364912-1
4.3
Upon the execution of the New Contract, the Beneficiary shall pay the Sub-Contractor (to the
extent not included in the sum payable under clause 4.2) the amount of any remobilisation costs
incurred in consequence of the Beneficiary's notice given under clause 4.1, to the extent
reasonably or necessarily incurred by the Sub-Contractor.]
[Note: Clause 4 shall be included in warranties in favour of the Client, and such other
Beneficiaries as the Client may require.]
5
[Deeds of warranty
5.1
The Sub-Contractor shall, as the Beneficiary may at any time or times require, promptly execute
and deliver a deed or deeds in the terms of this Deed, mutatis mutandis, but excluding clause
4 ([Substitution provisions) and this clause 5, in favour of each or any other person for whom
such a deed could be called in accordance with the Construction Contract (for such purposes,
disregarding any termination of the Construction Contract or the Sub-Contract).
5.2
If the Sub-Contractor fails to execute and deliver any such deed pursuant to clause 5.1 within
7 days of the Beneficiary's written request the Beneficiary may execute such deed on the SubContractor's behalf and the Sub-Contractor hereby appoints the Beneficiary as the SubContractor's attorney for the purpose of executing any such deed. The Sub-Contractor agrees
to ratify and confirm any act done by the Beneficiary pursuant to this power of attorney and
agrees that this power is irrevocable pursuant to section 4 of the Powers of Attorney Act 1971.]
5.3
Any New Contract under clause 4 ([Substitution provisions) shall incorporate the terms of this
clause 5.
[Note: Clause 5 shall be included in warranties in favour of the Client, and such other
Beneficiaries as the Client may require.]
6
Assignment
6.1
The Beneficiary may assign all of its rights under this Deed:
(a)
to any person providing finance to the Beneficiary in connection with the Development
and by way of re-assignment on redemption; and
(b)
by absolute assignment to any Group Company of the Beneficiary; and
(c)
by absolute assignment on two other occasions only.
6.2
If the interest of the Beneficiary in the Development is as trustee, it may also assign its rights
under this Deed to another trustee of the same trust.
6.3
In this Deed references to the Beneficiary include where the context admits its permitted
assignees, but not so as to permit more than two assignments under clause 6.1(c).
7
Defences and exclusions
7.1
In any claim for breach of clause 1 (Primary obligations) there shall be available to the SubContractor any defence that:
(a)
10-28782653-14\364912-1
arises from or in connection with the Sub-Contract; and
(b)
would have been available if the claim had been brought by the Main Contractor under
the Sub-Contract,
excluding any set-off or counterclaim available against the Main Contractor.
7.2
The Sub-Contractor shall not be entitled to rely under this Deed upon any set-off or counterclaim
available against the Main Contractor, that does not arise from or in connection with the SubContract.
8
Liability for delay
The Sub-Contractor shall not have any liability under this Deed for any delay in carrying out the
Sub-Contract Works.
9
Extraneous rights
9.1
This Deed shall not negate or diminish any duty or liability otherwise owed by the SubContractor to the Beneficiary.
9.2
No approval or inspection of the Development or of any designs or specifications nor the testing
of any work or materials by or on behalf of the Beneficiary and no omission to inspect or test
shall negate or diminish any duty or liability of the Sub-Contractor arising under this Deed.
10
Contracts (Rights of Third Parties) Act 1999
This Deed is not intended to confer any rights on any third party pursuant to the Contracts
(Rights of Third Parties) Act 1999.
11
Expiry of warranty
No proceedings shall be commenced against the Sub-Contractor under this Deed more than
12 years after the completion of the Works under the Construction Contract (or, if earlier, more
than 12 years after the employment of the Sub-Contractor under the Sub-Contract is
terminated).
12
Service of notice
Any notice to be served under this Deed must be in writing and must be served by hand or by
recorded delivery, and in the case of a corporation must be served at its registered office for the
time being. In any other case notice may be served at any address for the time being of the
person to be served. Service shall take effect, if given by hand, on the date of delivery. If given
by post, it shall take effect 2 days after posting, excluding Saturdays, Sundays and statutory
holidays.
13
Governing law and interpretation
13.1
The law of this Deed is English law and the English courts shall have exclusive jurisdiction with
regard to all matters arising under it.
13.2
The Project Data are part of this Deed and the definitions given in the Project Data and in the
Recitals apply to this Deed.
13.3
In this Deed:
(a)
10-28782653-14\364912-1
Development includes part of the Development;
13.4
(b)
Group Company means any subsidiary company or holding company of the
Beneficiary, or another subsidiary or holding company of such company, as subsidiary
and holding company are understood within section 1159, Companies Act 2006, but
on the basis that the holding of not less than one quarter of voting rights shall be
deemed to satisfy the condition in section 1159(1)(a);
(c)
person includes a firm and any entity having legal capacity;
(d)
any term importing gender shall include any gender;
(e)
any term importing the singular includes the plural and vice versa; and
(f)
any reference to any clause or schedule or appendix is a reference to such clause or
schedule or appendix of or to this Deed.
Clause headings are of no effect.
Executed and delivered as a deed:
Executed as a deed and delivered by
[the Sub-Contractor] acting by a director
in the presence of:
)
)
)
)
)
……………………………………………………
Director
)
)
)
)
)
……………………………………………………
Director
…………………………………………………...
Name
.............................................................................
Witness
……………………………………………………….
Name
Executed as a deed and delivered by
[the Beneficiary] acting by a director
in the presence of:
.............................................................................
Witness
……………………………………………………….
Name
10-28782653-14\364912-1
…………………………………………………...
Name
Appendix 4
Performance bond
Dated
[Year]
[SURETY]
[CONTRACTOR]
[CLIENT]
PERFORMANCE BOND
relating to [INSERT DETAILS]
10-28782653-14\364912-1
Contents
Clause
1
2
3
4
5
6
7
8
9
10
Page
Promise to pay .............................................................................................................................0
Amendments to the Construction Contract .................................................................................0
Insolvency of the Contractor ........................................................................................................0
Priority of claims ..........................................................................................................................0
Extent of liability ...........................................................................................................................1
Expiry ...........................................................................................................................................1
Assignment ..................................................................................................................................1
Service of notice ..........................................................................................................................2
Governing law ..............................................................................................................................2
Definitions and interpretation .......................................................................................................2
10-19718866-2\321202-18
This Deed is made on
20⧫
Between
(1)
⧫ (No. ⧫) whose registered office is at ⧫ (Surety);
(2)
⧫ (No. ⧫) whose registered office is at ⧫ (Contractor); and
(3)
⧫ (No. ⧫) whose registered office is at ⧫ (Client)
Whereas
(A)
By agreement in writing (Construction Contract) dated ⧫ entered into between (1) the Client
and (2) the Contractor, the Contractor has undertaken to carry out certain construction works
(Works) in relation to ⧫ in conformity with the provisions of the Construction Contract.
(B)
The Surety has agreed to provide the Client with a guarantee on behalf of the Contractor in
respect of the Construction Contract in the sum of £⧫ (Maximum Amount) on the terms of this
Deed.
It is agreed
1
Promise to pay
If the Contractor fails to pay any debt, damages or other sum of money which the Contractor is
or becomes liable to pay to the Client under or in connection with the Construction Contract
(Due Amount), the Surety shall, subject to the terms of this Deed, and if required to do so by
notice given by the Client to the Surety, pay the Due Amount to the Client, up to the Maximum
Amount.
2
Amendments to the Construction Contract
2.1
The Construction Contract may be modified, amended or supplemented in any manner without
the consent of the Surety, and no such modification, amendment or supplementation shall
release or impair the liability of the Surety under this Deed, which shall extend to the liabilities
of the Contractor under the Construction Contract as so modified, amended or supplemented.
2.2
No termination of the Construction Contract, and no termination of the Contractor's employment
under the Construction Contract, shall reduce the liability of the Surety under this Deed.
2.3
No waiver or concession or allowance of time or compromise or forbearance given to or made
with the Contractor shall release or affect or impair the liability of the Surety under this Deed
and the terms of this Deed shall apply to the terms of such compromise as they apply to the
Construction Contract.
3
Insolvency of the Contractor
In the event of the Contractor's insolvency, no liability of the Surety under this Deed shall be
diminished by reason of the Contractor's inability to pay its creditors in full.
4
Priority of claims
4.1
So long as any Due Amount remains unpaid in full, the Surety shall not, without the prior written
consent of the Client, in respect of any payment made or liability under this Deed (Liability),
prove as a creditor of the Contractor, or (to the extent prohibited by clause 4.3), enforce any
10-19718866-2\321202-18
other claim, or set off any liability of the Surety to the Contractor against any entitlement of the
Surety to recover from the Contractor for any Liability under this Deed.
4.2
The Surety shall hold in trust any sums received or benefit obtained by it contrary to the
provisions of clause 4.1:
(a)
to pay to the Client, up to the amount of any unrecovered balance of the Due Amount;
and
(b)
subject to clause 4.2(a), for the benefit of the Surety.
4.3
The Client shall be entitled to enforce the above provisions of this clause 4 only so far as
required to keep itself or to put itself in the position it would occupy (so far as concerns the
benefit of this Deed) if the Surety had no rights of recourse or other relief in respect of any
Liability under this Deed, but no further; and any consent required of the Client under clause 4.1
shall not be refused or delayed unreasonably.
5
Extent of liability
5.1
This Deed creates a guarantee and not an indemnity, and accordingly Client shall be entitled
to recover no more under this Deed in respect of any matter than the Client would be entitled
to recover from the Contractor in respect of that matter, net of any set-off.
5.2
The Client shall not be obliged to pursue any means of recourse against the Contractor before
being entitled to enforce this Deed against the Surety and the Client shall be at liberty to
compromise, release, waive or neglect any security as it sees fit, without impairment of its rights
under this Deed.
5.3
Any judgment of the court or arbitrator's award or decision of an adjudicator against the
Contractor in favour of the Client under the Construction Contract shall be conclusive evidence
for the purposes of this Deed as to any liability of the Contractor to which such judgment or
award or decision relates (unless and until the same is set aside by any competent tribunal) but
this clause 5.3 is subject to the condition that if the Client commences any proceedings in court
or arbitration proceedings or adjudication against the Contractor under or in connection with
the Construction Contract, it shall so notify the Surety within 28 days (or in the case of
adjudication, 3 Working Days) after their commencement.
5.4
The Client and the Contractor each agrees that if the Surety requests within 28 days (or in the
case of adjudication, 3 Working Days) of such notification that it be joined as a party to or be
heard in such proceedings, it will promptly take all reasonable steps within its power to have
the Surety joined or given rights of audience in such proceedings.
6
Expiry
This Deed shall cease to have effect on the issuing of a Defects Certificate(s) under (and as
defined in) the Construction Contract in respect of the whole of the Works, save in connection
with any demand notified to the Surety in writing before then.
7
Assignment
The Client may assign or charge the benefit of this Deed without the further consent of the
Surety or of the Contractor being required.
10-19718866-2\321202-18
8
Service of notice
Any notice to be served under this Deed must be in writing and must be served by hand or
recorded delivery, and in the case of a corporation must be served at its registered office for
the time being. In any other case notice may be served at any address for the time being of
the person to be served. Service shall take effect, if given by hand, on the first Working Day
after the date of delivery. If given by post, it shall take effect 2 Working Days after posting.
9
Governing law
The law of this Deed is English law and the English courts shall have exclusive jurisdiction with
regard to all matters arising from it.
10
Definitions and interpretation
10.1
In this Deed:
(a)
person includes any firm and any entity having legal capacity; and
(b)
Working Day means any day except a Saturday, Sunday or statutory holiday.
10.2
The definitions given in the recitals to this Deed apply to this Deed.
10.3
Clause headings do not form part of this Deed.
Executed as a Deed
10-19718866-2\321202-18
Executed as a deed and delivered by
[the Surety]
acting by a director in the presence of
)
)
)
)
)
..........................................................................
Director
)
)
)
)
)
..........................................................................
Director
)
)
)
)
)
..........................................................................
Director
..........................................................................
Name
.........................................................................
Witness
.........................................................................
Name
Executed as a deed and delivered by
[the Contractor]
acting by a director in the presence of
..........................................................................
Name
.........................................................................
Witness
.........................................................................
Name
Executed as a deed and delivered by
--------------------- AIRPORT PLC
acting by a director in the presence of
.........................................................................
Witness
.........................................................................
Name
10-19718866-2\321202-18
..........................................................................
Name
Appendix 5
Vesting Agreement
Dated
20
---------------------------------- AIRPORT PLC
[CONTRACTOR]
[SUPPLIER]
VESTING AGREEMENT
relating to off-site materials for
works at [INSERT DETAILS]
10-19718866-2\321202-18
Contents
Clause
1
2
3
4
5
6
7
Page
Warranties .................................................................................................................................. 2
Right to inspect .......................................................................................................................... 3
Payment and transfer of title ...................................................................................................... 3
Protection of the Materials ......................................................................................................... 3
Risk in the Materials ................................................................................................................... 3
Survival....................................................................................................................................... 3
Governing law and interpretation ............................................................................................... 4
The Schedule
Materials ..................................................................................................................................... 6
The Appendix
Copy Insurance Policy
10-19718866-2\321202-18
Memorandum
Date of this Agreement

Client
----------------- AIRPORT PLC (No. -------) whose
registered office is -----------------------------------------------------------------
Contractor
 (No. ) registered office 
Supplier
 (No. ) registered office 
Development

Site

Date of Building Contract

Date of Supply Contract

Materials
The materials identified in the schedule
Price

Payment Date

Place of Storage

Insurance Policy:
A composite policy of insurance under which
each of the parties to this Agreement is coinsured, a copy of which is in the Appendix
[Note: the broker's summary is to provide full
details of the policy itself, including of any
restrictions or exclusions.]
10-19718866-2\321202-18
This Vesting Agreement is made on
20
Between
(1)
The Client
(2)
The Contractor
(3)
The Supplier
Whereas
(A)
The Client and the Contractor have entered into the Building Contract under which the
Contractor has agreed to carry out the Development at the Site;
(B)
The Contractor and the Supplier have entered into the Supply Contract under which the
Supplier has agreed to manufacture and supply the Materials for incorporation in the
Development;
(C)
The Materials are (or are part of) the products to be supplied pursuant to the Supply Contract;
and
(D)
The Parties have agreed that upon payment of the Price by the Client in accordance with this
Agreement, title in the Materials will vest in the Client.
It is agreed
1
Warranties
1.1
The Contractor and the Supplier each warrants to the Client that:
(a)
the Materials have been manufactured in accordance with the relevant requirements
of the Building Contract and of the Supply Contract and are complete and ready for
despatch to the Site for incorporation in the Works;
(b)
the Materials are undamaged and in good condition;
(c)
the Materials are the property of the Supplier, free from any lien or charge or
encumbrance;
(d)
the Materials are in store at the Place of Storage and the Place of Storage is occupied
and under the control of the Supplier;
(e)
the Materials are packaged for despatch to the Site and are suitably marked for
identification and to show their intended destination and the interest of the Client;
(f)
the Materials are insured under the Insurance Policy for the full replacement cost
against loss or damage while in store and while in transit to the Site, and the interest
of the Client is noted on the Insurance Policy and the premium under the Insurance
Policy has been paid in full.
10-19718866-2\321202-18
2
Right to inspect
The Supplier agrees that for so long as the Materials remain in the possession of the Supplier,
they may be inspected from time to time by a representative of the Client during working hours
on not less than 24 hours' notice.
3
Payment and transfer of title
3.1
On or before the Payment Date the Client shall pay the Price to the Supplier.
3.2
The Supplier shall treat the payment of the Price to it by the Client as payment on account of
the consideration due from the Contractor to the Supplier under the Supply Contract and the
Contractor shall treat such payment as payment on account of the consideration due to it under
the Building Contract.
3.3
Upon payment of the Price by the Client property in the Materials shall vest unconditionally in
the Client, and thereafter the Materials shall be in the possession of the Supplier for the sole
purpose of despatch to the Site and the Supplier shall release or despatch the materials for
delivery to the Site in accordance with the Supply Contract.
3.4
After payment of the Price by the Client, the Client shall be entitled to receive all amounts paid
or payable under the Insurance Policy for the loss of or any damage to the Materials, whenever
occurring.
4
Protection of the Materials
4.1
Prior to their despatch to the Site, the Supplier shall take all reasonable precautions to protect
the Materials from loss or damage.
4.2
If the Materials are lost or damaged prior to their despatch to the Site, the Supplier shall
forthwith provide written notice of such loss or damage to the Client [and to the insurer under
the Insurance Policy].
4.3
The Supplier is fully responsible for the insurance, protection and storage of the Materials until
their delivery to the Site, without charge to the Client.
5
Risk in the Materials
As between the Client and the Contractor, risk in the Materials shall remain with the Contractor,
notwithstanding the transfer of title to the Materials in accordance with clause 3.3, until risk
otherwise passes to the Client in accordance with the relevant terms of the Building Contract.
6
Survival
6.1
If the Building Contract and/or the Supply Contract is terminated while the Materials remain in
the possession of the Supplier, then subject to the Client having paid the Price to the Supplier,
the Supplier shall permit the Client to arrange their removal, without charge and on not less
than 5 days' written notice.
6.2
If clause 6.1 applies, the Supplier shall be entitled to serve written notice on the Client to arrange
for the Materials to be removed from the Place of Storage and if the Client fails to do so within
28 days after the date of such notice, the Supplier shall be entitled to arrange for the Materials
to be delivered to the Site and the reasonable costs of delivery shall be reimbursable by the
Client to the Supplier as a debt.
10-19718866-2\321202-18
7
Governing law and interpretation
7.1
The governing law of this Agreement is English Law. The English Courts shall have exclusive
jurisdiction with respect to all matters arising under or in connection with this Agreement.
7.2
This Agreement is a Deed.
7.3
The Memorandum is part of this Agreement and the definitions given in the Memorandum apply.
7.4
Clause headings are not part of this Agreement and shall not affect its interpretation.
10-19718866-2\321202-18
Executed as a deed and delivered by
-------------------------- AIRPORT PLC acting by a
director
in the presence of:
)
)
)
)
)
……………………………………………………
Director
)
)
)
)
)
……………………………………………………
Director
)
)
)
)
)
……………………………………………………
Director
…………………………………………………...
Name
............................................................................
Witness
……………………………………………………….
Name
Executed as a deed and delivered by
[the Contractor] acting by a director
in the presence of:
…………………………………………………...
Name
............................................................................
Witness
……………………………………………………….
Name
Executed as a deed and delivered by
[the Supplier] acting by a director
in the presence of:
............................................................................
Witness
……………………………………………………….
Name
10-19718866-2\321202-18
…………………………………………………...
Name
The Schedule
Materials
10-19718866-2\321202-18
The Appendix
Copy Insurance Policy
10-19718866-2\321202-18
Appendix 6
Parent Company Guarantee
Part 1 – Form of parent company guarantee
Dated
20⧫
[GUARANTOR]
[CLIENT]
[CONTRACTOR]
PARENT COMPANY GUARANTEE
of Contractor's obligations relating
to [INSERT DETAILS]
10-19718866-2\321202-18
This Deed is made on
20⧫
Between
(1)
--------------------------------- (No. --------------------) whose registered office is at -------------------------------------------------------------------(Guarantor);
(2)
---------------------------------- (No. ----------------------) whose registered office is ----------------------------------------------- (Client); and
(3)
-------------------------------------- (No. ------------------------) whose registered office is at ---------------------------------------------------- (Contractor).
Whereas
(A)
By an agreement in writing (Construction Contract) dated ⧫ and entered into between (1) the
Client and (2) the Contractor, the Contractor agreed to provide certain works and/or services
relating to ⧫.
(B)
The Guarantor (being the [immediate] [ultimate] parent company of the Contractor) has agreed
to guarantee the due performance by the Contractor of its obligations under the Construction
Contract.
It is agreed in consideration of the sum of £1.00 paid by the Client (receipt of which the Guarantor
acknowledges), as follows:
1
Guarantee and promise to perform and pay
The Guarantor guarantees the due and proper performance by the Contractor of the
Guaranteed Obligations as and when such obligations shall become due and performable under
or in connection with the Construction Contract. If the Contractor in any respect fails to observe
or perform any of the Guaranteed Obligations then the Guarantor shall:
(a)
(if required by and upon notice from the Client) fully perform and observe or procure the
performance and observance of the Guaranteed Obligations to the extent the
Contractor has failed to perform or observe the same; and
(b)
(subject to clause 5.1) pay to the Client, within 7 days of service of the Client's written
demand served in accordance with clause 7, all loss, damage, cost and expense
incurred by the Client arising out of or in connection with the failure by the Contractor
to observe and perform the Guaranteed Obligations (including reasonable and properly
incurred costs and expenses incurred by the Client in connection with the enforcement
or preservation of its rights under this Deed) (Client's Entitlement), without any
deduction or set-off against the amount of the Client's Entitlement, as the case shall
require.
2
Amendments to the Construction Contract
2.1
The Construction Contract may be modified, amended or supplemented in any manner without
the consent of the Guarantor, and no such modification, amendment or supplement shall
release or impair the liability of the Guarantor under this Deed, which shall extend to the duties,
obligations and liabilities of the Contractor under the Construction Contract as so modified,
amended or supplemented.
2.2
No invalidity in the Construction Contract, nor its avoidance or termination or suspension, shall
affect or impair the liability of the Guarantor under this Deed.
2.3
No waiver or concession or allowance of time or compromise or forbearance given to or made
with the Contractor shall release, affect or impair the liability of the Guarantor under this Deed,
and the terms of this Deed shall apply to the terms of such compromise as they apply to the
Construction Contract.
3
Insolvency of the Contractor
The liquidation, administration or receivership or insolvency of the Contractor shall not affect
the liability of the Guarantor under this Deed.
4
Priority of claims
So long as any part of the Client's Entitlement remains unpaid, the Guarantor shall not, in
respect of any payment made or liability arising pursuant to this Deed, effect or seek to effect
any recovery from the Contractor, whether by receipt of money or set-off or proof of debt or
enforcement of security or otherwise.
5
Extent of liability
5.1
This Deed creates a guarantee and not an indemnity, and accordingly, the Client shall be
entitled to recover no more under this Deed in respect of any matter than the Client would be
entitled to recover from the Contractor in respect of that matter, net of any set-off.
5.2
The Client shall not be entitled to commence proceedings against the Guarantor under this
Deed in respect of any claim once any proceedings against the Contractor in respect of such
claim would be statute-barred.
5.3
The Client shall not be obliged to pursue any means of recourse against the Contractor before
being entitled to enforce this Deed against the Guarantor and the Client shall be at liberty to
compromise, release, waive or neglect any security as it sees fit, without impairment of its rights
under this Deed.
5.4
Any money judgment of the court or arbitrator's award or decision of an adjudicator against the
Contractor in favour of the Client under the Construction Contract shall be conclusive evidence
for the purposes of this Deed as to any liability of the Contractor to which such judgment or
award or decision relates (unless and until the same is set aside by any competent tribunal) but
it is a condition of this clause 5.4 that if the Client commences any proceedings in court or
arbitration proceedings or adjudication against the Contractor under or in connection with the
Construction Contract, it shall so notify the Guarantor within 28 days (or in the case of
adjudication, 3 Working Days) after their commencement.
5.5
The Client and the Contractor each agrees that if the Guarantor requests within 28 days (or in
the case of adjudication, 3 Working Days) of such notification that it be joined as a party to or
be heard in such proceedings, it will promptly take all reasonable steps within its power to have
the Guarantor joined or given rights of audience in such proceedings.
6
Assignment
The benefit of this Deed may without the consent of the Guarantor be assigned or charged to
any person to whom the benefit the Construction Contract is lawfully assigned or charged.
Service of notice12
7
Any notice or demand to be served under this Deed must be in writing and must be served by
hand or by rerded delivery, and in the case of a corporation must be served at its registered
office for the time being. In any other case notice may be served at any address for the time
being of the person to be served. Service shall take effect, if given by hand, on the first Working
Day after the date of delivery. If given by post, it shall take effect 2 Working Days after posting.
8
Governing law
The law of this Deed is English law and the English courts shall (save for the purposes of
enforcing a judgment of the English courts in another jurisdiction), have exclusive jurisdiction
with regard to all matters arising from it.
9
Definitions and interpretation
9.1
In this Deed:
(a)
Client's Entitlement is defined in clause 1(b);
(b)
Guaranteed Obligations means all of the duties and obligations to be performed and
observed by the Contractor under or in connection with the Construction Contract
including, without limitation, the payment of all sums of money and liabilities due, owing
or incurred or payable by the Contractor to the Client under or in connection with the
Construction Contract, any indemnity, warranty or undertaking of the Contractor, and
any obligations of the Contractor under or in connection with any arbitral awards,
judgments, adjudicator's decisions or other determinations (including expert
determinations) in favour of the Client, whether actual or contingent, and whether
arising prior to, on or after the date of this Deed;
(c)
person includes any firm and any entity having legal capacity; and
(d)
Working Day means any day except a Saturday, Sunday or statutory holiday.
9.2
The definitions given in the Recitals hereto apply to this Deed.
9.3
Clause headings are not part of this Deed.
Executed as a deed
Executed as a deed and delivered by
[the Guarantor] acting by a director
in the presence of:
)
)
)
)
)
……………………………………………………
Director
…………………………………………………...
Name
...............................................................................
Witness
……………………………………………………….
Name
12
If the Guarantor is an overseas entity service of process wording may be required to be included.
Executed as a deed and delivered by
----------------- AIRPORT PLC acting by a director
in the presence of:
)
)
)
)
)
……………………………………………………
Director
)
)
)
)
)
……………………………………………………
Director
…………………………………………………...
Name
...............................................................................
Witness
……………………………………………………….
Name
Executed as a deed and delivered by
[the Contractor] acting by a director
in the presence of:
...............................................................................
Witness
……………………………………………………….
Name
…………………………………………………...
Name
Part 2 – Resolution of the Board of the Guarantor
Extract of minutes of a meeting of the directors of ⧫ [plc] [Limited] held at ⧫ on ⧫
1
The meeting was convened to consider a proposal for the Company to enter into a guarantee
of the obligations of ⧫ Limited (Subsidiary) in connection with a proposed construction contract
(Construction Contract) to be entered into between the Subsidiary and ⧫ (Grantee) for the
construction by the Subsidiary of ⧫ at ⧫.
2
A draft of the Guarantee in final form was presented to the meeting and it was reported that the
award of the Construction Contract to the Subsidiary is conditional on the grant of a parent
company guarantee in the terms of the draft, guaranteeing the obligations of the Subsidiary
under the Construction Contract.
3
It was noted that under the terms of the Guarantee, if the Subsidiary fails to pay any debt,
damages or other sum for which the Subsidiary is liable under or in connection with the
Construction Contract, the Guarantor promises to itself pay such sum to the Grantee.
4
It was noted that under the terms of the draft Guarantee, the liability of the Guarantor is
unaffected by the termination of the Construction Contract or by the termination of the
Subsidiary's employment under the Construction Contract.
5
It was noted that the liability of the Guarantor under the Guarantee is not reduced by the
insolvency of the Subsidiary, and that any entitlement of the Guarantor against the Subsidiary
in respect of the Guarantee is deferred to the rights of the Grantee against the Subsidiary arising
out of the Construction Contract.
6
The Company took note of the close corporate and trading relations and business associations
between the Company and the Subsidiary. It was considered by the directors that the award of
the Construction Contract to the Subsidiary would promote the growth, reputation and prosperity
of the Subsidiary and of the Company.
7
Accordingly, it was unanimously resolved that it was in the best interests of and for the benefit
of the Company to enter into the Guarantee.
8
After careful consideration by the directors of the terms of the Guarantee and of the character
and extent of the liabilities which it would impose on the Company, it was unanimously resolved
that the Guarantee be entered into and that it be executed as a Deed and delivered by the
Company in the manner required by the draft Guarantee.
I hereby certify that this is a true copy of the entry appearing in the Company's minute book and that the
above resolution was duly passed in accordance with the articles of association of the Company at a
duly convened and quorate meeting of the directors held on .
Company Secretary/Chairman
Dated: 
i
50% for the MEP; logistics; and demolition. TBC for other packages and percentage amended.