Dated [ ] 20[ ]
(1) UNIVERSITY OF THE WEST OF ENGLAND
and
(2) CONSULTANT
Appointment of Consultant
relating to [
]
at
[
]
© Bevan Brittan LLP
Kings Orchard, 1 Queen Street, Bristol BS2 0HQ
T +44(0)870 194 1000 F +44(0)870 194 1001
Fleet Place House, 2 Fleet Place, Holborn Viaduct, London EC4M 7RF
T +44(0)870 194 1000 F +44(0)870 194 7800
Interchange Place, Edmund Street, Birmingham B3 2TA
T +44(0)870 194 1000 F +44(0)870 194 5001
www.bevanbrittan.com
Contents
Item
Page
1
DEFINITIONS AND INTERPRETATION .................................................................................. 1
2
WORKING TOGETHER........................................................................................................... 3
3
DUTIES OF THE CONSULTANT ............................................................................................ 4
4
WHERE THE CONSULTANT IS NOT PROVIDING ALL OF THE SERVICES ........................ 5
5
[STANDARDS OF PRODUCTS AND MATERIALS ................................................................ 6
6
THE FEE AND EXPENSES ..................................................................................................... 6
7
OBLIGATIONS OF THE CLIENT ............................................................................................ 7
8
TERMINATION ........................................................................................................................ 7
9
DOCUMENTS .......................................................................................................................... 9
10 ASSIGNMENT AND SUBCONTRACTING BY THE CONSULTANT ....................................... 9
11 ASSIGNMENT BY THE CLIENT ............................................................................................. 9
12 PROFESSIONAL INDEMNITY INSURANCE ........................................................................ 10
13 INSTRUCTIONS AND PAYMENT FOR ADDITIONAL WORK .............................................. 10
14 WARRANTY .......................................................................................................................... 10
15 NOVATION ............................................................................................................................ 11
16 ENTIRE AGREEMENT .......................................................................................................... 11
17 DISPUTE RESOLUTION ....................................................................................................... 11
18 THIRD PARTY RIGHTS......................................................................................................... 11
19 PERIOD OF LIABILITY ......................................................................................................... 12
20 GOVERNING LAW ................................................................................................................ 12
APPENDIX 1 - FEE ...................................................................................................................... 14
APPENDIX 2 - KEY PERSONNEL ............................................................................................... 17
APPENDIX 3 - SERVICES TO BE PROVIDED BY THE CONSULTANT ..................................... 18
APPENDIX 4 - DRAFT FORM OF COLLATERAL WARRANTY .................................................. 19
APPENDIX 5 – DETAILS OF ANY ADDITIONAL CONSULTANTS ............................................. 26
APPENDIX 6 – DEED OF NOVATION ......................................................................................... 27
i
THIS APPOINTMENT is dated [
] 200[ ]
BETWEEN
] (the “Client")
(1)
The UNIVERSITY OF THE WEST OF ENGLAND of [
(2)
[CONSULTANT] (registered in England and Wales No [company number]) whose
registered office is at [registered office] [OR] [individual name] of [individual address] (the
“Consultant")
NOW IT IS AGREED as follows:1
DEFINITIONS AND INTERPRETATION
1.1
Definitions
In this appointment unless the context otherwise requires, the following expressions
shall have the following meanings:"Additional Consultants"
means any additional consultants engaged by the consultant at the date of this deed
in accordance with clause 4 and as set out in Appendix 5;
"Additional Fee"
means any fee agreed to be payable to the Consultant in respect of the
performance of any Additional Services in accordance with clause 6.3;
"Additional Services"
means any services, additional to the Services, that the Consultant is instructed to
carry out in accordance with clause 13;
"Building Contract"
means the building contract entered into, or to be entered into, between the
Contractor and the Client for the construction of the Works;
"Business Day"
means a day other than a Saturday, Sunday or a Bank Holiday in England;
"Client’s Representative"
means [
] (or such other person as the Client may appoint from time to time
and notify to the Consultant) who shall act as the representative of, and point of
contact for, the Client;
"Contractor"
means the contractor appointed or to be appointed by the Client to design and
construct the Works in accordance with the Building Contract;
"CDM Regulations"
means the Construction (Design and Management) Regulations 2007
"Documents"
means all drawings, details, plans, reports, models, specifications, bills of quantities,
calculations, and any other documents of any nature whatsoever which have been
1
M-3822322-1
or are hereafter provided by the Consultant in the course of performing its
obligations under this appointment;
"Fee"
means the sum or sums referred to in Part 1 of Appendix 1 subject to any
adjustment in accordance with this appointment;
"Key Personnel"
means the persons listed in Appendix 2;
["Lead Consultant"1
means for such other individual or organisation as the Client may appoint from time
to time to fulfil the role of lead consultant;]2
"Professional Indemnity Insurance"3
means professional indemnity insurance with insurers of repute in an amount of not
less than £ [insert details – sum inserted should be the aggregate amount held] in
respect of any occurrence or series of occurrences arising out of the same
originating cause;
"Project"
means the Client’s project in relation to which the Services are to be provided,
comprising the provision of [ ] at [ ];
"Services"
means the services to be provided by the Consultant as set out, or referred to, in
Appendix 3 and any additional services agreed to be carried out by the Consultant
from time to time in accordance with this appointment and any services necessary
or reasonably incidental to such services [including for the avoidance of doubt any
services contained in Appendix 3 which were carried out prior to entry into this
appointment];
"Works"
means the works, services, goods, materials and equipment to be provided by, or
incorporated by, the Contractor as provided for in or to be inferred from the Building
Contract, relating to the design and construction of the Project.
1.2
Successors
References to the “Client" shall include the person or persons for the time being
entitled to the benefit of this appointment.
1
2
3
Will the Consultant be performing the role of Lead Consultant.
Appropriate if another consultant has been/will be appointed as lead consultant.
Minimum amount of insurance should have some reference to the value of the Project and the
possible loss that the Client might suffer as a result of any failure by the Consultant to exercise
reasonable skill and care, and the minimum level of professional indemnity insurance that the
Building Contractor is required to maintain under the Building Contract.
2
M-3822322-1
1.3
Joint liability
Where the Consultant comprises more than one person, references to "Consultant"
shall include all persons comprising the Consultant and all obligations on the part of
the Consultant under this appointment shall be deemed to be made and undertaken
by such persons jointly and severally.
1.4
Headings
The headings in this appointment are inserted for convenience only and shall not
affect the interpretation of this appointment.
1.5
Notices
All notices under this appointment shall be in writing and shall be delivered
personally or addressed to the respective address of the parties set out in this
appointment or to the registered office or principal business address of either party
for the time being, and, if sent by post shall be deemed to have been received on
the second Business Day after the same shall have been posted. Where the
Consultant is a partnership, any notice given under or in connection with this
appointment to an individual partner shall be deemed to have been served on the
partnership.
1.6
References to statutes etc
Any reference to any statute or any section of any statute includes any statutory
extension, amendment, modification, consultation or re-enactment and any statutory
instrument, order or regulation made under any statute for the time being in force.
1.7
Genders and numbers
Words importing one gender include all other genders and words importing the
singular include the plural and vice versa.
1.8
Documents comprising the appointment and priority of documents
This appointment shall comprise the exclusive terms and conditions of the
appointment of the Consultant by the Client. The Consultant acknowledges and
agrees that the terms and conditions of this appointment will prevail over all other
terms and conditions whatsoever put forward by the Consultant. No variation of the
terms and/or conditions of this appointment shall be made except in writing between
the parties.
2
WORKING TOGETHER
2.1
The Client and the Consultant agree to work with each other in good faith and in a
spirit of mutual trust and respect. To this end they will each give to, and welcome
from, the other and from all others involved with the Project, feedback on
performance and will draw each other’s attention to any difficulties and will share
information openly, at the earliest practicable time.
3
M-3822322-1
3
2.2
In the event of any dispute between the parties, any court or adjudicator or other
forum to which the dispute is referred may take into account the parties’ compliance
with clause 2.1.
2.3
The Consultant shall communicate, co-ordinate and co-operate with [the Lead
Consultant and]4 all others involved in relation to the Project with the aims of
providing the Client with:-
5
a Project that meets its needs; and
2.3.2
an up to date understanding of the progress being made with the
Project and of any anticipated or actual problems and their
proposed solutions.
DUTIES OF THE CONSULTANT
3.1
4
2.3.1
The Consultant shall, in the performance of the Services (and any additional
services requested by the Client), exercise the degree of skill, care and diligence
reasonably to be expected from an appropriately qualified and competent
professional person holding himself out as competent to perform those services in
relation to projects of a similar size, scope and nature to the Project and shall:3.1.1
unless and so far as the Client otherwise directs, select materials
and goods for the Works in accordance with all relevant statutory
requirements, regulations and permissions, current British or
European Union Standards, any other approved criteria, relevant
codes of practice or other recognised best practice;
3.1.2
supply the Contractor (and, through it, any relevant
subcontractor) with such information, calculations, drawings, and
specifications as it may reasonably require which are within the
scope of the Services;
3.1.3
seek to carry out and perform the Services so as not to delay [the
Lead Consultant,]5 the Contractor or any relevant subcontractor
in the performance of the Building Contract by the late provision
of information requested in accordance with clause 3.1.2 or
otherwise reasonably necessary for the performance of the
Building Contract;
3.1.4
use the Key Personnel in the performance of the Services and
shall not make any changes to the Key Personnel without the
prior written consent of the Client (which shall not be
unreasonably withheld, provided that any replacements for any
Key Personnel shall be no less qualified to perform the relevant
role than the person replaced);
3.1.5
ensure that all persons concerned in the performance of the
Services are suitably qualified, experienced and competent
having regard to the tasks and functions expected from them and
shall use reasonable endeavours to ensure that they liaise as
necessary between themselves.
Delete this wording if no Lead Consultant identified.
Delete this wording if no Lead Consultant identified.
4
M-3822322-1
3.1.6
4
without prejudice to the generality of clause 3.1, the Consultant
shall, in consultation with other consultants engaged by the
Client, keep the Client regularly and reliably informed of the
actual and anticipated cost of the Project from time to time with a
view to keeping the cost of the Project within the Client’s budget.
WHERE THE CONSULTANT IS NOT PROVIDING ALL OF THE SERVICES
4.1
Where the Consultant has agreed to carry out the Services on the understanding
that it will engage any Additional Consultants to carry out a part or parts of the
Services, the Consultant shall:4.1.1
have provided full details of the organisation(s) and the named
individuals within such organisation(s) who will be responsible for
carrying out the relevant part or parts of the services and shall
have completed Appendix 5 of this appointment accordingly;
4.1.2
provide copies of the appointments of all Additional Consultants
engaged by the Consultant;
4.1.3
provide collateral warranties duly executed as a deed by all
Additional Consultants in favour of the Client in the form set out in
Appendix 4 (mutatis mutandis) within 14 days of the date of this
appointment; and
4.1.4
provide full details of the Professional Indemnity Insurance
maintained by all Additional Consultants.
4.2
Subject to the Consultant's full compliance with clause 4.1, to the extent that the
Consultant's Professional Indemnity Insurance does not cover the performance of
the part or parts of the Services to be carried out by the Additional Consultants the
Consultant shall not be responsible for the performance of such Additional
Consultants.
4.3
Notwithstanding clause 4.2, the Consultant shall be responsible for co-ordinating all
design carried out by any Additional Consultant into a complete and coherent
design for the Works.
4.4
The Client agrees that the Consultant shall be permitted, subject to obtaining the
Client's prior written consent (such consent not to be unreasonably withheld or
delayed), to terminate the employment of any of the Additional Consultants and to
replace any such terminated Additional Consultant with a new consultant that has
been selected by the Consultant and has been approved by the Client (such
approval not to be unreasonably withheld or delayed).
4.5
Until the Consultant has fully complied with its obligations under clause 4.1, the
Client shall not be bound to make any payment to the Consultant and may suspend
any payment due to the Consultant in accordance with this deed provided the client
complies with clause 6.7.
5
M-3822322-1
5
6
6
[STANDARDS OF PRODUCTS AND MATERIALS6
5.1
The Consultant warrants that it has exercised and will exercise the level of skill, care
and diligence in accordance with clause 3.1 of this appointment to see that it has
not specified for use and it will not specify for use and (as appropriate) it has not
authorised or approved and it will not authorise or approve the specification or use
by others of any products or materials not conforming with relevant British or
European Union Standards or Codes of Practice or which at the time of specification
are widely known to members of the Consultant’s profession to be deleterious to
health and safety or to the durability of buildings and/or other structures and/or
finishes and/or plant and machinery in the particular circumstances in which they
are used.
5.2
If in the performance of its duties under this appointment the Consultant becomes
aware that it or any other person has specified or used, or authorised or approved
the specification or use by others of any such products or materials the Consultant
will notify the Client in writing forthwith. This clause does not create any additional
duty for the Consultant to inspect or check the work of others which is not required
by this appointment.]
THE FEE AND EXPENSES
6.1
The Client shall pay to the Consultant the Fee by stage payments at the intervals
set out in Part 1 of Appendix 1.
6.2
In addition, the Client shall reimburse to the Consultant any reasonable expenses
incurred by the Consultant at the Client’s specific prior written request. Any such
expenses shall be paid in the same way as additional fees in accordance with
clause 6.3.
6.3
If the Client, in accordance with clause 13, requires the Consultant to perform any
Additional Services, the Client shall pay to the Consultant the Additional Fee
calculated in accordance with Part 2 of Appendix 1. Any Additional Fee shall (in the
absence of any other arrangement agreed in writing between the parties) be
payable in respect of Additional Services rendered in the preceding calendar month
and shall be due 14 days after submission to the Client of a valid Value Added Tax
invoice in respect of the additional fees properly due. The final date for payment of
such additional fees shall be 14 days after the date they become due.
6.4
Payments of the instalments of the Fee set out in Part 1 of Appendix 1 shall become
due for payment 14 days after the later of, the date for payment of the relevant
instalment (ascertained in accordance with Part 1 of Appendix 1) or the date of the
Client’s receipt of a valid Value Added Tax invoice in respect of the instalment due.
The final date for payment of such instalments shall be 14 days after they become
due.
6.5
Within 14 days of the receipt by the Client of any valid Value Added Tax invoices in
respect of additional fees, expenses or instalments of the Fee in accordance with
clauses 6.3 and/or 6.4, the Client shall give notice to the Consultant of the amount
(if any) of the payment made, or proposed to be made and the basis (if this is not
Consider deleting this provision if it is clear that the Consultant will have no responsibility for carrying
out design or authorising the design of others.
6
M-3822322-1
otherwise clear from the Consultant’s relevant invoice) on which that amount was
calculated.
7
8
7
6.6
The Client shall pay simple interest on any payments that have not been made to
the Consultant by the final date for their payment at the rate set out in Part 3 of
Appendix 1 for the period from the final date for their payment until the date of
actual payment.
6.7
The Client shall not withhold any payment after the final date for payment of any
sum due under this appointment unless the Client has given to the Consultant, not
later than 5 days before such final date, a notice specifying the amount proposed to
be withheld and the ground for withholding payment, or if there is more than one
ground, each ground and the amount attributable to it.
6.8
All costs fees and disbursements expressed to be payable or reimbursable by the
Client are exclusive of Value Added Tax unless otherwise stated. Value Added Tax
shall be payable by the Client on the submission by the Consultant of a valid Value
Added Tax invoice.
6.9
The fees payable to the Consultant shall cover the cost of all prints, plans, drawings,
sketches, specifications, and other documents of any such nature including any
material the Client may wish to use in legal documents and any copying charges but
shall not include the construction and supply of models, the provision of artists’
perspective sketches or the preparation and supply of brochures.
OBLIGATIONS OF THE CLIENT
7.1
Throughout the period of this appointment during normal business hours the
Consultant shall be entitled to reasonable access to the proposed site of the Works
and, upon reasonable prior notice, to adjacent premises in the occupation of the
Client and the Client shall supply any relevant information and other written material
in the possession of the Client as the Consultant shall reasonably require to perform
the Services.
7.2
The Client shall appoint one or more appropriate personnel to liaise with the
Consultant which shall include the Client’s Representative.
TERMINATION7
8.1
The Client may terminate this appointment at any time by serving not less than 20
Business Days’ written notice to this effect.
8.2
Upon the happening of one or more of the following events, namely if the
Consultant:8.2.1
without reasonable cause fails to proceed regularly and diligently
with the performance of the Services;
8.2.2
without reasonable cause suspends the performance of the
whole or part of the Services before completion of the same;
Consider whether we want to include rights of suspension of all or part of the Works.
7
M-3822322-1
8.2.3
without reasonable cause refuses or neglects to comply with any
instruction which the Client or the Client’s Representative is
empowered by this appointment to give; or
8.2.4
is otherwise in breach of this appointment;
the Client may serve notice in writing on the Consultant specifying the event and
requiring its remedy and if the Consultant fails to remedy the same within 14 days of
service of such notice or commits any further similar breach of this appointment, the
Client may by further notice in writing forthwith terminate the employment of the
Consultant under this appointment.
8.3
Upon the happening of one or more of the following events, namely if the Client:
8.3.1
fails to pay to the Consultant any amount properly due and
payable under this appointment (subject to any deductions which
the Client may be entitled to make); or
8.3.2
is otherwise in breach of this appointment and such breach has
prevented the Consultant from carrying out its obligations for a
continuous period of one month or more;
the Consultant may, without prejudice to any other right or remedy, serve notice in
writing on the Client specifying the event and requiring its remedy and, if the Client
fails to remedy the same within 14 days of service of such notice, the Consultant
may by further notice in writing forthwith terminate this appointment.
8.4
Either party may forthwith terminate this appointment by notice in writing to the other
if the other ceases for any reason to carry on its business or is unable to pay its
debts, or if any distress or execution shall be levied upon such other party's property
or assets, or if such other party shall make or offer to make any arrangement or
composition with its creditors, or commit any act of bankruptcy, or if any petition or
receiving order in bankruptcy shall be presented or made against it, or (if it is a
limited company) any resolution or petition to wind up such company's business
(other than for the purpose of a bona fide reconstruction or amalgamation without
insolvency) shall be passed or presented, or if a receiver or administrator of such
company's undertaking property or assets or any part of them shall be appointed.
8.5
If the Consultant's employment under this appointment is terminated by the Client
under clause 8.2, the Client shall not be bound to make any further payment to the
Consultant until the amount of all loss and/or expense suffered or incurred by the
Client by reason of the grounds for termination and any breaches of this
appointment by the Consultant (including the full and final cost of completion of the
Services by others) has been ascertained and notified in writing by the Client. If
such amount, when added to the monies paid to the Consultant before the date of
termination, exceeds the total value of work properly executed together with any
adjustments to the Fee ascertained in accordance with this appointment up to the
date of termination, the difference shall be a debt payable to the Client by the
Consultant.
8.6
If this appointment is terminated by the Consultant under clause 8.3 or 8.4, as soon
as is reasonably practical the Client shall ascertain and pay to the Consultant the
total amount properly due to the Consultant up to the date of termination, but shall
not under any circumstances be responsible for any loss of profit suffered by the
Consultant as a result of such termination.
8
M-3822322-1
9
10
8.7
Termination of this appointment or the Consultant’s employment under it shall not
prejudice the accrued rights and remedies of either party at the date of termination.
8.8
The Client shall not be liable to the Consultant or any of its employees, agents, or
subcontractors as a result of the termination by the Client of this appointment, and
shall not otherwise have any obligation (statutory or otherwise) to compensate or
reimburse the Consultant or any of its employees, agents, or subcontractors for any
claims or damages whatsoever (including but not limited to termination indemnities,
loss of revenues or profits, expenditure, investments, or other obligations or
commitments of any of them).
DOCUMENTS
9.1
In relation to any Documents the Consultant hereby grants or agrees to grant to the
Client a royalty-free non-exclusive licence to use and to reproduce all Documents
for any purpose whatsoever connected with the Project and such other purposes as
are reasonably foreseeable including, but without limitation, the carrying out,
completion, maintenance, letting, advertisement, modification, extension,
reinstatement, reconstruction and repair of the Project. Such licence will carry the
right to grant sub-licences and will be transferable to third parties but will not entitle
the owner of such licence or any sub-licences to reproduce the designs contained in
the Documents. Such licence shall take effect from the date of this appointment or
(in relation to Documents not yet in existence) from the date of the creation of the
relevant Document and shall continue notwithstanding any termination of this
appointment. Neither the Client nor any recipient of any sub-licence under this
clause shall hold the Consultant liable for any use it may make of the Documents for
any purpose other than that for which they were originally provided by it.
9.2
The Consultant agrees on reasonable request at any time and following reasonable
written prior notice to give the Client, or those authorised by it, access to the
Documents and to provide copies (including copy negatives and CAD disks) thereof
at the Client’s expense.
9.3
The Consultant warrants to the Client that it has used the standard of skill, care and
diligence as set out in clause 3.1 to see that the Documents (save to the extent duly
appointed sub-consultants have been used to prepare the same) are its own original
work and that in any event their use in connection with the Project will not infringe
the rights of any third party.
ASSIGNMENT AND SUBCONTRACTING BY THE CONSULTANT
The Consultant shall not assign, or charge any right or obligation under this appointment to
any other person or subcontract the whole of the Services. The Consultant shall not
subcontract any part or parts of the Services without the prior written consent of the Client.
Any consent to subcontract any part or parts of the Services shall not affect or reduce the
scope of the Consultant’s obligations under this appointment.
11
ASSIGNMENT BY THE CLIENT
11.1
The Client may assign by way of absolute legal assignment any of its rights and
obligations under this appointment on two occasions without the Consultant’s
consent provided that it gives notice in writing of such assignment within a
reasonable period thereafter. Any further assignment shall require the prior written
consent of the Consultant (such consent not to be unreasonably withheld).
9
M-3822322-1
12
13
14
PROFESSIONAL INDEMNITY INSURANCE
12.1
The Consultant shall take out and maintain for a period of not less than 12 years
from the date of expiry of the defects liability and/or maintenance period under the
Building Contract, Professional Indemnity Insurance provided that such insurance
is, and remains, available at reasonable commercial rates.
12.2
Any increased or additional premium required by insurers by reason of the
Consultant’s own claims record or other act or omissions particular to the
Consultant shall be deemed to be within reasonable commercial rates.
12.3
The Consultant shall produce documentary evidence to the Client upon reasonable
request that such Professional Indemnity Insurance is being maintained.
12.4
The Consultant shall immediately inform the Client if the Professional Indemnity
Insurance ceases to be available at reasonable commercial rates in order that the
Consultant and the Client can discuss means of best protecting their respective
positions in the absence of such Professional Indemnity Insurance.
12.5
Within 14 days of the renewal date of such Professional Indemnity Insurance in
each year or otherwise upon the reasonable request of the Client, the Consultant
shall provide to the Client written confirmation from its insurers or insurance brokers
that it has such Professional Indemnity Insurance in force.
INSTRUCTIONS AND PAYMENT FOR ADDITIONAL WORK
13.1
In addition to the Services the Consultant shall perform such other Additional
Services in relation to the Project as the Client may from time to time request in
writing. The Client shall pay to the Consultant in respect of such Additional Services
the Additional Fee in accordance with clause 6.3.
13.2
The Consultant shall immediately comply with all instructions issued by the Client in
respect of the Services and/or any Additional Services unless any such instructions
conflict with any statutory requirements. If the Consultant fails to comply within 21
days of any such instructions, the Client may (without prejudice to its rights under
clause 8) employ others to give effect to such instructions and the additional cost to
the Client shall be recoverable from the Consultant or deducted from any amount
otherwise due to the Consultant.
13.3
If any instruction issued under clause 13.1 shall require the Consultant to undertake
work or do any thing not provided for under this appointment and shall not have
arisen out of or in connection with any negligence, omission or default of the
Consultant or of any of its servants or agents, the Client shall pay the Consultant in
accordance with clause 6.3.
WARRANTY
Within 14 days of receipt of a written request from time to time from the Client, the
Consultant shall execute as a deed one or more deeds of warranty in the form set out in
Appendix 4 in favour of any beneficiary having a bona fide actual or prospective legal or
commercial interest in the Project. Equally within 14 days of receipt of a written request
from the Client the Consultant shall use all reasonable endeavours to procure that any subconsultants shall execute as a deed one or more deeds of warranty in the form set out in
Appendix 4 in favour of any beneficiary having a bona fide actual or prospective legal or
commercial interest in the Project.
10
M-3822322-1
15
NOVATION
Within 7 days of receipt of a written request by the Client, the Consultant shall facilitate the
novation of this appointment to the Contractor by entering into a deed of novation in the
form appended at Appendix 6 of this appointment.
16
17
18
ENTIRE AGREEMENT
16.1
This appointment sets out the entire agreement and understanding of the parties
and supersedes all prior oral or written agreements understandings or
arrangements relating to the subject matter of this appointment. Neither party shall
be entitled to rely on anything which is not stated in this appointment or which
cannot be implied as being reasonably required to give it business efficacy and is
not otherwise inconsistent herewith provided that the rights and remedies provided
in this appointment are cumulative and are not exclusive of any rights and remedies
provided at common law.
16.2
This appointment shall not be amended, modified, varied or supplemented except in
writing by duly authorised representatives of both parties.
16.3
Neither any failure or delay on the part of either party to exercise any right or
remedy under this appointment nor any single or partial exercise of any right or
remedy shall be construed or operate as a waiver of any such right or remedy.
16.4
In the event that any term, condition, or provision contained in this appointment shall
be held to be invalid, unlawful or unenforceable, such term, clause, or provision
shall to that extent be omitted from this appointment and the rest of this appointment
shall stand, without affecting the remaining clauses.
DISPUTE RESOLUTION
17.1
Both parties shall endeavour to notify each other of any anticipated dispute so that
any potential dispute can be avoided by negotiation between them.
17.2
Both parties shall endeavour to resolve any disputes which arise by direct
negotiations in good faith between senior executives of their respective
organisations and shall give serious consideration to any request by either of them
to refer the dispute to mediation.
17.3
Any disputes arising under or in connection with this appointment may be referred
by either party to adjudication in accordance with the Scheme for Construction
Contracts. In the absence of agreement between the parties as to the choice of
adjudicator, the adjudicator shall be appointed by the Chairman for the time being of
the Technology and the Construction Solicitors Association or his nominated
representative.
17.4
The decision of any adjudicator shall be binding on, and implemented by, both
parties pending final determination of the relevant dispute by the English courts.
THIRD PARTY RIGHTS
This appointment is enforceable by the original parties to it and by their successors in title
and permitted assignees. Any rights of any person to enforce the terms of this appointment
pursuant to the Contracts (Rights of Third Parties) Act 1999 are excluded.
11
M-3822322-1
19
PERIOD OF LIABILITY
No action or proceedings under or in respect of this appointment, whether in contract or in
tort, in negligence or for breach of statutory duty or otherwise shall be commenced against
the Consultant after the expiry of 12 years from the date of completion of the Project in
accordance with the Building Contract.
20
GOVERNING LAW
This appointment will be construed in accordance with English law and be in all respects
subject to the jurisdiction of the English courts.
12
M-3822322-1
IN WITNESS whereof this appointment has been executed as a deed and delivered on the date
stated above.
EXECUTED AS A DEED by THE
CLIENT by the signatures of:Authorised Signatory
Authorised Signatory
Alternative A (where the Consultant is a Company)
EXECUTED AS A DEED by the
CONSULTANT acting by a Director
and the Company Secretary or by two
Directors whose signatures appear below:Director
Director/Secretary
Alternative B (where the Consultant is a partnership)
EXECUTED AS A DEED by the
CONSULTANT by the signatures of
those partners authorised to bind the
Consultant:-
Partner
(name)
(signature)
In the presence of: (witness signature)
Full name of Witness
Occupation of Witness
Address of Witness
Partner
(name)
(signature)
In the presence of: (witness signature)
Full name of Witness
Occupation of Witness
Address of Witness
13
M-3822322-1
APPENDIX 1 - FEE
Part I – The Fee
The Fee is the fixed fee of £[
] for the provision of the Services identified in
Appendix 3 together with any services necessary or reasonably incidental to such services.
The schedule of payments is as follows:-
Trigger for payment of instalment
Amount of instalment
([ ]%) or (£[ ])
14
M-3822322-1
Part II - Payment for additional services
Insert time charge rates for the performance of any additional services under clause 6.3
15
M-3822322-1
Part III - Rate of interest on late payments
For the purposes of clause 6.6, interest on late payment shall be payable at the rate of 4%
above the base rate for lending of [ ]Bank plc from time to time in force.
16
M-3822322-1
APPENDIX 2 - KEY PERSONNEL
Relevant Key Personnel
Job title
Area(s) of expertise
17
M-3822322-1
APPENDIX 3 - SERVICES TO BE PROVIDED BY THE CONSULTANT
18
M-3822322-1
APPENDIX 4 - DRAFT FORM OF COLLATERAL WARRANTY
Date of Agreement:
Project:
Client:
of:
University of the West of England
[
]
Consultant:
Company Registration Number:
of/whose registered office is at:
Beneficiary:
Company Registration Number:
of/whose registered office is at:
Services
(as more particularly described in the
Appointment)
Appointment dated:
Appointer:
Company Registration Number:
of/whose registered office is at:
Other parties apart from the Consultant
(if any):
Professional Indemnity Insurance: £[ ] million (minimum cover)
(“Nil” if not applicable)
19
M-3822322-1
1
INFORMATION
The information contained on the first page of this agreement forms part of this agreement.
2
3
BACKGROUND
2.1
The Beneficiary has an actual or prospective interest in the Project.
2.2
The Consultant is or has been appointed by the Appointer under the terms of the
Appointment to provide the services briefly described on page 1 of this Agreement
and more particularly described in the Appointment.
CONSIDERATION
This agreement is made on the above date between the Beneficiary and the Consultant
and is made in consideration of the payment of £1 by the Beneficiary to the Consultant
receipt of which the Consultant acknowledges.
4
5
WARRANTY AND LIABILITY
4.1
The Consultant warrants to the Beneficiary that it has complied and will at all times
comply with the terms of the Appointment and any specifications or requirements
included or referred to in the Appointment, and that, in the performance of the
Services, it has exercised, and will continue to exercise, the degree of skill, care and
diligence reasonably to be expected from an appropriately qualified and competent
member of its profession experienced in carrying out duties such as those under
the Appointment in relation to works of a similar size, scope, nature and complexity
as the Project;
4.2
The Consultant shall have no liability under this agreement which is greater or of
longer duration than it would have had if the Beneficiary had been a party to the
Appointment as joint employer and the Consultant shall be entitled in any action or
proceedings by the Beneficiary under this agreement to rely on any limitation in the
Appointment and to raise the equivalent rights in defence of liability (but excluding
set-offs or counterclaims) as it would have had if the Beneficiary had been named
as the Appointer under the Appointment. However, it shall not be a defence to any
action brought against the Consultant under this agreement that the Appointer has
suffered no loss under the Appointment. Upon the expiration of 12 years from the
date of completion of the Project in accordance with the Building Contract the
liability of the Consultant under this agreement shall cease save in relation to any
claims made by the Beneficiary against the Consultant and notified in writing by the
Beneficiary to the Consultant before the expiration of this 12 year period.
STANDARDS OF PRODUCTS AND MATERIALS
5.1
The Consultant warrants that it has exercised, and will continue to exercise, all
reasonable skill, care and diligence in accordance with this agreement to see that it
has not specified or selected for use, and it will not specify or select for use and (as
appropriate) it has not authorised or approved and it will not authorise or approve
the specification, selection or use by others of any product or material or building
practice or technique which is prohibited by the Appointment or is not in conformity
with relevant British or European Union Standards or Codes of Practice or which at
the time of specification, selection, approval or authorisation is widely known to
members of the Consultants’ profession to be deleterious or hazardous to health
20
M-3822322-1
and safety or to the durability of buildings and/or other structures and/or finishes
and/or plant and machinery in the particular circumstances in which it is used.
5.2
6
INSURANCE
6.1
7
If, in the performance of its duties under the Appointment, the Consultant becomes
aware that it, or any other person, has specified or used, or authorised or approved
the specification or use by others, of any such products or materials the Consultant
will notify the Beneficiary in writing forthwith. This clause does not create any
additional duty for the Consultant to inspect or check the work of others which is not
required by the Appointment.
The Consultant covenants:6.1.1
to take out and maintain professional indemnity insurance with
reputable insurers in the UK insurance market in an amount of not
less than that stated on page 1 in respect of any occurrence or series
of occurrences arising out of the same originating cause for a period
of 12 years from the date of completion of the Project in accordance
with the Building Contract, provided that such insurance is available
in the UK insurance market to members of the Consultant’s
profession at commercially reasonable rates. Any increased or
additional premium required by insurers by reason of the
Consultant’s own claims record or other acts or omissions, matters or
things particular to the Consultant shall be deemed to be within
commercially reasonable rates;
6.1.2
to inform the Beneficiary or its assignees in writing immediately of
any failure or inability to maintain such professional indemnity
insurance cover in accordance with clause 6.1.1 in order that the
Consultant and the Beneficiary can discuss means of best protecting
their respective positions in the absence of such insurance; and
6.1.3
when reasonably requested by the Beneficiary to produce for
inspection documentary evidence that its professional indemnity
insurance cover is being properly maintained and that payment has
been made in respect of the last preceding premium.
DOCUMENTS
7.1
In relation to all drawings, details, plans, reports, models, specifications, bills of
quantities, calculations, and other documents of any nature whatsoever which have
been or are hereafter provided by the Consultant in the course of performing its
obligations under the Appointment (“Documents”) the Consultant hereby grants or
agrees to grant to the Beneficiary a royalty-free non-exclusive licence to use and
reproduce all Documents for any purpose whatsoever connected with the Project
and such other purposes as are reasonably foreseeable including, but without
limitation, the carrying out, completion, maintenance, letting, advertisement,
modification, extension, reinstatement, reconstruction and repair of the Project.
Such licence will carry the right to grant sub-licences and will be transferable to third
parties but shall not entitle the owner of such licence or any sub-licences to
reproduce the designs contained in the Documents. Such licence shall take effect
from the date of this agreement or (in relation to Documents not yet in existence)
from the date of the creation of the relevant Document and shall continue
notwithstanding any termination of this agreement. Neither the Beneficiary nor any
21
M-3822322-1
recipient of any sub-licence under this clause, shall hold the Consultant liable for
any use it may make of the Documents for any purpose other than that for which
they were originally provided by it.
8
9
7.2
The Consultant agrees on reasonable request at any time and following reasonable
written prior notice to give the Beneficiary or those authorised by it access to the
Documents and to provide copies (including copy negatives and CAD disks) thereof
at the Beneficiary’s expense.
7.3
The Consultant warrants to the Beneficiary that it has used the standard of skill,
care and diligence as set out in clause 4.1 to see that the Documents (save to the
extent duly appointed sub-consultants have been used to prepare the same) are its
own original work and that in any event their use in connection with the Project will
not infringe the rights of any third party.
ASSIGNMENT
8.1
The benefit of this agreement may be assigned by the Beneficiary to any beneficiary
having a bona fide actual or prospective legal or commercial interest in the Project
or any part [twice] only without the consent of the Consultant provided that the
Consultant shall be entitled to receive notice of such an assignment in writing within
a reasonable period of the assignment taking place. Such notice will specify the
name and address of the assignee and the date of the assignment. The Consultant
will not contend that any such assignee is precluded from recovering any loss
resulting from any breach of this agreement (whatever the date of such breach) by
reason only that the person is an assignee and not the original beneficiary
hereunder or by reason that the original beneficiary or any intermediary beneficiary
escaped any loss resulting from such breach by reason of the disposal of any
interest in the property or that the original beneficiary or any intermediate
beneficiary has not suffered any or as much loss.
8.2
Notwithstanding clause 8.1, the Beneficiary may assign the benefit of this
agreement without restriction to any company within the same “group” as the
Beneficiary (as defined by Section 42 of the Landlord and Tenant Act 1954).
INSPECTION OF DOCUMENTS
The Consultant’s liabilities under this Agreement will not be in any way reduced or
extinguished by reason of any inspection or approval of the Documents or attendance at
site meetings or other enquiry or inspection which the Beneficiary may make or procure to
be made for its benefit or on its behalf.
10
[STEP IN RIGHTS8
10.1
8
The Beneficiary has no authority to issue any direction or instruction to the
Consultant in relation to the performance of the Consultant’s duties under the
Appointment unless and until the Beneficiary has given notice under clauses 10.2 or
10.3 below.
Step in rights are most pertinent where the beneficiary is a fund. Where the beneficiary is not a fund
these rights may not be necessary. Where the beneficiary is a purchaser or tenant these rights will
not be necessary. Delete as applicable and, if deleting, re-number subsequent clauses.
22
M-3822322-1
10.2
The Consultant will not exercise or seek to exercise any right which it may have or
which may become available to it, to terminate the Appointment or to treat it as
having been terminated or repudiated, or to discontinue or suspend the
performance of any duties or obligations to be performed by the Consultant under it,
without first giving to the Beneficiary not less than 14 days written notice specifying
the Consultant’s ground or grounds (the “Specified Grounds”) for terminating the
Appointment or treating it as having been terminated or repudiated or discontinuing
or suspending the performance of any duties to be performed by the Consultant and
stating the amount (if any) of monies outstanding under the Appointment. The
Consultant’s right to terminate the Appointment or treat it as having been repudiated
or to discontinue or suspend performance shall cease if within such period of notice
(and subject to clause 10.6 below) the Beneficiary shall give written notice to the
Consultant requiring the Consultant to accept the instructions of the Beneficiary to
the exclusion of the Client in respect of the Project upon the terms and conditions of
the Appointment.
10.3
The Consultant agrees that if requested by the Beneficiary by notice in writing and
subject to clause 10.6 below, he will accept the instructions of the Beneficiary or it’s
appointee to the exclusion of the Client in respect of its duties under the
Appointment upon the terms and the conditions of the Appointment and will if so
requested enter into agreement whereby the Beneficiary is substituted for the Client
under the Appointment.
10.4
The Client acknowledges that the Consultant will be entitled to rely on a notice given
to the Consultant by the Beneficiary under clauses 10.2 or 10.3 as conclusive
evidence that the Beneficiary has taken over from the Client the obligations and
responsibilities of the Client towards the Consultant such that the Consultant should
accept the instructions of the Beneficiary or its appointee to the exclusion of the
Client.
10.5
Notwithstanding anything contained in this Deed and notwithstanding any payments
which may be made by the Beneficiary to the Consultant, the Beneficiary will not be
under any obligation to the Consultant nor will the Consultant have any claim or
cause of action against the Beneficiary unless and until the Beneficiary has given
written notice to the Consultant pursuant to clauses 10.2 or clause 10.3 of this
Deed.
10.6
It shall be a condition of any notice given by the Beneficiary pursuant to clauses
10.2 or 10.3 that the Beneficiary or its appointee accepts liability for the
performance of the Client’s obligations under the Appointment including the
payment of fees and all other sums properly payable to the Consultant by the Client
under the Appointment (save that the Beneficiary will in paying such sums be
entitled to the same rights of set off and deductions as would have applied to the
previous Client under the Appointment) and including the rectification of any
outstanding breach or breaches by the Client so far as they have been included
properly in the Consultant’s Specified Grounds and are capable of remedy by the
Beneficiary. Upon the issue of any notice by the Beneficiary under clauses 10.2 or
10.3 the Appointment shall continue in full force and effect as if no right of
termination on the part of the Consultant had arisen and the Consultant shall be
liable to the Beneficiary or its appointee in lieu of its liability to the Client. If any
notice given by the Beneficiary under clauses 10.2 or 10.3 requires the Consultant
to accept the instructions of the Beneficiary’s appointee, the Beneficiary shall be
liable to the Consultant as guarantor for its appointee in respect of the payment of
all sums from time to time due to the Consultant from the Beneficiary’s appointee
and in respect of all the appointee’s obligations arising pursuant to this agreement.]
23
M-3822322-1
11
SUCCESSORS
References to the Beneficiary shall include the person or persons from time to time entitled
to the benefit of this agreement.
12
SUB-CONSULTANTS
Following a written request from the Beneficiary, the Consultant will (unless it has already
done so) use all reasonable endeavours to procure that its sub-consultants (if any) execute
deeds of warranty in the same or equivalent terms as are set out in this agreement in
favour of any person in whose favour the Appointment obliged the Consultant to give or
procure the giving of such warranties.
13
NOTICES
Any notice, request, demand, consent or approval given under or in connection with this
agreement must be given or confirmed in writing. Any such notice, request, demand,
consent or approval shall be delivered personally or addressed to the respective address of
the parties set out in this agreement or to the registered office or the principal business
address of either party for the time being and, if sent by post, shall be sent by first class
pre-paid post or recorded delivery and shall be deemed to have been received on the
second working day after the same shall have been posted.
14
THIRD PARTY RIGHTS
This agreement is enforceable by the original parties to it and their successors in title and
permitted assignees. Any rights of any person to enforce the terms of this agreement
pursuant to the Contracts (Rights of Third Parties) Act 1999 are excluded.
15
APPLICABLE LAW AND JURISDICTION
This agreement will be construed in accordance with English law and be in all respects
subject to the jurisdiction of the English courts.
24
M-3822322-1
IN WITNESS WHEREOF this agreement has been executed as a deed on the date and year
stated above.
Alternative A (where the Consultant is a Company)
EXECUTED AS A DEED by the
CONSULTANT acting by a Director
and the Company Secretary or by two
Directors whose signatures appear below:Director
Director/Secretary
Alternative B (where the Consultant is a partnership)
EXECUTED AS A DEED by the
CONSULTANT by the signatures of
those partners authorised to bind the
Consultant:-
Partner
(name)
(signature)
In the presence of: (witness signature)
Full name of Witness
Occupation of Witness
Address of Witness
Partner
(name)
(signature)
In the presence of: (witness signature)
Full name of Witness
Occupation of Witness
Address of Witness
EXECUTED AS A DEED by the
BENEFICIARY
by the signatures of:Alternative A
Authorised Signatory
Authorised Signatory
Alternative B
Director
Director/Company Secretary
25
M-3822322-1
APPENDIX 5 – DETAILS OF ANY ADDITIONAL CONSULTANTS
Name and Address
of Additional
Consultant
Individuals who will
carry out work of the
Additional
Consultant, and their
position
Role of Individuals
working for
Additional
Consultant in
relation to the design
of the works
Minimum amounts of
indemnity insurance
to be maintained by
Additional
Consultant
26
M-3822322-1
APPENDIX 6 – DEED OF NOVATION
DATED
20[ ]
(1) [CLIENT]
AND
(2)
[CONTRACTOR]
AND
(3)
[CONSULTANT]
NOVATION AGREEMENT
relating to
[insert details] at [insert details]
27
M-3822322-1
THIS AGREEMENT is made on
20[ ]
BETWEEN
(1)
UNIVERSITY OF THE WEST OF ENGLAND of [insert address] (the “Client”); and
(2)
[CONTRACTOR] (registered in England and Wales under company number [insert
number]) whose address or registered office is at [insert address] (the “Contractor”); and
(3)
[CONSULTANT] (registered in England and Wales under company number [insert
number]) whose address or registered office is at [insert address] (the “Consultant”).
NOW IT IS AGREED AS FOLLOWS
1
2
BACKGROUND
1.1
By an agreement dated on or about [insert date] (the “Appointment”) the Client has
appointed the Consultant to provide [insert details] services (the “Services”).
1.2
Under a contract dated on or about [insert date] (the “Building Contract”) the Client
has appointed the Contractor to design and construct certain works as described in
the Building Contract (the “Works”).
1.3
The Client, Consultant and Contractor have agreed that from the date of this
agreement
1.3.1
the Contractor shall assume the rights, liabilities and obligations of
the Client;
1.3.2
the Consultant shall perform its obligations under the Appointment in
favour of the Contractor and that; and
1.3.3
the Client and the Consultant shall each release the other from any
obligations owed by the other to them under the Appointment.
RELEASE BY THE CLIENT OF THE CONSULTANT
The Client releases and discharges the Consultant from any and all obligations and
liabilities owed to the Client under the Appointment.
3
4
RELEASE BY THE CONSULTANT OF THE CLIENT
3.1
The Consultant releases and discharges the Client from any and all obligations and
liabilities owed to the Consultant under the Appointment, and accepts the liability of
the Contractor under the Appointment in lieu of the liability of the Client.
3.2
The Consultant acknowledges that the Client has paid all fees and expenses
properly due and owing to the Consultant under the Appointment as at the date of
this agreement.
ACCEPTANCE OF LIABILITY BY THE CONSULTANT TO THE CONTRACTOR
4.1
Subject to the variations, if any, set out in Schedule 1 to this agreement, the
Consultant undertakes to perform the Appointment and to be bound by its terms, in
every way as if the Contractor were and had been from inception of the
28
M-3822322-1
Appointment a party to the Appointment in lieu of the Client. For the avoidance of
doubt, all Services carried out by the Consultant prior to this agreement shall be
deemed to have been provided to the Contractor.
5
6
4.2
The Consultant warrants to the Contractor that, in respect of the duties and
obligations which it has already performed under the Appointment, it has performed
those duties and obligations in accordance with the standards of skill and care set
out in the Appointment. Furthermore, the Consultant shall be liable for any loss or
damage suffered or incurred by the Contractor, arising out of any negligent act,
default or breach of the Consultant’s obligations under the Appointment,
notwithstanding that the Client may not have suffered any or as much loss or
damage. No waiver by the Client, either express or implied, shall affect the
Consultant’s liability to the Contractor pursuant to this clause.
4.3
The liability of the Consultant to the Contractor pursuant to this agreement, or
pursuant to the Appointment, shall not be affected by the Contractor’s assumption of
liability for design to the Client pursuant to the Contract.
4.4
The Consultant acknowledges that the Contractor has relied upon, and will continue
to rely upon, the Services carried out by the Consultant.
4.5
The Consultant shall have regard to any obligations on the part of the Contractor in
the Building Contract, and shall perform the Services in the Appointment or as
amended in the Schedules hereto in such manner and at such times so as not to
constitute, cause or contribute to any breach of the Contract by the Contractor.
4.6
All rights of action and remedies against the Consultant under or pursuant to the
Appointment vested in the Client shall from the date of this agreement vest in the
Contractor.
4.7
All rights and remedies against the Client under or pursuant to the Appointment
vested in the Consultant shall from this date be exercised against the Contractor.
ACCEPTANCE OF LIABILITY BY THE CONTRACTOR
5.1
With the exception of any outstanding liability to pay any fees properly owing under
the Appointment at the date of this agreement, and subject to the variations if any
set out in Schedule 2 to this agreement, the Contractor accepts the liabilities of the
Client, and undertakes to perform the Appointment and to be bound by its terms in
every way as if the Contractor were, and had been from inception of the
Appointment, a party to the Appointment in lieu of the Client, and as if all acts and
omissions of the Client under or pursuant to the Appointment prior to the date of this
Agreement were the acts or omissions of the Contractor.
5.2
All rights of action and remedies vested in the Consultant under or pursuant to the
Appointment shall from the date of this agreement vest against the Contractor.
AFFIRMATION OF APPOINTMENT
Subject only to the terms and conditions of any warranty back from the Consultant to the
Client pursuant to this agreement, the terms and conditions of this agreement represent the
entire agreement between the parties relating to the novation of the Appointment, and
except as specifically amended by this agreement, all the terms and conditions of the
Appointment remain in full force and effect.
29
M-3822322-1
7
WARRANTIES AND ACKNOWLEDGEMENTS
7.1
8
9
The Client warrants and acknowledges to the Contractor that:
7.1.1
it has at all times observed and performed and is not in breach of the
Appointment; and
7.1.2
at the date hereof it has paid to the Consultant the sum of £[insert
amount] plus VAT in accordance with the terms and conditions of the
Appointment; and
7.1.3
at the date hereof there is no sum or sums due to the Consultant
under the Appointment or arising therefrom that have not been
discharged by the Client; and
7.1.4
it is not aware of any breach of the Appointment committed by the
Consultant; and
7.1.5
it has not assigned the Appointment nor any benefit arising under or
from that Appointment to any third party and it is not holding any
such benefit on trust for any third party.
7.2
The Consultant acknowledges that, prior to entering into this agreement, it has
inspected a copy of the Building Contract (including all documents comprising the
Building Contract). The Consultant further acknowledges that any breach of the
Appointment (whether on or before the date of this agreement or at any time
thereafter) may result in the Contractor incurring liabilities under or arising out of the
Building Contract and/or other contracts that the Contractor has or may enter into.
7.3
The Consultant shall, forthwith execute and deliver to the Client a deed of collateral
warranty in the form annexed at Schedule 3.
EXISTING CLAIMS
8.1
In this clause the “Existing Claims” mean such breaches or alleged breaches of
obligations under the Appointment as are at the date of this agreement the subject
of adjudication, arbitration, litigation or any other form of dispute resolution between
the Client and Consultant, brief details of which are set out in Schedule 4.
8.2
Notwithstanding any other provision in this Agreement, this Agreement shall not
operate to release or discharge the Client or the Consultant in respect of the
Existing Claims.
8.3
The Client hereby assigns to the Contractor the right to pursue or defend the
Existing Claims in the name of the Client.
8.4
The Contractor shall indemnify the Client in respect of any costs, damages, or
expenses incurred by the Client in consequence of the Contractor pursuing or
defending the Existing Claims.
8.5
The Client shall account to the Contractor in respect of any sums which the Client
receives from the Consultant in respect of the Existing Claims.
THIRD PARTY RIGHTS
30
M-3822322-1
This agreement is enforceable by the original parties to it and their successors in title. Any
rights of any person to enforce the terms of this agreement pursuant to the Contracts
(Rights of Third Parties) Act 1999 are excluded.
10
APPLICABLE LAW AND JURISDICTION
This deed shall be governed by and construed in accordance with the law of England and
Wales and the courts of England and Wales have exclusive jurisdiction with regard to all
matters arising in connection with or under this agreement.
31
M-3822322-1
IN WITNESS whereof this novation has been executed as a deed on the date and year stated
above.
EXECUTED as a DEED by
THE CLIENT by the signatures of:
Alternative A
Authorised Signatory
Authorised Signatory
Alternative B
Director
Director/Company Secretary
EXECUTED as a DEED by
THE CONTRACTOR by the signatures of:
Alternative A
Authorised Signatory
Authorised Signatory
Alternative B
Director
Director/Company Secretary
EXECUTED AS A DEED by the
CONSULTANT acting by a Director
and the Company Secretary or by two
Directors whose signatures appear below:Alternative A (where the Consultant is a Company)
Director
Director/Secretary
Alternative B (where the Consultant is a partnership)
EXECUTED AS A DEED by the
CONSULTANT by the signatures of
those partners authorised to bind the
Consultant:-
Partner
(name)
(signature)
32
M-3822322-1
In the presence of: (witness signature)
Full name of Witness
Occupation of Witness
Address of Witness
Partner
(name)
(signature)
In the presence of: (witness signature)
Full name of Witness
Occupation of Witness
Address of Witness
33
M-3822322-1
SCHEDULE 1 - [SCHEDULE OF AMENDMENTS TO BE MADE TO THE CONSULTANT’S
SERVICES AND/ OR OBLIGATIONS]
The parties hereto agree that with effect from [date of agreement] the Appointment is amended as
follows:
1
[Automatic termination of the Appointment upon termination for whatever reason of the
Building Contract.
2
Compliance with the Contractor’s programme.
3
Compliance with a design programme.
4
Extensions of time for performance of the Consultant’s obligations.]
[Note : Delete obligations which, if novated, would make a nonsense of the Deed eg:


For consultant to advise on main contract tenders
For consultant to instruct contractor to rectify unsatisfactory work or advise on
deductions.
NB If there are no amendments to the Appointment then this should be stated.]
34
M-3822322-1
SCHEDULE 2 - [SCHEDULE OF AMENDMENTS TO BE MADE TO THE CLIENT’S
OBLIGATIONS AND / OR LIABILITIES]
35
M-3822322-1
SCHEDULE 3
DATED
200
(1)
[CLIENT]
AND
(2)
[CONSULTANT]
AND
(3)
[CONTRACTOR]
DEED OF COLLATERAL WARRANTY
relating to the Novated Services
in relation to
[insert details]at [insert details]
[Note: This warranty provides contractual protection back to the client following the novation of
the Consultant’s appointment to the Contractor. Following that novation, the Client no longer has
the benefit of the Consultant’s obligations, and legally becomes merely a further third party with an
interest in the performance of the Consultant’s duties; hence the need for this “warranty back”.]
36
M-3822322-1
THIS AGREEMENT is made on
200
BETWEEN
(1)
UNIVERSITY OF THE WEST OF ENGLAND of [insert address] (the “Client”); and
(2)
[CONSULTANT] (registered in England and Wales under Company Number [insert
number]) whose address or registered office is at [insert address] (the “Consultant”); and
(3)
[CONTRACTOR] (registered in England and Wales under Company Number [insert
number]) whose address or registered office is at [insert address] (the “Contractor”).
RECITALS
(A)
By an agreement dated on or about [insert date] (the “Appointment”) the Client appointed
the Consultant to provide [insert details] services (the “Services”) in relation to the design
and construction of [insert details] at [insert details] (the “Project”).
(B)
By a further agreement dated on about [insert details] (the “Novation”) the Client agreed to
novate to the Contractor the Appointment on the terms set out in the Novation and subject
to the amendments to the Services set out in the novation (the “Novated Services”).
NOW IT IS AGREED as follows:
In consideration of the payment of £1 (one pound) by the Client to the Consultant, receipt of which
the Consultant acknowledges:
1
WARRANTY
1.1
The Consultant warrants to the Client:
1.1.1
that it has complied with and will continue to comply with the
terms of the Novation; and
1.1.2
that in the performance of the Services and Novated Services it
has exercised, and will continue to exercise, the degree of skill,
care and diligence reasonably to be expected of a skilled and
qualified professional person holding himself out as competent to
perform those Novated Services; and
1.1.3
that no enquiry, inspection, approval, sanction, comment,
consent, decision or instruction shall operate to exclude or limit
the Consultant's obligation to exercise the level of skill, care and
diligence required under the Appointment.
1.2
Any release, discharge or absolving of the Consultant’s liability and obligations to
the Client contained in the Novation is subject to the terms of this agreement.
1.3
Without prejudice to the generality of clause 1.1 above, the Consultant warrants to
the Client that it will:
1.3.1
provide
warranties,
undertakings,
covenants
and
acknowledgements in the terms of those set out in and in favour
of those specified in the Appointment and/or in the Novation;
37
M-3822322-1
1.4
2
1.3.2
provide to the Client copies of all instructions, notices, reports,
decisions, approvals, suspensions, terminations or referrals
issued under or in connection with the Novation;
1.3.3
grant to the Client on irrevocable, royalty-free and non-exclusive
licence to use and reproduce the Documents and the designs
contained in them on the terms set out in the copyright licence
granted under the Appointment, and the Consultant shall (if so
requested) at any time execute such documents and perform
such acts as may be required fully and effectively to assure to the
Client the rights referred to in this clause;
1.3.4
maintain professional indemnity insurance in accordance with the
terms of the Appointment and that it shall, upon request made
from time to time, provide to the Client documentary evidence of
such insurance.
In any action or proceedings by the Client under this agreement the Consultant shall
be entitled to rely upon any limitation in the Novation, or in the Appointment referred
to in the Novation, and to raise the equivalent rights in defence of liability for such
loss (but excluding set-offs or counterclaims) as if the claim were being brought by
the Contractor rather than the Client, save that the Consultant shall not be absolved
from liability to the Client for such loss merely by virtue of the fact that the loss has
not been suffered by the Contractor. Upon the expiration of 12 years from
completion of the Project in accordance with the Building Contract, the liability of the
Consultant under this agreement shall cease, save in relation to any claims made
by the Client against the Consultant and previously notified by the Client to the
Consultant.
TERMINATION AND STEP IN RIGHTS
2.1
The Client has no authority to issue any direction or instruction to the Consultant in
relation to the performance of the Consultant’s duties under the Novation unless
and until the Client has given notice under clauses 2.2 and 2.3 below.
2.2
The Consultant will not terminate the Novation or treat it as terminated or
discontinue the performance of its services under the Novation without first giving to
the Client not less than 14 days written notice specifying the Consultant’s ground or
grounds (the “specified grounds”) for terminating or treating as terminated the
Novation or discontinuing or suspending the performance of any duties to be
performed under it, and stating the amount (if any) of monies outstanding under the
Novation. The Consultant’s right to terminate the Novation or treat it as having been
repudiated, or to discontinue or suspend performance, shall cease if within such
period of notice (and subject to clause 2.6 below) the Client shall give written notice
to the Consultant requiring the Consultant to accept the instructions of the Client to
the exclusion of the Contractor in respect of the Project upon the terms and
conditions of the Novation.
2.3
The Consultant agrees that if requested by the Client by notice in writing, and
subject to clause 2.6, he will accept the instructions of the Client or its appointee to
the exclusion of the Contractor in respect of its duties under the Novation upon the
terms and conditions of the Novation, and will if so requested enter into agreement
whereby the Client is substituted for the Contractor under the Novation.
38
M-3822322-1
3
2.4
The Contractor acknowledges that the Consultant will be entitled to rely on a notice
given to the Consultant by the Client under clause 2.2 or 2.3 as conclusive evidence
that the Client has taken over from the Contractor the obligations and
responsibilities of the Contractor towards the Consultant, such that the Consultant
should accept the instructions of the Client or its appointee to the exclusion of the
Contractor.
2.5
Not withstanding anything contained in this deed and notwithstanding any payments
which may be made by the Client to the Consultant, the Client will not be under any
obligation to the Consultant nor will the Consultant have any claim or cause of
action against the Client unless and until the Client has given written notice to the
Consultant pursuant to clause 2.2 or 2.3 of this deed.
2.6
It shall be a condition of any notice given by the Client pursuant to clauses 2.2 or
2.3 that the Client or its appointee accepts liability for the performance of the
Contractor’s obligations under the Novation, including the payment of fees and all
other sums properly payable to the Consultant by the Contractor under the Novation
(save that the Client will in paying such sums be entitled to the same rights of set off
and deductions as would have applied to the Contractor under the Novation, and
the performance of the Contractor’s obligations under the Novation including the
rectification of any outstanding breach or breaches by the Contractor so far as they
have been included properly in the Contractor’s specified grounds and are capable
of remedy by the Client. Upon the issue of any notice by the Client under clauses
2.2 or 2.3 the Novation shall continue in full force and effect as if no right of
termination on the part of the Consultant had arisen and the Consultant shall be
liable to the Client or its appointee in lieu of its liability to the Contractor. If any
notice given by the Client under clauses 2.2 or 2.3 requires the Consultant to accept
the instructions of the Client’s appointee, the Client shall be liable to the Consultant
as guarantor for its appointee in respect of the payment of all sums from time to
time due to the Consultant from the Client’s appointee and in respect of all the
appointee’s obligations arising pursuant to this agreement).
SUCCESSORS
References to the Client shall include the person or persons from time to time entitled to the
benefit of this agreement.
4
NOTICES
Any notice, request, demand, consent or approval given under or in connection with this
agreement must be given or confirmed in writing. Any such notice, request, demand,
consent or approval shall be delivered personally or addressed to the respective address of
each party set out in this agreement or the registered office or the principle business
address of either party for the time being and, if sent by post, shall be sent by first class
prepaid post or recorded delivery and shall be deemed to have been received on the
second working day after posting.
5
APPLICABLE LAW AND JURISDICTION
This agreement will be construed in accordance with English law and be in all respects
subject to the jurisdiction of the English courts.
39
M-3822322-1
6
THIRD PARTY RIGHTS
This agreement is enforceable by the original parties to it and their successors in title and
permitted assignees. Any rights of any person to enforce the terms of this agreement
pursuant to the contract (Right of Third Parties) Act 1999 are excluded.
IN WITNESS whereof this agreement has been executed as a deed on the date and year stated
above
EXECUTED AS A DEED by THE CLIENT
acting by:
Alternative A
Authorised Signatory
Authorised Signatory
Alternative B
Director
Director/Company Secretary
Alternative A (where the Consultant is a Company)
EXECUTED AS A DEED
CONSULTANT acting by:
by
THE
Director
Director/Company Secretary
40
M-3822322-1
Alternative B (Where the Consultant is a Partnership)
EXECUTED AS A DEED by THE
CONSULTANT by the signatures of those
partners
authorised
to
bind
the
Consultant:Partner Name
Signature
In the presence of:
Witness Signature
Full name of witness
Occupation of witness
Address of witness
EXECUTED AS A DEED by THE
CONSULTANT by the signatures of those
partners
authorised
to
bind
the
Consultant:Partner Name
Signature
In the presence of:
Witness Signature
Full name of witness
Occupation of witness
Address of witness
41
M-3822322-1
EXECUTED AS A DEED
CONTRACTOR acting by:
by
THE
Alternative A
Authorised Signatory
Authorised Signatory
Alternative B
Director
Director/Company Secretary
42
M-3822322-1
SCHEDULE 4 - [SCHEDULE OF EXISTING CLAIMS]
43
M-3822322-1